CALVIN BUARI, Plaintiff, -against- CITY OF NEW YORK; ANDREW DIETZ, New York City Police Department Detective; FNU TRACY, New York City Police Department Detective; VINCENT PRICE, New York City Police Department Detective; EUGENE GOTTWIN, New York City Police Department Detective; JOSEPH NEENAN, New York City Police Department Detective; CHRISTINE FORTUNE, New York City Police Department Detective; JOHN WALL, Bronx County District Attorney‘s Office Investigator; FNU SCHIFFMAN, Bronx County District Attorney‘s Office Investigator; FRANK VIGGIANO, Bronx County District Attorney‘s Office Investigator; ALLEN KAREN, Bronx County District Attorney‘s Office Assistant District Attorney; FELICITY LUNG, Bronx County District Attorney‘s Office Assistant District Attorney; PETER CODDINGTON, Bronx County District Attorney‘s Office Assistant District Attorney; GINA MIGNOLA, Bronx County District Attorney‘s Office Assistant District Attorney; JOHN AND/OR JANE DOES #1-10, who are currently unknown members of the New York City Police Department; and RICHARD AND/OR RACHEL ROES #1-10, who are currently unknown members of the Bronx County District Attorney‘s Office, Defendants.
Case 1:18-cv-12299-MKV Document 73
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Filed 03/30/21
MARY KAY VYSKOCIL, United States District Judge
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: ____ DATE FILED: 3/30/2021
MARY KAY VYSKOCIL, United States District Judge:
In October 1995, a New York State Supreme Court jury convicted Plaintiff Calvin Buari (“Buari“) of two counts of murder in the second degree in connection with a 1992 double homicide in the Bronx, New York, based solely on the testimony of alleged witnesses. Buari was sentenced to consecutive indeterminate terms of imprisonment of twenty-five years to life. In May 2017, a judge vacated Buari‘s conviction pursuant to
In December 2018, Buari commenced this action against the City of New York (“City“); New York City Police Department (“NYPD“) Detectives (“Det.“) Andrew Dietz, Fnu Tracy, Vincent Price, Eugene Gottwin, Joseph Neenan, and Christine Fortune, (collectively, the “NYPD Defendants“); Bronx County Assistant District Attorneys (“ADA“) Allen Karen, Felicity Lung, Peter Coddington, and Gina Mignola (collectively, the “ADA Defendants“); Investigators Frank Viggiano, Stanley Schiffman, and John Wall (collectively, the “Investigator Defendants“); John and/or Jane Does #1-10, who are unidentified officers, detectives, supervisors, and other agents and employees of the NYPD (“Does #1-10“); and Richard and/or Rachel Roes #1-10, who are unidentified investigators, agents, and employees of the Bronx DA‘s Office (“Roes #1-10“). (Am. Compl. ¶¶ 23-36 [ECF No. 58].)1 Buari brings claims under
Buari alleges serious misconduct by members of the NYPD and the Bronx DA‘s Office. Until proven at trial with competent evidence, Buari‘s allegations of course remain unproven allegations. Some of Buari‘s claims may ultimately be difficult to prove. But at this early stage in the litigation, the Court is constrained to accept Buari‘s allegations as true and to draw all
BACKGROUND
I. Factual Background2
A. The Underlying Crime and Investigation
On September 10, 1992, at approximately 9:00 p.m., Buari was walking through his neighborhood, the Wakefield section of the Bronx, to visit a friend. (Am. Compl. ¶¶ 37-40.) As he crossed the intersection of 213th Street and Bronxwood Avenue, Buari saw Dwight Robinson (“Robinson“) and his brother Peter. (Id. ¶ 41.) Buari met his friend near the intersection. (Id. ¶ 43.) As they were talking, they heard gunshots. (Id. ¶ 45.) They ran down 213th Street (id. ¶ 46), but later returned to the intersection to see what had happened (id. ¶ 48). Buari learned that two males, the Harris brothers, had been shot and killed while sitting in a white BMW (the “Harris Murders“). (Id. ¶ 51.)
Police officers of the 47th Precinct secured the crime scene, but failed to locate any eyewitnesses. (Id. ¶¶ 54-56.) They eventually located a witness who claimed to have observed Kintu Effort (“Effort“) and another individual fleeing the scene. (Id. ¶ 58.) On November 4, 1992,
On January 29, 1993, police arrested Alrick Griffiths, a drug-dealing associate of Robinson, for possession of narcotics and a loaded handgun. (Id. ¶¶ 63-65.) Suspecting that Griffiths was involved with the Harris Murders, Det. Dietz tried to find evidence linking him to the crime. (Id. ¶ 66.) Finding no such evidence, Det. Dietz sought to coerce Griffiths into implicating someone else by spreading a false rumor that Griffiths was a “snitch” and “talked to police.” (Id. ¶ 41.) As the rumor spread, Griffiths’ girlfriend visited the 47th Precinct and advised Det. Dietz that Griffiths was at the 213th Street and Bronxwood Avenue intersection when one of the “Yankee guys that deal crack shoot [sic] two guys in the head who were sitting in a pretty white BMW.” (Id. ¶ 69.)
On March 22, 1993, Buari was arrested for marijuana possession. (Id. ¶ 71.) Det. Tracy attempted to elicit from him information about recent criminal activity in the 47th Precinct. (Id. ¶¶ 72-73.) Buari declined to offer any information. (Id. ¶ 74.)
Knowing Buari lived near the 213th Street and Bronxwood Avenue intersection, Dets. Dietz and Tracy coerced Griffiths into falsely implicating Buari for the Harris Murders. (Id. ¶ 76.) In exchange for his false testimony, Dets. Dietz and Tracy offered Griffiths favorable treatment, leniency, and release from custody. (Id. ¶ 77.) As a result of Griffiths’ false statements, Buari was arrested for the Harris Murders. (Id. ¶ 78.)
B. Buari‘s Prosecution
The Bronx DA began prosecuting Buari for the Harris Murders based solely on Griffiths’ statements. (Am. Compl. ¶ 82.) On March 26, 1993, a grand jury indicted Buari on charges of second-degree murder, first-degree manslaughter, first-degree criminal use of a firearm, and second- and third-degree criminal possession of a weapon. (Id. ¶ 85.)
In the summer of 1995, drug violence in the 47th Precinct intensified. (Id. ¶¶ 95-97.) Robinson‘s brother, Peter, was murdered that summer. (Id. ¶ 98.) Believing Buari was involved, Robinson attempted to kill him by shooting at him while he was sitting in a parked car. (Id. ¶¶ 99-100.) Buari survived the attack but sustained serious injuries. (Id. ¶ 101.) Police took Robinson into custody. (Id. ¶ 102.)
Dets. Price, Gottwin, Neenan, and Fortune met with Robinson to discuss the drug violence in the 47th Precinct. (Id. ¶ 103.) The detectives proposed allowing Robinson to operate his drug trade without interference, or “heat,” from the police if he implicated Buari for the Harris Murders. (Id. ¶¶ 108-09.) Robinson accepted and agreed to testify against Buari. (Id. ¶ 110.) Dets. Price, Gottwin, Neenan, and Fortune advised ADA Alan Karen, the lead prosecutor on Buari‘s case, of this arrangement. (Id. ¶ 111.) Those detectives, together with ADA Karen, then coerced Robinson‘s drug-dealing associates Connor, Seabrook, Johnson, and Kenya Holder (“Holder“), to implicate Buari falsely. (Id. ¶¶ 113, 115.) The Bronx DA offered Connor, Seabrook, and Holder recommendations for leniency for open drug and weapon charges in exchange for their testimony. (Id. ¶ 114.) Dets. Price, Gottwin, Neenan, and Fortune and ADA Karen also coerced Effort into falsely implicating Buari by threatening to charge him as an accessory to the Harris Murders and offering him leniency on his current prison sentence. (Id. ¶¶ 118-20.)
In October 1995, Buari was tried before a jury and convicted of two counts of second-degree murder. (Id. ¶¶ 127, 138.) The only evidence linking him to the Harris Murders was the testimony of Robinson, Seabrook, Holder, Connor, Johnson, and Effort. (Id. ¶ 128.) At trial, ADA Karen elicited the testimony from the witnesses but did not disclose the leniency arrangements with them. (Id. ¶¶ 129-37.) Buari was sentenced to consecutive indeterminate terms of imprisonment from twenty-five years to life. (Id. ¶ 138.)
