Malik v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DR. ABDUL Q. MALIK.,

MEMORANDUM AND ORDER

Plaintiff,

Case No. 1: 18-cv-1956 (FB)(RML)

-against-

THE CITY OF NEW YORK, KENNETH P.

THOMPSON, ERIC GONZALEZ, DEBRA

JAROSLAWICZ, GLENN P. KENNY, ROBERT

ADDONIZIO, ALBINA ZAVADSKY, in their

official and individual capacities,

Defendants.

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Appearances:

For Albina Zavadsky:

For the Plaintiff:

CHRISTOPHER CARDILLO ESQ.

RYAN G. BLANCH, ESQ.

9728 3rd Avenue, Suite 308

261 Madison Avenue, 12th Fl.

Brooklyn, New York 11209

New York, New York 10016

For the Government Defendants:

CORPORATION COUNSEL

ZACHARY W. CARTER

100 Church Street

New York, New York 10007

BLOCK, Senior District Judge:

Plaintiff Abdul Malik brings this action against the City of New York, former

District Attorney (“DA”) Kenneth Thompson, DA Eric Gonzalez, former Assistant

District Attorney (“ADA”) Debra Jaroslawicz, DA investigators Glenn Kenny and

Robert Addonizio, and Albina Zavadsky, the owner of Ultraline Medical Testing

P.C., for 42 U.S.C. § 1983 violations. Before the Court are two motions to dismiss

under Federal Rule of Civil Procedure 12(b)(6): one by the individual defendant

Zavadsky and another by the DA Defendants (DA Gonzalez and ADA Jaroslawicz),

the DA Investigators (Kenny and Addonizio), and the City of New York. For the

following reasons, defendants’ motions are granted.1

I.

For purposes of this motion, the Court takes as true the allegations in the

complaint and draws all inferences in plaintiff’s favor. See Weixel v. Board of Educ.,

287 F.3d 138, 145 (2d Cir. 2002). To survive a motion to dismiss, a complaint “does

not need detailed factual allegations,” but “a formulaic recitation of the elements of

a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The complaint alleges the following facts: In July 2012, the Kings County

DA’s office began investigating a large criminal enterprise, known as the Vainer

Organization, for health care fraud. The investigation uncovered extensive evidence

of medical professionals fraudulently billing Medicaid and Medicare.

1 DA Thompson was deceased at the time Malik commenced this suit, which Malik

acknowledges in his complaint. Determinations regarding whether a person has the

capacity to be sued are governed by the law of that person’s domicile. Fed. R. Civ.

P. 17. It appears DA Thompson was domiciled in New York. Under New York

State law, “[a]fter death, no person, natural or artificial, can be the owner of a cause

of action or can appear in court and litigate a controversy.” MacAffer v. Boston &

M.R.R., 268 N.Y. 400, 403–04 (1935); Jordan v. Cty. of New York, 23 A.D.3d 436,

437 (2d Dep’t 2005) (“[a] party may not commence a legal action or proceeding

against a dead person.”). Accordingly, any claims against Thompson are dismissed.

On July 1, 2013, Malik, a cardiologist, began reviewing medical scans for

Ultraline Medical Testing. Unbeknownst to Malik, Ultraline, through its owner

Albina Zavadsky, assisted in the Vanier Organization’s fraudulent billing of

Medicaid and Medicare. Ultraline fraudulently billed for work Malik did not

perform by forging Malik’s signature on documents, some of which were notarized.

On March 25, 2015, a grand jury returned two indictments against Malik for

health care fraud. Malik alleged that ADA Jaroslawicz coerced Zavadsky, a

cooperator in the DA’s case, into falsely testifying before the grand jury.

On March 26, 2015, the DA’s office obtained a search warrant for Malik’s

HSBC bank account. HSBC records revealed Ultraline paid Malik $236,270 over a

two years. Malik was arrested on March 31, 2015. He denied the allegations and

requested open discovery, which Jaroslawicz opposed.

