Opinion
5:20-CV-1489 (DNH/TWD)
04-21-2022
DERRICK WILSON, Plaintiff, v. COUNTY OF ONONDAGA, et al., Defendants.
DERRICK WILSON PLAINTIFF, PRO SE
DERRICK WILSON PLAINTIFF, PRO SE
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Derrick Wilson (“Plaintiff”) initiated this action pro se on December 4, 2020, asserting claims under 42 U.S.C. § 1983 against various law enforcement officials, prosecutors, and forensic analysists alleging that all defendants engaged in a seventeen-year-long conspiracy to fabricate evidence and frame him for murder. (Dkt. No. 1.) On April 21, 2021, Plaintiff's application to proceed in forma pauperis was granted. (Dkt. No. 10.) This Court proceeded to consider the sufficiency of the allegations set forth in the complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. On April 21, 2021, this Court recommended that certain of Plaintiff's claims be dismissed with prejudice based on absolute prosecutorial immunity, certain of the claims survive the Court's initial review and require a response, and that the complaint otherwise be dismissed without prejudice and with leave to amend. (Dkt. No. 10, the “April 2021 R&R”.) Plaintiff filed objections. (Dkt. No. 11.)
Plaintiff's original complaint names the following defendants: County of Onondaga; City of Syracuse; Onondaga County District Attorney William J. Fitzpatrick; former Onondaga County Assistant District Attorneys Stephen Dougherty, Matthew Doran, and Michael Ferrante; Assistant United States Attorney Carla Freedman; current and former members of the City of Syracuse Police Department David Proud, Christopher Lundborg, John Nolan, Daniel Babbage, Randy Collins, Timothy Galineu, Mary Ellen Gossin, William Kittel, Don Hilton, and James Quatrone; Onondaga County's Wallie Howard Jr., Center for Forensic Science (“CFS”) Interim Director Kathleen Corrado, CFS Firearms Analyst Justine Kreso and CFS Forensic Analyst Matthew Kurimsky; and independent firearms analyst Joseph Cominolli. (Dkt. No. 1 at ¶¶ 8-33.)
On December 16, 2021, the Hon. David N. Hurd, U.S. District Court Judge, accepted the April 2021 R&R and ordered that Plaintiff's complaint be dismissed in its entirety against defendants Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman; Plaintiff's § 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities survived initial review and required a response; and otherwise dismissed the complaint without prejudice and with leave to amend pursuant to 28 U.S.C. § 1915(e) and § 1915A for failure to state a claim upon which relief may be granted. (Dkt. No. 15, the “December 2021 Order”.)
On January 31, 2022, Plaintiff filed an amended complaint reasserting the same claims against the same defendants, including the prosecutors, as set forth in footnote 1 herein. (Dkt. No. 25.) The factual allegations in the amended complaint are virtually identical to the original complaint. (Compare Dkt. No. 25 with Dkt. No. 1.) Like the original complaint, the amended complaint alleges all defendants conspired to fabricate evidence to frame Plaintiff for murder. (Dkt. No. 25 at ¶¶ 116-131.) Plaintiff reasserts municipal liability claims against the City of Syracuse and County of Onondaga. Id. at ¶¶ 132-155. The amended complaint also adds a new “supervisory liability” claim. Id. at ¶¶ 156-164.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
Having previously found that Plaintiff meets the financial criteria for commencing this action in forma pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the amended complaint. 28 U.S.C. § 1915(e)(2)(B) (governing complaints filed in forma pauperis); 28 U.S.C. § 1915A (governing complaints filed by prisoners against the government).
When reviewing these types of complaints, this Court must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B); see also Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021) (applying Section 1915(e)(2)(B)); Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (applying Section 1915A).
