YING JING GAN, as administratrix of the Estate of Sen Van
Ta, deceased, Ying Jing Gan, for herself as the wife and
widow of the deceased, and, Jason Ta, child of the union of
Ying Jing Gan and Sen Van Ta, Plaintiffs-Appellees-Cross-Appellants,
v.
The CITY OF NEW YORK, a municipal entity, State of New York,
County of New York, governmental entities, Deputy Chief
Joseph N. DeMartino, Detective Henry Murray, New York City
Police Officers, Defendants,
Luke Rettler, Assistant District Attorney, County of New
York, Defendant-Appellant,
Robert M. Morgenthau, District Attorney, New York County,
Defendant-Cross-Appellee.
Nos. 947, 1043, Dockets 92-7971, 92-7993.
United States Court of Appeals,
Second Circuit.
Argued Feb. 10, 1993.
Decided June 1, 1993.
James I. Meyerson, New York City (Adele Graham, New York City, on the brief), for plaintiffs-appellees-cross-appellants.
David J. Mudd, Asst. Dist. Atty., New York County, New York City (Robert M. Morgenthau, Dist. Atty., New York County, James M. McGuire, Asst. Dist. Atty., on the brief), for defendant-appellant and defendant-cross-appellee.
Before: VAN GRAAFEILAND, KEARSE, and CARDAMONE, Circuit Judges.
KEARSE, Circuit Judge:
Defendant Luke Rettler, an Assistant District Attorney in New York County, appeals from so much of an order of the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, as denied his motion for dismissal, on grounds of immunity or failure to state a claim, of plaintiffs' claims that Rettler failed to provide adequate protection to a complaining witness and that that failure resulted in the witness's death. Plaintiffs cross-appeal from so much of the order as dismissed their similar claims against defendant Robert M. Morgenthau, District Attorney for New York County, for failure to state a claim on which relief can be granted. We conclude that for various reasons Rettler was entitled to dismissal of the claims against him. We also affirm so much of the district court order as dismissed the claims against Morgenthau.
I. BACKGROUND
Plaintiffs Ying Jing Gan and Jason Ta are, respectively, the widow and son of Sen Van Ta ("Ta") who, until his death in March 1991, was the manager and part owner of the Golden Star Jewelry Store on Canal Street in the Chinatown section of New York City. Most of the events are undisputed.
A. The Events
On January 21, 1991, the Golden Star Jewelry Store was robbed by a group of young men. After the police were contacted, store employees identified the robbers, who were members of an organized crime gang known as Born To Kill ("BTK"). Thereafter, on February 7, 1991, Ta received an envelope addressed to the store, containing broken glass and a newspaper clipping describing the arrests. Ta viewed the contents as a serious threat and contacted the police.
On February 11, Ta was visited at the store by a man who told him to go to court and say that the men arrested were not the ones who had robbed the store. Ta reported this incident to the police, and on February 18 he identified the man from photographs as David Thai; Thai was reputedly the leader of BTK. In the meantime, on February 13, several members of BTK visited the store and unsuccessfully attempted to extort money from Ta. Ta promptly contacted the police, and he accompanied officers to a shopping center in Chinatown, where he made face-to-face identifications of two of the men who had just visited his store.
On March 10, 1991, Ta went with his pregnant wife to a store on Broadway. He was there shot and killed by an alleged member of BTK. Some six months later, Thai and several other alleged BTK members were indicted for numerous crimes, including the murder of Ta.
B. The Present Lawsuit and the Decision Below
In July 1991, plaintiffs commenced the present action asserting claims principally under 42 U.S.C. § 1983 (1988) against Rettler, Morgenthau, New York City police officers Henry Murray and Joseph N. DeMartino, and the City, County, and State of New York, alleging chiefly that defendants had failed to provide Ta with adequate protection, in violation of Ta's due process rights under the Fourteenth Amendment to the Constitution. The complaint requests a total of $20 million in compensatory and punitive damages, as well as declaratory and injunctive relief "if ... appropriate," and costs and attorneys' fees.
