Ogunkoya v. Drake

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SEUN OGUNKOYA,

Plaintiff, Memorandum & Order

-against- 15-CV-6119(KAM)(LB)

COUNTY OF MONROE, et al.,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Presently before the court in this 42 U.S.C. § 1983

lawsuit brought against the County of Monroe, New York and

several of its employees, and against defendants employed by the

State of New York, are the defendants’ motions to dismiss the

Third Amended Complaint.1 For the reasons herein, the County

Defendants’ motion to dismiss is denied, but the punitive

damages claim against the County is stricken, and the State

Defendants’ motion to dismiss is denied. This case shall

proceed to discovery on all of the claims asserted by the

plaintiff in the Third Amended Complaint, although the plaintiff

may not recover punitive damages against the County of Monroe.

1 This action was initially brought against the County of Monroe,

District Attorney Sandra Doorley, District Attorney Bureau Chief Mark

Monaghan, and Assistant District Attorney James Egan (collectively,

the “County Defendants”), and New York State Police Investigators and

Troopers Albert Drake, Darius Zysk, Peter Schrage, and Mark Eifert

(collectively, the “State Defendants,” and together with the County

Defendants, the “Defendants”). Assistant District Attorneys Egan and

Monaghan were dismissed from the case on May 6, 2019. (See ECF No.

127.)

Background

The court assumes the parties’ familiarity with the

underlying facts alleged and the procedural history of this case,

which were set forth in Magistrate Judge Lois Bloom’s Report and

Recommendation (ECF No. 65 (the “R&R”)) and this court’s

Memorandum and Order adopting the R&R (ECF No. 82 (“Nov. 11, 2017

Oder”)), which adjudicated Defendants’ previous motions to

dismiss. The alleged facts and procedural history are summarized

here only to the extent relevant to deciding the pending motions.

I. Factual Background

Seun Ogunkoya (“Plaintiff”) brought these claims

alleging constitutional violations in connection with his

warrantless arrest on charges stemming from three fraudulent

credit card transactions by an individual in Monroe County, New

York. (See ECF No. 122, Third Amended Complaint (“TAC”), at ¶¶

22-40.) On April 26, 2014, an individual used fraudulent or

stolen credit cards to purchase $28,000 in gift cards from three

Home Depot stores in the towns of Greece, Henrietta, and

Irondequoit, which are all near Rochester and located in Monroe

County. (Id. at ¶ 15.) Defendant Eifert, an investigator for

the State, learned during the subsequent investigation that

Plaintiff used his credit card to make small purchases at two of

the three relevant Home Depot stores (in Greece and Henrietta)

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around the same time the gift cards were fraudulently purchased.

(Id. at ¶ 17.) Eifert prepared six felony complaints against

Plaintiff: one identity theft complaint and one grand larceny

complaint for each of the three transactions in Greece,

Henrietta, and Irondequoit. (Id. at ¶ 18.) Without obtaining

an arrest warrant, State Defendants Drake and Zysk arrested

Plaintiff at his home in Brooklyn, New York on the morning of

February 20, 2015. (Id. at ¶¶ 21, 23.)

After the arrest, Plaintiff was transported from

Brooklyn to Henrietta, where all six complaints were filed with

the local court, but Plaintiff was arraigned only on the

identity theft and grand larceny complaints related to the

Henrietta transaction. (Id. at ¶¶ 33-34.) The Henrietta judge

who arraigned Plaintiff refused to arraign Plaintiff on the

charges related to the Greece and Irondequoit transactions, and

directed State Defendant Schrage to take Plaintiff for

arraignment in the appropriate courts on those charges the next

business day. (Id. at ¶¶ 35-37.) Defendants did not comply

with the Henrietta judge’s directive to take Plaintiff for any

further arraignments after his initial arraignment on the on the

Henrietta charges. (Id. at ¶ 40.)

After retaining an attorney, Plaintiff made multiple

requests to be arraigned on the charges in Greece and

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Irondequoit. (Id. at ¶¶ 42, 44, 62, 69.) Plaintiff alleges

that because he was never arraigned on those charges, he was

deprived of the opportunity to post bail and remained

incarcerated in Monroe County for 28 days longer than necessary.

(Id. at ¶¶ 1, 59, 73.) Plaintiff alleges that the clerk of the

County court in Henrietta twice refused to process his bail bond

(on February 25, 2015, and on March 17, 2015) because there were

outstanding charges on which he had not been arraigned in Greece

and Irondequoit. (Id. at ¶¶ 59, 73.)

Plaintiff was eventually indicted and tried on charges

arising from all three identity theft complaints, but was never

indicted or tried on any of the grand larceny complaints. (Id.

at ¶ 76.) Ultimately, Plaintiff was acquitted of all charges

following a jury trial. (Id. at ¶ 79.)

II. Procedural History

Plaintiff initially commenced this action pro se,

filing his Complaint on October 26, 2015, and an Amended

Complaint on February 16, 2016. (ECF Nos. 1, 19.) On July 12,

2016, pro bono counsel appeared to represent Plaintiff, and on

August 16, 2016, Plaintiff filed a Second Amended Complaint.

(ECF No. 43.) The County Defendants and the State Defendants

moved to dismiss the Second Amended Complaint in January 2017,

and Plaintiff opposed. (See ECF Nos. 55-60.)

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Those prior motions to dismiss were referred to

Magistrate Judge Lois Bloom for a Report and Recommendation.