This Court must exercise caution when determining whether to sua sponte dismiss a pro se complaint on the grounds that it is frivolous. See Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991); Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). “An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
When undertaking this initial review, the Court must construe pro se pleadings with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Iqbal, 556 U.S. 662, 678. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
III. DISCUSSION
As noted, Plaintiff's amended complaint, like his original complaint, alleges that the law enforcement officials, prosecutors, and forensic analysts engaged in a seventeen-year-long conspiracy to fabricate evidence and frame him for murder. (Dkt. No. 25 at ¶¶ 1-5.) Plaintiff purports to sue the prosecutors “only” during the “investigative and administrative phase” and excluding the “advocacy phase.” Id. at ¶¶ 10-14. The amended complaint list five causes of action: (1) evidence manufacturing claim against all defendants, id. at ¶¶ 116-124; (2) conspiracy claim against all defendants, id. at ¶¶ 125-131; (3) Monell claim against the City of Syracuse, id. at ¶¶ 132-142; (4) Monell claim against the County of Onondaga, id. at ¶¶ 143-155; and (5) “supervisory liability” claims against Fitzpatrick, Proud, and Corrado, id. at ¶¶ 156-164.
A. Prosecutorial Immunity
The original complaint was dismissed in its entirety against Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman. (Dkt. No. 15 at 2.) Plaintiff was not granted leave to amend his § 1983 claims against the prosecutors. See id. at 3.
Insofar as Plaintiff reasserts § 1983 claims against Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman in their individual capacities, the Court recommends dismissing the amended complaint for the same reasons set forth in the April 2021 R&R. (Dkt. No. 10 at 1215.) To that end, prosecutors are immune from civil suit for damages in their individual capacities for acts committed within the scope of their official duties where the challenged activities are not investigative in nature but, rather, are “intimately associated with the judicial phase of the criminal process.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)) (internal quotation marks omitted); see Imbler, 424 U.S. at 431 (“[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.”); see also Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (absolute immunity is analyzed under a “functional approach” that “looks to the nature of the function performed, not the identity of the actor who performed it”) (internal quotation marks and citation omitted). In addition, prosecutors are immune from suit for acts that may be administrative obligations but are “directly connected with the conduct of a trial.” Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009).
As set forth in the April 2021 R&R, Freedman is an official of the federal government and, as such, is not deemed a person acting under color of state law pursuant to § 1983. (Dkt. No. 10 at 15-16.) For the same reasons discussed in the April 2021 R&R and herein, Freedman is entitled to absolute prosecutorial immunity with respect to the claims in this action. See Hartman v. Moore, 547 U.S. 250, 261-62 (2006) (noting that absolute prosecutorial immunity protects federal prosecutors facing Bivens actions). Further Bivens claims are available only against federal government officers in their individual capacities. The federal government itself and its agencies are immune from suit absent a waiver of sovereign immunity, and the Supreme Court has specifically declined to waive such immunity to allow a claim against a federal agency under Bivens. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 486 (1994).
In short, absolute prosecutorial immunity covers “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273. This includes “the decision to bring charges against a defendant, presenting evidence to a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, No. 11 Civ. 316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York, No. 00 CIV 3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity even extends to “the falsification of evidence and the coercion of witnesses,” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir. 1980)), “the knowing use of perjured testimony,” “the deliberate withholding of exculpatory information,” Imbler, 424 U.S. at 431 n.34, the “making [of] false or defamatory statements in judicial proceedings,” Burns v. Reed, 500 U.S. 478, 490 (1991), and “conspiring to present false evidence at a criminal trial,” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994); see also see also Verbeek v. Teller, 158 F.Supp.2d 267, 282 (E.D.N.Y. 2001) (granting motion to dismiss claims against prosecutorial official because conspiracy allegation does not “negate her entitlement to absolute immunity”) (citing Dory, 25 F.3d at 83).
