Opinion
08 Civ. 3419 (GBD)
02-10-2011
JOSEPH DESTEFANO, Plaintiff, v. MAYOR MARLINDA DUNCANSON, in her individual and official capacity, POLICE CHIEF MATTHEW T. BYRNE, in his individual and official capacity, SPECIAL AGENT WILLIAM MARTINEZ, in his individual and official capacity, JULIE GRENZHAUSER-MONTALVO, in her individual and official capacity, and VINCENT BIONDO, Defendants.
MEMORANDUM DECISION AND ORDER
:
Plaintiff Joseph DeStefano brings this action against Marlinda Duncanson, in her official and individual capacity, Matthew Byrne, in his individual and official capacity, William Martinez, in his individual and official capacity, Julie Grenzhauser-Montalvo, in her individual and official capacity and Vincent Biondo in his individual capacity. Plaintiff asserts claims for malicious prosecution and conspiracy to violate Plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendants Duncanson, Byrne and Martinez move to dismiss the Second Amended Complaint ("SAC"). Specifically, Duncanson moves to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Byrne moves to dismiss the complaint for failure to a state a claim pursuant to Rule 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56. Martinez moves to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), for failure to state a claim pursuant to Rule 12(b)(6), or, in the alternative, for a more definitive statement pursuant to Rule 12(e).
Plaintiff asserts his claim for malicious prosecution against all Defendants. Plaintiff asserts his claim for conspiracy against Defendants Duncanson, Byrne, Grenzhauser-Montalvo and Biondo.
Facts
Plaintiff DeStefano was the mayor of the City of Middletown, New York from 1994 to 2005. SAC ¶ 2. Defendant Marlinda Duncanson was a member of the city's Common Council. Id. ¶ 3. Defendant Matthew T. Byrne was Middletown's Chief of Police. Id. ¶ 4. Defendant William Martinez was a special agent for the United States Department of Housing and Urban Development. Id. ¶ 8. Defendant Julie Grenzhauser-Montalvo was an employee of the federally-funded Office of Economic and Community Development. Id. ¶ 6,7. Vincent Biondo was a resident of Middletown and the owner of an automobile body shop in the town. Id. ¶ 9.
Judge Robinson entered partial default judgment against Vincent Biondo on June 16, 2010 because he failed to appear, answer or otherwise move six months after he had been served.
The Defendants Alleged Acts
Plaintiff alleges that during his tenure as mayor, he "openly challenged acts of public corruption" involving Duncanson and Byrne and opposed many of their public initiatives. Id. ¶ 10-13. Because of this, Defendants Duncanson and Byrne "conspired to and did retaliate against" DeStefano by presenting false accusations to the New York State Attorney General, the New York Commission of Investigations, the Office of the United States Attorney for the Southern District of New York and the Orange County District Attorney's Office. Id. ¶ 13, 15.
Specifically, Defendant Byrne is alleged to have targeted De Stefano's nightclub by "dramatically increasing the number of referrals made by the City of Middletown Police Department to the State Liquor Authority . . . placing the plaintiff's license to sell alcohol in jeopardy." Id. ¶ 17. Duncanson personally filed complaints with the State Liquor Authority. Id. ¶ 63. The Complaint does not allege that the State ever revoked DeStefano's liquor license. See id. Since the complaints did not result in any prosecution, they are irrelevant for the purpose of Plaintiff's claims. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995).
Though it is unclear from the Complaint itself, it appears that Special Agent Martinez investigated DeStefano's involvement in HUD's Community Development Block Grant Program. See Pl. Mem of Law at 4. To further Martinez's investigation, Byrne and Duncanson allegedly encouraged Defendant Grenzhauser, who worked at the office that handled such loans locally, to "secretly supply defendant Martinez with financial information pertaining to the Plaintiff and his private companies." Id. ¶ 57. The United States Attorney for the Southern District of New York brought charges against DeStefano but a federal grand jury declined to indict him. See Pl. Mem. of Law at 6. Other than the Orange County District Attorney, Plaintiff does not allege that any government bodies brought criminal charges against him. See id.
