Osborne v. The County of Seneca et al
Filing
37
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 26 Motion to Dismiss. Defendants motion to dismiss [#26] is granted and this action is dismissed with prejudice. Signed by Hon. Charles J. Siragusa on 6/6/14. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BURL OSBORNE,
Plaintiff,
11-CV-6380 CJS
-vTHE COUNTY OF SENECA, RICHARD E.
SWINEHART, as District Attorney for the County
of Seneca and individually, DAVID G. MASHEWSKE,
MARK SINKEWICZ, PATRICK J. MORRELL,
ROBERT STEELE, as employees of the Office
of the Seneca County District Attorney and
individually, and ROBERT SCHULTZ, as a member
of the New York State Police and individually,
Defendants.
APPEARANCES
For Plaintiff:
For Seneca County
Defendants:
Jeffrey P. DiPalma, Esq.
Osborn, Reed & Burke, LLP
45 Exchange Boulevard
Rochester, New York 14614
Michael P. McClaren, Esq.
Jeremy A. Colby, Esq.
Webster Szanyi LLP
1400 Liberty Building
Buffalo, New York 14202
INTRODUCTION
This is an action brought by a former Deputy of the Seneca County Sheriff’s
Department who claims that he was maliciously prosecuted by the former Seneca County
District Attorney, Richard Swinehart, and members of his staff (“Defendants”).1 Now before
1
Robert Schultz, a New York State Police Investigator, is also a defendant. By separate Decision and
Order, the Court is granting Schultz’s motion for summary judgment.
the Court is Defendants’ motion (Docket No. [#26]) to dismiss the Amended Complaint. The
application is granted.
BACKGROUND
Defendants are moving to dismiss pursuant to FRCP 12(b)(6). It is of course wellsettled that in resolving a 12(b)(6) motion, the Court is limited as to what it can consider.
See, Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1
(S.D.N.Y. Sep.24, 2012) (On a 12(b)(6) motion, “a court may consider ‘documents attached
to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial
notice may be taken, or ... documents either in plaintiffs' possession or of which plaintiffs
had knowledge and relied on in bringing suit.’ “ Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir.2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d
Cir.1993)).”).
Here, the Amended Complaint repeatedly mentions a number of documents that are
not actually attached to the pleading. Specifically, the Amended Complaint describes, and
alludes to the contents of, police reports and written witness statements concerning an
incident that occurred on December 30, 2008, as well as prosecutor’s informations and
misdemeanor informations that were filed against Plaintiff.2 The lynchpin of Plaintiff’s claims
is that some of these documents contain false information, while others were improperly filed
or not turned over to him in a timely fashion as part of the prosecution against him in state
court. Accordingly, the Court will consider these documents, because to the extent they may
not be expressly incorporated by reference into the Amended Complaint, Plaintiff obviously
2
Amended Complaint [#24] at ¶ ¶ 4, 27, 30-32, 34-35, 37-40, 44, 51-54, 60, 66-69, 71, 79.
2
had them in his possession3 and relied upon them4 in drafting the pleading to such an extent
that they are integral to the Amended Complaint.5 See, Bath Petroleum Storage, Inc. v.
Market Hub Partners, L.P., 129 F.Supp.2d 578, 581 (W.D.N.Y., 2000) (“[A] plaintiff should
not be permitted to survive a motion to dismiss and put a defendant to the trouble and
expense of discovery simply by excluding highly relevant facts and documents from its
complaint.”) (citing Cortec Industries v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991)6),
aff'd 229 F.3d 1135 (2d Cir.2000) (table), cert. den. 532 U.S. 1037, 121 S.Ct. 1998, 149
L.Ed.2d 1001 (2001)).
The reader is reminded that much of the factual recitation that follows is based on
Plaintiff’s as-yet-unproven allegations, which the Court must assume to be true for purposes
of this Decision and Order.
The Seneca Meadows Landfill is located on the east side of New York State Route
414, in Waterloo, New York, approximately 3.6 miles south of Exit 41 of the New York State
Thruway. A travel plaza containing a Petro gas station and a restaurant is located near the
3
See, Amended Complaint [#24] at
during the underlying prosecution).
¶ ¶ 54, 60 (Plaintiff was provided with the witness statements
4
Plaintiff obviously relied upon the statements, because his contention that certain affidavits are false
is based upon comparing earlier witness statements with later witness statements. In opposing Defendants’
motion, Plaintiff contends that the Court should not consider any documents submitted by Defendants,
because they are untimely or improperly filed. See, Pl. Memo of Law [#31-1] at pp. 1-4. However, the Court
disagrees. In that regard, Defendants indicated that they forwarded the documents to the Court just as soon
as Plaintiff provided the documents to them. In any event, the Court is entitled to consider the documents
because Plaintiff relied on them and they are integral to the pleading.
5
The Court does not consider the affidavits that were submitted in connection with Defendant Robert
Schultz’s summary judgment application.
6
See, Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d at 47 (“[W]e have held that when a plaintiff
chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies and
which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint
for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences
of its own failure.”) (citation omitted).
3
Thruway entrance, on the east side Route 414, across from the Exit 41 toll booths. A Nice
N Easy convenience store/gas station is located at the intersection of Routes 414 and 318,
between the Seneca Meadows Landfill and the Thruway exit.7
On December 30, 2008, a commercial truck driver named Frederick Grant (“Grant”)
was delivering a truckload of waste to the Seneca Meadows Landfill. At approximately 6:00
p.m., Grant had delivered his load and was preparing to exit the landfill and turn left onto
Route 414, going North, toward the Thruway exit. At that same moment, Burl Osborne
(“Plaintiff”) was riding in a car driven by his daughter’s fiance/boyfriend, Jeffrey Jones
(“Jones”), heading north on Route 414. Plaintiff was an off-duty deputy employed by the
Seneca County Sheriff’s Department, dressed in civilian clothing, and was carrying a pistol.
As Grant turned into the roadway, Jones had to swerve in order to avoid a collision with
Grant’s truck.8 Gary Bessette (“Bessette”), another truck driver, who was familiar with Grant,
was also exiting the landfill at the same time, and witnessed the near-collision between
Grant’s truck and the car in which Plaintiff was riding. After the near collision, Grant drove
north to the travel plaza. Plaintiff directed Jones to pursue Grant. In that regard, Plaintiff
and Jones were in Jones’ private vehicle, which did not have any type of police markings or
lights. Bessette exited the landfill and also went north on Route 414, but stopped at the Nice
N Easy convenience store, while Plaintiff and Jones followed Grant north to the travel plaza.
At the travel plaza, Plaintiff directed Jones to follow Grant’s truck into the parking lot,
and Plaintiff exited Jones’ car and, after chasing Grant’s truck around the parking lot on foot
7
The Court is familiar with this area, and also takes judicial notice of the locations from maps.
8
Jeffrey Jones, the driver of the vehicle in which Plaintiff was a passenger, indicated to police that he
“swerved to avoiding hiting [Grant’s truck] and went off the road.” Docket No. [#28-2] at p. 13.
4
with his gun drawn, pointed his gun at Grant, who was still inside his truck. Plaintiff ordered
Grant to get out of his truck, and threatened to shoot Grant if he did not comply. Grant got
out of the truck, and Plaintiff held him at gunpoint for several minutes until members of the
Seneca County Sheriff’s Department arrived.
