Weilburg v. Rodgers

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DARO C. WEILBURG,

Plaintiff, 5:22-cv-435 (BKS/TWD)

v.

JOHN S RODGERS, et al.,

Defendants.

Appearances:

Plaintiff pro se:

Daro C. Weilburg

Munnsville, NY 13409

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff pro se Daro C. Weilburg brought this action on May 4, 2022, against Assistant

District Attorney John S. Rodgers, New York State Trooper Ethan C. Koss, Norman Button, and

Doe Defendants alleging that he was falsely arrested and prosecuted for misdemeanor criminal

trespass in the second degree, in violation of NY Penal Law 140.15(1). (Dkt. No. 1). This matter

was referred to United States Magistrate Judge Thérèse Wiley Dancks who, on May 31, 2022,

issued a Report-Recommendation recommending that Plaintiff’s false arrest claim against

Defendant Trooper Koss survive sua sponte review; that Plaintiff’s malicious prosecution claim

against Defendant ADA John S. Rodgers be dismissed with leave to amend; and that Defendants

Norman Button, Jane Doe, and John Doe be dismissed. (Dkt. No. 6). Plaintiff filed a timely

objection to the Report-Recommendation. (Dkt. No. 7). For the reasons set forth below, the

Report-Recommendation is adopted in part and denied in part: Plaintiff’s false arrest claim

against Defendant Trooper Koss survives sua sponte review; any claim against Defendant ADA

Rodgers arising from Rodgers’ prosecutions of Plaintiff is barred by the doctrine of prosecutorial

immunity; and Plaintiff’s remaining claims against the remaining Defendants are dismissed with

leave to amend.

II. STANDARD OF REVIEW

This court reviews de novo those portions of the Magistrate Judge’s findings and

recommendations that have been properly preserved with a specific objection. Petersen v.

Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper

objection is one that identifies the specific portions of the [report-recommendation] that the

objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.

Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks omitted).

Properly raised objections must be “specific and clearly aimed at particular findings” in the

report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009). “[E]ven

a pro se party’s objections to a Report and Recommendation must be specific and clearly aimed

at particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No. 06-cv-13320,

2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011) (citation

omitted). Findings and recommendations as to which there was no properly preserved objection

are reviewed for clear error. Id.

III. DISCUSSION

A. Background

In his complaint, Plaintiff alleges that Defendant Trooper Koss arrested him for

misdemeanor trespass knowing that it was based on false information provided by Richard

Castellane1 and Defendant Norman Button, Castellane’s employee. (Dkt. No. 1). Plaintiff alleges

that he told Defendant Trooper Koss that he had access to the building as a caretaker, and that he

went inside the residence to fix the internet and feed the dog. (Id. at 5). Plaintiff also asserts that

Defendants Norman Button and Trooper Koss had him arrested because he is a Jehovah’s

Witness and that Defendant ADA Rodgers is prosecuting Plaintiff because he is a Jehovah’s

Witness. (Id. at 8). Plaintiff alleges that Defendant ADA Rodgers “did not provide the entire

discovery,” and that he “filed for a Temporary Protection Order against” Plaintiff because an

attorney, “Jacobson,” asked ADA Rodgers to file it. (Dkt. No. 71, at 7-8).

Plaintiff attached to the complaint an information dated March 12, 2022, which charges

him with misdemeanor criminal trespass, second degree, for unlawfully entering the dwelling of

Richard Castellane. (Dkt. 1-1, at 1). Plaintiff also attached: (1) an order of protection dated

March 23, 2022, which directs Plaintiff to, inter alia, refrain from any contact with Richard

Castellane, and (2) what appears to be a February 2, 2022 email from Richard Castellane to

Plaintiff questioning “how many calls on a daily basis” Plaintiff made from Castellane’s

residence “extolling Jehovah Witnesses,” and whether Plaintiff had ever sought permission to

use the premises for that purpose. (Dkt. No. 1-1, at 4-5).

In the Report-Recommendation Magistrate Judge Dancks concluded that Plaintiff’s false

arrest claim against Defendant Trooper Koss survives initial review, but that to the extent

Plaintiff seeks to bring a malicious prosecution claim it should be dismissed with leave to amend

because he failed to allege that the criminal proceeding was terminated in his favor—an essential

element of that claim. (Dkt. No. 6, at 5-6). Magistrate Judge Dancks recommended dismissal of

the Doe Defendants and Defendant Norman Button because “the Complaint fails to allege any

1 Richard Castellane is not a named defendant.

facts reflecting that [these defendants] were involved in any of violation of Plaintiff’s rights

under 28 U.S.C. § 1983.” (Id. at 6).

