Rafiy v. The County of Nassau

FILED

IN CLERK'S OFFICE

U.S. DISTRICT COURT E.D.N.Y.

DEC 20209 *

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE

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PHILIP M. RAFIY, M.D., individually,

Plaintiff,

ORDER

-against- 15-CV-6497(SJF)(GRB)

COUNTY OF NASSAU, et al.,

Defendants.

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FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiff Philip M. Rafiy, M.D.

(“plaintiff”) to so much of the Report and Recommendation of the Honorable Gary R. Brown,

United States Magistrate Judge, dated November 13, 2019 (“the Report”), as recommends

granting the branches of defendants’ motion seeking summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure dismissing plaintiff's (i) municipal liability claims against

the County of Nassau (“the County”); (11) official capacity claims against defendants Kathleen

Rice (“Rice”), Andrew Weiss (‘ADA Weiss”) Diane Peress (“ADA Peress”) and William Walsh

(“Walsh”) as barred by the Eleventh Amendment; and (iii) federal claims against the County

Defendants! on the basis, inter alia, (A) that plaintiff failed to establish a cognizable

constitutional violation, and (B) that the County Defendants are shielded by the doctrines of

absolute and qualified immunity. For the reasons set forth below, plaintiff's objections are

overruled and the Report is accepted in its entirety.

Consistent with the Report, the County, Office of the Nassau County District Attorney (the “DA’s Office”), Rice,

ADA Weiss, ADA Peress and Walsh are collectively referred to herein as the “County Defendants.” (See Report at

1).

I. Discussion

A. Standard of Review

Any party may serve and file written objections to a report and recommendation of a

magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy

thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and

recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual

findings or legal conclusions of the magistrate judge as to which no proper objections are

interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To

accept the report and recommendation of a magistrate judge to which no specific, timely

objection has been made, the district judge need only be satisfied that there is no clear error

apparent on the face of the record. See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great

Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which

no timely objection has been interposed to determine whether the magistrate judge committed

“plain error.”)

However, general objections, or “objections that are merely perfunctory responses argued

in an attempt to engage the district court in a rehashing of the same arguments set forth in the

original papers will not suffice to invoke de novo review.” Owusu v. New York State Ins., 655 F.

Supp. 2d 308, 312-13 (S.D.N.Y. 2009) (quotations, alterations and citation omitted); see also

Trivedi v. New York State Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 726

(S.D.N.Y. 2011), aff’d sub nom Seck v. Office of Court Admin., 582 F. App’x 47 (2d Cir. Nov. 6,

2014) (“[W]hen a party makes only conclusory or general objections [] the Court will review the

Report strictly for clear error.[] Objections to a Report must be specific and clearly aimed at

particular findings in the magistrate judge’s proposal.” (quotations, alterations and citation

omitted)). Any portion of a report and recommendation to which no specific timely objection is

made, or to which only general, conclusory or perfunctory objections are made, is reviewed only

for clear error. Owusu, 655 F. Supp. 2d at 312-13; see also Bassett v. Electronic Arts, Inc., 93 F.

Supp. 3d 95, 100-01 (E.D.N.Y. 2015).

Whether or not proper objections have been filed, the district judge may, after review,

accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b).

B. Plaintiff’s Objections

Initially, plaintiff’s general objections to the Report, and request that the Report “be set

aside” in its entirety, (Plaintiff’s Objections to the Report [“Plf. Obj.”] at 10), are insufficient to

invoke de novo review. See, e.g. Colvin v. Berryhill, 734 F. App’x 756, 758 (2d Cir. May 18,

2018) (summary order); Benitez v. Parmer, 654 F. App’x 502, 503 (2d Cir. June 30, 2016)

(summary order). Accordingly, except for the specific objections set forth below, the remainder

of the Report is reviewed only for clear error.2

Plaintiff contends, inter alia, that Magistrate Judge Brown erred: (i) in purportedly

misapplying the legal standard for summary judgment, accepting the County Defendants’ “Rule

