Brown v. Fallon

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

RENE BROWN,

Plaintiff,

v. 1:21-cv-00641

(TJM/ML)

ARIEL FALLON, as Assistant District

Attorney of Albany County and Individually,

Defendant.

_________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff Rene Brown ("Plaintiff' or "Ms. Brown") commenced this action asserting

claims against Defendant Albany County Assistant District Attorney Ariel Fallon

("Defendant" or "ADA Fallon") following Ms. Brown's criminal prosecution in New York state

court. See Compl., Dkt. 1. The Complaint asserts two causes of action. See id. The first,

brought pursuant to 42 U.S.C. §1983 and labeled as a claim for malicious prosecution,

asserts that ADA Fallon’s actions in connection with Ms. Brown’s criminal prosecution

violated Ms. Brown’s rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to

the United States Constitution. See id., at ¶¶ 34-45. The second, brought pursuant to New

York state law, asserts that ADA Fallon's actions in connection Ms. Brown’s criminal

prosecution violated Ms. Brown’s rights "under the Constitution and laws of the State of

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New York" and which establish the elements of the tort of malicious prosecution. See id., at

¶¶ 46-60.

ADA Fallon moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure to

dismiss the Complaint in its entirety. See Dkt. 25. Plaintiff opposes the motion, Dkt. 33,

and Defendant files a reply. Dkt. 34. For the reasons that follow, the motion is granted.

II. STANDARD OF REVIEW

In deciding a Rule 12(c) motion for judgment on the pleadings, the Court employs the

same standards as those applicable to a Rule 12(b)(6) motion. Altman v. J.C. Christensen

& Assocs., Inc., 786 F.3d 191, 193 (2d Cir. 2015). On a Rule 12(b)(6) motion, the Court

must accept “all factual allegations in the complaint as true, and draw[] all reasonable

inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)

(internal quotation marks omitted). This tenet does not apply to legal conclusions. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements ... are not entitled to the

assumption of truth.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)(stating that a court is “not bound to accept as true a legal conclusion couched as a

factual allegation”). “‘[I]n adjudicating a Rule 12(b)(6) motion, a district court must confine

its consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial

notice may be taken.’” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052 (KMK), 2020

WL 3618190, at *3 (S.D.N.Y. July 2, 2020)(quoting Leonard F. v. Isr. Disc. Bank of N.Y.,

199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted)); see DiFolco v. MSNBC

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Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 570). A claim will only have “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. “Where a complaint pleads facts

that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between

possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

A complaint that consists merely of “labels and conclusions[,]” “a formulaic recitation of the

elements of a cause of action[,]” or “‘naked assertion[s]’ devoid of ‘further factual

enhancement’ ” does not meet the plausibility standard. Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555, 557). “Determining whether a complaint states a plausible claim

for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

III. BACKGROUND

The following relevant facts are taken from the Complaint.

On July 21, 2019, a physical altercation and argument ensued between Plaintiff’s

son(s), her eldest son’s girlfriend, and the girlfriend’s family members at 16 Boenau Street

in Albany, New York. During the course of the encounter, someone at the scene fired

several rounds from a .380 caliber pistol. At the time of the shooting, Plaintiff was not at 16

Boenau Street.

At all times relevant to this case, Plaintiff resided at 2525 Sixth Avenue, First Floor,

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Troy, NY, with her minor son. On the day following the shooting, July 22, 2019, the Albany

City Court issued a search warrant for Plaintiff’s apartment in Troy, NY. The scope of the

warrant was limited to items evincing handgun possession, identification indicating

ownership or occupancy of the residence, and clothing identified as worn by one of

Plaintiff’s sons during the altercation, to wit, a pair of dark green khakis and a gray hooded

sweatshirt. Detective Stephen Behrens and other members of the Albany Police

Department (“APD”) executed the warrant. Plaintiff was detained for 20 minutes by

Detective Behrens and other police officers while the search was conducted. The search of

Plaintiff’s apartment revealed no evidence consistent with her possession of a handgun.

“Instead, the only property and evidence that was located and seized was Plaintiff’s white

cell phone which arguably was outside the scope of the warrant.” Comp. ¶ 11. Detective

Behrens prepared and filed a property report the same day that shows that neither evidence

of gun possession nor the clothing worn by Plaintiff’s son on the day of the incident was

located in Plaintiff’s apartment.