In June 1997, Robinson was arrested for the murder Leroy McClennon. (Id. ¶¶ 139, 143.) He was convicted and sentenced to a term of imprisonment of twenty-five years to life. (Id. ¶ 143.)
C. Post-Conviction Proceedings
Attorneys from the Office of the Appellate Defender took up Buari‘s appeal. (Am. Compl. ¶ 144.) They spoke with Effort, who recanted his trial testimony and provided an affidavit explaining that he testified falsely because the Bronx DA threatened to charge him as an accessory. (Id. ¶¶ 145-47.) Buari moved pursuant to
At a hearing on the First 440.10 Motion, Robinson recanted his confession and insisted that he did not commit the Harris Murders, while Effort testified that his recantation was accurate and that Buari did not commit the Harris Murders. (Id. ¶¶ 162-63.) The judge found Robinson to be credible and Effort to be not credible and denied the First 440.10 Motion. (Id. ¶ 164.) The Appellate Division, First Department, affirmed. (Id. ¶ 165.)
Buari‘s family launched a social media campaign to raise awareness of his wrongful conviction and discover new evidence. (Id. ¶ 166.) Private investigators discovered several new witnesses. (Id. ¶¶ 167-86.) Buari then filed a second 440.10 motion (“Second 440.10 Motion“). (Id. ¶ 187.)
Shortly thereafter, ADA Coddington contacted Buari‘s attorneys and stated that the Bronx DA‘s Conviction Integrity Unity (“CIU“) wanted to investigate Buari‘s innocence claims. (Id. ¶¶ 188-90.) Buari and his attorneys agreed to hold the Second 440.10 Motion in abeyance while the CIU investigated. (Id. ¶ 193.) ADAs Mignola, Coddington, and Lung of the CIU directed investigators to intimidate Buari‘s new witnesses not to testify. (Id. ¶¶ 201, 203-07.)
Buari revived the Second 440.10 Motion, and the court held an eleven-day hearing at which Buari and his newfound witnesses testified. (Id. ¶ 216-20.) The prosecutors repeatedly claimed that they would produce Robinson to testify but never did. (Id. ¶¶ 222-23.)
II. Procedural Background
Buari commenced this action on December 28, 2018. (Compl. [ECF Nos. 1, 3].) On October 11, 2019, at a pre-motion conference, the Court (Ramos, J.) granted leave to file the Amended Complaint and set a briefing schedule for Defendants’ Motion to Dismiss. Buari filed the Amended Complaint on November 11, 2019.
The Amended Complaint alleges eleven causes of action: (1) malicious prosecution under
Defendants filed their Motion to Dismiss pursuant to
LEGAL STANDARDS
I. Rule 12(b)(6) Motion to Dismiss
To survive a motion to dismiss under
II. Materials Considered
In considering a
III. Section 1983
To state a claim under
ANALYSIS
I. Absolute Prosecutorial Immunity
As a preliminary matter, Defendants argue that all Bronx DA Defendants are entitled to absolute prosecutorial immunity. (Mot. 9-13.) Buari responds that ADA Karen is not entitled to absolute immunity because Buari has alleged conduct not intimately tied to the judicial process.
A. Applicable Law
The Supreme Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (collecting cases); see Deronette v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925, at *4 (E.D.N.Y. Mar. 27, 2007) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); and United States v. Colbert, No. 87 Civ. 4789, 1991 WL 183376, at *4 (S.D.N.Y. Sept. 11, 1991)). Indeed, it is appropriate to address the issue of absolute immunity before assessing whether the plaintiff has sufficiently alleged constitutional violations. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1148 n.4 (2d Cir. 1995).
Immunity may be asserted as a defense in an 12(b)(6) motion where “the facts supporting the defense appear[] on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004) (citing Pani, 152 F.3d at 74-75); see also Deronette, 2007 WL 951925, at *4 (“Courts may consider absolute immunity on a 12(b)(6) motion to dismiss when facts establishing the defense appear directly in the complaint.” (citing Hill v. City of New York, 45 F.3d 653, 663 (2d Cir. 1995))). In asserting an immunity defense at the pleading stage, “the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.” McKenna, 386 F.3d at 436.
The doctrine of “absolute immunity protects a prosecutor from § 1983 liability for virtually all acts, regardless of motivation, associated with his function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994); see also Root v. Liston, 444 F.3d 127, 131 (2d Cir. 2006) (describing
In determining whether a prosecutor is entitled to absolute immunity, courts apply a “functional” test, “looking to the function being performed rather than to the office or identity of the defendant.” Hill, 45 F.3d at 660 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). Under the functional test, prosecutors “are absolutely immune from claims arising from conduct ‘intimately associated with the judicial phase of the criminal process.‘” Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 357 (2d Cir. 2004) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). The functional test is objective. Hill, 45 F.3d at 662. Courts must “view the relevant circumstances as would a reasonable official in the claimant‘s position,” Giraldo, 694 F.3d at 165-66 (collecting cases), and consider “whether a reasonable prosecutor would view the acts challenged by the complaint as reasonably within the functions of a prosecutor,” id. at 166.
Absolute prosecutorial immunity covers “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273. This includes “the decision to bring charges against a defendant, presenting evidence to a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, No. 11 Civ. 316(PGG), 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York, No. 00 CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity even extends to “the falsification of evidence and the coercion of witnesses,” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir. 1980)), “the knowing use of perjured testimony,” “the deliberate
However, absolute immunity does not thwart every claim against prosecutors. See Pinaud, 52 F.3d at 1147. Under the functional test, “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 (2009) (quoting Imbler, 424 U.S. at 431 n.33); see Buckley, 509 U.S. at 273 (citing Burns, 500 U.S. at 494-96)). Investigative tasks beyond the scope of absolute immunity are those “normally performed by a detective or police officer.” Buckley, 509 U.S. at 273; see Kanciper v. Lato, 989 F. Supp. 2d 216, 228-29 (E.D.N.Y. 2013) (“Investigation, arrest, and detention have historically and by precedent been regarded as the work of police, not prosecutors, and ‘they do not become prosecutorial functions merely because a prosecutor has chosen to participate.‘” (quoting Day v. Morgenthau, 909 F.2d 75, 77-78 (2d Cir. 1990))). Where absolute immunity does not apply, a prosecutor is eligible only for qualified immunity. Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (citing Buckley, 509 U.S. at 273).
There is no bright line for absolute immunity based on the stage of a criminal proceeding. Moye, 2012 WL 2569085, at *6; see Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987). Absolute immunity generally applies “where some type of formal proceeding had been commenced or was being commenced by the conduct at issue.” Moye, 2012 WL 2569085, at *6 (quoting Tabor v. New York City, No. 11 CV 0195 FB, 2012 WL 603561, at *4 (E.D.N.Y. Feb. 23, 2012)); see Warney v. Monroe County, 587 F.3d 113, 123 (2d Cir. 2009) (noting that “a prosecutor‘s function depends chiefly on whether there is pending or in preparation a court proceeding in which the prosecutor
B. Application
In considering whether the Bronx DA Defendants are entitled to absolute prosecutorial immunity, the Court “must examine the role played by each . . . defendant to determine whether he or she performed a function for which absolute immunity is required.” Scotto v. Almenas, 143 F.3d 105, 111 (2d Cir. 1998) (citing Stewart v. Lattanzi, 832 F.2d 12, 13 (2d Cir. 1987) (per curiam)). Where a plaintiff fails to “plausibly state any claims against any Defendant, the Court need not address with granularity to which claims each Defendant is immune.” Dava v. City of New York, No. 15-cv-08575 (ALC), 2016 WL 4532203, at *4 (S.D.N.Y. Aug. 29, 2016).
1. ADA Karen
Buari alleges that the Bronx DA knowingly presented Griffiths’ false statements to the grand jury. (Am. Compl. ¶¶ 82-85.)4 Buari further alleges that ADA Karen induced witnesses to implicate Buari falsely, specifically, offering Connor, Seabrook, Holder, and Effort recommendations for leniency and threatening to charge Effort as an accessory to the Harris Murders. (Id. ¶¶ 112-20, 125, 129-37.) Buari also alleges that ADA Karen directed the Investigator Defendants to obtain withdrawals of Effort‘s and Robinson‘s recantation testimony. (Id. ¶ 156-61.)
