White v. Abney

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PAUL WHITE,

Plaintiff,

-against- MEMORANDUM & ORDER

17-CV-4286 (EK)(RER)

ALBERT ABNEY, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Paul White, proceeding pro se, commenced

this action in 2017 against several witnesses who testified

against him at his 2014 criminal trial on real-estate fraud

charges. In his amended complaint, filed in forma pauperis on

December 23, 2019, Plaintiff brings multiple claims against

defendants Ella Abney and Albert Abney (“the Abneys”), both of

whom testified against White in the criminal case.1 The Abneys

1 Plaintiff’s amended complaint indicates that defendant Albert Abney

recently died. No suggestion of death has been filed, however, nor has

Plaintiff filed a motion for substitution pursuant to Rule 25 of the Federal

Rules of Civil Procedure. “If no one moves for substitution, it is proper

for the court to proceed to judgment with the original named parties.”

Gervis v. Berg, No. 9-CV-3362, 2007 WL 9747653, at *8 (E.D.N.Y. Nov. 7, 2007)

(Report and Recommendation) (quoting 6 James Wm. Moore et al., Moore’s

Federal Practice ¶ 25.12 (3d ed. 2007)). In these circumstances, the “court

does not have to refrain from action if no motion is made.” Moore, supra,

¶ 25.12; see also Coffee v. Cutter Biological, 809 F.2d 191, 193 n.1 (2d Cir.

1987) (“[T]he district court was informed by appellees’ counsel that Mr.

Coffee had died. Because his death had not yet been reflected on the record,

the district court elected to continue treating Mr. Coffee as a party.”).

were served on January 21, 2020, but have not appeared in this

case. See ECF No. 47. The Court grants Plaintiff’s request to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915 for the

purpose of this Memorandum and Order. Nevertheless, as set

forth below, the Court dismisses all claims against the Abneys

pursuant to 28 U.S.C § 1915 because of the Defendants’ absolute

immunity.

I. Background

Following a jury trial in New York State Supreme

Court, Suffolk County, Plaintiff was convicted of seven counts

of grand larceny and one count of fraud. See Amended Complaint

¶ 54, ECF No. 44; see also Spota v. White, 48 N.Y.S.3d 268, 2016

WL 6427362, at *2 (N.Y. Sup. Ct. 2016) (“Spota II”). He is

currently incarcerated. White’s conviction arose out of a

scheme to defraud investors in a real-estate development. See

id. at *4. The state argued that White held himself out as a

financial advisor and solicited clients — including the Abneys —

by representing “that he was going to invest their money in an

income-producing, low-risk investment.” Id. White used this

money to purchase the “John Cline Reservoir” — a 400-acre parcel

in North Carolina (the purported investment), through a limited

liability company that paid real estate “brokerage commissions”

to entities Plaintiff controlled. Id. After he refused a

client’s demand for the return of their investment, his

investors pursued criminal charges. See Spota v. White (“Spota

I”), 997 N.Y.S. 2d 101, 2014 WL 2931068, at *2 (N.Y. Sup. Ct.

2014). The case was investigated and prosecuted by the Suffolk

County District Attorney’s Office. People v. White, Case No. I-

2710-2012. A jury convicted White of grand larceny and fraud,

and in 2015, the state court ordered Plaintiff to pay $2.975

million in restitution as part of his criminal sentence. Spota

II, 2016 WL 6427362, at *2. The Abneys received $500,000 of

that restitution (the amount of their original investment). See

Exhibit I to Am. Compl., ECF No. 44-1 at 50 (Restitution

Judgment Order CPL § 420.10).

The District Attorney then brought a civil forfeiture

action against White and others to recover a total of $2.4

million in proceeds from the scheme. Spota II, 2016 WL 6427362,

at *1. The District Attorney cited trial evidence that White

took approximately $2.975 million from his victims and paid

approximately $500,000 back to them for an “option” to

repurchase their interests in the property. Id. at *4.

White later notified the Abneys that the North

Carolina Superior Court had validated their property deed and

that they therefore retained a “valid” ownership interest in the

property. Am. Compl. ¶¶ 44-45; Exhibit L to Am. Compl., ECF No.

44-1 at 72. White contends that the court’s finding proves he

is “actually innocent,” because the basis for his grand larceny

conviction was the invalidity of the deeds he sold to investors.

Id. He requested that the Abneys sign and file a Satisfaction

of Judgment with the Clerk of Court in Suffolk County, and

notify the District Attorney of his actual innocence. Id. ¶ 45.

The Abneys did not take these actions. Id. ¶ 46.

