Opinion
1:19-CV-4
2021-02-10
Cory WAGNER, Plaintiff, v. Alex HYRA, New York State Police Officer, Thomas Judge, New York State Police Officer, and John/Jane Doe, New York State Police Employee, Defendants.
OF COUNSEL: BRIAN W. DEVANE, ESQ., OFFICE OF BRIAN W. DEVANE, Attorneys for Plaintiff, 125 Adams Street, Delmar, NY 12054. OF COUNSEL: LEE D. GREENSTEIN, ESQ., OFFICE OF LEE GREENSTEIN, Attorneys for Plaintiff, 125 Adams Street, Delmar, NY 12054. HON. LETITIA JAMES, New York State Attorney General, OF COUNSEL: RYAN W. HICKEY, ESQ., Ass't Attorney General, Attorneys for Defendants, The Capitol, Albany, NY 12224.
OF COUNSEL: BRIAN W. DEVANE, ESQ., OFFICE OF BRIAN W. DEVANE, Attorneys for Plaintiff, 125 Adams Street, Delmar, NY 12054.
OF COUNSEL: LEE D. GREENSTEIN, ESQ., OFFICE OF LEE GREENSTEIN, Attorneys for Plaintiff, 125 Adams Street, Delmar, NY 12054.
HON. LETITIA JAMES, New York State Attorney General, OF COUNSEL: RYAN W. HICKEY, ESQ., Ass't Attorney General, Attorneys for Defendants, The Capitol, Albany, NY 12224.
MEMORANDUM–DECISION & ORDER
DAVID N. HURD, United States District Judge
TABLE OF CONTENTS
I. INTRODUCTION...620
II. BACKGROUND...620 III. LEGAL STANDARDS...622
A. Rule 12(b)(1)...622
B. Rule 12(b)(6)...623
IV. DISCUSSION...623
A. False Arrest & Imprisonment...624
B. Abuse of Process...627
C. Malicious Prosecution...633
D. Right to Privacy...639
E. Failure to Intervene...642
V. CONCLUSION...642
I. INTRODUCTION
There's an old saying: "You can beat the rap, but you can't beat the ride." It's usually taken to mean that the police can subject you to the criminal process even when they know the charges won't stick. Spending a night or even a weekend in jail while you await an initial court appearance is nobody's idea of a good time. You'll probably need to retain a lawyer. And the case will be hanging over your head for months or sometimes years while the justice system grinds its way to a resolution. Though most cops don't abuse this power, the pages of the federal reporter are full of claims brought by plaintiffs who've alleged otherwise.
But what if there's been no jail time? What if the cop just arrested you and then released you with a faulty appearance ticket, fully aware that the prosecuting authority would be forced to dismiss the charge out of hand but confident in the knowledge that you would suffer grave personal consequences all the same? Does it matter if the goal of this exercise was to exact retribution?
That's what the plaintiff in this civil rights action has alleged. On January 2, 2019, plaintiff Cory Wagner ("Wagner" or "plaintiff"), a former deputy with the Rensselaer County Sheriff's Office, filed this civil action against defendants State Police Investigator Alex Hyra ("Investigator Hyra"), State Police Investigator Thomas Judge ("Investigator Judge"), and State Police employee John/Jane Doe (the "Doe Employee").
According to Wagner's nine-count amended complaint, Investigator Hyra, Investigator Judge, and the Doe Employee (collectively "defendants") violated his constitutional rights under 42 U.S.C. §§ 1983 and 1985 by falsely arresting him and then releasing non-public information about the incident to local press and law enforcement agencies in violation of confidentiality requirements imposed by state law. Plaintiff alleges defendants conspired to carry out the arrest and coordinate a public smear effort against him because he filed a criminal complaint against one of Hyra's personal friends.
On May 6, 2019, defendants moved under Rules 12(b)(1) and 12(b)(6) of the Federal Rule of Civil Procedure to dismiss Wagner's amended complaint in its entirety. The motion was fully briefed and oral argument was heard on November 8, 2019 in Utica, New York. Decision was reserved.
II. BACKGROUND
The following facts are taken from Wagner's operative pleading and attached exhibits, Dkt. No. 12, and will be assumed true for the purpose of resolving defendants’ motion to dismiss. Plaintiff is a Rensselaer County resident. Am. Compl. ¶ 3. He has been employed in various law enforcement roles, including as a police officer with the Cambridge–Greenwich Police Department. Id. ¶¶ 7-8. During his time with the Greenwich P.D., plaintiff repeatedly experienced "negative personal interactions and relationship issues" with Kevin Rose ("Rose"), a police dispatcher employed by the Rensselaer County Sheriff's Office and the Mechanicsville Police Department, two nearby law enforcement agencies. Id. ¶¶ 25, 27.
On April 16, 2016, Wagner filed a criminal complaint against Rose with the State Police. Am. Compl. ¶ 26. According to the complaint, Rose had damaged plaintiff's wife's car by "keying" the vehicle. Id. Plaintiff sought Rose's arrest on charges of criminal mischief. Id. Plaintiff's operative pleading leaves the reader guessing about the disposition of this criminal complaint against Rose. See generally id. But we know that Rose allegedly complained to his good friend, Investigator Hyra, that plaintiff had tried to get him in legal trouble. See id. ¶¶ 25, 27.
Frequently done out of anger or spite, it is the act of scraping the sharp point of a key across the paint of a car, leaving a deep scratch that is often expensive to repair.
On October 23, 2017, the Rensselaer County Sheriff's Office hired Wagner as a full-time sheriff's deputy. Am. Compl. ¶¶ 7-8. A few weeks later, on November 6, 2017, Investigator Judge telephoned plaintiff and "summoned, ordered and instructed him to appear at the Brunswick [State] Police Station" for an interview. Id. ¶ 9. According to plaintiff's complaint, Judge led him to believe that "the interview was related to his recent hire with the Rensselaer County Sheriff." Id. ¶ 10. In short, plaintiff "felt compelled to appear at the Brunswick Police Station." Id.
When he got there, Investigator Judge "questioned and interrogated" Wagner about events that took place in the summer of 2002, "including whether he [had] sexually assaulted a 7 year old." Am. Compl. ¶ 11. Notably, plaintiff would have been 11 years old at the time of the alleged assault. Id. Plaintiff denied the allegations and told Judge he wanted to leave the police station. Id. ¶ 12. According to the complaint, the interrogation ended when an attorney telephoned Judge on plaintiff's behalf. Id. ¶ 13.
But that did not end the police encounter. Instead, two deputies from the Rensselaer County Sheriff's Office "appeared from behind a closed door" and told Wagner he was being fired from his new job as a sheriff's deputy. Am. Compl. ¶ 14. The deputies handed plaintiff a termination letter. Id. Immediately thereafter, Investigator Judge told plaintiff "he was not free to leave" and that plaintiff "would be charged criminally" with the 2002 allegations of sex assault against the unidentified seven year old. Id. ¶ 15. Judge ordered another officer to handcuff Wagner to a "bull ring" attached to a wall. Id. ¶¶ 16-17. After plaintiff was fingerprinted and photographed, Judge issued plaintiff an appearance ticket that charged him with a violation of New York Penal Law § 130.50, noted on the ticket as the crime of sodomy in the first degree. Am. Compl. ¶¶ 18-19, 21.
This was an unusual appearance ticket to issue to Wagner, who was then a 26-year-old adult. The "issuing" police officer is listed as Investigator Hyra, not Judge. Am. Compl. ¶ 21; see also Ex. A to Am. Compl., Dkt. No. 12-1. The ticket identifies plaintiff as a "child, who is 11 years of age," not an adult. Id. And the ticket is written on a special form document used only for certain state law juvenile crimes, evidenced by the notation "juvenile delinquency" and the reference to "Family Court Act Sect. 307.1." Id.
Wagner alleges this bizarre series of events was orchestrated by Investigators Hyra and Judge to damage plaintiff "in his personal and professional life" and to "gain retribution" against him for the earlier criminal complaint against Investigator Hyra's friend Rose. Am. Compl. ¶ 32. According to plaintiff, defendants intentionally posted information about the sodomy charge on the public State Police blotter in violation of state confidentiality laws that protect the identity of those accused of juvenile charges under the Family Court Act. Id. ¶¶ 33-34. The public posting of this private information led local news sources to pick up the story, damaging plaintiff's public standing and future job prospects. Id. ¶¶ 35-46. The State Police also distributed a notice to other law enforcement agencies advising them of plaintiff's arrest and warning that "those interacting with [plaintiff] should [ ] proceed with caution." Id. ¶ 50.
Wagner wisely lawyered up. Am. Compl. ¶ 47. On December 7, 2017, plaintiff received through his counsel a letter from the Rensselaer County Attorney's Office in which Deputy County Attorney Kelly Cramer indicated that her office would not pursue the sodomy charge. Id. ¶ 51; see also Ex. B to Am. Compl., Dkt. No. 12-2. As the letter explained:
The respondent, Corey [sic ] Wagner, was charged with an act, that if the respondent was an adult at the time of the act, would constitute the crime of Sodomy in the First Degree pursuant to NYS Penal Law § 130.50.
The alleged incident took place in 2002, making Corey [sic ] Wagner ... elven [sic ] (11) years old at the [sic ] making this a juvenile delinquency matter. However, your client is currently twenty-seven (27) years of age. As such, there are no dispositional options that can be ordered with regards to your client. As Family Court is meant to provide services to juveniles and not be punitive in nature, the Rensselaer County Attorney's Office is declining to prosecute this matter.