There were a number of witnesses to these events. Of those, on December 30,
2008, the Seneca County Sheriff’s Department took written statements from at least the
following persons: 1) Grant; 2) Bessette; 3) Jones; 4) James Onley (“Onley”); 5) Matthew
Springer (“Springer”); 6) Thomas Smith (“Smith”); and 7) Anton Heindl (“Heindl”).
To the extent that some of these affidavits are pertinent to the subject motion, the
Court will quote them extensively. Regarding the traffic incident that led to the violent
confrontation, Bessette gave a statement, as follows:
On 12/30/08 I was leaving the Seneca Meadows land fill. Fred Grant was
ahead of me. There was a dark vehicle coming up [Route 414,] he was about
2 tractor trailer lengths behind Fred. I watch him pick up speed and I thought
he was going to pass Fred Grant on the right but he backed out it [sic] and
stayed right behind him. I turned around because I decided not to go to the
Petro. To me I didn’t think anything of it.
Docket No. [#29-3] at p. 12. This statement from Bessette obviously does not mention
events at the travel plaza. However, as will be discussed further below, it is evident that
although Bessette did not go to the Petro travel plaza immediately after leaving the landfill,
he went there shortly thereafter because he was at the Petro travel plaza when Seneca
County Sheriff’s deputies took his statement as part of their investigation into Plaintiff’s
“arrest” of Grant.
Regarding events at the travel plaza, Grant gave a sworn statement, which indicates,
in pertinent part:
5
They [Osborne and Jones] followed me into the Petro truck stop and followed
me around the parking lot . . . then [Osborne] ordered me out of the truck by
gunpoint w/out telling me he was an officer and when I asked him several
times to put his gun down I begged him and he said get out lay on the ground
and shut up or he would put 15 rounds into my head. Still not telling me he
was an officer yet. Then I got out almost in tears and he grabbed me [and]
held the gun in front of me a couple feet away and ordered me to shut up or
he would shoot me. Another man I work with [Springer] asked the man with
the gun for identification and he showed it. I tried to walk away and shut my
truck off and he [Osborne] held onto me and said don’t move I’m telling you
I’ll kill you like you tried to kill me. Then the officer showed up. [sic]
Docket No. [#29-3] at pp. 5-6.
James Onley also provided a written statement to Seneca County Sheriff’s deputies,
which indicates, in pertinent part:
[On] 12-30-08 about 1700 I pulled into Petro, I was looking for place to park
up front. As I was circling the parking lot I notice[d] a semi, speeding kicking
up dirt. Then I saw a black Jeep with [the] passenger door open. The
passenger was running after the truck yelling [“G]et him Jeff[“] [evidently
referring to Jones, who was driving the Jeep] Then I saw an opening and as
I was parking I notice[d] a man with [illegible] blue coat, Levis - pointing a gun
at the truck driver . . . he came around [the] corner . . . yelling at him, to get
out of truck or he would shoot him. The [truck] driver tried to put it in reverse
to get away but by this time, the man with gun was by [the] driver[‘s] door.
And I could see [that the] people in [the] truck was scared. What was done on
[the] driver’s side I don’t know.
Docket No. [#29-3] at p. 15 (emphasis added).
Matthew Springer’s statement similarly details the events, and states in pertinent
part:
[A]s I exited the rear door of the building toward my truck, I noticed a tractor
trailer pulling in and a Jeep was coming behind it sliding sideways across the
parking lot. The driver of the truck stopped next to me and stated the psycho
behind has a gun. Freddy the driver continued thru the parking lot toward the
6
fuel island to get away from the guy with the gun and the driver of the Jeep
continued to follow him. I approached the guy with the gun and told him put
the gun away, and he didn’t say a word and he then took off between the
parked trucks. I had started to walk toward the fuel islands because Freddy
had drove in that direction but he just made a loop and came right back behind
the Petro building and stopped. I walked back over to Freddy’s truck and
when I came around to the driver side the guy in the blue coat with the gun
was standing on the side of his truck with the gun pointed at him and was
screaming at him calling him a rotten fucker and numerous other curse words
and was telling him to get out of the truck. I still at this point hadn’t heard the
man identify himself but I yelled at Freddy to get out of the truck and as soon
as he did the guy pushed him against the truck and had the gun to his head.
I pushed the gun down from Freddy’s head and got between them and he
started yelling at me that I’m going to have you arrested and that was when
he said he was a cop and I demanded that he show me ID and after several
requests he showed me his ID. I kept telling him if the cops are coming put
the gun down and calm down Freddy’s not going anywhere. [He] never
calmed down and continued to act like he was crazy and at no time did
anyone make any threats toward him. I was afraid that if Freddy hadn’t
listened to the guy he was acting crazy enough that I thought he was going to
shoot him. After the other officer showed up in uniform the guy calmed down
and back[ed] away from Freddy and put his gun away.
Docket No. [#29-3] at p. 16.
As mentioned earlier, sheriff’s deputies also took statements from Smith, Heindl and
Jones, which essentially corroborate various aspects of Grant’s, Onley’s and Springer’s
versions of events.9
No criminal charges were filed against anyone as a result of the December 30, 2008,
incident and the ensuing investigation by the Seneca County Sheriff.
9
Although not necessarily pertinent to the instant motion, the Court observes that in opposing a
separate summary judgment motion by defendant Robert Schultz, Plaintiff did not dispute the basic description
of the event provided by the witnesses. At most, there may be a dispute as to when, during the confrontation,
Plaintiff identified himself as a police officer.
7
Prior to the foregoing events, the former Seneca County Sheriff, Leo Connolly
(“Connolly”), and several members of his department, had been prosecuted for various
alleged acts of corruption. In particular, Connolly was prosecuted by R. Michael Tantillo
(“Tantillo”), District Attorney of Ontario County, New York, who had been appointed Special
Prosecutor. According to Plaintiff, Tantillo was appointed as special prosecutor because
the Seneca County District Attorney, Richard Swinehart (“Swinehart”), who is allegedly a
political ally of Connolly’s, was being investigated for possible involvement in the alleged
wrongdoing by Connolly.10
Plaintiff, an employee of the Seneca County Sheriff’s Department, claimed to have
knowledge of malfeasance by Connolly,11 although it is unclear from the present record
whether Tantillo utilized Plaintiff as a prosecution witness. Swinehart allegedly knew that
Plaintiff claimed to have incriminating information about Connolly, although it is unclear
when he learned that.12
In August 2008, a jury convicted Connolly of two misdemeanor counts of Official
Misconduct, in violation of New York Penal Law § 195.00[1]. See, People v. Connolly, 63
A.D.3d 1703, 881 N.Y.S.2d 257 (4th Dept. 2009). Connolly appealed those convictions.
On or about May 26, 2009, while Connolly’s appeal was pending, Swinehart began
looking into the incident on December 30, 2008, involving Plaintiff. As to the timing of the
10
Amended Complaint [#24] at ¶ ¶ 24-25.
See, Docket No. [#32-1] at pp. 7-8; see also, Amended Complaint [#24] at ¶ 23 (Describing Plaintiff
as a “material witness” against Connolly).
11
See, Amended Complaint [#24] at ¶ 4 (Alleging that Swinehart’s motive was to “sabotage” Tantillo’s
prosecution of Connolly). It is unclear to this Court whether Plaintiff testified against Connolly during Tantillo’s
first prosecution of Connolly.
