Hillary v. St. Lawrence County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

ORAL NICHOLAS HILLARY,

8:17-cv-659

Plaintiff, (GLS/DJS)

v.

MARY E. RAIN et al.,

Defendants.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

Barket, Epstein & Kearon Aldea & ALEXANDER ROBERT KLEIN,

LoTurco, LLP ESQ.

666 Old Country Road, Suite 700 BRUCE A. BARKET, ESQ.

Garden City, NY 11530 DONNA ALDEA, ESQ.

Office of Mani C. Tafari MANI C. TAFARI, ESQ.

445 Hollow Road, Suite 25

Melville, NY 11747

FOR THE DEFENDANTS:

Mary E. Rain

Dreyer Boyajian LLP JAMES R. PELUSO, JR., ESQ.

75 Columbia Street JOSHUA R. FRIEDMAN, ESQ.

Albany, NY 12210 WILLIAM J. DREYER, ESQ.

John E. Jones

Hancock Estabrook, LLP JOHN L. MURAD, JR., ESQ.

1800 AXA Tower I CHRISTOPHER HALL, ESQ.

100 Madison Street

Syracuse, NY 13202

Village of Potsdam, Village of

Potsdam Police Department,

& Mark Murray

Johnson Laws, LLC GREGG T. JOHNSON, ESQ.

646 Plank Road, Suite 205 APRIL J. LAWS, ESQ.

Clifton Park, NY 12065 COREY A. RUGGIERO, ESQ.

LORAINE CLARE JELINEK, ESQ.

Unidentified Jane/John Doe

Village Of Potsdam Employees

#31-40 NO APPEARANCES

Onondaga County &

William Fitzpatrick

Onondaga County Department JOHN E. HEISLER, JR., ESQ.

of Law

John H. Mulroy Civic Center

421 Montgomery Street, 10th Floor

Syracuse, NY 13202

Unidentified Jane/John Doe #41-50

New York State Police Employees NO APPEARANCES

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Oral Nicholas Hillary brings this action against defendants

Mary E. Rain, John E. Jones, Village of Potsdam, Village of Potsdam

Police Department, Mark Murray, Onondaga County, William Fitzpatrick,

John and Jane Doe defendants, and other defendants that have since

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been dismissed, alleging violations of his First, Fourth, and Fourteenth

Amendment rights pursuant to New York State law and 42 U.S.C. § 1983.

(Compl., Dkt. No. 1.) Pending are Rain’s motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6) and (c), (Dkt. No. 105), and Jones’ motion for

judgment on the pleadings, (Dkt. No. 133). For the following reasons, both

motions are granted.

II. Background

The court assumes the parties’ familiarity with the underlying facts,

which are stated in full in the court’s February 28, 2019

Memorandum-Decision and Order. (Dkt. No. 83 at 4-12.)

III. Standards of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) and Rule 12(c),

which is identical to that of a Rule 12(b)(6) motion, see Patel v.

Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2nd Cir. 2001)

(internal citations omitted), is well settled and will not be repeated here.

For a full discussion of the standard, the court refers the parties to its prior

decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218

(N.D.N.Y. 2010).

IV. Discussion

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A. Rain’s Motion

Rain moves to dismiss Hillary’s complaint in its entirety as against

her. (Dkt. No. 105, Attach. 1.) In response, Hillary opposes Rain’s motion

only as to his third and sixth causes of action against Rain: a Section 1983

conspiracy claim, and a Section 1983 violation of the Equal Protection

Clause of the Fourteenth Amendment. (Dkt. No. 110 at 5-14.)

Accordingly, in light of Hillary’s concession, the following claims are

dismissed as against Rain: false arrest; malicious prosecution; fabrication

of evidence; failure to disclose exculpatory evidence; retaliatory

prosecution in violation of the First Amendment; due process and

stigma-plus defamation; municipal and corporate liability; supervisor

liability; negligent hiring, training, supervision, and retention; false

imprisonment/false arrest; and abuse of process. (Compl.

¶¶ 174-79, 180-94, 209-15, 216-21, 228-33, 234-40, 241-49, 250-55,

256-65, 266-71, 272-80); see Johnson v. Lew, No. 1:13-CV-1072, 2015

WL 4496363, at *5 & n.6 (N.D.N.Y. July 23, 2015).

