Opinion
04 Civ. 8905 (NRB).
July 15, 2005
Kenny Calderon, Gouverneur Correctional Facility, Gouverneur, NY.
Michael S. Morgan, Esq., Melissa B. Marrus, Esq., Assistant District Attorney, District Attorney, New York County, New York, NY.
Susan P. Scharfstein, Esq., Assistant Corporation Counsel, Special Federal Litigation Division, City of New York, Law Department, New York, NY.
MEMORANDUM AND ORDER
Pro se plaintiff Kenny Calderon ("plaintiff" or "Calderon") has filed this cause of action against defendants Detective Michael Morales ("Detective Morales"), Assistant District Attorney Lisa Hynes ("A.D.A. Hynes"), District Attorney Robert Morgenthau ("D.A. Morgenthau"), the New York City Police Department ("NYPD"), and the New York County District Attorney's Office ("NYCDA") (collectively "defendants") alleging false arrest and malicious prosecution in violation of 42 U.S.C. § 1983. Defendants Morgenthau and the NYCDA ("moving defendants") have filed a motion to dismiss plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, plaintiff's complaint is dismissed against D.A. Morgenthau, A.D.A. Hynes, and the NYCDA.
BACKGROUND
On July 25, 2001, Kenny Calderon was arrested in front of his home in the Bronx by Detective Morales. At the time of his arrest, plaintiff was suspected of having committed a burglary in Manhattan approximately three months earlier. According to plaintiff's complaint, the sole source of this suspicion was an uncorroborated claim made by the actual perpetrator, Henry Torres, as part of a plea bargain. Compl. ¶ 5. Calderon further alleges that during his post-arrest interrogation, Detective Morales coerced him into signing a false confession written by Detective Morales. Based on this false information, Calderon was indicted and tried for first-degree burglary. On April 11, 2002, Calderon was acquitted of all charges. Calderon contends that A.D.A. Hynes knew that the evidence against him was false, yet still sought an indictment and pursued the case to trial. On September 28, 2004, Calderon filed the instant complaint alleging violations of his civil rights, and seeking ten million dollars in damages, the forced resignation of D.A. Morgenthau, A.D.A. Hynes, and Detective Morales, and the criminal prosecution of Detective Morales.DISCUSSION
I. Motion To Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Caiola v. Citibank, N.A., New York, 295 F.3d 312, 321 (2d Cir. 2002) (internal quotations and citations omitted). In considering a motion to dismiss, we accept as true all material factual allegations in the complaint.Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l, Ltd., 968 F.2d 196, 198 (2d Cir. 1992). In addition, a complaint must be liberally construed when the plaintiff is proceeding pro se. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). However, dismissal of a pro se complaint is appropriate if it fails to meet the minimal standards discussed above. Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997).
II. Plaintiff's Malicious Prosecution Claim Against A.D.A. Hynes
It does not appear the A.D.A Hynes has been served in this action. However, under 28 U.S.C. 1915(e)(2), a district court maysua sponte dismiss a complaint filed in forma pauperis that seeks monetary damages against a defendant who is entitled to immunity. 28 U.S.C. 1915(e)(2)(B)(3).
To establish malicious prosecution under New York law, a plaintiff must establish that: (1) the defendant either commenced or continued a prosecution against him; (2) the proceeding terminated in the plaintiff's favor; (3) there was no probable cause for the criminal proceeding; and (4) the proceeding was instituted with actual malice. Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999).
It is unclear from plaintiff's complaint whether he is suing A.D.A. Hynes in either her official or individual capacity. To the extent he is suing her in her official capacity as an attorney for the state, "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." Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). Accordingly, plaintiff's malicious prosecution claim against A.D.A. Hynes in her official capacity is barred.