Plaintiffs allege that Ta had a special relationship with defendants; that the compulsion of Ta by defendants "or some thereof" (Complaint p 24) to make the February 13 face-to-face identifications of men who had just threatened Ta exposed him to an unreasonable risk of retaliation; and that compulsion and defendants' failure to protect Ta constituted a deliberate and reckless disregard of his constitutional rights. As it relates to Morgenthau and Rettler, the complaint alleges that the prosecutors violated Ta's constitutional rights by advising the police officers not to arrest Thai following Ta's identification of him:
It is believed that personnel in the District Attorney's Office of New York County, pursuant to the practice, custom, policy and particular direction of Robert Morganthau [sic ], counseled the New York City Police Department and employees thereof, for the City of New York, not to make an arrest of Thai although Ta had specifically identified him as having made a threat to him because of Ta's prior cooperation with law enforcement personnel about the robbery. Said threat, as described, was a felony crime subjecting the individual--Thai, to arrest for the commission of a crime: threat and intimidation of a witness to a crime....
(Complaint p 31.) It alleges that defendants' actions were
per a policy, practice and custom of the New York City Police Department and/or in consultation with Defendant District Attorney and the Defendant Assistant[ ] District Attorney and per the policy, practice and custom of the Office of the District Attorney which elevated on going [sic ] investigations to a higher concern and level than to the protection of the rights and life of persons with whom law enforcement was working in the context of the investigations and without whom the investigations, to which the highest concern attached, could not take place and would not be effective.
(Complaint p 34.)
All defendants moved for dismissal of the complaint pursuant to, inter alia, Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief could be granted or, in the alternative, for summary judgment in their favor pursuant to Fed.R.Civ.P. 56(b) on grounds of absolute, qualified, or Eleventh Amendment immunity. The court eventually granted the motions of Morgenthau and the State and denied the motions of the municipal and other individual defendants; only the motions of Morgenthau and Rettler are pertinent to the present appeals.
In support of his motion for summary judgment, Rettler, who was a Bureau Chief in charge of the Asian Gang Unit, submitted an affidavit stating that he had not participated in any pretrial identification procedures involving Ta. He also stated that he had "never 'counselled' the police not to arrest Thai." (Affidavit of Assistant District Attorney Luke Rettler, dated September 10, 1991 ("Rettler Affidavit"), p 7.) Rather, he informed the officers that with respect to Ta's report that Thai told him to testify that the men arrested were not the ones who had robbed the store, Thai could be charged only with witness tampering in violation of N.Y. Penal Law § 215.10, a misdemeanor charge that would not support his prolonged detention pending its disposition. Rettler also stated that he personally explained this to Ta and asked whether in the circumstances Ta wanted Thai arrested, and that Ta responded that he did not:
5. On or about February 19, 1991, I informed Detective Henry Murray of the New York Police Department that probable cause existed to arrest Thai for, at best, the crime of Tampering With a Witness in the Fourth Degree (New York Penal Law § 215.10). However, I informed Detective Murray that, given that that crime was a misdemeanor, our office would not be able to obtain pretrial bail conditions sufficient to keep Thai incarcerated pending his criminal prosecution. I also informed Detective Murray that Thai, if he were arrested, might retaliate against Ta in some way. I therefore suggested to Detective Murray that he apprise Ta of this information and then ask Ta if he wanted the police to arrest Thai.
6. On or about February 19-20, 1991, I personally spoke with Mr. Ta at the Golden Star Jewelry Store. During my conversation with Mr. Ta, I told him that the police would attempt to arrest Thai if Mr. Ta so desired, but that our office would not be able to obtain pretrial bail conditions that would be sufficient to keep Thai incarcerated pending his criminal prosecution. I asked Mr. Ta if he was satisfied with the police protection that he was receiving; Mr. Ta answered that he was. I also asked Mr. Ta if he wanted the police to arrest Thai; Mr. Ta answered that he did not.
