Bastuk v. County of Monroe et al

Filing 24

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 15 Defendants' Motion for Judgment on the Pleadings and dismissing Plaintiff's complaint with prejudice. Signed by Hon. Michael A. Telesca on 11/19/13. (Clerk to close case.) (Copy of Decision and Order mailed to Plaintiff by first class mail.) (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
WILLIAM BASTUK,
DECISION
and ORDER

Plaintiff,
vs.

12-CV-6154T

COUNTY OF MONROE, et al.,
Defendants.
________________________________________
INTRODUCTION
Plaintiff,

William

Bastuk,

("Bastuk"

or

"Plaintiff"),

brings

this action under 42 U.S.C. § 1983, against the County of Monroe
("County"),
("Sheriff

Monroe

O'Flynn"),

County

Investigator

Sheriff
Patrick

Patrick

Crough

Investigator Steve Peglow ("Inv. Peglow"),

(Inv.

O'Flynn
Crough"),

former Monroe County

District Attorney Michael Green, ("DA Green"), and former Assistant
District Attorney Kristy Karle, ("ADA Karle").
Plaintiff's claims arise out of his 2008 arrest and prosecution
on charges of raping a 16-year-old girl (“the Complainant”). The
charges were based on a May 15, 2008 complaint by the Complainant who
alleged that she had been raped by Bastuk on September 5, 2007,
between the hours of 8:00 and 9:00 pm in a shed at the Rochester
Yacht Club ("Yacht Club") during an end of year sailing party.

She

provided a supporting deposition and selected Bastuk out of a lineup. Complaint ¶ 24-30, 37.

Plaintiff was arrested on June 20, 2008, and on June 21, 2008 he
pled not guilty before Hon. Theresa Johnson in Rochester City Court.
Id., ¶ 69. On August 26, 2008, Bastuk was arraigned on Rape 1st, 2nd
and 3rd and unlawful imprisonment. Id., ¶ 91. On May 15, 2009, Bastuk
was

acquitted

commenced

of

this

all

action

charges
on

by

March

a

jury.

24,

2012,

Id.,

¶

127.

asserting

Plaintiff

claims

for

violations of 42 U.S.C. § 1983.
BACKGROUND
Plaintiff alleges that Inv. Peglow and Inv. Crough failed to
(1) adequately interview witnesses; (2) explore the possibility of
other perpetrators; and (3) investigate the discrepancies between the
Complainant’s version of the story and other contradictory evidence.
Specifically, he claims that the investigators taped an interview
with

Plaintiff

without

Plaintiff's

knowledge,

and

withheld

information about the date of the alleged rape. Plaintiff points out
that

Invs.

Peglow

and

Crough

failed

to

notice

during

their

investigation that the shed in which the rape allegedly occurred
could not be locked from the inside, undermining the victim’s version
of events. Moreover, the investigators failed to discover that the
Yacht Club had a long-standing policy of prohibiting indoor locks on
the shed doors. Complaint, ¶¶ 45-46. In addition, Plaintiff passed a
polygraph test and was refused a second test by the Monroe County

2

Sheriff's Department. Id., ¶ 57. Finally, Plaintiff alleges that
Invs. Peglow and Crough did not exercise their responsibility to
fully assess the reliability of the complainant given her history of
mental illness and psychosis prior to the alleged rape and failed to
fully assess the conflicting statements by the Complainant in her
diary and her allegations.
The

complaint

alleges

that

ADA

Karle

violated

Plaintiff’s

constitutional rights by reneging on a bail agreement that she had
made with defense counsel resulting in his confinement in the Monroe
County Jail from June 20 to June 21, 2012, until his wife posted
bail. Complaint, ¶¶ 70-72. He was not released, and instead was
transported to Rochester General Hospital by Monroe County Sheriff's
deputies against his will for a psychological evaluation. Complaint,
¶¶

71-77.

