Case Information
USDC SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: (cid:22)(cid:18)(cid:22)(cid:19)(cid:18)(cid:21)(cid:19)(cid:21)(cid:20) 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 1:18-cv-12299-MKV Department Detective; JOHN WALL, Bronx County
District Attorney’s Office Investigator; FNU SCHIFFMAN, OPINION AND ORDER Bronx County District Attorney’s Office Investigator; GRANTING IN PART FRANK VIGGIANO, Bronx County District Attorney’s AND DENYING IN PART Office Investigator; ALLEN KAREN, Bronx County DEFENDANTS’ District Attorney’s Office Assistant District Attorney; MOTION TO DISMISS 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.
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 New York Criminal Procedure Law Section 440.10(1)(g) and ordered a new trial. The Bronx District Attorney’s Office (“Bronx DA”) declined to retry Buari and dismissed his indictment in March 2018. Buari has always maintained his innocence.
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 42 U.S.C. § 1983 and New York State law for malicious prosecution, due process violations, failure to intercede, conspiracy, supervisory liability, municipal liability under Monell v. Department of Social Services , 436 U.S. 658 (1978), and respondeat superior . ( Id. ¶¶ 274–363.) Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss (“Mot.”) [ECF No. 61].)
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 reasonable inferences in Buari’s favor. For the reasons discussed below, Defendants’ Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
I. Factual Background [2]
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, Det. Dietz interviewed Effort, who stated that he did not see who committed the Harris Murders. ( Id. ¶¶ 59–61.)
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.)
Buari retained counsel, Kenneth Schreiber, Esq., who investigated the charges and discovered several witnesses, including Robinson, Effort, Clarence Lamont Seabrook (“Seabrook”), and Jerry Connor (“Connor”). ( Id. ¶ 88.) These witnesses advised Schreiber that Buari did not commit the Harris Murders. ( Id. ¶ 90.) The Bronx DA offered Buari a plea bargain of three years’ imprisonment on the murder charges ( id. ¶ 92), but Buari rejected the offer, maintaining his innocence ( id. ¶ 93). He was later released on bail. ( Id. ¶ 94.)
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.)
At a suppression hearing, Dets. Price, Fortune, and Neenan falsely testified that Buari became a suspect after they interviewed Robinson, who claimed Buari was trying to kill him. ( Id. ¶ 121.) The detectives did not testify to the arrangements with Robinson and the other witnesses. ( Id. ¶ 125.) The judge denied Buari’s request to suppress Robinson’s identification of him. ( Id. ¶ 126.)
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 New York Criminal Procedure Law Section 440.10 to vacate his conviction (“First 440.10 Motion”). ( Id. ¶ 149.) Thereafter, Buari’s attorneys met with Robinson, who confessed to testifying falsely at Buari’s trial and encouraging his associates to do the same. ( Id. ¶¶ 150, 152–53.) Buari supplemented the First 440.10 Motion with Effort’s affidavit and Robinson’s confession that he, and not Buari, committed the Harris Murders. ( Id. ¶ 155.)
In response to this new evidence, ADA Karen sent out the Investigator Defendants to obtain withdrawals of the recantations “in any way possible.” ( Id. ¶ 156.) The Investigator Defendants visited Effort, Robinson, and their families and pressured them to withdraw their recantations. ( Id. ¶¶ 157–60.) The Investigator Defendants threatened Robinson that if he did not recant, any parole application he made would be rejected. ( Id. ¶ 160.)
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.)
On May 5, 2017, the court vacated Buari’s conviction, ordered a new trial, and ordered that Buari be released on his own recognizance. ( Id. ¶ 225.) The Bronx DA appealed ( id. ¶ 227), and ADA Lung advised Buari’s attorneys that a new witness had implicated Buari. ( Id. ¶ 228.) At subsequent hearings, ADAs Lung and Coddington stated that the Bronx DA intended to retry Buari. ( Id. ¶¶ 233, 238.) Buari’s attorneys repeatedly requested that the prosecutors drop the case. ( Id. ¶¶ 230–32, 236, 240.) At a status conference in spring 2018, the Bronx DA moved to dismiss the indictment, and the court granted the motion. ( Id. ¶¶ 241–42.)
