Dawson v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------X

LOREN DAWSON,

MEMORANDUM AND ORDER

Plaintiff/Petitioner

22-CV-4784(KAM)(PK)

-against-

THE CITY OF NEW YORK, KINGS COUNTY

DISTRICT ATTORNEYS OFFICE and NATALIE

C. RIETHER, Individually, Assistant

District Attorney,

Defendants.

--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Loren Dawson (“Plaintiff”) commenced the instant

action pursuant to 42 U.S.C. § 1983 and § 1988, alleging that the

City of New York (the “City”), Kings County District Attorney’s

Office (“the District Attorney’s Office”), and Assistant District

Attorney Natalie C. Riether (together, “Defendants”) violated his

Fourth, Sixth, and Fourteenth Amendment rights during his criminal

trial in New York state court.1 (See ECF No. 16, Amended Complaint

(“Am. Compl.”) at 1.)

1 Plaintiff’s amended complaint asserts violations of his “First, Fourth, Fifth,

Eighth, and Fourteenth Amendment” rights. (ECF No. 16, at 1.) The amended

complaint, however, does not provide factual allegations in support of, nor

assert causes of action pursuant to, the First, Fifth, or Eighth Amendments.

(See id.). As detailed below, the Court construes Plaintiff’s amended complaint

as alleging violations of the Fourth, Sixth, and Fourteenth Amendments, and

Plaintiff’s First, Fifth, and Eighth Amendment claims are dismissed for failure

to state a claim.

Presently before the Court is Defendants’ motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). (See ECF

No. 21, Motion to Dismiss.) For the reasons set forth below,

Defendants’ motion is GRANTED.

BACKGROUND

For the purpose of deciding Defendants’ Rule 12(b)(6) motion

to dismiss, the Court accepts as true the factual allegations in

the complaint and draws all reasonable inferences in Plaintiff’s

favor. See Melendez v. City of New York, 16 F.4th 992, 1010 (2d

Cir. 2021). The Court may also consider “matters of which judicial

notice may be taken,” including judicial records, if relied upon

“not for the truth of the matters asserted in the other litigation,

but rather to establish the fact of such . . . filings.” Kramer

v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991) (“The

practice of taking judicial notice of public documents is not

new.”).

I. Factual Background

On May 5, 2017, Plaintiff was found guilty after a jury trial

of attempted first-degree assault, second-degree assault, and

fourth-degree criminal possession of a weapon, for an incident

that occurred outside of a Brooklyn restaurant on May 6, 2016.

(ECF No. 16, Am. Compl. at 2.) At trial, it was established that

“the defendant swung a knife at the complainant, causing a number

of lacerations, including a 12-centimeter laceration on the

complainant’s neck.” People v. Dawson, 178 A.D.3d 719, 719 (2d

Dept 2019). On December 4, 2019, the New York Appellate Division,

Second Department, vacated Plaintiff’s conviction, finding that

“the prosecutor repeatedly engaged in improper conduct” such that

Plaintiff had been “deprived [of his right to] a fair trial.” Id.

at 720, 721.

In his amended complaint, Plaintiff alleges that Defendant

Riether engaged in significant misconduct during the trial. (ECF

No. 16, Am. Compl. at 3.) This included allegedly calling

Plaintiff’s self-defense claim “ridiculous,” “insulting,” and

“ludicrous,” and informing the jury that Plaintiff would “tell

[them] anything” in order to “sell [them]” a story. (Id. at 2.)

Plaintiff also alleges that Defendant Riether “impinged on

[Plaintiff’s] right to remain silent” by arguing to the jury that

Plaintiff could not have acted in self-defense during the

altercation because he did not call 911. (Id. at 3.)

Additionally, Plaintiff alleges that Riether referred to Plaintiff

as a “punk” and “hothead” that “could not take a beating.” (Id.)

Plaintiff also alleges that Riether bolstered the credibility of

state witnesses and “interjected her own sense of moral

retribution” about Plaintiff. (Id.) Furthermore, Plaintiff

maintains that Riether improperly instructed the jury on erroneous

use of force standards and failed to inform jurors that they should

not make decisions based on sympathy. (Id.)