Plaintiff

claims

that

the

Monroe

County

Sheriff’s

Department failed to inform him of his right to refuse a psychiatric
examination after he had posted bail. Id., ¶ 89.
During the week of August 18, 2008, an indictment was returned
against Bastuk which he claims was the product of fraud and perjury.
He also claims that the indictment was tainted due to the suppression
of

material

evidence

by

the

Sheriff

and

the

DA’s

office.

The

complaint alleges that ADA Karle failed to turn over exculpatory
material to Plaintiff as required by Brady v. Maryland, 373 U.S. 83

3

(1963)

(“Brady”).

That

evidence

included

the

Complainant’s

diary

entries, her pre-incident medical records, and the negative results
of the lab tests on her underwear. Complaint ¶¶ 90, 92, 93. Plaintiff
contends

that

ADA

Karle’s

failure

to

turn

over

this

information

caused a months-long delay in the trial. Plaintiff asserts that the
Brady material was not turned over until, shortly before the trial,
the judge ordered the disclosures. Complaint, ¶¶ 99, 102, 121-123.
Plaintiff also alleges that ADA Karle failed to have a critical
witness interviewed as part of her investigation. In an August 30,
2007 diary entry, the complainant anticipated that she would be raped
the evening of September 5, 2007, because she had a dream about her
history and religion teacher raping her. Complaint, ¶¶ 124-125. ADA
Karle did not have this teacher interviewed. Plaintiff also claims
that ADA Karle maliciously prosecuted him despite the fact he had an
alibi for the time-period during which the rape allegedly occurred.
Id., ¶ 112.
As

to

DA

Green,

Plaintiff

alleges

that

he

had

actual

or

constructive knowledge of the misconduct of the ADA and took no steps
or

grossly

inadequate

steps

to

train

or

supervise

the

assistant

district attorneys in his office thereby actually or constructively
condoning, facilitating, and encouraging unconstitutional practices.
Id., ¶ 130. Furthermore, Plaintiff alleges that the DA’s office had a

4

custom, policy, pattern and practice of bad faith withholding of
access to evidence within the custody of the Sheriff’s Department and
in the control of the DA’s office. Id., ¶ 131.
As to the Sheriff's Department, Plaintiff alleges that it had a
"custom, policy or pattern and practice of failing to adequately
investigate

leads,

of

pressuring

witnesses

to

make

false

identifications, and to withhold material exculpatory and impeachment
evidence
alleges

from
that

practices

and

prosecutors."
there
that

were
the

Complaint,

"many

County

¶

cases"
has

132.

Plaintiff

involving

"done

nothing

these
to

further
unlawful

rectify

the

illegal investigative practices of its investigators." Id., ¶ 133.
Plaintiff further alleges that the City had a custom or policy of
failing to train or supervise its officers with respect to rape
investigation

techniques,

including

“pressuring

witnesses

to

make

false identifications, falsifying inculpatory evidence,” and other
matters. Id., ¶ 134.
Based on these allegations, Plaintiff asserts five causes of
action: (1) the deprivation of Plaintiff's Fourth and Fourteenth
Amendment rights to be free from malicious prosecution, false arrest
and

false

Amendment

imprisonment;
right

exculpatory

and

of

due

(2)

the

deprivation
of

process

impeachment

of

withholding

law

evidence,

5

by

coercion

Plaintiff's

and

14th

material

deliberately

failing to conduct a constitutionally adequate investigation; (3) a
civil

rights

conspiracy

to

deprive

Plaintiff

of

his

Fourth

and

Fourteenth Amendment rights to be free from unreasonable search and
seizures, false arrest, false imprisonment, malicious prosecution and
deprivation of liberty without due process of law; (4) supervisory
liability

against

Sheriff

O’Flynn;

and

(5)

municipal

liability

against Monroe County and DA Green. Plaintiff seeks compensatory and
punitive damages in an unspecified amount.
DISCUSSION
In reviewing a motion to dismiss on the pleadings, “the factual
allegations
reasonable

in

the

complaint

inferences

must

be

must

be

drawn

accepted

in

favor

as
of

Frazier v. Coughlin, 850 F.2d 129 (2d Cir. 1988).

true,
the

and

all

plaintiff.”