Individual capacity suits "seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25 (1991). In her individual capacity, however, A.D.A. Hynes enjoys absolute immunity for acts performed during the "initiation and pursuit of criminal prosecution, including presentation of the state's case at trial." Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). This absolute immunity applies to any acts "intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and covers "virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
Prosecutorial acts outside the prosecutorial function are not entitled to absolute immunity from suit. "[T]he absolute immunity accorded a prosecuting attorney is extended only so far as is necessary to the effective functioning of the judicial process."Robison v. Via, 821 F.2d 913, 918 (2d Cir. 1987). Absolute immunity does not extend to "those acts a prosecutor performs in administration or investigation not undertaken in preparation for judicial proceedings." Buckley, 509 U.S. at 270. Accordingly, a prosecutor generally does not receive absolute immunity for acts involving the execution of arrest warrants and searches. See Day v. Morgenthau, 909 F.2d 75, 77-78 (2d Cir. 1990).
Applying the standard above, A.D.A. Hynes is absolutely immune to suit for damages because the alleged violations occurred while performing her prosecutorial function. Nothing in plaintiff's complaint or opposition suggests that A.D.A. Hynes ever strayed from her role as an advocate for the state. Calderon has not alleged that A.D.A. Hynes had any role in his arrest or the police investigation prior to his indictment. Calderon contends only that A.D.A. Hynes was aware that: (1) the informant had given the police false information in exchange for a plea bargain, and (2) that Detective Morales had coerced a false confession from him after his arrest. Despite this alleged knowledge, Calderon claims that A.D.A. Hynes proceeded to indict and prosecute Calderon for burglary. Even assuming the truth of Calderon's allegations, A.D.A. Hynes' is still absolutely immune for her acts. "A prosecutor is absolutely immune even if, as alleged here, the prosecutor knowingly presents perjurious testimony, whether to a grand jury or at trial." Jenkins v. City of New York, No. 98 Civ. 7170, 1999 WL 782509, at *13 (S.D.N.Y. Sept. 30, 1999). As her actions were "intimately associated with the judicial phase of the criminal process," A.D.A. Hynes is immune to suit for damages.Imbler, 424 U.S. at 430. Accordingly, plaintiff's complaint against A.D.A. Hynes is dismissed. See Bernard v. County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004).
III. Plaintiff's Claim Against D.A. Morgenthau
The "personal involvement of defendant in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Moffit v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977); see also Ying Jing Gan, 996 F.2d at 536 ("[A] supervisory official cannot be held liable under § 1983 on a theory of respondeat superior."). Therefore a plaintiff may not base a claim against a supervisory official on the doctrine of respondeat superior, but rather must allege a direct or personal involvement by the defendant in the purported constitutional deprivation. Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement of a supervisory official can be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [plaintiff] by failing to act on information indicating that unconstitutional acts were occurringColon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Calderon's claim against D.A. Morgenthau rests solely on his role as a supervisory official in the NYCDA's office. Calderon does not assert that D.A. Morgenthau was involved in his arrest or prosecution in any manner. The sole reference to D.A. Morgenthau in Calderon's complaint is in his prayer for relief, where Calderon states that he "wants Robert Morgenthau to be disbarred and forced to resign as the District Attorney of N.Y. County." Compl. ¶ 5. Because there are no allegations that D.A. Morgenthau had any personal involvement in the alleged constitutional violations, Calderon's claims against D.A. Morgenthau are dismissed.
Even if D.A. Morgenthau had been personally involved in plaintiff's prosecution, D.A. Morgenthau would be entitled to absolute immunity for his prosecutorial acts under the standard discussed in Part II, supra.
IV. The NYCDA is not a Suable Entity
The capacity of entity to be sued is determined under New York law. See Fed.R.Civ.P. 17(b). "Under New York law, the [NYCDA] does not have a legal existence separate from the District Attorney himself." Gonzalez v. City of New York, No. 98 Civ. 6081, 1999 WL 549016, at *1 (S.D.N.Y. Jul. 28, 1999);see also Steed v. Delohery, No. 96 Civ. 2449, 1998 WL 440861, at *1 ("The New York County District Attorney's Office is not a suable entity."). Accordingly, plaintiff's complaint against the NYCDA is dismissed.
CONCLUSION
For the reasons stated above, plaintiff's complaint is dismissed as to D.A. Morgenthau, A.D.A. Hynes, and the NYCDA.IT IS SO ORDERED.