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 Section 1983 against the NYPD Defendants, the ADA Defendants, the Investigator Defendants, Does #1–10, and Roes #1–10 (Am. Compl. ¶¶ 274–78); (2) due process violations under Section 1983 for fabrication of evidence and failure to investigate against the NYPD Defendants, the ADA Defendants, the Investigator Defendants, Does #1–10, and Roes #1–10 ( id. ¶¶ 279–83); (3) failure to intercede under Section 1983 against the NYPD Defendants, the ADA Defendants, the Investigator Defendants, Does #1–10, and Roes #1–10 ( id. ¶¶ 284–88); (4) conspiracy under Section 1983 against the NYPD Defendants, ADA Karen, the Investigator Defendants, Does #1– 10, and Roes #1–10 ( id. ¶¶ 289–95); (5) supervisory liability under Section 1983 against DA Clark and ADA Mignola ( id. ¶¶ 296–302); (6) municipal liability under Section 1983 and Monell against the City with respect to the NYPD ( id. ¶¶ 303–19); (7) municipal liability under Section 1983 and Monell against the City with respect to the Bronx DA ( id. ¶¶ 320–45); (8) malicious prosecution under New York State law against the NYPD Defendants, the ADA Defendants, the Investigator Defendants, Does #1–10, and Roes #1–10 ( id. ¶¶ 346–49); (9) intentional or negligent infliction of emotional distress under New York State law against the NYPD Defendants, the ADA Defendants, the Investigator Defendants, Does #1–10, and Roes #1–10 ( id. ¶¶ 350–54); [3] (10) respondeat superior under New York State law against the City ( id. ¶¶ 355–58); and (11) due process violations under the New York State Constitution against the NYPD Defendants, the ADA Defendants, the Investigator Defendants, Does #1–10, and Roes #1–10 ( id. ¶¶ 359–363).
Defendants filed their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on December 11, 2019. The case was reassigned to me in February 2020. Buari filed an Opposition (Opp.), and Defendants filed a Reply (Reply. Mem. Law (“Reply”) [ECF No. 69]).
LEGAL STANDARDS
I. Rule 12(b)(6) Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal
,
II. Materials Considered
In considering a Rule 12(b)(6) motion, the Court “may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint.”
DiFolco v. MSNBC Cable L.L.C.
,
In addition, the Court may take judicial notice of certain publicly available documents,
including, for example, a plaintiff’s arrest reports, indictments, and criminal disposition data.
Corley v. Vance
,
III. Section 1983
To state a claim under Section 1983, a plaintiff must plausibly allege “(1) that the
defendants deprived him of a right ‘secured by the Constitution or laws of the United States’; and
(2) that they did so ‘under color of state law.’”
Giordano v. City of New York
,
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. (Opp. 9.) Buari also argues that ADAs Lung, Coddington, and Mignola and the Investigator Defendants are not entitled to qualified immunity because their misconduct in connection with the Second 440.10 Motion occurred during a non-adversarial investigative review. (Opp. 10, 12.)
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),
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
,
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
,
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
,
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
,
However, absolute immunity does not thwart every claim against prosecutors.
See Pinaud
,
There is no bright line for absolute immunity based on the stage of a criminal proceeding.
Moye
,
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),
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.)
ADA Karen is entitled to absolute immunity for all acts alleged in the Amended Complaint.
First, ADA Karen’s alleged presentation of false evidence to the grand jury “lie[s] at the very core
of a prosecutor’s role as an advocate engaged in the judicial phase of the criminal process” and is
therefore protected by absolute immunity.
Bernard v. County of Suffolk
,
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
,
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.”
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
,
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.”
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
,
II. Malicious Prosecution (Counts I and VIII)
Buari brings causes of action against the NYPD Defendants for malicious prosecution under Section 1983 and New York State law. (Am. Compl. ¶¶ 274–78, 346–49.) Buari alleges that the NYPD Defendants fabricated evidence and withheld exculpatory evidence that vitiated probable cause. ( Id. ¶ 275.a.) Defendants argue that Buari’s malicious prosecution claims fail because (1) Buari has not demonstrated a favorable termination of proceedings, (2) Buari cannot overcome the presumption of probable cause created by the grand jury indictment, and (3) the NYPD Defendants did not initiate or continue the prosecution. (Mot. 13–17.)