12
8
investigation, Swinehart apparently maintains that the Seneca County Sheriff’s Department
never told him about the incident when it occurred, and that he had only learned about it in
March, 2009, when Grant called his office to inquire about the status of any prosecution
against Plaintiff. Swinehart subsequently obtained the police reports and statements made
on December 30, 2008. Swinehart also requested the assistance of the New York State
Police in re-investigating the incident. Robert Schultz (“Schultz”), an investigator with the
State Police, was assigned by his supervisor to assist Swinehart with the investigation.13
Schultz re-contacted witnesses and took additional written statements from Onley and
Bessette. The details of the statements that Schultz obtained from Onley, and Bessette are
set forth below.
On June 9, 2009, Onley executed an affidavit in Rockford, Illinois, where he lives, and
sent it to Schultz.14 As noted earlier, Onley’s original statement had indicated that there was
more than one person in the cab of Grant’s truck at the time of the incident. (“I could see
[that the] people in [the] truck was scared.”) (emphasis added). In the affidavit he provided
to Schultz, Onley provided a more extensive statement, in pertinent part as follows:
When I was pulling into the Petro I noticed an 18 wheeler garbage hauler truck
going fast around the parking lot. All of a sudden I noticed a dark colored
Jeep come out of nowhere. It stopped in front of me. The passenger jumped
out of the Jeep and yelled, “Go get him, Jeff.” He didn’t even take the time to
close the passenger door. This guy was a white male about 5 foot 8 inches
tall, about 200 to 220 pounds, and was wearing blue Levis. He rand towards
the parked trucks and the guy in the Jeep followed the garbage hauler truck.
I then pulled into an open spot near the Petro building where the restaurant
is. I then noticed a bunch of people looking. The guy that got out of the Jeep
13
See, Docket No. [#29-2] at p. 6, “Narrative” ¶ 1.
14
Schultz prepared the affidavit after speaking with Onley on the phone, and mailed it to Onley.
9
was walking in front of my truck. I looked out my right mirror and saw the
garbage truck coming around behind me. As the truck came around I then
saw the guy that got out of the Jeep pointing a gun at the driver of the truck.
The gun was black and looked like a 45 automatic pistol to me. The man was
only about 10 feet from the driver’s side of my truck at this time. I had my
window down and I heard the guy yelling stop or I’ll shoot you. He said this
numerous times. I called 911 on my cell phone and told the dispatcher, “You
better get some state troopers out here right now at the Petro back by the
restaurant because there is a man with a gun who is going to shoot a truck
driver.” The truck driver stopped and the man with the gun walked up to the
driver’s side of the truck and told the driver to get out. The driver kept saying,
“What did I do, what did I do.” They were about 20 feet from me at the time.
I then noticed the passenger in the truck kind of scooting down in the seat.
The he opened the passenger side door real easy and got out of the truck. He
got behind some other truck drivers. The guy with the gun was still screaming
at the truck driver and the truck driver finally opened the door and got out.
The guy with the gun got right in the face of the truck driver and was pointing
the gun at his head. The guy who was driving the Jeep had come walking up
towards the guy with the gun. Within a couple of minutes a marked police car
pulled up. The guy with the gun then put his gun away on his right side, I
believe. The cop that pulled up never drew his gun, so I think he must have
known the guy with the gun. I never heard the guy with the gun identify
himself as a police officer. The only time I found out was when I gave my
statement to the uniformed police officer. The deputy told me that this cop
was just a court deputy.
Docket No. [#29-2] at pp. 10-11 (emphasis added).
On June 27, 2009, Bessette provided an affidavit to Schultz, which provided
significantly more information than his original statement to the Seneca County Sheriff’s
Department. Specifically, Bessette’s affidavit states, in pertinent part:
Back on December 30th, 2008, I was working for Karl Johnson Trucking,
Lyndonville, Vermont. On December 30, 2008 sometime between 5:30 PM
and 6:00 PM, I was coming out of the landfill on Route 414 in Waterloo.
Another driver for Karl Johnson Trucking, Fred Grant, was also coming out of
the landfill. He was just ahead of me waiting to turn left onto Route 414.
10
There was a car on Route 414 in the northbound lane waiting to turn left into
the landfill. I saw Fred Grant pull out onto Route 414 to head north. He was
in the middle of his turn when I saw a blue Jeep try to go around the car that
was stopped waiting to turn left into the landfill. The Jeep also appeared to be
trying to pass Fred Grant on the right. I saw the Jeep run off the shoulder of
the roadway. It was fishtailing and ended up going into the field towards a
driveway from a business across the street. I then saw the Jeep come back
onto Route 414 from that driveway. I pulled out onto Route 414 after the Jeep
began heading north. . . . I continued northbound and went to the Nice N
Easy store at the corner of Route 318 and 414. I went into the store and
bought a cup of coffee and a tuna fish sub. My cell phone then rang. It was
Fred Grant’s girlfriend, Holly. I don’t know her last name. Holly was crying
and told me that Lester,15 Fred’s brother, called her and was crying and said
that some guy had a gun to Fred’s head. She said that this was happening at
the Petrol [sic] parking lot. I then headed to the Petrol [sic], and when I pulled
in at the back of the building there was a man standing there with a gun
pointed at Fred. Fred was standing outside of his truck near the driver’s side
front fender. When I saw this, I stopped my truck and ran into the Petrol [sic]
to try to get somebody to call the police. I had left the Nice N Easy so fast that
I just threw my cell phone into the truck and I could not find it. I went into the
CB shop and asked the guy who was working there to call the police because
there was a guy pointing a gun at Fred. I then went back out and walked
towards Fred’s truck. I saw that there were at least two sheriff’s cars and a
black unmarked Ford Taurus. I saw that Fred Grant as now in the back of one
of the sheriff’s cars. I motioned with my hands towards Fred to try to get him
to calm down because he was crying. I then saw the guy that had the gun
pointed at Fred standing outside of the sheriff’s car that Fred was in. I heard
him talking to another deputy. I heard him asked [sic] this deputy if he [Grant]
was denying that he ran him off the road. The deputy said, “Yes, he is
denying it.” The guy that had the gun then said, “I should have shot the fat
slob when I had the chance.”16 I was about 15 to 20 feet from them at the
time. Then another heavyset deputy came up to me and told me to get up on
the sidewalk near the Petrol [sic] building. I did this and then a deputy came
15
As indicated, Grant’s brother’s name is Leslie.
16
A Seneca County sheriff’s deputy concurs that Plaintiff stated, “I should of just shot him.” See,
Docket No. [#32-1] at p. 15. Plaintiff has not denied making the statement, either in connection with this
motion or Schultz’s summary judgment motion.
11
up and I told him that I saw Fred Grant pull out of the landfill, and I didn’t think
he cut this guy off. I was then approached by another deputy, who asked me
if I saw what happened. I said yes, and he asked me if I would give a
statement. I told him yes and we both went inside the Petrol [sic]. The deputy
gave me a statement form and asked me to write down what I saw.
Docket No. [#29-2] at pp. 13-14 (emphasis added).
On June 12, 2009, while Schultz was still conducting his investigation, the New York
State Supreme Court, Appellate Division, Fourth Department, reversed Connolly’s
convictions. See, People v. Connolly, 63 A.D.3d 1703, 881 N.Y.S.2d 257 (4th Dept. 2009).