In his objection, Plaintiff argues that there was “a conspiracy to violate his civil rights

under § 1985 . . . by all of the defendants listed and defendants not yet known.” (Dkt. No. 7, at

2). He asserts that a bodycam video that he obtained through a FOIL request “clearly shows that

the Plaintiff had every right to go into the Castellane residence to reset the router”; that

Defendant Trooper Koss suborned perjury from Castellane; that Defendant Norman Button and

his wife, Diane Button, provided false information to Defendant Trooper Koss; and that

Defendant ADA Rodgers should have dismissed the misdemeanor charge after having received

the bodycam videos. (Id. at 2-3, 5).

Plaintiff has also asserted new facts arising out of a second arrest, on May 17, 2022, after

this action was filed, for violating the protective order. (Dkt. No. 7, at 4-10). Plaintiff asserts that

Defendant Koss conspired with unknown persons to block the path to Plaintiff’s apartment with

a sheet of plywood; that the obstruction was placed there “so the Plaintiff would remove it and

be arrested”; and that Defendants Koss, ADA Rodgers, Richard Castellane and other New York

State Police Officers “had the Plaintiff arrested” on May 17, 2022 for violating the order of

protection. (Id. at 4-5). Plaintiff asserts that this arrest was in retaliation for filing this action. (Id.

at 4, 6). Plaintiff alleges that Defendant ADA Rodgers filed the misdemeanor charge knowing

that it was based on false pretenses and “got a temporary order of protection under false

pretenses.” (Dkt. No. 7, at 5-6).

B. Analysis

While Plaintiff has not set forth a specific objection to the Report-Recommendation, he

has asserted additional facts and claims that he seeks to bring, beyond the facts and claims set

forth in his complaint. The Court has therefore reviewed the Report-Recommendation for clear

error, but construing Plaintiff’s submission liberally, has considered his additional facts and

claims and will, as set forth below, give Plaintiff an opportunity to file an amended complaint.

See Crum v. Dodrill, 562 F. Supp. 2d 366, 373–74 & n.13 (N.D.N.Y. 2008) (discussing “the

mandate to read the papers of pro se litigants generously”). The Court thus discusses the law

applicable to the claims Plaintiff has asserted in his objection.

“In order to state a conspiracy claim under 42 U.S.C. 1985(3), a plaintiff must show: (1) a

conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal privileges and immunities under the laws;

(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or

property or deprived of any right or privilege of a citizen of the United States.” Cine SK8, Inc. v.

Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007). A plaintiff must also show that that the

conspiracy was “motivated by some racial or perhaps otherwise class-based, invidious

discriminatory animus.” (Id.). Religious discrimination satisfies the class-based animus

requirement of 1985(3). Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of N.Y., Inc., 968

F.2d 286, 291 (2d Cir. 1992).

To state a § 1983 conspiracy, plaintiff must plausibly allege: “(1) an agreement between

two or more state actors or between a state actor and a private entity; (2) to act in concert to

inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing

damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).

Mere conclusory or general allegations of a conspiracy, however, are insufficient to state

a claim of conspiracy. Walker v. Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005); 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; diffusive and expansive

allegations are insufficient, unless amplified by specific instances of misconduct”) (citation

omitted). To state a viable conspiracy claim, a plaintiff “must provide some factual basis

supporting a meeting of the minds, such that defendants entered into an agreement, express or

tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2013) (internal

quotation marks and citations omitted).

Moreover, Defendant ADA Rodgers has absolute immunity “for those prosecutorial

activities intimately associated with the judicial phase of the criminal process,” unless he

“proceeds in the clear absence of all jurisdiction.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.

1987). Absolute immunity protects a prosecutor from liability “for virtually all acts, regardless of

motivation, associated with his function as an advocate,” but not to a prosecutor’s acts of

investigation or administration.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (prosecutor has

absolute immunity for allegedly conspiring to present false evidence at a criminal trial). “[A]

prosecutor’s function depends chiefly on whether there is pending or in preparation a court

proceeding in which the prosecutor acts as an advocate.” Warney v. Monroe Cnty., 587 F.3d 113,

123 (2d Cir. 2009).

A prosecutor “enjoys absolute immunity when determining which offenses to charge [or]

initiating a prosecution.” Anilao v. Spota, 27 F.4th 855, 864 (2d Cir. 2022). A prosecutor’s delay

in producing discovery materials during a prosecution is protected by prosecutorial immunity.