The Orange County Investigation
The Orange County District Attorney's Office separately investigated DeStefano for the same conduct as HUD had investigated. See id. According to the Complaint, Duncanson, Byrne, Grenzhauser and Biondo provided New York State Police and the Orange County District Attorney's Office with "false and/or incomplete information about and concerning wrongful activities engaged in by plaintiff as a private citizen and Mayor." Id. ¶ 65. The information they provided served as the basis for the warrant and indictment filed against De Stefano in 2004. Id.
Other than Plaintiff's conclusory assertion that Martinez was involved, it is unclear from the face of the Complaint what role, if any, Martinez, as a Special Agent of the HUD, played in the Orange County District Attorney's investigation. See e.g., Compl. ¶¶ 37, 41.
On August 31, 2004, DeStefano was arrested on a 52-count indictment charging him with, inter alia, offering a false instrument for filing. Id. ¶ 17, 65. Grenzhauser served as a confidential informant and witness at the trial. Id. ¶ 66. Special Agent Martinez allegedly withheld or ignored exculpatory evidence and failed to consult with other individuals who may also have possessed exculpatory evidence. Id. ¶ 43, 44. After a bench trial, Justice Rosenwasser of the County Court convicted DeStefano of two counts of offering a false instrument in the Second Degree. Id. ¶ 18. The Appellate Division for the Second Department overturned DeStefano's conviction finding that the "evidence was legally insufficient to establish [DeStefano's] guilt beyond a reasonable doubt." Id. ¶ 19; People v. DeStefano, 46 A.D. 3d 570 (App. Div. 2d 2007).
Malicious Prosecution
Defendants Byrne and Duncanson move to dismiss Plaintiff's malicious prosecution claim arguing that Plaintiff has failed to state a claim upon which relief can be granted.
Under Rule 8(a)(2), a Complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) In deciding a 12(b)(6) motion, the Court is to liberally construe the complaint, accepting the factual allegations as true and drawing all reasonable inferences in Plaintiff's favor. Id. The complaint must plead "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, the Rule requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation" or a series of legal conclusions and factually unsupported accusations. Id.
On a Section 1983 claim, a plaintiff must state a claim for malicious prosecution under state law. Rohman v. New York City Transit Authority, 215 F.3d 208, 215 (2d Cir. 2000). To state a claim for malicious prosecution, a plaintiff must show: "(1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiff's favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice." Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (quoting Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003)).
Specifically, Duncanson and Byrne contend that Plaintiff has not alleged sufficient facts to establish that Defendants commenced or continued a criminal proceeding against DeStefano and that there was a lack of probable cause.
The Second Circuit held that merely "reporting a crime to law enforcement and giving testimony does not constitute 'initiation' of a criminal prosecution. Hanly v. Powell Goldstein, L.L.P., 290 Fed.Appx.435, 439 (2d Cir. 2008) (citing to Rothstein v. Carriere, 373 F.3d 275, 293 (2d Cir. 2004)). Rather, the complainant must play an "active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Rothstein, 373 F.3d at 293. Even providing false information does not constitute initiation of a criminal prosecution. See id. ("the mere fact that a witness provided false information to the government does not warrant a conclusion that the witness initiated the prosecution where the rest of the evidence suggests otherwise.") (citing to Brown v. Sears Roebuck and Co., 297 A.D.2d 205, 746 N.Y.S.2d 141, 146 (1st Dep't 2002)).