Here, Plaintiff's claims against Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman emanate from their alleged conduct in prosecuting Plaintiff for the 2000 homicide of Waliek Hamer, including interacting with potential witnesses in the case, discussing reduced sentences for witnesses and offering agreements, convening a grand jury, and presenting evidence to a grand jury. (See, e.g., Dkt. No. 24 at ¶¶ 59-66, 72, 79, 86-88.) Because each of these functions is quintessentially prosecutorial in nature and was performed in connection with their roles as prosecutors, the Court again recommends finding that the prosecutors are entitled to absolute immunity from suit notwithstanding Plaintiff's labeling of such activity as “investigative and administrative in nature.” See id. at ¶¶ 10-14.
Investigatory functions have been found to include such things as involvement by a prosecutor in “[i]nvestigation, arrest, and detention [that] have historically and by precedent been regarded as the work of police, not prosecutors ....” Bernard v. Cty. of Suffolk, 356 F.3d 495, 495, 502 (2d Cir. 2004); see, e.g., Peters v. City of Buffalo, 848 F.Supp.2d 378, 385 (W.D.N.Y. 2012) (listing activities such as orchestrating a sting operation, authorizing wiretaps, and assisting in the execution of a warrant as investigative or administrative that do not deserve absolute prosecutorial immunity).
Moreover, the Eleventh Amendment protects states against suits brought in federal court. See Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state. See Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006); see also Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (“To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state.”). As discussed in the April 2021 R&R, a district attorney or assistant district attorney is acting as a state official when he or she acts as a prosecutor. See D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (summary order) (“[I]f a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the State, and therefore immune from suit in her official capacity.”). Similarly, “because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity is waived.” Coon v. Trustco Bank Corp., No. 07-CV-1115, 2007 WL 4118938, at *2 (N.D.N.Y. Nov. 16, 2007) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994)). Thus, insofar as Plaintiff purports to sue Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman in their official capacities, such claims also fail.
Therefore, the Court recommends dismissing the amended complaint in its entirety with prejudice against Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) under the doctrines of prosecutorial, Eleventh Amendment, and sovereign immunity, and as frivolous. See also Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011) (claims dismissed for prosecutorial immunity are frivolous under the in forma pauperis statute).
B. Fabrication-of-Evidence
In the amended pleading, Plaintiff reasserts his § 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual and official capacities. (Dkt. No. 25 at ¶¶ 15-27, 116-124.) The law related to a fabrication-of-evidence claim was discussed in the April 2021 R&R and will not be restated herein. (See Dkt. No. 10 at 16-17.) Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff, 537 F.3d at 191, the Court finds that Plaintiff's § 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities is sufficiently plead and requires a response. The Court expresses no opinion as to whether this claim can withstand a properly filed dispositive motion.
A different conclusion is reached, however, with respect to Plaintiff's § 1983 fabrication-of-evidence claim against these defendants in their “official capacity” as current or former employees of the Syracuse Police Department or CFS. As discussed in the April 2021 R&R, “a § 1983 suit against a municipal officer in his official capacity is treated as an action against the municipality itself.” Coon v. Town of Springfield, 404 F.3d 683, 687 (2d Cir. 2005) (citing Brandon v. Holt, 469 U.S. 464, 471-73 (1985)). Accordingly, the Court recommends dismissing Plaintiff's § 1983 fabrication-of-evidence claim against these defendants in their “official capacity” as redundant and duplicative of any claim asserted against the City of Syracuse and/or the County of Onondaga, which the Court addresses below.
