The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TORREY BROWN,
Plaintiff, MEMORANDUM & ORDER
19-CV-6755 (RPK)
v.
COUNTY OF KINGS; DISTRICT ATTORNEY
ERIC GONZALEZ; ADA CHELSEA TODER; CPT
BANKS J.; CORRECTION OFFICER BROWN;
CORRECTION INVESTIGATOR TIMOTHY
FRIES,
Defendants.
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RACHEL P. KOVNER, United States District Judge:
Plaintiff Torrey Brown, a state prisoner, brought this pro se lawsuit under 42 U.S.C. § 1983
seeking damages for false arrest, false imprisonment, and malicious prosecution. He names as
defendants Kings County, Kings County District Attorney Eric Gonzalez, Kings County Assistant
District Attorney Chelsea Toder, a law enforcement officer identified as “Cpt. Banks J.” (“Captain
Banks”), Correction Investigator Timothy Fries (for whom plaintiff provides a shield number),
and Correction Officer Brown (for whom plaintiff also provides a shield number). He seeks to
proceed in forma pauperis (“IFP”). For the reasons set forth below, I grant plaintiff’s IFP request
but dismiss (i) all of his claims against Kings County, District Attorney Gonzalez, and Assistant
District Attorney Toder, and (ii) his official-capacity claims against the remaining defendants.
Plaintiff’s individual-capacity claims against Captain Banks, Correction Investigator Timothy
Fries, and Correction Officer Brown may go forward for now.
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I. Factual Background
Plaintiff’s complaint alleges that Correction Investigator Fries investigated him under the
supervision of Captain Banks. Complaint (“Compl.”) 5. He asserts that, following the
investigation, Fries arrested him without probable cause. Id. at 5-6. Plaintiff asserts that Fries
relied on “unsupported” and “false” statements of Correction Officer Brown in making the arrest.
Ibid. The complaint does not specify the employer of defendants Banks, Fries, or Brown.
Plaintiff claims that, after his alleged arrest, he was falsely imprisoned at Rikers Island on
multiple criminal charges, including attempted murder in the second degree. Id. at 6. He further
states that Kings County and District Attorney Gonzalez began a criminal proceeding against him
through Assistant District Attorney Toder. Ibid. Plaintiff writes that the prosecution “was
instituted with malice, as this arrest and prosecution was due to false and unsubstantiated
statements.” Ibid. He states that the prosecution was ultimately terminated in his favor. Ibid.
Plaintiff filed this lawsuit in 2019. Id. at 1. In his complaint, plaintiff alleges that Fries,
Banks, and Brown falsely arrested him in violation of his Fourth Amendment rights. Id. at 6. He
also alleges that Kings County, Gonzalez, Toder, and Fries violated his Fourth Amendment rights
by maliciously prosecuting and unlawfully imprisoning him. Ibid. Plaintiff states that all
defendants are being sued in their personal and official capacities. Compl. 1. He seeks $4,448,000
in damages. Id. at 6.
II. Standard of Review
When an incarcerated person files a civil suit seeking redress from a governmental entity
or from government officers or employees, the district court must “dismiss the complaint, or any
portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon
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which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A; see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). A district
court is similarly obligated to dismiss any case brought in forma pauperis if the court determines
that the complaint “is frivolous or malicious,” that it “fails to state a claim on which relief may be
granted,” or that it “seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B).
To avoid dismissal for failure to state a claim, a complaint must plead “enough facts to
state a claim to 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 plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all of
the complaint’s allegations are true.” Twombly, 550 U.S. at 545.
When a court applies these standards to a pro se litigant’s complaint, the complaint must
be “liberally construed, and . . . however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (internal quotations and citations omitted). Moreover, if a “liberal reading of the
complaint gives any indication that a valid claim might be stated,” the plaintiff should be given an
opportunity to amend the complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 1999) (quoting
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d. Cir. 1999) (per curiam)); see Shomo v.
City of New York, 579 F.3d 176, 183 (2d Cir. 2009).
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III. Discussion
Plaintiff’s claims against Kings County, District Attorney Gonzalez, and Assistant District
Attorney Toder must be dismissed, along with plaintiff’s claims against the remaining defendants
in their official capacities. Plaintiff has failed to set out a basis for subjecting Kings County to
liability under 42 U.S.C. § 1983 because he does not allege that any county policy or custom led
to the violation of his rights. Plaintiff’s claims against Gonzalez and Toder are barred by
prosecutorial and sovereign immunity. And plaintiff has also failed to set forth a valid basis for
official capacity claims against the remaining defendants. Plaintiff’s claims against the remaining
defendants in their individual capacities may go forward for now.
A. Claims Against Kings County
Plaintiff has failed to state a valid claim against Kings County under 42 U.S.C. § 1983.
To state a section 1983 claim against a municipality, a plaintiff must plead the existence of “(1) an
official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (quotation
omitted). The plaintiff need not identify an “explicitly stated rule or regulation,” but he must plead
at least “circumstantial” facts that would permit a factfinder to infer the existence of a municipal
policy or custom that contributed to the alleged violations of the plaintiff’s rights. Ricciuti v.