Plaintiff subsequently brought this action against the

Abneys and others who assisted the District Attorney’s Office in

the criminal investigation and/or testified before the grand

jury, trial court, and civil forfeiture hearings. He brings

claims for fraudulent misrepresentation, fraudulent inducement,

tortious interference with business relations, tortious

interference with contracts, and unjust enrichment. White

alleges that the Abneys, in making at least one criminal

complaint to the District Attorney’s Office, improperly

“engaged” District Attorney Spota to “represent them” in

recovering $500,000 that they used to purchase the property.

Id. ¶ 35. He also contends that the Defendants misrepresented

material facts to obtain his “unjust criminal conviction . . .

and incarceration,” including by giving false testimony. Id.

¶¶ 193-95.

Specifically, Plaintiff alleges the Abneys knowingly

made false statements to the Suffolk County District Attorney’s

Office in September 2012, e.g., id. ¶¶ 73, 115; before the grand

jury in October 2012, e.g., id. ¶¶ 74, 116; to the jury in his

criminal trial in October 2014, e.g., id. ¶¶ 75, 117; and to the

District Attorney’s Office in connection with the civil

forfeiture action in October 2016. E.g., id. ¶¶ 76, 118. The

allegedly false statements include the following: that the

Abneys falsely claimed that they did not sign a Purchase

Agreement for an ownership interest in the property in North

Carolina known as the John Cline Reservoir; that they did not

sign, in connection with their purchase of the ownership

interest, a Power of Attorney, a Dual Representation Agreement,

a Tenant-in-Common Agreement, and numerous documents with “First

National Qualified intermediary”; that they did not authorize an

attorney to represent them in purchasing the property; that they

did not authorize the attorney to create John Cline Reservoir I

LLC on their behalf to purchase the property; and that they did

not include the property on their federal and state tax returns.

See id. ¶¶ 59-104.

Plaintiff alleges that the Abneys made these false

statements for the purpose of misleading the District Attorney’s

Office into bringing criminal and civil actions, and the jury

and state court into reaching adverse decisions, id. ¶¶ 193-95;

and that the Abneys knew that their actions would prevent

Plaintiff from continuing to develop the property and interfere

with his contracts with third parties, including other

investors. Id. ¶¶ 274-77.

Finally, Plaintiff alleges that, as a result of the

Abneys’ false statements, the Abneys were unjustly enriched in

the amount of $46,667 that he paid them for the right to

repurchase their interest in the property; $1.1 million that he

invested in developing the property; and an additional $30,000

of Plaintiff’s assets that were “unjustly seized” based upon

their false statements. See id. ¶¶ 288-89. Plaintiff argues

that it is “against good conscience” to permit the Abneys to

retain these amounts, and to retain a valid ownership interest

in the property. Id. ¶¶ 291-92.

II. Legal Standard

28 U.S.C. § 1915(e)(2)(B) requires the court to

dismiss a pro se action that “is frivolous or malicious, or

fails to state a claim on which relief may be granted.”

Although the Abneys have not appeared or moved to dismiss the

action, the Court can dismiss a complaint pursuant to

Section 1915 “at any time.” 28 U.S.C. § 1915(e)(2)(B); see also

Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (a court “has

the power to dismiss a complaint sua sponte for failure to state

a claim on which relief can be granted”).

At the same time, the Court is obligated to construe

pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d

Cir. 2009), and interpret them to raise the “strongest [claims]

that they suggest.” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and

citations omitted). But the “special solicitude” in pro se

cases “has its limits”; to state a claim, pro se pleadings

“still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain

statement showing that the pleader is entitled to relief.”

Amison v. Fox News Channel, No. 20-CV-4924, 2020 WL 4506023, at

*1 (S.D.N.Y. Aug. 4, 2020). A plaintiff must “plead[] factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Courts “are not

bound to accept as true a legal conclusion couched as a factual

allegation.” Iqbal, 556 U.S. at 678.

If a pro se inmate’s complaint is dismissed under

Section 1915, the Court should accord the plaintiff an

opportunity to amend the complaint “unless the court can rule

out any possibility, however unlikely it might be, that an

amended complaint would succeed in stating a claim.” Gomez v.

USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (per

curiam).

III. Discussion

The Plaintiff’s claims against the Abneys are

virtually identical to allegations he leveled against Sandra

Schmidt in this case. Schmidt moved (through counsel) for

dismissal, and the Court dismissed the claims against her in an

order dated September 30, 2020. ECF No. 54. Plaintiff’s claims

against the Abneys suffer from the same defects, and for the

reasons set forth below, all claims against the Abneys are

similarly dismissed. See Town of Mamakating, N.Y. v. Lamm, No.

15-CV-2865, 2015 WL 5311265, at *10 (S.D.N.Y. Sept. 11, 2015)

(dismissing claims against a defendant that had not yet appeared

where the claims were the same as, and “suffer[ed] the same

defects” as, those against the appearing defendants), aff’d 651

F. App’x 51 (2d Cir. 2016).

A. Statements Made in Connection with Judicial Proceedings

Plaintiff’s claims are based entirely on statements

the Abneys allegedly made to the Suffolk County District

Attorney’s Office in the course of its investigation, as well as

their testimony in criminal and civil proceedings. These

statements cannot be the basis for the instant claims because

the Abneys are protected by the absolute immunity accorded to

witnesses in criminal cases.