Judge Bloom issued a Report and Recommendation in June 2017,

recommending that both motions to dismiss be granted in part and

denied in part. Judge Bloom construed Plaintiff’s Second

Amended Complaint to plead the following claims: false

arrest/false imprisonment2 and the related failure to intervene

against all individual defendants; malicious prosecution and the

related failure to intervene against all individual defendants;

failure to arraign and the related failure to intervene against

all individual defendants; failure to supervise against District

Attorney Doorley; and municipal liability claims against Monroe

County for an unconstitutional custom, policy, or practice, and

for failure to train.3

Judge Bloom recommended that this court: (1) grant the

County Defendants’ motion to dismiss the false arrest claims,

malicious prosecution claims, and failure to supervise claim

against District Attorney Doorley; and (2) grant the State

2 As Judge Bloom noted, the torts of false arrest and false

imprisonment are “largely synonymous” and are generally analyzed as a

single claim. See Gomez v. City of New York, 2017 WL 1034690, at *2

n.2 (E.D.N.Y. Mar. 16, 2017) (citing Jenkins v. City of New York, 478

F.3d 76, 88 n.10 (2d Cir. 2007)).

3 Plaintiff’s failure to train claim focused on the County Defendants’

failure to train prosecutors regarding the constitutional requirements

governing probable cause determinations.

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Defendants’ motion to dismiss Plaintiff’s malicious prosecution

and failure to intervene claims against State Defendants Drake

and Zysk. (R&R at 35-36.) Judge Bloom recommended that the

following claims proceed to discovery: (1) false arrest and

failure to intervene in the false arrest against all State

Defendants; (2) malicious prosecution and failure to intervene

in a malicious prosecution against State Defendants Eifert and

Schrage; (3) failure to arraign and failure to intervene with

regard to the failure to arraign against Eifert and

Schrage; (4) failure to arraign and failure to intervene against

County Defendants Monaghan and Egan; and (5) the municipal

liability claims against the County of Monroe. This court

adopted Judge Bloom’s R&R on September 30, 2017, and issued a

separate Memorandum and Order setting forth its reasoning for

doing so on November 11, 2017.

The County Defendants appealed the motion to dismiss

decision to the Second Circuit. In January 2019, the Second

Circuit issued a decision reversing this court’s order with

respect to County Defendants Monaghan and Egan, holding that

both were entitled to absolute prosecutorial immunity and thus

were immune from Plaintiff’s failure to arraign and failure to

intervene claims. See generally Ogunkoya v. Monaghan, 913 F.3d

64 (2d Cir. 2019). The Second Circuit dismissed the County

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Defendants’ other grounds for appeal as “premature,” expressing

no view on the merits, and remanded Plaintiff’s lawsuit to this

court for further proceedings. Id. at 73 & n.3.

On March 29, 2019, with Defendants’ consent, Plaintiff

filed a Third Amended Complaint. The Defendants filed the

instant motions to dismiss, which Plaintiff opposed. (See ECF

Nos. 131-36.)

Legal Standard

Plaintiff’s complaint must be dismissed if it fails to

state a claim upon which relief may be granted. Fed. R. Civ. P.

12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6),

the court evaluates the sufficiency of a complaint under a “two-

pronged approach.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

First, courts are not bound to accept legal conclusions when

examining the sufficiency of a complaint. See id. at 678 (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Second, the court must assume all well-pleaded facts are true and

then “determine whether they plausibly give rise to an entitlement

to relief.” Iqbal, 556 U.S. at 679; Twonbly, 550 U.S. at 555-56.

A claim is plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

at 678.

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Plaintiff brought this action pursuant to 42 U.S.C. §

1983 (“Section 1983”), which provides that:

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State .

. . subjects, or causes to be subjected, any citizen of

the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured . . . .

42 U.S.C. § 1983. Section 1983 “is not itself a source of

substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes.” Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979); see also Thomas v. Roach,

165 F.3d 137, 142 (2d Cir. 1999).

To maintain a Section 1983 claim, a plaintiff must

plausibly allege two elements. First, “the conduct complained of

must have been committed by a person acting under color of state

law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).

Second, “the conduct complained of must have deprived a person of

rights, privileges, or immunities secured by the Constitution or

laws of the United States.” Id.; see also McCugan v. Aldana-

Brnier, 752 F.3d 224, 229 (2d Cir. 2014).

Discussion

As an initial matter, Plaintiff and the County

Defendants disagree about the proper scope of the court’s review

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with respect to the County Defendants’ motion. Plaintiff argues

that the court is limited to considering only whether his new

theories presented in the Third Amended Complaint must be

dismissed, which are Substantive Due Process claims against

State Defendants Eifert and Schrage, and an additional theory of

Monell liability against Monroe County (based on Monroe County’s

alleged failure to train its prosecutors regarding the

constitutional rights connected to arraignments and bail). (See

ECF No. 134, Plaintiff’s Memorandum in Opposition to the Motions

to Dismiss (“Opp.”) at 1-2, 5.) The County Defendants assert

that Plaintiff “changed the facts he alleged,” and argue for

dismissal of Plaintiff’s Monell claim against the County in its

entirety. (ECF No. 135, County of Monroe’s Reply to Plaintiff’s

Opposition (“Cty. Def. Reply”) at 1; see ECF No. 131, Memorandum

in Support of County of Monroe’s Motion to Dismiss (“Cty. Def.

Mem.”) at 3.)

