Summary
denying motion for reconsideration where party raised the same arguments previously rejected by this Court
Summary of this case from Weiss v. Violet Realty, Inc.Opinion
04-CV-0121E(SC).
June 23, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff Joann L. DiPilato, proceeding pro se, filed a Complaint on February 24, 2004 alleging, inter alia, that Timothy Drabik, Assistant District Attorney for the County of Orleans, had violated 42 U.S.C. §§ 1983 1985 by denying her (1) equal protection of the law as guaranteed by the Fourteenth Amendment and (2) due process of law as guaranteed by the Fifth and Fourteenth Amendments. On April 8 Drabik moved to dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure ("FRCvP") seeking dismissal of DiPilato's Fourth Claim. Drabik's motion was argued and submitted May 21. For the reasons set forth below, Drabik's motion to dismiss will be granted and DiPilato's fourth claim will be dismissed.
Although Drabik cites FRCvP 12(b)(1) as a basis for dismissal, he failed to explain why this Court lacks subject matter jurisdiction over DiPilato's fourth claim. Consequently, this Court will not address FRCvP 12(b)(1) herein because it is aware of no defect in its subject matter jurisdiction. DiPilato's Complaint contains four claims. Drabik's motion to dismiss addresses the fourth claim only.
When ruling on a motion to dismiss for failure to state a claim pursuant to FRCvP 12(b)(6), this Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor" — Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (citation omitted) — and cannot dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). Moreover, when reviewing a motion to dismiss, this Court must of course limit its review to the face of the Complaint and documents incorporated therein that are properly subject to judicial notice. See Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). Furthermore, because DiPilato is proceeding pro se, this Court will read her "supporting papers liberally, and * * * interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
See also Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003) ("The rule favoring liberal construction of pro se submissions is especially applicable to civil rights claims.").
DiPilato alleges the following. Defendant Hendrickson, a former Village of Holley police officer, arrested DiPilato on October 31, 2001 for Driving While Intoxicated in violation of New York State Vehicle and Traffic Law subsections 1192(2) and (3). DiPilato was prosecuted by Assistant District Attorney Drabik. DiPilato entered into a plea agreement and pled guilty to having violated subsection 1192(3). After entering her plea, DiPilato discovered that Officer Hendrickson was not properly certified as a police officer under New York General Municipal Law section 209-q because he had failed to complete a training program during his one year probationary period. Consequently, DiPilato argues that all official action taken by Officer Hendrickson was without legal effect and that, once Drabik became aware of such, his continued prosecution of her case amounted to a deprivation of her equal protection rights as secured by the Fourteenth Amendment.
Officer Hendrickson was terminated by the Village of Holley on August 1, 2002 because he failed to earn his police certification within the prescribed time limit.
DiPilato further alleges that Drabik failed to file his official oath upon assuming the duties of Assistant District Attorney pursuant to section 10 of the New York Public Officers Law. Drabik does not dispute this allegation. Nonetheless, even assuming the truth of the allegation, Drabik's failure to file an official oath does not nullify his actions as a prosecutor. Although the failure to file an oath pursuant to the Public Officers Law is grounds for removal from public office, such a failure does not negate a public officer's actions. Indeed, under section 15 of the Public Officers Law, if a public officer has failed to file an oath of office, "his acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed."
Section 10 mandates that "every officer shall take and file the oath of office required by law, and every judicial officer of the unified court system, in addition, shall file a copy of said oath in the office of court administration, before he shall be entitled to enter upon the discharge of any of his official duties."
See N.Y. Pub. Off. Law § 30(1)(h) (McKinney 2001).
N.Y. Pub. Off. Law § 15 (McKinney 2001); see also In re Pardee's Estate, 259 A.D. 101 (4th Dep't 1940) (holding that the acts of a special county judge after his appointment but before his filing of an official oath were a valid exercise of judicial authority); County of Ontario v. W. Finger Lakes Solid Waste Mgmt. Auth., 167 A.D.2d 848, 849 (4th Dep't 1990) ("A presumptively valid but defeasible appointment does not warrant invalidation of the acts of the appointee or the body to which he was appointed. Under the de facto [ sic] officer doctrine, the acts of one who carries out the functions of a public office under color of authority are generally valid as to third persons and the public, and hence immune from collateral attack, notwithstanding irregularities in the manner in which the officer was appointed ( Sylvia Lake Co., Inc. v. Northern Ore Co., 242 N.Y. 144, 147 [(1926)]).") (citations omitted); Sylvia Lake, at 147 ("Offices are created for the benefit of the public. Private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions."). Moreover, Drabik did not act improperly in prosecuting DiPilato because Hendrickson arrested DiPilato while acting as a de facto police officer. See Malone v. County of Suffolk, 968 F.2d 1480, 1482 (2d Cir. 1992) (holding that plaintiff's arrest was valid despite the fact that the arresting officers were illegally hired and thus only de facto police officers).