56 Statement as the facts of the matter” and “failing to apply the facts in a light most favorable to

plaintiff,” (Plf. Obj. at 3); (ii) in “concluding that Plaintiff has merely asserted claims predicated

on ‘negligent prosecution’ as opposed to intentional failures[,]” in light of evidence “establishing

2 Specifically, plaintiff does not assert any specific objections to so much of the Report as recommends, inter alia,

(i) that summary judgment be granted dismissing his claims against the DA’s Office, (Report at 10), and Rice in her

individual capacity, (id. at 14); and (ii) that the Court decline to exercise supplemental jurisdiction over plaintiff’s

state law claims pursuant to 28 U.S.C. § 1367(c).

the presentation of redacted medical documents (having nothing to do with HIPAA), failure to

review, assess and apply exculpatory material and the inexplicable presentation of material at

Grand Jury that was wholly incomplete[,]” which “demonstrates a genuine dispute as to material

fact,” (id. at 2; see also Id. at 4 [asserting that Magistrate Judge Brown ignored: “Plaintiff’s Rule

56 Counterstatement of Fact demonstrating that there was uncontested testimony and

documentary evidence indicating that [the County Defendants] submitted incomplete records and

redacted/altered medical reports[;] . . . [and] that in their self-serving affidavits, neither ADA

Weiss nor ADA Lavine affirmed that that [sic] they actually reviewed, discussed or analyzed the

exculpatory documentation delivered by defense counsel”]); (iii) in “mak[ing] short shrift of

Plaintiff’s contention that [the County Defendants’] witness at Grand Jury (United Healthcare)

lacked standing to testify that a refund check was enclosed in an envelope with a postmark date

later than that of the check, . . . [and] determin[ing] that the refund envelope check date is

‘accepted as admitted fact [sic] for [the] purposes of this motion[,]’”3 (id. at 4 [quoting Report at

7]); (iv) in finding, for purposes of absolute immunity, that plaintiff “fail[ed] to identify any

actions by the ADAs Weiss and Peress that were in any way investigative or administrative[,] . . .

[which] runs counter to his prior finding . . . that ‘[the Economic Crimes Bureau’s] investigation

continued through the time of trial’ and that ‘ADA Weiss, during the course of the investigation,

gathered’ additional evidence[,]” (id. at 2-3 [quoting Report at 4]; see also Id. at 6); (v) in

“fail[ing] to recognize that the actions of a prosecutor are not absolutely immune merely because

they are performed by a prosecutor[,] . . . [and] to adequately address [the County Defendants’]

failure to procure, review and/or comprehend exculpatory material, IME Reports, medical

records and correspondence revealing that its prosecution was not warranted[,]” (id. at 7; see also

3 Other evidence demonstrating that the checks were backdated was also presented to the grand jury. See, e.g. Jones

Decl., Ex. 23 at 45-49).

Id. at 9), and, in effect, finding relevant the “fact that the patient/witness coercion [by

Investigator Walsh] apparently failed,” (id. at 7; see also Id. at 9 [asserting that “[W]hile the

[Report] made a cursory dismissal of the [County Defendants’] attempt to coerce

patient/witnesses, . . . it did so in conclusory fashion”]); (vi) with respect to qualified immunity,

in “fail[ing] to note Plaintiff’s Counter-statement of Material Fact [sic] and instead choos[ing] to

accept [the County Defendants’] filing as inalienable[,] . . . [and] fail[ing] to assess Brady v.