“[T] he filing of an amended complaint ‘does not

automatically revive the defenses and objections a defendant

waived in its first motion to dismiss, nor does it allow a

defendant to advance arguments that could have been made in the

first motion to dismiss.’” Falcon v. City Univ. of New York,

2016 WL 3920223, at *13 (E.D.N.Y. July 15, 2016) (quoting Jones

v. U.S. Bank Nat. Ass’n, 2012 WL 899247, at *8 (N.D. Ill. Mar.

9

15, 2012)). Therefore, in considering both the County

Defendants’ motion to dismiss and the State Defendants’ motion

to dismiss, the court denies the motions to the extent they

raise defenses or objections that could have been or were

previously presented or decided. The court will only consider

arguments that Defendants could not have advanced in their

previous motions to dismiss. See Naples v. Stefanelli, 2015 WL

541489, at *5 (E.D.N.Y. Feb. 7, 2015) (where defendants “could

have” made argument “in their first motion to dismiss, but they

did not,” argument is waived). To the extent Defendants raise

the same grounds for dismissal, the court’s prior “decision

regarding an issue of law made at [the earlier] stage of [this]

litigation [remains] binding precedent, to be followed in

subsequent stages of the same litigation.” Scottish Air Int’l,

Inc. v. British Caledonian Grp., PLC., 152 F.R.D. 18, 24

(S.D.N.Y. 1993).

I. The County Defendants’ Motion to Dismiss

Plaintiff’s theory of liability against the County of

Monroe is that the County’s District Attorney’s Office had a

policy wherein individuals who were arrested for suspected

offenses in multiple jurisdictions would be arraigned only on a

subset of the charges, while the other charges would be treated

as “sealed,” thus preventing the posting of bail once it was

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fixed. (TAC ¶¶ 56, 62-63, 67, 107, 109, 113.) Plaintiff’s new

gloss on this theory, as alleged in the Third Amended Complaint,

is that the policy, combined with the District Attorney’s

Office’s failure to train and supervise its prosecutors about

the bail process, violated Plaintiff’s constitutional rights to

prompt arraignments and to post bail once it is fixed. (Id. at

¶¶ 49-50, 108-14.)

To sustain a Monell claim against a municipality, a

plaintiff must adequately allege: “(1) actions taken under color

of law; (2) deprivation of a constitutional or statutory right;

(3) causation; (4) damages; and (5) that an official policy of

the municipality caused the constitutional injury.” Roe v. City

of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v.

Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978)). The

County Defendants argue for dismissal of Plaintiff’s Monell

claim against the County Defendants in its entirety because: (1)

there was no underlying constitutional violation, as the County

had no duty to schedule or hold arraignments, (2) there was no

proximate cause between an alleged County policy and Plaintiff’s

alleged injury, (3) Plaintiff failed to allege facts sufficient

to plead a Monell claim against the County Defendants for

failure to train, and (4) the County is entitled to absolute

immunity. (Cty. Def. Mem. at 4, 17-25.) The County Defendants

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also argue that Plaintiff’s request for punitive damages from

the County must be dismissed. (Id. at 25.)

A. Underlying Constitutional Violation

Plaintiff alleges that his constitutional rights to be

arraigned and to post bail were violated because he was unable

to timely post bail after bail was fixed, as a result of being

arraigned only on the charges in Henrietta, despite his requests

for arraignment on all charges arising from alleged offenses in

Greece and Irondequoit. (TAC ¶¶ 42, 44, 57-59, 107-14.) The

County Defendants argue that there was no requirement to arraign

Plaintiff in Greece and Irondequoit because those charges had

not yet been filed with a court, though Plaintiff alleges those

charges were filed with the Henrietta Court. (Cty. Def. Mem. at

6-7; see TAC ¶ 34) The County Defendants, who allegedly

directed that the Greece and Irondequoit charges not be

presented for arraignment by judges in those towns (see TAC ¶¶

56, 61-63, 67), made the same argument in their previous motion

to dismiss (see R&R at 20 n.17).

This court has already found an underlying

constitutional violation with respect to the failure to arraign

Plaintiff on the charges in Greece and Irondequoit. “What is

constitutionally required is that, except in extraordinary

circumstances, [an] arrestee be given a hearing into probable

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cause for the arrest within 48 hours.” Bryant v. City of New

York, 404 F.3d 128, 138 (2d Cir. 2005). “In New York, a

probable cause determination is made at arraignment.” Id.

As recounted in Judge Bloom’s R&R, which this court

adopted in full, Henrietta Town Court Judge James Beikirch

declined to arraign Plaintiff on the charges related to the

transactions in Greece and Irondequoit. (R&R at 19-20.) Judge

Beikirch directed State Defendant Schrage to have Plaintiff

arraigned on the Greece and Irondequoit charges the next

business day, but none of the Defendants ever acted to present

Plaintiff to a judge on those charges at any point in time.

(Id.) Judge Bloom found “that such ‘[l]egal process did not

expunge [Plaintiff’s] Fourth Amendment claim because the process

he received failed to establish what that Amendment makes

essential for pretrial detention – probable cause to believe he

committed a crime.’” (Id. at 20) (quoting Manuel v. City of

Joliet, Ill., 137 S. Ct. 911, 919–20 (2017)).

Plaintiff plausibly alleged that an individual in his

situation had a constitutional right to appear before a judge

for arraignment on all charges, and once bail was set, to post

bail and remain at liberty prior to trial. Because this court

has found that Plaintiff stated a claim with respect to an

underlying constitutional violation for the County Defendants’

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policy and the Defendants’ failure to arraign on all charges,

the County Defendants’ arguments on this point are respectfully

rejected. See Naples, 2015 WL 541489, at *5.