Second, ADA Karen‘s alleged actions in inducing witnesses to implicate Buari falsely is also protected because “the falsification of evidence and the coercion of witnesses . . . [are] prosecutorial activities for which absolute immunity applies.” Taylor, 640 F.2d at 452 (citing Lee, 617 F.2d at 321-22); see Morris v. Martin, No. 16-CV-601, 2016 WL 4059209, at *6 (N.D.N.Y. June 21, 2016) (“Absolute immunity has been found to extend to such acts as falsification of evidence, coercion of witnesses, solicitation and subornation of perjured testimony, [and] withholding of evidence . . . .” (citing Taylor, 640 F.2d at 452)), report & recommendation
Finally, ADA Karen‘s alleged directing the Investigator Defendants to pressure Effort and Robinson to recant their recantations is also protected even though it occurred after Buari‘s conviction. In Warney, the Second Circuit held that “absolute immunity shields work performed during a post-conviction collateral attack, at least insofar as the challenged actions are part of the prosecutor‘s role as an advocate for the state.” 587 F.3d at 123. There, the court found that the failure by prosecutors to disclose exculpatory DNA results during post-conviction habeas proceedings was covered by absolute immunity because the actions were “integral to the overarching advocacy function of dealing with post-trial initiatives challenging an underlying criminal conviction.” Id. at 124. Similarly, ADA Karen‘s alleged actions were integral to defending Buari‘s conviction against a post-conviction attack and are therefore protected by absolute immunity. Id.; see Giraldo, 694 F.3d at 166; see also Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994) (holding that absolute immunity shielded prosecutor from claim that he withheld exculpatory evidence discovered after plaintiff‘s conviction because his “functions in representing the State in [plaintiff‘s] post-conviction motions and direct appeal very much implicated the judicial process“); Newsome v. City of Newark, No. 13-cv-06234 (CCC), 2014 WL 4798783, at
2. ADAs Lung, Coddington, and Mignola
Buari alleges that ADAs Lung, Coddington, and Mignola directed the Investigator Defendants to seek out Buari‘s witnesses and intimidate them not to testify. (Am. Compl. ¶ 201.) Buari also alleges that ADA Lung fervently opposed the Second 440.10 Motion (id. ¶¶ 219-25), then stalled for months before moving to dismiss the indictment (id. ¶¶ 228-42).
The actions of ADAs Lung, Coddington, and Mignola in connection with the Second 440.10 Motion are protected by absolute immunity because they were “performed in defending a conviction from collateral attack.” Warney, 587 F.3d at 122; see Giraldo, 694 F.3d at 166; Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003) (citing Houston v. Partee, 978 F.2d 362, 365-66 (7th Cir. 1992)). Buari‘s attempt to distinguish Warney and characterize the actions of ADAs Lung, Coddington, and Mignola as part of “a purportedly non-adversarial investigative review of Plaintiff‘s case” is unavailing. (Opp. 10.) The actions of ADAs Lung, Coddington, and Mignola were in response to, and in anticipation of contesting, Buari‘s Second 440.10 Motion. (See Am. Compl. ¶¶ 187-89.) Buari‘s holding the Second 440.10 Motion in abeyance while they investigated his claim does not disassociate their actions from the judicial phase of the criminal process. See Giraldo, 694 F.3d at 166; Ortiz v. Case, 782 F. App‘x 65, 67 (2d Cir. 2019) (summary order) (alteration in original) (holding that investigative acts by ADAs before plaintiff‘s motion to vacate was filed were protected by absolute immunity because they “would have been in
Finally, the absolute immunity to which ADA Mignola is entitled also reaches Buari‘s separate claim against her for supervisory liability. In Van de Kamp, the Supreme Court held that “supervisory prosecutors are immune in a suit directly attacking their actions related to an individual trial.” 555 U.S. at 346. It is immaterial that ADA Mignola‘s acts occurred in connection with post-trial proceedings. Her supervision was directly connected with the advocacy functions of the prosecutors. Id.; see Warney, 587 F.3d at 122-25; Bodie v. Morgenthau, 342 F. Supp. 2d 193, 205 (S.D.N.Y. 2004) (“To the extent the supervision or policies concern the prosecutorial decisions for which the ADAs have absolute immunity, then those derivative allegations against supervisors must also be dismissed on the ground that the supervising district attorneys have absolute immunity for the prosecution-related decisions of their subordinates . . . .” (quoting Sheff v. City of New York, No. 03 Civ.708 DLC, 2004 WL 594894, at *6 (S.D.N.Y. Mar. 24, 2004))); see also Ortiz v. Case, No. 16CV322V, 2018 WL 8620414, at *16 (W.D.N.Y. May 18, 2018) (finding that absolute immunity “also reaches plaintiff‘s claims for supervisory liability” (citing Van de Kamp, 555 U.S. 335)), aff‘d, 782 F. App‘x 65 (2d Cir. 2019) (summary order).5 Accordingly, the Court dismisses all claims against ADAs Lung, Coddington, and Mignola.
3. Investigator Defendants (Viggiano, Schiffman, and Wall)
Buari alleges that the Investigator Defendants coerced Robinson to recant his confession to committing the Harris Murders and attempted to coerce Effort to withdraw his recantation of his trial testimony implicating Buari. (Am. Compl. ¶¶ 157-61.) Critically, Buari alleges that they were “sent out” to do this by members of the Bronx DA‘s Office, including ADA Karen. (Id. ¶ 156.)
The Investigator Defendants are each entitled to absolute immunity. The Second Circuit has held that absolute prosecutorial immunity extends to persons assisting and working under the direction of prosecutors, when they perform functions closely tied to the judicial process. Hill, 45 F.3d at 660 (citing Davis v. Grusemeyer, 996 F.2d 617, 630 n.28 (3d Cir. 1993), overruled on other grounds by Rolo v. City Investing Co. Liquidating Tr., 155 F.3d 644 (3d Cir. 1998)); accord Bernard, 356 F.3d at 502. In seeking withdrawals of Effort‘s and Robinson‘s recantations, the Investigator Defendants were performing prosecutorial functions—protecting Buari‘s guilty verdict from a post-conviction collateral attack—under the direction of ADA Karen. Thus, the absolute prosecutorial immunity that protects ADA Karen extends to the Investigator Defendants. See Hamilton v. City of New York, No. 15-CV-4574 (CBA) (SJB), 2019 WL 1452013, at *13 (E.D.N.Y. Mar. 19, 2019) (extending absolute immunity to an investigator of the district attorney‘s office who sought to procure false testimony from a witness); Jackson v. Seewald, No. 11 Civ. 5826(LAK)(JCF), 2013 WL 149341, at *7 (S.D.N.Y. Jan. 14, 2013) (extending absolute immunity to investigators of the district attorney‘s office); see also O‘Neal v. Morales, 679 F. App‘x 16, 18
II. Malicious Prosecution (Counts I and VIII)
Buari brings causes of action against the NYPD Defendants for malicious prosecution under
A. Applicable Law
To state a claim for malicious prosecution under
With respect to the second element, favorable termination, different standards govern a
The
No claim for malicious prosecution can survive if there was probable cause for the prosecution. Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003). Probable cause is “described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.” Boyd, 336 F.3d at 76 (citing Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)); see also Mejia v. City of New York, 119 F. Supp. 2d 232, 254 (E.D.N.Y. 2000) (noting that “the relevant probable cause determination is whether there was
Finally, malice requires a showing “that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500, 502–03, 406 N.Y.S.2d 443, 377 N.E.2d 975 (1978)). “A lack of probable cause generally creates an inference of malice.” Boyd, 336 F.3d at 78 (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997)); see also Sclafani v. Spitzer, 734 F. Supp. 2d 288, 299 (E.D.N.Y. 2010) (noting that malice may reasonably be inferred where probable cause is “totally lacking” (quoting Wilson v. McMullen, No. 07–CV–948, 2014 WL 1268055, *6 (E.D.N.Y. Mar. 30, 2010)))). “Falsifying evidence is sufficient to show malice.” Bailey, 79 F. Supp. 3d at 451 (collecting cases).