Ex. B to Am. Compl.
Wagner does not allege that the sodomy charge was fabricated out of whole cloth. Am. Compl. ¶¶ 59-60. Instead, plaintiff alleges that the target of a State Police child pornography investigation claimed during an interrogation that he had been sexually assaulted as a seven-year-old child in 2002. Id. ¶ 59. According to plaintiff, this unidentified accuser "could only clam [sic ] to identify the home of the individual he was accusing, and allegedly identified Plaintiff through a high school yearbook photograph." Id. ¶ 60.
In Wagner's view, any reasonable law enforcement officer would have known that this kind of uncorroborated, fifteen-year-old accusation of childhood misconduct by the target of a separate criminal investigation was insufficient to establish probable cause to arrest anyone for anything, let alone to conduct the warrantless arrest of an adult on a defective juvenile delinquency charge. Id. ¶¶ 56-58, 61. Plaintiff alleges that since he filed this civil rights action both Rose and Investigator Hyra have tried to intimidate, threaten, and/or harass him. Id. ¶¶ 28-31.
III. LEGAL STANDARDS
A. Rule 12(b)(1)
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Forjone v. Dep't of Motor Vehicles , 414 F. Supp. 3d 292, 297-98 (N.D.N.Y. 2019) (cleaned up). "The Second Circuit has drawn a distinction between two types of Rule 12(b)(1) motions: (i) facial motions and (ii) fact-based motions." Nicholas v. Trump , 433 F. Supp. 3d 581, 586 (S.D.N.Y. 2020) ; see also Carter v. HealthPort Techs., LLC , 822 F.3d 47, 56 (2d Cir. 2016) ("A Rule 12(b)(1) motion challenging subject matter jurisdiction may be either facial or fact-based.")
"A facial Rule 12(b)(1) motion is one based solely on the allegations of the complaint or the complaint and exhibits attached to it." Nicholas , 433 F. Supp. 3d at 586 (cleaned up). "A plaintiff opposing such a motion bears no evidentiary burden." Id. "Instead, to resolve a facial Rule 12(b)(1) motion, a district court must determine whether the complaint and its exhibits allege facts that establish subject matter jurisdiction." Id. "And to make that determination, a court must accept the complaint's allegations as true and draw all reasonable inferences in favor of the plaintiff." Id.
"Alternatively, a defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the complaint and its exhibits." Nicholas , 433 F. Supp. 3d at 586 (quoting Carter , 822 F.3d at 57 ). "In opposition to such a motion, a plaintiff must come forward with evidence of their own to controvert that presented by the defendant, or may instead rely on the allegations in their pleading if the evidence proffered by the defendant is immaterial because it does not contradict plausible allegations that are themselves sufficient to show standing." Id. (cleaned up). "If a defendant supports his fact-based Rule 12(b)(1) motion with material and controverted extrinsic evidence, a district court will need to make findings of fact in aid of its decision as to the subject matter jurisdiction." Id.
B. Rule 12(b)(6)
"To survive a Rule 12(b)(6) motion to dismiss, the ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Ginsburg v. City of Ithaca , 839 F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Dismissal is appropriate only where plaintiff has failed to provide some basis for the allegations that support the elements of his claims." Id.
"When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor." United States v. Bedi , 318 F. Supp. 3d 561, 564-65 (N.D.N.Y. 2018) (citation omitted). "In making this determination, a court generally confines itself to the ‘facts stated on the face of the complaint, ... documents appended to the complaint or incorporated in the complaint by reference, and ... matters of which judicial notice may be taken.’ " Id. at 565 (quoting Goel v. Bunge, Ltd. , 820 F.3d 554, 559 (2d Cir. 2016) ).
IV. DISCUSSION
As an initial matter, Wagner has abandoned and/or consented to the dismissal of his conspiracy claims (Second, Fourth, and Eighth Causes of Action). See Defs.’ Reply, Dkt. No. 21 at 3-4. In his preliminary statement in opposition, plaintiff indicates that he "consents to the [sic ] 4th (Malicious Prosecution, Conspiracy), and 8th (Abuse of Process, conspiracy) Cause[ ] of Actions." Pl.’s Opp'n, Dkt. No. 17 at 3. To what has plaintiff indicated his consent, though? The answer is missing. Presumably, the omission is just a typographical error or an oversight—it seems clear that plaintiff meant to consent to the dismissal of those conspiracy causes of action. See id.
Pagination corresponds to CM/ECF.
Strangely, Wagner's preliminary statement does not take an explicit position on his other conspiracy claim, which is based on the alleged false arrest rather than on malicious prosecution or an abuse of process. Pl.’s Opp'n at 3. However, a review of the substance of plaintiff's counseled opposition brief supports the conclusion that he has abandoned that claim as well. See id. at 11-32. Indeed, plaintiff's brief does not offer a defense of any of his conspiracy-based claims. Accordingly, all of those claims will be dismissed. See, e.g. , Colbert v. Rio Tinto PLC , 824 F. App'x 5, 11 (2d Cir. 2020) (summary order) ("As a general matter, district courts frequently deem claims abandoned when counseled plaintiffs fail to provide arguments in opposition at the motion to dismiss stage.").
The amended complaint asserts conspiracy claims under §§ 1983 and 1985. Defendants moved to dismiss both varieties of claim. Defs.’ Mem., Dkt. No. 14-1 at 22-24.
Wagner has also abandoned his official-capacity claims against the named defendants. Pl.’s Opp'n at 3. For good reason: the ad damnum clause in plaintiff's amended complaint seeks only money damages, which cannot be recovered in a § 1983 official-capacity action. See, e.g. , Mercer v. Schriro , 337 F. Supp. 3d 109, 136 (D. Conn. 2018) (describing the jurisdictional bar to money damages posed by Eleventh Amendment immunity). Accordingly, plaintiff's official-capacity claims will also be dismissed.
These official-capacity claims are the only basis on which defendants have moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. Mercer , 337 F. Supp. 3d at 135 n.16 (cataloguing intra-circuit uncertainty about whether 12(b)(1) or 12(b)(6) is the appropriate vehicle for an Eleventh Amendment immunity argument).
These threshold determinations leave for consideration Wagner's § 1983 claims for (1) false arrest and imprisonment against Investigators Hyra and Judge; (2) abuse of process against Hyra; (3) malicious prosecution against Hyra and Judge; (4) violation of a right to privacy against Hyra, Judge, and the Doe Employee; and (5) failure to intervene against Judge.
A. False Arrest & Imprisonment (First and Fifth Causes of Action)
Wagner's amended complaint alleges that Investigators Hyra and Judge violated his Fourth Amendment rights when Judge falsely arrested him at the Police Station and then issued him a juvenile appearance ticket signed by Hyra. Am. Compl. ¶¶ 65-72, 81-82.
"A § 1983 claim for false arrest sounding in the Fourth Amendment is ‘substantially the same’ as a claim for false arrest under New York law." Jackson v. City of N.Y. , 939 F. Supp. 2d 235, 248 (E.D.N.Y. 2013) (quoting Jocks v. Tavernier , 316 F.3d 128, 134 (2d Cir. 2003) ). Under New York law, a plaintiff must allege that: "(1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged." Colon v. City of Rochester , 419 F. Supp. 3d 586, 596 (W.D.N.Y. 2019).
Defendants offer two reasons why Wagner's false arrest and imprisonment claims must be dismissed. Defs.’ Mem. at 12-15. First, defendants argue that the mere issuance of an appearance ticket is insufficient to constitute a "confinement" under the governing law because plaintiff was not "jailed prior to, or as a result of, the issuance of the Appearance Ticket." Id. at 13-14. Second, defendants insist that the factual allegations in the amended complaint actually establish that there was probable cause to arrest plaintiff for the sodomy charge. Id. at 14-15.
Wagner acknowledges that an appearance ticket, standing alone, does not amount to a "confinement." Pl.’s Opp'n at 12. However, plaintiff argues that other aspects of the alleged incident—including being handcuffed and processed—satisfy this element. Id. As for probable cause, plaintiff responds that an uncorroborated, fifteen-year-old accusation about sexual misconduct made by the target of a separate criminal investigation is clearly an insufficient basis on which to conduct a warrantless arrest. Id. at 13-16.
In reply, defendants characterize Wagner's unidentified accuser as a "cooperating witness" or a "victim." Defs.’ Reply at 4-5. According to defendants, the amended complaint is devoid of "any factual allegation that the defendants were aware, at the time they handed [plaintiff] the appearance ticket, of any ‘circumstances that raise doubt as the victim's veracity.’ " Id. at 4 (quoting Panetta v. Crowley , 460 F.3d 388, 395 (2d Cir. 2006) ).
Upon review, defendants’ arguments will be rejected. As an initial matter, the apparent confusion between the parties about the "confinement" element of Wagner's claim arises from the peculiar nature of the fact pattern. "[T]he issuance of an appearance ticket, in and of itself, does not constitute confinement." Griffin-Nolan v. Providence Wash. Ins. Co. , 2005 WL 1460424, at *4 (N.D.N.Y. June 20, 2005) (Scullin, J.).
But Wagner's amended complaint does not merely allege that Investigator Judge handed him the appearance ticket and sent him on his way. Instead, plaintiff has alleged that Judge told him "he was not free to leave," that he "would be charged criminally," and then ordered another officer to handcuff Wagner to a "bull ring" attached to a wall. Am. Compl. ¶¶ 15-17. Thereafter, plaintiff alleges he was processed, issued the appearance ticket, and then finally released from physical custody. Id. ¶¶ 18-19.
