White v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SAMUEL WHITE,

Plaintiff, PARTIAL ADOPTION ORDER

20-CV-1501(JS)(JMW)

-against-

COUNTY OF SUFFOLK; SUFFOLK COUNTY

POLICE DEPARTMENT; RONALD

TAVARES; MICHAEL MILAU; SUFFOLK

COUNTY DISTRICT ATTORNEY’S

OFFICE; DARRYL LEVY; LAURA

NEWCOMBE; THOMAS SPOTA; JOHN DOES

1-10; TIMOTHY SINI; OFFICE OF THE

MEDICAL EXAMINER CRIME LABORATORY

(SUFFOLK COUNTY); HELEN WONG;

ODETTE R. HALL, M.D.; JOHN

PETERSON; and JAMES McGUINNESS,

Defendants.

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APPEARANCES

For Plaintiff: Stephanie McClure, Esq.

LAW OFFICE OF STEPHANIE MCCLURE

101 Avenue of the Americas, 9th Floor

New York, New York 10013

For All Defendants Brian C. Mitchell, Esq.

(except Defendant SUFFOLK COUNTY DEP’T OF LAW-COUNTY ATTORNEY

Spota): 100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788

For Defendant Anthony M. LaPinta, Esq.

Spota: Kyle O. Wood, Esq.

LAW OFFICES OF ANTHONY M. LA PINTA

200 Vanderbilt Motor Parkway, Suite C-17

Hauppauge, New York 11788

SEYBERT, District Judge:

INTRODUCTION

Plaintiff Samuel White (“Plaintiff” or “White”)

commenced this Section 1983 Civil Rights action on March 21, 2020,

seeking monetary damages and non-monetary relief for alleged

violations of due process and equal protection, false arrest,

malicious prosecution, denial of a fair trial, failure to

intervene, denial of right to counsel, fabrication of evidence,

presentation of false evidence to the grand jury and an appellate

court, conspiracy, and failure to train or supervise. (See Compl.,

ECF No. 1; see also Third Am. Compl. (“TAC”), ECF No. 87.) The

action is premised upon Defendants’ alleged fabrication of a case

against White in an effort to charge him with manslaughter arising

out of an incident that occurred on May 25, 2016, during which

White was approached by a man who threatened to rob him; despite

going to the police to report the incident, White was arrested,

tried, and acquitted.

Defendants Assistant District Attorney Laura Newcombe

(“Newcombe”), Assistant District Attorney Daryl Levy (“Levy”), and

Suffolk County District Attorney Timothy Sini (“Sini”;

collectively with Newcombe and Levy, the “County Defendants”) move

to dismiss White’s Third Amended Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), arguing that all claims against

them should be dismissed as they are entitled to absolute

prosecutorial immunity and sovereign immunity, and that

Plaintiff’s claims for equitable relief against them should be

dismissed. (See generally County Def. Support Memo, ECF No. 96-

2.) Separately Defendant Spota (“Spota”) moves pursuant to Rule

12(b)(6) arguing that Plaintiff’s claims fail because: White has

not plead that Spota was personally involved in any alleged

constitutional deprivation; all claims against Spota should be

dismissed based upon sovereign immunity, prosecutorial immunity,

and qualified immunity; and, Plaintiff’s equitable relief claims

should be dismissed. (See generally Spota Support Memo, ECF No.

97-2.) Plaintiff opposes both dismissal motions of the moving

defendant prosecutors. (See Opp’n, ECF No. 103.) On April 7,

2022, the Court referred the County Defendants’ Dismissal Motion

and Spota’s Dismissal Motion to Magistrate Judge James M. Wicks

for a report and recommendation.

Presently before the Court is Magistrate Judge Wicks’

Report & Recommendation (“R&R” or “Report) recommending the

Dismissal Motions be granted in part and denied in part. (See

R&R, ECF No. 124.) The Court assumes the parties’ familiarity

with the Report to which the County Defendants, Spota, and White

have each objected.1 (See County Obj., ECF No. 125; Spota Obj.,

ECF No. 126; and Pl. Obj., ECF No. 127.) For the reasons stated

1 Further, the Court assumes the parties’ familiarity with the

terms of art defined in the R&R, which are incorporated herein.

herein: the Court overrules in part and sustains in part the County

Defendants’ objections; overrules Spota’s objections; overrules

Plaintiff’s objections; adopts in part and rejects in part the

R&R; and grants in part and denies in part the County Defendants’

and Spota’s respective Dismissal Motions.

RELEVANT BACKGROUND

Having reviewed the TAC de novo, over Plaintiff’s

objection, the Court adopts the “Relevant Factual Background”

stated by Magistrate Wicks in his Report, finding it accurately

summarizes the relevant facts alleged in the TAC pertaining to the

County Defendants and Spota, and which is incorporated herein.

(See R&R at 3-7.) Similarly, the Court adopts the Magistrate

Judge’s recitation of the “Relevant Procedural History”, which is

also incorporated herein. (See id. at 7-9.) For the reader’s

convenience, however, the Court reiterates the following.

Pursuant to his fourth complaint, styled the “Third

Amended Complaint, i.e., the TAC, White:

set[s] forth twenty-one causes of action,

claiming violations of U.S.C. § 1983 for false

arrest (first and second causes of action),

malicious prosecution (third and fourth causes

of action), withholding critical Brady

evidence (fifth cause of action), denial of a

fair trial/fabricating evidence (sixth cause

of action), denial of a fair trial/withholding

evidence (seventh cause of action), failure to

intervene (eighth cause of action), due

process violations of the 4th amendment (ninth

and tenth causes of action), due process

violations of the 14th amendment (eleventh and

twelfth causes of action), due process

violations of the 6th amendment (thirteenth

cause of action), due process violations of

the 14th amendment (fourteenth, fifteenth,

sixteenth, seventeenth, and eighteenth causes

of action), violation of equal protection

(nineteenth cause of action), violations of

§ 1985 for conspiracy (twentieth cause of

action), and violations of § 1983 for failure

to supervise, investigate, train, and

discipline (twenty-first cause of action).