B. Application
Buari has sufficiently pleaded each element of malicious prosecution. First, Buari has alleged that Dets. Dietz and Tracy initiated his prosecution by knowingly inducing Griffiths to state falsely that Buari committed the Harris Murders, which resulted in Buari‘s arrest and indictment. (Am. Compl. ¶¶ 76–78, 80, 82–85.) On a
Furthermore, Buari has plausibly alleged that Dets. Price, Gottwin, Neenan, and Fortune caused a continuation of his prosecution by inducing witnesses to testify falsely. (Am. Compl. ¶¶ 104, 108–20.) Buari alleges that the detectives apprised ADA Karen of the arrangement, that Dets. Price, Fortune, and Neenan testified falsely against Buari at the suppression hearing, and that Robinson, Effort, and the other witnesses testified falsely against Buari at trial. (Id. ¶¶ 121–38.) These allegations, accepted as true, support a reasonable inference that the prosecution would not have continued had the detectives not testified falsely and induced the witnesses to testify falsely. See Davis v. City of New York, 296 F.R.D. 127, 130 (E.D.N.Y. 2013) (finding that allegations that officers testified falsely against plaintiff could satisfy the continuation element (citing Manganiello, 612 F.3d at 163)).
Defendants argue that the state court‘s exercise of independent judgment in indicting, convicting, and denying post-trial motions breaks the chain of causation. (Mot. 17.) But where, as here, police officers allegedly deceive and mislead subsequent decision-makers with false information, the chain of causation remains intact because the officers are charged with reasonably foreseeing that their actions will influence the subsequent decisions resulting in a deprivation of
Second, the totality of the circumstances surrounding the dismissal of Buari‘s indictment supports a plausible inference of actual innocence sufficient to satisfy the second prong of Buari‘s malicious prosecution claim under
Defendants argue that the state court “denied th[e] part of the Second § 440 Motion seeking dismissal on the grounds of actual innocence.” (Mot. 16.) Indeed, the state court found that Buari “failed to establish his innocence by clear and convincing evidence.” (Buari, slip op. at 23, Ex. A to Scheiner Decl.) But the standard for favorable termination does not require a showing of innocence by clear and convincing evidence. See Hincapie, 434 F. Supp. 3d at 71, 73 (rejecting identical argument and noting that “neither an acquittal nor a finding of actual innocence by clear and convincing evidence is necessary“). At the
Third, for purposes of a motion to dismiss at the pleading stage, Buari‘s allegations that Dets. Dietz and Tracy induced Griffiths to testify falsely before the grand jury (Am. Compl. ¶¶ 76, 84–85) must be accepted as true, Iqbal, 556 U.S. at 678; Oakley, 980 F.3d at 283, and, as such, overcome at this stage the presumption of probable cause associated with the grand jury indictment, see Bouche v. City of Mount Vernon, No. 11–CV–5246, 2013 WL 322613, at *6 (S.D.N.Y. Jan. 28, 2013) (“[I]f a defendant knows that witness statements are false or coerced, this will defeat probable cause.“); Richards v. City of New York, No. 97–CV–7990, 2003 WL 21036365, at *14 (S.D.N.Y. May 7, 2003) (noting that an indictment “obtained through improper means” is stripped of its presumptive force (citing United States v. Williams, 504 U.S. 36, 51–52 (1992))); see also Ying Li v. City of New York, 246 F. Supp. 3d 578, 612 (E.D.N.Y. 2017) (deeming presumption of probable cause rebutted where plaintiff alleged that police officers “failed to obtain or disclose evidence inconsistent with plaintiff‘s guilt, did not document or inform the district attorney‘s office of exculpatory evidence, . . . and fabricated oral statements of witnesses“); Bailey, 79 F. Supp. 3d at 457 (finding that police officers’ alleged coercion of individuals whose testimony was used to secure an arrest warrant rebutted presumption of probable cause).
Finally, because Buari‘s allegations plausibly rebut the presumption of probable cause created by the grand jury indictment, the Court may reasonably infer malice. See Lowth, 82 F.3d at 573 (noting that “malice may be inferred from the lack of probable cause” (quoting Conkey v. State, 74 A.D.2d 998, 999, 427 N.Y.S.2d 330 (4th Dep‘t 1980))); Rounseville v. Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (noting that “the existence of malice may be inferred from a finding that defendants lacked probable cause to initiate criminal proceedings“). Buari‘s allegations that the NYPD Defendants falsified evidence also satisfy the malice element. See Grant v. City of New York, No. 15-CV-3635 (ILG) (ST), 2019 WL 1099945, at *9 (E.D.N.Y. Mar. 8, 2019) (finding that malice is shown through “submission of falsified evidence or withholding of material evidence” (citing Torres v. Jones, 26 N.Y.3d 742, 762, 27 N.Y.S.3d 468, 47 N.E.3d 747 (2016))); see also Manganiello, 612 F.3d at 164 (finding that malice “could easily be inferred . . . [from the detective‘s] willingness to coerce an inculpatory statement from one unwilling person in exchange
III. Section 1983 Due Process, or Denial of Fair Trial (Count II)
Buari asserts a
A. Applicable Law
“It is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.” Harris v. City of New York, 222 F. Supp. 3d 341, 351 (S.D.N.Y. 2016) (quoting Zahrey, 221 F.3d at 355). To state a due process claim based on fabrication of evidence, the plaintiff must show that: “an (1) investigating official (2) fabricates evidence (3) that is likely to influence a jury‘s decision, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty as a result.” Bailey, 79 F. Supp. 3d at 446 (quoting Jovanovic v. City of New York, 486 F. App‘x 149, 152 (2d Cir. 2012) (summary order)); see Ricciuti, 124 F.3d at 130 (collecting cases). While a fair trial claim is distinct from a malicious prosecution claim, Bailey, 79 F. Supp. 3d at 446; see Morse v. Spitzer, No. 07–CV–4793 (CBA)(RML), 2012 WL 3202963, at *5–6 (E.D.N.Y. Aug. 3, 2012), a plaintiff may bring “claims for both malicious prosecution and denial of his fair right to trial based on the same alleged fabrication of evidence,” Brandon v. City of New York, 705 F. Supp. 2d 261, 276 (S.D.N.Y. 2010) (citing Ricciuti, 124 F.3d at 130–31; and Jovanovic v. City of New York, No. 04 Civ. 8437(PAC), 2006 WL 2411541, at *13 (S.D.N.Y. Aug. 17, 2006)).
As Defendants correctly argue, “there is no constitutional right to an adequate investigation.” Newton v. City of New York, 566 F. Supp. 2d 256, 278 (S.D.N.Y. 2008) (citing Campbell v. Giuliani, No. 99 Civ. 2603, 2000 WL 194815, at *3 n. 6 (E.D.N.Y. Feb. 16, 2000)); see Harrington v. County of Suffolk, 607 F.3d 31, 35 (2d Cir. 2010). Thus, “[a] police officer‘s failure to pursue a particular investigative path is not a constitutional violation.” Schweitzer v. Brunstein, No. 16-CV-1172 (RRM) (LB), 2016 WL 4203482, at *2 (E.D.N.Y. Aug. 9, 2016) (collecting cases). Accordingly, “a ‘failure to investigate’ is not independently cognizable as a stand-alone claim” under
B. Application
Buari has sufficiently pleaded a claim for denial of a fair trial based on an alleged fabrication of evidence. As discussed above, Buari alleges that Dets. Dietz and Tracy coerced Griffiths into stating falsely that Buari committed the Harris Murders and forwarded this information to the Bronx DA to secure the indictment. (Am. Compl. ¶¶ 76–80, 82–85.) He also alleges that Dets. Price, Gottwin, Neenan, and Fortune, despite having reason to believe that
Defendant‘s three arguments to the contrary are without merit. (See Mot. 18–20.) First, at the pleading stage, Buari need not provide actual proof of coercion or falsity; he need only make
Because there is no constitutional right to an adequate investigation, and therefore a claim for failure to investigate is not independently cognizable under
Buari brings a separate cause of action under
A. Applicable Law
“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). A police officer can be liable for failure to intercede when “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer‘s position would know that the victim‘s constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citing O‘Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); and McLaurin v. New Rochelle Police Officers, 373 F. Supp. 2d 385, 395 (S.D.N.Y. 2005)). “[A] failure to intervene claim is contingent only on the underlying claim.” Arbuckle v. City of New York, 14-CV-10248 (ER), 2016 WL 5793741, at *14 (S.D.N.Y. Sept 30, 2016) (citing Matthews v. City of New York, 889 F. Supp. 2d 418, 443–44 (E.D.N.Y. 2012)). Accordingly, “there can be no failure to intervene claim without a primary constitutional
A police officer may be liable for failure to intercede only where he “observes or has reason to know that [other] officers violated someone‘s constitutional rights.” Fredricks v. City of New York, No. 12 Civ. 3734(AT), 2014 WL 3875181, at *12 (S.D.N.Y. July 23, 2014) (citing Anderson, 17 F.3d at 557)). A police officer cannot be liable on a failure to intercede theory, however, if he participates directly in the alleged constitutional violation. Ulerio v. City of New York, No. 18 Civ. 2155 (GBD), 2018 WL 7082155, at *7 (S.D.N.Y. Dec. 20, 2018) (quoting Sanabria, 2016 WL 4371750, at *5). Put simply, “defendants cannot be liable for both the underlying constitutional deprivation and a failure to intervene to stop themselves from committing that violation.” Marom v. City of New York, No. 15-cv-2017 (PKC), 2016 WL 916424, at *19 (S.D.N.Y. Mar. 7, 2016).