C. Conspiracy
Plaintiff was granted leave to replead his conspiracy claim. (Dkt. No. 15 at 2.) A conspiracy claim under § 1983 must allege that (1) an agreement existed between two or more state actors to act in concert to inflict an unconstitutional injury on plaintiff, and (2) an overt act was committed in furtherance of that goal. Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Vague and conclusory allegations that defendants have engaged in a conspiracy, like the ones offered in Plaintiff's amended complaint, do not suffice. Ciambriello, 292 F.3d at 325; Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (“A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.”). “[A]lthough a plaintiff does not need to provide detailed factual allegations, the allegations in the complaint must be ‘enough to raise a right to relief above the speculative level.'” Flores v. Levy, No. 07-CV-3753, 2008 WL 4394681, at *9 (E.D.N.Y. Sept. 23, 2008) (quoting Twombly, 550 U.S. at 555). Here, Plaintiff claims are impermissibly vague and conclusory to plausibly suggest a conspiracy. (See, e.g., Dkt. No. 25 at ¶¶ 56 (Quatrone, Proud, and unknown members of the SPD “agreed to bribe” Witness Doe #1 into falsely implicating Plaintiff for the Hamer homicide), 59 (Quatrone, Proud, and Dougherty “met and agreed to bribe” Witness Doe 1), 79 (Proud, Freedman, Doran, Ferrante, Fitzpatrick, Nola, Galineu, Gossin, and Kittle “met and agreed to bribe” Jamal Harris into falsely implication Plaintiff in the Hamer homicide), 90 (Freedman, Doran, Ferrante, Proud, Galineu, Babbage, Gossin, Kittel, Collins “agreed to falsely identify a photograph of a 9mm Lorcin . . . as the weapon Plaintiff used to murder Hamer”), 93 (Freedman, Doran, Ferrante, Hilton, Collis, Corrado, Kreso, and Kurimsky “agreed to falsify ballistic reports and ballistic evidence”); 114 (Cominolli, an independent forensic analyst in private practice “communicated and agreed with Quatrone to not conduct the court ordered microscopic analysis and comparison”).
Accordingly, the Court recommends that Plaintiff's conspiracy claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for failure to state a claim upon which relief may be granted.
D. State Action
As set forth in the April 2021 R&R, § 1983 “excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotation marks and citation omitted). A plaintiff, however, can establish that a private actor was acting under color of state law by proving either: “(1) the existence of joint activity between the private actor and the state or its agents, or (2) a conspiracy between the state or its agents and the private actor.” Young v. Suffolk Cty., 922 F.Supp.2d 368, 385 (E.D.N.Y. 2013).
“To establish joint action, a plaintiff must show that the private citizen and the state official shared a common unlawful goal; the true state actor and the jointly acting private party must agree to deprive the plaintiff of rights guaranteed by federal law.” Anilao v. Spota, 774 F.Supp.2d 457, 498 (E.D.N.Y. 2011) (quotation marks and citation omitted)). Alternatively, as set forth above, to show that there was a conspiracy between a private actor and the state or its agents, a plaintiff must provide evidence of “(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act in furtherance of that goal causing damages.” Ciambriello, 292 F.3d at 324-25 (2d Cir. 2002). These two methods of demonstrating state action - “joint action” and “conspiracy with” - are “intertwined” and overlap in significant respects. Harrison v. New York, 95 F.Supp.3d 293, 322 (E.D.N.Y. 2015) (quotation marks and citation omitted).
Here, Plaintiff reasserts in wholly conclusory fashion that Cominolli, an independent forensic analyst, conspired with Quatrone to prevent Plaintiff from conducting his own microscopic ballistic analysis and comparison. (Dkt. No. 25 at ¶¶ 28, 110-115.) Plaintiff has not alleged any facts from which the Court could reasonably construe a plausible § 1983 conspiracy or joint actor claim. Therefore, the Court recommends dismissing Plaintiff's § 1983 claims against Cominolli pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
E. Municipal Liability
Plaintiff was granted leave to replead municipal liability claims against the City of Syracuse and County of Onondaga. (Dkt. No. 15 at 3.) Upon review, Plaintiff's amended complaint fails to allege facts meeting the standard for establishing municipality liability as laid out in Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978).
To set forth a cognizable claim for municipal liability under § 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights “was caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690-91); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer. Second, the plaintiff must establish a causal connection-an ‘affirmative link'-between the policy and the deprivation of his constitutional rights.”) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985)). Indeed, municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right; it “may not be held liable on a theory of respondeat superior.” Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).