(Rettler Affidavit pp 5, 6.) Rettler also submitted a March 2, 1991 police report filed by Murray that supported the Rettler Affidavit's account of these events:
I have informed Mr. Ta of my conversations with ADA Rettler of the Asian Gang Unit who has stated that allthough [sic ] probable cause exist[s] to arrest David Thai[ ], the District Attorneys [sic ] office will be unable to keep David Thai incarcerated and that this situation may exasperate gang members. I have advised Mr. Ta that the decision to have David Thai arrested is his and that if he feels the need for additional police protection at either his home or business it will be provised [sic ]. Sen Ta has informed me that at this time he does not wish to have David Thai arrested but if any further threats are received he will review this decision. Sen Ta has further advised me that he does not wish any police protection at his residence and that he feels the attention being provided at his place of business by the 001 Precinct has been more than adequate.
(Complaint Follow-Up Report prepared by Detective Henry Murray, dated March 2, 1991.)
In opposition to the summary judgment motions, plaintiffs submitted affidavits of Gan and of Ta's business partner. Gan stated that Ta told her of the robbery, of receiving the broken glass, of the extortionate visit on February 13, and of the face-to-face identifications he had made on that day. He told her he was frightened by the events, and he told her he had asked the police for help, which she interpreted to include protection. Gan also stated that Ta told her he felt he had no choice but to attempt a face-to-face identification of the would-be extortionists on February 13 because he was afraid the police would accuse him of being uncooperative. She stated that "[a]fter my husband informed me that he went and identified the people who robbed the store, he told me that the police indicated to him that they would protect him." (Affidavit of Ying Jing Gan, dated October 22, 1991, p 27.) Haivan Tran, Ta's business partner, submitted an affidavit expressing Tran's own concern and anger that Ta had been asked to make a face-to-face identification. He said Ta told him that Ta had had no choice and had gone because the police directed him to do so; but Tran also stated that when Ta told him about it,
Ta was boasting of sorts about the fact that people were begging him not to identify him to the police who were with him at the time. Ta said to me that he did not feel threatened because he had the police with him and that they protected him. Ta was very proud of himself....
(Affidavit of Haivan Tran, dated October 22, 1991, p 26.) Neither of these affidavits stated that Rettler had been involved in Ta's face-to-face identifications on February 13, or that Ta had asked the police to arrest Thai on the basis of the February 11 tampering, or that Ta had asked the police for more protection than he was receiving, or that Ta had told the affiants he believed that the protection he was receiving was inadequate.
In an Opinion and Order dated August 18, 1992 ("District Court Opinion"), the district court, to the extent pertinent here, granted Morgenthau's motion to dismiss but denied the motion of Rettler. The court pointed out that the complaint did not clearly specify whether Morgenthau and Rettler were being sued in their individual or official capacities. Noting that in such circumstances the inference as to the targeted capacity is normally to be drawn from the course of the proceedings, the court found, based on its review of the claims before it, that Morgenthau and Rettler were being sued only in their official capacities. The court dismissed the action as to Morgenthau, ruling that plaintiffs had "failed to allege that Morgenthau, acting in his official-capacity and under color of state law, deprived plaintiffs' decedent of a right guaranteed by the Constitution or laws of the United States." District Court Opinion at 7.
The court rejected Rettler's contention that he was entitled to immunity by reason of his prosecutorial position, stating, in pertinent part, as follows:
Morgenthau and Rettler claim that the 11th Amendment grants them absolute immunity from civil suit for actions taken in their official-capacities as agents of the state. The decision to grant or deny absolute immunity depends more, however, on the function being performed than on the office of the defendant, and the absolute immunity accorded to Morgenthau and Rettler will extend only as far as is necessary to the effective functioning of the judicial process. Day v. Morgenthau,
....