Maryland, 373 U.S. 83 (1963),”4 (id. at 3; see also Id. at 8 [asserting that the Report “failed to

apply the findings in Brady[,] which is a clear violation of plaintiff’s constitutional rights and is

expressed in the present matter[,] . . . [and] makes short shrift of these issues”]); (vii) in “fail[ing]

to address case law confirming that [where] a municipal official ‘has final authority over

significant matters involving the exercise of discretion,’ his choices represent government

policy[,]’” (id. at 5 [quoting Gronowski v. Spencer, 424 F.3d 285, 296 (2d Cir. 2005)]), and

“fail[ing] to recognize that the ADAs in this matter were acting as policy makers for the purposes

of the prosecution[,]” (id. at 5; see also Id. at 6 [asserting that Magistrate Judge Brown “failed to

address that ADA Peress, the Chief of the Economic Crimes [sic] and ADA Weiss, the Deputy

Chief of the Economic Crimes Bureau . . . were acting as policymakers. . .”]); and (viii) in

“conclud[ing] that Ex Parte Young, 209 U.S. 123 (1908) is inapplicable merely because it dealt

with injunctive relief instead of monetary damages,” (id. at 9), and that its claims against the

individual defendants in their official capacity are barred by the Eleventh Amendment. (Id. at 9-

10).

Upon consideration of plaintiff’s objections and the County Defendants’ responses

thereto, and de novo review of the findings and conclusions in the Report to which plaintiff

4 Plaintiff also contends that the Report “ignored the findings set forth in Harlow v. Fitzgerald, 457 U.S. 800, 814,

102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)” with respect to qualified immunity.

specifically objects, as well as all motion papers and the entire record, plaintiff’s objections are

overruled and those branches of the Report to which plaintiff specifically objected are accepted

in their entirety.

1. Summary Judgment Standard and Constitutional Violation

Magistrate Judge Brown properly disregarded any assertion in the parties’ statements

pursuant to Local Civil Rule 56.1 of the Local Rules of the United States District Courts for the

Southern and Eastern Districts of New York (“Local Civil Rule 56.1”), that was not supported

pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. See Local Civil Rule 56.1(d)

(“Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each

statement controverting any statement of material fact, must be followed by citation to evidence

which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”); New World Sols.,

Inc. v. NameMedia Inc., 150 F. Supp. 3d 287, 305 (S.D.N.Y. 2015) (“[I]f a party fails to properly

support a statement by an adequate citation to the record, the Court may properly disregard that

assertion.”); Kaur v. New York City Health & Hosps. Corp., 688 F. Supp. 2d 317, 322 (S.D.N.Y.

2010) (“Where there are no citations or where the cited materials do not support the factual

assertions in the Statements, the Court is free to disregard the assertion.” (quotations, alterations

and citation omitted)). Moreover, only disputes over facts that are material to the disposition of

the motions, i.e., that “might affect the outcome of the suit under the governing law,” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), will defeat

summary judgment. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013)

(“The substantive law governing the case will identify those facts that are material, and ‘[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.’” (brackets in original) (quoting Anderson,

477 U.S. at 248, 106 S. Ct. 2505)). “‘The mere existence of a scintilla of evidence in support of

the [non-movant’s] position will be insufficient’ to defeat a summary judgment motion[,]”

Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252, 106

S. Ct. 2505); and “[a] court cannot credit a plaintiff=s merely speculative or conclusory

assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); see also Federal Trade Comm’n

v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (“[A] party may not rely on mere speculation or

conjecture as to the true nature of the facts to overcome a motion for summary judgment.”);

Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (“While we are required to resolve all

ambiguities and draw all permissible factual inferences in favor of the non-moving party, . . .

conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat

summary judgment[.]” (quotations, alterations and citations omitted)).

“To prevail on his claim under 42 U.S.C. § 1983, [the plaintiff] must show ‘the violation

of a right secured by the Constitution and laws of the United States’ and that ‘the alleged

deprivation was committed by a person acting under color of state law.’” Jones v. County of

Suffolk, 936 F.3d 108, 114 (2d Cir. 2019) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S. Ct.