1. Prosecutorial Immunity

Rain contends that she is entitled to absolute prosecutorial immunity

as to Hillary’s claims because the conduct that serves as a basis for these

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claims relates to actions taken within the scope of her prosecutorial

function as St. Lawrence County District Attorney. (Dkt. No. 105, Attach. 1

at 4.) In response, Hillary argues that “Rain’s joinder in . . . [the] plot to

target Hillary . . . was not pure prosecutorial advocacy,” and that, because

Rain began to conspire to target Hillary before probable cause had been

established, absolutely immunity is unavailable. (Dkt. No. 110 at 8-9.) The

court agrees with Rain.

“Prosecutorial immunity from § 1983 liability is broadly defined,

covering virtually all acts, regardless of motivation, associated with the

prosecutor’s function as an advocate.” Giraldo v. Kessler, 694 F.3d 161,

165 (2d Cir. 2012) (internal quotation marks and citation omitted). “[A]

prosecutor’s functions preliminary to the initiation of proceedings include

whether to present a case to a grand jury, whether to file an information,

whether and when to prosecute, whether to dismiss an indictment against

particular defendants, which witnesses to call, and what other evidence to

present.” Id. (internal quotation marks and citation omitted). However,

absolute immunity only protects conduct that is “intimately associated with

the judicial process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and

does not extend to the prosecutor’s role as an investigator, see Hill v. City

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of New York, 45 F.3d 653, 661 (2d Cir. 1995).

Rain’s alleged conduct clearly falls under the category of conduct

protected by prosecutorial immunity. See Baez v. Hennessy, 853 F.2d 73,

77 (2d Cir. 1988) (“It is well established in New York that the district

attorney, and the district attorney alone, should decide when and in what

manner to prosecute a suspected offender.” (emphasis added) (citations

omitted)). For instance, Hillary alleges that Rain “threatened one

of . . . Hillary’s alibi witnesses with obstruction and the other with a grand

jury subpoena,” (Compl. ¶ 88); Rain “charged . . . Hillary with criminal

contempt based upon [his] visit to his local bank,” (id. ¶ 110); and Rain and

Onondaga County District Attorney Fitzpatrick “were aware that there was

no statistical support for a match between the fingernail scrapings from the

left hand of the victim Garrett Phillips . . . and . . . Hillary,” (id. ¶ 121

(internal quotation marks omitted)).

Rain’s decisions as to the manner in which she prosecuted Hillary,

including seeking assistance from Fitzpatrick, were “simply

implementations of the prosecutorial decision” to prosecute Hillary for a

state crime. Cf. Eisenberg v. Dist. Attorney of Cty. of King, No. CV-93-

1647, 1996 WL 406542, at *7 (E.D.N.Y. July 16, 1996); see Baez, 853

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F.2d at 77 (“A county has no right to establish a policy concerning how [the

District Attorney] should prosecute violations of State penal laws.”

(citations omitted)). Thus, because Hillary’s claims against Rain are

related to her prosecution of Hillary, he has failed to state a claim against

Rain.1 See Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013)

(holding that prosecutorial functions immune from suit “include deciding

whether to bring charges and presenting a case to a grand jury or a court,

along with the tasks generally considered adjunct to those functions, such

as witness preparation”); Bruno v. City of New York, No. 17 Civ. 7552,

2019 WL 690340, at *11 n.9 (S.D.N.Y. Feb. 19, 2019) (“[T]he alleged

falsification of evidence and the coercion of witnesses . . . have been held

to be prosecutorial activities for which absolute immunity applies” (internal

quotation marks and citations omitted)); Watson v. Grady, No. 09-CV-

3055, 2010 WL 3835047, at *16 (S.D.N.Y. Sept. 30, 2010) (“[Prosecutor

1 Although not specifically alleged in the complaint, to the extent that

Hillary argues that Rain withheld Brady material for over a year, including

a witness who “identified another man, John Jones, of entering the

apartment with Garrett at the time the boy was killed,” (Dkt. No. 110 at

12), such argument is unavailing, because such conduct is protected by

prosecutorial immunity. See Hill v. City of New York, 45 F.3d 653, 661-62

(2d Cir. 1995) (noting prosecutorial immunity extends to conduct before a

grand jury, initiating a prosecution and determining which offense to

charge, and failure to disclose Brady material).