B. Application
Buari has plausibly alleged a
V. Conspiracy (Count IV)
Buari brings a conspiracy claim against the NYPD Defendants under
A. Applicable Law
To state a claim for conspiracy under
B. Application
The allegations in the Amended Complaint do not support one large conspiracy among the NYPD Defendants, ADA Karen, Griffiths, Robinson, Effort, Johnson, Seabrook, Holder, and Connor, as Buari alleges.8 Buari does not allege any contact or communication between (1) Dets. Dietz and Tracy and Dets. Price, Gottwin, Neenan, and Fortune, ADA Karen, or the witnesses who testified at trial; (2) Griffiths and Dets. Price, Gottwin, Neenan, and Fortune, ADA Karen, or the
To the extent Buari alleges a “wheel,” or “hub-and-spoke,” conspiracy involving the NYPD Defendants, ADA Karen, Griffiths, Robinson, Effort, Johnson, Seabrook, Holder, and Connor, that theory also fails. In a wheel conspiracy, “a single person or group (the ‘hub’) deal[s] individually with two or more other persons or groups (the ‘spokes’).” United States v. Evans, 970 F.2d 663, 668 n.8 (10th Cir. 1992) (alteration in original). But “‘without the rim of the wheel to enclose the spokes,’ a single, wheel conspiracy cannot exist but instead is a series of multiple conspiracies between the common defendant and each of the other defendants.” United States v. Swafford, 512 F.3d 833, 842 (6th Cir. 2008) (quoting Kotteakos v. United States, 328 U.S. 750, 755 (1946)); see Dickson v. Microsoft Corp., 309 F.3d 193, 203–04 (4th Cir. 2002) (describing a rimless wheel conspiracy). In addition, a wheel conspiracy cannot exist if the individual spokes are unaware of the existence of other spokes. United States v. Chandler, 388 F.3d 796, 808 (11th Cir. 2004) (quoting United States v. Perez, 489 F.2d 51, 60 n.11 (5th Cir. 1973)).
Here, the Amended Complaint plausibly could be read to suggest that the NYPD Defendants served as the hub and ADA Karen, Griffiths, Robinson, Effort, Johnson, Seabrook, Holder, and Connor each served as spokes. (See Am. Compl. ¶ 290.) But it is not clear how the NYPD Defendants can collectively serve as the hub despite no alleged communication between Dets. Dietz and Tracy and Dets. Price, Gottwin, Neenan, and Fortune. The Amended Complaint
VI. Qualified Immunity
Defendants argue that the NYPD Defendants are entitled to qualified immunity because there was probable cause to arrest and prosecute Buari, they acted on information from a complaining witness, and the Bronx DA decided to indict and prosecute Buari. (Mot. 26–27.) Buari responds that qualified immunity is not appropriate by reason of his allegations that the NYPD Defendants manufactured probable cause by fabricating evidence. (Opp. 27.)
“The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). A claim of qualified immunity presents three issues: “(1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was ‘clearly established’; and (3) even if the right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 133–34 (2d Cir. 2010)). “To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent.” District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 589 (2018). A right is clearly established when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix, 577 U.S. at 11 (quoting Reich v. Howards, 566 U.S. 658, 664 (2012)). Qualified immunity “do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
B. Application
The NYPD Defendants are not entitled to qualified immunity with respect to Buari’s claims at this time. Buari’s surviving claims—malicious prosecution, denial of a fair trial based on fabrication of evidence, and failure to intercede—arise from the same factual allegations: the NYPD Defendants coerced witnesses to testify falsely and forwarded that evidence to prosecutors, causing a deprivation of Buari’s liberty.
Ricciuti is dispositive of Defendants’ qualified immunity defense. In 1993, when the alleged misconduct began, Buari’s right not to be prosecuted based on fabricated evidence was clearly established such that every reasonable officer would understand that any actions to falsify evidence violated that right. See Ricciuti, 124 F.3d at 130; see also Zahrey, 221 F.3d at 355 (“It is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.” (collecting cases)); Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994) (“It is now far too late in our constitutional history to deny that a person has a clearly established right not to be arrested without probable cause.” (citing Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993); and Golino, 950 F.2d at 870)). Indeed, Defendants make no attempt to argue that their alleged conduct was objectively reasonable despite Buari’s clearly established right not to be prosecuted based on evidence fabricated by police officers.
Defendants’ arguments in support of their qualified immunity defense are unavailing on a motion to dismiss. First, Buari has pleaded sufficiently a lack of probable case. Supra Analysis, Section II.B. Second, the NYPD Defendants did not act on the basis of information from witnesses; rather, it is alleged that they coerced individuals to serve as witnesses and testify falsely
VII. Municipal Liability Under Section 1983 and Monell (Counts VI and VII)
Buari brings two
Count VI of the Amended Complaint alleges, first, that the NYPD maintained an unofficial practice of initiating arrests and prosecutions without probable cause, coercing false testimony and statements for use in criminal proceedings, failing to correct inaccurate or misleading evidence and testimony, and failing to fulfill Brady obligations. (Am. Compl. ¶ 305.a.) Second, Count VI alleges that the NYPD demonstrated deliberate indifference in failing to train, supervise, and discipline employees with respect to these matters. (Id. ¶¶ 303–19.) To plead these theories, Buari relies on (1) the 1994 Report of the Mollen Commission, which documented corruption in the NYPD, see City of New York, Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, Commission Report (1994) (“Mollen Commission Report”); (2) a 1987 report of the Mayor’s Advisory Committee on Police Management and Personnel Policy (“Mayor’s Committee Report”); and (3) cases before the NYPD Civil Complaint Review Board (“CCRB”). (Id. ¶¶ 307–19.)
Defendants argue that Buari has failed to allege municipal policies or customs. (Mot. 22–26.) Specifically, Defendants argue that the Mollen Commission Report cannot support Buari’s claims with respect to the NYPD and that the alleged number of similar incidents of misconduct by the Bronx DA is too statistically insignificant to demonstrate a pattern of misconduct. (Mot. 24–25.) Finally, Defendants argue that Buari has failed to allege a specific defect in the training programs of the NYPD and Bronx DA. (Mot. 26.)
A. Applicable Law
Municipalities cannot be held vicariously liable for the acts of their employees under
A plaintiff can plead a “policy” or “custom” by alleging one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.
Jones v. Westchester County, 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon, 705 F. Supp. 2d at 276–77); see Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 13 (2d Cir. 2015) (summary order); Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012). In addition, to prevail on a Monell claim, a plaintiff must also show “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“Governments should be held responsible when, and only when, their official policies cause their employees to violate another person’s constitutional rights.”).
