Capo v. County of Steuben et al
Filing
10
DECISION AND ORDER granting 2 Motion to Dismiss. Defendants application, ECF No. 2, is granted, and the causes of action brought under the Constitution and 42 U.S.C. § 1983 are dismissed. The State causes of action are dismissed for failure to file a timely notice of claim. The Clerk is directed to enter judgment for Defendants and close this case. Signed by Hon. Charles J. Siragusa on 3/6/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD T. CAPO, JR.,
Plaintiff,
-vsCOUNTY OF STEUBEN, STEUBEN COUNTY
DISTRICT ATTORNEY'S OFFICE, John C.
Tunney as District Attorney of County of
Steuben, and PATRICIO JIMENEZ,
Individually and as an Employee of the
Steuben County District Attorney's Office,
Defendants.
DECISION AND ORDER
11-CV-6447-CJS
APPEARANCES
For Plaintiff:
David H. Jacobs, Esq.
Shawn Michael Sauro, Esq.
Law Office of David H. Jacobs
85 E. Market Street
Suite 201
Corning, NY 14830
(607) 654-7072
For Defendants:
Bryan J. Maggs, Esq.
Davidson & O'Mara, P.C.
243 Lake St.
Elmira, NY 14901
(607) 733-4635
INTRODUCTION
Siragusa, J. This case is before the Court on a Notice of Motion, filed by
Defendants on October 21, 2011, ECF No. 2, seeking an Order dismissing Plaintiff’s
summons and complaint, Sept. 8, 2011, ECF No. 1, pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons stated below, the motion is granted.
BACKGROUND
The Court will adopt the factual allegations from the Complaint for the purposes
of analyzing Defendants’ motion to dismiss. Burnette v. Carothers, 192 F.3d 52, 56
(1999), cert. denied, 531 U.S. 1052 (2000). Plaintiff alleges that on or about July 20,
2009, Assistant District Attorney Patricio Jimenez (“Jimenez”) began an investigation of
Plaintiff and subsequently filed a “Prosecutor’s Information” charging him with a
misdemeanor: Stalking in the Third Degree, in violation of New York Penal Law
§ 120.50(3). Compl. Ex. A, ECF No. 1-1. The Prosecutor’s Information was
accompanied by a supporting deposition from Jennifer Adriance, Plaintiff’s estranged
wife. Id. Using the Prosecutor’s Information, Jimenez obtained an arrest warrant from
the Honorable Peter C. Bradstreet, Steuben County Court Judge. Plaintiff was arrested
by the Steuben County Sheriff’s Department on or about September 11, 2009,
arraigned before a town justice, entered a not guilty plea, and was released with an
Order of Protection. Compl. ¶ 17.
On or about July 9, 2010, Plaintiff’s attorney in the state criminal case moved for
dismissal of the charges, arguing they had been illegally initiated. Id. ¶ 18. In an
affirmation opposing the motion and filed with the Corning City Court, Christopher M.
Tunney (“Tunney”), an Assistant District Attorney for Steuben County, admitted that in
filing a Prosecutor’s Information, “the letter of the CPL 1 was not exactly followed;
however, going forward with these charges [sic] would result in nothing more than
harmless error.” Tunney Aff. ¶ 4, Compl. Ex. B, ECF No. 1-1. In that regard, Plaintiff
alleges that no grand jury directed the filing of a prosecutor’s information, which would
have been the only legitimate way that such an instrument could be used to commence
a criminal action. Plaintiff also states that the case against him, commenced as it was
with an improperly-filed prosecutor’s information, was one of a pattern of at least four
1
A reference to the New York Criminal Procedure Law, specifically section 100.10 which, as
discussed below, limits the situations in which a prosecutor can file charges against an
individual.
2
cases in which the Steuben County District Attorney’s Office improperly employed
prosecutors informations to commence criminal actions. The stalking charge against
Plaintiff was dismissed on July 13, 2010. Compl. ¶ 18, ECF No. 1.