The court should

grant such a motion only if, after viewing plaintiff's allegations in
this favorable light, “it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him
to relief.” Ricciuti v. New York City Transit Authority, 941 F.2d 119
(2d Cir. 1991).
A. The District Attorney’s Office Defendants
Defendants

DA

Green

and

ADA

Karle

are

protected

by

absolute

prosecutorial immunity. "[I]t is well settled that prosecutors are
entitled to absolute immunity against Section 1983 claims for actions

6

performed within the course of their prosecutorial duties, including
but not limited to the presentation of evidence to grand juries and
participation

in

criminal

trials."

Brown

v.

Ontario

County,

787

F.Supp.2d 273, 277 (W.D.N.Y. 2011), citing, Imbler v. Pachtman, 424
U.S. 409, 427-28, 96 S.Ct. 984, 47 L.Ed. 128 (1976), and Barrett v.
United

States,

798

F.2d

565,

571-72

(2d

Cir.

1986).

However,

absolute immunity may not apply when a “prosecutor is not acting as
‘an officer of the court' but is instead engaged in other tasks, say,
investigative or administrative tasks." Van de Kamp v. Goldstein, 555
U.S. 335, 342, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009), citing, Imbler,
424 U.S. at 431 n. 33, 96 S.Ct. 984). A prosecutor who engages in
such activities is protected instead only by qualified, good-faith
immunity. Scalfani v. Spitzer, 734 F.Supp.2d 288, 296 (E.D.N.Y. 2010)
citing, Van de Kamp.
A

prosecutor's

failure

to

disclose

exculpatory

evidence

is

protected by absolute immunity. Lawlor v. Connelly, 471 Fed.Appx. 64,
65 (2d Cir. 2012)(stating that "[t]his Court has repeatedly held . .
. that a prosecutor is absolutely immune from liability under 42
U.S.C. § 1983 for his conduct before a grand jury" and that "this
Court has specifically held that a prosecutor is immune from § 1983
liability

for

withholding

exculpatory

evidence

from

a

grand

jury")(citations omitted); see also Warney v. Monroe County, 58 F.3d

7

113,

125

(2d

Cir.

2009)("if

evidence,

and

then

sat

on

the

the

prosecutors

exculpatory

had

tested

results

for

all
at

the

least

72 days, they may well have violated Brady v. Maryland,373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed. 215 (1963); but they would be absolutely
immune from personal liability").
Although

Plaintiff

drafts

his

claim

in

terms

of

an

alleged

failure to conduct a thorough investigation, that does not render the
complained-of conduct "investigatory" in nature. Plaintiff's claim
rests squarely on the prosecutor's decision to bring criminal charges
against Plaintiff. That is a prosecutorial task. Schnitter v. City of
Rochester,

931

F.Supp.2d

469,

474

(W.D.N.Y.

2013);

Stein

v.

Disciplinary Bd. of Supreme Court of New Mexico, 520 F.3d 1183, 1194
(10th Cir. 2008) citing, Buckley v. Fitzsimmons, 509 U.S. 259, 273,
113 S.Ct. 2606, 125 L.Ed. 209 (1993).
Plaintiff argues that DA Green’s failure to supervise or train
ADAs

on

their

obligations

under

Brady

is

not

a

protected

prosecutorial function but instead an administrative function that is
not subject to immunity. A complete failure by the DA to train ADAs
on

fulfilling

Brady

obligations

could

constitute

deliberate

indifference sufficient to give rise to § 1983 municipal liability.
Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992).
here, Plaintiff fails to adequately plead such a claim.