A “policy” or “custom” can be demonstrated in a variety of ways. One of the ways courts have found allegations sufficient to establish a policy or custom is when “an act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker . . . [but] is so widespread as to have the force of law.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (citing Monell, 436 U.S. at 690–91); see Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that “persistent and widespread” practices of city officials may constitute a municipal custom (quoting Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870–71 (2d Cir. 1992))). A practice is “widespread” when it is “common or prevalent throughout the [entity].” Gleeson v. County of Nassau, No. 15-CV-6487 (AMD) (RL), 2019 WL 4754326, at *16 (E.D.N.Y. Sept. 30, 2019) (alteration in original) (quoting Fowler v. City of New York, No. 13-CV-2372, 2019 WL 1368994, at *14 (E.D.N.Y. Mar. 26, 2019)). Under this category, “a policy maker indirectly cause[s] the misconduct of a subordinate municipal employee by acquiescing in a longstanding practice or custom which may fairly be said to represent official policy.” Miller v. County of Nassau, 467 F. Supp. 2d 308, 314 (E.D.N.Y. 2006) (citing Monell, 436 U.S. at 694; and Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000)).
To demonstrate a de facto policy or custom through a widespread practice, a plaintiff must “show that the policymaker was aware of a subordinate’s unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.” Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (citing Sorlucco, 971 F.2d at 870–71). A plaintiff “may adequately plead the existence of de facto customs or policies based on governmental reports documenting constitutional deficiencies or misconduct,” Felix v. City of New York, 344 F. Supp. 3d 644, 658 (S.D.N.Y. 2018) (collecting cases), if such reports are “sufficiently connected to the specific facts of the case,” Gomez v. City of New York, No. 16-CV-1274 (NGG) (LB), 2017 WL 1034690, at *11 (E.D.N.Y. Mar. 16, 2017). A plaintiff may also plead the existence of de facto customs or policies “by citing to complaints in other cases that contain similar allegations.” Gaston v. Ruiz, No. 17-CV-1252 (NGG) (CLP), 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018) (citing Osterhoudt v. City of New York, No. 10 CV 3173(RJD)(RML), 2012 WL 4481927, at *2 (E.D.N.Y. Sept. 27, 2012)). Such complaints must involve factually similar misconduct, be contemporaneous to the misconduct at issue in the plaintiff’s case, and result in an adjudication of liability. See, e.g., Isaac, 2018 WL 5020173, at *17 (finding that other court cases could not establish a de facto
Municipal liability can also be based on a showing of “deliberate indifference” to a recurring situation likely to result in a constitutional violation. In such circumstances, the policy or custom requirement is satisfied “where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” Reynolds, 506 F.3d at 192 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); and Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006)). Such a pattern may constitute a policy or custom “if sufficiently persistent or widespread as to acquire the force of law.” Id. (collecting cases). The need to act must be “so obvious, and the inadequacy of current practices so likely to result in a deprivation of federal rights, that the municipality or official can be found deliberately indifferent to the need.” Id. (citing Canton, 489 U.S. at 390). Three requirements must be met before a municipality’s failure to act amounts to deliberate indifference: “defendants knew to a moral certainty that the City would confront a given situation; the situation presented the City with a difficult choice or there was a history of its mishandling the situation; and the wrong choice by the City would frequently cause the deprivation of plaintiffs’ rights.” Id. (citing Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992)); Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007).
Liability for deliberate indifference can be based upon a failure to train or a failure to supervise or discipline. Amnesty America, 361 F.3d at 127. Courts must analyze these theories
Under the failure to train theory, a municipality may be liable “when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights . . . [but] the policymakers choose to retain that program.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing Brown, 520 U.S. at 407). Recurring civil rights complaints can put a municipality on notice of deficiencies in its training program. Breton, 404 F. Supp. 3d at 818 (citing Felix, 344 F. Supp. 3d at 661–62). There is no bright-line rule for how many civil rights complaints there must be, or how recent the complaints must be, to put a municipality on notice. Tieman v. City of Newburgh, No. 13 Civ. 4178(KMK), 2015 WL 1379652, at *20 (S.D.N.Y. Mar. 26, 2015).
Furthermore, the plaintiff must “identify a specific deficiency in the city’s training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation.” Alwan v. City of New York, 311 F. Supp. 3d 570, 579 (E.D.N.Y. 2018) (quoting Wray v. City of New York, 490 F.3d 189, 196 (2d Cir. 2007)). The Second Circuit has suggested that a plaintiff “need only plead that the city’s failure to train caused the constitutional violation” because “[i]t is unlikely that a plaintiff would have information about the city’s training programs or about the cause of the misconduct at the pleading stage.” Amnesty America, 361 F.3d at 130 n.10. But after Twombly and Iqbal, courts generally require that a plaintiff “provide more than a simple recitation of their theory of liability, even if that theory is based on a failure to train.’” Tieman, 2015 WL 1379652, at *22 (collecting cases); see Collins, 923 F. Supp. 2d at 478 (noting that under Iqbal, a plaintiff “must allege, not only a viable [failure to train] theory, but facts that render the theory plausible”). Accordingly, a plaintiff must “allege
Under the failure to supervise or discipline theory, a plaintiff must show that “the municipality failed to adequately supervise or discipline its employees (thereby implicitly encouraging or ratifying their unlawful conduct) . . . [and] that such a failure of supervision or discipline was tantamount to deliberate indifference.” Alwan, 311 F. Supp. 3d at 578 (collecting cases). Deliberate indifference is shown when “the need for more or better supervision to protect against constitutional violations was obvious.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (citing Canton, 489 U.S. at 390). “An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.” Id. (citing Ricciuti, 941 F.2d at 123; and Fiacco v. City of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986)). “[T]here is no requirement that complaints result in a formal finding of misconduct for such complaints to support findings of failure to supervise.” Felix, 344 F. Supp. 3d at 662 (citing Manigault v. City of New York, No. 11-CV-4307 (AJN), 2012 WL 13049173, at *8–9 (S.D.N.Y. Apr. 19, 2012)); see Fiacco, 783 F.2d at 328 (“The fact that none of the claims had yet been adjudicated in favor of the claimant was not material; if the City’s efforts to evaluate the claims were so superficial as to suggest that its official attitude was one of indifference to the truth of the claim, such an attitude would bespeak an indifference to the rights asserted in those claims.”).
1. NYPD
With respect to the NYPD, the allegations in the Amended Complaint, accepted as true, plausibly suggest a de facto policy based on a widespread practice of unconstitutional investigative techniques and a causal link between that practice and Buari’s alleged constitutional injuries. Quoting findings in the Mollen Commission Report, Buari alleges that at the time of his 1993 arrest and 1995 prosecution “there [wa]s a strong institutional incentive to allow corruption efforts to fray and lose priority”; “police perjury and falsification of official records [wa]s probably the most common form of police corruption”; the practice of police falsifications “[wa]s widely tolerated by corrupt and honest officers alike, as well as their supervisors”; and officers reported that “supervisors knew or should have known about falsified versions of searches and arrests and never questioned them.” (Am. Compl. ¶ 308.) These allegations, which the Court is required to accept as true for purposes of Defendants’ Motion to Dismiss, and the findings in the Mollen Commission Report, plausibly allege a practice so widespread that it may be inferred at this stage of the litigation that when the NYPD allegedly violated Buari’s rights, policymakers were aware of “subordinate[s’] unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.” Amnesty America, 361 F.3d at 126 (citing Sorlucco, 971 F.2d at 870–71).9
Defendants’ objection to Buari’s reliance on the Mollen Commission Report is misplaced. (Mot. 24; see Reply 9–10.) Courts that have rejected reliance on government reports like the Mollen Commission Report have done so because such reports bore no connection to the specific
Here, accepting his allegations as true, as the Court must, Buari has plausibly alleged a connection between the alleged misconduct by the NYPD Defendants in his case and the findings in the Mollen Commission Report. Buari’s allegations of misconduct by the NYPD—inter alia, testifying falsely, coercing witnesses to do the same, and permitting Robinson to sell narcotics
Buari has also plausibly alleged a failure by the NYPD to train, supervise, and discipline. As a threshold matter, Buari plausibly has alleged deliberate indifference. (See Am. Compl. ¶¶ 306–07.) First, NYPD officials clearly knew that police officers would initiate arrests and prosecutions, speak with witnesses, and possess Brady material because these are basic aspects of a police officer’s job. See Bertuglia, 839 F. Supp. 2d at 738 (citing Walker, 974 F.2d at 300). Second, Buari alleges that there is a history of NYPD officers mishandling arrests, witness interviews, and production of Brady materials (Am. Compl. ¶¶ 306–12), and similar misconduct is documented in the Mollen Commission Report. See, e.g., Mollen Commission Report 36–43; see also Walker, 974 F.2d at 300 (allowing plaintiff to pursue discovery “to determine whether there was a practice of condoning perjury (evidenced perhaps by a failure to discipline for perjury) or a pattern of police misconduct sufficient to require the police department to train and supervise police officers to assure they tell the truth”). Third, it is reasonable to infer that the alleged failure to train, supervise, and discipline subordinate officers with respect to these matters could cause
With respect to his failure to train theory, Buari, relying on the Mollen Commission Report and the Mayor’s Committee Report, alleges that “police perjury and falsification of official records [wa]s probably the most common form of police corruption” and that “the NYPD ha[d] been on notice [of] inadequate . . . police officers joining the force.” (Am. Compl. ¶¶ 308.b–309.) These allegations, together with the findings in the Mollen Commission Report, accepted as true, plausibly allege a “pattern of similar constitutional violations” and that training was “deficient in a similar respect.” Connick, 563 U.S. at 62; see, e.g., Colon v. City of Rochester, 419 F. Supp. 3d 586, 606 (W.D.N.Y. 2019) (collecting cases); White v. City of New York, No. 13 Civ. 7421(KPF), 2015 WL 4601121, at *8 (S.D.N.Y. July 31, 2015).