Within days, Tantillo announced that he intended to re-prosecute Connolly.17
Meanwhile, on July 24, 2009, Schultz also took a written statement from Grant’s
brother, Leslie Grant (“Leslie”), who is apparently referred to as “Lester” in Bessette’s
statement above. Leslie claimed to have been the passenger in Grant’s truck on December
30, 2008, though the Seneca County Sheriff’s Office had not taken a statement from him
on that date.18 In the statement that Leslie provide to Schultz, he gave a description of the
near-collision between Plaintiff and Grant, which is similar to Bessette’s description. Leslie
further indicated that Plaintiff had followed Grant’s truck into the travel plaza, and, without
identifying himself as a police officer, pointed a gun at Grant and told him to get out of the
truck, while threatening to shoot him. Leslie indicated that, while that was taking place, he
called Grant’s girlfriend and told her that a man was threatening to shoot Grant.
17
See, Finger Lakes Times, June 14, 2009, “Connolly’s Convictions Tossed,”
http://www.fltimes.com/news/article_c250683a-7c2e-5add-8637-925549975b65.html For purposes of clarity,
the Court refers to this media account even though it is not cited in the parties’ papers. In that regard, perhaps
because the underlying criminal matters involving Connolly received extensive media coverage, the parties’
papers skim over them or omit them altogether, perhaps assuming the reader’s familiarity. The Court sets
this information forth, however, because it is critical to an understanding of Plaintiff’s claims,
18
See, Affidavit of Leslie Grant, Docket No. [#29-2] at pp. 16-18.
12
In or about late July, 2009, Schultz completed his investigation and provided the
results to Swinehart. Thereafter, as far as the Amended Complaint indicates, Schultz had
no further involvement in the matters underlying this action.
To summarize the witness statements, they all generally agree as to the sequence
of events that occurred at the travel plaza, namely, that Plaintiff drew his weapon, pointed
it at Grant, and threatened numerous times to shoot and kill him if he did not get out of his
truck. Once Grant got out of the truck, Plaintiff put his gun to Grant’s head and threatened
to kill him like Grant had supposedly nearly killed Plaintiff. Bessette and Onley indicate that
they never heard Plaintiff identify himself as a police officer. Jones’ statement also does not
indicate that Plaintiff identified himself as an officer. Springer, Leslie and Grant all indicate
that Plaintiff only identified himself as an officer after Springer got between Plaintiff and
Grant and demanded that Plaintiff show identification, by which time Plaintiff had already
threatened several times to shoot and kill Grant. Smith indicated that Plaintiff identified
himself as an officer while Grant was still in his truck. Witnesses variously described
Plaintiff’s behavior as “psycho” and “crazy,” and indicated that Plaintiff cursed and
threatened to shoot fifteen rounds into Grant’s head. Two witnesses indicated that after
Grant was placed in custody, Plaintiff stated that he should have shot Grant while he had
the chance, i.e., before other officers arrived. In considering the merit of Plaintiff’s claims
below, the Court makes no finding as to the truthfulness of these witness statements, but
merely considers the fact that they were made.
In August 2009, Tantillo made arrangements to present evidence against Connolly
to the Seneca County Grand Jury. In connection with such presentation, Tantillo specifically
scheduled a time for Plaintiff to provide testimony before the Grand Jury. Upon learning that
13
Tantillo had scheduled Plaintiff to testify, Swinehart and David Mashewske (“Mashewske”),
the First Assistant District Attorney, made arrangements to present evidence against Plaintiff
to the very same grand jury. Plaintiff alleges that Swinehart and Mashewske did this with
the intention of not only prosecuting him, but of discrediting him and damaging Tantillo’s
prosecution of Connolly. Plaintiff countered by obtaining a temporary restraining order from
New York State Supreme Court, which temporarily enjoined Swinehart from presenting
evidence against Plaintiff to the Grand Jury, and directed Swinehart to show cause why he
should not be permanently enjoined from doing so.
Swinehart reacted by having Mashewski file “prosecutors informations” against
Plaintiff in the Tyre Town Court, purporting to charge him with two misdemeanors, namely,
Menacing in the Second Degree19 and Reckless Endangerment in the Second Degree.20
In that regard, Mashewske executed sworn factual statements, indicating, in pertinent part,
that Plaintiff “did recklessly engage in conduct which created a substantial risk of serious
physical injury to another person,” by threatening to shoot Grant with a firearm, and that
Plaintiff “did intentionally place or attempt to place another person in fear of physical injury
or death,” by again displaying a firearm and threatening to use it to shoot Grant.21
Mashewske also obtained a warrant for Plaintiff’s arrest from the Tyre Town Court. On
September 4, 2009, prior to Plaintiff testifying before the Grand Jury, Plaintiff was arrested
New York Penal Law § 120.14(1) provides that: “A person is guilty of menacing in the second
degree when: 1. He or she intentionally places or attempts to place another person in reasonable fear of
physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what
appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm;”
19
New York Penal Law § 120.20 provides that: “A person is guilty of reckless endangerment in the
second degree when he recklessly engages in conduct which creates a substantial risk of serious physical
injury to another person.”
20
21
Docket No. [#32-1] at pp. 27-28.
14
and arraigned on the charges. Swinehart then issued a press release about Plaintiff’s
arrest, and gave an interview to the Finger Lakes Times newspaper.
The Amended
Complaint does not indicate what exactly Swinehart said about Plaintiff in the press release
and interview, but the reasonable inference is that, at a minimum, Swinehart discussed the
fact that Plaintiff had been charged, arrested and arraigned.22
Meanwhile, in October 2009, in connection with unrelated matters, Defendant Robert
Steele (“Steele”), an investigator employed by Swinehart’s office, admitted to a Seneca
County Sheriff’s Lieutenant that the prosecution of Plaintiff was specifically intended to
discredit Plaintiff as a witness against Connolly, and to “damage [Tantillo’s] prosecution” of
Connolly.23 Unbeknownst to Steele, his statement was recorded, and the Seneca County
Sheriff’s Department later provided the recording to Plaintiff.
In December 2009, Plaintiff succeeded in having the Prosecutor’s Informations
dismissed.
Subsequently, though, Swinehart and/or Mashewske had Steele execute
criminal informations against Plaintiff, that were supported by the aforementioned affidavits
given to Schultz by Bessette and Leslie. Also in support of the criminal informations, on
December 15, 2009, Steele executed a sworn factual statement, indicating, in pertinent part,
that on December 30, 2008, Plaintiff consciously disregarded a substantial and unjustifiable
risk of physical injury to another person, by “step[ping] in front of a moving 18 wheel tractor
trailer truck, display[ing] a firearm and threaten[ing] to shoot Fredrick A. Grant, Jr.”24
22
See, Amended Complaint ¶ 49.
23
See, Amended Complaint [#24] ¶ ¶ 5, 50,57.
24
Docket No. [#29-3] at p. 4.
15
Thereafter Patrick Morrell (“Morrell”), Assistant Seneca County District Attorney, filed the
informations with the Tyre Town Court.
During the ensuing prosecution of Plaintiff by Swinehart and his staff, Plaintiff alleges
that Swinehart, Mashewske, Morrell and Mark Sinkewicz (“Sinkewicz”), Assistant Seneca
County District Attorney, all failed to turn over exculpatory material, consisting of the
statements given by Bessette and Grant on December 30, 2008. Plaintiff’s theory as to why
those statements are exculpatory is somewhat convoluted, but essentially he indicates that
because those statements did not mention Leslie, they tend to prove that Leslie was not
actually a passenger in Grant’s truck on December 30, 2008, and could not have witnessed
the near-collision or the incidents at the travel plaza.