8

However,

To state a claim under § 1983 for failure to train, a complaint
must allege that the supervisor’s failure to train his employees
amounts to “‘deliberate indifference to the rights of persons with
whom the [employees] c[a]me into contact.”’ Connick

v. Thompson, __

U.S. __, 131 S.Ct. 1350, 1359, 179 L.Ed. 417 (2011), quoting, City of
Canton Ohio v. Harris, 489 U.S. 378 (1989).
Plaintiff

does

maliciously,

and

indifference

to

unconstitutional
participating

allege

with

that

reckless

Plaintiff’s
official

directly

DA

in

Green

disregard

rights,

for

created

custom,
the

“acted

and

and

practice,

bad-faith

intentionally,

maintained

or

denial

deliberate

of

policy
access

an
by
to

exculpatory evidence to Plaintiff and his counsel” as well as failed
to “provide or provided grossly inadequate training and supervision
regarding the obligation to disclose exculpatory evidence to defense
counsel or the court, despite actual or constructive knowledge that
the failure to provide such training, supervision, and discipline had
led

to

or

Complaint,

was
¶¶

likely
164,

to

166.

lead

to

But

the

the

constitutional

complaint

is

violations”

devoid

of

any

particulars supporting these conclusory assertions.
“A pattern of similar constitutional violations by untrained
employees

is

‘ordinarily

necessary’

to

demonstrate

deliberate

indifference for purposes of failure to train.” Connick, 131 S.Ct. at

9

1360, quoting, Board of County Comm’rs of Bryan Cty. V. Brown, 520
U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). While the
Supreme Court has left open the possibility that a single incident
could give rise to train or supervise claim, the Court has cautioned
that only a “narrow range of circumstances would support such singleincident

liability,

where

the

“unconstitutional

consequences

of

failing to train [were] patently obvious . . .” Connick, 131 S.Ct. at
1361. No allegations supporting either theory have been pleaded here.
In any event, such a claim cannot be predicated on boilerplate
allegations of the sort presented in this case.

In deciding motions

to dismiss, it is “required that plaintiffs provide more than a
simple recitation of their theory of liability[.] Sims v. City of New
York,

2011

(collecting

WL

4543051

cases),

However,

“legal

elements

of

statements,

a
do

at

aff’d,

*2
480

conclusions”
cause
not

of

n.

Fed.

or

action

suffice.”

3

(E.D.N.Y.
Appx.

Sept.

627

(2d

“[t]hreadbare
supported

Harris

v.

28,
Cir.

recitals

by

mere

Mills,

572

2011)
2012).

of

the

conclusory

F.3d

66,

72

(2d Cir. 2009), quoting, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To

survive

allegations

a

motion

sufficient

to

dismiss,

“to

raise

a

claim

must

a

right

to

contain

relief

factual

above

the

speculative.” Bell Atlantic v. Twombly, 550 U.S. 554, 555 (2007).

10

“While legal conclusions can provide the framework of a claim, they
must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
Here,

Plaintiff

has

simply

added

a

claim

that

the

alleged

violation of his constitutional rights was due in part to a failure
of

DA

Green

to

train

and

supervise

his

subordinates.

That

is

precisely the sort of “[t]hreadbare recital[] of the elements of a
cause of action” that is insufficient to state a cause of action.
Iqbal. 556 U.S. at 678, 129 S.Ct. 1937. Given the limited factual
support for Plaintiffs' failure to train claim, it cannot survive a
motion for judgment on the pleadings.
To the extent that Plaintiff’s claims against DA Green and ADA
Karle are asserted against them in their official capacities, they
are

also

barred

by

the

Eleventh

Amendment.