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defendants] are protected by absolute immunity for their professional

evaluation of the evidence and subsequent decision to indict Plaintiff on

various charges.” (citations omitted)).

To the extent Hillary argues that “Rain’s joinder in . . . [the] plot to

target Hillary . . . was not pure prosecutorial advocacy,” and that the “steps

that Rain took as prosecutor corroborate the conspiracy she entered into

with others,” (Dkt. No. 110 at 9, 12), such argument fails. See Pinaud v.

Cty. of Suffolk, 52 F.3d 1139, 1148 (2d Cir. 1995) (“As this Court and

other[] circuits have repeatedly held, since absolute immunity covers

virtually all acts, regardless of motivation, associated with [the

prosecutor’s] function as an advocate, when the underlying activity at issue

is covered by absolute immunity, the plaintiff derives no benefit from

alleging a conspiracy.” (internal quotation marks and citations omitted));

Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (extending absolute

prosecutorial immunity to conspiracies to present false evidence at trial

and before the grand jury).

Accordingly, Rain is entitled to absolute prosecutorial immunity as to

Hillary’s claims, and her motion to dismiss is granted on that basis.

2. Conspiracy

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In any event, Hillary has failed to allege facts giving rise to a

conspiracy.

To survive a motion to dismiss, a conspiracy claim

under 42 U.S.C. 1983 must allege facts plausibly

suggesting that (1) an agreement existed between

two or more state actors to act in concert to inflict an

unconstitutional injury on plaintiff, and (2) an overt act

that was committed in furtherance of that goal.

Vague and conclusory allegations that defendants

have engaged in a conspiracy must be dismissed.

Vega v. Artus, 610 F. Supp. 2d 185, 202-03 (N.D.N.Y. 2009) (citations

omitted).

As argued by Rain, (Dkt. No. 105, Attach. 1 at 6-7), the complaint

fails to identify the existence of any agreement between unidentified

conspirators; it is vague as to Rain’s purported participation in the alleged

conspiracy; it fails to specifically allege what actions Rain allegedly took in

furtherance of a conspiracy; and it fails to specifically identify the alleged

conspirators, (see generally Compl.). Instead, Hillary makes the following

conclusory assertions: “Rain, along with the [other defendants] all worked

together, with the same goal and the same blind malice, to bring about an

indictment,” and “prosecute [Hillary],” “for the purpose of depriving

[him] . . . of equal protection of the laws,” (Compl. ¶¶ 204-06); local law

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enforcement officers and officials “encouraged” Rain to take former St.

Lawrence County District Attorney Nicole M. Duve’s job, (id. ¶ 61); Rain

ran a “vicious” campaign, and was “actively pursuing an arrest in Garrett

Phillips’ case” prior to taking her position in the District Attorney’s Office,

(id. ¶¶ 65, 67-68); and “[w]hen [Rain] announced an indictment in the case

within six months of winning her election, she gave thanks to ‘the fabulous

job done by’ . . . local law enforcement . . . who had ‘encouraged her to run

for the job,’” (id. ¶ 68).

Such allegations are not enough to support a plausible conspiracy

claim involving Rain. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325

(2d Cir. 2002) (“[C]omplaints containing only conclusory, vague, or general

allegations that the defendants have engaged in a conspiracy to deprive

the plaintiff of his constitutional rights are properly dismissed; diffuse and

expansive allegations are insufficient, unless amplified by specific

instances of misconduct.” (citation omitted)); Vega v. Artus, 610 F. Supp.

2d 185, 202-03 (N.D.N.Y. 2009) (“Vague and conclusory allegations that

defendants have engaged in a conspiracy must be dismissed.” (citations

omitted)).

Accordingly, Rain’s motion to dismiss Hillary’s conspiracy claim is

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granted, and the claim is dismissed.