A. Applicable Law
To state a claim for malicious prosecution under Section 1983 and New York State law, a
plaintiff must show: “(1) the initiation or continuation of a criminal proceeding against plaintiff;
(2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for the defendant’s actions.”
Dettelis v.
Sharbaugh
,
A defendant initiates a proceeding when he “play[s] an active role in the prosecution, such
as giving advice and encouragement or importuning the authorities to act.”
Id.
(alteration in
original) (quoting
DeFilippo v. County of Nassau
,
With respect to the second element, favorable termination, different standards govern a
Section 1983 claim and a claim under New York law. “New York law does not require a malicious
prosecution plaintiff to prove her innocence, or even that the termination of the criminal
proceeding was indicative of innocence.”
Rothstein v. Carriere
,
The Section 1983 requirement is more stringent: the plaintiff must “show that the
underlying criminal proceeding ended in a manner that affirmatively indicates his innocence.”
Lanning v. City of Glen Falls
,
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
,
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
,
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 12(b)(6) motion, those allegations must be
credited.
Iqbal
,
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
,
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
the plaintiff’s liberty.
Shabazz v. Kailer
,
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 Section 1983. In vacating Buari’s conviction and ordering a
new trial, the state court found that Buari had established by a preponderance of evidence that the
newly discovered evidence probably would have resulted in a more favorable verdict. (Decision
of
People v. Buari
, No. 2111-1993, slip op. at 19 (Sup. Ct. Bronx Cnty. Nov. 9, 2017) (Oliver, Jr.,
J.
), Ex. A to Decl. Alan H. Scheiner Supp. Mot. Dismiss (“Scheiner Decl.”) [ECF No. 61-3].) In
addition, Buari’s Certificate of Disposition, which “constitutes presumptive evidence of a
favorable termination,”
Hincapie
,
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
,
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
,
Defendants argue that Buari has failed to allege that the detectives knew that Griffiths’
testimony was false. (Mot. 14–15.) However, Buari makes further allegations that permit the
reasonable inference that the detectives knew of the falsity, and on a 12(b)(6) motion, those
allegations must be accepted as true.
Iqbal
,
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
,
III. Section 1983 Due Process, or Denial of Fair Trial (Count II) Buari asserts a Section 1983 due process claim against the NYPD Defendants under two distinct theories: fabrication of evidence and failure to investigate. (Am. Compl. ¶¶ 279–83.) First, Buari alleges that the NYPD Defendants fabricated incriminating evidence by coercing witnesses to implicate Buari falsely and failing to disclose the circumstances of the witness interviews. ( Id. ¶ 280.a.) Second, he alleges that the NYPD Defendants deliberately failed to investigate evidence pointing to Robinson. ( Id. ¶ 280.a.) Defendants argue that Buari has not alleged facts supporting a plausible inference that the NYPD Defendants knew that the testimony against Buari was false. (Mot. 17.) Defendants also argue that Buari has no due process right to a police investigation. (Mot. 18 n.14.)
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
,
As Defendants correctly argue, “there is no constitutional right to an adequate
investigation.”
Newton v. City of New York
,
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
Robinson committed the Harris Murders, coerced several witnesses into testifying falsely against
Buari at trial, which resulted in Buari’s conviction. (
Id.
¶¶ 104, 108–20.) These assertions, taken
as true, plausibly allege the elements of a Section 1983 fair trial claim.
See Benitez v. City of New
York
, 17 CV 3827 (SJ) (SJB),
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
specific factual allegations that, “if true, are plausibly sufficient to state a legal claim.”
Doe
, 831
F.3d at 48 (noting that at the motion to dismiss stage a court “is not engaged in an effort to
determine the true facts”). Second, as previously discussed, Buari has plausibly alleged favorable
termination.
See supra
Analysis, Section II.B.2;
see also Hincapie
,
Because there is no constitutional right to an adequate investigation, and therefore a claim
for failure to investigate is not independently cognizable under Section 1983, the Court dismisses
Buari’s claim for failure to conduct an adequate investigation.
