Opinion
No. 01 Civ. 9874 (HB)
October 22, 2002
OPINION AND ORDER
Nicholas Tartaglione ("plaintiff") brings this action pursuant to 42 U.S.C. § 1983, 1985, 1986, and 1988 against police officers and investigators employed by the Village of Briarcliff Manor Police Department in Westchester, New York ("officers"); the Village of Briarcliff Manor Police Department ("department") as well as the Village of Briarcliff Manor ("village") [collectively, "Briarcliff defendants"]; Westchester County District Attorney Jeanine Pirro ("Pirro") and Assistant District Attorney Michael Hughes ("Hughes"); the District Attorney's Office of Westchester County ("DA's office"); and Westchester County ("County") [collectively, "County defendants"]. Following oral argument on the County defendants' motion to dismiss pursuant to Fed.R.Civ.P. ("FRCP") 12(b)(6), I dismissed the complaint against all defendants except Hughes and the Briarcliff defendants on April 8, 2002. By letter dated April 9, 2002. the Briarcliff defendants joined in Hughes' motion to dismiss. Plaintiff has cross-moved to serve a second amended complaint pursuant to FRCP 15(a) and/or for permission to provide a more definite statement pursuant to FRCP 12(e). On May 20, 2002, plaintiff filed a declaration in opposition to the remaining defendants' motion to dismiss and in further support of his cross-motion to serve a second amended complaint. By order dated October 2, 2002, I granted plaintiffs motion to amend his complaint pursuant to FRCP 15(a), notified the parties that I planned to convert defendants' motion to dismiss into a motion for summary judgment pursuant to FRCP 56(c), and permitted supplementation of the record. For the reasons detailed more fully below, defendants' motion to dismiss pursuant to FRCP 12(b)(6), converted by the Court into a motion for summary judgment pursuant to FRCP 56(c), is granted.
Further, pursuant to 28 U.S.C. § 1367(c)(3), the court declines to exercise supplemental jurisdiction over the asserted pendent state claims against defendants. Accordingly, plaintiffs pendent state claims — including the claim for negligent supervision — against all defendants are dismissed as well.
BACKGROUND
Plaintiff, a former police officer employed by the department, was assigned on May 2, 1999 to patrol the east side of the municipality. (Second Amended Compl. ¶ 6). That night, plaintiff made a routine traffic stop of a motorist, suspected that the motorist was driving under the influence of alcohol, and administered a roadside alco-sensor test. (Id. ¶¶ 19, 20). Shortly thereafter, plaintiff advised a fellow officer and his "partner" that evening, Officer Adamitis ("Adamitis"), that he was to meet plaintiff and the motorist at police headquarters in order to administer a chemical test in furtherance of the police investigation. (Id. ¶ 21). At police headquarters, the motorist remained at all times with Officer Pugliese ("Pugliese"), who was assigned to desk duty that evening. Pugliese claims that he told the motorist that he might lose his license should he refuse the chemical test. (Id. ¶¶ 22-26; Pl's supplemental declaration Ex. A). Pursuant to department policy, a motorist, upon being arrested, must be warned that "[r]efusal to submit to a chemical test, or any portion thereof, will result in the immediate suspension and subsequent revocation of your license or operating privilege whether or not you are found guilty of the charge for which you are arrested." (Pl's supplemental declaration Ex. A). When the motorist refused to submit to the test at police headquarters, plaintiff placed him under arrest and charged him with driving under the influence of alcohol as well as with a DMV administrative violation for refusal to submit to the test. (Second Amended Compl. ¶ 27). At that point, plaintiff completed written statements indicating that the motorist was being arrested for driving while under the influence of alcohol. (Id.). Specifically, plaintiff completed a report of refusal to submit to a chemical test in which plaintiff noted that he — plaintiff — had read the motorist the refusal warnings at police headquarters. (Raimondi Reply Declaration Ex. A). Plaintiff also signed a DWI offense report in which he indicated that the motorist "was advised of his rights concerning a refusal." (Id. Ex. C).On May 18, 1999, plaintiff was informed that he would be required to attend a DMV administrative hearing, to be held the following day, relative to the DWI charges against the motorist. (Second Amended Compl. ¶ 30). That same day, plaintiff informed Ronald Trainham ("Trainham"), Chief of the department, by telephone — a transcript of which appears as an exhibit to the Raimondi Reply Declaration — that he was friends with an individual who was himself a friend of the motorist whom he arrested. During that conversation, plaintiff questioned Trainham whether it would be possible for him to avoid the hearing altogether because he had read the motorist his refusal rights and wanted to help out his friend, and even suggested that he might attempt to circumvent the question at the administrative hearing. (Raimondi Reply Declaration Ex. B). Because I find that the taped conversation overwhelmingly suggests that plaintiff committed perjury at the administrative hearing by withholding the fact that he had given the motorist refusal warnings, I quote from the transcript of that conversation almost in its entirety:
According to the transcript of the taped conversation, "NT" designates the plaintiff and "CT" designates Trainham.