The Supreme Court has made clear that witness

testimony at trial is entitled to absolute immunity, given the

harm to the judicial process that would ensue if an aggrieved

defendant could sue a testifying witness. See Briscoe v. LaHue,

460 U.S. 325, 335 (1983) (discussing the common-law rule of

absolute immunity arising out of a witness’s testimony at

trial); Butz v. Economou, 438 U.S. 478, 512 (1978) (discussing

the necessity of absolute immunity to ensure that witnesses can

perform their function without harassment or intimidation). The

risk of a retaliatory lawsuit would, for obvious reasons,

disrupt the judicial process by diminishing prospective

witnesses’ willingness to come forward and give honest

testimony. See Briscoe, 460 U.S. at 332-33; see also White v.

Frank, 680 F. Supp. 629, 634 (S.D.N.Y. 1988) (describing the

“almost inevitable retaliatory suits that would follow every

adverse determination at trial, without the deterrent of

absolute witness immunity”). Absolute really means absolute:

witnesses are afforded these protections even if they “knew the

statements were false and made them with malice.” Briscoe, 460

U.S. at 330; Burns v. Reed, 500 U.S. 478, 489 (1991). Briscoe

immunity protects state-court witnesses from retaliatory suits

in federal court, as well as witnesses who testified in federal

proceedings. E.g., Matthews v. City of New York, 889 F. Supp.

2d 418, 439, 447 (E.D.N.Y. 2012).

The doctrine of absolute immunity for trial witnesses

has developed since Briscoe to protect witness statements made

in other contexts as well. In Rehberg v. Paulk, 566 U.S. 356

(2012), the Supreme Court held that grand jury witnesses enjoy

the same immunity as trial witnesses, and that this immunity

extends to claims against a witness “concerning the initiation

or maintenance of a prosecution.” Id. at 369. In other words,

the immunity extends not only to witnesses’ grand jury testimony

but also to their preparation for such testimony, including when

“‘the witness relates the substance of his intended testimony’

to the prosecutor.” Coggins v. Buonora, 776 F.3d 108, 112 (2d

Cir. 2015) (quoting Rehberg, 556 U.S. at 370). An allegedly

false statement cannot be the subject of a collateral lawsuit

simply because it was made in preparation for judicial

proceedings, as well as at trial: “Were it otherwise, ‘a

criminal defendant turned civil plaintiff could simply reframe a

claim to attack the preparation instead of the absolutely immune

actions themselves.’” Rehberg, 556 U.S. at 369 (quoting Buckley

v. Fitzsimmons, 509 U.S. 259, 283 (1993) (Kennedy, J.,

concurring in part and dissenting in part)).

There is a carve-out to this rule, but it does not

apply here. Courts have allowed suits against law enforcement

officers who “set the wheels of government in motion by

instigating a legal action.” Sankar v. City of New York, No.

07-CV-4726, 2012 WL 2923236, at *3 (E.D.N.Y. July 18, 2012)

(quoting Rehberg, 566 U.S. at 371). This exception may apply,

for example, to an officer who is alleged to have falsified an

affidavit or fabricated evidence.2 And the exception extends to

a lay witness who “played an ‘active role in the prosecution,

such as [by] giving advice and encouragement or importuning the

authorities to act.’” Rothstein v. Carriere, 373 F.3d 275, 293-

94 (2d Cir. 2004) (quoting DeFilippo v. County of Nassau, 183

A.D.2d 695, 698 (2d Dep’t 1992)). However, simply “reporting a

crime to law enforcement and giving testimony does not

constitute the ‘initiation’ of a criminal prosecution. More is

required.” Rothstein, 373 F.3d at 294 (internal citati

on

omitted). “The defendant must have affirmatively induced the

officer to act, such as . . . [by] showing active, officious and

undue zeal, to the point where the officer is not acting of his

own volition.” Shah v. Lumiere, No. 13-CV-2975, 2013 WL

6283585, at *3 (S.D.N.Y. Dec. 3, 2013) (quoting Lupski v. Cnty.