(R&R at 8; see also generally TAC.) He has sued all the

individually named Defendants in both their individual and

official capacities. (See id (citing TAC ¶ 28).)

Pursuant to their Dismissal Motion, the County

Defendants argue “that all claims against them should be dismissed

because they are entitled to absolute prosecutorial immunity and

sovereign immunity, and that Plaintiff’s claims for equitable

relief against [them] should be dismissed.” (R&R at 9 (citing

generally County Def. Support Memo).) Spota asserts: “Plaintiff’s

claims against him should be dismissed for failure to plead that

he was personally involved in any alleged constitutional

deprivation”; “all claims against him should be dismissed based

upon sovereign immunity, prosecutorial immunity, and qualified

immunity”; and, “Plaintiff’s equitable relief claims should be

dismissed.” (Id. (citing generally Spota Support Memo).)

MAGISTRATE JUDGE WICKS’ R&R

Magistrate Judge Wicks addressed the County Defendants’

and Spota’s arguments in support of complete dismissal of the

claims against them, respectively, under six categories:

1. Whether Newcombe and Levy are entitled to

absolute prosecutorial immunity;

2. Whether Sini and Spota are entitled to

absolute prosecutorial immunity;

3. Whether the County Defendants and Spota are

entitled to sovereign immunity;

4. Whether Spota is entitled to qualified

immunity;

5. Whether Newcombe’s statement to media is

covered under qualified immunity; and

6. Whether White’s demand for equitable relief

should be dismissed.

(See R&R at 10-11.)

As to Category One: The Magistrate Judge first excluded

the 1st, 2nd, 8th, and 21st Causes of Action from the analysis

finding they did not properly apply to Newcombe and Levy. (See

R&R at 12.) However, “the remaining causes of action sound in

conduct on the part of Defendants Newcombe and Levy for malicious

prosecution, denial of a fair trial, fabricating evidence,

presentation of false evidence to the grand jury and an appellate

court, withholding Brady material, and conspiring to do the same.”

(Id. at 12-13.) In that regard, as to the Third, Fourth, Fifth,

and Twentieth Causes of Action, “Plaintiff’s claims against

Defendants Newcombe and Levy involving malicious prosecution,

withholding Brady material, and conspiring are covered under

absolute prosecutorial immunity and thus, should be dismissed.”

(Id. at 13 (citations omitted).) As to the Sixth and Seventh

Causes of Action, “Plaintiff’s claims against Defendants Newcombe

and Levy pertaining to denial of a fair trial, fabricating

evidence, presentation of false evidence to a grand jury and

appellate court also warrant dismissal based on absolute

prosecutorial immunity.” (Id. at 16 (citations omitted).) As to

Plaintiffs’ Ninth through Nineteenth Causes of Action, Magistrate

Judge Wicks found “absolute prosecutorial immunity from § 1983

suits where prosecutors are found to have been exercising

prosecutorial functions also applies to causes of action brought

directly under the Sixth and Fourteenth Amendments (counts eleven

through nineteen).” (Id. (citations omitted).)

However, as to the alleged false statements to the press

misstating the contents of the subject surveillance video, which

statements Newcombe allegedly knowingly made, and which

allegations the Magistrate Judge assumed to be true for purposes

of making his recommendation on the Dismissal Motions, he found

Newcombe was entitled only to qualified immunity. (See R&R at 17-

18 (citing TAC ¶¶ 66, 147.) Of significance, the Magistrate Judge

noted:

It appears that [County] Defendants are

conflating Plaintiff’s allegations regarding

false statements to the media with a

defamation claim, which would have needed to

be pled separately under a state law claim for

defamation (and was not pled) or a stigma-plus

claim pursuant to § 1983 (which also was not

pled), but on the face of the Complaint, it []

appears that these allegations at ¶¶ 66 and

147 pertain to the “custom of the destruction

of evidence favorable to the defense” and

“hid[ing] and delay of exculpatory evidence.”

(Id. at 17 n.7.)

In sum, as to Category One, Magistrate Judge Wicks

“recommends that the claims against Defendants Newcombe and Levy

(causes of action three through twenty[-one]) be dismissed based

on absolute prosecutorial immunity grounds, with the exception of

Newcombe’s statement to the press, which is analyzed” pursuant to

qualified immunity. (Id. at 18.)

As to Category Two: Recognizing Plaintiff’s contention

that the TAC specifically alleges that Sini and Spota “participated

personally in the alleged constitutional violations and/or failed

to remedy the actions of their employees after being made aware of

the within misconduct and mishandlings, and/or created a custom of

deprivations of constitutional rights, or allowed such a custom to

continue” (R&R at 19), the Magistrate Judge, nonetheless, found

that “to the extent that Defendants Newcombe and Levy are granted

absolute immunity, Defendants Spota and Sini are also entitled to

absolute immunity as to those claims.” (R&R at 20 (citing Kanciper

v. Lato, No. 13-CV-0871, 2014 WL 12847274, at *3 (E.D.N.Y. Mar.

31, 2014), for the proposition “that [the] DA may invoke absolute

immunity to the same extent as the Court finds the ADA to be

covered under absolute immunity”).) However, as to Count 21,

Plaintiff’s cause of action alleging failure to supervise,

investigate, train and discipline, because “Plaintiff has

adequately pled personal involvement of Defendants Spota and Sini

by setting forth detailed allegations of policies/customs that

Spota created and/or let continue, and that Defendant Sini let

continue upon succeeding Spota” (R&R at 22), Magistrate Judge Wicks

recommended absolute prosecutorial immunity not be extended to

Spota and Sini. (See id. at 23.)

As to Category Three: Magistrate Judge Wicks

recommended that all claims brought against the County Defendants

and Spota in their respective official capacity be dismissed

because those claims are barred under Eleventh Amendment sovereign

immunity. (See R&R at 23-24.)