This is a classic example of a Fourth Amendment seizure. See, e.g. , Ozga v. Elliot , 150 F. Supp. 3d 178, 187 (D. Conn. 2015) ("[A] seizure occurs if the police intentionally terminate one's freedom of movement by means of physical force or restraints."); see also Jenkins v. City of N.Y. , 478 F.3d 76, 88 n.10 (2d Cir. 2007) ("False arrest is simply false imprisonment accomplished by means of an unlawful arrest.").
"Although complaints involving police detention are commonly referred to as ‘false arrest’ claims, § 1983 protects against constitutional violations, and the Fourth Amendment, the constitutional provision implicated by [this kind of] claim, bars unreasonable seizures, not merely unreasonable arrests." Vasquez v. Pampena , 2009 WL 1373591, at *2 (E.D.N.Y. May 18, 2009).
Wagner has alleged a physical detention at the Police Station. He has therefore plausibly alleged that he was "confined" for purposes of his false arrest and imprisonment claims. Cf. Griffin-Nolan , 2005 WL 1460424, at *5 ("Conduct that accompanies the issuance of an appearance ticket certainly can constitute confinement for purposes of a false arrest or false imprisonment claim."); see also Vasquez , 2009 WL 1373591, at *3-5 (denying motion to dismiss false arrest claim where defendant "ordered" plaintiff to show identification and "stay put" while he issued a summons). Accordingly, this argument will be rejected.
Second, defendants argue that they had probable cause to arrest Wagner for a violation of New York Penal Law § 130.50. "An arrest is privileged if it is based on probable cause." Tisdale v. Hartley , 442 F. Supp. 3d 569, 573 (W.D.N.Y. 2020) (cleaned up). "A police officer has probable cause to arrest when he has ‘knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’ " Hulett v. City of Syracuse , 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017) (quoting Jackson , 939 F. Supp. 2d at 249 ). "The test for probable cause is an objective one and ‘depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.’ " Id. (quoting Yorzinski v. City of N.Y. , 175 F. Supp. 3d 69, 75 (S.D.N.Y. 2016) ).
Defendants actually argue that they can defeat plaintiff's claim by establishing that probable cause existed for any offense, not just this one. Defs.’ Mem. at 14. That's true. But defendants have not identified any other basis on which plaintiff could have been arrested. See generally id. It is not the job of the Court to gin up defenses to a plaintiff's constitutional claim. Dickerson v. Napolitano , 604 F.3d 732, 751 (2d Cir. 2010) ("When an arrest is not made pursuant to a judicial warrant, the defendant in a false arrest case bears the burden of proving probable cause as an affirmative defense.").
This second argument will also be rejected. Defendants repeatedly characterize Wagner's unidentified accuser as a "cooperating witness" or a "victim." Defs.’ Reply at 4-5. This characterization is intentional: by approaching the issue this way, defendants are trying to rely on the general deference our case law affords to the credibility of reports from crime victims, known informants, and innocent bystanders. See, e.g. , Panetta , 460 F.3d at 395 (opining that information received from a known informant or citizen–bystander is generally presumed to be credible); Curley v. Vill. of Suffern , 268 F.3d 65, 70 (2d Cir. 2001) ("[W]e have found probable cause where a police officer was presented with different stories from an alleged victim and the arrestee."); Oliveira v. Mayer , 23 F.3d 642, 647 (2d Cir. 1994) ("Information about criminal activity provided by a single complainant can establish probable cause when that information is sufficiently reliable and corroborated."); Miloslavsky v. AES Eng'g Soc'y, Inc. , 808 F. Supp. 351, 355 (S.D.N.Y. 1992) ("The veracity of citizen complaints who are the victims of the very crime they report to the police is assumed."), aff'd , 993 F.2d 1534 (2d Cir. 1993), cert. denied , 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993).
Discovery may well bear out these characterizations of Wagner's unnamed accuser. But that is not what plaintiff has alleged in his amended complaint. Plaintiff alleges that his accuser was the "target" of an active child pornography investigation who, during a "cooperation debriefing," claimed that he himself was a victim, too: of a sexual assault that occurred fifteen years prior. Am. Compl. ¶ 59. Plaintiff further alleges that the accuser could not name or identify his assailant; instead, the accuser somehow relied on a high school yearbook to single out plaintiff. Id. ¶ 60.
To be sure, it is not the role of the police "to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing." Celestin v. City of N.Y. , 581 F. Supp. 2d 420, 432 (E.D.N.Y. 2008) (cleaned up). To that end, law enforcement officers are not required to "explore and eliminate every theoretically plausible claim of innocence before making an arrest." Curley , 268 F.3d at 70. Nor are they "required to continue investigating, sifting and weighing information" once probable cause has been established. Celestin , 581 F. Supp. 2d at 432. However, "the failure to make a further inquiry when a reasonable person would have done so may be evidence of a lack of probable cause." Lowth v. Town of Cheektowaga , 82 F.3d 563, 571 (2d Cir. 1996) (citation omitted). Viewed individually, the irregularities alleged by Wagner—the long passage of time between the alleged crime and the later report by the accuser, the accuser's status as the target of an active investigation into sexual misconduct with a possible motivation to lie or deflect blame, the accuser's apparent inability to identify his assailant followed by some kind of ad hoc search through a high school yearbook that just happened to be lying around at the Police Station—might not be enough to vitiate probable cause.
But considered together, Wagner has plausibly alleged that the warrantless arrest occurred in the absence of probable cause. Any reasonable law enforcement officer would have known that a completely uncorroborated, fifteen-year-old accusation of assault by the target of a separate criminal investigation would not establish probable cause to effect a warrantless arrest of anyone, let alone the arrest of an adult on a defective juvenile delinquency charge. See, e.g. , Jurkowitsch v. City of N.Y. , 2015 WL 8489964, at *5 (E.D.N.Y. Dec. 9, 2015) ("[W]hile a single victim or eyewitness identification ordinarily is sufficient to establish probable cause, that principle does not apply if there is reason to doubt the witness's veracity."). Accordingly, defendants’ motion to dismiss the § 1983 false arrest and imprisonment claims will be denied.
B. Abuse of Process (Seventh Cause of Action)
Wagner's amended complaint alleges that Investigator Hyra violated his Fourth Amendment rights by issuing the juvenile appearance ticket and then releasing that information to the press and other law enforcement agencies in an effort to damage plaintiff's career and exact retribution for plaintiff's complaint against Rose. Am. Compl. ¶¶ 88-92.
"In its broadest sense, abuse of process may be defined as the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process." Bd. of Ed. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Tchrs. Ass'n, Inc. , 38 N.Y.2d 397, 400, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975). "The distinction between civil and criminal abuse of process is critical for section 1983 purposes." Cook v. Sheldon , 41 F.3d 73, 80 (2d Cir. 1994). As the Second Circuit has explained, "[p]rocedural due process forbids the use of legal process for a wrongful purpose." Id. "In the criminal context, malicious abuse of process is by definition a denial of procedural due process." Id. (cleaned up). However, " Section 1983 liability may not be predicated on a claim of malicious abuse of civil process." Alroy v. City of N.Y. Law Dep't , 69 F. Supp. 3d 393, 402 (S.D.N.Y. 2014) (emphasis in original).
"In order to establish liability for malicious abuse of process under § 1983, a plaintiff must establish the claim's elements under state law as well as the deprivation of a constitutional right." Hoffman v. Town of Southampton , 893 F. Supp. 2d 438, 446 (E.D.N.Y. 2012). Under New York law, a plaintiff may assert an abuse-of-process claim against a defendant who "(1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Savino v. City of N.Y. , 331 F.3d 63, 76 (2d Cir. 2003).
Defendants offer three reasons why Wagner's § 1983 abuse-of-process claim should be dismissed. Defs.’ Mem. at 16-18. First, defendants argue that an abuse-of-process claim cannot be based on the issuance of the juvenile appearance ticket because Family Court Act proceedings are entirely civil in nature. Id. at 16. Second, defendants argue that a warrantless arrest cannot form the basis for an abuse-of-process claim "because such an arrest does not involve legal process." Id. Third, defendants argue that plaintiff has not plausibly alleged that Hyra sought to achieve some improper purpose beyond simply prosecuting plaintiff on the sodomy charge. Id. at 17-18.
Wagner responds that a juvenile delinquency proceeding in family court is at least quasi-criminal in nature. Pl.’s Opp'n at 17. Plaintiff also rejects the notion that the "process" in an abuse-of-process claim must be some later, "court-issued process." Id. at 18-19. In plaintiff's view, he "was subjected to criminal process when he was handcuffed and detained by Defendants prior to being served with an Appearance Ticket." Id. at 17. According to plaintiff, what matters on an abuse-of-process claim is that the warrantless arrest and/or the issuance of the appearance ticket was intended to achieve some collateral objective beyond the goal of simply having him prosecuted on the charge. Id. at 19-20. Plaintiff argues that defendants’ collateral objective in this case was to exact retribution for plaintiff's filing of the criminal complaint against Rose. Id. at 20-21.
Upon review, defendants’ arguments will again be rejected. As a threshold matter, defendants argue that the issuance of the appearance ticket did not subject Wagner to any criminal process because juvenile delinquency proceedings are entirely civil in nature. Defs.’ Mem. at 16. In support of this argument, defendants point to a provision of the Family Court Act entitled "Nature and effect of adjudication." This section of the Act explains that "[n]o adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication." N.Y. FAM. CT. ACT § 380.1.