Plaintiff further alleges that Defendant Riether’s acts were

carried out “pursuant to policies and practices of the City” and

“were engaged in with the full knowledge, consent, and under the

supervisory authority of the [District Attorney’s Office].” (Id.

at 4-5.) Plaintiff contends that the City and the District

Attorney’s Office consciously designed trainings, policies, and

practices that encouraged misconduct from prosecutors and denied

defendants a fair trial.2 (Id. at 3.) Plaintiff alleges that

Riether’s conduct was a result of the District Attorney’s Office’s

“de facto policies” that encouraged “engaging in malicious

prosecutions and the [violation of] constitutional rights of

defendants.” (Id. at 10.) He alleges that the policies encouraged

the following violations: (a) “knowingly presenting false and/or

prejudicial testimony and arguments at criminal proceedings;” (b)

“knowingly and intentionally misleading juries at criminal

proceedings;” and (c) “interfering with the constitutional right

to a fair trial.” (Id.) Moreover, Plaintiff alleges that the

City had knowledge of these policies through “numerous credible

allegations, many substantiated by judicial decisions” and that

the District Attorney’s Office was “on notice” that the City could

be “held civilly liable for its failure to adequately train,

2 These statements present legal conclusions, rather than factual statements;

the Court need not accept legal conclusions as true for purposes of considering

whether a complaint states a claim. The Court sets forth these statements

herein to provide full context.

supervise, or discipline prosecutors regarding their

constitutional requirements and related due process obligations.”

(Id. at 13-14.) Plaintiff alleges that, despite this knowledge,

the City did nothing to correct the policies. (Id. at 14.)

Based on the above factual allegations, Plaintiff asserts a

Fourth Amendment malicious prosecution claim, a Fourteenth

Amendment due process claim, a Sixth Amendment right to a fair

trial claim, a failure to intervene claim “as guaranteed by the

Fourth and Fourteenth Amendments,” supervisory liability, and

municipal liability.3 (Id. at 6-10.)

II. Procedural History

Plaintiff filed the original complaint on August 15, 2022,

pursuant to § 1983 and § 1988. (ECF No. 1, Complaint, at 1.) On

September 7, 2022, Defendants requested a pre motion conference

regarding their anticipated motion to dismiss. (ECF No. 12, Motion

for Pre-Motion Conference, at 1.)

During the pre-motion conference this Court granted Plaintiff

leave to amend his complaint. (09/16/2022 Minute Entry.)

Plaintiff filed the amended complaint on October 4, 2022. (ECF No.

16, Am. Compl.) In the operative amended complaint, Plaintiff

3 The amended complaint states that Plaintiff’s second cause of action is for

“deprivation of liberty without due process of law and denial of a fair trial

by committing prosecutorial misconduct.” (ECF No. 16, Am. Compl. at 7-8.) The

Court construes these statements as asserting violations under the Fourth and

Sixth Amendments.

requests $10,000,000 in compensatory and punitive damages and

attorney’s fees. (Id. at 1, 16.)

Defendants moved to dismiss Plaintiff’s amended complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6), and the

motion to dismiss was fully briefed on February 21, 2023. (See

Def. Br.; Pl. Br.; ECF Nos. 21, Motion to Dismiss; 26, Reply

Memorandum of Law in Support of Motion to Dismiss (“Reply Br.”).)

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6),

“a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Id. Although

“detailed factual allegations” are not required, “[a] pleading

that offers labels and conclusions or a formulaic recitation of

the elements of a cause of action will not do.” Id. (internal

quotation marks and citation omitted).

DISCUSSION

I. Claims Against the District Attorney’s Office

The District Attorney’s Office is not an entity capable of

being sued. See, e.g., Michels v. Greenwood Lake Police Dep’t,

387 F.Supp.2d 361, 367 (S.D.N.Y. 2005) (finding district

attorney's office to be non-suable entity); Crooks v. City of New

York, 110 N.Y.S.3d 898 (N.Y. Sup. Ct. 2018), aff’d as modified on

other grounds, 136 N.Y.S.3d 158 (2d Dep’t 2020) (same). The

capacity of an entity such as the District Attorney’s Office to be

sued is determined by New York law. Fed. R. Civ. P. 17(b). Under

New York law, “the office of the district attorney is not a legal

entity distinct from the district attorney himself.” Bryan v. New

York, No. 14-CV-8305 (NSR), 2015 WL 4272054, at *3 (S.D.N.Y. July

13, 2015) (quoting Sash v. City of New York, No. 05-cv-1544 (DAB)

(JCF), 2006 WL 2474874, at *4 (S.D.N.Y. Aug. 11, 2006)). Moreover,

any claim against the District Attorney’s Office would likely be

barred by the Eleventh Amendment, because New York district

attorneys “represent[] the State not the county.” Baez v.