In support of his malicious prosecution claim, Plaintiff alleges that all Defendants withheld or ignored exculpatory evidence, SAC ¶ 43, failed to consult with individuals who had exculpatory evidence, SAC ¶ 44, and failed to make reasonable inquiry into his conduct, SAC ¶ 42. This was, however, a criminal prosecution brought by the Orange County District Attorney's Office after a criminal investigation by the U.S. Department of Housing and Urban Development. Plaintiff does not offer any facts, beyond bald, conclusory assertions, that infer that any of the Defendants played an "active role in the prosecution," or that Defendants provided anything nearing "advice and encouragement." See Rothstein, 373 F.3d at 293. Further, Bryne's and Duncanson's other complaints to various other agencies does not overcome this pleading deficiency because none of those complaints resulted in a criminal prosecution. See Droz, 580 F.3d at 109.
As to Defendant Martinez, Plaintiff does not offer any facts regarding Martinez's role in the Orange County District Attorney's investigation. See Compl. It merely alleges Martinez participated in the same conduct as Defendants Byrne and Duncanson. See id. ¶¶ 42-44. This is plainly insufficient. Further, Plaintiff has not alleged any facts which support an inference that Martinez initiated the proceeding with actual malice. See Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010). Generally, "malice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff." Id. Plaintiff alleges no facts that suggest Martinez had any "improper or wrongful motive" in conducting his investigation or that Martinez acted to "recklessly disregard" DeStefano's rights. See Fulton v. Robinson, 289 F.3d 188 (2d Cir. 2002) (dismissing a case when, inter alia, Plaintiff presented no facts from "which it could be inferred that the prosecution was commenced out of any motive other than a desire to serve the ends of justice"). Therefore, Plaintiff's Section 1983 claim for malicious prosecution is dismissed.
Conspiracy
All Defendants contend that Plaintiff's § 1983 conspiracy claim must be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). In his opposition brief, Plaintiff does not contend otherwise. He only contends that the claim was timely.
Plaintiff's conspiracy claim is based on his malicious prosecution claim. See SAC ¶¶ 58-66 (alleging as the basis of his conspiracy claim the same course of conduct as of his malicious prosecution claim). Having dismissed Plaintiff's § 1983 substantive claim, his related conspiracy claim must also be dismissed. A Section 1983 conspiracy claim against private individuals will stand "only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995); Droz v. McCaddcn, 580 F.3d 106, 109 (2d Cir. 2009); see also Caporicci v. Nassau County Police Dep't., 2007 WL 764535, at *8 (E.D.N.Y. 2007) (applying Singer on a motion to dismiss). Therefore, Plaintiff's conspiracy claim is dismissed.
Defendant William Martinez, as an agent of the U.S. Department of Housing and Urban Development, also moves to dismiss the complaint against him in his official capacity pursuant to Fed. Civ. P. R. 12(b)(1), contending that this Court lacks subject matter jurisdiction over him as an officer of the United States. Plaintiff does not contest this portion of Defendant Martinez's motion.
"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." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Further, "[s]uits against a federal agency or a federal official in his or her official capacity are considered suits against the United States and are thus barred unless the United States has waived sovereign immunity." Saleh v. Holder, 2010 WL 5376210, at *7 (S.D.N.Y. Dec. 29, 2010) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)). Under the Federal Torts Claims Act ("FTCA"), the United States has waived immunity in tort cases in a limited number of circumstances. See 28 U.S.C. § 1346(b)(1). Specifically, the United States has waived immunity for malicious prosecution claims when it arises out of the acts or omissions of an "investigative or law enforcement officer," defined as an officer "empowered by law to execute searches, to seize evidence, or to make arrests." 28 U.S.C. § 2680(h).
There are "special agents" within the Housing and Urban Development that possess such authority. See e.g., 5 U.S.C. App. § 3(e)(1)(B) (authorizing a special agent of the office of the inspector general to "make arrests without a warrant."), However, the parties do not address what office Martinez worked in or under what statutory authority he acted. See SAC ¶ 8-9, 57.
Conclusion
Defendants' motions to dismiss Plaintiff's Complaint are granted. The Complaint is dismissed in its entirety.
Dated: February 10, 2011
New York, New York
SO ORDERED:
/s/_________
GEORGE B. DANIELS
United States District Judge