2250, 101 L. Ed. 2d 40 (1988)). Magistrate Judge Brown properly found that plaintiff’s

assertions, inter alia, challenging the County Defendants’ review, assessment and/or analysis of

evidence amount to claims sounding in negligent prosecution or investigation, which do not rise

to the level of a constitutional violation. See generally Daniels v. Williams, 474 U.S. 327, 328,

106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (“[T]he Due Process Clause is simply not implicated by

a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”

(emphasis in original)); Davidson v. Cannon, 474 U.S. 344, 347, 106 S. Ct. 668, 88 L. Ed. 2d

677 (1986) (“[T]he Due Process Clause of the Fourteenth Amendment is not implicated by the

lack of due care of an official causing unintended injury to life, liberty or property. In other

words, where a government official is merely negligent in causing the injury, no procedure for

compensation is constitutionally required.”); Pabon v. Wright, 459 F.3d 241, 250 (2d Cir. 2006)

(“The simple lack of due care does not make out a violation of either the substantive or

procedural aspects of the Due Process Clause of the Fourteenth Amendment.”)

Although “government officials may be held liable for fabricating evidence through false

statements or omissions that are both material and made knowingly[,]” Morse v. Fusto, 804 F.3d

538, 547 (2d Cir. 2015); see also Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000)

(recognizing a constitutional right “not to be deprived of liberty as a result of the fabrication of

evidence by a government officer acting in an investigating capacity”), plaintiff failed to adduce

sufficient evidence that would be admissible at trial on which a jury could reasonably find that

the County Defendants, acting in an investigating capacity, knowingly created false or

misleading evidence that was material to the grand jury’s decision to indict him, particularly in

light of, inter alia, the state court’s finding that the grand jury proceedings were not defective.

2. Immunity

a. Absolute Immunity

“Instead of relying on strict categories of actions with respect to which absolute

immunity attaches, the relevant question is ‘whether there is pending or in preparation a court

proceeding in which the prosecutor acts as an advocate.’” Ogunkoya v. Monaghan, 913 F.3d 64,

69 (2d Cir. 2019) (quoting Warney v. Monroe County, 587 F.3d 113, 123 (2d Cir. 2009)). The

ultimate question is “whether a reasonable prosecutor would view the acts challenged by the

complaint as reasonably within the functions of a prosecutor.” Id. (quoting Giraldo v. Kessler,

694 F.3d 161, 166 (2d Cir. 2012)).

The specific acts challenged by plaintiff are: (i) the County Defendants’ purported failure

“to procure, review and/or comprehend exculpatory material, IME Reports, medical records and

correspondence revealing that its prosecution was not warranted[,]” (ii) Walsh’s alleged failure

to make any “attempt to review the associated medical records for the patient files under

investigation[,]” and (iii) Walsh’s purported “attempt[] to coerce patient/witnesses. . . .”5 (Plf.

Mem. at 11). The Report does not conclude that Walsh is entitled to absolute immunity.

“[A]bsolute immunity covers administrative acts ‘directly connected with the conduct of

a trial[,]’” Ogunkoya, 913 F.3d at 70 (quoting Van de Kamp v. Goldstein, 555 U.S. 335, 344, 129

S. Ct. 855, 172 L. Ed. 2d 706 (2009)), and “potentially administrative or investigate acts . . . [that

are] integral to the [prosecutor’s] overarching advocacy function.” Id. (quoting Warney, 587 F.3d

at 124). “The decision to initiate prosecution, what charges to bring, and how to perfect and

consolidate those charges is a quintessential prosecutorial function.” Id. at 71. Magistrate Judge

Brown properly concluded that plaintiff “fail[ed] to identify any actions by the ADAs Weiss and

Peress [collectively, ‘the ADAs’] that were in any way investigative or administrative,” and,

thus, that the ADAs are entitled to absolute immunity. (Report at 15).

b. Qualified Immunity

In his opposition to the County Defendants’ motion, plaintiff indicates, inter alia, that

“[t]he Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963) confirmed that we ‘now hold

that the suppression by the prosecution of evidence favorable to an accused upon request violates

5 Plaintiff generally refers to the County Defendants’ alleged attempt to coerce patient/witnesses,” but the evidence

reflects that the challenged comments upon which that claim is based were made by Walsh.

due process where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution’. This is a clear violation of plaintiff’s constitutional

rights and is expressed in the present matter.” (Plf. Mem. at 12-13; see also Plf. Obj. at 8).