With regard to defendant Rettler, plaintiffs claim that by giving "counsel" to Detective Murray as to possible charges that could be brought against Thai, Rettler engaged in an activity outside his prosecutorial role and is thus not entitled to absolute immunity under the 11th Amendment.
The Second Circuit views the pre-litigation function that a prosecutor performs as having at least two aspects: "(1) the supervision and interaction of law enforcement agencies in acquiring evidence which might be used in a prosecution, and (2) the organization, evaluation, and marshalling of this evidence into a form that will enable the prosecutor to try a case, seek a warrant, indictment, or order." Barbera v. Smith,
In his official-capacity, Rettler is the head of the Asian Gang Unit. In this capacity he conferred with police over the possible charges against Thai. Further, he visited Ta at the jewelry store to discuss the possible arrest of Thai. Under these circumstances, we find that Rettler's relationship with the police falls within the first Barbera category and he is, thus, not entitled to absolute immunity. Rettler may, however, be entitled to qualified immunity for actions within Barbera 's first category. Such qualified immunity from suit is appropriate if a prosecutor's conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. Harlow v. Fitzgerald,
The constitutional right at issue here arose out of an alleged "special relationship" between law enforcement officials and Ta, such that Ta was entitled to police protection from a private individual. Assuming the allegations in the complaint are true, we cannot say that Rettler could not have been reasonably aware of the existence of a constitutional duty to protect Ta.... Thus, we find that plaintiffs have adequately stated a claim with respect to Rettler.
While defendant Rettler has moved, in the alternative, for summary judgment, we find that summary judgment is inappropriate at this stage of the litigation. The extent of Rettler's activities in relation to other law enforcement officials is clearly in dispute, thus raising issues of material fact as to whether Rettler was acting in his prosecutorial role or as an investigator. Based on this record, we decline to grant summary judgment for defendant Rettler.
District Court Opinion at 6-9.
Rettler has appealed from the denial of his motion, and plaintiffs have cross-appealed from so much of the order as granted Morgenthau's motion. The other individual defendants and the City of New York initially sought to appeal the denial of their motions, but their appeals have been withdrawn.II. RETTLER'S APPEAL
On his appeal, Rettler contends principally that the district court erred in not ruling that he was entitled to absolute immunity or, alternatively, qualified immunity. Preliminarily, we note that although the district court analyzed the availability of these privileges in terms of the parties' arguments as to whether Rettler's alleged conduct was "outside his prosecutorial role and is thus not entitled to absolute immunity under the 11th Amendment," District Court Opinion at 7; see also id. at 6-7, these arguments confused two types of immunities. The privileges of absolute and qualified immunity are entirely distinct from the immunity conferred by the Eleventh Amendment.
The Eleventh Amendment, with few exceptions, bars federal courts from entertaining suits brought by a private party against a state in its own name. See, e.g., Edelman v. Jordan,
The immunity to which a state's official may be entitled in a § 1983 action depends initially on the capacity in which he is sued. To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. See, e.g., Kentucky v. Graham,
To the extent that a state official is sued in his official capacity, "the only immunities available to [him] ... are those that the governmental entity possesses." Hafer v. Melo, --- U.S. at ----,
In sum, the capacities in which a state official is sued for damages under § 1983 establish parallel lines of privileges. To the extent that such a claim is asserted against the state official in his official capacity, he may assert the state's Eleventh Amendment immunity against suit, but he may not assert a personal official privilege of absolute or qualified immunity. To the extent that such a claim is asserted against him in his individual capacity, he may assert privileges of absolute or qualified immunity but may not assert immunity under the Eleventh Amendment.