That language does seem to support defendants’ assertion that juvenile delinquency proceedings under the Family Court Act are just civil matters. But relevant New York decisional law does not definitively characterize juvenile delinquency proceedings that way. For instance, in 1966 the New York Court of Appeals recognized that:
While the Family Court Act specifically states that the proceedings held thereunder are not criminal in nature, the various provisions made for the protection of the rights of children who are charged with juvenile delinquency are indicative of a legislative recognition of the fact that such proceedings, resulting as they do in a loss of personal freedom, are at the very least quasi-criminal in nature.
In re Gregory W. , 19 N.Y.2d 55, 62, 277 N.Y.S.2d 675, 224 N.E.2d 102 (1966) (emphasis added).
Exactly twenty-five years after deciding Gregory W. , the Court of Appeals seemed to retreat from this characterization of juvenile delinquency proceedings as quasi-criminal, breezily observing in a later case that "[i]n contrast to a criminal prosecution, juvenile delinquency proceedings are civil in nature, the purpose, in part, being rehabilitation of the child through consideration of the needs and interests of the child." In re Randy K. , 77 N.Y.2d 398, 402, 568 N.Y.S.2d 562, 570 N.E.2d 210 (1991).
However, a few years after Randy K. , the Court of Appeals spoke on the issue again. In a case called In re Natasha C. , 80 N.Y.2d 678, 593 N.Y.S.2d 986, 609 N.E.2d 526 (1993), the court affirmed the lower court's dismissal of bail jumping charges against some juveniles who failed to appear on a scheduled date for a family court proceeding. Id. at 682, 593 N.Y.S.2d 986, 609 N.E.2d 526. In doing so, the court initially stated that "a juvenile delinquency proceeding in Family Court is not a ‘criminal action or proceeding,’ " but then dutifully cited to its own prior precedents in Gregory W. and Randy K . to acknowledge that juvenile delinquency proceedings under the Family Court Act could also be considered "quasi-criminal." Id. at 682, 593 N.Y.S.2d 986, 609 N.E.2d 526.
The New York Court of Appeals’ apparent reluctance to fully abandon the "quasi-criminal" label makes sense when you consider what happens in this kind of a juvenile delinquency proceeding. The Appearance Ticket issued to Wagner is the product of a specific provision of New York's Family Court Act, which directs "a child and his parent ... to appear, without security, at a designated probation service on a specified return date in connection with the child's alleged commission of the crime or crimes specified on such appearance ticket." N.Y. FAM. CT. ACT § 307.1.
"The initial appearance, like the arraignment of an adult charged with a crime, is the process by which the court obtains jurisdiction over the minor, determines if detention is warranted, and sets the dates for further proceedings." In re Robert O. , 87 N.Y.2d 9, 15, 637 N.Y.S.2d 329, 660 N.E.2d 1108 (1995) (internal footnote and citations omitted). "Like adults, juveniles have a personal obligation to return to court, and a bench warrant may be issued when they fail to do so." In re Natasha C. , 80 N.Y.2d at 682, 593 N.Y.S.2d 986, 609 N.E.2d 526.
Measured against this body of law, Wagner has plausibly alleged that the appearance ticket subjected him to the kind of liberty restraint you would expect to see in the criminal or perhaps quasi-criminal context; i.e. , the appearance ticket required him to personally appear at the probation service or risk the possible issuance of a bench warrant for his arrest.
None of the cases cited by defendants in support of pre-answer dismissal even begin to grapple with this strange fact pattern. In Spear v. Town of West Hartford , 954 F.2d 63 (2d Cir. 1992), town officials authorized a civil lawsuit against a newspaper publisher in an effort to stop a wave of anti-abortion protests happening at a local health care facility. Id. at 65. After the town dropped the suit, the publisher brought a § 1983 malicious prosecution claim against the municipality. Id. The trial court dismissed the claim and the Second Circuit affirmed, reasoning that the plaintiff had been subjected only to civil liability in the town's lawsuit against him. Id. at 68.
Importantly, Spear was decided in 1992 and dealt with a federal claim of malicious prosecution. In fact, at that time Second Circuit had not yet recognized the viability of a § 1983 claim for abuse of criminal process. It would eventually do so two years later in Cook . Compare Spear , 954 F.2d at 68 ("While section 1983 liability may be predicated on a claim for malicious prosecution, it may not be predicated on a claim for malicious abuse of process." (internal citation omitted)), with Cook , 41 F.3d at 79-80 ("We, therefore, hold that section 1983 liability may lie for malicious abuse of process."). So Spear ’s broad pronouncements about the civil/criminal distinction are of limited help in this context.
But even putting aside the timing problem, Spear is still unhelpful because courts generally find that abuse-of-process claims sweep in a broader range of alleged misconduct than claims for malicious prosecution. See, e.g. , Mangino v. Inc. Vill. of Patchogue , 739 F. Supp. 2d 205, 226-33 (E.D.N.Y. 2010) (dismissing on summary judgment the plaintiffs’ malicious prosecution claim arising from issuance of appearance tickets but permitting an abuse-of-process claim to go forward on the same basis).
The other cases relied on by defendants build on Spear ’s broad pronouncement about civil process without providing any useful factual analogies to Wagner's allegations. For instance, in Davis v. Whillheim , 2019 WL 935214 (S.D.N.Y. Feb. 26, 2019), the pro se plaintiff lost custody of his daughter after he stabbed the child's mother with a kitchen knife. 2019 WL 935214, at *1. When the family court denied his request for visitation, the plaintiff brought a § 1983 malicious prosecution claim against the child's court-appointed counselors and their supervisors. Id. The trial court dismissed the claim, reasoning that the plaintiff was not subjected to any criminal liability during the family court proceedings where his visitation rights had been denied. Id. at *11-12.
And in D'Onofrio v. City of New York , 2010 WL 4673879 (E.D.N.Y. Sept. 14, 2010), the pro se plaintiff lost his job after his employer repeatedly brought him up on disciplinary charges. Id. at *1-3 (Report & Recommendation), adopted by 2010 WL 4673948 (E.D.N.Y. Nov. 5, 2010). After being fired, the plaintiff brought a § 1983 abuse-of-process claim against his employer and the union representatives from the administrative proceedings. Id. at *9. The trial court dismissed the claim, reasoning that any alleged abuse of the employer's administrative grievance process was not cognizable under § 1983 because it was entirely civil in nature. Id.
Spear , Davis , and D'Onofrio are of no help in answering the unique question posed by Wagner's claim. After all, there seems to be no dispute between the parties that the sodomy charge would be considered a serious felony crime under the New York Penal Law if it were committed by an adult. And case law strongly suggests that there would be serious consequences if plaintiff failed to appear at the probation service in accordance with the instructions on the appearance ticket. In short, defendants’ threshold argument about the civil nature of a juvenile delinquency proceeding under the Family Court Act will be rejected.
Next up is defendants’ assertion that a warrantless arrest can never form the basis for a § 1983 abuse-of-process claim "because such an arrest does not involve legal process." Defs.’ Mem. at 16. Wagner responds that courts generally take a plaintiff–friendly view of the "legal process" element, and argues that he "was subjected to criminal process when he was handcuffed and detained by Defendants prior to being served with an Appearance Ticket." Pl.’s Opp'n at 17.
"The Second Circuit has described the [abuse-of-process] tort as limited to abuses of legal proceedings and ‘court issued’ process." Rao v. City of N.Y. , 2018 WL 1582289, at *8 (E.D.N.Y. Mar. 29, 2018) (citations omitted); see also Ying Li v. City of N.Y. , 246 F. Supp. 3d 578, 616 (E.D.N.Y. 2017) ("In the context of an abuse of process claim, legal process means that a court issued the process, and that the plaintiff will be penalized if he violates it." (cleaned up)). "Courts have construed this definition broadly, however, and have read ‘court-issued process’ to include arraignments, summonses, and, notably, arrests." Rao , 2018 WL 1582289, at *8 (collecting cases).
This question of whether the issuance of the appearance ticket can itself qualify as "legal process" turns out to be a slightly tangled area of case law. In Parkin v. Cornell Univ., Inc. , 78 N.Y.2d 523, 577 N.Y.S.2d 227, 583 N.E.2d 939 (1991), the New York Court of Appeals observed that nothing in its holdings "would seem to preclude an abuse of process claim based on the issuance of the process itself." Id. at 530, 577 N.Y.S.2d 227, 583 N.E.2d 939. Courts in this circuit appear split over the applicability of Parkin ’s suggestion. Mangino , 739 F. Supp. 2d at 231 n.23 (cataloguing the uncertainty). On the one hand, some trial courts have dismissed Parkin as dicta. See, e.g. , Gilman v. Marsh & McLennan Cos., Inc. , 868 F. Supp. 2d 118, 131 (S.D.N.Y. 2012). On the other, the Second Circuit has more recently cited Parkin ’s language with approval, albeit in an unpublished order. Manhattan Enter. Grp., LLC v. Higgins , 816 F. App'x 512, 514 (2d Cir. 2020) (summary order).