See Hill v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995). Courts have found that seeking an

order of protection falls within the traditional prosecutorial functions for which a prosecutor is

entitled to absolute immunity. See Thomas v. Cnty. Of Putnam, 262 F. Supp. 2d 241, 249

(S.D.N.Y. 2003). Because absolute immunity attaches to a prosecutor’s function as an advocate,

it extends even to a prosecutor who conspires to do something not properly within his role, such

as conspiring to present false evidence at a criminal trial. Anilao, 27 F.4th at 864.2 Thus, claims

against ADA Rodgers arising from the prosecution of Plaintiff for criminal mischief, the

obtainment of an order of protection during the course of that prosecution, or the prosecution of

Plaintiff for violating the protective order, are barred by the doctrine of prosecutorial immunity.

See Urena v. Roy, No. 22-cv-2384, 2022 WL 1557042, at *3, 2022 U.S. Dist. LEXIS 87999, at

*6–7 (S.D.N.Y. May 16, 2022).3

To plead a First Amendment retaliatory arrest claim regarding his arrest on May 17,

2022, for violating the order of protection, Plaintiff must plausibly allege that: “(1) he has a right

protected by the First Amendment;4 (2) the defendant’s actions were motivated or substantially

caused by the exercise of that right; and (3) the defendant’s actions caused him some injury.”

Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). Plaintiff must provide more than

mere conclusory allegations; he must allege facts that plausibly support an inference of the

requisite causal connection between his lawsuit and Defendant Koss’s arrest on May 17, 2022.

See Grossi v. City of New York, No. 08-cv-1083, 2009 WL 4456307, at *7, 2009 U.S. Dist.

LEXIS 110695, at *22(E.D.N.Y. Nov. 4, 2009) (collecting cases where insufficient facts alleged

to render causal connection plausible), report and recommendation adopted by 2009 WL

4456307, 2009 U.S. Dist. LEXIS 110694 (E.D.N.Y. Nov. 30, 2009). And Plaintiff also must

2 To the extent Plaintiff claims that Defendant ADA Rodgers failed to prosecute Defendant Koss for suborning perjury

or Richard Castellane for making a false statement, it is well-established that private citizens do not have standing to

bring actions against prosecutors contesting decisions regarding whether—and whom—to prosecute. See, e.g., Brady

v. Schneiderman, No. 15-cv-09141, 2016 WL 3906737, at *3, 2016 U.S. Dist. LEXIS 91654, at *6 (S.D.N.Y. July

13, 2016), aff’d, 714 F. App’x 60 (2d Cir. 2018).

3 The Court has provided Plaintiff with a copy of the unpublished decisions.

4 Filing a lawsuit is constitutionally protected speech. Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 152

(2d Cir. 2006).

plead and prove the absence of probable cause for the arrest unless he was arrested in

circumstances where “otherwise similarly situated individuals not engaged in the same sort of

protected speech” had not been arrested. Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).

C. Leave to Amend

While Plaintiff has not set forth facts in his complaint or in his objection from which the

Court could plausibly infer: (1) that any of the Defendants agreed, either expressly or implicitly

to have Plaintiff arrested because he is a Jehovah’s Witness, in violation of 42 U.S.C. § 1985(3),

or (2) that there was any understanding and agreement between a state actor and any nonstate

actor to have Plaintiff falsely arrested for trespass, in violation of 42 U.S.C. § 1983, or (3) that

there is a causal connection between Plaintiff’s filing of this lawsuit and Defendant Trooper

Koss’s arrest of Plaintiff on May 17, 2022, as required for a First Amendment retaliation claim,

in light of Plaintiff’s pro se status, the Court will give him an opportunity to amend the

complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). And, the Court concurs in

Magistrate Dancks’ recommendation that Plaintiff be given an opportunity to amend the

complaint to allege a malicious prosecution claim: to do so Plaintiff must plausibly allege facts

in support of each of the elements of that claim, including that the prosecution ended without a

conviction. (Dkt. No. 6, at 5-6).