CT: Hey.
NT: Um. . . I just got a call ah. . . I want to cl. . . make sure its [sic] alright with you first. Ah. . . I got a refusal hearing tomorrow.
CT: Hmm, hmm.
NT: And it turns out that this guy's buddies of ah. . . actually a lot of guys I know even, some from Mount Vernon some from . . . you know this kind of (inaudible) team and everything.
CT: Who, the guy that refused?
NT: Yeah. Um. . . he didn't know that refusing. . . you. . . even though I read him his rights, he didn't know that license is suspended blah. . . blah. . . blah. Ah. . . so they're wondering if I could kinda let go on the refusal. I just wanted. . . make [sic] sure that that was all right with you first.
CT: I would take it easy. I would take it ea. . . you mean, not go?
NT: Yeah.
CT: No, I would not. . . I would not, not go. I might say that maybe he didn't understand what I was saying to him or something at the fe. . . at the refusal hearing or something.
NT: All right.
CT: You know I would never. . . I mean. . . I would never . . .
NT: Okay.
CT: You know, look I mean, its [sic] all done now, you know what I'm saying?
NT: All right, right, okay. But if I could just. . . not show up cause I mean I got a dentist [sic] tomorrow any way.
CT: Well, that's no reason not to show up when you say I had a dentist appointment?
NT: Ah.
CT: That's part of your. . . you know.
NT: Yeah, all right. I'll just go there and see if I can.
CT: See if you can. . . you know. . . see what ha. . . what arises there for you to work with.
NT: Right. O.K. . . .
CT: You know. I mean if nothing does . . .
NT: All right.
CT: Hey.
NT: Huh.
CT: Ah. . . . I know you like to help other guys out but, I . . . I wouldn't jeopardize your job for that.
NT: Right. Okay.
CT: That's what I'm saying.
NT: All right.
CT: Okay.
NT: I'll go and just ah . . . (inaudible) get O.T. then.
CT: Hemm?
NT: I'm expecting to get overtime in.
CT: Yeah, well I. . . I. . . you know I can't not tell you not to go so you don't make overtime.
NT: No. . . no. . . no. . . . . . . I. . . no. . . no I just want. . . you know, something like this . . .
CT: Yeah.
NT: I'm always gonna check with you first on.
CT: Yeah. No, I would never do that.
NT: All right.
CT: You know. Okay.
NT: All right, thanks Chief.
CT: Bye.
NT: Bye. (Raimondi Reply Declaration Ex. B).
Whereas Trainham advised plaintiff that he might testify that the motorist "didn't understand what [plaintiff] was saying to him," he also suggested that he would "never" lie on the stand and that he would never jeopardize his job to help out a friend. (Id. Ex. B, at 2). Although plaintiff attended that hearing on May 19, he "forgot" to bring his administrative file, which contained explicit documentation of the refusal warnings that he had administered to the motorist on May 2, and consequently testified under oath that he was unable to recall whether he or his "partner," Adamitis, administered the refusal warnings — despite the fact that plaintiff expressly told Trainham that he had given the motorist the warnings ("Um . . . he [the motorist] didn't know that refusing . . . you even though I read him his rights, he didn't know that license is suspended blah. blah . . . blah") as well as the fact that plaintiff signed his name to reports in which he indicated that he gave the motorist refusal warnings at police headquarters. Specifically, plaintiff testified, under oath, that
[t]he defendant [motorist] did refuse [to take the test]. However, your Honor, upon further investigation, I mistakenly believed that my partner [Adamitis] read the Defendant [motorist] his D.W.I./Miranda warning. He mistakenly thought I did. I really cannot recall accurately if I did or not. So therefore, in the interest of justice, I request that this refusal be dismissed. (Id. Ex. E).