DiPilato claims that Drabik maliciously prosecuted her after discovering that Officer Hendrickson had failed to file an oath of office. Although DiPilato asserts claims against Drabik in both his official and personal capacities, Drabik contends that it is unnecessary to consider the merits of DiPilato's malicious prosecution claim because he is entitled to absolute immunity in his personal capacity and Eleventh Amendment immunity in his official capacity. This Court agrees. The Court of Appeals has noted that
"[i]n creating a civil cause of action for constitutional torts, 42 U.S.C. § 1983 itself recognizes no immunities. Nevertheless, the Supreme Court has concluded that Congress did not intend § 1983 to abrogate `immunities well grounded in history and reason.'" Bernard v. County of Suffolk, 356 F.3d 495, 502 (2d Cir. 2004) (citing Imbler v. Pachtman, 424 U.S. 409, 418 (1976)).
One such immunity is the absolute immunity afforded to prosecutors who function as advocates for the state in matters that are "intimately associated with the judicial phase of the criminal process." Indeed, a prosecutor "engaged in advocative functions will be denied absolute immunity only if he acts `without any colorable claim of authority.'"
Imbler, at 430.
Bernard, at 504 (quoting Schloss v. Bouse, 876 F.2d 287, 291 (2d Cir. 1989)).
DiPilato contends that Drabik is not entitled to absolute immunity because he assumed investigative duties of the type usually performed by police officers. When a prosecutor's acts are of an investigative or administrative character, he is entitled only to receive qualified immunity. Drabik's conduct, however, was not investigatory. Indeed, the Complaint only alleges that Drabik initiated a prosecution, oversaw plea bargaining and represented the state's interests at post-judgment motion hearings. These duties are prosecutorial in nature. Accordingly, Drabik is entitled to absolute immunity in his personal capacity.
See Buckley v. Fitzsimmons, 509 U.S. 259, 269-270 (1993); see also Kalina v. Fletcher, 522 U.S. 118, 129-131 (1997) (holding that absolute immunity does not apply to a prosecutor who essentially performed the function of a complaining witness when she signed a sworn affidavit supporting an application for an arrest warrant, a function normally reserved in other parts of the country for detectives or police officers); Burns v. Reed, 500 U.S. 478, 492-496 (1991) (holding that a prosecutor is entitled only to qualified immunity with respect to the offering of legal advice to police officers conducting an investigation).
Imbler, at 421-427, 430-431. Absolute prosecutorial immunity has been so broadly defined that a prosecutor has absolute immunity 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) (granting absolute immunity to prosecutor who allegedly conspired to present false evidence).
DiPilato contends that Drabik's prosecution of her, without having filed his oath of office, lacked a colorable claim of authority. She cites several cases for the proposition that "[o]nly when a prosecutor acts without the clear presence of statutory authority, absolute immunity is lost." Pl.'s Response ¶ 3 (citing Stump v. Sparkman, 435 U.S. 349, 357 (1978); Kerr v. Lyford, 171 F.3d 330, 337 (5th Cir. 1999); and Snell v. Tunnell, 920 F.2d 673, 694 (10th Cir. 1990)). The Second Circuit Court of Appeals has also applied Stump when analyzing claims of absolute immunity by prosecutors. See, e.g., Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996); Schloss, supra note 9, at 291. Nonetheless, Stump and its progeny are unavailing because Drabik's prosecution of DiPilato under section 1192 of New York's Vehicle and Traffic Law is conduct within the jurisdiction of an assistant district attorney. See, e.g., Imbler, at 430 (conferring absolute immunity where prosecutor's "activities were intimately associated with the judicial phase of the criminal process"); Buckley, supra note 10, at 269 ("In determining whether particular actions of government officials fit within a common-law tradition of absolute immunity, or only the more general standard of qualified immunity, we have applied a `functional approach,' which looks to `the nature of the function performed, not the identity of the actor who performed it.'") (citations omitted). Moreover, as discussed above, Drabik's acts are valid under section 15 of New York's Public Officers Law despite the fact that he failed to file an oath of office. See supra note 7. Accordingly, Drabik is entitled to absolute immunity because he had a colorable basis to prosecute DiPilato. See Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987).
In his official capacity, Drabik is entitled to immunity under the Eleventh Amendment which, with exceptions not applicable here, immunizes a non-consenting state from suit by its own citizens or citizens of another state. Moreover, "[t]o 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." In other words, "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." Consequently, Drabik is entitled to Eleventh Amendment immunity in his official capacity.
Cooper v. Masiello, 2000 WL 432813, at *2 (W.D.N.Y. 2000) (quoting Edelman v. Jordan, 415 U.S. 651, 662-663 (1974)).
Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993).
Ying Jing Gan, supra note 14, at 536.
Accordingly, it is hereby ORDERED that Drabik's motion to dismiss is granted, that all of plaintiff's claims against Drabik are dismissed and the caption of this action shall now read:
"JOANN C. DiPILATO, Plaintiff,
-vs-
VILLAGE OF HOLLEY, Orleans Co., N.Y., VILLAGE OF HOLLEY, POLICE FORCE AND ITS OFFICERS, personal official capasitys, JAMES DeFILLIPS, in official and personal capasity, and PETER HENDRICKSON, personal official capasity, Defendants."