Hennessy, 853 F.2d 73, 77 (2d Cir. 1988); see also Walker v. City

of New York, 205 F.3d 1327 (2d Cir. 2000) (affirming district court

dismissal of claims against district attorney’s office on Eleventh

Amendment grounds).4 Accordingly, Plaintiff’s claims against the

District Attorney’s Office are dismissed.

4 The Second Circuit has noted in a summary order that the Eleventh Amendment

does not apply to bar lawsuits against a district attorney in his or her official

capacity where the suit centers “on the administration of the district

attorney’s office—that is, on the ‘office policy’” that the district attorney

sets. D’Alessandro v. City of New York, 713 F. App'x 1, 8 (2d Cir. 2017)

(summary order) (citation omitted). Here, however, Plaintiff did not file a

lawsuit against the Kings County District Attorney as a policymaker. Plaintiff

alleges claims against Defendant Riether, an assistant district attorney, in

her capacity as a prosecutor, from which she is immune, as the Court explains

in detail below. Plaintiff also alleges claims against the District Attorney’s

II. Prosecutorial Immunity

“Absolute immunity bars a civil suit against a prosecutor for

advocatory conduct that is ‘intimately associated with the

judicial phase of the criminal process.’” Giraldo v. Kessler, 694

F.3d 161, 165 (2d Cir. 2012). “[D]istrict courts are encouraged

to determine the availability of an absolute immunity defense at

the earliest appropriate stage, and preferably before discovery.”

Deronette v. City of New York, No. 05-CV-5275 (SJ), 2007 WL 951925,

at *4 (E.D.N.Y. Mar. 27, 2007). This is because “an absolute

immunity defeats a suit at the outset, so long as the official’s

actions were within the scope of the immunity.” Imbler v.

Pachtman, 424 U.S. 409, 419 n. 13 (1976) (internal quotation marks

and alterations omitted).

In determining whether a prosecutor has absolute immunity,

courts apply a “functional approach,” which examines the function

being performed by a defendant-prosecutor rather than his or her

position. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Not

all actions taken by a prosecutor are shielded by absolute

immunity, and where a prosecutor “functions outside his or her

role as an advocate for the [government], the shield of immunity

is absent.” Hill v. City of N.Y., 45 F.3d 653, 661 (2d Cir. 1995).

Nevertheless, the immunity is generally broad and extends to any

Office, but as noted above, under New York law, “the office of the district

attorney is not a legal entity distinct from the district attorney himself,”

and thus is not an entity capable of being sued. Bryan, 2015 WL 4272054.

“acts undertaken by a prosecutor in preparing for the initiation

of judicial proceedings or for trial, and which occur in the course

of [her] role as an advocate for the [government].” Smith v.

Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley, 509

U.S. 259 at 273); see Giraldo, 694 F.3d at 165 (finding that

prosecutorial immunity attached to “conduct in court”); see also

D’Alessandro v. City of New York, 713 F. App’x 1, 6 (2d Cir. 2017)

(summary order) (citation omitted) (finding that the prosecutor’s

alleged actions—such as manufacturing evidence and delaying

production of the grand jury minutes—were done in preparation of

trial and therefore protected by absolute immunity); see also Peay

v. Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006) (finding that

Plaintiff’s claims against prosecutors, “including fabricating

evidence used at trial, withholding exculpatory evidence,

suborning perjury, and attempting to intimidate him into accepting

a guilty plea,” were foreclosed by absolute prosecutorial

immunity).

Indeed, absolute immunity applies to protect a prosecutor

even in the face of allegations of malicious or corrupt intent, so

long as the prosecutor acted within a covered function. Dory v.

Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (holding that prosecutorial

immunity is broadly defined, covering “virtually all acts,

regardless of motivation, associated with [the prosecutor’s]

function as an advocate”); see also Burns v. Reed, 500 U.S. 478,

487-88 (1991) (finding that prosecutor’s act of presenting

evidence was protected by absolute immunity and allegations that

the prosecutor had “deliberately misled the court” were

irrelevant).

Here, all of Plaintiff’s allegations against Defendant

Riether concern Riether’s presentation of evidence before the jury

in Plaintiff’s criminal trial. (See Am. Compl. at 2–3.) Plaintiff

alleges that he was denied his right to a fair trial because

Riether “knowingly made false, defamatory and inflammatory

statements and intentionally mislead[sic] the [j]ury.” (Id. at

4.) Although these alleged actions — if true — are very

concerning, it is well-established that presenting evidence to a

jury is within the prosecutor’s role as an advocate for the

government. Anilao v. Spota, 774 F. Supp. 2d 457, 479 (E.D.N.Y

2011)(finding that prosecutors acted in their role as advocates

even in the alleged act of presenting false evidence); Hill, 45

F.3d at 661 (“[C]onspiring to present falsified evidence to, and

to withhold exculpatory evidence from, a grand jury . . . are

clearly protected by the doctrine of absolute immunity as all are

part of his function as an advocate.”). Because Riether was acting

within her role as a prosecutor, absolute immunity applies to

shield her from Plaintiff’s claims.