The County Defendants point to language in the Second

Circuit’s intervening decision on prosecutorial immunity,

arguing that the Second Circuit held that “[f]urther

arraignments on the Greece and Irondequoit charges were not

necessary.” (Cty. Def. Mem. at 5, 12 (quoting Ogunkoya, 913

F.3d at 71).) That overstates the scope of the Second Circuit’s

specific focus, which was on the individual County Defendants’

prosecutorial immunity, and not the claims against the County

itself.

The Second Circuit referenced the determination made

by Assistant District Attorney Egan (i.e., that “[f]urther

arraignments . . . were not necessary”) as “directly connected

with the conduct of a trial and require[ing] legal knowledge and

the exercise of related discretion,” and thus held that absolute

prosecutorial immunity applied to that determination. Ogunkoya,

913 F.3d at 71 (quotation and alterations omitted). The Second

Circuit made no findings about the viability of Plaintiff’s

claims based on the County’s policy and practice of not

providing for the arraignment on all charges, thus resulting in

the deprivation of a defendant’s liberty after bail had been

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set. Nor did the Second Circuit determine that further

arraignments were not necessary at all in order for Plaintiff to

post bail, nor state any legal conclusions that further

arraignments and the right to post bail, once set, were required

by the Constitution. Moreover, the Second Circuit expressly

declined to consider the County Defendants’ appeal of this

court’s prior decision allowing Plaintiff’s Monell claim to

proceed. Id. at 72-73. “[T]he inquiries of prosecutorial

immunity and state or local policymaking [for purposes of Monell

liability] are separate.” Bellamy v. City of New York, 914 F.3d

727, 760 (2d Cir. 2019) (quoting Goldstein v. City of Long

Beach, 715 F.3d 750, 760 (9th Cir. 2013)); see Warney v. Monroe

Cty., 587 F.3d 113, 126 (2d Cir. 2009) (“The elements of a

Monell claim . . . are not inextricably intertwined with the

question of absolute immunity.”).

Accordingly, Plaintiff has adequately alleged an

underlying constitutional violation to sustain a Monell claim

against the County of Monroe.

B. Proximate Cause

Plaintiff must not only allege that he suffered a

constitutional deprivation, but also that the County’s policy

caused that violation. See Cash v. Cty. of Erie, 654 F.3d 324,

340 (2d Cir. 2011). The County Defendants argue that no policy

15

of the County could have prevented the Plaintiff’s arraignment,

because under New York law, the courts (not prosecutors) have a

non-delegable duty to arraign. (Cty. Def. Mem. at 9-12.)

The County Defendants’ causation argument with respect

to the alleged policy was also previously rejected by Judge

Bloom (see R&R at 27-30), and by this court (see Nov. 11, 2017

Order at 43-44). At the motion to dismiss stage, it is

sufficient that Plaintiff’s allegation of an unconstitutional

policy is supported by an email in which Assistant District

Attorney Egan wrote: “There is no need to ever arraign

[Plaintiff] on the charges in local court. . . . The other

charges are essentially ‘sealed’ charges since he has never been

arrested or arraigned on them. . . . This is done frequently in

cases involving charges in multiple jurisdictions.” (TAC ¶ 63.)

Based on this email, Plaintiff has adequately alleged that the

District Attorney’s Office had in place a policy and practice

that individuals charged with or held for crimes in multiple

jurisdictions were arraigned only on a subset of the charges,

while the other charges were treated as “sealed.” Plaintiff

further alleged that “the Court Clerk refused to process

[Plaintiff’s] bond due to the Pending Charges noted in [his]

bond paperwork and prisoner intake forms,” and that this

impediment to bail was known or foreseeable to the County

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Defendants. (Id. at ¶ 57-59; see also id. at ¶ 73.) Thus, the

court respectfully rejects the County Defendants’ contention

that the chain of causation was broken. As this court

previously held, “[d]etermination of whether there is proximate

cause [between that policy and the deprivation of Plaintiff’s

rights] will require the parties to develop the record on the

role of the bail bondsman, the meaning of a ‘sealed’ complaint

or charge, and the District Attorney’s specific policies, if

any, with regard to denying arraignment on certain charges.”

(Nov. 11, 2017 Order at 44.) The court maintains its previous

holding with respect to the instant motions.

The County Defendants now contend that Plaintiff

“changed the facts he alleged,” in the following manner:

Plaintiff originally alleged that his own bail bondsman refused

to issue a bond due to the pending charges against him in other

jurisdictions, but Plaintiff now alleges that the County court

clerk refused to approve the bail bond. (Cty. Def. Reply at 1-

3; see TAC ¶¶ 58-59.) This change is immaterial to the court’s

analysis with respect to causation. Plaintiff alleges that the

County was directly involved in the failure to arrange for

Plaintiff’s arraignments before the courts in Greece and

Irondequoit, and the court accepts those facts as true at this

stage. Specifically, Plaintiff alleges that when State

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Defendant Eifert asked Bureau Chief Monaghan “[w]hat to do re:

Greece, Irondequoit,” “Monaghan told Investigator Eifert ‘[h]old

for now.’” (TAC ¶ 56.) Plaintiff also cites an email in which

his then-counsel recounted that the Greece clerk advised him

that Assistant District Attorney “Egan had asked the court to

hold off on scheduling an arraignment,” and “Egan had also asked

the Irondequoit Court Clerk to hold off on scheduling an

arraignment.” (Id. at ¶ 62.) Thus, the County Defendants’

policy and practice prevented the clerk and the court from

scheduling an arraignment for the charges in Greece and

Irondequoit, and allegedly caused Plaintiff’s arraignment and

ability to post bail, set by the Henrietta court, to be

unconstitutionally delayed.