See Antonetti v. City of New York
,
422 F. Supp. 3d 668, 671 (E.D.N.Y. 2017) (dismissing Section 1983 fair trial claim based on
alleged failure to investigate);
Head v. Ebert
, No. 14-CV-6546W, 2017 WL 3017395, at *2
(W.D.N.Y. July 11, 2017) (same);
Ying Li
,
IV. Failure to Intercede (Count III)
Buari brings a separate cause of action under Section 1983 against the NYPD Defendants for failure to intercede. Buari alleges that the NYPD Defendants failed to intercede to prevent the alleged malicious prosecution and due process violations. (Am. Compl. ¶¶ 285–86.) Defendants argue that this claim fails because (1) Buari cannot establish an underlying constitutional violation and (2) Buari does not distinguish between NYPD Defendants who participated directly in the alleged constitutional violations and those who failed to intercede. (Mot. 20 & n.17.) [7]
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
,
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),
B. Application
Buari has plausibly alleged a Section 1983 claim predicated on a failure to intercede. As a
threshold matter, the Court has found that Buari has plausibly alleged constitutional violations.
See supra
Analysis, Sections II.B., III.B. And, Buari has pleaded personal involvement by the
NYPD Defendants. Contrary to Defendants’ argument, at this stage, Buari need not allege with
particularity which NYPD Defendants coerced the identifying witnesses into testifying falsely and
which NYPD Defendants failed to intercede.
See, e.g.
,
Paul v. City of New York
, No. 16-CV-1952
(VSB),
At this stage of the litigation, the allegations are sufficient to withstand a motion to dismiss,
and Buari is entitled to discovery to determine the precise involvement (if any) of each Defendant,
specifically, who committed the violation and who failed to intercede. The Court notes, however,
that “at the time of trial, after having had the benefit of discovery, [Buari] will have to specifically
identify which, if any, of the [NYPD] Defendants []he seeks to hold liable under a failure to
intervene theory.”
Amid
,
V. Conspiracy (Count IV)
Buari brings a conspiracy claim against the NYPD Defendants under Section 1983. (Am. Compl. ¶¶ 289–95.) Buari alleges that the NYPD Defendants “agreed among themselves and with” ADA Karen, Griffiths, Robinson, Effort, Johnson, Seabrook, Holder, and Connor to deprive Buari of his constitutional rights by fabricating evidence and committing perjury. ( Id. ¶¶ 290–91.) Defendants argue that Buari has failed to allege a meeting of the minds, or agreement, to frame Buari. (Mot. 21; Reply 8.)
A. Applicable Law
To state a claim for conspiracy under Section 1983, a plaintiff must allege: “(1) an
agreement between a state actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Ciambriello v. County of Nassau
, 292 F.3d 307, 324–25 (2d Cir. 2002) (citing
Pangburn v.
Culbertson
,
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
witnesses who testified at trial; and (3) Effort and the other testifying witnesses. The Court cannot
infer that these individuals, without having spoken to one another, all acted in concert with the
goal of depriving Buari of his constitutional rights. To state a claim for conspiracy, “allegation[s]
of parallel conduct and a bare assertion of conspiracy will not suffice.”
Twombly
,
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
,
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
also plausibly suggests that ADA Karen may have been part of the hub because Buari alleges that
he worked with Dets. Price, Gottwin, Neenan, and Fortune to induce the witnesses to testify falsely.
(
Id.
¶¶ 112–13, 116–17, 120.) Importantly, however, there is no indication that each spoke was
aware of the existence of the other spokes. For example, Griffiths’ involvement with Buari’s
prosecution ended after the indictment. (
Id.
¶ 87.)
See Chandler
,
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.)
A. Applicable Law
“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
,
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.
“The right not to be arrested or prosecuted without probable cause has, of course, long been
a clearly established constitutional right.”
Golino v. City of New Haven
,
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
,
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 against Buari. Finally, while the NYPD Defendants had no authority over the prosecution, their misconduct initiated and caused a continuation of Buari’s prosecution. Id. ; see Shabazz , 201 F. Supp. 3d at 397 (collecting cases). Accepting these allegations as true, as the Court must on a 12(b)(6) motion, the NYPD Defendants are not entitled to qualified immunity from claim at this time.