of Nassau, 32 A.D.3d 997, 998 (2d Dep’t 2006)); see also Present

2 Even in the example of a law enforcement officer who falsely builds up

the case, the rationale for allowing claims for conduct outside of the

judicial proceedings is not a limitation on the immunity for witness

testimony, but rather a recognition that some conduct “exists independently”

from witness testimony when the witness is also actively involved in an

investigation. Coggins, 776 F.3d at 113. In Coggins, the Second Circuit

considered as a matter of first impression whether a law enforcement officer

is entitled to absolute immunity as a grand jury witness pursuant to Rehberg

when a plaintiff alleges that the officer withheld and falsified evidence in

addition to committing perjury before the grand jury. Id. at 112. The court

found that the complaint plausibly alleged misconduct by the defendant

officer without reference to his perjurious grand jury testimony and could be

subject to suit for that misconduct. Id. at 113. Still, the court noted

that if discovery were to establish that any of the alleged conduct

constituted “‘preparatory activity’ conducted in advance of his grand jury

testimony,” then he would be entitled to absolute immunity for that limited

conduct under Rehberg. Id. at 113 n.7.

v. Avon Prods., Inc., 253 A.D.2d 183, 189 (1st Dep’t 1999) (“One

who does no more than disclose to a prosecutor all material

information within his knowledge is not deemed to be the

initiator of the proceeding.”).

The Second Circuit has held that providing false

information to the police may so directly affect an arrest

determination as to constitute the “commencement” of a

prosecution. Stampf v. Long Island Railroad Co., 761 F.3d 192,

199-201 (2d Cir. 2014). But even providing false information

does not, in itself, constitute initiation of a criminal

prosecution where other complicating factors are present.

Rothstein, 373 F.3d at 294 (“[T]he mere fact that a witness

provided false information to the government does not warrant a

conclusion that the witness initiated the prosecution where the

rest of the evidence suggests otherwise.”); Hanly v. Powell

Goldstein, L.L.P., 290 F. App’x 435, 439 (2d Cir. 2008) (same).

White’s complaint does not allege facts sufficient to invoke the

carve-out to witness immunity. White alleges that the Abneys

“engaged” District Attorney Spota to “represent them” in

recovering $500,000, Am. Compl. ¶ 35, but the complaint sets

forth no accompanying factual content to suggest that Spota

acted other than as the prosecuting attorney. The Abneys are

not alleged to have taken an active role in the investigation,

prosecution, or civil forfeiture, other than as complainants and

witnesses. White alleges that the Abneys made false statements

to the District Attorney’s Office, but this alone is not enough,

as noted in Rothstein, supra. White does not claim that they

“importuned” the authorities to act or otherwise exerted undue

influence in the process. In fact, the Amended Complaint does

not suggest that the Abneys had any involvement in the cases

beyond their role as witnesses.

Moreover, unlike in Stampf, supra, where the defendant

single-handedly “flagged down” the police, “made them aware of

the case,” and “asked them to arrest” the plaintiff, 761 F.3d at

198 (cleaned up), there are significant intervening factors

present here between the time of the Abneys’ complaint and the

initiation of White’s prosecution. The Suffolk County District

Attorney’s office conducted a grand jury investigation into the

complex transactions that White managed, and other witnesses —

not just the Abneys — testified before the grand jury and at

trial. Given these intervening factors, White’s allegations

against the Abneys do not reflect the kind of “undue zeal” that

would support an inference that the district attorney was no

longer “acting of his own volition.” Mesiti v. Wegman, 307

A.D.2d 339, 340 (2003); see also Fleurimond v. Holder, 403 F.

Supp. 3d 95, 112 (E.D.N.Y. 2019) (“A prosecutor is presumed to

exercise independent judgment in deciding whether to initiate

and continue a criminal proceeding.” (internal quotation marks

omitted)).3

Accordingly, statements that the Abneys made in

connection with the proceedings against Plaintiff — including

those they made to the District Attorney’s Office in preparation

for those proceedings — are protected by the immunity afforded

witnesses under Briscoe and Rehberg. Thus, all of Plaintiff’s

claims against the Abneys must be dismissed.4 The Court also

finds that leave to replead would be futile.

III. Conclusion

This action, filed in forma pauperis, is dismissed

with prejudice for failure to state a claim upon which relief

can be granted against the Abneys.

3 A second, and perhaps even more obvious, distinction between this case

and Stampf is that the Abneys testified before the grand jury and at trial,

and therefore can invoke the absolute immunity rules of Briscoe and Rehberg,

whereas the complainant/defendant in Stampf never testified at all. See

Stampf, 761 F.3d at 197 (“No criminal complaint was ever filed against

Stampf. . . . [T]he New York County District Attorney’s Office issued a

declination of prosecution . . . .”).

4 White’s allegations against the Abneys also suffer from most, if not

all, of the Rule 12(b)(6) problems that plagued White’s complaint against

Schmidt. See Order dated September 30, 2020, ECF No. 54. But I need not

reach these issues because of the clear dictates of the doctrine of absolute

witness immunity.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal would not be taken in good faith and therefore

in forma pauperis status is denied for the purpose of an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to enter judgment and

close the case.

SO ORDERED.

_/s Eric Komitee___________

ERIC KOMITEE

United States District Judge

Dated: March 29, 2021

Brooklyn, New York