As to Category Four: Regarding Spota’s alternative

argument that he is entitled to qualified immunity for those cuases

of action as to which absolute prosecutorial immunity is not

granted, the Magistrate Judge found Plaintiff’s allegations

undermined Spota’s probable cause defense: “Spota has not

established entitlement to qualified immunity as to the malicious

prosecution claim.” (R&R at 26-27.) Accordingly, Magistrate Judge

Wicks recommended Spota’s Dismissal Motion seeking to dismiss

claims against him based on qualified immunity be denied with leave

to renew.2 (See id. at 27.)

As to Category Five: Observing that the County

Defendants “did not specifically address Plaintiff’s claims

regarding Newcombe’s alleged false statements to the media, but

Plaintiff argued in opposition that Newcombe is not entitled to

prosecutorial immunity for such statements,” and the County

Defendants replied “that there is no claim to address because none

of Plaintiff’s claims sound in defamation,” the Magistrate Judge,

nonetheless, found “at this juncture to hold that qualified

immunity applies to Newcombe’s statements to the media would be

improper, as the defense does not appear on the face of the

complaint.” (Id. at 27-28.) Hence, Magistrate Judge Wicks

recommends that Newcombe’s Dismissal Motion pertaining to her

alleged false statements to the media be denied with leave to

renew. (See id. at 28.)

As to Category Six: To the extent Plaintiff seeks

equitable relief and specific performance requiring:

(1) the termination of all named defendants

from their employment with Suffolk County, the

Suffolk County Police and the Suffolk County

2 Magistrate Judge Wicks also highlighted: “[N]either Spota nor

Plaintiff address whether qualified immunity applies to any claims

other than the malicious prosecution claims. [Thus], at this

pleading stage the Court cannot properly decide, based on the face

of the complaint and before the completion of discovery, whether

qualified immunity is applicable to Spota otherwise.” (R&R at

27.)

District Attorney’s Office in the interest of

Public Protection; (2) notification of all

defendants charged and/or tried by the named

defendants, notifying them specifically of the

internal affairs history and customs of

malfeasance discussed in Plaintiff’s

Complaint, and notifying them that such

history/customs may give rise to claims for

post-conviction relief; and (3) an independent

agency of licensed, impartial, and experienced

attorneys to review and investigate all files

prosecuted during the Spota era to date,

specifically including all files in which the

named detective and prosecutors

participated[,]

(id. at 28 (citing TAC ¶¶ 324-26)), Magistrate Judge Wicks found

(a) “the equitable relief sought is inapplicable to Spota who is

no longer employed with Suffolk County,” and (b) as to the County

Defendants, the equitable relief sought “is not properly directed

toward them either.” (Id. at 29.) He explained that “this action

was not brought as a collective or class action” and that

“recognizing or declaring past wrongs as opposed to seeking

prospective relief does not make out a case or controversy for

declaratory relief because there is not an immediate threat of

injury.” (Id. at 30.) Therefore, the Magistrate Judge recommends

that the Dismissal Motions be granted as to Plaintiff’s claims for

equitable relief. (See id.)

THE COUNTY DEFEDANTS’ OBJECTIONS

The County Defendants raise two specific objections to

Magistrate Judge Wicks’ R&R regarding (1) “the recommendation that

a claim for supervisory liability against District Attorney Sini

in his individual capacity be permitted to proceed, and (2) the

recommendation that the claim against ADA Newcombe regarding

alleged statements to the press be permitted to go forward.”

(County Obj. at 1.) They do not object to the balance of the R&R,

“which recommends dismissal of all the remaining claims against

defendants Newcombe, Levy and Sini,” which the County Defendants

assert is correct and should be adopted by this Court. (Id.)

As to the Sini-Related Objection: The County Defendants

assert that, notwithstanding properly stating the applicable law,

i.e., that prosecutorial immunity extends to certain

administrative tasks, including supervision and training, see Van

de Kamp v. Goldstein, 555 U.S. 335 (2009), the Magistrate Judge

continued in finding that “Plaintiff has adequately pled personal

involvement of Defendants Spota and Sini by setting forth detailed

allegations of policies/customs that Spota created and/or let

continue, and that Defendant Sini let continue upon succeeding

Spota.” (R&R at 22; see also County Obj. at 2.) But, by “fail[ing]

to additionally determine if DA Sini was still entitled to absolute

immunity, even if personal involvement in the alleged underlying

constitutional violation was established,” the Magistrate Judge

erred. (County Obj. at 2.) The County Defendants rely upon Van

de Kamp and Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009),

in advancing their contention that “absolute immunity bar[s] the

supervisory claims,” because those cases found “the failure to

supervise and train claims relied upon underlying misconduct by

the deputy prosecutors at trial, who were themselves entitled to

absolute immunity.” (Id. at 3.) Relatedly, they would have this

Court disavow the Magistrate Judge’s reliance upon Kanciper v.

Lato, No. 13-CV-0871, 2014 WL 12847274 (E.D.N.Y. Mar. 31, 2014),

since, notwithstanding that the Kanciper Court denyed the district

attorney absolute immunity for conduct to which the assistant

district attorney was not entitled to absolute immunity, that court

also properly extended to the district attorney prosecutorial

immunity for other conduct to which the assistant district attorney

was entitled to absolute immunity. (See id. at 3-4.)