An “official policy or custom” can be shown in several ways: “(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so consistent and widespread that it constitutes a ‘custom or usage' sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to ‘deliberate indifference' to the rights of those who come in contact with the municipal employees.” Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F.Supp.2d 183, 194 (N.D.N.Y. 2005) (internal citations omitted). “[M]ere allegations of a municipal custom, a practice of tolerating official misconduct, or inadequate training and/or supervision are insufficient to demonstrate the existence of such a custom unless supported by factual details.” Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26, 2015).
1. City of Syracuse
Plaintiff fails to identify or plausibly allege any facts showing the existence of an official policy or custom of the City of Syracuse that resulted in the deprivation of his constitutional rights. The amended complaint states that the City of Syracuse maintains:
a policy, practice or custom of conducting constitutionally inadequate investigations and fabricating police reports; fabricating inculpatory evidence, including coercement (sic) of witnesses to fabricate and change their testimony; falsification of ballistic evidence and laboratory reports; obstructing criminal defendants ability to mount a defense; perpetuating perjury by knowingly providing false testimony in both the grand jury and/or criminal trial setting; failing to obtain probable cause to ensure that suspects would not be falsely arrested; suppressing from prosecutors material information favorable to criminal defendants; an failing to follow the duties imposed by Brady v. Maryland.(Dkt. No. 25 at ¶ 133.) Plaintiff alleges the City of Syracuse “systemically failed to adequately train its police officers and investigators to conduct constitutionally adequate investigations . . ..” Id. at ¶ 134. He claims the City of Syracuse “failed to adequately supervise its police officers, detectives and investigators to ensure that they're conducting constitutionally adequate investigations ....” Id. at ¶ 135. Plaintiff also contends the City of Syracuse failed to adequately discipline their police officers, detectives and investigators ....” Id. at ¶ 136. He maintains the City of Syracuse had “actual or constructive notice” of the foregoing and that the City's failure to train, supervise, and discipline, along with its custom, practices, and policies, “amounted to deliberate indifference to the constitutional rights of criminal defendants like Plaintiff, and were the moving force behind the false and fabricated evidence that defendants relied upon in causing his arrest and prosecution as well as all the ongoing injuries and damages” as set forth in the amended complaint. Id. at ¶¶ 137-38 (capitalization omitted).
However, “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in original).
Here, Plaintiff's conclusory allegations that the City of Syracuse failed to properly hire, supervise, and train subordinates, “without supporting factual allegations of, among other things, a policy or custom pursuant to which the alleged action was undertaken, fails to state a claim against those municipalities that is plausible on its face.” Gray-Davis v. New York, No. 5:14-CV-1490 (GTS/TWD), 2015 WL 2120518, at *6 (N.D.N.Y. May 5, 2015); see Hawthorne v. City of Albany, No. 17-CV-0716 (GTS), 2017 WL 6520774, at *5 (N.D.N.Y. Nov. 14, 2017) (same). Plaintiff has not alleged any nonconclusory facts about the City of Syracuse. See Zahra, 48 F.3d at 685 (“[T]he mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.”) (second alteration in original) (internal quotation marks omitted); Turczyn ex rel. McGregor v. City of Utica, No. 13-CV-1357, 2014 WL 6685476, at *6 (N.D.N.Y. Nov. 26,2014) (municipal liability insufficiently pleaded where complaint used label “deliberate indifference” and generically referenced failure to train, but did not “allege facts that support either conclusory notion”); Guerrero v. City of N.Y., No. 12-CV-2916, 2013 WL 673872, at *2 (S.D.N.Y. Feb. 25, 2013) (“[B]oilerplate claims do not rise to the level of plausibility required to state a viable Monell claim.”) (internal quotation marks omitted); Simms v. City of New York, No. 10-CV-3420, 2011 WL 4543051, at *3 (E.D.N.Y. Sept. 28, 2011) (dismissing allegations that did not provide any facts that would allow the court to infer what city policies or practices led to the alleged deficiency, and contained only legal conclusions and boilerplate), aff'd, 480 Fed.Appx. 627 (2d Cir. 2012).