Plaintiff lists the following causes of action in his complaint: (1) denial of Plaintiff’s
rights under the Fifth, Sixth and Fourteenth Amendments and 42 U.S.C. § 1983 against
all individual district attorneys; (2) claim against County of Steuben for the actions of the
Steuben County District Attorney’s Office pursuant to Monell v. New York City Dep’t of
Social Services, 436 U.S. 658 (1978) and 42 U.S.C. § 1983; (3) claim against County of
Steuben for actions of the Steuben County District Attorney’s Office and Jimenez for
violations of Plaintiff’s Fifth, Sixth and Fourteenth Amendment rights and Brady v.
Maryland, 373 U.S. 83 (1963); (4) negligent hiring, training and supervision by the
County of Steuben; (5) abuse of process (pendent claim) against the County of Steuben
and the Steuben County District Attorney’s Office; (6) abuse of process (pendent claim)
against Jimenez; and (7) malicious prosecution (pendent claim) against all the
defendants.
Defendants have moved to dismiss the complaint arguing as follows: Point I,
Plaintiff’s claim is barred by res judicata; Point II, Plaintiff failed to file a Notice of Claim
as required by New York General Municipal Law § 50-e; and Point III, Plaintiff has failed
to state a cause of action upon which relief can be granted for false imprisonment and
malicious prosecution. Memorandum of Law in Support of Defendants’ Motion to
Dismiss the Complaint, Oct 21, 2011, ECF No. 2-7. Plaintiff has filed an opposing
memorandum, Nov. 23, 2011, ECF Nos. 5 (cover page) and 5-1 (body of the memo),
3
and Defendants filed a reply memorandum, Dec. 21, 2011, ECF No. 7. The Court heard
oral argument on the motion on Thursday, January 19, 2012.
STANDARD OF LAW
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),
clarified the standard to be applied to a 12(b)(6) motion:
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).
Id.
at
1964-65
(citations and internal quotations
omitted);
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); Iqbal v. Hasty, 490 F.3d 143 (2d
Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted “a flexible ‘plausibility
standard,’ which obliges a pleader to amplify a claim with some factual allegations in
those contexts where such amplification is needed to render the claim plausible[,]” as
opposed to merely conceivable.)
When applying this standard, a district 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 (1999), cert. denied, 531 U.S.
1052 (2000). On the other hand, “[c]onclusory allegations of the legal status of the
4
defendants’ acts need not be accepted as true for the purposes of ruling on a motion to
dismiss.” Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citing In
re American Express Co. Shareholder Litig., 39 F.3d 395, 400–01 n. 3 (2d Cir. 1994)).
As the Supreme Court clarified in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009):
Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Id., at 555, (Although for the
purposes of a motion to dismiss we must take all of the factual allegations
in the complaint as true, we “are not bound to accept as true a legal
conclusion couched as a factual allegation” (internal quotation marks
omitted)). Rule 8 marks a notable and generous departure from the hyper
technical, code pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss. Id., at 556. Determining whether a
complaint states a plausible claim for relief will, as the Court of Appeals
observed, be a context specific task that requires the reviewing court to
draw on its judicial experience and common sense. 490 F.3d at 157 158.
But where 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 “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc.
8(a)(2).
Iqbal, 129 S. Ct. at 1949–50.
“In considering a motion to dismiss for failure to state a claim under Fed. R. Civ.
P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in
documents attached to the complaint as exhibits or incorporated in the complaint by
reference.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir., 1991).The Court
must view the complaint, and draw all reasonable inferences, in the light most favorable
to the non-moving party. Id.; see also 2 MOORE’S FEDERAL PRACTICE, § 12.34[1][b]
(Matthew Bender 3d ed.) (court must accept plaintiff’s factual allegations as true). Under
the modern rules of pleading, a plaintiff need only provide “a short and plain statement
of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and
5
that “all pleadings shall be so construed as to do substantial justice,” Fed. R. Civ. P.
8(f). On a Rule 12(b)(6) motion, the issue before the Court “is not whether a plaintiff will
ultimately prevail, but whether the claimant is entitled to offer evidence to support the
claim.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
Finally, while the plaintiff need not set out in detail the facts upon which he
bases a claim, he must provide the “defendant fair notice of the nature of
the claim and the grounds upon which it rests.” Washington v. James, 782
F.2d 1134, 1140 (2d Cir. 1986) (quoting Conley v. Gibson, 355 U.S. 41,
47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 [1957]). Where the allegations are so
baldly conclusory that they fail to give notice of the basic events and
circumstances of which the plaintiff complains, they are meaningless as a
practical matter and legally insufficient to state a claim. Barr v. Abrams,
810 F.2d 358, 363 (2d Cir. 1987) (citing Ostrer v. Aronwald, 567 F.2d 551,
553 [2d Cir. 1977]; Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976); Powell
v. Jarvis, 460 F.2d 551, 553 [2d Cir. 1972]).
