Opinion
04 Civ. 2113 (SHS).
August 4, 2004
MEMORANDUM ORDER
Plaintiff Jaibe Sivadel brings this action against New York City, individual New York police officers, District Attorney Robert M. Morgenthau and an assistant district attorney pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988 and the laws of the State of New York seeking to recover for violations of his rights that occurred when he was arrested and detained on September 7, 2002, and subsequently prosecuted. Defendant Morgenthau now moves to dismiss the claims asserted against him pursuant to Fed.R.Civ.P. 12(b)(6).
I. Background
A. The Events of September 7, 2003
Plaintiff alleges that on September 7, 2003 he observed two police officers — one named Rodriguez and another whose name he does not know — brutalizing a third person. Sivadel "questioned Rodriguez regarding the propriety of his actions" and was thereafter arrested and detained for disorderly conduct. (Compl. ¶ 22). Sivadel claims that the arrest was made without probable cause and was unreasonable.
Plaintiff also claims that he had a pre-existing back injury, and that the officers used excessive force in restraining him, despite knowing about that injury. (Compl. ¶¶ 25-27). The police officers, after restraining plaintiff in such a way as to reinjure his back, allegedly dragged him into the police car while he was handcuffed. (Compl. ¶¶ 28-29).
After the arrest, Sivadel claims that Morgenthau and an unnamed assistant district attorney falsely prosecuted him for disorderly conduct, (Compl. ¶ 32-35), but that prosecution was ultimately dismissed. (Compl. ¶ 40).
In response to the District Attorney's motion, Sivadel claims that he is African-American and that the arrest and prosecution were racially motivated and seeks leave to amend the complaint to include those facts. See, Affirmation in Opposition and Request for Discovery Pursuant to Fed.R.Civ.P. 56(f), at ¶ 20.
B. Allegations Regarding Morgenthau
The complaint asserts that Morgenthau is liable under federal law for malicious prosecution and for failing to train, supervise and discipline his employees. Sivadel also alleges various state law claims, including intentional infliction of emotional distress, negligent supervision, and state constitutional torts. Sivadel alleges that Morgenthau, acting in his administrative capacity as a manager or policymaker for the District Attorney's Office, negligently trained or failed to train, supervise, or discipline his agents, including the assistant district attorney responsible for prosecuting plaintiff. He also alleges that Morgenthau was negligent in the hiring or retention of his agents and that Morgenthau's negligence injured plaintiff. (Compl. ¶¶ 65-70). Plaintiff provides no specific information to support those allegations, beyond the September 7 incident and resulting prosecution.
II. Discussion
A. Standard
In evaluating a motion to dismiss a complaint pursuant to Fed.R.Civ.P. 12(b)(6), this Court presumes that the facts alleged are true and draws all reasonable inferences in the plaintiff's favor. See Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir. 1999). The plaintiff's claim may be dismissed only 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."Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171 (2d Cir. 1998) (citations omitted).
B. Malicious Prosecution
Plaintiff's claim for malicious prosecution must be dismissed because plaintiff has not alleged any actions by Morgenthau that were not acts taken in "initiating a prosecution and in presenting the State's case." Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Morgenthau is entitled to prosecutorial immunity for those actions. Id. In addition, absent allegations that defendant was acting outside of that immunity, he cannot be liable for the prosecution in his individual capacity. Id. Moreover, a federal action cannot be brought against a state actor for actions taken in his official capacity pursuant to section 1983, as such an action is precluded by the Eleventh Amendment to the U.S. Constitution. Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988); Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Thus, plaintiff fails to state a cause of action for malicious prosecution.
C. Failure to Train
The Eleventh Amendment does not bar a failure to train claim against Morgenthau in his individual capacity as an administrator of the district attorney's office. "A prosecutor does not enjoy absolute immunity for acts that are merely administrative, rather than prosecutorial, in nature."Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir. 1989). To the extent that plaintiff seeks to claim that Morgenthau acted as a municipal policymaker, in his official capacity, and violated plaintiff's rights, his claims are against the City, not the District Attorney. Eisenberg v. District Attorney of Kings County, 847 F. Supp. 1029, 1036 (E.D.N.Y. 1994). The City is already a party to this action, and therefore District Attorney Morgenthau is not the proper defendant for those claims.
Even if Morgenthau were the proper defendant for plaintiff's claims, plaintiff has failed to properly state a claim against Morgenthau. Defendant's papers assume that plaintiff seeks to allege that Morgenthau's failure to train and supervise the prosecutors on his staffled to the establishment of a policy of commencing prosecutions that were not supported by probable cause. (Def. Mot. Dismiss, p. 7). Plaintiff's affirmation in opposition to that motion suggests that he may seek to allege that the failure to train or supervise resulted in a racially motivated prosecution. Whatever plaintiff's claim is, he has failed to identify any municipal policy or custom though which he was injured.