In

their

role

as

prosecutors, DA Green and ADA Karle “acted in all relevant respects,
on

behalf

of

New

York

State,

which

itself

is

immune

under

the

Eleventh Amendment.” Doe v. Green, 593 F.Supp.2d 523, 535 (W.D.N.Y.
2009). That immunity extends to them, in their official capacities as
well. Id.
Plaintiff's claims against the County must also be dismissed.
First, the complaint does not adequately allege that the purported
violations of plaintiff's rights were due to any customs or policies

11

of the County, for the same reasons stated with respect to DA Green's
supervisory liability. Second, the County cannot be held liable for
DA Green’s and ADA Karle’s actions, because they acted on behalf of
New York State. “The case law is clear that a county in New York
cannot

be

held

liable

for

the

prosecutorial

acts

of

a

district

attorney, because the DA acts in that capacity on behalf of the
state, not the county.” 593 F. Supp.2d at 534 (citations omitted).
In Green, the Court dismissed a claim alleging that the defendant
county maintained certain policies or customs concerning grand jury
investigations and prosecutions of certain types of crimes, on the
ground that those “were not policies of the County—which lacked the
authority to set such policies—but policies of the DA, acting on
behalf of New York State.” Id. The same reasoning applies here.
B. The Sheriff’s Office Defendants
Plaintiff’s

claims

against

Sheriff

O’Flynn

Crough and Peglow are also subject to dismissal.

and

Investigators

Since Invs. Peglow

and Crough were not directly involved in the decision to prosecute
Plaintiff, the claim against them is essentially a claim for false
arrest. “A § 1983 claim for false arrest . . . is substantially the
same as a claim for false arrest under New York law.”

Weyant v.

Okst, 101 F.3d 845, 852 (2d Cir. 1996). Under New York law, an action
for

false

arrest

requires

that

the

12

plaintiff

show

that

“1)

the

defendant intended to confine him, 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.” Broughton v.
State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d
310 (1975).
“Probable cause ‘is a complete defense to an action for false
arrest brought under New York law or § 1983.” Ackerson v. City of
White Plains, 702 F.3d 15, 19 (2d Cir. 2012), quoting, Weyant, 101
F.3d at 852. “Probable cause to arrest exists when the officers have
.

.

.

reasonably

trustworthy

information

as

to

[]

facts

and

circumstances that are sufficient to warrant a person of reasonable
caution in the belief that an offense has been . . . committed by the
person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368
(2d Cir. 2007). “In deciding whether probably cause existed for an
arrest, we assess ‘whether the facts known by the arresting officer
at the time of the arrest objectively provided probable cause to
arrest.’” Ackerson, 702 F.3d at 19, quoting, Jaegly v. Couch, 439
F.3d 149, 153 (2d Cir. 2006).
Even if a complaint states an otherwise viable false arrest
claim, “[q]ualified immunity is a complete defense to false arrest
claims. An arresting officer is entitled to qualified immunity even
when . . . probable cause to arrest does not exist, “if he can

13

establish

that

there

was

“arguable

probable

cause”

to

arrest.’”

Ackerson, 702 F.3d at 21, quoting, Escalera v. Lunn, 361 F.3d 737,
743 (2d Cir. 2004). “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.” Id.
In the case at bar, Plaintiff was accused of raping a 16-year-old
girl.

She

picked

him

out

of

a

line-up

and

her

testimony

was

corroborated by her treating therapist who wrote in a report that the
Complainant “show[ed] all the common signs of a rape victim” and
“believe[d] her allegations to be true.” Complaint, ¶ 58.

Although

there was a lack of corroborating physical evidence, the doctor who
performed the physical examination noted that it did “not rule out
the

possibility

of

sexual

abuse,

as

80-90%

of

sexually

abused

children have normal examinations.” Defendants’ Exhibit C. Moreover,
the lack of physical evidence is not unexpected given the fact that
the complaint was made 8 months after the alleged act occurred. In
addition, Mike Stooler, a bartender at the Yacht Club, stated that
many

female

staff

had

complained

about

Bastuk

touching

them

inappropriately. Stooler’s later repudiation of that statement when
interviewed by Plaintiff’s private investigator is immaterial since
there is no indication that Invs. Peglow or Crough were aware of that