VII. Municipal Liability Under Section 1983 and Monell (Counts VI and VII) Buari brings two Section 1983 claims against the City under Monell , one involving the NYPD and another involving the Bronx DA, and asserts three distinct theories of liability under each: (1) a de facto policy or custom through a widespread practice; (2) failure to train; and (3) failure to supervise and discipline.
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.)
Similarly, Count VII alleges, first, that the Bronx DA maintained an unofficial practice of prosecuting cases without probable cause, using false or unreliable testimony in criminal proceedings, failing to correct such testimony, and failing to fulfill Brady obligations. ( Id. ¶ 326.a.) Count VII alleges, second, that the Bronx DA failed to train, supervise, and discipline its employees with respect to these matters. ( Id. ¶ 326.b.) For these theories, Buari relies on, inter alia , (1) a list of twenty-three judicial decisions finding prosecutorial misconduct in the Bronx DA’s Office and (2) a law review article that summarizes discovery in three lawsuits concerning prosecutorial misconduct by the Bronx DA. ( Id. ¶¶ 328–45; id. Ex. A [ECF No. 58-1]; id. Ex. B [ECF No. 58-2].)
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
Section 1983.
Monell
,
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
,
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
,
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
,
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
,
Liability for deliberate indifference can be based upon a failure to train or a failure to
supervise or discipline.
Amnesty America
,
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
,
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
,
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
,
B. Application
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
,
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
factual allegations of the plaintiff’s case.
See, e.g.
,
Gleeson
,
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 without “heat” from the police if he and his associates provided evidence implicating Buari (Am. Compl. ¶¶ 6–7, 10–11, 13, 76–80, 84–85, 107–110)—are factually similar to findings in the relatively contemporaneous Mollen Commission Report. The Mollen Commission Report describes perjury and falsification of evidence, as well as police officers protecting and assisting narcotics traffickers. See generally Mollen Commission Report 31–34, 36–43. In addition, Buari alleges misconduct by the NYPD during the precise time of the Mollen Commission’s investigation (1992–1994). Therefore, considering Buari’s allegations together with the findings in the Mollen Commission Report, the allegations are sufficient at the pleading stage to support a reasonable inference of the existence of a de facto policy or custom and a link between the policy or custom and Buari’s alleged constitutional deprivation.
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
,
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
,
Collins
, a strikingly similar case, is instructive.
Here, like in Collins , the findings in the Mollen Commission Report “make it plausible that the type of misconduct that led to [Buari’s] arrest and prosecution was endemic within the NYPD” during the relevant time period. Id. Therefore, Buari has plausibly alleged that NYPD officials “were aware of a serious risk of constitutional violations, and that the failure to take any action in response to the problem—whether through training or otherwise—was the result of deliberate indifference.” Id.
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
,
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
indifference. Buari alleges,
inter alia
, that between 1990 and 1992, the CCRB completely
investigated 36 percent of complaints received, closed 40 percent of cases without completing full
investigations, substantiated 3.3 percent of complaints received, and recommended disciplinary
action in 7.5 percent of disposed cases. (Am. Compl. ¶ 309.d.) He also alleges that since 1988,
victims of police misconduct were awarded damages in 300 to 400 cases annually despite the
CCRB substantiating only approximately 100 complaints annually between 1988 and 1992. (
Id.
¶ 309.h.) These allegations, among others, taken as true at this stage,
Iqbal
, 556 U.S. at 678;
Oakley
, 980 F.3d at 283, plausibly suggest a consistent failure to investigate complaints of
unconstitutional activity and discipline those involved.
See Tieman
,
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
to supervise and discipline is causally related to Buari’s alleged injuries. This inference is not
unreasonable in light of the factual similarity and temporal proximity between Buari’s alleged
injuries and the alleged inadequate misconduct control measures of the NYPD outlined in the
Mollen Commission Report’s thirty-nine-page chapter titled “The Collapse of the Department’s
Corruption Controls.” Mollen Commission Report 70–109.