Where a government official is named in his official capacity it is the equivalent of naming the government entity itself as the defendant; thus the plaintiff must set forth an official policy or custom giving rise to his injury. See Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995); Sweeney v. City of New York, No. 03 Civ. 4410, 2004 WL 744198, at *6 (S.D.N.Y. Apr. 2, 2004). Additionally, an allegation that a `policy or custom' existed "is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Maxwell v. City of New York, 272 F. Supp. 2d 285, 303 (S.D.N.Y. 2003). Moreover, to support Morgenthau's liability, plaintiff must allege the personal involvement of the government official in the alleged unconstitutional acts. Id.; Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Sivadel's complaint does not allege any specific negligence or failure by Morgenthau. In order to be entitled to proceed with his claim, plaintiff must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A. 534 U.S. 506, 512 (2002); citing Conley v. Gibson, 355 U.S. 41, 47 (1957). Plaintiff has failed to give Morgenthau fair notice of the claim, because the vague allegations provided in the complaint relating to the prosecution of Sivadel do not indicate any policy or practice of Morgenthau.
Moreover, plaintiff's claims are barred by Morgenthau's prosecutorial immunity. First, where "the policy and conduct that plaintiff complains of [are] not sufficiently distinct from the decision whether or not to prosecute" the allegations will not "defeat the District Attorney's entitlement to absolute immunity." Eisenberg v. District Attorney of County of Kings, 847 F. Supp. 1029, 1037 (E.D.N.Y. 1994). Plaintiff has not alleged any facts beyond the fact of his own prosecution to support the claims against Morgenthau. Therefore, he has not alleged any policy or conduct that is distinct from the decision of whether to prosecute him.
Although plaintiff's allegations are technically framed as claims of misconduct in the exercise of administrative responsibilities, this complaint seeks to hold Morgenthau responsible for the practices of the district attorneys he supervises. Thus, plaintiff's allegations are really an attempt to circumvent the prosecutor's immunity through pleading supervisory actions. Nonetheless, because plaintiff has not alleged any action that was taken by Morgenthau as a supervisor or administrator, aside from overseeing the decision of the assistant district attorney regarding whether or not to prosecute, he is entitled to absolute prosecutorial immunity for the facts alleged in this complaint. See e.g., Stovall v. Staroff, No. 83 Civ. 8066, 1984 WL 1012, at *2-3 (S.D.N.Y., Oct. 12, 1984); Sheff v. City of New York, No. 03 Civ. 708, 2004 WL 594894, at *6 (S.D.N.Y. Mar. 24, 2004)
C. State Law Claims
Morgenthau is entitled to prosecutorial immunity that bars plaintiff's state law claims as well. Coakley v. Jaffe, 49 F. Supp. 2d 615, 627 n. 11 (S.D.N.Y. 1999), aff'd, 234 F.3d 1261 (2d Cir. 2000). Moreover, New York has not waived its sovereign immunity for actions taken by governmental officers exercising discretion. Maloney v. Board of Educ. of Buffalo, 177 A.D.2d 1012 (4th Dep't 1991). Thus, Morgenthau cannot be held liable for the discretionary decisions made in hiring, training and supervising district attorneys. See id.; see also Kenavan v. City of New York, 70 N.Y.2d 558, 569 (1987).
D. Plaintiff Is Not Entitled to Further Discovery
Sivadel seeks to avoid the dismissal of his claims for relief against Morgenthau by asserting that he is entitled to discovery pursuant to Fed.R.Civ.P. 56(f), which is applicable to motions for summary judgment and not motions to dismiss a complaint pursuant to Fed.R.Civ.P. 12(b)(6). Dolan v. Roth, No. 03 Civ. 538, 2004 WL 1558788, *5 (N.D.N.Y. July 13, 2004) (citingThomas v. Nakantani, 128 F. Supp. 2d 684, 694 (D.Hawai'i 2000), aff'd on other grounds, 309 F.3d 1203 (9th Cir. 2002). Moreover, plaintiff has made no showing whatsoever that he will be able to present facts to support his claims that the district attorney engaged in a custom or practice of violating civil rights after further discovery. The Rules of Civil Procedure do not entitle plaintiff to engage in a fishing expedition.
III. Conclusion
Plaintiff's claims against Morgenthau are dismissed in whole as all of his claims are barred by either the Eleventh Amendment or Morgenthau's prosecutorial immunity.
SO ORDERED.