As to the Newcombe-Related Objection: The County

Defendants argue the Magistrate Judge erred in finding grounds for

a claim against Newcombe based upon alleged statements Newcombe

made to the press, especially since Magistrate Judge Wicks agreed

with the County Defendants that Plaintiff’s TAC was void of any

claim for defamation or stigma plus. (See County Obj. at 4 (citing

R&R at 17 n.7).) They maintain the Magistrate Judge’s reading of

the TAC was “far too broad” and, in any event, “the theory of

liability advanced by the [Magistrate Judge] does not establish an

individual constitutional violation by ADA Newcombe.” (Id.; see

also id. at 5 (“In the instant complaint, there are insufficient

facts to permit even a reasonable inference that ADA Newcombe’s

supposed false statements to the press, in and of themselves,

establish misconduct that rise to the level of a constitutional

violation.”).) In sum, the County Defendants would have this Court

find error with the Magistrate Judge’s “[e]xpanding the reading of

the [TAC] to construe a claim not brought by the plaintiff, who is

not proceeding pro se, and is represented by counsel . . . .” (Id.

(“[U]nder a de novo review of our motion to dismiss, the purported

claim relating to ADA[] Newcombe’s alleged false statements to the

press should be dismissed for failing to state a claim upon which

relief can be granted.”).)

SPOTA’S OBJECTIONS

Defendant Spota joins in the County Defendants’

objections as they relate to prosecutorial immunity, adopting the

arguments advanced by the County Defendants. (Spota Obj. at 1.)

Spota summarily argues his “lone role in this matter was to be in

charge of the office which employed co-defendant ADA Newcombe”, he

is “not alleged to have personally participated in the criminal

prosecution”, and the TAC does not state a claim of Spota’s

personal participation. (Id. at 2.) Yet, in his R&R, the

Magistrate Judge erroneously found the TAC adequately pled Spota’s

personal involvement. (See id.) Spota implies such a recommended

finding is untenable since, “[t]he purpose of establishing

personal involvement was to ensure that a plaintiff must plead

that each Government-official, through the official’s own

individual actions, has violated the Constitution.” (Id.) Yet,

“[t]he alleged custom or policy relating to defendant Spota in and

of itself is not the constitutional violation.” (Id.) Rather, it

is the alleged underlying conduct of ADAs Newcombe and Levy which

constitutes the constitutional harm, and which is the same conduct

for which the Magistrate Judge determined the ADA defendants were

entitled to absolute prosecutorial immunity. Thus, Spota contends

“[n]one of this alleged conduct can be said to fall within the

limited administrative acts by which the District Attorney could

be considered a municipal actor and as such, defendant Spota cannot

be liable.” (Id. at 2-3 (relying upon Van de Kamp in support of

Objection).)

PLAINTIFF’S OBJECTIONS

Plaintiff contends the Report “misinterprets the [TAC]

in critical ways” and “also materially misstates the facts

pleaded”. (Pl. Obj. at 1.) While Plaintiff’s objections are not

the exemplar of clarity, the Court gleans that the crux of his

claims of error is that: prior to any charges being brought against

Plaintiff, a fabrication-of-evidence scheme -- the so-called “end-

around-scheme” -- already existed; all defendants knew of and

participated in using the end-around-scheme; the use of the end-

around-scheme by all defendants while Plaintiff was detained

(which Plaintiff terms the “initial pre-charge investigation”) was

the impetus for the charges brought against Plaintiff and also

triggered the fabrication of other evidence used against

Plaintiff. (See, e.g., id. at 12, 14, 20-21, 23, 27, 33, 35, 37,

38, 40, 41.) Plaintiff identifies four purported errors in

Magistrate Judge Wicks’ Report:

1. The [R]eport failed to apply the proper

legal standard to [the Magistrate Judge’s]

reading of the [TAC] and failed to acknowledge

facts that plaintiff clearly and repeatedly

pleaded in the complaint.

2. The [R]eport omitted several counts of the

[TAC] from [the Magistrate Judge’s] analysis,

as if the claims simply ‘did not apply’ to the

moving defendants.

3. The [R]eport erred in its application of

the immunity law to the facts of the instant

pleading and failed to perform the required

“functionality” tests.

4. The relief requested in the [TAC] is not

subject to dismissal in this 12(b)(6) motion

and defendants are essentially asking this

court to render summary judgment on an issue

not properly before it. There is no basis to

dismiss the relief requested in toto at this

time.

(Id. at 4-5.) More specifically, Plaintiff argues the following.

As to Plaintiff’s First Objection: Plaintiff contends

the TAC clearly “contains facts that establish a claim for personal

involvement of each prosecutor in a way exempt from immunity,” yet

Magistrate Judge Wicks “concluded otherwise in large part due to

his incorrect reading of the pleading, construction of facts, and

negative inferences drawn.” (Id. at 6 (referring this Court to

the TAC in its entirety).) He argues that the Magistrate Judge’s

“cherry-picking” through the TAC is not permitted when deciding a

motion to dismiss and is what “tainted the large part of his

analysis.” (Id. at 7-8.) More specifically, Plaintiff argues

Magistrate Judge Wicks “wrongly stated that plaintiff ‘conceded’

that his arrest occurred within minutes of plaintiff’s arrival at

the police station, and therefore, he opined, nearly everything

thereafter is subject to prosecutorial immunity, because the

judicial phase of the case had begun.” (Id. at 8.) Plaintiff

contends the Magistrate Judge’s recitation of the timing of events

is contrary to his factual allegations, which are crucial to the

determination of the prosecutor-defendants’ entitlement to

immunities, and that that flaw evinces the Magistrate Judge

construed the facts against Plaintiff and not, as required, in his

favor. (See id.; see also id. at 9-12 (quoting TAC ¶¶ 2, 94, 107,

117, 118, 122, 127, 129, 133, 134, 136, 138); see also id. at 12

(arguing Magistrate Judge Wicks unlawfully premised his findings

upon the “arrest” of Plaintiff even though deprivation of

constitutional rights occurred when the end-around-scheme was

being used during the initial pre-charge investigation); see also

id. at 15.) The core of Plaintiff’s objection is that since

“Plaintiff was not charged, nor could any ‘judicial phases’ begin,

until after this malfeasance in the initial investigation had

occurred[,] . . . [t]he moving defendants cannot invoke

prosecutorial immunity for their misdeeds that began prior to the

charge.” (Id. at 14.)