Parisi v. Coca Cola Bottling Co., 995 F. Supp. 298, 300–01 (E.D.N.Y. 1998).
ANALYSIS
As outlined above, Defendants raise three arguments in support of their motion.
The Court will address them in the order presented in Defendants’ memo of law.
Res Judicata
Defendants contend that because New York State Supreme Court Justice Alex
R. Renzi analyzed Plaintiff’s summons with notice in the course of denying Plaintiff’s
motion for leave to file a late notice of claim, and found that any claim for false
imprisonment was made beyond the statute of limitations, and that Plaintiff’s claim for
malicious prosecution was deficient, Justice Renzi’s decision was on the merits of
Plaintiff’s claims before the state court. As a result, Defendants argue that Justice
Renzi’s decision is res judicata on Plaintiff’s claims in this lawsuit.
“Under the doctrine of res judicata, or claim preclusion, [a] final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that were
6
or could have been raised in that action.” EDP Med. Computer Sys., Inc. v. United
States, 480 F.3d 621, 624 (2d Cir. 2007) (internal quotation marks omitted). Justice
Renzi’s discretionary decision not to grant leave to file a late notice of claim was based
on the considerations outlined in Dubowy v. City of New York, 305 A.D.2d 320 (N.Y.
App. Div. 1st Dept. 2003). In that case, the Appellate Division listed factors for the judge
to consider in exercising his discretion:
The key factors which the court must consider in determining if leave
should be granted are whether the movant demonstrated a reasonable
excuse for the failure to serve the notice of claim within the statutory time
frame, whether the municipality acquired actual notice of the essential
facts of the claim within 90 days after the claim arose or a reasonable time
thereafter, and whether the delay would substantially prejudice the
municipality in its defense….
Id. at 321 (citations omitted). Justice Renzi did not examine the complaint at bar, but,
rather, the allegations in a three-page notice of claim designed not to plead a case, but
to put the municipality on notice as to the nature of the claim and permit it to investigate
and gather evidence. See Teresta v. New York, 304 N.Y. 440, 443 (1952) (“The prime,
if not the sole, objective of the notice requirements of such a statute is to assure the city
an adequate opportunity to investigate the circumstances surrounding the accident and
to explore the merits of the claim while information is still readily available.”). He was not
required to address the merits of the action, though did comment substantive aspects of
the case in making his determination regarding prejudice. As to the Notice of Claim, the
Court finds that Justice Renzi’s decision was not on the merits of Plaintiff’s claims in this
lawsuit and, thus, does not bar the Court’s consideration of the complaint pursuant to
Federal Rule of Civil Procedure 12.
7
Notice of Claim
As a condition precedent to filing suit against a municipality in the New York
courts, a litigant must file a notice of claim. N.Y. Gen. Mun. L. §50-e (McKinney’s 2007).
McLaurin v. New Rochelle Police Officers, 368 F. Supp. 2d 289, 296 (S.D.N.Y. 2005)
(“The Federal courts have applied that prerequisite to State law claims brought in
Federal court. The notice of claim requirements apply equally to state tort claims
brought as pendent claims in a federal civil rights action.”), affirmed in part, vacated in
part on other grounds, by McLaurin v. Falcone, No. 04-4849-cv, 2007 U.S. App. LEXIS
1839 (2d Cir. Jan. 25, 2007). Plaintiff does not dispute that he failed to file a notice of
claim. Consequently, his pendant state claims in the complaint are subject to dismissal.