14

fact before the arrest. Finally, one of the Complainant’s friends
informed Inv. Peglow before the arrest that the Complainant had been
acting oddly at the start of the 2007-2008 school year, shortly after
the alleged rape, and that the Complainant had confided in her about
the rape. In light of the foregoing facts which supply sufficient
probable

cause

for

his

arrest,

Plaintiff

is

engaging

in

pure

speculation by asserting that Invs. Peglow and Crough should have
doubted

the

Complainant’s

veracity

in

light

of

her

psychiatric

history (i.e., that her family noted she had been depressed over the
past few months) and conflicting statements she made in her diary.
Police officers have no duty to search for exculpatory evidence or
to go to great lengths to determine whether the accuser’s credibility
might be called into question absent some obvious reason to doubt
her. See, Schnitter v. City of Rochester, 931 F.Supp.2d 469 (W.D.N.Y.
2013);

Rhodes

v.

(W.D.N.Y. 2012);
or

engage

in

Tevens,

No.

07-CV-471,

2012

WL

777421

at

*6

(officers “were not obligated to pursue every lead

extensive

fact-finding

regarding

the

complainant's

credibility”), citing, Gisondi v. Town of Harrison, 72 N.Y.2d 280,
285, 532 N.Y.S.2d 234, 528 N.E.2d 157 (1988).
Although plaintiff alleges that the Complainant’s accusations were
false, the only allegation of bad faith was that Inv. Peglow handed a

15

copy of papers relating to Plaintiff’s arrest to Inv. Crough and
stated, “Here’s the copy for the D & C.” This exchange between the
two officers merely shows the conduct of business during the handing
of

a

case

involving

a

person

of

public

interest.

There

are

no

allegations indicating that the officers engaged in any fraudulent or
bad-faith conduct, and they were therefore “entitled to rely on the
presumption

of

probable

cause

arising

from

the

Indictment

when

arresting” plaintiff. Blasini v. City of New York, No. 11 Civ. 3022,
2011 WL 6224605, at *5 (S.D.N.Y. Dec. 14, 2011). See also, Dale v.
Kelley, 908 F. Supp. 125, 138 (W.D.N.Y. 1995) (village police chief's
reliance on district attorney's “relatively more expert opinion that
probable cause existed was objectively reasonable as a matter of
law”), aff'd, 95 F.3d 2 (2d Cir. 1996).
Plaintiff’s claims against Sheriff O’Flynn fare no better than his
claims against DA Green and the County. Plaintiff has made only
conclusory allegations concerning Sheriff O’Flynn’s alleged failure
to

train

allegations

and
that

supervise
Sheriff

his

employees.

O’Flynn

has

Plaintiff's

failed

to

train

conclusory
its

police

officers do not constitute “facts which demonstrate that the need for
training was obvious such as there were proof of repeated complaints
of similar civil rights violations followed by no meaningful attempt
. . . to investigate or to forestall such incidents.” Zalaski v. City

16

of Hartford, 2011 WL 6130770, at *7 (D.Conn. Dec. 8, 2011). Plaintiff
has

thus

failed

to

adequately

allege

that

the

constitutional

violations arose from a de facto policy or custom or that Sheriff
O’Flynn acted with deliberate indifference in failing to adequately
train his police officers in the sheriff’s department.
C. Conspiracy Claims
In order to survive a motion to dismiss on a conspiracy claim
under §1985, a plaintiff must allege “(1) a conspiracy; (2) for the
purpose of depriving either directly or indirectly, any person or
class of person of the equal protection of the laws; or of equal
privileges

and

immunities

under

the

laws;

and

(3)

an

act

in

furtherance of the conspiracy; (4) whereby a person is either injured
in his person or property or deprived of any right or privilege of a
citizen of the United States.” United Bhd. of Carpenters v. Scott,
463 U.S. 825, 828–29 (1983). In addition, the conspiracy must be
“motivated by some racial or perhaps otherwise class-based, invidious
discriminatory

animus

behind

the

conspirators’

action.”