As to Plaintiff’s Second Objection:3 Plaintiff maintains

that Magistrate Judge Wicks erred by “inexplicably assign[ing]

only some defendants to some claims,” notwithstanding that

Plaintiff plainly stated that his “claims are made as to each and

every defendant unless otherwise noted.” (Pl. Obj. at 15 (citing

TAC ¶ 197 and noting that only the 21st Count notes otherwise).)

Indeed, according to Plaintiff, the facts he alleged

“intentionally set forth facts sufficient to incorporate all of

the movant defendants in the pre-charge fabrication of evidence,

and constitutional deprivations, facilitating lies for the purpose

of maliciously charging the plaintiff,” which is critical because

the conduct “began pre-arrest and before any arguable judicial

phases even began.” (Id. at 20 (emphasis in original); see also

id. at 23 (arguing same).) And, as to Spota and Sini in particular,

“their personal involvement was pleaded as to each and every

deprivation; it is not limited to their supervisory duties.” (Id.

at 22; cf. id. at 34.) Thus, Magistrate Judge Wicks’ determination

(1) that not all causes of action apply to the prosecutor-

defendants, and (2) that the prosecutor-defendants are entitled to

3 In presenting his Second Objection, Plaintiff addresses all 21

of his causes of action. (See Pl. Obj., Part II, 23-42.) However,

Plaintiff’s arguments in support of this objection are all,

essentially, based upon the same theory (see, e.g., id. at Part

II(A)); therefore, the Court summarizes them herein,

notwithstanding that it has thoroughly considered Plaintiff’s

entire Second Objection.

immunity, is error. (See, e.g., id. at 34.) Additionally,

Plaintiff challenges as erroneous Judge Wicks’ reliance upon

Shmueli v. City of N.Y., 424 F.3d 231 (2d Cir. 2005), and Giraldo

v. Kessler, 694 F.3d 161 (2d Cir. 2012), in making his immunity

coverage recommendations. (See, e.g., id. at 34, 40.)

As to Plaintiff’s Third Objection: Within the context

of his Second Objection, Plaintiff refers to functionality twice.

First, in disagreeing with Magistrate Judge Wicks’ determination

that Newcombe and Levy are shielded under absolute prosecutorial

immunity from Plaintiff’s claims of malicious prosecution,

withholding Brady material, and conspiracy (see R&R at 13-14),4

Plaintiff repeats his argument that the “four moving prosecutors

are specifically pleaded to have been personally involved in the

fabrication of false evidence that allowed for, and upon which the

initiation of the charge, was based.” (Pl. Obj. at 34.) Thus,

according to Plaintiff, “[t]his is an entirely different factual

role and functionality, not entitled to immunity.” (Id.) Second,

and similarly, Plaintiff makes the same “failure-to-perform any

functionality analysis” argument regarding his Fourteenth

4 Of note: Plaintiff does not accurately quote the parenthetical

provided by Magistrate Judge Wicks in citing to Tretola v. D’Amico,

No. 13-CV-5705, 2014 WL 2957523, at *4 (E.D.N.Y. July 1, 2014), in

support of his determination that absolute prosecutorial immunity

is in play as to Plaintiff’s claims of malicious prosecution,

withholding Brady materials, and conspiracy against Newcombe and

Levy, and not Shumueli, as asserted by Plaintiff. (Cf. R&R at 13,

with Pl. Obj. at 34.)

Amendment violation causes of action. (See id. at 38.) In

Plaintiff’s view, by failing to perform the functionality

analysis, Magistrate Judge Wicks erroneously ignored his well—pled

allegations that the prosecutor-defendants where allegedly

personally involved in the unlawful pre-charge investigation,

inferring that this supposed failure led to the wrong

recommendation, i.e., that prosecutorial immunity is warranted.

(See id.)

As to Plaintiff’s Fourth Objection: Plaintiff baldly

contends that in ruling upon the Dismissal Motions, “it is outside

this court’s authority . . . to summarily consider whether certain

relief may be dismissed from plaintiff’s damages claims” and to do

so would be to effectively treat the Dismissal Motion as one for

summary judgment. (Obj. at 44-45.) In support of this contention,

Plaintiff again advances his argument of “the culture of corruption

and unconstitutional norms [that] remain engrained in Suffolk

County law enforcement.” (Id. at 45 (asserting the R&R

“misconstrued plaintiff’s arguments which have already been

incorporated herein and upon which we continue to rely”).)

[Remainder of page intentionally left blank.]

DISCUSSION

I. Legal Standard5

A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

The district judge must evaluate proper, i.e., specific,

objections de novo; however, where a party makes only conclusory

or general objections, or simply reiterates the original

arguments, the court reviews the report and recommendation

strictly for clear error. See Locus Techs. V. Honeywell Int’l

Inc., No. 19-CV-11532, -- F. Supp. 3d --, 2022 WL 4592891, at *5

(S.D.N.Y. Sept. 30, 2022); Pall Corp. v. Entegris, Inc., 249 F.R.D.

48, 51 (E.D.N.Y. 2008) (same); see also FED. R. CIV. P. 72(b)(3);

Thomas v. City of N.Y., Nos. 14-CV-7513, 16-CV-4224, 2019 WL

3491486, at *4 (E.D.N.Y. July 31, 2019) (“Objections seeking to

relitigate arguments rejected by the magistrate judge do not

constitute proper objections, and, as a result, are subject to

clear error review.”). Further, “[i]n this district and circuit,

it is established law that a district judge will not consider new

arguments raised in objections to a magistrate judge’s report and

recommendation that could have been raised before the magistrate

5 Hearing no objection to Magistrate Judge Wicks’ discussion of

the Rule 12(b) dismissal standard and finding it to be correct,

said standard is adopted and incorporated herein by reference.

(See R&R at 9-10.)

but were not.” Trustees of Metal Polishers Local 8A–28A Funds v.