In order to sufficiently plead causation, Plaintiff

must only allege that the constitutional deprivation “was a

reasonably foreseeable consequence” of the County Defendants’

policy, Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 162

(S.D.N.Y. 2009), and Plaintiff has done so, see Lynch v. City of

New York, 335 F. Supp. 3d 645, 654 (S.D.N.Y. 2018) (there is a

“liberty interest in paying bail once it is fixed and in being

released once bail is paid”).

The County Defendants devote a large portion of their

briefing to an attempt to distinguish Lynch, a case from the

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Southern District of New York. (See Cty. Def. Mem. at 17, Cty.

Def. Reply at 5-6.) The County Defendants argue that in Lynch,

a city jail failed to process bail, whereas in this case, a

local court (not the County) was responsible for processing

bail. The County Defendants ignore their own direct role in

preventing Plaintiff from posting bail, as alleged in the Third

Amended Complaint. Discovery in this case may ultimately reveal

that the actions of court clerks or some other officials

intervened and broke the chain of causation. At this stage,

however, based on the allegations and the emails cited in the

Third Amended Complaint, Plaintiff has adequately alleged that

the deprivation of his rights to be arraigned and to post bail

was a reasonably foreseeable consequence of the County’s policy

to arraign him on only a subset of the charges, seal the

remaining charges, and refuse to permit arraignment on all

charges.

C. Plaintiff’s Failure to Train Theory

Plaintiff has alleged that, in addition to the

County’s unconstitutional policy, the County’s failure to train

its prosecutors to ensure prompt arraignments and thus provide

the opportunity to seek and post bail caused his constitutional

injuries. (TAC ¶¶ 50, 110.) Plaintiff alleges that the County

Defendants do not have any policies, procedures, guidelines, or

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training for prosecutors to safeguard the constitutional

interests in the bail process once bail has been fixed by a

court. (Id. at ¶¶ 49-50.)

“[T]he inadequacy of [government employee] training

may serve as the basis for [Section] 1983 liability only where

the failure to train amounts to deliberate indifference to the

rights of persons with whom the [employees] come into contact.”

City of Canton v. Harris, 489 U.S. 378, 388 (1989). “The issue

in a case like this one . . . is whether th[e] training program

is adequate; and if it is not, the question becomes whether such

inadequate training can justifiably be said to represent [the

municipality’s] ‘policy.’” Id. at 390.

The County Defendants argue that Plaintiff has failed

to adequately allege a failure to train, because Plaintiff “only

points to his own circumstance,” while a failure to train

requires “other similar incidents that would put anyone on

notice such training was required.” (Cty. Def. Mem. at 14

(citing Connick v. Thompson, 563 U.S. 51 (2011) and Van de Kamp

v. Goldstein, 555 U.S. 335 (2009)).) The cases relied upon by

the County Defendants are nuanced, and do not require a

plaintiff to allege “similar incidents” to sustain a failure to

train claim at the motion to dismiss stage. In Connick, for

example, the Supreme Court held that the plaintiff could not

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succeed on a failure to train claim against a prosecutor’s

office based on a single Brady violation by the office, because

applying Brady and other legal rules is a “threshold

requirement” of becoming a practicing prosecutor, and thus

“recurring constitutional violations are not the ‘obvious

consequence’ of failing to provide prosecutors with formal in-

house training about how to obey the law.” 563 U.S. at 66-67.

In this case, however, Plaintiff has not merely alleged that

prosecutors received insufficient training on a basic legal

issue for which training ought not be required. Rather,

Plaintiff’s allegation is that prosecutors were not trained

regarding the constitutional interests arising out of a specific

situation—i.e., where a detainee’s bail has been fixed by one

court, but related charges in other jurisdictions remain

pending, and the detainee is allegedly prevented by the County’s

policy and practice from arraignment on the charges in the other

jurisdictions. (TAC ¶¶ 50, 110-12.) Furthermore, Connick was

an appeal to the Supreme Court following a renewed motion for

judgment as a matter of law after a jury verdict; the standard

to be applied there is not relevant to the pleading standard a

plaintiff must meet under Rule 12(b)(6). See Trujillo v. City &

Cty. of Denver, 2017 WL 1364691, at *5 (D. Colo. Apr. 14, 2017)

(“[T]he evidentiary strictness applied in Connick is not

21

appropriate for this Court to apply [at the motion to dismiss

stage], where the question is only whether [the plaintiff]’s

pleadings adequately state a claim.”).

For Plaintiff’s failure to train theory to survive the

County Defendants’ motion to dismiss, Plaintiff need only plead

facts that, if true, “plausibly give rise to an entitlement to

relief.” Iqbal, 556 U.S. at 679. Accepting Plaintiff’s factual

allegations as true, it is not necessary for Plaintiff to allege

“similar incidents” at this stage. Moreover, the aforementioned

email sent by Assistant District Attorney Egan admitted that

Plaintiff’s situation was “frequently” handled the same way “in

cases involving charges in multiple jurisdictions.” (Id. at ¶

63.) Plaintiff sufficiently alleges that arraigning suspects on

only a subset of pending charges is a constitutional violation,

and that the Egan email regarding the County’s policy and

practice makes plausible that policymakers knew to a moral

certainty that the failure of the District Attorney’s Office to

provide adequate training for prosecutors in those situations

created a risk of constitutional violations that would

repeatedly recur.