In the present case, the district court, though noting that the complaint is silent as to the capacity in which the individual defendants are sued, ruled that it asserts claims against Rettler in only his official capacity. If ultimately correct, that ruling obviated the need for analysis of Rettler's claims of absolute or qualified immunity, i.e., privileges that are available only in defense of individual-capacity claims. However, the failure of a complaint to specify that claims against government officials are asserted against them in their individual capacities generally does not warrant an outright dismissal at the pleading stage, for " '[i]n many cases,' a complaint against public officials 'will not clearly specify whether officials are sued personally, in their official capacity, or both,' and only ' "[t]he course of proceedings" ... will indicate the nature of the liability to be imposed,' " Oliver Schools, Inc. v. Foley,
Although we do not think it is clear that only official-capacity claims are asserted, we conclude that all of the claims against Rettler should have been dismissed. To the extent that plaintiffs' claims are asserted against him in his official capacity, they should have been dismissed, as discussed with respect to Morgenthau in Part III below, either for failure to state a claim or because they are barred by the Eleventh Amendment. To the extent that the claims seek damages from Rettler in his individual capacity, they should have been dismissed on either the absolute or the qualified immunity grounds we discuss next.
A. Absolute Immunity
The entitlement of a prosecutor to absolute immunity from a claim for damages against him in his individual capacity on account of his official actions depends principally on the nature of the function performed, not on the office itself. See, e.g., Lawson v. Abrams,
Since as a matter of due process, a defendant to a criminal prosecution must be informed of the charges against him, see, e.g., In re Oliver,
Absolute prosecutorial immunity, however, extends only so far as is necessary either to protect the prosecutor against retaliation and hindsight challenges with respect to his prosecutorial decisions or to guarantee the effective functioning of the judicial process. Thus, generally only (a) the prosecutor's decisions with regard to whether or not to institute a prosecution and (b) his performance of his litigation-related duties are given the shield of absolute immunity. See, e.g., Imbler v. Pachtman,
The complaint in the present case, which makes many assertions against "defendants" in general, may be interpreted as asserting essentially three claims against Rettler: (1) that he declined to institute a criminal proceeding against Thai on felony charges with respect to the February 11 tampering and advised the police not to arrest Thai on such charges, (2) that he exposed Ta to an unreasonably increased risk of retaliation by causing him to make the February 13 face-to-face identifications, and (3) that he failed to provide Ta with protection against Thai and BTK. The different nature of the conduct asserted in these claims requires different immunity analyses.
The first claim focuses squarely on prosecutorial decisions as to whether or not to institute a prosecution, and if so on what charges. These are plainly decisions as to which Rettler is entitled to absolute immunity. Further, a prosecutor's communication to police officers of his decision as to precisely what charges he would, and what charges he would not, lodge against a given individual is so closely related to the prosecutorial decision itself as to warrant absolute immunity. Thus, to the extent that the complaint asserts that Rettler failed to fulfill an alleged obligation to prosecute Thai or to charge him with commission of a felony offense, and that he informed the police as to what charges would or would not be lodged, Rettler was entitled to summary judgment dismissing those claims on the ground of absolute immunity.
The other two claims, however, cannot be disposed of on this ground. To the extent that plaintiffs claim that Rettler caused the face-to-face identifications they plainly assert conduct of an investigative, not prosecutorial, nature; and the claim that Rettler failed to protect Ta asserts conduct that plainly is not integral either to a decision of whether or not to institute a prosecution or to the conduct of judicial proceedings. Accordingly, if Rettler is to be accorded immunity with respect to these two claims, it can only be a qualified immunity.
B. Qualified Immunity
The privilege of qualified immunity generally shields government officials from liability for damages on account of their performance of discretionary official functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
Jermosen v. Smith,
Because the defense of qualified immunity is designed to relieve government officials of the burdens of litigation as well as of the threat of damages, summary judgment is encouraged as a device for disposing of claims barred by qualified immunity. See, e.g., Harlow v. Fitzgerald,
has its principal focus on the particular facts of the case[, i]t may nonetheless permit the granting of summary judgment to the defendants if they adduce sufficient uncontroverted facts that, even looking at the evidence in the light most favorable to the plaintiffs and drawing all inferences favorable to the plaintiffs, no reasonable jury could conclude that it was objectively unreasonable for the defendants to believe that they were acting in a fashion that did not violate an established federally protected right.