3. Equal Protection

Rain contends that Hillary’s equal protection claim should be

dismissed, because the claim is directed only at the State of New York, the

Village of Potsdam, the County of St. Lawrence and/or the County of

Onondaga, and, in any event, the complaint fails “to allege any unequal

treatment by [Rain] other than the decision to charge and prosecute

[Hillary]—prosecutorial functions for which she is entitled to absolute

immunity.” (Dkt. No. 105, Attach. 1 at 8-9.) In response, Hillary argues

that, although this claim “certainly refers to the institutional

defendants, . . . when it comes to the reach of the overall claim, [the

complaint] states broadly that the actions or inactions of ‘the [d]efendants’

were at least partially inspired by the ‘illegitimate consideration of [Hillary’s]

race,” and, “[t]he fact that other paragraphs refer to certain specific

defendants, like institutional defendants, only confirms that the more

broadly worded ‘the [d]efendants’ applies to everyone, including Rain.”

(Dkt. No. 110 at 13.)

The court is skeptical that Hillary has asserted an equal protection

claim against Rain. But, even if he has, as explained above, the decision

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to prosecute Hillary is a prosecutorial function for which Rain is afforded

prosecutorial immunity.

Accordingly, Rain’s motion to dismiss Hillary’s equal protection claim

is granted, and the claim is dismissed.

B. Jones’ Motion

Jones moves to dismiss Hillary’s complaint as to all claims asserted

against him. (Dkt. No. 133, Attach. 3.) In response, Hillary opposes

Jones’ motion only as to the third and sixth causes of action against Jones:

a Section 1983 conspiracy claim, and a Section 1983 violation of the Equal

Protection Clause of the Fourteenth Amendment. (Dkt. No. 143 at 4-9.)

Hillary does not oppose the remainder of Jones’ motion with respect to his

other causes of action, (id. at 9), and, accordingly, the following claims

against Jones are dismissed as conceded by Hillary: false arrest; malicious

prosecution; fabrication of evidence; failure to disclose exculpatory

evidence; retaliatory prosecution in violation of the First Amendment; due

process and stigma-plus defamation; municipal and corporate liability;

supervisor liability; negligent hiring, training, supervision, and retention;

false imprisonment/false arrest; and abuse of process. (Compl.

¶¶ 174-79, 180-94, 209-15, 216-21, 228-33, 234-40, 241-49, 250-55,

12

256-65, 266-71, 272-80); see Johnson, 2015 WL 4496363, at *5 & n.6.

1. State Action under 42 U.S.C. § 1983

There appears to be confusion as to whether Hillary’s claims are

brought against Jones in his capacity as a St. Lawrence County deputy

sheriff, or as a private party. However, a review of the complaint reveals

that the fact that Jones is a St. Lawrence County deputy sheriff is merely

coincidental with his involvement in the case, which is his relationship to

Garrett Phillip’s mother, and his interaction with the Village of Potsdam

Police Department, the agency leading the investigation into Phillips’

death.2 (See, e.g., id. ¶¶ 49, 53-56). Accordingly, Jones is not amenable

to suit pursuant to Section 1983 unless he acted under color of state law to

deprive Hillary of his constitutional rights. See Ciambriello, 292 F.3d

at 323. As explained below, Hillary’s conclusory allegations are insufficient

2 Even if the court found that, as a factual matter, Hillary adequately

alleged that Jones is a state actor, his claims would fail. For instance, if

Hillary properly asserted claims against Jones in his official capacity, such

claims would be dismissed as redundant of the claims brought against St.

Lawrence County. See Ratafia v. Cty. of Columbia, No. 1:13-CV-174,

2013 WL 5423871, at *7 (N.D.N.Y. Sept. 26, 2013). And, if Hillary

properly asserted claims against Jones in his individual capacity—suits

which “seek to impose personal liability upon a government official for

actions he takes under color of state law,” see id. at *8—such claims

would be dismissed because, as explained herein, Hillary does not

adequately allege that Jones acted under color of law.

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to state a claim of state action by Jones.

“In order to state a claim under § 1983, a plaintiff must allege that he

was injured by either a state actor or a private party acting under color of

state law.” Id. at 323 (citation omitted). “Typically, state employment is

sufficient to render a person a state actor.” Sherman v. City of New York,

No. 18-cv-5359, 2019 WL 2164081, at *5 (E.D.N.Y. May 16, 2019) (citation

omitted). “However, a state employee who pursues purely private motives

and whose interaction with the victim is unconnected with his execution of

official duties does not act under color of law.” Id. (internal quotation

marks and citation omitted). In order to prove a Section 1983 conspiracy

claim, a plaintiff must allege: “(1) an agreement between a state actor and

a private party; (2) to act in concert to inflict an unconstitutional injury; and