At the conclusion of the hearing, the administrative charges were dismissed against the motorist on the ground that he had not properly received refusal warnings.
After investigating the veracity of plaintiffs testimony at the administrative hearing, the Briarcliff defendants concluded that plaintiff had lied under oath and reported him to the Westchester County District Attorney's Office ("DA"). Plaintiff alleges that the Briarcliff defendants' conclusion was based on their erroneous belief that (1) plaintiff did not have a "partner" the night of May 2, 1999, and therefore lied under oath at the administrative hearing when he testified that he "mistakenly believed that [his] partner read the Defendant his D.W.I./Miranda warning"; and that (2) plaintiff administered the refusal warnings prior to entering police headquarters yet testified at the DMV hearing that he did not remember if it was him or his "partner" who administered the warnings. More specifically, plaintiff claims that he used the term "partner" as that term is used in common practice, that is, to refer to the officer patrolling the opposite end of town — in this case, Adamitis. In other words, plaintiff now claims that he believed that Adamitis had read the motorist his refusal warnings at police headquarters, and that it was for this reason that he testified at the administrative hearing that he was unsure whether he or his "partner" had administered the warnings.
The parties' papers do not indicate the exact date on which the Briarcliff defendants reported plaintiff to the DA.
On July 20, 1999, Trainham assigned the case to the Special Investigations Unit ("unit") for further investigation — which investigation was in fact undertaken by Pugliese. (Ferrick Declaration II, Ex. C). On August 27, 1999, plaintiff was arrested and charged with perjury and official misconduct; plaintiff was suspended from the department without pay and benefits following his arrest and arraignment. Although the grand jury indicted plaintiff for perjury stemming from his testimony at the DMV hearing, plaintiff was acquitted of the criminal charges following a bench trial on November 8, 2000. Plaintiff claims that the Briarcliff defendants conspired in a malicious, wanton, and reckless way to conduct an improper and biased investigation of the veracity of his testimony at the DMV hearing. Furthermore, plaintiff claims that ADA Hughes participated in the biased investigation of the perjury and official misconduct charges, as well as in the fabrication of evidence that gave rise to the wrongful and illegal arrest, charge, and prosecution. In addition, plaintiff contends that Hughes "conspired" with the Briarcliff defendants in mid-July 1999 by agreeing to prosecute plaintiff for lying under oath in order to remove him from active duty. Specifically, plaintiff claims that Hughes and Pugliese allegedly made an "agreement" whereby the latter would spearhead an internal affairs investigation against plaintiff despite the fact that Pugliese himself was directly involved the night of the motorist's arrest. (Pl's memorandum of law at 7-8). In addition, plaintiff also alleges that the Briarcliff defendants were attempting to remove him from active service because he was the subject of a civil rights investigation that was being conducted at that time by the FBI. (Id. at 8). For this reason, plaintiff claims, although fails to substantiate, that both Pugliese and Hughes were "predisposed" to remove him and hence fabricated the crime of perjury. Finally, with respect to the DA's actions specifically, plaintiff maintains that Hughes withheld exculpatory evidence from the grand jury — specifically, testimony with respect to the common use of the word "partner" — that would, in plaintiffs view, have provided a complete defense to the charge of perjury.
Although plaintiff was acquitted on November 8, 2000, the department has since refused to allow him to return to work. (Second Amended Compl. ¶ 76). Whereas this fact may be worth noting in the context of this case, it is not relevant to the resolution of this motion.
DISCUSSION
I. Rule 56(c) Motion for Summary Judgment
In a motion for summary judgment, the burden is on the moving party to establish that no genuine issues of material fact are in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "` if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523(2d Cir. 1992) (quoting Anderson, 477 U.S. at 248, cert. denied, 506 U.S. 965(1992)). The court resolves all ambiguities and draws all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide. Aldrich, 963 F.2d at 523.