On July 21, 2017, Malik’s counsel sent a report by a forensic document

examiner to the DA’s office. The examiner opined that Malik’s signature on

Ultraline’s documents was forged. Upon receipt of this information, the DA’s office

dismissed the charges against Malik.2

2 The complaint references Malik’s indictment and the examiner’s report, which

defendants attached to their motion. The Court considers both. See Thomas v.

Westchester Cnty Health Care Corp. 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002)

(“Documents that are integral to plaintiff's claims may . . . be considered.”); 5–Star

Management, Inc. v. Rogers, 940 F.Supp. 512, 518 (E.D.N.Y. 1996) (taking judicial

notice of “matters of public record”).

II. Zavadsky

Zavadsky moves to dismiss on numerous grounds, including that she is a

private actor not liable under § 1983. However, Malik failed to respond to her

arguments. Therefore, the claims against Zavadsky are deemed abandoned. See

Lipton v. Cty. of Orange, 315 F.Supp.2d 434, 446 (S.D.N.Y. 2004) (“This Court

may, and generally will, deem a claim abandoned when a plaintiff fails to respond

to a defendant’s arguments that the claim should be dismissed.”).

III. DA Defendants (DA Gonzalez and ADA Jaroslawicz)3

Malik alleges that the DA Defendants engaged in the following unlawful acts:

(1) initiating prosecution despite exculpatory evidence; (2) presenting false evidence

to a grand jury; and (3) failing to disclose Brady material. The DA Defendants argue

that absolute immunity bars Malik’s § 1983 claims against them. The Court agrees.

Under the doctrine of absolute immunity, a prosecutor cannot be liable for

damages under § 1983 when acting within the scope of official prosecutorial

duties. Imbler v. Pachtman, 424 U.S. 409, 420 (1976).

The DA defendants’ alleged acts are “intimately associated with the judicial

phase of the criminal process.” Imbler, 424 U.S. at 430. Therefore, DA Gonzalez

3 Because the DA represents New York in criminal prosecutions, suits against DAs

in their official capacity are barred by the Eleventh Amendment. See Ying Jing

Gan v. Cty of New York, 996 F.2d 522, 529 (2d Cir. 1993). Thus, Malik’s claims

against all defendants in their official capacities are dismissed.

and ADA Jaroslawicz are shielded by absolute immunity. See, e.g., Buckley v.

Fitzsimmons, 509 U.S. 259, 274 n.5 (1993) (absolute immunity shields “a

prosecutor’s decision to bring an indictment, whether he has probable cause or not”);

Imber, 424 U.S. at 431 n.34 (absolute immunity shields a prosecutor’s “knowing use

of perjured testimony” or “deliberate withholding of exculpatory information.”);

Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (absolutely immunity

shields a prosecutor’s “misrepresentations to the grand jury”); Hill v. Cty. of New

York, 45 F.3d 653, 662 (2d Cir. 1995) (“failure to turn over Brady material” is

“protected as a discretionary advocacy function”).

IV. DA Investigators (Kenny and Addonizio)

Malik alleges that DA Investigators Kenny and Addonizio assisted ADA

Jaroslawicz in the above actions and that, after Malik’s indictment, Kenny drafted

search warrants without articulating probable cause.

The Second Circuit has extended absolute immunity to non-lawyer employees

of the DA’s office when they “assist[] with the investigation and prosecution of [a]

case.” Hill, 45 F.3d at 660. In so holding, the court in Hill reasoned:

Because absolute immunity is essential to safeguarding the integrity of

the judicial process, it extends to those performing functions closely

associated with that process. This includes not only officials performing

discretionary acts of a judicial nature but also individual employees

who assist such an official and who act under that official’s direction in

performing functions closely tied to the judicial process.

Id. By contrast, “[i]nvestigative acts aimed at gathering and piecing together []

evidence for indications of criminal activities” are not entitled to absolute immunity.

Collins v. Cty. of New York, 923 F. Supp. 2d 462, 471 (E.D.N.Y. 2013) (internal

quotations omitted).