In any event, this uncertainty is insufficient to defeat Wagner's claim at this stage of the proceedings. To begin with, the cases cited by defendants might offer good quotes, but they fail to grapple with anything close to what is actually alleged by plaintiff. For instance, Schoolcraft v. City of New York , 103 F. Supp. 3d 465 (S.D.N.Y. 2015), confidently asserts that a "[w]arrantless arrest cannot form the basis" for a § 1983 abuse-of-process claim. Id. at 524. But the two cases on which Schoolcraft relies for that broad proposition are completely distinguishable. One, Sforza v. City of New York , 2009 WL 857496 (S.D.N.Y. Mar. 31, 2009), does not even analyze the relevant question; instead, the trial court merely notes in passing that the plaintiff failed to respond to the defendants’ contention that her warrantless arrest "does not involve legal process" before concluding that her "abuse-of-process claim fails on multiple grounds." Id. at *17. The other, Shmueli v. City of New York , 2007 WL 1659210, (S.D.N.Y. June 7, 2007), denied as futile the plaintiff's motion to amend her complaint to add a malicious prosecution claim against a group of prosecutors for some alleged pre-arraignment misconduct. Id. at *10. As a reader might expect, Shmueli glossed over the "legal process" question because prosecutors are ordinarily entitled to absolute immunity anyway. Id.
Shmueli also relies on Singer v. Fulton County Sheriff , 63 F.3d 110 (2d Cir. 1995), a case in which the Second Circuit rejected the idea that a warrantless arrest could serve as a Fourth Amendment "seizure" effected "pursuant to legal process" for purposes of a § 1983 malicious prosecution claim. Although § 1983 abuse-of-process and malicious prosecution claims both vindicate a plaintiff's Fourth Amendment right to be free from unreasonable seizures, courts seem to take a broader view of the seizure question on an abuse-of-process claim. Cases decided after Singer have also muddied the waters on this issue in the malicious prosecution context, which will be discussed infra.
The other cases cited by defendants are no more helpful. Like Shmueli , Rarick v. DeFrancesco , 94 F. Supp. 2d 279 (N.D.N.Y. 2000), dealt with a § 1983 malicious prosecution claim, not an abuse-of-process claim. Id. at 290. And Pulk v. Winter , 2016 U.S. Dist. LEXIS 47989 (W.D.N.Y. Apr. 7, 2016), simply cross-applies Rarick ’s discussion of "legal process" in the malicious prosecution context to dismiss the plaintiff's abuse-of-process claim. Id. at *20 (W.D.N.Y. Apr. 7, 2016) (Report & Recommendation).
Pulk is only a Report & Recommendation. Defendants did not cite to an order adopting the magistrate judge's recommendations and the Court came up empty with its independent Westlaw and Lexis searches. But it presumably exists, since a panel of the Second Circuit later affirmed the order adopting the R&R by summary order. Pulk v. Winter , 722 F. App'x 36, 37 (2d Cir. 2018) (summary order).
None of these cases conclusively defeat Wagner's claim. That is especially so where, as here, there are other cases in this circuit with similar fact patterns that endorse plaintiff's abuse-of-process theory. See Hoffman , 893 F. Supp. 2d at 447 (denying pre-answer motion to dismiss where the defendants conceded that the issuance of appearance tickets satisfied this element); Mangino , 739 F. Supp. 2d at 231-32 (finding the plaintiff had plausibly alleged this element where the defendants issued appearance tickets that required a future court appearance).
That conclusion is especially appropriate in cases where the plaintiff alleges that defendants abused the process subsequent to its issuance. "Indeed, numerous courts have found the issuance-of-legal-process element met by an officer's arrest of, or issuance of tickets to, a plaintiff, so long as the issuance was for a collateral objective outside the legitimate ends of the process." Crockett v. City of N.Y. , 2015 WL 5719737, at *10 (E.D.N.Y. Sept. 29, 2015) (cleaned up) (collecting cases).
Wagner has plausibly alleged that defendants went on to abuse the legal process they issued (i.e. , information about the arrest and appearance ticket). Plaintiff alleges defendants intentionally published confidential information about the incident on the public State Police blotter. Am. Compl. ¶¶ 33-46. This led local news to pick up the story, which humiliated plaintiff and harmed his job prospects. Id. Plaintiff also alleges defendants distributed a notice to other law enforcement agencies advising them of the (supposedly confidential) arrest and the sodomy charge and warning that "those interacting with [plaintiff] should [ ] proceed with caution." Id. ¶ 50. Accordingly, this argument will be rejected.
Third and relatedly, defendants argue that Wagner not plausibly alleged that defendants sought to achieve some improper purpose beyond simply prosecuting plaintiff on the sodomy charge. Defs.’ Mem. at 17-18. Plaintiff argues that defendants’ collateral objective in this case was to exact retribution for plaintiff's filing of the criminal complaint against Rose. Pl.’s Opp'n at 20-21.
Defendants’ final argument will also be rejected. "The crux of a malicious abuse of process claim is the collateral objective element." Ying Li , 246 F. Supp. 3d at 616 (citation omitted). "A ‘collateral objective’ is usually characterized by personal animus, and may include infliction of economic harm, extortion, blackmail [or] retribution." Dash v. Montas , ––– F. Supp. 3d ––––, ––––, 2020 WL 1550708, at *10 (E.D.N.Y. Mar. 31, 2020) (cleaned up); see also Hoffman , 893 F. Supp. 2d at 448 ("Typical scenarios in which courts in this circuit have sustained a claim of malicious abuse of process involve prosecutions for reasons wholly outside of the initial prosecution.").
"In evaluating this element, the Second Circuit expressly distinguishes between a ‘malicious motive’ and an ‘improper purpose’; only the latter suffices to meet the ‘collateral objective’ prong of the abuse of process standard." Hoffman , 893 F. Supp. 2d at 448. "Accordingly, to state a claim for abuse of criminal process, it is not sufficient for a plaintiff to allege that the defendants were seeking to retaliate against him by pursuing his arrest and prosecution. Instead, he must claim that they aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution." Savino , 331 F.3d at 77.
Wagner's amended complaint plausibly alleges this element. Plaintiff alleges that defendants planned the police station encounter with Investigator Judge to damage plaintiff "in his personal and professional life" and to "gain retribution" against him for daring to file the earlier criminal complaint against Rose. Am. Compl. ¶¶ 32, 95-96. As discussed supra , plaintiff alleges that defendants went on to improperly use the legal process as a means to achieve their alleged objectives. They intentionally published non-public information about the incident on the public State Police blotter. Id. ¶¶ 33-46. They also distributed a notice to other law enforcement agencies advising them of the arrest and the charge and warning that "those interacting with [plaintiff] should [ ] proceed with caution." Id. ¶ 50.
In other words, Wagner has plausibly alleged that defendants, acting on their personal animus, abused otherwise regularly issued legal process in a further effort to inflict economic harm against plaintiff and to exact retribution. Cf. Cook , 41 F.3d at 80 ("While malicious prosecution concerns the improper issuance of process, the gist of abuse of process is the improper use of process after it is regularly issued."). Accordingly, defendants’ motion to dismiss this claim will be denied.
C. Malicious Prosecution (Third Cause of Action)
Wagner's amended complaint alleges that Investigators Hyra and Judge violated his Fourth Amendment rights when they detained him at the police station and then issued him the juvenile appearance ticket on the sodomy charge. Am. Compl. ¶¶ 73-80.
"The elements of a § 1983 malicious prosecution claim require that the plaintiff prove that (1) the defendant initiated a prosecution against the plaintiff, (2) the defendant lacked probable cause to believe the proceeding could succeed, (3) the defendant acted with malice, (4) the prosecution was terminated in plaintiff's favor, and (5) there was a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights." Bernshtein v. City of N.Y. , 496 F. App'x 140, 142 (2d Cir. 2012) (summary order) (citation omitted).
Defendants argue that this claim must be dismissed for substantially the same reasons they offered against Wagner's § 1983 abuse-of-process claim. First, defendants insist that the appearance ticket did not amount to the "commencement" or "initiation" of a "criminal proceeding. Defs.’ Mem. at 7. Second, they argue that the County Attorney's letter dismissing the charge failed to "affirmatively indicate" that plaintiff was innocent. Id. at 8. Third, defendant contend that plaintiff was never subjected to any meaningful restraint on his liberty, a necessary component of a federal constitutional claim for malicious prosecution. Id. at 10. Finally, defendants claim that Investigator Judge is shielded from liability because he did not "initiate" the prosecution against plaintiff. Id. at 11.
Most of these arguments will be rejected for the same reasons set forth supra. First, Wagner has sufficiently established for purposes of a motion to dismiss that juvenile delinquency proceedings are at least quasi-criminal in nature. In re Natasha C. , 80 N.Y.2d at 682, 593 N.Y.S.2d 986, 609 N.E.2d 526. Even assuming otherwise, the Second Circuit has acknowledged that a civil proceeding could give rise to a § 1983 malicious prosecution claim so long as the facts sufficiently implicated the plaintiff's Fourth Amendment rights; i.e. , in the rare case where a "civil" proceeding could interfere with a person's right to be free of unreasonable or unwarranted restraints on personal liberty. Washington v. Cty. of Rockland , 373 F.3d 310, 317 (2d Cir. 2004) (Sotomayor, J.).
Second, defendants point out that a juvenile delinquent is screened by the probation service before any charges are filed by the county attorney. Defs.’ Mem. at 7-8. According to defendants, this antecedent "screening" mechanism occurs before any legal proceeding can be "commenced." Id. In defendants’ view, this conclusively defeats plaintiff's claim. Id.
In support of this argument, defendants cite to a single case in which a juvenile who had been issued a Family Court Act appearance ticket asserted that his speedy trial rights had been violated when the probation service took too long to refer his case for prosecution. In re Kgotso C. , 177 Misc.2d 1015, 677 N.Y.S.2d 736 (N.Y. Fam. Ct. 1998). The court rejected that claim, reasoning that the appearance ticket only obligated the juvenile to appear at the probation service, not "to appear to answer an accusatory instrument as a defendant might in Criminal Court." Id.