See Pipitone v. City of New York
, 57
F. Supp. 3d 173, 191 (E.D.N.Y. 2014) (“[T]he Mollen Report provides powerful evidence that
there was a custom and practice within the police department of tolerating corruption to avoid bad
publicity. It characterizes this custom as persistent, widespread, and emanating ‘from top
commanders, including the police commissioner.’ The Mollen Report thus provides evidence that
is sufficient to allow a jury to conclude that the supervisory and disciplinary failures described
therein constituted a municipal policy for
Monell
purposes and that the City’s handling of the
Eppolito matter was reflective of that policy.” (collecting cases));
Gentile v. County of Suffolk
, 129
F.R.D.435, 446 (E.D.N.Y. 1990) (finding that investigative report “supports plaintiffs’ allegation
that the police . . . were likely . . . to consistently ignore evidence of misconduct on the part of the
defendant officers and to sanction and cover up any wrongdoing”),
aff’d
,
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
unreliable testimony in court, fail to correct misconduct, and fail to fulfill
Brady
obligations. (Am.
Compl. ¶ 326.a.) In his effort to plead a
de facto
policy or custom, Buari cites twenty-three cases
where convictions were vacated due to misconduct by Bronx DA prosecutors. (
Id.
Ex. A.)
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
findings of similar prosecutorial misconduct, but the convictions—and therefore the prosecutorial
misconduct—in these cases span from 1982 to 2002, a twenty-year period. Citing twenty-three
cases, Buari alleges only slightly more than one case of similar prosecutorial misconduct each
year. Even drawing reasonable inferences in Buari’s favor, such a relatively small number of cases
over the course of two decades in such a large municipality does not plausibly suggest that the
alleged practice is “so widespread as to have the force of law,”
Brown
,
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
,
With respect to his failure to train theory, drawing reasonable inferences in Buari’s favor,
as the Court must,
Iqbal
,
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
,
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
,
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 Section 1983 does not provide an adequate alternative remedy. (Opp. 27–28.)
A. Applicable Law
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
§ 1983 for violations of parallel provisions of the U.S. Constitution.”
Alwan
, 311 F. Supp. 3d at
586 (collecting cases);
see also Gounden v. City of New York
, No. 14 Civ. 7411(BMC), 2015 WL
5793625, at *5 n.3 (E.D.N.Y. Oct. 2, 2015) (noting the “common view” in this Circuit “that there
is no right of action under the New York State Constitution for claims that can be brought under §
1983” (citing
Flores v. City of Mount Vernon
,
“[U]nlike cases brought under § 1983, municipalities may be liable for the common law
torts, like . . . malicious prosecution, committed by their employees under the doctrine of
respondeat superior
.”
Mesa v. City of New York
, No. 09 Civ. 10464(JPO),
B. Application
Buari cannot maintain his state constitutional due process claim (Count XI) against the
NYPD Defendants because Section 1983 provides an adequate remedy.
See Talarico
, 367 F. Supp.
3d at 172;
see also Lee v. Corneil
, No. 1:13-cv-8359,
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 Section 1983 provided remedy but
declining to dismiss those claims against the municipality);
Brown v. City of New York
, No. 13-
CV-6912, 2017 WL 1390678, at *15 (S.D.N.Y. Apr. 17, 2017) (dismissing state constitutional
claims against individual defendants but not municipality because claims were asserted under
respondeat superior
);
Espinoza v. City of New York
,
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
,
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 liberal reading and where clams are dissimilar, it has confirmed that leave to replead particular claims would be futile. For example, the Court considered Buari’s supervisory liability claim against DA Clark despite Buari’s failure to name DA Clark as a party to the action. See supra notes 1, 5. The Court also presumed ADA Karen’s involvement in Buari’s indictment despite Buari’s failure to specify which ADA was involved. See supra note 4.
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
,
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.