Later, on the “eve of trial” of the charges against Plaintiff in Tyre Town Court, Morrell
and Sinkewicz, who were, by that time, handling the prosecution for the Seneca County
District Attorney’s Office,25 informed the presiding judge that they had a conflict of interest,
based on Steele’s alleged statements concerning the prosecution, and on the fact that they
were both involved in the investigation of the case against Plaintiff and in the decision to
charge him. In response, the presiding judge appointed Richard Healy, Wayne County
District Attorney, as Special Prosecutor. Healy subsequently provided Plaintiff with the
discovery that Plaintiff maintains had been withheld by Swinehart’s office.
On July 25, 2010, Plaintiff moved to dismiss the charges against him on speedy-trial
grounds. By Order dated August 2, 2010, the Tyre Town Court dismissed the charges
against Plaintiff, with prejudice. Plaintiff maintains that the judge based his ruling on his
25
In January, 2010, a new district attorney took office, and Swinehart and Mashewske went into private
practice.
16
finding that Swinehart’s office had acted with malice in prosecuting him, though the actual
order of dismissal does not include such a finding.26
The reader is again reminded that the foregoing recitation of facts is based on the
unproven allegations in the Amended Complaint, which the Court is required to accept as
true when ruling upon a 12(b)(6) motion to dismiss.
On August 1, 2011, Plaintiff commenced this action. The Amended Complaint [#24]
purports to assert three causes of action: 1) malicious prosecution against all defendants;
2) violation of Plaintiff’s Fourth and Fourteenth Amendment rights in violation of 42 U.S.C.
§ 1983; and 3) a § 1983 Monell liability claim against Seneca County based on a failure to
properly hire and train its employees. The individual plaintiffs are sued in their individual and
official capacities.
The underlying theme of the Amended Complaint is that Swinehart and his staff
improperly obtained and utilized the two statements that Bessette and Leslie provided to
Schultz. The pleading contends that those two statements were false, that Defendants
knew they were false, and that Schultz obtained the false statements at Swinehart’s
behest.27 Significantly, though, the pleading does not allege that any of the other witness
statements are false. Specifically, the Amended Complaint does not allege that the witness
statements taken on December 30, 2008, some of which were quoted extensively above,
are false, or that the statement Schultz obtained from Onley is false.
26
See, Docket No. [#32-1].
27
See, Amended Complaint [#24] ¶ ¶ 4, 40, 52, 54, 56, 66, and 68.
17
Defendants have moved to dismiss the Amended Complaint for the reasons
discussed below. 28
DISCUSSION
The general legal principles concerning motions under FRCP 12(b)(6) are well
settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this “plausibility standard,” the Court is guided by “two working
principles”:
28
Plaintiff has raised certain technical objections to Defendants’ motion, concerning the timing of the
motion and the length of Defendants’ papers. See, Pl. Mem. of Law [#31-1] at pp. 1-4. However, the Court
in its discretion denies those objections, and will consider Defendants’ motion on the merits.
18
First, although a court must accept as true all of the allegations contained in
a complaint,29 that tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss, and determining whether a
complaint states a plausible claim for relief will be a context-specific task that
requires the reviewing court to draw on its judicial experience and common
sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader
is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009)
(citation omitted). “The application of this ‘plausibility’ standard to particular cases is
‘context-specific,’ and requires assessing the allegations of the complaint as a whole.”
Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Medical Centers Retirement Plan v.
Morgan Stanley Inv. Management Inc., 712 F.3d 705, 719 (2d Cir. 2013) (citation and
internal quotation marks omitted).
Before considering the legal sufficiency of Plaintiff’s claims, the Court will consider
which contentions are plausibly pleaded in the Amended Complaint, and which are not. At
the outset, the pleading does not plausibly maintain that Defendants used fabricated
evidence to prosecute Plaintiff. That is to say, the pleading does not plausibly maintain that
the affidavits which Schultz obtained from Bessette and Leslie, or from any other witnesses,
were false. At most, the pleading indicates that the affidavits which Schultz obtained were
29
The Court must accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den.
531 U.S. 1052, 121 S.Ct. 657 (2000).
19
more-detailed than the affidavits initially obtained by the Seneca County Sheriff’s
Department.30 However, the fact that a later sworn statement contains additional details that
were not present in an earlier statement, where the additional details do not directly
contradict the earlier statement, does not plausibly suggest that the later statement is false.
In short, the Amended Complaint lacks factual assertions plausibly suggesting that the
affidavits are false.
In any event, the statements that Bessette and Leslie provided to Schultz are almost
identical in their details to the statements of other witnesses, whose veracity Plaintiff is not
questioning in connection with this motion. Accordingly, to the extent that Plaintiff is
suggesting that the Defendants needed fabricated statements from Bessette and Leslie in
order to prosecute him, the Court disagrees. Furthermore, the pleading does not plausibly
suggest that the decision to re-investigate the incident and prosecute Plaintiff was
unreasonable in light of the un-objected-to witness statements.
Apart from the alleged inconsistencies in the witness statements, which are not actual
inconsistencies, Plaintiff relies on allegations as to what Steele allegedly stated to a Seneca
County Sheriff’s Lieutenant about the prosecution to show that Defendants falsified
evidence. However, those allegations do not plausibly support Plaintiff’s contention that the
statements of Bessette and Leslie are false. In that regard, paragraphs 4 and 50 of the
Amended Complaint suggest, in conclusory fashion, that Steele admitted that Swinehart
30
Plaintiff’s focus on the affidavits of Bessette and Leslie in this regard would, if considered in isolation,
be somewhat puzzling in any event, since, for the most part, they merely say the same things that the other
witnesses indicated, namely, that Plaintiff drew his weapon, threatened to shoot Grant if he did not get out of
his truck and held Grant at gunpoint until other officers arrived. Such focus can be understood, however, in
relation to the discussion below of absolute prosecutorial immunity. That is, in order to evade the doctrine of
absolute immunity, Plaintiff would need to show that Swinehart and his employees committed acts during the
investigative phase of the case.
20
“concocted charges” against Plaintiff and “helped two disreputable and unbelievable
‘witnesses’ fabricate false accusations.” However, paragraph 5 of the Amended Complaint
is where Plaintiff purports to allege what Steele actually said, and it does not indicate that
Steele said that Swinehart fabricated evidence. Instead, it says that Steele stated two
things: 1) Swinehart timed the prosecution to assist Connolly; and 2) “there was evidence
in the possession of the special prosecutor which would exonerate Deputy Osborne.”
(emphasis added).31 The timing of the prosecution does not involve fabrication of evidence,
and as will be discussed below, i.e., a prosecutor’s decisions regarding the timing of a
prosecution are immune form liability in any event. Similarly, the fact that the special
prosecutor may have had exculpatory information about Plaintiff is also not the same as
saying that Swinehart fabricated evidence. In that regard, the pleading is obviously referring
to Healy, the Wayne County District Attorney, who was appointed as special prosecutor in
Plaintiff’s case. Moreover, the “exculpatory information” to which Steele allegedly referred
consists of statements that Bessette and Grant gave to the Seneca County Sheriff’s
Department on the night of the incident, December 30, 2008. See, Amended Complaint
[#24] at ¶ ¶ 54 & 60 (Alleging that Swinehart committed a Brady violation by failing to turn
over the statements by Bessette and Grant, but that Healy, the Special Prosecutor, turned
over those materials to Plaintiff). Plaintiff contends that those statements are exculpatory,
Amended Complaint [#24] at ¶ 5. While it is not a basis of the Court’s decision herein, the Court
observes that in connection with Defendant Schultz’s separate motion for summary judgment, Plaintiff
submitted an affidavit from Seneca County Sheriff’s Lieutenant John Cleere, who actually recorded the
statement by Steele. According to Cleere, Steele “indicated that the reason that the District Attorney’s Office
needed to present Deputy Osborne’s matter to the same grand jury which would hear him as a witness in the
case against the former sheriff, was to prevent Dep. Osborned from being ‘exonerated.’” Docket No. [#32-1]
at pp. 11-12, ¶ 7. Cleere’s affidavit does not mention any alleged admission by Steele concerning fabrication
of evidence.