D. Absolute Immunity

The County Defendants argued that Plaintiff’s claims

against Monroe County are essentially claims against the

22

Assistant District Attorneys acting in their official

capacities, and thus are barred by the Eleventh Amendment.

(Cty. Def. Mem. at 17-25.) However, in their reply brief, the

County Defendants concede that this court is bound by the Second

Circuit’s decision in Bellamy, 914 F.3d 727. (Cty. Def. Reply

at 7.) In Bellamy, the Second Circuit, citing a long line of

cases, reiterated the principle that prosecutorial immunity and

municipal liability are “separate” inquiries, and “the actions

of county prosecutors . . . are generally controlled by

municipal policymakers for purposes of Monell, with a narrow

exception . . . being the decision of whether, and on what

charges, to prosecute.” 914 F.3d at 759-60. Because

Plaintiff’s claims regarding the County’s alleged policy,

practice, and failure to train do not fall within that narrow

exception, the claims are not barred.

E. Punitive Damages

The County Defendants’ final argument is that

municipalities are not subject to punitive damages. (Cty. Def.

Mem. at 25.) The County Defendants are correct,4 see City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), and

4 A request for punitive damages is not a separate claim subject to

dismissal. See, e.g., Eugene Iovine Inc. v. Rudox Engine & Equip. Co.,

871 F. Supp. 141, 147 (E.D.N.Y. 1994), aff’d, 62 F.3d 1412 (2d Cir.

1995). Instead, the court construes the County Defendants’ motion as a

motion to strike the remedy of punitive damages.

23

Plaintiff does not argue otherwise in his opposition to the

County Defendants’ motion to dismiss. Thus, Plaintiff’s request

for punitive damages against the County of Monroe (see TAC at

22) is denied and stricken.

For the foregoing reasons, Plaintiff has sufficiently

alleged a Monell claim against Monroe County for an

unconstitutional policy and failure to train. The County

Defendants’ motion to dismiss is therefore granted only with

respect to Plaintiff’s request for punitive damages against

Monroe County, and denied in all other respects.

II. The State Defendants’ Motion to Dismiss

Plaintiff’s Third Amended Complaint asserts that State

Defendants Eifert and Schrage violated Plaintiff’s substantive

due process rights under the Fourteenth Amendment by

“arbitrarily and irrationally interfer[ing] with his right to

post bail.” (Opp. at 12; see TAC ¶¶ 85-90.) The State

Defendants move to dismiss this claim on three grounds: (1)

there was no underlying constitutional violation because there

was no need for Plaintiff to be arraigned on the charges in

Greece and Irondequoit, (2) State Defendants Eifert and Schrage

were not personally involved in Plaintiff’s ability to post

bail, nor were they a proximate cause of his alleged injury, and

(3) Eifert and Schrage are entitled to qualified immunity under

24

the Eleventh Amendment. (See generally ECF No. 133, State of

New York’ Memorandum in Support of Motion to Dismiss (“State

Def. Mem.”).)

The Due Process Clause of the Fourteenth Amendment was

“intended to secure the individual from the arbitrary exercise

of the powers of government.” Daniels v. Williams, 474 U.S.

327, 331 (1986) (quoting Hurtado v. California, 110 U.S. 516,

527, (1884)). While a “procedural due process claim challenges

the procedure by which [deprivation of liberty] is effected, a

substantive due process claim challenges the ‘fact of the

[deprivation]’ itself.” Ying Li v. City of New York, 246 F.

Supp. 3d 578, 625 (E.D.N.Y. 2017) (quoting Southerland v. City

of New York, 680 F.3d 127, 142 (2d Cir. 2012)) (alterations in

original).

“To state a substantive due process claim, [a]

plaintiff[] must allege (1) a valid liberty or property

interest, and (2) defendants infringed on that interest in an

arbitrary or irrational manner.” Calicchio v. Sachem Cent. Sch.

Dist., 2015 WL 5944269, at *8 (E.D.N.Y. Oct. 13, 2015) (citing

Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d

Cir. 2001) and Natale v. Town of Ridgefield, 170 F.3d 258, 262

(2d Cir. 1999)). Regarding the first prong, although “the

authority in th[e Second] Circuit is sparse, other federal

25

courts of appeals have recognized that the fixing of bail gives

rise to a liberty interest in paying bail that is protected by

substantive due process.” Lynch, 335 F. Supp. 3d at 653.

Regarding the second prong, a “plaintiff must show not just that

the action was literally arbitrary, but that it was ‘arbitrary

in the constitutional sense.’” Id. (quoting O’Connor v.

Pierson, 426 F.3d 187, 203 (2d Cir. 2005)). Only conduct by an

official that “shocks the conscience” can form the basis for a

substantive due process claim. O’Connor, 426 F.3d at 203.

“[W]hether executive action shocks the conscience depends on the

state of mind of the government actor and the context in which

the action was taken.” Id.

A. Underlying Constitutional Violation

The State Defendants argue that there was no

constitutional requirement for Plaintiff to be arraigned on the

charges in Greece and Irondequoit, because he was properly

detained on the Henrietta charges, for which he had been

arraigned. (State Def. Mem. at 5.)