A. Section 1983 Claim
As a preliminary matter, I agree with the Briarcliff defendants' contention that plaintiffs § 1983 claim for false arrest and malicious prosecution cannot be sustained against them since they neither effectuated the arrest nor prosecuted plaintiff for perjury. (See Briarcliff defendants' April 9, 2002 letter). However, even if plaintiffs § 1983 claim did apply to the Briarcliff defendants, I find that the doctrine of qualified immunity protects their actions for the same reasons, as detailed infra, that it protects the actions of Hughes.
A § 1983 claim for false arrest is substantially the same as a claim for false arrest brought pursuant to New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Under New York law, a plaintiff alleging false arrest must demonstrate that "`the defendant intentionally confined him without his consent and without justification.'" Thompson v. Sweet, 194 F. Supp.2d 97, 101 (N.D.N.Y. 2002) (quoting Weyant, 101 F.3d at 852)). While not an element of false arrest, probable cause constitutes an absolute defense to a claim for false arrest. See id. (quotations omitted). In other words, a claim for false arrest must fail if either probable cause to arrest existed and/or if the plaintiff fails to demonstrate that the defendant acted intentionally and without justification. Probable cause is deemed to exist under New York law "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Brown v. City of New York, 2001 WL 477279 (E.D.N.Y. Feb. 15, 2001).
Similarly, in order to prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, see, e.g., Murphy v. Lynn, 118 F.3d 938, 944(2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998), and establish the elements of a malicious prosecution claim under state law, see e.g.,Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). To establish a malicious prosecution claim under New York law, a plaintiff must show that a proceeding was commenced or continued against him, with malice and without probable cause, and was terminated in his favor. See Fulton, 289 F.3d at 195.
In this case, plaintiff claims that he has satisfied the elements of false arrest and malicious prosecution under § 1983. Specifically, although he fails to say so in his opposition papers, it appears that plaintiff is arguing that Hughes made the arrest and prosecuted him for allegedly perjuring himself during the administrative hearing intentionally and in the absence of probable cause. Hughes, by contrast, asserts the defense of probable cause, and adverts in particular to the taped phone conversation that took place between Trainham and plaintiff on May 18, 1999 — during which plaintiff not only suggested that he wanted to avoid testifying against the motorist, a friend of a friend, at the administrative hearing the next day but also openly admitted that he had indeed read the motorist his refusal warnings. (Defs' reply memorandum at 8).
I agree with Hughes that plaintiff has failed to make out a § 1983 claim for either false arrest or malicious prosecution on the ground that Hughes had probable cause both to arrest and to prosecute. With respect to the perjury, probable cause included: 1) the taped phone conversation between plaintiff and Trainham which strongly suggested that plaintiff had not only read the refusal warnings but also had thought not to testify that he read the motorist his refusal warnings because he wanted to help a friend out; 2) the fact that plaintiff testified under oath at the administrative hearing that he did not know who read the warnings; and 3) the fact that plaintiffs signature on the forms indicates that he had read the warnings to the motorist.
Had I failed to find probable cause, Hughes would still be protected for his actions by absolute and qualified immunity. It is well-settled that government officials acting in their judicial or prosecutorial capacity are entitled to absolute immunity for those actions that occur within the scope of their official duties on initiating and pursuing a criminal prosecution. Buckley v. Fitzsimmons, 509 U.S. 259(1993). In determining whether prosecutorial actions are entitled to absolute immunity, courts apply a "functional approach" and examine whether "those actions are part of a prosecutor's traditional functions." Doe v. Phillips, 81 F.3d 1204, 1209(2d Cir. 1996). Within this framework, a prosecutorial decision to commence a prosecution is entitled to absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 431(1976); see also DiBlasio v. Novello, 2002 WL 31190139, at * 11(S.D.N.Y. Sept. 30, 2002) (stating that the "function of initiating and pursuing administrative charges is afforded absolute immunity, as is the decision whether or not to bring those charges"); Ying Jang Gan v. City of New York, 996 F.2d 522, 530(2d Cir. 1993)("A prosecutor thus has absolute immunity in connection with the decision whether or not to commence a prosecution"). Moreover, courts in this Circuit have consistently stated that prosecutors are absolutely immune from § 1983 liability for their conduct before a grand jury. See Smith v. Gribetz, 958 F. Supp. 145, 153(S.D.N.Y. 1997); see also Powers v. Coe, 728 F.2d 97, 104(2d Cir. 1984) ("We believe that a prosecutor must be permitted to work with a grand jury totally free of the threat of civil suit"); Fine v. City of New York, 529 F.2d 70, 74(2d Cir. 1975)("It is clear that the presentation of evidence to grand juries is precisely the sort of prosecutorial function, often requiring `principled and fearless decision making, ' that the immunity rule is designed to promote") (citation omitted).