However, Defendants argue that in addition to dismissing his pendent State
claims, Plaintiff’s Federal claims under 42 U.S.C. § 1983 should also be dismissed
because of the failure to file a timely notice of claim. Defendants rely principally on
Giacamazzo v. City of New York, 94 A.D.2d 369 (N.Y. App. Div. 1st Dep’t 1983). In that
diversity case, the Appellate Division held that a dismissal of Giacamazzo’s Federal
complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) was a decision
on the merits and, therefore, barred his subsequent State lawsuit on the same grounds.
The distinguishing feature is that in the case before the Appellate Division,
[t]he United States District Court granted the motion to dismiss the
complaint for failure to file a notice of claim against the city within 90 days
of the accident (General Municipal Law, § 50-e) and failure to institute the
action within one year and 90 days of its accrual (General Municipal Law,
§ 50-i). The United States Court of Appeals for the Second Circuit affirmed
the dismissal.
Giacomazzo, 94 A.D.2d at 370. Here, Justice Renzi’s decision does not consider the
constitutional claims brought under the Federal complaint pending before the Court.
8
Defendants’ premise, that a notice of claim is a prerequisite to a § 1983 constitutional
claim, is wrong. New York’s notice of claim statute applies to State law causes of action,
but does not apply to Federal constitutional claims. See Howlett v. Rose, 496 U.S. 356,
376–77 (1990); Felder v. Casey, 487 U.S. 131, 134 (1988) (holding that Wisconsin
notice of claim statute does not apply to Federal civil rights actions brought in state
court, but does apply to State causes of action brought in Federal court); Ahern v. Neve,
285 F. Supp. 2d 317, 321 (E.D.N.Y. 2003) (“While the notice of claims requirement
applies to state-based claims, it does not apply to actions brought pursuant to Section
1983.”). Accordingly, the Court rejects Defendants’ argument that Plaintiff’s failure to file
a timely notice of claim precludes his Federal civil rights claims here.
Failure to State a Cause of Action
Defendants’ final argument is that Plaintiff’s complaint is barred by the one year
and 90-day limitations period in New York General Municipal Law § 50-i(c) and New
York Civil Procedure Law and Rules § 215. Pl.’s Mem. of Law, at 5, Oct. 21, 2011, ECF
No. 2-7. The Supreme Court, though, made clear in Owens v. Okure, 488 U.S. 235, 251
(1989), that the statute of limitations is the New York three year limitations period
governing general personal injury actions. Here, the accrual date for false arrest is
September 11, 2009. Compl. ¶ 17. This lawsuit was filed on September 8, 2011, a
period well within the three-year limitations period. The same limitations period applies
to the malicious prosecution claim under § 1983. Pinaud v. County of Suffolk, 52 F.3d
1139, 1156 (2d Cir. 1995). Therefore, both claims are timely brought.
The Court now turns its attention to the plausibility standard. First, to make out a
prima facie claim of false arrest, a plaintiff must show that: (1) the defendants
9
intentionally confined the plaintiff; (2) the plaintiff was conscious of the confinement; (3)
the plaintiff did not consent to the confinement; and (4) the confinement was not
“‘otherwise privileged.’” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003)
(quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Here, Defendants
argue that Plaintiff was not confined, but only given an appearance ticket, and that is
arrest was made pursuant to a judicial warrant.
The Court has considered Plaintiff’s argument that neither actual malice nor want
of probable cause is an essential element of an action for false imprisonment. Pl.’s
Mem. of Law, at 8, Nov. 23, 2011, ECF No. 5-1. In the case cited by Plaintiff in support
of his position, Marks v. Townsend, 97 N.Y. 590 (1885), the New York Court of Appeals
held that, “[t]he plaintiff was also properly nonsuited as to his cause of action for false
imprisonment.” Id. at 596. There, as here, the plaintiff was arrested upon a warrant
issued by a judicial officer based on information provided to him, and the warrant was
subsequently dismissed by that same judicial officer when additional information was
presented to him. Id. The Court of Appeals determined that,
[i]f a warrant of attachment or an order of arrest is issued in an action
upon facts giving the judge jurisdiction and the defendant appears, and by
showing new facts, or denying those alleged against him, procures the
attachment or the order to be set aside, the process is not void or
voidable, or irregular, but simply erroneous, and protects the judge and
the party who procures it, although it is set aside, against an action for
trespass or false imprisonment.