N.Y.C. Transit Auth., 941 F.2d 119, 122-23 (2d Cir. 1991). Merely “employ[ing] a tortfeasor” is
not enough. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Applying these standards,
plaintiff’s claims of malicious prosecution and false imprisonment against Kings County must be
dismissed because plaintiff has failed to allege facts suggesting that an official policy or custom
led to the violation of his constitutional rights. Plaintiff merely alleges that—in his individual
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case—Kings County and other defendants “commenced a criminal proceeding against him”
without probable cause, “made [him] out to be a menace,” falsely arrested him, and “instituted [his
prosecution] with malice.” Compl. 5-6. Even liberally construed, those allegations against Kings
County are inadequate to state a section 1983 claim because they do not support an inference that
plaintiff’s arrest was the product of any official policy or custom. Accordingly, plaintiff’s claims
against Kings County must be dismissed.
B. Claims Against District Attorney Gonzalez and Assistant District Attorney
Toder
Plaintiff’s malicious prosecution and false imprisonment claims against District Attorney
Gonzalez and Assistant District Attorney Toder are barred by sovereign and prosecutorial
immunity. Plaintiff seeks to pursue claims against those defendants in both their official and
personal capacities. But sovereign immunity bars the official-capacity claims. In particular, when
a private party sues a state government employee “for damages in his [or her] official capacity,
such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh
Amendment immunity belonging to the state.” Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529
(2d Cir. 1993). Here, because plaintiff’s official-capacity claims against defendants Gonzalez and
Toder are for monetary damages, Compl. 6, those claims are barred by Eleventh Amendment
sovereign immunity.
Plaintiff’s personal-capacity claims against defendants Gonzalez and Toder must also be
dismissed based on prosecutorial immunity. It is “well established that a state prosecuting attorney
who acted within the scope of his duties in initiating and pursuing a criminal prosecution is immune
from a civil suit for damages under § 1983.” Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d Cir.
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2005) (quoting Imbler v. Pachtman, 424 U.S. 409, 410, 431 (1976)); see Warney v. Monroe Cty.,
587 F.3d 113, 120–21 (2d Cir. 2009). Prosecutors engaging in “prosecutorial activities intimately
associated with the judicial phase of the criminal process” only lose absolute immunity if they act
“without any colorable claim of authority.” Shmueli, 424 F.3d at 237 (quotations omitted). For
example, prosecutors retain absolute immunity even when the plaintiff alleges the “knowing use
of perjured testimony” or the “deliberate withholding of exculpatory information”—such conduct
may be “reprehensible,” but it still reflects the exercise of prosecutorial discretion. Ibid. Applying
those principles here, plaintiff’s claims against the two prosecutors must be dismissed. Plaintiff’s
allegations that Gonzalez and Toder violated his rights by prosecuting and imprisoning him
without probable cause and in reliance on false statements, Compl. 6, amount only to allegations
that Gonzalez and Toder carried out their prosecutorial roles improperly—not allegations that they
acted “without any colorable claim of authority,” Shmueli, 424 F.3d at 237. Absolute prosecutorial
immunity therefore shields Gonzalez and Toder from personal liability based on plaintiff’s claims.
C. Claims Against Captain Banks, Correction Investigator Fries, and Correction
Officer Brown
Plaintiff’s official-capacity claims against the remaining defendants must also be
dismissed. It is not clear from the complaint whether Captain Banks, Correction Investigator Fries,
and Correction Officer Brown are city or state employees, but the official-capacity claims do not
survive under either standard. If these defendants are state employees, they are immune from suit
in their official capacities under the Eleventh Amendment. See Ying Jing Gan, 996 F.2d at 529.
And if these defendants are employees of a municipality, the complaint does not adequately allege
official-capacity claims against them because the complaint does not allege that the deprivation of
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his constitutional rights stemmed from a municipal policy or custom. See Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985); Coon v. Town of Springfield, Vt., 404 F.3d 683, 687 (2d Cir. 2005);
Davis v. Stratton, 360 F. App’x 182, 183 (2d Cir. 2010) (citing Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 124-25 (2d Cir. 2004)). Plaintiff’s individual-capacity claims against
these defendants may go forward for now.
IV. Conclusion
Plaintiff’s claims against Kings County, Gonzalez, and Toder, as well as plaintiff’s official-
capacity claims against Banks, Fries, and Brown, are dismissed without prejudice. The Clerk of
Court is directed to amend the caption to reflect these dismissals. Plaintiff is granted 30 days to
file an amended complaint that fixes the deficiencies identified in this Order if he wishes to do so.
The new complaint must be captioned “First Amended Complaint” and bear the same docket
number as this Order. Any amended complaint will completely replace the previously filed
complaint in this action and should therefore include all claims that plaintiff wishes to pursue.
Further proceedings in this case are stayed for 30 days. If plaintiff does not file an amended
complaint within 30 days, the Clerk of Court shall issue a summons to defendants Banks, Fries,
and Brown. While the complaint does not explicitly name these defendants’ employer, there are
some indications that they may be employees of the New York City Department of Corrections.
See Compl. 1, 5. The Court certifies under 28 U.S.C. ' 1915(a)(3) that any appeal from this order
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would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: Brooklyn, New York
July 30, 2020
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