31
21
because they contain less information than statements later obtained by Schultz.32
However, as already discussed, the later statements are not false simply because they
contain more information than was included in the earlier statements.
Similarly, the pleading fails to plausibly plead that a conspiracy existed between
Schultz and Swinehart concerning the fabrication of evidence.
Plaintiff’s claims are
premised on the idea that State Police Investigator Schultz, acting at Swinehart’s behest,
obtained fabricated statements from Bessette and Leslie. However, such allegation is
entirely conclusory. The pleading does not attempt to explain why Schultz would have
falsified evidence for Swinehart. For example, there is no indication that the two men even
knew each other prior to Schultz being assigned to investigate the matter by his superior.
Nor does the pleading plausibly allege facts indicating that the two men actually made an
agreement to fabricate evidence. The plausibility of Plaintiff’s conclusory allegations on this
point is further undercut by the fact that the affidavits that Schultz supposedly falsified are
merely duplicative in most respects of the affidavits of the other witnesses, which Plaintiff
does not claim are false.
The pleading, however, does contain some plausible allegations. Specifically, the
pleading plausibly indicates that Swinehart and his staff acted, at least in part, if not entirely,
based on an improper motives. That is, the pleading plausibly indicates that the decision
to prosecute Plaintiff, and the specific steps which the movants took to prosecute him, were
motivated by a desire to punish Plaintiff for assisting Tantillo and/or to hinder Tantillo’s reprosecution of Connolly by discrediting Plaintiff. Overall, then, the pleading does not
indicate that Swinehart and his staff used fabricated evidence, but it does allege that they
32
See, Amended Complaint [#24] at ¶ ¶ 32-38.
22
prosecuted Plaintiff with improper motives. The Court will now consider whether those
allegations are legally sufficient to maintain the causes of action asserted in the Amended
Complaint.
Malicious Prosecution
Plaintiff’s § 1983 claim and his state-law malicious prosecution claim are governed
by the same principles:
“Claims for ... malicious prosecution, brought under § 1983 to vindicate the
Fourth and Fourteenth Amendment right to be free from unreasonable
seizures, are ‘substantially the same’ as claims for ... malicious prosecution
under state law.” Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003) (citing
Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984)). “Because
there are no federal rules of decision for adjudicating § 1983 actions that are
based upon claims of malicious prosecution, [courts] are required by 42
U.S.C. § 1988 to turn to state law-in this case, New York state law—for such
rules.” Conway, 750 F.2d at 214.
The elements of a malicious prosecution claim in New York are: (1) the
defendant initiated a prosecution against the plaintiff, (2) the defendant lacked
probable cause to believe the proceeding could succeed, (3) the defendant
acted with malice, and (4) the prosecution was terminated in the plaintiff's
favor. Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir.2000).
Negron v. Wesolowski, 536 Fed.Appx. 151, 153, (2d Cir. Oct. 28, 2013).
Prosecutorial Immunity
The individual movants all maintain that they are absolutely shielded from liability by
federal and state doctrines of prosecutorial immunity.33 For claims under Section 1983,
Prosecutors have absolute immunity, from actions seeking damages, for acts committed in
33
Swinehart maintains that he is entitled to only qualified immunity insofar as Plaintiff’s claim is based
on Swinehart’s press release and interview following Plaintiff’s arrest.
23
their capacity as advocates, such as when commencing and pursuing prosecutions. This
is true even when the prosecutor’s actions are alleged to have been intentionally wrongful:
[A] defense of absolute immunity from a claim for damages must be upheld
against a § 1983 claim that the prosecutor commenced and continued a
prosecution that was within his jurisdiction but did so for purposes of
retaliation, or for purely political reasons. A prosecutor is also entitled to
absolute immunity despite allegations of his knowing use of perjured testimony
and the deliberate withholding of exculpatory information. Although such
conduct would be reprehensible, it does not make the prosecutor amenable
to a civil suit for damages. In sum, the nature of absolute immunity is such
that it accords protection from any judicial scrutiny of the motive for and
reasonableness of official action. In the realm of absolute immunity, evaluation
of motive and reasonableness is forbidden. These principles are not affected
by allegations that improperly motivated prosecutions were commenced or
continued pursuant to a conspiracy.
Shmueli v. City of New York, 424 F.3d 231, 237-238 (2d Cir. 2005) (citations and internal
quotation marks omitted); see also, Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (“[A]bsolute
immunity protects a prosecutor from § 1983 liability for virtually all acts, regardless of
motivation, associated with his function as an advocate.”) (emphasis added).
Such absolute immunity also applies to a prosecutor’s staff for acts closely associated
with the judicial process:
Because absolute immunity is essential to safeguarding the integrity of the
judicial process, it extends to those performing functions closely associated
with that process. This includes not only officials performing discretionary acts
of a judicial nature, but also individual employees who assist such an official
and who act under that official’s direction in performing functions closely tied
to the judicial process.
Hill v. City of New York, 45 F.3d 653, 660 (2d Cir. 1995) (emphasis added; citations
omitted).
24
One might well ask why, if a prosecutor acted with an improper motive, he should be
entitled to any kind of immunity. The absolute immunity doctrine for prosecutors reflects a
policy decision that it is better to allow the misconduct of a few bad prosecutors to go
unredressed than to allow the majority of honest prosecutors to be bombarded with
lawsuits. The United States Supreme Court explained the reasoning behind the doctrine as
follows:
The common-law immunity of a prosecutor is based upon the same
considerations that underlie the common-law immunities of judges and grand
jurors acting within the scope of their duties. These include concern that
harassment by unfounded litigation would cause a deflection of the
prosecutor's energies from his public duties, and the possibility that he would
shade his decisions instead of exercising the independence of judgment
required by his public trust. One court expressed both considerations as
follows: “The office of public prosecutor is one which must be administered
with courage and independence. Yet how can this be if the prosecutor is made
subject to suit by those whom he accuses and fails to convict? To allow this
would open the way for unlimited harassment and embarrassment of the most
conscientious officials by those who would profit thereby. There would be
involved in every case the possible consequences of a failure to obtain a
conviction. There would always be a question of possible civil action in case
the prosecutor saw fit to move dismissal of the case. . . . The apprehension
of such consequences would tend toward great uneasiness and toward
weakening the fearless and impartial policy which should characterize the
administration of this office. The work of the prosecutor would thus be
impeded, and we would have moved away from the desired objective of
stricter a fairer law enforcement.” Pearson v. Reed, 6 Cal.App.2d 277, 287, 44
P.2d 592, 597 (1935).