Therefore, the Court recommends that the amended complaint be dismissed against the City of Syracuse for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See Plair v. City of New York, 789 F.Supp.2d 459, 469 (S.D.N.Y. 2011) (“Following Iqbal and Twombly, Monell claims must satisfy the plausibility standard[.]”); see also Meehan v. Kenville, 555 Fed.Appx. 116, 117 (2d Cir. 2014) (summary order) (claim against municipal entity was properly dismissed under 28 U.S.C. § 1915 for “failure to plausibly allege that any constitutional violation resulted from a custom, policy or practice of the municipality”); Irvine v. City of Syracuse, No. 14-CV-1565 (TJM), 2015 WL 2401722, at *6-7 (N.D.N.Y. May 19, 2015) (dismissing Monell claim pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim); Santagata v. City of New York, No. 17-CV-3053, 2017 WL 2963453, at *2 (E.D.N.Y. July 11, 2017) (same).
2. County of Onondaga
Similarly, Plaintiff seeks to hold the County of Onondaga liable for failing to supervise or discipline its employees. (Dkt. No. 25 at ¶¶ 143-155.) Specifically, Plaintiff claims Fitzpatrick, acting on behalf of Onondaga County, had “actual and constructive' knowledge that Dougherty, Doran, and Ferrante “had regular meetings” to “review facts relating to their investigations,” “authorize prosecutions”, and “to discuss the status and progress of cases brought by that office.” Id. at ¶ 144. Plaintiff claims Fitzpatrick “knowingly relied and acted upon fabricated and coerced testimony and evidence while investigating” Plaintiff. Id. at ¶ 145. He further alleges the County of Onondaga displayed “deliberate indifference to their obligation to properly instruct, train, supervise and discipline their employees” including Dougherty, Doran, and Ferrante and “other ADAs” involved in the prosecution of Plaintiff. Id. at ¶ 146. Plaintiff claims the “unlawful policies, procedures, regulations, practices and/or customs (including the failure to properly instruct, train, supervise, and/or discipline employees with regard thereto) were implemented or tolerated by policymaking officials for defendant County of Onondaga, including but not limited to, DA Fitzpatrick ....” Id. at ¶ 147 (capitalization omitted). Plaintiff further alleges that the County of Onondaga's
failures to train, supervise, and discipline . . . amounted to deliberate indifference to the constitutional rights of criminal defendants like Plaintiff and were the moving force behind the coercement (sic) of witnesses to fabricate and change their testimony, falsification of ballistic evidence and laboratory reports; perpetuation of perjury by knowingly relying upon false testimony throughout the investigation and prosecution, and withholding exculpatory evidence.Id. at ¶ 151.
Initially, for the same reasons discussed above, Plaintiff's conclusory allegations that the County of Onondaga failed to properly hire, supervise, and train “without supporting factual allegations of, among other things, a policy or custom pursuant to which the alleged action was undertaken, fails to state a claim against those municipalities that is plausible on its face.” Gray-Davis, 2015 WL 2120518, at *6 (N.D.N.Y. May 5, 2015). Additionally, as previously discussed, where, as in this case, the district attorneys are acting in a quasi-judicial capacity, they represent the State, not the County. Hasan v. Onondaga Cty., No. 5:18-CV-806 (GLS/ATB), 2018 WL 4055296, at *9 (N.D.N.Y. Aug. 2, 2018) (citing, inter alia, Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988)). It is only where claims center on the administration or management of the district attorney's office that a district attorney may be found to have acted as a “policy maker” for purposes of § 1983 liability. Id. at *9 n.14 (citing Ying Jing Gan, 996 F.2d at 536); see also Miller v. Cty. of Nassau, 467 F.Supp.2d 308, 314 (E.D.N.Y. 2006) (“In this Circuit, a county may be liable pursuant to § 1983 for the actions of the district attorney in limited circumstances.”) (internal citation and quotation marks omitted); Walker v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992) (“Where a district attorney acts as the manager of the district attorney's office, the district attorney acts as a county policymaker.”). In this case, however, Plaintiff takes issues with the district attorney's decisions regarding the prosecution of Plaintiff's criminal case and, therefore, the district attorney is not an Onondaga County policy maker.