To the extent Plaintiff seeks to amend the complaint, Plaintiff must allege facts showing

what any named defendant, including any Jane Doe or John Doe defendant, did to violate his

rights. As Magistrate Judge Dancks noted, dismissal is appropriate for defendants who are listed

in the caption “but the body of the complaint fails to indicate what the defendant did to the

plaintiff.” Cipriani v. Burrardi, No. 06-cv-0889, 2007 WL 607341, at *1, 2007 U.S. Dist. LEXIS

11727, at *2 (N.D.N.Y. Feb. 20, 2007). The Court therefore adopts Magistrate Judge Dancks’

recommendation to dismiss the John Doe and Jane Doe Defendants, who are not referred to at all

in the body of the complaint, as well as Defendant Norman Button, against whom the complaint

fails to state a cause of action.5

Finally, Plaintiff is advised that an amended complaint will completely replace the

original complaint in this action, and render the original complaint “of no legal effect.”

International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Any amended

complaint must therefore include all of the allegations against each of the defendants so that it

may stand alone as the sole complaint in this action.

The Court has reviewed the remaining portions of the report for clear error and found

none. Accordingly, the Report-Recommendation is adopted in part and denied in part, for the

reasons stated above.

IV. CONCLUSION

For these reasons, it is hereby

ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 6) is

ADOPTED in part and DENIED in part, as set forth above; and it is further

ORDERED that Plaintiff’s false arrest claim against Defendant Trooper Ethan C. Koss

arising out of Plaintiff’s March 12, 2022 arrest survives sua sponte review; and it is further

5 The fact that Defendant Norman Button provided false information to Defendant Trooper Koss, (Dkt. No. 1, at 5),

is, by itself, insufficient to state a false arrest claim against Norman Button. “Generally, a civilian defendant who

furnishes information to law enforcement authorities who are then free to exercise their own independent judgment as

to whether an arrest will be made and criminal charges filed will not be held liable for false arrest or false

imprisonment.” Barua v. Barua, No. 14-cv-5107, 2015 WL 4925028, at *5, 2015 U.S. Dist. LEXIS 108970, at *14

(E.D.N.Y. Aug. 18, 2015) (citation and internal marks omitted) (collecting authorities). “A private individual may be

held liable for false arrest if he knowingly makes false statement to investigators with the intent of having the plaintiff

be arrested or confined, or otherwise gives advice or encouragement to the authorities or importunes them to act.” Id.

at *5, 2015 U.S. Dist. LEXIS 108970, at *14 (collecting authorities). A similar analysis applies to a civilian’s liability

for malicious prosecution. Id. at *5, 2015 U.S. Dist. LEXIS 108970, at *14

ORDERED that any claims against Defendant ADA Rodgers arising from Rodgers’

prosecution of Plaintiff for trespass, obtaining a protective order during the course of the trespass

prosecution, or prosecuting Plaintiff for violating the protective order, are barred by the doctrine

of prosecutorial immunity, and that Defendant ADA Rodgers is therefore DISMISSED; and it is

further

ORDERED that Defendants Norman Button, and the Jane Doe and John Doe Defendants

are DISMISSED with leave to amend, and Plaintiff is granted leave to file an amended

complaint within thirty (30) days of the date of this Order. Any amended complaint must be a

complete pleading which will replace the current complaint in total; and it is further

ORDERED that if Plaintiff files an amended complaint within thirty (30) days of the

date of this Order, the amended complaint shall be referred to Magistrate Judge Dancks for

review; and it is further

ORDERED that if no amended complaint is filed within thirty (30) days of the date of

this Order, the Clerk shall issue a summons and forward it with copies of the complaint and a

packet containing General Order 25, which sets forth this district’s Civil Case Management Plan,

to the United States Marshal for service upon Defendant New York State Trooper Ethan C. Koss.

Defendant Koss must file a formal response to Plaintiff’s complaint (Dkt. No. 1) as provided for

in the Federal Rules of Civil Procedure subsequent to service of process; and it is further

ORDERED that all pleadings, motions, and other documents relating to this action must

bear the case number assigned to this action and be filed with the Clerk of the United States

District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,

Syracuse, New York 13261-7367. Plaintiff must comply with all requests by the Clerk’s Office

for any documents that are necessary to maintain this action. All parties must comply with rule

7.1 of the Local Rules of Practice for the Northern District of New York in filing motions.

Motions will be decided on submitted papers, without oral argument, unless otherwise ordered

by this Court. Plaintiffis also required to promptly notify the Clerk’s Office and all parties or

their counsel, in writing, of any change in his address; his failure to do so may result in the

dismissal of this action; and it is further

ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the

Local Rules.

IT IS SO ORDERED.

Dated: July 14, 2022 .

Syracuse, New York brerr of CA Kc SS nN iO

Brenda K. Sannes

U.S. District Judge

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