If accurate, this argument has some force. But the Court rejects defendants’ overly technical reading of the appearance ticket's relevance under the Family Court Act. As Wagner points out, any warrantless arrest that ends with the issuance of an appearance ticket would also "require[ ] some prosecutorial agency to make a decision to carry the arresting officer's arrest process forward." Pl.’s Opp'n at 23. In this case, Investigator Judge and/or Hyra put the probation service on notice of plaintiff's alleged crime by forwarding some kind of complaint, charging document, or other legal process to the probation service. In short, the Court declines to rely on a single family court case from 1998 to resolve this question on a pre-answer motion to dismiss. Accordingly, this argument will be rejected.
Next, defendants argue that the County Attorney's letter fails to "affirmatively indicate" that Wagner was innocent of the sodomy charge. Defs.’ Mem. at 8. Plaintiff argues that the County Attorney's letter makes clear that no action could be legally taken against him in Family Court. Pl.’s Opp'n at 24. In plaintiff's view, dismissal under those circumstances was not "merely a procedural victory." Id.
Under New York law, any final termination of a criminal proceeding that is not "inconsistent with innocence" can satisfy this element. Smith–Hunter v. Harvey , 95 N.Y.2d 191, 199, 712 N.Y.S.2d 438, 734 N.E.2d 750 (2000) ; see also Cantalino v. Danner , 96 N.Y.2d 391, 729 N.Y.S.2d 405, 754 N.E.2d 164 (2001). However, the Second Circuit has rejected this "more permissive standard of proof." Thompson v. Clark , 794 F. App'x 140, 141 (2d Cir. 2020) (summary order). Unlike its state law analogue, the "favorable termination" element on a § 1983 claim for malicious prosecution cannot be satisfied absent some "affirmative indications of innocence." Lanning v. City of Glens Falls , 908 F.3d 19, 25 (2d Cir. 2018).
Upon review, this argument will also be rejected at this early stage of the proceedings. Defendants argue that the County Attorney's dismissal letter "does not analyze the merits of the charges or the evidence against plaintiff" and fails to "state that plaintiff's arrest was unlawful or deficient in any way." Defs.’ Mem. at 9. In fairness to defendants, a review of the County Attorney's dismissal letter does suggest that the basis for the abandonment of the sodomy charge might merely be a jurisdictional problem; i.e. , that no valid charges could be brought based on Wagner's age at the time of the arrest.
But as the Second Circuit explained in Lanning , "[t]he touchstone of the Fourth Amendment is reasonableness[.]" 908 F.3d at 28 (quoting Florida v. Jimeno , 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ). When the peculiar facts of this case are "measured in objective terms by examining the totality of the circumstances," the County Attorney's letter does strongly "impl[y] a lack of reasonable grounds" for the issuance of a juvenile appearance ticket against an adult in the first place. Lanning , 908 F.3d at 28 (cleaned up). Accordingly, this argument will be rejected.
Next, defendants claim that Wagner was never subjected to any restraint on his liberty, a necessary component of a federal constitutional claim. Defs.’ Mem. at 10. Plaintiff responds that the appearance ticket subjected him to a post-arrest liberty deprivation that satisfies this element because it required a personal appearance before the probation service. Pl.’s Opp'n at 24-25.
"The federal cause of action for malicious prosecution is more limited in scope than the equivalent claim under New York law." Graham v. City of N.Y. , 869 F. Supp. 2d 337, 356 (E.D.N.Y. 2012). "When raising a malicious prosecution claim under Section 1983, a plaintiff must also show a ‘seizure or other perversion of proper legal procedures implicating the claimant's personal liberty and privacy interests under the Fourth Amendment.’ " Mazzone v. Town of Southampton , 283 F. Supp. 3d 38, 52 (E.D.N.Y. 2017) (quoting Mitchell v. City of N.Y. , 841 F.3d 72, 79 (2d Cir. 2016) ).
The constitutional grounding of a § 1983 malicious prosecution claim has shifted over the years. The relevant history begins with Albright v. Oliver , 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). There, the plaintiff turned himself in after learning that there was a warrant out for his arrest. Id. at 268, 114 S.Ct. 807. The plaintiff was released on bail with instructions not to the leave the state. Id. The charge against him was later dismissed at a pre-trial hearing. Id. at 269, 114 S.Ct. 807.
Thereafter, the Albright plaintiff brought a § 1983 claim alleging the detectives violated his Fourteenth Amendment substantive due process rights. 510 U.S. at 269, 114 S.Ct. 807. According to the plaintiff, the defendants had deprived him of his "liberty interest" in being free from a criminal prosecution in the absence of probable cause. Id. The trial court dismissed the claim and the Seventh Circuit affirmed, reasoning that "prosecution without probable cause" is not actionable under § 1983 unless the plaintiff can show some kind of "palpable consequences." Id. at 269-70, 114 S.Ct. 807.
The Supreme Court granted certiorari and affirmed on different grounds. Albright , 510 U.S. at 271, 114 S.Ct. 807. Albright did not have a clear majority opinion; the case drew multiple one- and two-Justice concurrences and even a dissent. Id. at 275-316, 114 S.Ct. 807. As relevant here, though, a plurality of the Court held that "it is the Fourth Amendment, and not substantive due process," under which a § 1983 malicious prosecution claim must be analyzed. Id. at 271, 114 S.Ct. 807.
Albright ’s fractured holding caused confusion in the lower courts. See, e.g. , Pinaud v. Cty. of Suffolk , 52 F.3d 1139, 1154 (2d Cir. 1995) ("Tempted as we are to try to clarify the law in this area in the wake of the many questions left unanswered by the Supreme Court's ruling in Albright , we nonetheless conclude that this is not the case in which to struggle with the meaning of Albright ."); Murphy v. Lynn , 903 F. Supp. 629, 631 (S.D.N.Y. 1995) ("In an apparent effort to resist the federalizing of all state law torts committed by local officials, the Supreme Court has recently held that the Fourteenth Amendment right to substantive due process will not support a federal claim for malicious prosecution[.]").
The Second Circuit clarified things in Singer v. Fulton County Sheriff , 63 F.3d 110 (2d Cir. 1995), explaining that Albright does not bar a § 1983 malicious prosecution claim asserted under the Fourth Amendment. Id. at 115. However, Singer rejected the idea that a warrantless arrest could serve as the necessary Fourth Amendment "seizure" for purposes of a § 1983 malicious prosecution claim. Id. at 116-17. As the panel explained, a qualifying "seizure effected pursuant to legal process" would ordinarily be (a) "in the form of a warrant, in which case the arrest itself may constitute the seizure" or (b) "a subsequent arraignment, in which case any post-arraignment deprivations of liberty (such as being bound-over for trial) might satisfy this constitutional requirement." Id. at 117.
Singer went on to observe that "a warrantless deprivation of liberty from the moment of arrest to the time of arraignment will find its analog in the tort of false arrest." 63 F.3d at 117. Singer then indicated that, even after an arraignment took place, a plaintiff would still need to show some kind of "restriction on his ability to travel freely" in order to maintain a § 1983 malicious prosecution claim. Id. Singer characterized that seizure issue as "largely a question of fact," but because the trial court had not reached the issue the panel declined to wade any further into the specifics of the matter. Id. at 116-17.
The Second Circuit seemed to lay down a modest extension of this seizure rule in Burg v. Gosselin , 591 F.3d 95 (2d Cir. 2010). There, a local dog warden issued to the plaintiff a summons that required her to appear in court to answer complaints about her dog's alleged misbehavior. Id. at 96. When the plaintiff missed the court appearance, she was arrested and taken into custody by other officers. Id. After the plaintiff brought a § 1983 unreasonable seizure claim against the warden, the trial court granted summary judgment, reasoning that the summons alone was insufficient to qualify as a Fourth Amendment seizure. Id.
The Second Circuit affirmed. Burg , 591 F.3d at 98. The Burg panel held that "the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure." 591 F.3d at 98. Burg reasoned that the one-off summons issued by the warden did "no more than require [the plaintiff] to appear in court on a single occasion" and noted that there was "no restriction on travel." Id. While the panel suggested that "[t]he number of appearances may bear upon whether there was a seizure," it ultimately affirmed the lower court's dismissal of the § 1983 claim. Id. at 97.
Burg seems to reject the notion that the issuance of a non-felony summons or appearance ticket that only requires a single court appearance could ever qualify as a Fourth Amendment seizure for purposes of a federal malicious prosecution claim. That holding is in line with Singer ’s suggestion that some kind of meaningful or intrusive post-arraignment liberty restriction is required to maintain a § 1983 malicious prosecution claim.
But reading Burg that way puts it somewhat at odds with Swartz v. Insogna , 704 F.3d 105 (2d Cir. 2013). There, a police officer pulled over and arrested the plaintiff for giving him the middle finger. Id. at 107-08. The plaintiff was taken to the police station, issued an appearance ticket for disorderly conduct, and then released. Id. at 108. The charge remaining pending for several years, and the plaintiff was required to make three court appearances before the case against him was finally dismissed. Id. The plaintiff brought a § 1983 malicious prosecution claim but the trial court granted summary judgment to the officer, reasoning that the plaintiff had not been "seized" because he had been released without conditions and only attended three court appearances. Id. at 109.