***
A prosecutor is duty bound to exercise his best judgment both in deciding
which suits to bring and in conducting them in court. The public trust of the
prosecutor's office would suffer if he were constrained in making every
decision by the consequences in terms of his own potential liability in a suit for
damages. Such suits could be expected with some frequency, for a defendant
often will transform his resentment at being prosecuted into the ascription of
25
improper and malicious actions to the State's advocate. Further, if the
prosecutor could be made to answer in court each time such a person
charged him with wrongdoing, his energy and attention would be diverted from
the pressing duty of enforcing the criminal law.
Imbler v. Pachtman, 424 U.S. 409, 422-425, 96 S.Ct. 984, 991-992 (1976) (footnote and
citations omitted); see also, Kalina v. Fletcher, 522 U.S. 118, 125, 118 S.Ct. 502, 507 (1997)
(“[I]t is the interest in protecting the proper functioning of the office, rather than the interest
in protecting its occupant, that is of primary importance.”).
The problem, of course, is that an unscrupulous prosecutor may evade civil liability
for his misdeeds. Moreover, the public’s trust in its elected officials may be further eroded.
See, Hill v. City of New York, 45 F.3d at 656 (“When this doctrine, necessary to preserve
the integrity of the judicial process, shields an alleged egregious and contemptible abuse
of official power it is of course very troubling.”). Nevertheless, whether one thinks it is fair
or not, the doctrine of absolute prosecutorial immunity is a binding principle of law which this
Court must apply to those actions which a prosecutor takes in his capacity as an advocate
for the People.
On the other hand, in Section 1983 actions, qualified immunity, not absolute
immunity, applies when prosecutors perform investigative functions normally performed by
a detective or police officer. Zahrey v. Coffey, 221 F.3d 342, 346 (2d Cir. 2000). “The line
between a prosecutor's advocacy and investigating roles might sometimes be difficult to
draw.” Id., 221 F.3d at 347. For example, in a case involving alleged fabrication of evidence
by a prosecutor, the Second Circuit has held that the timing of the act would determine
whether it was investigative or prosecutorial. Specifically, the Circuit Court stated that a
prosecutor who procured false grand jury testimony from a witness after making a decision
26
to indict would have absolute immunity, while a prosecutor who sought false evidence “in
order to get probable cause to arrest” would have only qualified immunity. See, Hill v. City
of New York, 45 F.3d at 662. In this regard,
the “functional” test for absolute immunity is an objective one; it does not
depend upon the state actor's subjective intent. . . . [I]nvestigative work may
not be transformed into advocacy simply by being characterized as work in
preparation for trial, otherwise, absolute immunity against a suit brought by an
innocent citizen for a constitutional wrong would always protect a district
attorney who simply forces such a case to trial. The same rationale applies
when a prosecutor manufactures evidence for the purpose of obtaining
probable cause to arrest a suspect, even when the evidence obtained is in a
form suitable for later presentation to the grand jury.
Id. (citations omitted).
The foregoing discussion of absolute and qualified immunity pertains to claims under
42 U.S.C. § 1983. Similarly, as to claims brought under New York State law, government
employees have absolute immunity for their discretionary judicial and quasi-judicial acts.
See, Cornejo v. Bell, 592 F.3d 121, 130 (2d Cir. 2010); see also, Carossia v. City of New
York, 39 A.D.3d 429, 430, 835 N.Y.S.2d 102, 104 (1st Dep. 2007) (“Defendants are entitled
to immunity for those governmental actions requiring expert judgment or the exercise of
discretion. This immunity is absolute when the action involves the conscious exercise of
discretion of a judicial or quasi-judicial nature”) (citation and internal quotation marks
omitted).
On the other hand, under New York law, prosecutors enjoy only qualified
immunity for “investigative, law-enforcement” type acts. Claude H. v. County of Oneida, 214
A.D.2d 964, 965, 626 N.Y.S.2d 933, 935 (4th Dept. 1995) (“Where a prosecutor goes outside
his quasi-judicial role, however, and acts as an investigator or police officer, he is entitled
only to qualified immunity.”) (citations omitted).
27
Although absolute immunity is an affirmative defense, it is appropriate to address
absolute immunity in a 12(b)(6) decision if the complaint clearly indicates the nature of the
function for which the defendant is being sued:
[A]lthough absolute immunity is an affirmative defense whose availability
depends on the nature of the function being performed by the defendant
official who is alleged to have engaged in the challenged conduct, the nature
of that function is often clear from the face of the complaint. In that
circumstance, the absolute immunity defense may be resolved as a matter of
law on a motion to dismiss the complaint pursuant to Rule 12(b)(6).
Shmueli v. City of New York, 424 F.3d at 236 (citations and internal quotation marks
omitted). Conversely,
when it may not be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an investigatory role,
the availability of absolute immunity from claims based on such conduct
cannot be decided as a matter of law on a motion to dismiss.
Hill v. City of New York, 45 F.3d at 663 (finding that there were issues of fact as to whether
prosecutor who took false videotaped statement, purportedly for use in grand jury, was
acting in investigative capacity).
In the instant case, the Amended Complaint clearly indicates that virtually all34 of the
complained-of acts are protected by absolute prosecutorial immunity. In that regard, the
Court reiterates that the pleading does not plausibly indicate that Defendants committed any
wrongdoing in connection with the investigation of the incident for which Plaintiff was
charged. Specifically, the pleading does not plausibly allege that Schultz obtained false
34
As mentioned earlier, Swinehart admits that he would be entitled to only qualified immunity with
regard to his action in conducting a press conference. However, the Amended Complaint does not indicate
that Swinehart said anything false during the press conference, or that he otherwise committed any type of
independent tort by conducting a press conference following Plaintiff’s arrest and arraignment.
28
affidavits from Bessette or Leslie, or that Swinehart or his employees directed Schultz to do
so. All of the complained-of acts occurred after Swinehart’s office received the investigative
materials from the Seneca County Sheriff’s Department and the New York State Police. As
discussed further below, those materials provided probable cause to prosecute Plaintiff.
Defendants’ subsequent acts pertained to the decision whether to prosecute Plaintiff, and
the actual prosecution.
Plaintiff does not dispute that Defendants’ acts, with regard to the decision to
prosecute him and the actual prosecution, are protected by absolute immunity. Instead, he
maintains that Defendants are liable for wrongdoing in their “investigatory capacity,” which
consisted of obtaining and utilizing false affidavits from Bessette and Leslie.35 However,
since the pleading does not plausibly allege that Defendants engaged in such wrongdoing,
Plaintiff’s argument lacks merit.
Accordingly, based on the parties’ submissions the
individual Defendants are entitled to absolute prosecutorial immunity as to the § 1983 and
state-law malicious prosecution claims.
Probable Cause
Alternatively, and apart from the issue of absolute immunity, the individual
Defendants maintain that the pleading fails to state a claim against them, under either §
1983 or New York State law, because there was probable cause to arrest and prosecute
35
See, Pl. Memo of Law [#31-1] at p. 8 (“[P]laintiff has alleged facts that show the misconduct for
which redress is sought occurred in the defendants’ investigatory capacity for which they do not enjoy absolute
immunity. Thus, their subsequent immunized act of commencing a criminal action does not break the chain
of causation and insulate them from the reasonably foreseeable consequences of violating the plaintiff’s
constitutional rights.”) (emphasis added).
29
Plaintiff.36 37 The Court agrees. In that regard, “[t]he existence of probable cause will defeat
a claim of malicious prosecution.” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012).