Hurlman v. Rice,
In order to defeat a motion for summary judgment supported by proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required under Rule 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried. L & L Started Pullets, Inc. v. Gourdine,
These principles raise insurmountable barriers to plaintiffs' claim against Rettler for failure to provide Ta with protection, for "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Department of Social Services,
Other language in DeShaney has been interpreted as recognizing that in exceptional circumstances a governmental entity may have a constitutional obligation to provide such protection, either because of a special relationship with an individual, see id. at 198,
Special relationships that have been recognized to give rise to a governmental duty to protect against third-person attacks have included custodial relationships such as a prison and inmate or a mental institution and involuntarily committed patient, and the relationship between a social service agency and foster child. See DeShaney,
With respect to the increase-of-vulnerability exception to DeShaney 's general rule, we held in Dwares that a complaint alleging that police officers (a) agreed in advance with a certain group to allow members of that group to assault the plaintiff with impunity, (b) stood by without interfering when plaintiff was in fact beaten, and (c) did not arrest the assaulters, stated a claim for deprivation of due process because it alleged that government officials had "assisted in creating or increasing the danger to the victim."
Plaintiffs attempt to bring their claims under the special-relationship exception to DeShaney 's general rule by asserting in their complaint that Ta had a special relationship with defendants and thus possessed a clearly established constitutional right to protection. The district court noted this "alleged 'special relationship' between law enforcement officials and Ta, such that Ta was entitled to police protection from a private individual," and stated that, "[a]ssuming the allegations in the complaint are true," the court could not conclude "that Rettler could not have been reasonably aware of the existence of a constitutional duty to protect Ta." District Court Opinion at 9. This assessment insufficiently distinguished between questions of fact and questions of law. The nature of the relationship, here that between law enforcement officials and a complaining witness who was asked to identify suspects, is a question of fact. But whether such a relationship triggers a duty on the part of a given governmental official to provide protection against an attack by private actors is a matter of law. In assessing the sufficiency of a pleading to state a claim on which relief can be granted, the court is required to accept as true only the pleading's factual allegations, not the assertions of law. See generally 2A Moore's Federal Practice p 12.07[2.-5], at 12-63 to 12-64 (2d ed. 1993) ("legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness"). Likewise, with respect to a motion for summary judgment, questions of law are for the court. Thus, the district court made an unwarranted assumption of the truth of the complaint's allegation that Ta "was entitled" to protection. Whether or not there was such an entitlement was a question of law, and if the court could not conclude that a complaining witness who was asked to identify suspects had a clearly established constitutional entitlement to governmental protection from attack by private individuals, and that the corresponding obligation to protect fell at least in part on the prosecutors, Rettler was entitled to summary judgment on the ground of qualified immunity.
As the district court noted, the "parameters of what constitutes a special relationship ... are hazy and indistinct." District Court Opinion at 10. In Barbera v. Smith,
In addition, we note that Rettler's affidavit stated that on February 19 or 20 Rettler had in fact asked Ta whether he was satisfied with the police protection he was receiving and Ta stated that he was. Plaintiffs did not make any showing in opposition to this assertion sufficient to create a genuine issue for trial. Though the Gan affidavit, for example, contains some 15 express statements as to what Ta "told" Gan or "informed" her of, conspicuously absent is any averment that Ta ever told Gan that he had requested Thai's arrest or additional protection. Nor is there any suggestion of such a request in the affidavit of Ta's business partner Tran. To the contrary, Tran stated that Ta had been "very proud of himself," somewhat "boast[ful]" of his experience with the face-to-face identifications, and "did not feel threatened because he had the police with him and that they protected him." The Tran affidavit thus does not contradict but rather tends to support Rettler's assertion that Ta stated he was satisfied with the protection he was receiving. We doubt that a prosecutor would violate a complaining witness's due process rights by failing to provide the witness with additional protection when the witness has expressly denied that he wants additional protection. In any event, even if that were the law, it could not have been clear to an objectively reasonable prosecutor that it was the law.