Plaintiff contends that Riether acted with “malice” and

“knowingly” and “intentionally” engaged in misconduct. (ECF No.

16, Am. Compl. at 4.) But because this Court finds that Riether

was acting in the role of an advocate, her subjective motivations

are legally irrelevant. Tapp v. Champagne, 164 F. App’x 106, 108

(2d Cir. 2006) (summary order) (“Although [plaintiff] asserts that

the charged prosecutors . . . conspired to prosecute him

maliciously . . . his pleadings, even when viewed in the light

most favorable to him, are insufficient to pierce the absolute

immunity that shields a prosecutor’s decision to initiate and

pursue criminal charges.” (citing Bernard, 356 F.3d at 503)).

“[A]s long as a prosecutor acts with colorable authority, absolute

immunity shields [her] performance of advocative functions

regardless of motivation.” Bernard, 356 F.3d at 498.

Accordingly, the Court grants Defendants’ motion to dismiss

as to Plaintiff’s claims against Defendant Riether.

III. Monell Liability

To sustain a claim for relief under Section 1983 against a

municipal defendant, a plaintiff must demonstrate: “(1) an

official policy or custom that (2) causes the plaintiff to be

subjected to (3) a denial of a constitutional right.”5 Lucente v.

Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020); see also Monell

5 Plaintiffs need not bring a successful suit against an individual actor for a

municipal defendant to be liable under Monell. Askins, 727 F.3d at 253 (“It

does not follow . . . that the plaintiff must obtain a judgment against the

individual tortfeasors in order to establish the liability of the

municipality.”). Thus, the Court’s finding of absolute immunity for Riether

does not impact the determination of liability for the City.

v. Department of Social Services, 436 U.S. 658, 690-91 (1978);

Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.

2006) (“Monell . . . extends liability to a municipal organization

where that organization’s failure to train, or the policies or

customs that it has sanctioned, led to an independent

constitutional violation.”).

Plaintiff alleges a series of broad and conclusory statements

devoid of supporting facts in his claim for municipal liability.

(See generally ECF No. 16, Am. Compl.) Plaintiff alleges generally

that the City knew that the District Attorney’s Office had “de

facto policies and/or well-settled and widespread customs and

practices . . . to prosecute persons through inflammatory

statements, intentionally bolstering the credibility of State’s

witnesses, intentionally misleading the jury, improperly invoking

the jury’s sympathies, and to substantially interfere with the

accused’s right to a fair trial by impermissible means and other

abuses of authority.” (Id. at 5.) Plaintiff, however, alleges

the existence of these de facto policies without citing to any

supporting materials, such as “procedural manuals or training

guides,” or pointing to “particular aspects” of the City’s

“training or supervision” that would support this allegation of de

facto policies. Triano v. Town of Harrison, NY, 895 F. Supp. 2d

526, 540 (S.D.N.Y. 2012). Because Plaintiff does not support his

allegations with any specific facts, instances, statistics, or

other factual allegations connecting the alleged policy or custom

and the alleged deprivation of Plaintiff’s rights, these

allegations do not rise above the speculative level and do not

state a plausible claim for relief. Operating Local 649 Annuity

Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d

Cir. 2010) (quoting Twombly, 550 U.S. at 555) (finding that a

complaint must set forth “a plausible set of facts sufficient ‘to

raise a right to relief above the speculative level.’”).

In his opposition to the instant motion, Plaintiff argues

that his allegations establish four avenues of municipal

liability: “1) a policy existed within the [District Attorney’s

Office] via a deliberate indifference to repeated constitutional

violations; (2) individuals in that office such as Defendant

Riether were responsible for causing constitutional violations

such as those suffered by the plaintiff; (3) the policy was

widespread as it has occurred in many other prosecutions by the

DA’s office, while never being punished; and (4) subordinates were

trained to commit these acts and do whatever necessary to obtain

convictions as evident by the numerous occurrences and lack of

instances in which those committing these violations faced any

discipline.” (ECF No. 25, Plaintiff’s Affirmation in Opposition

to Dismiss (“Pl. Opp.”) at 4-5.)