The Second Circuit reversed. Swartz , 704 F.3d at 112. The panel distinguished Burg ’s broad pronouncement about non-felony summonses on the grounds that the Burg plaintiff had not actually brought a malicious prosecution claim based on the seizure that occurred when she failed to appear for her court date. Swartz , 704 F.3d at 112 ; see also Burg , 591 F.3d at 96 n.3 ("Burg thus does not contend that she was detained or seized while [the warden] wrote out the summons ....").
The Swartz panel reasoned that the police officer who issued the appearance ticket to the plaintiff had in fact initiated a "seizure" for Fourth Amendment purposes because he "swore out a complaint" for the disorderly conduct charge and then "filed it in criminal court," conduct which had "put in motion proceedings that rendered [the plaintiff] at all times subject to the orders of the court, [ ] and foreseeably required him to incur the expense of a lawyer and the inconvenience and perhaps expense of multiple court appearances." Swartz , 704 F.3d at 112.
Notably, the trial court in Swartz had relied on Burg to hold that the plaintiff "did not experience a post-arraignment seizure" when he "was released on an appearance ticket without any conditions such as bail or travel restrictions." Swartz v. Insogna , 6:09-CV-616-DNH-ATB, Dkt. No. 31 at 20 (transcript of oral argument) (emphasis added). That holding seemed to follow logically from Singer and Burg , both of which were focused to some extent on court appearances and travel restrictions following arraignment.
Swartz characterized Burg ’s suggestion about the need for multiple court appearances as a dictum, so it obviously rejected that requirement. Instead, the panel's opinion concluded that the consequences stemming from the defendant–officer's conduct amounted to a qualifying seizure:
When [the officer] swore out a complaint against [the plaintiff] and filed it in a criminal court, he commenced a criminal action. He thus put in motion proceedings that rendered [the plaintiff] at all times subject to the orders of the court, and foreseeably required him to incur the expense of a lawyer and the inconvenience and perhaps expense of multiple court appearances.
Swartz , 704 F.3d at 112 (internal citations omitted).
Trial and appellate courts in this Circuit have found Swartz confusing. See, e.g. , Faruki v. City of N.Y. , 517 F. App'x 1 (2d Cir. 2013) (summary order) (relying on Burg to dismiss a malicious prosecution claim without citing or acknowledging the published opinion in Swartz ); Mazzone , 283 F. Supp. 3d at 53 ("The law in this Circuit regarding Fourth Amendment seizures in [the malicious prosecution] context is somewhat unsettled."); Oxman v. Downs , 999 F. Supp. 2d 404, 413 (E.D.N.Y. 2014) (detailing the confusion but adhering to Swartz ).
One way to make sense of Swartz ’s holding is to make sure you haven't taken the facts for granted: the plaintiff was issued an appearance ticket and released rather than jailed and presented to a judicial officer. But it was not a simple traffic ticket. Instead, the appearance ticket charged the plaintiff with disorderly conduct, which is considered a violation under New York law. N.Y. PENAL LAW § 240.20. So the defendant–officer was also required to swear out a criminal complaint and file it with the appropriate court before the return date on the appearance ticket.
As Swartz explained, filing this document with the court is what really kicked off a criminal prosecution against the plaintiff. The record of the proceedings below confirms that together, these two documents—the appearance ticket and the instrument later filed with the court by the officer—eventually led to an "arraignment" or "initial appearance." See Swartz v. Insogna , 6:09-CV-616-DNH-ATB, Dkt. No. 31 at 8 (defendant's counsel conceding there was "an arraignment").
Thinking about Swartz this way would bring its holding in line with Burg and even Singer , both of which were focused on the existence of a post-arraignment events. It is worth noting that Judge Newman characterized the Swartz plaintiff's status as "post-arraignment" before analyzing how the defendant–officer's alleged misconduct could give rise to the malicious prosecution claim. 704 F.3d at 112. It also helps to remember that the Burg plaintiff explicitly cabined her Fourth Amendment seizure claim to "the summons's requirement that [she] later appear in court at a specified date and time." 591 F.3d at 96 n.3. So the Burg plaintiff's claim was really limited to whether a pre-arraignment obligation to appear could qualify as a "seizure."
This is how some other courts have chosen to reconcile Burg and Swartz . See, e.g. , MacPherson v. Town of Southampton , 2013 WL 6058202, at *5 (E.D.N.Y. Nov. 14, 2013) ("In sum, while the issuance of a pre-arraignment, non-felony summons that merely requires a later court appearance does not constitute a Fourth Amendment seizure, the requirement that a plaintiff appear in court, post-arraignment, in connection with criminal proceedings, does constitute a Fourth Amendment seizure.").
But as the Second Circuit noted in Singer , this makes the Fourth Amendment seizure analysis a particularly fact-bound inquiry. Like the plaintiff in Swartz , Wagner suffered an arrest and was then issued an appearance ticket. The appearance ticket was not a simple traffic violation. It required him to appear before a court agency (in this case, the probation service) or risk the possible issuance of a bench warrant for his arrest. And just as in Swartz , Investigator Hyra and/or Judge must have forwarded some kind of legal process to the County Attorney and/or the probation service to put them on notice that plaintiff had been charged with a juvenile delinquency offense.
What's more, the appearance ticket obligated Wagner to appear before the probation service on November 16, 2017. The County Attorney's letter is dated December 7, 2017. So while the complaint is unclear on this point, plaintiff may have made at least one or more personal appearances before the County Attorney finally declined to pursue the matter. Those facts, if true, might point in the direction of a qualifying seizure. Discovery might reveal that the facts of this case are much closer to Burg than to Swartz . But the whole issue would be better resolved after an inquiry into exactly what happened. Accordingly, plaintiff has plausibly alleged a restraint on liberty sufficient to avoid dismissal of this claim at the motion-to-dismiss stage.
Finally, defendants argue that Investigator Judge should be shielded from liability on Wagner's claim because he did not "initiate" the prosecution. Defs.’ Mem. at 11. As relevant here, this element is typically satisfied by law enforcement conduct beyond the physical act of an arrest. See, e.g. , Ying Li , 246 F. Supp. 3d at 605 ("An active role in prosecution is inferred when a defendant had the plaintiff arraigned, filled out a complaining and corroborating affidavit, or signed a felony complaint."); Llerando–Phipps v. City of N.Y. , 390 F. Supp. 2d 372, 383 (S.D.N.Y. 2005) ("[A]n arresting officer may be held liable for malicious prosecution [if he] creates false information likely to influence a jury's decision and forwards that information to prosecutors." (cleaned up)).
Upon review, this argument will also be rejected. After discovery, defendants may be able to demonstrate that Investigator Judge was a passive participant in Hyra's malicious plan. But plaintiff has alleged that Judge took an active role in the endeavor. The amended complaint alleges that Judge directed another trooper to handcuff plaintiff to a "bull ring" attached to a wall, processed him, and then handed him the Appearance Ticket signed by Hyra. Am. Compl. ¶¶ 16-21. Importantly for present purposes, it is unclear whether Judge may have also forwarded a copy of the Appearance Ticket and/or some separate charging document to the probation service to ensure that plaintiff would appear or face consequences. If so, that behavior might qualify as the "initiation" of a prosecution for the same reasons discussed supra. Accordingly, defendants’ motion to dismiss this claim will also be denied.
D. Right to Privacy (Sixth Cause of Action)
Wagner's amended complaint alleges that defendants violated his Fourteenth Amendment right to privacy when they intentionally released non-public information about his arrest on the sodomy charge in violation of confidentiality requirements imposed by state law. Am. Compl. ¶¶ 83-87.
"The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint." Washington v. Glucksberg , 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Under the umbrella of "substantive due process," the Supreme Court has extended special protection to a set of special liberty interests that are not specifically enumerated in the Bill of Rights. Id. As the Fourth Circuit has explained, "[n]umerous cases in a variety of contexts recognize [substantive due process] as a last line of defense against those literally outrageous abuses of official power whose very variety makes formulation of a more precise standard impossible." Hall v. Tawney , 621 F.2d 607, 613 (4th Cir. 1980).
"Traditionally, the types of interests recognized under substantive due process includes rights of privacy, family and procreation—those rights that are so central to an individual's freedom that ‘neither liberty nor justice would exist if [they] were sacrificed.’ " Irwin v. City of N.Y. , 902 F. Supp. 442, 450 (S.D.N.Y. 1995) (quoting Bowers v. Hardwick , 478 U.S. 186, 191-92, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) ). "These areas of life have been found so important that, even when there is not a constitutionally enumerated right on point, due process requires state government [to] act with special solicitude for a fundamental ‘zone of privacy.’ " Hancock v. Cty. of Rensselaer , 882 F.3d 58, 65 (2d Cir. 2018) (quoting Griswold v. Connecticut , 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ).
As relevant here, "[i]t is well established that the individual right to privacy is protected by the Due Process Clause of the Fourteenth Amendment." O'Connor v. Pierson , 426 F.3d 187, 201 (2d Cir. 2005). "The privacy right takes two somewhat different forms: the right to personal autonomy (i.e., the right to make certain choices free of unwarranted government interference) and the right to confidentiality (i.e., the right to hold certain information private)." Id.
Defendant argue that Wagner's claim must be dismissed because "there is no recognized constitutional right to privacy in a juvenile arrest record." Defs.’ Mem. at 20. Plaintiff responds that several courts in this circuit have allowed a § 1983 plaintiff to maintain this kind of privacy claim when the disclosure occurs in violation of a specific state law. Pl.’s Opp'n at 26-27.