Kenny and Addonizio’s actions were clearly prosecutorial in nature as they

were undertaken to assist in the prosecution of Malik after his indictment. Since the

district attorney would be entitled to absolute immunity for these actions, so too are

Kenny and Addonizio. Hill, 45 F.3d at 660; see E. Coast Novelty Co. v. Cty. of New

York, 809 F. Supp. 285, 291 (S.D.N.Y. 1992) (absolute immunity shields an ADA’s

“drafting and obtaining [of a] search warrant”).

V. The City of New York

Finally, Malik asserts Monell claims against the City. See Monell v. Dep’t of

Social Servs., 436 U.S. 658, 694 (1978). Under Monell, a municipality may be liable

under § 1983 when the “execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy” causes a constitutional violation. Id. “[A] prerequisite to

municipal liability under Monell is an underlying constitutional violation by a state

actor.” Henry-Lee v. City of New York, 746 F. Supp. 2d 546, 567 (S.D.N.Y. 2010).

Malik argues that the City should be liable for the following policies or

customs: (1) executing arrests without probable cause, Compl. ¶ 283; (2) violating

Brady requirements, id. ¶293; and (3) using “excessive promises of rewards and

unduly coercive interrogation techniques with vulnerable potential witnesses,” id. ¶

283. Malik’s arguments fail for the following reasons:

First, there was probable cause for Malik’s arrest. The DA’s probable cause

determination was properly predicated on documents showing Ultraline paid Malik

$236,270 and fraudulently billed Medicaid and Medicare for his services. Illinois v.

Gates, 462 U.S. 213, 243 n.13 (1983) (Probable cause “requires only a probability

or substantial chance of criminal activity, not an actual showing of such activity”).

The existence of probable cause evidences the lack of constitutional violation.

Second, because the DA’s office dismissed Malik’s case before trial, Malik’s

Brady rights were not violated. See Schnitter v. Cty. of Rochester, 556 F. App’x 5,

7 n.2 (2d Cir 2014) (holding that there was not a violation of plaintiff’s Brady rights

because “the charges against [plaintiff] were dropped before any trial began.”). Thus,

this Monell claim fails as well.

Third, while Malik alleges that ADA Jaroslawicz coerced Zavadsky into

giving false grand jury testimony, this single act by an ADA cannot be deemed City

policy. See Hudson v. Cnty. of Dutchess, 51 F.Supp.3d 357, 368 (S.D.N.Y. 2014)

(ADAs acting without supervisory authority are not “policymakers” for the purposes

of municipal liability). Notably, Malik does not allege that DA Gonzalez was aware

of ADA Jaroslawicz’s actions. See Amnesty Am. v. Town of West Hartford, 361 F.3d

113, 126 (2d Cir. 2004) (Monell liability for supervisory ratification requires that

“the policymaker was aware of the subordinate’s unconstitutional actions.”).

Accordingly, Malik’s Monell claim against the City for Jaroslawicz’s conduct fails.4

Therefore, Malik’s claims under Monell are dismissed.5

VI. Conclusion

For the foregoing reasons, the defendants’ motions to dismiss are GRANTED.

IT IS SO ORDERED.

_/S/ Frederic Block_________

FREDERIC BLOCK

Senior United States District Judge

May 27, 2020

Brooklyn, New York

4 A failure to train Monell claim related to witness coercion also fails as Malik failed

to show “a pattern of similar constitutional violations.” Connick v. Thompson, 563

U.S. 51, 62 (2011). Instead, Malik cites to one case where a New York State Court

found that a Brooklyn ADA improperly failed to correct false testimony. People v.

Giuca, 2018 NY Slip Op 846 (2d Dep’t Feb. 7, 2018). Malik cites to another case

where a conviction was overturned after a Brooklyn prosecutor “coerced” a witness

into testifying. People v. Spruill, No. 13008/95 (Sup. Ct. Kings Cnty. Mar. 23, 2017).

However, these cases were reversed on appeal. Nevertheless, because neither case

involved coercing witnesses into falsely testifying, they do not establish “a pattern.”

5 This Court declines to exercise supplemental jurisdiction over Malik’s pendent

state law claims. See 28 U.S.C. § 1367(c)(3).