Britt

v.

Garcia, 457 F.3d 264, 270 n.4 (2d Cir.2006) (internal quotation marks
omitted).
Plaintiff’s complaint alleges a conspiracy among the defendants
(1) to withhold material exculpatory evidence from prosecutors in the

17

DA’s office and (2) to conduct an adequate investigation into the
alleged violation of his constitutional rights. Defendants argue that
the

intracorporate

conspiracy

doctrine

precludes

Plaintiff

from

prevailing on his conspiracy claim.
“[I]t is well settled that there can be no actionable conspiracy
under the civil rights laws if the alleged conspirators are employees
of a single organization and their alleged actions were taken in the
course of their employment.” Ahmed v. Gelfand, 160 F.Supp.2d 408, 413
(E.D.N.Y. 2001) (citing Girard v. 94th Street and Fifth Ave. Corp.,
530 F.2d 66, 71 (2d Cir.), cert. denied, 425 U.S. 974 (1976); see
also Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978).
Since defendants are employees of Monroe County, and the alleged
constitutional
employment,

violations

Plaintiff’s

occurred

conspiracy

during
claims

the
must

course
be

of

their

dismissed.

See

Varricchio v. County of Nassau, 702 F.Supp.2d 40, 62 (E.D.N.Y. 2010)
(dismissing § 1985 conspiracy claim where it was undisputed that the
alleged conspirators all were employees of Nassau County). Contrary
to Plaintiff’s contention, Girard does not stand for the proposition
that

intracorporate

conspiracy

as

immunity

opposed

to

the

applies
multiple

only
acts

to
he

a

single

has

pled

act
in

of
his

complaint. Johnson v. Nyack Hosp., 954 F. Supp. 717, 723-24 (S.D.N.Y.
1997) (discussing Girard). Although there are some suggestions in the

18

caselaw

that

intracorporate

immunity

should

apply

only

in

circumstances where the alleged conspiracy encompassed no more than a
single act of discrimination, Johnson, 954 F. Supp. At 724 n.15
(citing cases), “such a line responds neither to the text nor to the
objectives
actors,

of

not

on

Section

§

multiple

1985.
acts

Section
of

1985

depends

discrimination

or

on

multiple

retaliation.”

Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108, 110
(7th Cir. 1990). Therefore, the Court rejects Plaintiff’s attempt to
evade

application

of

intracorporate

immunity

as

it

based

on

a

misreading of Girard and is not established by any relevant Second
Circuit precedent.
To

the

extent

that

Plaintiff

alleges

a

conspiracy

between

employees of the District Attorney’s office and the Sheriff’s Office,
the complaint simply does not allege any plausible facts to establish
such

a

conspiracy.

Plaintiff
that

here

has

defendants

provided
entered

only

into

an

vague

and

conclusory

allegations

unlawful

agreement.

These do not suffice. Kiryas Joel Alliance v. Village of

Kiryas Joel, 495 Fed. Appx. 183, 190 (2d Cir. 2012); Webb v. Goord,
340 F.3d 105, 110-110 (2d Cir. 2003)(“[A] plaintiff must provide some
factual basis supporting a meeting of the minds, such that defendants
entered into an agreement, express or tacit to achieve the unlawful
end.”)

19

CONCLUSION
None

of

Plaintiff’s

claims

can

survive

a

motion

to

dismiss.

Plaintiff’s complaint is therefore dismissed. Defendants’ motion for
judgment on the pleadings is granted (Dkt. #15) and the complaint is
dismissed with prejudice.
IT IS SO ORDERED.

S/Michael A. Telesca
__________________________
Honorable Michael A. Telesca
United States District Judge

DATED: November 19, 2013
Rochester, New York

20