Nu Look Inc., No. 18-CV-3816, 2020 WL 5793204, at *3 (E.D.N.Y.

Sept. 29, 2020) (quoting Illis v. Artus, No. 06-CV-3077, 2009 WL

2730870, at *1 (E.D.N.Y. Aug. 28, 2009) (cleaned up; collecting

cases)).

II. Analysis

A. The County Defendants’ Objections

1. The Sini-Related Objection

The County Defendants’ Sini-related objection is

OVERRULED. In support of his 21st Cause of Action, Plaintiff has

plausibly alleged a claim that (a) Spota, and then Sini, failed to

supervise and (b) were personally involved in that failure based

upon the District Attorney’s pre-existing policy or custom of

permitting unconstitutional pre-charge investigations to be

undertaken, using a fabrication-of-evidence scheme. Thus, as

Magistrate Judge Wicks stated, notwithstanding that Van de Kamp

“specifically extended prosecutorial immunity to certain

administrative tasks, including supervision and training,” because

in this instance Plaintiff has adequately alleged Spota’s and

Sini’s personal involvement with his “detailed allegations of

policies/customs that Spota created and/or let continue, and that

Defendant Sini let continue upon succeeding Spota” (R&R at 22),

which preceded, and did not rely upon, alleged underlying

misconduct by Newcombe and Levy, those allegations plausibly state

an underlying constitutional violation supporting Plaintiff’s

21st, failure-to-supervise and failure-to-train cause of action

against Spota and Sini to which Spota and Sini are not immune by

extension of Newcombe’s and Levy’s absolute prosecutorial

immunity. Upon de novo review, the Court finds no error with

Magistrate Judge Wicks’ recommendation that Sini is not entitled

to absolute prosecutorial immunity as to Plaintiff’s 21st Count.

2. The Newcombe-Related Objection

The County Defendants’ Newcombe-related objection is

SUSTAINED. The Court agrees with the County Defendants that the

Magistrate Judge read the counsel-drafted TAC too broadly.6

6 Nonetheless, the Court also agrees with the Magistrate Judge’s

observation that:

It appears that Defendants are conflating

Plaintiff’s allegations regarding false

statements to the media with a defamation

claim, which would have needed to be pled

separately under a state law claim for

defamation (and was not pled) or a stigma-plus

claim pursuant to § 1983 (which also was not

pled), but on the face of the Complaint, it is

appears that these allegations at ¶¶ 66 and

147 pertain to the “custom of the destruction

of evidence favorable to the defense” and

“hid[ing] and delay of exculpatory evidence.”

(R&R at 17 n.7 (citing TAC ¶ 66).) Indeed, Plaintiff has not

brought such causes of action against Newcombe. (See TAC, in

toto.) Nor does he raise any objection to the Magistrate Judge’s

noted, but relevant, observations regarding Newcombe’s alleged

statements. (See Pl. Obj., in toto.)

The Magistrate Judge recommends that Newcombe be denied

absolute immunity regarding statements Newcombe alleged made to

Newsday. (See R&R at 17-18.) And, as to qualified immunity,

because such defense does not appear on the face of the TAC, “i.e.,

there is a lack of information for the Court to analyze whether

Newcombe’s actions were objectively reasonable” (id. at 28), the

Magistrate Judge recommends that “Newcombe’s motion to dismiss

pertaining to her alleged false statements to the media be denied,

with leave to renew.” (Id.)

The Court is hard-pressed to discern any claim against

Newcombe sounding in a denial of a fair trial due to the press-

statement-related factual allegations; and, the Court is

unpersuaded that the press-statement-related allegations (see TAC

¶¶ 66, 147), lend support to any other of Plaintiff’s causes of

action. Reading his counseled-TAC in the light most favorable to

him and in its entirety, see, e.g., Sutton v. Stony Brook Univ.,

No. 21-2055, 2022 WL 4479509, at *1 (2d Cir. Sept. 27, 2022)

(stating that on a Rule 12(b)(6) motion to dismiss, the complaint

must be considered in its entirety to determine “whether a

permissible inference may be drawn from ‘all the facts alleged,

taken collectively,’ and not whether there is a permissible

inference from ‘any individual allegation, scrutinized in

isolation.’”) (quoting Kaplan v. Lebanese Canadian Bank, SAL, 999

F.3d 842, 854 (2d Cir. 2021)), arguably Plaintiff’s Sixth Cause of

Action -- asserting a claim of denial of a fair trial based upon

alleged fabrication of evidence -- is the only cause of action

that could possibly encompass Newcombe’s alleged statements to

Newsday.7 Yet, the press-statement-related factual allegations

(see id.) are too bare-boned and conclusory “to permit the [C]ourt

to infer more than the mere possibility of misconduct.” Iqbal,

556 U.S. at 679. Moreover, to the extent Plaintiff would amend or

supplement those allegations by way of his Opposition, that attempt

to correct the deficiencies of a purported claim against Newcombe

based upon her alleged statements to Newsday is unavailing. (See,

e.g., R&R at 17 n.8 (noting “Plaintiff’s [O]pposition

mischaracterizes the details that are pled in the [TAC], and adds

alleged facts that are not pled,” but which were not considered).)

See also, e.g., Passiglia v. Northwell Health, Inc., 252 F. Supp.

3d 129, 136-37 (E.D.N.Y. 2017) ([“M]emoranda . . . in opposition

to a motion to dismiss cannot be used to cure a defective

complaint.” (quoting Goodman v. Port Auth. of N.Y. & N.J., 850 F.