Wagner's claim relies primarily on Soucie v. County of Monroe , 736 F. Supp. 33 (W.D.N.Y. 1990). There, parents and a juvenile brought a § 1983 claim "alleging that defendants unlawfully disseminated and publicized confidential youthful offender information contained in a pre-sentence report." Id. at 34. The trial court partially rejected the defendants’ motion to dismiss the right-to-privacy claim, reasoning that the juvenile alone had established a "reasonable expectation of privacy" in the confidential information because the relevant state law explicitly prohibited its disclosure. Id. at 36.
As the plaintiff did in Soucie , Wagner points to several provisions of the Family Court Act declaring that records related to a juvenile arrest must be kept private. See, e.g. , N.Y. FAM. CT. ACT § 381.3 ("All police records relating to the arrest and disposition of any person under this article shall be kept in files separate and apart from the arrests of adults and shall be withheld from public inspection.").
In response, defendants’ argument seems to be that courts have limited the recognition of this branch of the constitutional privacy right to the protection of medical records and certain financial information. See, e.g. , Doe v. Town of Madison , 2010 WL 3829186, at *4 (D. Conn. Sept. 22, 2010) (collecting cases on those strands of constitutional law). To that end, they correctly argue that courts in this circuit and elsewhere have expressed doubt about a constitutional right to privacy in other kinds of records protected from disclosure under state law. See, e.g. , Id. at *5 ("Neither the Supreme Court, nor the Second Circuit, has recognized such a right. Indeed, there are strains in the Supreme Court's decisional law that could be taken to cast doubt—admittedly, very indirectly—on such a right."); O'Neill v. Kerrigan , 2013 WL 654409, at *9 (E.D. Pa. Feb. 22, 2013) ("[M]ost of the federal courts that have considered the issue have found considerable doubt as to whether the constitutional right to privacy extends to juvenile arrest and related records.").
However, the Court concludes that Wagner has plausibly alleged facts sufficient to establish this claim. As an initial matter, plaintiff does not allege the public disclosure of a run-of-the-mill adult arrest record. See, e.g. , Pelosi v. Spota , 607 F. Supp. 2d 366, 373 (E.D.N.Y. 2009) ("It is well-settled, however, that any constitutional right to privacy does not extend to matters of public record."). Instead, Wagner alleges that defendants intentionally released sensitive, non-public information about a juvenile arrest in clear violation of a state law written specifically to prevent that kind of disclosure. N.Y. FAM. CT. ACT § 381.3.
Wagner further alleges that this intentional disclosure occurred as part of a concerted effort to damage plaintiff "in his personal and professional life" and to "gain retribution" against him for daring to file the earlier criminal complaint against Rose. Am. Compl. ¶ 32. Indeed, plaintiff alleges that he was terminated as a sheriff's deputy as part of the whole incident. Id. ¶14. If these facts are true, they amount to egregious, conscience-shocking behavior by police officers charged with enforcing the law, not violating it for personal gain. Defendants respond that it does not matter whether those allegations are true or not, since the unique nature of the whole fact pattern means that they must be entitled to qualified immunity from any privacy-based claim. Defs.’ Mem. at 21-22.
"To state a claim for a violation of substantive due process, a plaintiff must demonstrate that the state action was ‘so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.’ " Uwadiegwu v. Dep't of Soc. Servs. , 91 F. Supp. 3d 391, 398 (E.D.N.Y. 2015) (quoting Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 275 (2d Cir. 2011) ). "State action that is ‘incorrect or ill-advised’ is insufficient to give rise to a substantive due process violation; rather, the action must be ‘conscience-shocking.’ " Id.
"The purpose of qualified immunity is to allow government officials to do their job free from doubt that they will be sued and liable for money damages because of actions they took that a court might one day decide [were] unlawful but that an objectively reasonable official at the time would not have known to violate anyone's rights." Ozga v. Elliot , 150 F. Supp. 3d 178, 189-90 (D. Conn. 2015). Accordingly, the doctrine shields defendants from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
Under the two-step framework articulated by the Supreme Court in Saucier v. Katz , 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), to defeat qualified immunity a plaintiff must show that (1) the official violated a statutory or constitutional right (2) that was "clearly established" at the time of the challenged conduct. Francis v. Fiacco , 942 F.3d 126, 139 (2d Cir. 2019) ; see also Curley v. Klem , 499 F.3d 199, 214 (3d Cir. 2007) ("[T]he most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified immunity question is whether the officer was reasonably mistaken about the state of the law.").
Importantly, though, in Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), the Supreme Court held that courts can "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236, 129 S.Ct. 808. In other words, since Pearson was decided "lower courts have had the option to proceed directly to step two of the analysis and, if they find that qualified immunity applies, avoid the unnecessary litigation of constitutional issues at step one." Francis , 942 F.3d at 140 (cleaned up).
At this second step, "[a] right is clearly established when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Dancy v. McGinley , 843 F.3d 93, 106 (2d Cir. 2016) (cleaned up). To be clearly established, the rule must be "settled law," which means it is dictated by a "controlling authority" or a "robust consensus of cases of persuasive authority." District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (cleaned up). This "clearly established" standard also requires the settled law to be "particularized" to the facts of the case. White v. Pauly , ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017).
Saucier ’s step two inquiry has proven challenging to put into practice. See, e.g. , Morrow v. Meachum , 917 F.3d 870, 874 (5th Cir. 2019) ("The second question—whether the officer violated clearly established law—is a doozy."); Stephenson v. Doe , 332 F.3d 68, 80 n.15 (2d Cir. 2003) ("Qualified immunity is a difficult concept; it looks to the reasonableness of an officer's belief that he acted lawfully after the officer is found to have been unreasonable in his conduct.").
To help sharpen the analysis, courts often break the second prong down into a pair of separate considerations: (a) whether the defendant's action violated clearly established law and, even if it did, (b) whether it was objectively reasonable for the defendant to believe that his action was nevertheless lawful at the time. Garcia v. Does , 779 F.3d 84, 92 (2d Cir. 2015) ; see also Taravella v. Town of Wolcott , 599 F.3d 129, 134 (2d Cir. 2010) (framing the latter component of this inquiry as "whether a reasonable official would reasonably believe his conduct did not violate a clearly established right").
Put differently, "if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context," the officer is still entitled to qualified immunity. Dancy , 843 F.3d at 106 (cleaned up); see also Philip v. Cronin , 537 F.3d 26, 34 (1st Cir. 2008) ("[E]ven if a constitutional right is clearly established, the defendant is entitled to qualified immunity so long as a reasonable official in [the defendant's] position could believe, albeit mistakenly, that his conduct did not violate the [law].").
Upon review, defendants’ qualified immunity argument will be rejected for now. Cf. Colon , 419 F. Supp. 3d at 598 ("Whether defendants are entitled to qualified immunity can sometimes be determined on a motion to dismiss .... But that is more the exception than the rule."). Assumed true, qualified immunity would not attach to the facts alleged by Wagner. Plaintiff has plausibly alleged a limited privacy interest of constitutional magnitude in the sensitive juvenile arrest record. Plaintiff has also plausibly alleged that this interest was intentionally violated by defendants in an egregious, conscience-shocking manner. Accordingly, defendants’ qualified immunity argument will be denied.
E. Failure to Intervene (Ninth Cause of Action)
As a final matter, defendants argue that Wagner cannot sustain a failure-to-intervene claim against Investigator Judge because he has not established any underlying violation of his constitutional rights. Defs.’ Mem. at 24-25. However, as discussed supra , plaintiff has plausibly alleged the violation of several constitutional rights, including the right to be free from a warrantless arrest in the absence of probable cause. Terebesi v. Torreso , 764 F.3d 217, 243 (2d Cir. 2014) ("[L]aw enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence."). Accordingly, this argument will also be rejected.
V. CONCLUSION
Wagner has plausibly alleged facts sufficient to open the door to discovery on most of his constitutional claims. As for defendants’ insistence on qualified immunity, the doctrine is intended to protect officials from reasonable but mistaken judgment calls in gray areas where the law is unsettled. It is not intended to shield brazen, intentional misconduct merely because the bad actors were creative enough to conjure up a clever way to violate someone's constitutional rights. Wesby , 138 S. Ct. at 589 ("Of course, there can be the rare ‘obvious case,’ where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances.").
Therefore, it is
ORDERED that
1. Defendants’ motion to dismiss is GRANTED in part and DENIED in part;
2. Plaintiff's §§ 1983 and 1985 conspiracy claims are DISMISSED;
3. Plaintiff's official-capacity claims are DISMISSED;
4. Plaintiff's Second, Fourth, and Eighth Causes of Action are DISMISSED;
5. Defendants’ motion to dismiss plaintiff's § 1983 false arrest and unlawful imprisonment claim against Hyra and Judge (First and Fifth Causes of Action) is DENIED;
6. Defendants’ motion to dismiss plaintiff's § 1983 malicious prosecution claim against Hyra and Judge (Third Cause of Action) is DENIED;
7. Defendants’ motion to dismiss plaintiff's § 1983 right-to-privacy claim against Hyra, Judge, and the Doe Employee (Sixth Cause of Action) is DENIED;
8. Defendants’ motion to dismiss plaintiff's § 1983 abuse-of-process claim against Hyra (Seventh Cause of Action) is DENIED;
9. Defendants’ motion to dismiss plaintiff's § 1983 failure-to-intervene claim against Judge (Ninth Cause of Action) is DENIED; and
10. Defendants shall answer the First, Third, Fifth, Sixth, Seventh, and Ninth causes of action in the operative pleading on or before February 24, 2021.
IT IS SO ORDERED.