In the absence of absolute immunity, government officials who perform discretionary duties outside of their official functions are still entitled to qualified immunity if their actions could have reasonably been thought to be consistent with the rights that they allegedly violated. "As a general rule, [government officials, including police officers] are entitled to qualified immunity if(1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Oliveira v. Mayer, 23 F.3d 642, 648(2d Cir. 1994), cert. denied, 513 U.S. 1076(1995); see also Warren v. Keane, 196 F.3d 330, 332(2d Cir. 1999) (citations omitted). Plaintiff argues that neither absolute nor qualified immunity applies to Hughes' actions because he was acting outside of his official duties prior to arresting plaintiff; that his conduct violated plaintiffs constitutional rights; and that it was not objectively reasonable for Hughes to believe that his actions did not violate those rights.
I disagree. First, with respect to absolute immunity, I find that all of Hughes' actions with the department were preliminary to the initiation of prosecution, and, as such, are entitled to absolute immunity. Although plaintiff contends that Hughes' actions were investigative rather than prosecutorial — in particular, his July, 20 1999 meeting with Pugliese that predated plaintiffs arrest — it was well within Hughes' official duties to confer with a member of the department that reported plaintiff in the first place prior to commencing proceedings against plaintiff Indeed, as the Second Circuit stated in Parkinson v. Cozzolino, "prosecutors are `shielded from liability for damages with respect to acts performed within the scope of [their] duties when pursuing a criminal prosecution.'" 238 F.3d 145, 150 (2d Cir. 2001) (quoting Doe, 81 F.3d at 1209). In addition, I find plaintiffs argument that Hughes' actions before the grand jury do not entitle him to absolute immunity similarly unavailing; indeed, the Smith court makes clear that, in all but few instances, prosecutors are absolutely immune from § 1983 liability for their conduct before the grand jury. However, even if I were to find that Hughes' actions were outside the scope of his official duties, which I do not, I still find that it was perfectly reasonable for Hughes as well as the Briarcliff defendants to believe that plaintiff had committed perjury at the administrative hearing for the reasons detailed supra, and that their actions are for this reason protected by qualified immunity. Defendants' motion for summary judgment with respect to plaintiffs § 1983 claim is granted.
B. Section 1985, 1986 1988
As with plaintiffs § 1983 claim, I find that his §§ 1985. 1986, and 1988 claims against all defendants must be dismissed. First, in order to state a claim under § 1985, a plaintiff is required to allege "with at least some degree of particularity, overt acts which defendants engaged in which were reasonably related to the claimed conspiracy."Thomas v. Roach, 165 F.3d 137, 147(2d Cir. 1999). Clearly plaintiff has failed to state a claim for conspiracy against defendants in this case, or to adduce any facts in support of such a claim. However, even if he did adduce sufficient facts to establish a claim of conspiracy against defendants, I find that defendants' actions are protected by absolute immunity as well as qualified immunity since they took place as part of the initiation and prosecution of a criminal matter. Because plaintiffs § 1985 claim cannot be sustained, his § 1986 claim must fail as well. See Rivera v. Goord, 119 F. Supp.2d 327. 345 (S.D.N.Y. 2000).
CONCLUSION
For the foregoing reasons, defendants' Rule 12d(b)(6) motion, having been converted by the Court into a Rule 56(c) motion, is granted, and the Clerk of the Court is instructed to remove this case from my docket along with any outstanding motions.