,
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,
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss. To summarize:
(cid:120) 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;
(cid:120) DENIED with respect to Count I;
(cid:120) GRANTED IN PART (failure to investigate) and DENIED IN PART (fabrication of evidence) with respect to Count II; (cid:120) DENIED with respect to Count III;
(cid:120) GRANTED with respect to Count IV;
(cid:120) GRANTED with respect to Count V;
(cid:120) DENIED with respect to Count VI;
(cid:120) GRANTED IN PART (widespread practice theory) and DENIED IN PART (failure to train, supervise, and discipline theory) with respect to Count VII; (cid:120) DENIED with respect to Count VIII;
(cid:120) GRANTED with respect to Count IX (claim withdrawn (Opp. 27 n.4.)); (cid:120) DENIED with respect to Count X as it relates to Counts VIII and XI; (cid:120) GRANTED with respect to Count XI as against Defendants Dietz, Tracy, Price, Gottwin, Neenan, Fortune, Does #1–10, and Roes #1–10; and (cid:120) 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.
The Clerk of Court is respectfully requested to terminate the case as against Defendants Karen, Lung, Coddington, Mignola, Wall, Schiffmanm, and Viggiano and close docket entry 61. SO ORDERED.
__________ ____________________________________ _____________________________________________________________________________________ _________________ ___________ ___________ _________________________________ Date: March 30, 2021 MARYYYYYYYYYYY KKKKKKKKKKKKKAY VYSYSYSYSYSYSYSYSYSYYSKOCICICICICICICICICICIIIILLLLLLLLL MARY KAY VYSKOCIL
New York, NY Unitedddddd SSSSSSSSSSSSStttat tes DiDiDiDiDiDiiiiiiststststststststststrict Judge United States District Judge
Notes
[1] It appears Buari also seeks to assert a claim against Bronx District Attorney Darcel Clark (“DA Clark”). (Am. Compl. ¶¶ 296–302.) But DA Clark is not named in the case caption, see Fed. R. Civ. P. 10(a) (noting that the “title of the complaint must name all the parties”), and there is no proof of service on the docket as to DA Clark. Nevertheless, given Plaintiff’s clear intent to assert a claim against DA Clark, the Court addresses it below.
[2] The following facts are taken from the Amended Complaint. On the pending Motion, the Court is “constrained
to accept as true the factual allegations contained in the complaint and draw all inferences in plaintiff’s favor.”
Glob.
Network Commc’ns, Inc. v. City of New York
,
[3] Buari withdrew his emotional distress claim in his Opposition. (Opp. 27 n.4.)
[4] While ADA Karen is neither explicitly mentioned in connection with the grand jury proceedings in the Amended Complaint ( see Am. Compl. ¶¶ 82–87) nor listed as the ADA in the indictment ( see Mot. Ex. 4 [ECF No. 61-4]), the Court, drawing reasonable inferences in Buari’s favor, as it must, presumes ADA Karen was involved with the grand jury proceedings given Buari’s allegation that he was the “[ADA] prosecuting Mr. Buari’s case” (Am. Compl. ¶ 111).
[5] For the same reason, the Court finds that if DA Clark were properly named as a party, see supra note 1, she would be entitled to absolute immunity and would therefore be dismissed from the action.
[6] Defendants rely on
Townes v. City of New York
,
[7] Defendants’ group pleading and failure-to-allege-personal-involvement arguments against Buari’s fair trial claim overlap with their arguments against Buari’s failure to intercede claim because Defendants attempted to tackle both claims together in their Motion. For clarity and precision, the Court analyzes Buari’s failure to intercede claim separately.
[8] Having concluded that ADA Karen and the Investigator Defendants are entitled to absolute immunity, the Court does not address Buari’s other conspiracy theory. ( See Am. Compl. ¶¶ 292–93.)
[9] Buari does not attach the Mollen Commission Report to the Amended Complaint as an exhibit or expressly
incorporate it by reference, but it is readily apparent that Buari relied on it in alleging the NYPD
Monell
claim.
Therefore, the Court may consider its contents.
See, e.g.
,
Rothman v. Gregor
,
[10]
See Mendez v. Artuz
,
[11] Although Buari does not allege a failure to
investigate
complaints—indeed, he only alleges substantiated
instances of misconduct and the failure to discipline that misconduct—his failure to supervise theory is plausible. The
Second Circuit has explained that while the failure to respond to repeated civil rights complaints would constitute
deliberate indifference claim for a failure to supervise, that showing is not required.
Amnesty America
,