(3) an overt act done in furtherance of that goal causing damages.” Id. at

324-25 (citation omitted). A plaintiff’s allegations must be “amplified by

specific instances of misconduct.” Id. at 325 (citation omitted). “[M]ere[]

conclusory allegation[s] that a private entity [or individual] acted in concert

with a state actor does not suffice to state a [Section] 1983 claim against

the private entity.” Id. at 324. Rather, a plaintiff must show “a sufficiently

close nexus between the [s]tate and the challenged action of the [private]

14

entity [or individual] so that the action of the latter may be fairly treated as

that of the [s]tate itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351

(1974).

Here, Hillary’s factual allegations in support of his claims against

Jones fail to adequately plead state action on the part of Jones. For

instance, Hillary alleges that Jones “steered the investigation by setting

before [the Village of Potsdam Police Department] warrantless,

prejudicial[,] and unlawful allegations which all of . . . [d]efendants promptly

pursued,” (Compl. ¶ 73), and that “Jones actively participated in

targeting . . . Hillary,” (id. ¶ 52). Such vague and conclusory allegations do

not suffice. See Ciambriello, 292 F.3d at 325.

Hillary also alleges that Jones “went to the police command where

the incident took place and gave the [s]ergeant a key to Tandy Cyrus’s

apartment to compare w[ith] keys found during [the] search of Hillary’s

residence and office,” (Compl. ¶ 53 (internal quotation marks omitted));

“Jones [was] listed as the source informing the police of a witness who

remembers . . . Hillary getting a key made at his store,” (id. ¶ 54); and,

“Jones called Chief of Police Tischler and as a result of that call, the Chief

sent an officer . . . to Hillary’s apartment to conduct an investigation,” (id.

15

¶ 55). This conduct does not constitute state action. See Pacherille v.

Cty. of Otsego, No. 3:13-CV-1282, 2014 WL 11515848, at *5 (N.D.N.Y.

Nov. 20, 2014) (“[C]ase law in this Circuit is well-established that the

provision of information to a police officer—even if that information is false

or results in the officer taking affirmative action—is insufficient to constitute

‘joint action’ with state actors for the purposes of [Section] 1983.” (citations

omitted)); Sherman, 2019 WL 2164081, at *6 (“Moreover, even when the

complainant is himself a public official employed by the state, the

complainant does not act under color of law simply by filing a report

alleging a crime.”).

In any event, Hillary has failed to allege facts giving rise to a

conspiracy. Hillary claims that Jones “steered the investigation by setting

before [the Village of Potsdam Police Department] warrantless, prejudicial

and unlawful allegations which all of the [d]efendants promptly pursued.”

(Compl. ¶ 73.) These allegations do not support a conspiracy claim. See

Ciambriello, 292 F.3d at 324. Notably absent from Hillary’s complaint are

specific facts plausibly indicating an agreement between the Village of

Potsdam Police Department, or any other defendants, and Jones, to

violate Hillary’s constitutional rights. See Jae Soog Lee v. Law Office of

16

Kim & Bae, PC, 530 F. App’x 9, 10 (2d Cir. 2013) (finding no conspiracy

claim where plaintiff did not allege an agreement). Hillary has not shown a

“meeting of the minds” or “understanding” between a state actor and Jones

sufficient to support a claim of conspiracy. See McGee v. Dunn, 09 Civ.

6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015). Accordingly,

Jones’ motion to dismiss Hillary’s Section 1983 conspiracy claim is

granted, and the claim is dismissed.

Finally, as noted above with regard to Hillary’s equal protection claim

against Rain, see supra Part IV.A, the court is skeptical as to whether

Hillary has alleged an equal protection claim against Jones. Nevertheless,

because Hillary’s allegations fail to support a theory of Section 1983

liability, his equal protection claim is dismissed.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Rain’s motion to dismiss (Dkt. No. 105) is

GRANTED; and it is further

ORDERED that Jones’ motion to dismiss (Dkt. No. 133) is

GRANTED; and it is further

ORDERED that the Clerk shall terminate defendants Rain and Jones

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from this action; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT 1S SO ORDERED.

October 14, 2020

Albany, New York :

¢

"5. District Judge

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