As discussed above, however, none of Plaintiff’s allegations

in the complaint specify a particular policy that encouraged these

alleged violations, a policymaker who authorized them, specific

examples of the “repeated constitutional violations,” training

practices or materials that furthered these alleged policies, or

specific instances where the alleged conduct occurred without

discipline. (Id.; see generally ECF No. 16, Am. Compl.) The

amended complaint’s conclusory allegations that the District

Attorney’s Office “encourage[d] malicious prosecutions” and

“[took] no remedial action in cases where such wrongdoing was

discovered,” (ECF No. 16, Am. Compl. at 11), do not satisfy

Plaintiff’s burden to state a plausible municipal liability claim

because they are insufficient to allege “an affirmative link

between the municipality’s policy and the particular

constitutional violation alleged.” City of Oklahoma City v.

Tuttle, 471 U.S. 808, 809 (1985).

Alternatively, Plaintiff contends that a Monell claim is also

possible under the theory of “deliberative indifference to

constitutional violations of subordinates.” (ECF No. 25, Pl. Opp.

at 5); see Connick v. Thompson, 563 U.S. 51, 61 (2011)

(“‘[D]eliberate indifference’ is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” (citation omitted)). To prove

“deliberate indifference,” a plaintiff must show that there was an

“obvious need” for more or better supervision to protect against

constitutional violations. Vann, 72 F.3d at 1049. This “obvious

need” can be demonstrated “through proof of repeated complaints of

civil rights violations,” and through a lack of meaningful

investigation into the complaints. Id.; see, e.g., Fiacco v. City

of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986) (“[W]hether or not

the claims had validity, the very assertion of a number of such

claims put the City on notice that there was a possibility that

its police officers had used excessive force.”)

To establish deliberate indifference, Plaintiff argues that

the current Kings County District Attorney, Eric Gonzalez,

recently asked state courts to overturn 378 convictions, due to

“improper conduct of the police department and the [District

Attorney’s Office].” (ECF No. 25, Pl. Opp. at 6.) Plaintiff also

cites six cases in which convictions were reversed, “specifically

for [the District Attorney’s Office’s] attorneys’ misconduct in

their summation.” Id. Plaintiff first raises these cases in his

opposition to the motion to dismiss, however, and Plaintiff makes

no mention of the names or case numbers of these or other cases in

the amended complaint.6 (See ECF No. 16, Am. Compl. at 12.)

6 Additionally, although Plaintiff provides six cases of “attorney misconduct”

and “malicious prosecution,” he does not provide any factual context for the

cases to support his claims. (See ECF No. 25, Pl. Opp. at 6-7.) Much of the

alleged conduct in the provided cases is distinct from the alleged actions of

Defendant Riether. See People v. Casiano, 148 A.D.3d 1044, 1044 (2d Dep’t 2017)

(finding that the evidence was legally insufficient to establish defendant's

guilt); People v. Soto, 72 Misc. 3d 1153 (N.Y. Crim. Ct. 2021) (finding that

prosecution had failed to comply with the CPL §§245.20(1)(p), 245.20(1)(k)(iv),

and 245.50 discovery requirements); People v. Rowley, 127 A.D.3d 884, 885 (2d

Dep’t 2015) (finding that the prosecutor not only made improper remarks but

also “improperly functioned as an unsworn witness” when she cross-examined the

defendant); People v. Cotton, 242 A.D.2d 638, 638 (2d Dep’t 1997) (finding that

Therefore, the Court will not consider these cases as part of

Plaintiff’s factual allegations. See O’Brien v. National Property

Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y 1989) (“[I]t is

axiomatic that the Complaint cannot be amended by the briefs in

opposition to a motion to dismiss.”) Accordingly, Plaintiff has

failed to plausibly allege the City’s “deliberate indifference” to

constitutional violations by pleading sufficient facts to

establish Monell liability.

Even accepting as true all factual allegations in the amended

complaint and drawing all reasonable inferences in favor of

Plaintiff, the Court finds that Plaintiff cannot sustain a

municipal liability claim against the City. Accordingly,

Plaintiff’s claims against the City are dismissed.

CONCLUSION

For the forgoing reasons, Defendants’ Rule 12(b) (6) motion to

dismiss is granted. The Clerk of Court is respectfully directed to

enter judgment in favor of Defendants and close this case.

SO ORDERED

Dated: August 3, 2023

Brooklyn, New York

ba ee

“Vy □□ aw * we

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

a new trial was needed because the prosecutor “advanced a theory premised on a

fact that he knew to be false.”).

16