Even if Monell liability potentially could extend to the County of Onondaga based on Fitzpatrick's role as a policymaker and his failure to train, supervise, or discipline assistant district attorneys, Plaintiff has not plausibly alleged a municipal policy or custom sufficient to state a claim. See Vann v. City of Rochester, No. 6:18-CV-06464, 2019 WL 2646616, at *7 (W.D.N.Y. June 27, 2019) (dismissing municipal liability against the County of Monroe for failure to state a claim based on the district attorney's failure to train, supervise, or discipline prosecutors for violating defendants' constitutional rights). Like his Monell claim against the City of Syracuse, other than conclusory references to “unlawful policies, procedures, regulations, practices and/or customs”, (Dkt. No. 25 at ¶ 147), Plaintiff fails to identify any policy, practice or custom adopted by the County of Onondaga. See id. at ¶¶ 143-155. In short, the amended complaint fails to state a Monell claim against the County of Onondaga. Plaintiff has not identified any specific municipal policy or custom that caused his injuries or provided any allegations supporting a plausible inference of a pattern and practice through a failure to train or supervise. Moreover, “conclusory allegations that a municipality failed to train and supervise its employees” are insufficient to state a Monell claim absent supporting factual allegations. Davis v. City of New York, No. 07 Civ. 1395, 2008 WL 2511734, at *6 (S.D.N.Y. June 19, 2008).
Therefore, the Court recommends that Plaintiff's Monell claim against the County of Onondaga be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for failure to state a claim upon which relief may be granted.
F. Supervisory Liability
In the amended complaint, Plaintiff has added a “supervisory liability” claim against Fitzpatrick, Proud, and Corrado. (Dkt. No. 25 at ¶¶ 156-164.) Liberally construed, Plaintiff alleges that Fitzpatrick, Proud, and Corrado, with oversight responsibility for training, hiring, screening, instruction, supervision, and discipline of the Onondaga County District's Attorney's Office, Syracuse Police Department, and CFS, respectively, were “personally involved in both the depravation of Plaintiff's constitutional rights and in creating or condoning the policy or custom of failing to take preventative and remedial measures to guard against such constitutional deprivations.” Id. at ¶¶ 157-158. Plaintiff further claims Fitzpatrick, Proud, and Corrado were “reckless in their failure to supervise their respective subordinates” and failed to “train, supervise and discipline” their subordinates. Id. at ¶¶ 159-60.
However, Plaintiff's “supervisory liability” claim is not viable following the Second Circuit's decision in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020). In Tangreti, the Second Circuit clarified how the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009) affected the five factors for assessing a defendant's personal involvement, which were previously set forth in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). The Second Circuit found the Colon factors are no longer all viable and articulated the proper standard for the courts in this Circuit to utilize when determining personal involvement or supervisory liability: “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676). “‘The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary.” Id.
“‘[A]fter Iqbal, [a p]laintiff can no longer succeed on a § 1983 claim against [a d]efendant by showing that as a supervisor he behaved knowingly or with deliberate indifference that a constitutional violation would occur at the hands of his subordinates, unless that is the same state of mind required for the constitutional deprivation he alleges.'” Tangreti, 983 F.3d at 618 (alterations in original) (citations omitted). The supervisor must have committed the violation himself or herself, not by the supervision of others who committed the violation. See id. Likewise, the supervisor must personally display the requisite state of mind, depending on the violation at issue. See id.