Supp. 2d 363, 380 (S.D.N.Y. 2012))). Rather, to the extent

Plaintiff would maintain a cause of action against Newcombe based

upon the press-statement-related factual allegations, all such

7 A fair reading of Plaintiff’s Seventh Cause of Action claiming

the denial of a fair trial based upon the withholding of evidence

(and, in particular, the alleged fabricated evidence of defendant

Detective Tavars) does not implicate the press-statement-related

factual allegations. (See TAC ¶¶ 237-45.)

claims are dismissed for failure to state a claim because there is

not enough “nonconclusory factual matter” pled to “cross the line

from conceivable to plausible.” E.E.O.C. v. Port Auth. of N.Y. &

N.J., 768 F.3d 247, 254 (2d Cir. 2014). Accordingly, the Court

SUSTAINS the County Defendants’ objection to the Magistrate

Judge’s recommendations regarding Newcombe’s entitlement to

immunity as to such claims.8

B. The Spota Objections

1. The Absolute Immunity Based Objection

For the same reasons articulated, supra, regarding the

County Defendants’ Sini-related objection, Spota’s Absolute

Immunity Objection regarding Plaintiff’s Count 21 is OVERRULED.

2. The Qualified Immunity Based Objection

Spota acknowledges that Magistrate Judge Wicks found

“[P]laintiff had adequately pled personal involvement of . . .

Spota . . . by setting forth detailed allegations of

8 The Court notes that it finds the Report’s reliance upon

Javanovic v. City of New York, No. 04-CV-8437, 2006 WL 2411541

(S.D.N.Y. Aug. 17, 2006), unpersuasive. (See R&R at 18.) First,

the facts regarding the prosecutor and her statements and leaks in

Javanovic are readily distinguishable from Newcombe’s alleged

press statements in the instant action. Second, Javanovic was

decided before the Supreme Court’s pronouncement of the

plausibility-pleading standard. See Bell Atl. v. Twombly, 550

U.S. 554 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Hence,

the Jovanovic Court’s reliance on the Second Circuit’s Powers case,

728 F.2d 97 (2d Cir. 1984), in finding a claim of a denial of a

fair trial due to prejudicial publicity based upon the prosecutor’s

extra judicial statements to the press was sufficiently alleged is

unavailing in this instance.

policies/customs that Spota created and/or let continue,” which is

enough to survive Spota’s Dismissal Motion regarding Plaintiff’s

supervisory claim. (Spota Obj. at 2 (quoting R&R at 22); see also,

e.g., R&R at 22.) Spota simply disagrees with that determination,

advancing an “opening the floodgates” type argument in opposition.

(See id. (arguing “[t]he finding in the R&R that the [TAC]

adequately pled personal involvement of . . . Spota . . . sets an

impractical and unworkable precedent”).) The Court finds this

objection unpersuasive.

In advancing his objection, Spota would also have the

Court disregard the procedural posture of the case; it declines

to do so. It is clear Magistrate Judge Wicks’ recommendation is

properly predicated upon the fact that this action remains in the

pleading stage. (See R&R at 25-26.) Indeed, the Magistrate Judge

specifically stated: “[W]hen defendants assert an immunity defense

on a Rule 12(b)(6) motion rather than on summary judgment, they

‘must accept the more stringent standard applicable to this

procedural route . . . [including that] the facts supporting the

defense must appear on the face of the complaint . . . .’” (Id.

at 26 (quoting Vallen v. Pierre, No. 13-CV-6541, 2015 WL 1299243,

at *9 (E.D.N.Y. Mar. 23, 2015)).) In light of Plaintiff’s

allegations regarding pre-charging investigation conduct, in

conjunction with his illustrative allegations of other similar

criminal cases wherein the convictions were overturned,

Plaintiff’s Count 21 supervisory claims against Spota are enough

to withstand Spota’s Dismissal Motion. Thus, while it is true

that Van de Kamp v. Goldstein, 555 U.S. 335 (2009), establishes

prosecutors are absolutely immune from prosecution for matters

that attach to prosecutorial action, including certain

administrative procedures that are directly connected with the

conduct of a trial, Plaintiff’s allegations warrant being exposed

to discovery to determine whether Spota’s alleged policies and/or

customs necessarily required legal knowledge and the exercise of

related discretion to determine whether he is, indeed, entitled

to qualified immunity. Hence, Spota’s objection to Magistrate

Judge Wicks’ qualified immunity recommendation is OVERRULED.

C. Plaintiff’s Objections

As an initial matter, finding Plaintiff’s objections to

be conclusory and general in nature, reiterating his original

arguments (see, e.g., Obj. at 1 (“[P]laintiff herein incorporates

all his prior submissions, including but not limited to his prior

brief opposing these motions, in opposition to the report.” (citing

Opp’n, ECF No. 103)), the Court reviews the Report strictly for

clear error. See Urgent One Med. Care, PC v. Co-Options, Inc.,

No. 21-CV-4180, 2022 WL 4596754, at *5 (E.D.N.Y. Sept. 30, 2022)

(“General objections, or ‘objections that are merely perfunctory

responses argued in an attempt to engage the district court in a

rehashing of the same arguments set forth in the original papers

will not suffice to invoke de novo review.’” (quoting Owusu v.

N.Y.S. Ins., 655 F. Supp. 2d 308, 312-13 (S.D.N.Y. 2009) (cleaned

up)); see also Phillips v. Reed Grp., 955 F. Supp. 2d 201, 211

(S.D.N.Y. 2013) (“In the event a party’s objections are conclusory

or general, or simply reiterate original arguments, the district

court . . . reviews the Report and Recommendation for clear

error.”). Upon clear-error review of the R&R, the Court finds

none; therefore, Plaintiff’s objections are OVERRULED.

1. The Failure to Acknowledge Facts and Apply Proper Standard

Objection

The Court finds that the Magistrate Judge properly

assessed the TAC and considered it in its entirety. Even under de

novo review of the TAC, there is no error to be found in Magistrate

Judge Wicks’ summary of the facts or causes of action.

Furthermore, having carefully reviewed the TAC, the Dismissal

Motions, Plaintiff’s Opposition, the R&R, and the Objections

lodged thereto, it is readily apparent that the Magistrate Judge

applied the proper standard in assessing the TAC when ruling upon

the Dismissal Motions. Finding no clear error on this basis, this

objection is OVERRULED.