As discussed in the context of the County Defendants’

motion to dismiss, this court has already found an underlying

constitutional violation with respect to the lack of Plaintiff’s

arraignment on the charges in Greece and Irondequoit. Plaintiff

plausibly alleged that he had a constitutional right to appear

26

before a judge for arraignment on all charges. Like the County

Defendants, the State Defendants quote language from the Second

Circuit’s intervening decision to argue that the Second Circuit

held that “[f]urther arraignments on the Greece and Irondequoit

charges were not necessary.” (State Def. Mem. at 5 (quoting

Ogunkoya, 913 F.3d at 71).) As noted, the Second Circuit

considered only whether the two Assistant District Attorneys’

decisions that no further arraignments were necessary were

entitled to absolute prosecutorial immunity, and made no

findings about whether further arraignments actually were

necessary in order for Plaintiff to post bail, or whether

Plaintiff had a constitutional right to further arraignments.

See Ogunkoya, 913 F.3d at 72-73.

Therefore, for the reasons stated above, as well as

those in Judge Bloom’s R&R and this Court’s November 2017 Order,

Plaintiff has adequately alleged the requisite underlying

constitutional deprivation to maintain his substantive due

process claim against the State Defendants.

B. Personal Involvement and Proximate Cause

The State Defendants argue that the County court clerk

made the decision about whether to process Plaintiff’s bail, and

neither State Defendants Eifert nor Schrage were involved.

(State Def. Mem. at 6-10.) A plaintiff can only allege

27

constitutional violations against officials who were “personally

involved” in the deprivation of liberty, Wright v. Smith, 21

F.3d 496, 501 (2d Cir. 1994), and the State Defendants argue

that the involvement of another actor could break the chain of

causation, thus rendering Eifert and Schrage not liable. The

Second Circuit has held that personal involvement for purposes

of a constitutional violation includes instances in which

officials “exhibited deliberate indifference to the rights of

inmates by failing to act on information indicating that

unconstitutional acts were occurring.” Colon v. Coughlin, 58

F.3d 865, 873 (2d Cir. 1995).

Judge Bloom previously found that Plaintiff adequately

alleged that both State Defendants Eifert and Schrage were

personally involved in the failure to arraign Plaintiff, which

allegedly led to his inability to post bail. (See R&R at 21

n.18 (“As alleged by plaintiff, Schrage brought plaintiff to his

initial arraignment and was specifically directed by the

Henrietta Judge to have plaintiff arraigned on the four

additional charges drafted by Eifert,” but Defendants never

did.).) This court agreed. Plaintiff alleged that Schrage was

“explicitly directed by the judge to bring plaintiff for

arraignment in Greece and Irondequoit, and represented to the

judge that [he and his colleague] could do so by the next

28

business day, but did not.” (Nov. 11, 2017 Order at 18.)

Plaintiff further alleged that Eifert was “aware of the need to

arraign plaintiff on the outstanding complaints, demonstrated by

the fact that he called the District Attorney’s office to

inquire” about what to do about those charges. (Id.) The court

accepted those facts as true for the purposes of deciding

Defendants’ earlier motions to dismiss, and the personal

involvement of Eifert and Schrage will not be re-litigated at

this stage. See Naples, 2015 WL 541489, at *5.

Moreover, the question of whether the State Defendants

were the proximate cause of Plaintiff’s injury is best left for

discovery. Plaintiff’s allegation is that the State Defendants

were personally involved in the failure to arraign Plaintiff on

the charges in Greece and Irondequoit, and that the court clerk

refused to process Plaintiff’s bail as a direct result of the

State and County Defendants’ refusal to arrange for Plaintiff’s

arraignment on all of the pending charges. (TAC ¶¶ 59, 73.) At

this stage, Plaintiff’s allegations are sufficient for the court

to infer that the State Defendants plausibly caused his

inability to post bail.

C. Qualified Immunity

The State Defendants argue that they are entitled to

qualified immunity on Plaintiff’s substantive due process claim

29

because “there was no clearly established statutory or

constitutional right establishing . . . a protected liberty

interest in the ability to post bail” at the time of Plaintiff’s

detention in 2014. (State Def. Mem. at 10-12.) Government

officials are entitled to qualified immunity “when they perform

discretionary functions if either (1) their conduct ‘did not

violate clearly established rights of which a reasonable person

would have known,’ or (2) ‘it was objectively reasonable to

believe that their acts did not violate these clearly

established rights.’” Young v. Cty. of Fulton, 160 F.3d 899,

903 (2d Cir. 1998) (quoting Soares v. Connecticut, 8 F.3d 917,

920 (2d Cir.1993) (alteration omitted).

In order to assess this question, the court must

“define with specificity the constitutional right at issue.”

Simon v. City of New York, 893 F.3d 83, 96 (2d Cir. 2018).

Plaintiff asserts that the right at issue is, broadly, the

Plaintiff’s liberty interest in the “right to freedom pending

trial,” which “is inherent in the Due Process Clause.” (Opp. at

20.) The State Defendants, on the other hand, would have the

court construe the right more narrowly: as the right to the

ability to post bail. (State Def. Mem. at 11-12.) The court’s

task “involves striking a balance between defining the right

specifically enough that officers can fairly be said to be on

30

notice that their conduct was forbidden, but with a sufficient

‘measure of abstraction’ to avoid a regime under which rights

are deemed clearly established only if the precise fact pattern

has already been condemned.” Simon, 893 F.3d at 96–97

(citations omitted); see also Hope v. Pelzer, 536 U.S. 730, 741

(2002) (“[O]fficials can still be on notice that their conduct

violates established law even in novel factual circumstances.”).