Here, Plaintiff's conclusory allegations of negligent and/or reckless supervision of subordinates and/or failure to train fail to state a claim that these defendants violated Plaintiff's constitutional rights by their own conduct. Tangreti, 983 F.3d at 619. Accordingly, the Court recommends dismissing Plaintiff's “supervisory liability” claim for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
G. Doe Defendants
Plaintiff also names “Does 1 through 100” as defendants. (Dkt. No. 25 at ¶ 31.) However, there are no allegations against any Doe defendant in the body of the amended complaint. In the absence of factual allegations sufficient to plausibly suggest that these unidentified defendants were personally involved in conduct that violated Plaintiff's constitutional rights, the amended complaint fails to state a cognizable claim against them. See Cipriani v. Buffardi, No. 06-CV-0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y. Feb.20, 2007) (“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.”) (citation omitted); see also Casino v. Rohl, No. 14-CV-2175, 2014 WL 5425501, at *6 (E.D.N.Y. Oct. 23, 2014) (dismissing complaint since the plaintiff had not adequately pled the defendant's personal involvement in any of the constitutional deprivations alleged in the amended complaint).
Accordingly, the Court recommends dismissing the amended complaint against Does 1100 without prejudice for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
IV. CONCLUSION
For the foregoing reasons, this Court recommends that Plaintiff's amended complaint be dismissed in its entirety with prejudice against Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The Court further recommends that only Plaintiff's § 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities survives initial review and requires a response, and that the amended complaint otherwise be dismissed without further leave to amend pursuant to 28 U.S.C. § 1915(e) and § 1915A for failure to state a claim upon which relief may be granted. See Abascal v. Hilton, No. 04-CV-1401 (GTS/GHL), 2008 WL 268366, at *8 (N.D.N.Y. Jan. 13, 2008) (“Of course, granting a pro se plaintiff an opportunity to amend is not required where the plaintiff has already been given a chance to amend his pleading.”), aff'd, 357 Fed.Appx. 388 (2d Cir. 2009); accord Diaz v. Henley, No. 9:19-CV-1611 (GLS/DJS), 2020 WL 1849454 (N.D.N.Y. Apr. 13, 2020); Bivona v. McLean, No. 9:19-CV-0303 (MAD/TWD), 2019 WL 2250553, at *6 (N.D.N.Y. May 24, 2019) (denying further leave to amend where the plaintiff has already been afforded an opportunity to amend his complaint and was specifically advised of the deficiencies in his original complaint). Lastly, this Court recommends that the following defendants be terminated from this action: County of Onondaga, City of Syracuse, Joseph Cominolli, and Does 1-100.
On December 16, 2021, Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman were terminated as defendants from this action. (Dkt. No. 16.)
WHEREFORE, it is hereby
RECOMMENDED that Plaintiff's amended complaint be DISMISSED IN ITS ENTIRETY WITH PREJUDICE against defendants Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman; and it is further
RECOMMENDED that Plaintiff's § 1983 fabrication-of-evidence claim against defendants Proud, Lundborg, Nolan, Babbage, Collins, Galineu, Gossin, Kittel, Hilton, Quatrone, Corrado, Kreso, and Kurimsky in their individual capacities SURVIVES initial review and requires a response; and it is further
RECOMMENDED that Plaintiff's amended complaint be otherwise DISMISSED WITHOUT FURTHER LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e) and § 1915A for failure to state a claim upon which relief may be granted; and it is further
RECOMMENDED that the following defendants be TERMINATED from this action: County of Onondaga, City of Syracuse, Joseph Cominolli, and Does 1-100; and it if further
On December 16, 2021, Fitzpatrick, Dougherty, Doran, Ferrante, and Freedman were terminated as defendants from this action. (Dkt. No. 16.)
RECOMMENDED that a response to the amended complaint be filed by the remaining defendants, or his/her counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that all pleadings, motions, and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of same was served on all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. Plaintiff must comply with all requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; his failure to do so will result in the dismissal of this action; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).