A defendant making such a motion at the pleading stage often faces a “formidable hurdle,”
since to properly dismiss a malicious prosecution complaint on a 12(b)(6) motion based on
the existence of probable cause, the defendant must show “based only on the complaint and
documents attached to the complaint that probable cause existed.” Barnett v. Mount Vernon
Police Dept., 523 Fed.Appx. 811, 813, 2013 WL 1846317 at *1 (2d Cir. May 3, 2013).
“Probable cause, in the context of malicious prosecution, has . . . been described as
such facts and circumstances as would lead a reasonably prudent person to believe the
plaintiff guilty.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). That is, “the
relevant question is whether there was probable cause to believe the prosecution of
[Plaintiff] could succeed.” Id. at n. 7. “[P]robable cause is an assessment of probabilities,
not an ascertainment of truths.” Loria v. Gorman, 306 F.3d 1271, 1288-1289 (2d Cir. 2002).
Significantly in that regard, “[w]hen information is received from a putative victim or an
eyewitness, probable cause exists, unless the circumstances raise doubt as to the person's
veracity.” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citation omitted).
36
See, Def. Supp. Memo of Law [#28] at pp. 2-9.
37
Or, at least, they contend that they are entitled to dismissal on the basis of qualified immunity, since
it was reasonable for them to believe that probable cause existed. To obtain dismissal based on qualified
immunity, the defendant must show, based on the complaint, that there was arguable probable cause. See,
Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (“[A]n officer will . . . be entitled to qualified
immunity ... if he can establish that there was ‘arguable probable cause’ to arrest. Arguable probable cause
exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b)
officers of reasonable competence could disagree on whether the probable cause test was met.”) (citations
omitted); see also, Anilao v. Spota, 774 F.Supp.2d 457, 491-492 (E.D.N.Y. 2011) (“Although qualified
immunity typically is asserted by police officers, the qualified immunity standard of arguable probable cause
also applies to prosecutors.”) (citations omitted).
30
In this case, Plaintiff contends that he was maliciously prosecuted for Menacing in the
Second Degree and Reckless Endangerment in the Second Degree. As to the first of these,
[a] person is guilty of menacing in the second degree when: 1. He or she
intentionally places or attempts to place another person in reasonable fear of
physical injury, serious physical injury or death by displaying a deadly weapon,
dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm[.]
New York Penal Law 120.14(1). As to the second, “[a] person is guilty of reckless
endangerment in the second degree when he recklessly engages in conduct which creates
a substantial risk of serious physical injury to another person.”
New York Penal Law §
120.20.
Based upon the sworn witness statements that were provided to Swinehart and his
staff, the Court has little difficulty in finding, as a matter of law, that probable cause existed
to prosecute Plaintiff for Menacing in the Second Degree and Reckless Endangerment in
the Second Degree.38 The witness statements indicate that far from effecting an ordinary
38
As to Reckless Endangerment in the Second Degree, see, People v. Hagood, 93 A.D.3d 533, 534,
940 N.Y.S.2d 262, 262-263 (1st Dept. 2012) (riding bicycle on crowded sidewalk and then threatening police
officers by raising fists provided probable cause to arrest for Reckless Endangerment in the Second Degree),
leave to appeal denied, 19 N.Y.3d 973, 950 N.Y.S.2d 356 (2012); see, also, In re William H., 264 A.D.2d 676,
677, 695 N.Y.S.2d 93, 94 (1st Dept. 1999) (Throwing lit firecrackers in front of moving police van provided
probable cause to arrest for Reckless Endangerment in Second Degree); People v. Richardson, 97 A.D.2d
693, 694, 468 N.Y.S.2d 114, 115 (1st Dept. 1983) (Finding that pointing a loaded gun at someone and
threatening to shoot is sufficient to establish the crime of Reckless Endangerment in the Second Degree);
Guynup v. County of Clinton, 74 A.D.3d 1552, 1555-1556, 903 N.Y.S.2d 580, 583 (3d Dept. 2010) (Indicating
that threatening someone with a loaded firearm would have constituted Reckless Endangerment in the
Second Degree); People v. Davis, 72 N.Y.2d 32, 36, 526 N.E.2d 20, 22, 530 N.Y.S.2d 529, 531 (1988)
(“Reckless endangerment frequently involves the use of firearms, but no case has been found which holds
that the mere threatened use of a[n inoperable] gun is sufficient to support a reckless endangerment
conviction and there are decisions holding that it does not. The cases generally require that the weapon be
fired, or at a minimum, capable of firing.”); ( but see, People v. Martinez, 166 A.D.2d 882, 883, 560 N.Y.S.2d
542, 543 (4th Dept. 1990) (finding that threatening to shoot a child with a loaded shotgun if police attempted
to enter an apartment, where there was no indication that the police were going to enter the apartment, was
insufficient to support a conviction under New York Penal Law § 120.20).
31
arrest for a traffic infraction, Plaintiff was enraged or, at least, out of control, and without
identifying himself as an officer, escalated the incident and threatened multiple times to kill
Grant with a loaded gun in a busy travel plaza, thereby creating a substantial risk of physical
injury to Grant and others.39 The issue on this motion is not whether those statements are
accurate, but whether there was any reason for Defendants to disbelieve them, which there
was not. At least, no such reason has been plausibly pleaded. Such probable cause
existed even without regard to the two affidavits that Plaintiff maintains were false, although,
again, Plaintiff has not made out a plausible claim that any of the witness statements were
false or otherwise unreliable. Consequently, the Amended Complaint fails to state a claim
for malicious prosecution under either § 1983 or state law.
Monell Claim and Respondeat Superior Claim Against Seneca County
The Amended Complaint contends that Seneca County is liable under § 1983 for the
alleged malicious prosecution of Plaintiff, since it failed to properly hire, train and supervise
the Seneca County District Attorney’s Office. However, since the Court is dismissing the
underlying malicious prosecution claims for failure to state a claim, the Monell claim also
necessarily fails. Seymore v. Department of Corr Services, No. 11 Civ. 2254(JGK), 2014 WL
641428 at *8 (S.D.N.Y. Feb. 18, 2014) (“Monell only ‘extends liability to a municipal
organization where that organization's failure to train, or the policies or customs that is has
sanctioned, led to an independent constitutional violation.’ Segal v. City of New York, 459
F.3d 207, 219 (2d Cir.2006). Where, as here, a plaintiff does not allege an underlying
39
The alleged excessively violent and disproportionate nature of the confrontation is all the more
difficult to understand considering that it was arguably unnecessary for Plaintiff to do anything. As Plaintiff
maintains, he had already called 911 about the alleged traffic infraction, an officer was on his way to the
scene, and Grant had entered the travel plaza and was most likely going to still be there when the patrol officer
arrived. See, Docket No. [#31] at p. 4, ¶ ¶ 20-21.
32
constitutional violation, there can be no liability under Monell. Id.”) (other citation omitted).
Plaintiff similarly contends that Seneca County has respondeat superior liability for
the alleged state-law malicious prosecution.40 However, that claim must also be dismissed
since the Court has dismissed the underlying state tort claims against the individual
defendants. Shapiro v. Kronfeld, No. 00 Civ.6286(RWS), 2004 WL 2698889 at *24 (S.D.N.Y.
Nov. 24, 2004) (“[T]here can be no imposition of vicarious liability in the absence of
underlying liability.”)
CONCLUSION
Defendants’ motion to dismiss [#26] is granted and this action is dismissed with
prejudice.
SO ORDERED.
Dated:
June 6, 2014
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
40
See, Docket No. [#31-1] at p. 12.
33
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