2. The Purported Omission of Counts Objection

To the extent the Magistrate Judge found Counts 1 and 2,

claims of false arrest, do not apply to Newcombe and Levy, this

Court agrees. It is not enough for Plaintiff to simply have stated

that his claims are made as to each and every defendant. Rather,

non-conclusory factual allegations must plausibly assert causes of

action. Magistrate Judge Wicks did not err in finding that, upon

the facts alleged in the TAC, it is implausible that Plaintiff’s

false arrest causes of action do not state claims against Newcombe

or Levy.9 Finding no clear error in this recommendation,

Plaintiff’s objection to same is OVERRULED.

3. The Lack of Functionality Analysis Objection

Plaintiff’s lack-of-functionality-analysis argument is

without merit. As stated above, it is clear to the Court that the

Magistrate Judge carefully considered the factual allegations

stated in the TAC when assessing the Dismissal Motions and making

his recommendations, which implicitly included his assessment of

functionality of the prosecutors’ conduct. Plaintiff merely

disagrees with the outcome of that analysis, i.e., that

prosecutorial immunity is warranted considering the functions

performed. Relatedly, Magistrate Judge Wicks’ application of the

relevant immunity law was proper. The Court finds no basis to

sustain this objection, especially in the absence of any clear

9 The Magistrate Judge did not explicitly address whether Counts

1 and 2 are viable causes of action against Spota or Sini. However,

given Plaintiff’s custom and/or policy allegations, supported by

the illustrative allegations of other similar criminal cases

wherein the convictions were overturned, those causes of action

currently remain as against Spota and Sini.

error. Hence, Plaintiff’s objection on the theory of failure to

conduct a functionality analysis is are OVERRULED.

4. Objection to Dismissal of the Equitable Relief Request

Plaintiff’s objection to the Magistrate Judge’s

recommendation regarding Plaintiff’s requested equitable relief is

no more than a regurgitation of the same argument raised in

opposition to the Dismissal Motions. Indeed, it is apparent that,

contrary to Plaintiff’s contention that the Magistrate Judge

erroneously rendered a decision akin to summary judgment in the

moving prosecutor-defendants’ favor on their equitable-relief-

based dismissal arguments, Magistrate Judge Wicks correctly

assessed said arguments under the appropriate dismissal paradigm.

Because the Court finds no clear error in this recommendation, it

is adopted over Plaintiff’s objection, which is OVERRULED.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

I. As to Magistrate Judge Wicks’ R&R, it is ADOPTED in part and

REJECTED in part, as delineated, below:

A. Regarding Recommendation No. 1: The Court (1) ADOPTS the

recommendation that Newcombe and Levy be granted

prosecutorial immunity as to Counts 3 through 21; and (2)

REJECTS the recommendation that Newcombe be denied

prosecutorial immunity regarding her alleged false statement

to the press;

B. Regarding Recommendation No. 2: The Court ADOPTS the

recommendation that Spota and Sini be granted prosecutorial

immunity as to Counts 3 through 21, except for supervisory

claims pursuant to Section 1983;

C. Regarding Recommendation No. 3: The Court ADOPTS the

recommendation that all claims against Newcombe, Levy, Spota,

and Sini in their official capacities be dismissed on

sovereign immunity grounds;

D. Regarding Recommendation No. 4: The Court ADOPTS the

recommendation that Spota be denied qualified immunity as to

the Count 21 supervisory claims without prejudice to renew

after discovery is completed;

E. Regarding Recommendation No. 5: The Court REJECTS the

recommendation that Newcombe be denied qualified immunity

regarding her alleged false statements to the press, finding

no viable claim supported by the alleged press statements;

F. Regarding Recommendation No. 6: The Court ADOPTS the

recommendation that Plaintiff’s equitable relief claims be

dismissed; and

G. Regarding Recommendation Addressing Leave to Amend: The

Court ADOPTS the recommendation that Plaintiff be denied

leave to amend, his already having had three opportunities to

do so; and

II. In conjunction with the partial adoption of the R&R, the

Dismissal Motions are GRANTED in part and DENIED in part,

such that:

A. The County Defendants’ Dismissal Motion (ECF No. 96) is

GRANTED in part and DENIED in part, with:

1. Counts 1 and 2 being dismissed against Newcombe and

Levy in their individual capacities because the TAC

fails to plausibly allege false arrest claims

against them;

2. Counts 3 through 21 being dismissed against

Newcombe and Levy in their individual capacities

because they are shielded by prosecutorial

immunity;

3. Counts 3 through 21, except as to Plaintiff’s

supervisory claims raised in Count 21, being

dismissed against Sini in his individual capacity

as Newcombe’s and Levy’s prosecutorial immunity

extends to Sini as to these counts;

4. Counts 1 through 21 being dismissed against

Newcombe, Levy, and Sini in their official

capacities by virtue of sovereign immunity; and

5. Plaintiff’s equitable relief claims being dismissed

against Newcombe, Levy, and Sini; and

B. Spota’s Dismissal Motion (ECF No. 97) is GRANTED in part

and DENIED in part, with:

1. Counts 3 through 21, except as to Plaintiff’s

supervisory claims raised in Count 21, being

dismissed against Spota in his individual capacity

as Newcombe’s prosecutorial immunity10 extends to

Spota as to these counts;

2. Counts 1 through 21 being dismissed against Spota

in his official capacity by virtue of sovereign

immunity; and

3. Plaintiff’s equitable relief claims being dismissed

against Spota.

IT IS FURTHER ORDERED this case is returned to Magistrate

Judge Wicks to preside over the discovery phase of this action.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: March 31, 2023

Central Islip, New York

10 Spota was no longer the Suffolk County District Attorney when

Levy was assigned to Plaintiff’s underlying state criminal case;

therefore, any prosecutorial immunity afforded Levy does not

extend to Spota.