Collins, a strikingly similar case, is instructive. 923 F. Supp. 2d 462. There, the plaintiff was released after sixteen years in prison when it was discovered that, in 1994, police officers coerced a witness to falsely implicate him and later threatened the witness not to recant the false statement. Id. at 466–67. The court held that the plaintiff, relying on the Mollen Commission Report, plausibly stated a claim for failure to train officers on Brady obligations and the impropriety of coercing witnesses to testify falsely. Id. at 477–79. The court noted that “[a]n entire section of the [Mollen Commission] Report is devoted to ‘Perjury and Falsifying Documents,’ which is described as ‘a serious problem facing the Department,’” and that the Mollen Commission Report describes testimonial and documentary perjury as “probably the most common form of police corruption facing the criminal justice system today.” Id. at 479.
Moreover, Buari has alleged specific deficiencies in the NYPD’s training program: the failure to train officers not to initiate arrests and prosecutions without probable cause, not to coerce witnesses to testify falsely, to correct false testimony, and to disclose Brady material. (Am. Compl. ¶ 305.) When accepted as true, these alleged deficiencies, albeit general, plausibly state a claim. See Felix, 344 F. Supp. 3d at 661 (denying motion to dismiss and where plaintiff alleged that NYPD failed to incorporate crisis intervention in its training). As the Second Circuit has emphasized, at the pleading stage, Buari “cannot be expected to know the details of [the NYPD’s] training programs prior to discovery.” Simms v. City of New York, 480 F. App’x 627, 631 n.4 (2d Cir. 2012) (summary order) (quoting Amnesty America, 361 F.3d at 130 n.10). By alleging facts that could support an inference of a pattern of similar constitutional violations, Buari has satisfied Iqbal’s plausibility requirement. Id.; Collins, 923 F. Supp. 2d at 478. The Court notes, however, that after discovery, Buari “is expected to proffer evidence from which a reasonable factfinder could conclude that the training program was actually inadequate, and that the inadequacy was closely related to the violation.” Amnesty America, 361 F.3d at 130 n.10.
With respect to Buari’s failure to supervise and discipline theory, the alleged deficiencies in the NYPD’s misconduct review procedures reasonably support an inference that the alleged failure to investigate complaints and discipline misconduct rise to the level of deliberate
While the misconduct underlying the uninvestigated complaints and undisciplined cases is unknown, it is at least plausible that it is similar to Buari’s allegations and that the alleged failure
2. Bronx DA
With respect to the Bronx DA, Buari has not plausibly alleged a policy or custom based on a widespread practice of similar prosecutorial misconduct. Buari alleges that the Bronx DA unofficially permitted prosecutors to initiate prosecutions without probable cause, use false or
Having carefully reviewed each case cited by Buari (id.),10 the Court finds that Buari has not adequately pleaded a de facto policy or custom. Buari correctly notes that the cases involve
Buari, however, has sufficiently pleaded a failure by the Bronx DA to train, discipline, and supervise, relying on a plausibly alleged deliberate indifference theory. First, Bronx DA officials plainly knew, to a moral certainty, that ADAs would make probable cause assessments, offer testimonial evidence in court, confront false or misleading testimony, and acquire Brady material because these are basic facets of an ADA s job. Bertuglia, 839 F. Supp. 2d at 738 (citing Walker, 974 F.2d at 300). Second, as discussed below, Buari plausibly alleges a history of ADAs mishandling these matters. Third, it is reasonable to infer that the failure to train, supervise, and discipline prosecutors in connection with these matters likely would cause recurrent constitutional violations. See Walker, 974 F.2d at 300 ([W]ithholding Brady material will virtually always lead to a substantial violation of constitutional rights. ); Bertuglia, 839 F. Supp. 2d at 739 ([W]here an assistant district attorney commits misconduct before a grand jury that results in an indictment based on insufficient evidence, or violates their obligations under Brady, those actions will frequently result in the violation of citizens constitutional rights. ).
With respect to his failure to train theory, drawing reasonable inferences in Buari s favor, as the Court must, Iqbal, 556 U.S. at 678; Oakley, 980 F.3d at 283, Buari s list of judicial decisions finding similar prosecutorial misconduct plausibly permits a reasonable inference that Bronx DA policymakers should have been aware or were on notice of training deficiencies with respect evidence presentation and Brady obligations. (Am. Compl. Ex. A.) The list of decisions Buari cites include five vacated convictions in 1993 and 1994, the two years before Buari s prosecution, and several others before then. Supra note 10; see Fiacco, 783 F.2d at 329-32 ( Whether or not the claims had validity, the very assertion of a number of such claims put the City on notice . . . . );
In addition, Buari identifies specific areas where training in the Bronx DA s Office allegedly was deficient: initiating prosecutions without probable cause, using false or unreliable testimony or statements in criminal proceedings, failing to correct such testimony or statements, and failing to fulfill Brady obligations. (Id. ¶ 326.a.) Buari further alleges that the Bronx DA trained prosecutors in blatantly unlawful practices to prevent disclosure of evidence favorable to criminal defendants under Brady. (Am. Compl. ¶ 334.) Since Buari cannot be expected to know particulars of Bronx DA training policies prior to discovery, see Amnesty America, 361 F.3d at 130 n.10, the Court finds that these allegations, accepted as true at the 12(b)(6) stage, plausibly state a claim, see supra Analysis, Section VII.B.1. Finally, it is plausible that the alleged training deficiencies led to Buari s injury given the factual similarities in the judicial decisions Buari cites
Buari has also sufficiently pleaded a Monell claim based on a failure to supervise and discipline theory. As discussed above, Buari has plausibly alleged that the Bronx DA was on notice of prosecutorial misconduct similar to what Buari has alleged. He has also alleged a failure to investigate and discipline the misconduct. Specifically, Buari alleges that the Bronx DA s Office failed to conduct internal disciplinary investigations; discipline the prosecutors who were known to engage in such misconduct . . . ; or refer such individuals for possible discipline. (Am. Compl. ¶ 329.) More specifically, he alleges that in approximately 72 cases where courts had found prosecutorial misconduct occurred (including the use of and failure to correct false or misleading testimony and Brady violations), officials could only identify one prosecutor from between 1975 and 1996 who had been disciplined in any respect. (Id. ¶ 334.) Furthermore, Buari alleges that personnel files for [Bronx DA] cases where prosecutor misconduct had been found from between 1989 through 2006 . . . [revealed no] documentary evidence of disciplinary action ever being taken against the prosecutors. (Id. ¶ 335.) In short, Buari plausibly alleges a conscious disregard for prosecutorial misconduct and an absence of disciplinary action. Accepting these allegations as true, Buari has plausibly stated a claim for failure to supervise and discipline tantamount to deliberate indifference. Alwan, 311 F. Supp. 3d at 578 (collecting cases); see Bertuglia, 839 F. Supp. 2d at 738 (finding deliberate indifference where plaintiff pleaded that the City has a longstanding, de facto policy of never disciplining prosecutors who commit specified types of prosecutorial misconduct ); cf. Walker, 974 F.2d at 298 (noting that the absence of a policy can
In sum, Buari s Monell claim relating to the Bronx DA fails under a widespread practice theory but survives under a theory of failure to train, supervise, and discipline.