With the foregoing principles in mind, the court

defines the right at issue in this case as the right not to be

deprived of liberty after bail has been set as a result of

government officials’ failure to arraign an individual on all

charges following a warrantless arrest. In reaching this

definition, the court finds the Second Circuit’s decision in

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) instructive. In

Zahrey, the plaintiff alleged wrongful detention as the result

of a prosecutor conspiring to manufacture false evidence against

him. 221 F.3d at 347. The Second Circuit considered defining

the right as, on one hand, the broad right not to be detained as

a result of government misconduct, or on the other hand, as the

narrower right to not have a prosecutor fabricate evidence. Id.

at 348-49. Ultimately, the court defined the right as “the

right not to be deprived of liberty as a result of the

fabrication of evidence by a government officer acting in an

31

investigating capacity.” Id. at 349. Although the plaintiff’s

claim was “premised on the manufacture of false evidence,” it

was “not limited to that act,” but was rather “an example of a

classic constitutional violation: the deprivation of his liberty

without due process of law.” Id. at 348. This definition

required not only that a plaintiff be deprived of liberty, but

that the deprivation “be shown to be the result of [the]

fabrication of evidence.” Id. at 349. The question in this

case, therefore, is not necessarily whether Plaintiff had a

constitutional right to post bail after being arrested, but

rather, whether the State Defendants caused Plaintiff’s

deprivation of liberty by failing to meet their constitutional

obligations to bring Plaintiff for arraignment on all charges so

that he could post the bail that had been fixed.

The essence of Plaintiff’s complaint is that he had a

right to be arraigned in Greece and Irondequoit on the charges

on which he was arrested without a warrant, and to which he

proclaimed and enjoyed a constitutional presumption of

innocence, so that he would not be detained longer than

necessary. As discussed in this court’s prior decision, the

Supreme Court has held that when “an arrested individual does

not receive a probable cause determination within 48 hours,” the

government bears the burden of disproving a constitutional

32

violation. Cty. of Riverside v. McLaughlin, 500 U.S. 44, 57

(1991). Plaintiff thus had a clearly established right to “be

given a hearing into probable cause for the arrest within 48

hours,” either through an arraignment or some other procedure,

barring “extraordinary circumstances.” Bryant, 404 F.3d at 138.

The requirement of a prompt probable cause determination is

meant to “minimize the time a presumptively innocent individual

spends in jail.” McLaughlin, 500 U.S. at 58; see United States

v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004) (“the interest in

being free from physical detention by one’s own government” is

“the most elemental of liberty interests”) (quotation omitted).

The State Defendants were on notice that Plaintiff had

a constitutional right to an arraignment so that his liberty

interests would be protected. See Allen v. City of New York,

2007 WL 24796, at *18 (S.D.N.Y. Jan. 3, 2007) (officials “cannot

intentionally delay an arraignment for no reason”). The State

Defendants arrested Plaintiff without a warrant, and Defendant

Schrage represented to the judge in Henrietta that Plaintiff

would be arraigned on the Greece and Irondequoit charges the

next business day. (TAC ¶¶ 35-37.) Plaintiff alleges that as a

direct result of the State Defendants’ failure to do so, he was

unable to post bail, and was thus deprived of his “most

elemental of liberty interests.” Abuhamra, 389 F.3d at 318. It

33

was clearly established that the State Defendants were obligated

to have Plaintiff arraigned on those charges, and under

McLaughlin, they were on notice that their failure to do so

could result in a presumptively innocent individual remaining

detained longer than necessary. Qualified immunity is,

therefore, not appropriate at this time.

The State Defendants will have an opportunity to move

for summary judgment if discovery reveals an absence of any

material factual dispute as to whether the State Defendants

prevented Plaintiff’s arraignment. However, a defendant

asserting a qualified immunity defense on a motion to dismiss

“‘faces a formidable hurdle . . .’ and is usually not

successful,” because the court must accept a plaintiff’s alleged

facts as true. Field Day, LLC v. County of Suffolk, 463 F.3d

167, 191–92 (2d Cir.2006) (quoting McKenna v. Wright, 386 F.3d

432, 434 (2d Cir. 2004)).

At this stage, Plaintiff has sufficiently alleged a

substantive due process claim against the State Defendants. The

State Defendants’ motion to dismiss is, therefore, denied.

Conclusion

For the foregoing reasons, the court grants the County

Defendants’ motion to strike Plaintiff’s claim for punitive

damages against the County, and denies the County Defendants’

34

motion to dismiss the Monell claim. The court denies the State

Defendant’s motion to dismiss Plaintiff’s substantive due

process claim.

Based on the foregoing and the court’s previous

decision, this case will proceed to discovery on the following

claims: (1) false arrest and failure to intervene in the false

arrest against all State Defendants; (2) violations of

substantive due process and failure to intervene in the

violations of substantive due process against State Defendants

Eifert and Schrage; (3) false arrest and false imprisonment

against all State Defendants; (4) malicious prosecution and

failure to intervene in the malicious prosecution against Eifert

and Schrage; and (5) the municipal liability claims against the

County of Monroe. Plaintiff may not recover punitive damages

from the County.

SO ORDERED.

Dated: Brooklyn, New York

July 7, 2020

___________/s/___________

Hon. Kiyo A. Matsumoto

United States District Judge

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