Magistrate Judge Brown correctly found that “the record contains no indication that such a

failure transpired[,]” (Report at 16), as plaintiff does not assert that any defendant withheld

exculpatory evidence. (See Plf. Mem. at 14-15 [contending that the ADAs and Walsh “failed to

procure, review and/or comprehend exculpatory material, IME Reports, medical records and

correspondence revealing that its prosecution was not warranted[;] . . . [and that] Walsh made no

attempt to review the associated medical records for the patient files under investigation . . .

[and] attempted to coerce patient/witnesses” by making certain comments]; accord Plf. Obj. at

9).

3. Municipal Liability

Magistrate Judge Brown correctly found that plaintiff failed to demonstrate that the

ADAs had final policymaking authority in the relevant area under state law and that the acts of

which plaintiff complains on behalf of the ADAs did not reflect municipal policy. See, e.g.

Feerick v. Sudolnik, 816 F. Supp. 879, 886 (S.D.N.Y. 1993), aff’d, 2 F. 3d 403 (2d Cir. 1993);

Peterson v. Tomaselli, 469 F. Supp. 2d 146, 169-70 (S.D.N.Y. 2007).

4. Official Capacity Claims

Magistrate Judge Brown correctly found that “[p]laintiff’s reliance on Ex parte Young,

203 U.S. 123 (1908) is entirely misplaced. . . .” (Report at 14). As explained by the Second

Circuit:

In Ex parte Young, the Supreme Court held that the Eleventh Amendment did not

bar an action in federal court to enjoin a state official from taking official action

claimed to violate federal law. 209 U.S. 123, 155–56, 28 S. Ct. 441, 52 L. Ed. 714

(1908); see also Edelman [v. Jordan], 415 U.S. [651,] 664, 94 S. Ct. 1347[, 39 L.

Ed. 2d 662 (1974)]. Under this doctrine, federal courts may hear claims for

prospective injunctive relief, see Edelman, 415 U.S. at 677, 94 S. Ct. 1347, but

retroactive claims seeking monetary damages from the state treasury are barred by

the Eleventh Amendment because, even if state officials are the nominal

defendants, the state is the real party in interest, id. at 663, 94 S. Ct. 1347.”

Tsirelman v. Daines, 794 F.3d 310, 313-14 (2d Cir. 2015).

C. Remainder of Report

There being no clear error on the face of the Report with respect to the findings and

conclusions of Magistrate Judge Brown to which no specific timely objections are interposed,

those branches of the Report are accepted in their entirety.

II. Conclusion

For the reasons set forth above, plaintiff’s objections are overruled, the Report is

accepted in its entirety and, for the reasons set forth therein, the County Defendants’ motion for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted to the

extent set forth in the Report; the County Defendants are granted judgment as a matter of law

dismissing plaintiff’s federal claims against them in their entirety with prejudice; and plaintiff’s

state law claims are dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Pursuant to

28 U.S.C. § 1367(d), the statute of limitations for any state law claims timely filed in this Court

is tolled for a period of thirty (30) days after the date of this order unless a longer tolling

period is otherwise provided under state law. See generally Artis v. District of Columbia, --- U.S.

---,138 S. Ct. 594, 598, 199 L. Ed. 2d 473 (2018). The Clerk of the Court shall enter judgment in

accordance with this Order and close this case.

SO ORDERED.

__ /s/ Sandra J. Feuerstein _

Sandra J. Feuerstein

United States District Judge

Dated: December 20, 2019

Central Islip, New York