Marks, 97 N.Y. at 597. There, as here, the arrest pursuant to a warrant was “otherwise
privileged,” Savino, 331 F.3d at 75, and the complaint does not make out a plausible
claim of false arrest.
Turning to Plaintiff’s claim of malicious prosecution, former United States
Supreme Court Chief Justice William Rehnquist noted in Albright v. Oliver, 510 U.S.
10
266, 270 n.4, that “the extent to which a claim of malicious prosecution is actionable
under § 1983 is one ‘on which there is an embarrassing diversity of judicial opinion.’ 975
F.2d at 345, citing Brummett v. Camble, 946 F.2d 1178, 1180, n.2 (5th Cir. 1991)
(cataloging divergence of approaches by the Courts of Appeals).” In this Circuit, as to a
claim of malicious prosecution under § 1983, the court in Manganiello v. City of New
York, 612 F.3d 149 (2d Cir. 2010), held that,
In order to prevail on a § 1983 claim against a state actor for malicious
prosecution, a plaintiff must show a violation of his rights under the Fourth
Amendment… and must establish the elements of a malicious prosecution
claim under state law. To establish a malicious prosecution claim under
New York law, a plaintiff must prove “‘(1) the initiation or continuation of a
criminal proceeding against plaintiff; (2) termination of the proceeding in
plaintiff’s favor; (3) lack of probable cause for commencing the
proceeding; and (4) actual malice as a motivation for defendant’s actions.’”
Murphy v. Lynn, 118 F.3d at 947 (quoting Russell v. Smith, 68 F.3d at 36).
Id. at 160–61 (some citations omitted). Defendants contend that Plaintiff has not shown
that the criminal proceedings were terminated in his favor. The Court notes that the
complaint only states that “charges [sic]” 2 were dismissed “as they were improperly and
illegally initiated.” Compl. ¶ 18. The attachments to the complaint show that the
prosecutor’s information was backed by supporting depositions from Jennifer Adriance,
Plaintiff’s estranged wife, Richard Adriance, Jennifer’s father, Tiffany Card, Jennifer’s
niece, and Randall Ketchum, Jennifer’s former husband and a high school classmate of
Plaintiff’s. The complaint does not plausibly show that dismissal of the charges against
Plaintiff was based on the merits of the case. If the dismissal is characterized as being
in the interest of justice, N.Y. Crim. P. L. § 170.40, it would not be a termination in favor
of the accused. On this point, the Second Department observed in MacLeay v. Arden
2
The Prosecutor’s Information, Compl. Ex. A, Jul. 20, 2009, ECF No. 1-1, lists only one charge,
stalking in the third degree.
11
Hill Hosp., 164 A.D.2d 228 (N.Y. App. Div. 3d Dept. 1990), “‘A dismissal ‘in the interest
of justice’ is neither an acquittal of the charges nor any determination of the merits.
Rather, it leaves the question of guilt or innocence unanswered.” Id. at 230–31 (quoting
Ryan v. New York Tel. Co., 62 N.Y.2d 494, 504–05 (1984)). If, as Plaintiff alleges, the
State court dismissed the charges because the prosecutor improperly used a
prosecutor’s information to initiate them, 3 that dismissal would not indicate that the State
court had found the charges to be lacking in merit. In fact, the charges supported a
determination by one judge that the issuance of a warrant was supported by probable
cause. Therefore, the Court finds that the current complaint fails to state a plausible
cause of action for malicious prosecution under 42 U.S.C. § 1983 and the Fourth
Amendment.
CONCLUSION
For the foregoing reasons, Defendants’ application, ECF No. 2, is granted, and
the causes of action brought under the Constitution and 42 U.S.C. § 1983 are
dismissed. The State causes of action are dismissed for failure to file a timely notice of
claim. The Clerk is directed to enter judgment for Defendants and close this case.
DATED:
March 6, 2012
Rochester, New York
ENTER.
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
3
In his Practice Commentaries, N.Y. Crim. P. L. § 100.10 (McKinney’s 2007), Peter Preiser
states that a prosecutor’s information may not be used to commence a criminal proceeding
“unless it is the first accusatory instrument filed, and this can only occur where it is filed at the
direction of a grand jury on a charge not made in a previously filed accusatory instrument.”
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?