VIII. Remaining State Law Claims (Counts X and XI)
Buari brings a due process claim under the New York State Constitution against the NYPD Defendants (Count XI). (Am. Compl. ¶¶ 359-63). Separately, he seeks to hold the City liable for his state law malicious prosecution and state constitutional due process claims under a theory of respondeat superior (Count X). (Id. ¶¶ 357, 363.) Buari alleges that the NYPD Defendants acted as agents of the City, within the scope of their employment, and in furtherance of the City s law enforcement functions. (Id. ¶ 356.) Defendants argue that Buari s state claims are duplicative of his federal claims and should therefore be dismissed. (Mot. 28 & n.20.) Buari responds that these claims should proceed because
Courts in this Circuit have uniformly held that no private right of action exists for violations of the New York State Constitution where the plaintiff has an alternative remedy under
[U]nlike cases brought under
Buari cannot maintain his state constitutional due process claim (Count XI) against the NYPD Defendants because
Buari s state constitutional due process claim survives, however, insofar as he seeks to hold the City liable under the doctrine of respondeat superior. See Logan v. City of Schenectady, 1:18-cv-01179 (BKS/CFH), 2019 WL 3803631, at *9 (N.D.N.Y. Aug. 13, 2019) (dismissing state constitutional claims against individual defendants because
IX. Leave to Amend
In his opposition to the Motion to Dismiss, Buari requests leave to amend further to correct any deficiencies identified by the Court in ruling on the Motion. (Opp. 28.)
A. Applicable Law
The Second Circuit has stated, When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint. Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) (citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990)). Nevertheless, a district court has the discretion to deny leave to amend where there is no indication from a liberal reading of the complaint that a valid claim might be stated. Perri v. Bloomberg, No. 11-CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). In other words, leave to amend may be denied if an amendment would be futile—that is, a proposed claim could not withstand a motion to dismiss pursuant to
B. Application
As a preliminary matter, Buari asserts claims, many against similar groupings of Defendants, on alternate theories. In addition, the Court has given the Amended Complaint a
Buari s claims, in significant measure, survive the Motion to Dismiss. However, certain claims, assuming all factual allegations to be true, nonetheless fail as a matter of law. Further amendment therefore would be largely futile. First, further amendment will not result in liability of the ADA Defendants, the Investigator Defendants, or DA Clark in light of the fact that, as a matter of law, they have absolute immunity with respect to Buari s claims. See Johnson v. N.Y.C. Police Dep‘t, 651 F. App‘x 58, 61 (2d Cir. 2016) (summary order); Contreras v. Perimenis, 562 F. App‘x 50 (2d Cir. 2014) (summary order); Ying Li, 246 F. Supp. 3d at 646; Levesque v. Does, No. 2:15-cv-17, 2015 WL 1412204, at *1 (D. Vt. Mar. 26, 2015). Second, further amendment likely would not enable Buari to plead a Monell claim against the City with respect to the Bronx DA s Office under a widespread practice theory because he clearly has already attempted to amass and marshal what information he had, and his allegations, even when taken as true, do not plausibly suggest liability. See Molina v. County of Westchester, No. 16 CV 3421 (VB), 2017 WL 1609021, at *6 (S.D.N.Y. Apr. 28, 2017); Pluma v. City of New York, No. 13 Civ.2017(LAP), 2015 WL 1623828, at *13 (Mar. 31, 2015); see also Nat‘l Credit Union Admin. Bd. v. U.S. Bank Nat‘l Ass‘n, 898 F.3d 243, 258 (2d Cir. 2018) (noting that a busy district court need not allow itself to be imposed upon by the presentation of theories seriatim (quoting State Trading Corp. of India v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990))). Third, the problem with Buari s
It bears noting, moreover, that Buari has already amended his claims. His first amendment followed Defendants pre-motion letter, which noted specific deficiencies in the Complaint, and the pre-motion conference. (See Letter Mot. Conference [ECF No. 55].) Having failed to remedy pertinent pleading deficiencies of which he received notice, Buari should not be given yet another bite at the proverbial apple. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007); see Nat‘l Credit Union Admin. Bd., 898 F.3d at 257-58 (alteration in original) ( When a plaintiff was aware of the deficiencies in his complaint when he first amended, he clearly has no right to a second amendment [even if] the proposed second amended complaint in fact cures the defects of the first. (quoting Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978); and citing Loos v. Immersion Corp., 762 F.3d 880, 890-91 (9th Cir. 2014))).
Buari s conspiracy claim, however, could benefit from further amendment. The factual allegations may suggest a conspiracy, but not one all-encompassing conspiracy, as Buari pleads. Furthermore, Defendants pre-motion letter did not address the conspiracy claim, so Buari was not on notice of pleading deficiencies when he filed the Amended Complaint. Accordingly, the Court grants Buari leave to amend only for the purpose of repleading and clarifying his conspiracy claim. See Rivera v. City of New York, No. 1:16-cv-9709-GHW, 2019 WL 252019, at *9 (S.D.N.Y. Jan. 17, 2019) (granting leave to amend only with respect to [specific] claims and only to cure the deficiencies identified ); Gonzalez v. City of New York, No. 1:18-cv-02197-GHW, 2018 WL 10323053, at *9 (S.D.N.Y. Dec. 18, 2018) (same); Davis v. United States, 430 F. Supp. 2d 67, 81 (D. Conn. Apr. 28, 2006) (granting leave to amend only for purpose of setting forth specific claim against particular defendant).
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants Motion to Dismiss. To summarize:
- Defendants Motion is GRANTED insofar as it seeks dismissal of all claims against Defendants Karen, Lung, Coddington, Mignola, Wall, Schiffmanm, and Viggiano on absolute immunity grounds;
- DENIED with respect to Count I;
- GRANTED IN PART (failure to investigate) and DENIED IN PART (fabrication of evidence) with respect to Count II;
- DENIED with respect to Count III;
- GRANTED with respect to Count IV;
- GRANTED with respect to Count V;
- DENIED with respect to Count VI;
- GRANTED IN PART (widespread practice theory) and DENIED IN PART (failure to train, supervise, and discipline theory) with respect to Count VII;
- DENIED with respect to Count VIII;
- GRANTED with respect to Count IX (claim withdrawn (Opp. 27 n.4.));
- DENIED with respect to Count X as it relates to Counts VIII and XI;
- GRANTED with respect to Count XI as against Defendants Dietz, Tracy, Price, Gottwin, Neenan, Fortune, Does #1-10, and Roes #1-10; and
- GRANTED IN PART (NYPD Defendants) and DENIED IN PART (Defendant City of New York) with respect to Count XI.
IT IS HEREBY ORDERED that Buari shall file a Second Amended Complaint and a redline version showing differences between that document and the Amended Complaint on or before April 7, 2021. The remaining Defendants shall answer or otherwise respond to the Second Amended Complaint within 14 days after service of the Second Amended Complaint.
SO ORDERED.
Date: March 30, 2021
New York, NY
MARY KAY VYSKOCIL
United States District Judge
Notes
Buari requests that the Court strike the statement of facts from Defendants’ brief because it “improperly assert[s] facts not alleged in the [Amended Complaint]” and “improperly rel[ies] on material outside the [Amended Complaint].” (Mem. Law Opp. (“Opp.“) 7-8 [ECF No. 65].) The Court declines to address this matter because the Court does not rely on Defendants’ account of the facts. See Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (second alteration in original) (“[A] district court errs when it ‘consider[s] affidavits and exhibits submitted by’ defendants or relies on factual allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to dismiss.” (first quoting Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991); then citing Fonte v. Bd. of Managers of Cont‘l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)))).