Plaintiffs also seek to bring their claims within the ambit of Dwares by arguing that defendants unreasonably increased Ta's vulnerability by insisting that he attempt a face-to-face identification of the would-be extortionists. We are constrained first to note our skepticism as to whether that procedure could be deemed to have increased the risk to Ta unreasonably, since the would-be extortionists obviously already knew who he was. Ta himself had called in the police, and if charges were lodged, even without a face-to-face identification, the offenders could have no doubt that it was Ta who was their accuser. More importantly for the purposes of this appeal, plaintiffs have provided no factual support for an assertion that Rettler played any role in causing Ta to undertake that identification. Rettler submitted his own affidavit stating that he had not participated in any pretrial identification procedures involving Ta. The complaint itself is consistent with this representation, since it attributes the insistence on a face-to-face identification not to the prosecutors in particular or even generally to all of the defendants but merely to "[d]efendant[s] ... or some thereof." Plaintiffs did not submit any evidence to controvert the representation in Rettler's affidavit that he played no role in requesting that identification; nor did they adduce any factual basis for discrediting it. Thus, plaintiffs failed to support the crucial element of so much of their claim against Rettler as is based on the face-to-face identifications.
Finally, we note that as to a valid claim for prospective injunctive relief, Rettler would not have immunity under the Eleventh Amendment, see Edelman v. Jordan,
For the above reasons, we conclude that Rettler was entitled to summary judgment dismissing all of the § 1983 claims asserted against him in his individual capacity. The court should also, pursuant to 28 U.S.C. § 1367(c)(3) (Supp. II 1990), dismiss the state-law claims asserted against him, as it apparently dismissed such claims against Morgenthau.
III. PLAINTIFFS' CROSS-APPEAL
On their cross-appeal, plaintiffs contend that the district court erred in dismissing their claims against Morgenthau. Though Morgenthau's status is somewhat complex even if the complaint asserted claims against him only in his official capacity, not his individual capacity, we see no basis for reversal.
The district court ruled that Morgenthau had been sued only in his official capacity, and that he must therefore be treated as a state official:
"[I]n spite of the statutory classification a District Attorney is not an officer or employee of the municipality (Zimmerman v. City of New York,
District Court Opinion at 6. This ruling was correct to the extent that the complaint attacked a decision as to whether or not to prosecute Thai. "When prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county." Baez v. Hennessy,
Further, although § 1983 imposes liability on every "person" who, under color of state law or custom deprives another of a federal right, neither a state nor a state official sued in his official capacity is a "person" within the meaning of this section. See Will v. Michigan Department of State Police,
With respect, however, to claims centering not on decisions whether or not, and on what charges, to prosecute but rather on the administration of the district attorney's office, the district attorney has been treated not as a state official but rather as an official of the municipality to which he is assigned. See, e.g., Walker v. City of New York,
To the extent that the complaint sought to assert individual-capacity claims against Morgenthau, plaintiffs fare no better, for a supervisory official cannot be held liable under § 1983 on a theory of respondeat superior. See, e.g., Monell v. Department of Social Services,
In sum, we see no basis for reversal of the district court's dismissal of the claims against Morgenthau.
CONCLUSION
For the foregoing reasons we reverse so much of the district court's order as denied the motion of Rettler for summary judgment and we remand for entry of judgment dismissing the claims against him. We affirm so much of the order as dismissed the claims against Morgenthau. We of course express no view as to the merits of plaintiffs' claims against the remaining defendants.