After the search was executed, Plaintiff was taken to the Albany Police South Station

in the City of Albany. Police questioned Plaintiff at the station for approximately

one-hundred and twenty (120) minutes without mirandizing her. The Complaint asserts that

“Plaintiff was not mirandized prior to being questioned by law enforcement personnel

because she was not arrested prior to being questioned/interviewed.” Compl. ¶ 50. There

are no allegations in the Complaint that ADA Fallon directed the Albany police to detain

Plaintiff on July 22, 2019, or that ADA Fallon participated in or was involved with Ms.

Brown’s questioning by the police. See generally, id. After the police finished their

questioning, they determined that there was no probable cause to arrest Ms. Brown, so they

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released her from custody without further action.

Detective Behrens also searched Ms. Brown's oldest son’s apartment on July 22,

2019. A pair of green khaki pants and a paycheck issued to Plaintiff’s eldest son were

seized there. Detective Behrens prepared and filed a property report indicating that the

identified clothing was located in and seized from the eldest son’s apartment, “and notably

not from Plaintiff’s apartment.” Id. ¶ 12.

Detective Behrens’ property reports dated July 22, 2019 “named Plaintiff’s sons as

the defendants and notably did not named Plaintiff as a defendant.” Id. ¶ 13. The property

reports were available for retrieval by ADA Fallon as of July 22, 2019.

After Plaintiff was questioned and released, “APD arrested Plaintiff’s two (2) sons for

the charges levied against [sic] by ADA Fallon in connection with the altercation that

occurred the day before, on July 21, 2019.” Id. ¶ 15.

The Complaint alleges:

16. ADA Fallon however disregarded Detective Behrens’ property report indicating

that no evidence of firearm possession was located in Plaintiff’s apartment and

disregarded the Albany Police’s conclusion that there was not probable cause to

arrest Plaintiff or charge her with a crime. ADA Fallon instead instigated her own

investigation and set about creating her own evidence to present to the Grand Jury.

As part of her investigations [sic], ADA Fallon retrieved the transcript1 of the interview

had with Plaintiff on July 22, 2019. These actions were taken in order to produce

evidence that could be used to show probable cause for an accusatory instrument.

17. In addition, and in further contravention of the Albany Police’s determination that

there was no probable cause for charges and the complete absence of physical

evidence, ADA Fallon crafted Grand Jury Charges on July 26, 2019 against Plaintiff

for Criminal Possession of a Weapon in the Second Degree, in violation of Section

1 The Complaint refers to “the transcript” of Plaintiff’s interview, however Plaintiff’s memorandum of

law in opposition to ADA Fallon’s motion refers to “the police interview tapes of July 22, 2019.” Dkt. 33, at p.

11. The Court will refer to this evidence as “the transcript” to be consistent with the allegations in the

Complaint.

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265.03 of the Penal Code and for Conspiracy to possess a firearm in the Fourth

Degree, in violation of Section105.10 of the Penal Code.

18. ADA Fallon then[] presented her fabricated evidence to the Grand Jury; evidence

that was neither competent nor admissible because it was obtained prior to Plaintiff

being advised of her Miranda rights and was obtained in violation of Plaintiff’s right to

counsel as well as her rights under both the US and New York State constitutions.

The Grand Jury was presented by ADA Fallon with evidence that was insufficient

pursuant to CPL 210.10(1)(b)2 to establish the commission of the crimes charged

and was also inadmissible at trial. In doing so, ADA Fallon prejudiced the Grand Jury

which as anticipated and predicted by ADA Fallon returned an indictment against

Plaintiff. On information and belief, no other evidence, aside from Plaintiff’s out of

court statements was presented to the Grand Jury as no other evidence was

obtained against Plaintiff.

19. Under Sealed Indictment No. 15B-9192 and in contravention of the Albany

Police’s determination that arrest was not supported by probable cause, ADA

Fallon’s misconduct, uninterrupted by any third party, precipitated Plaintiff’s arrest on

August 2, 2019.

Id. ¶¶ 16-19.

Plaintiff was arraigned on August 2, 2019, and detained for “8 hours or more” until

she was able to post bail. Id. ¶ 21.

On August 6, 2019, ADA Fallon provided Plaintiff’s criminal defense counsel with

notice that she intended to offer Plaintiff’s out-of-court statements at trial and indicated her

readiness for trial on August 12, 2019. The Complaint alleges that ADA Fallon’s “attempt to

rush the case to trial was thwarted by Defense Counsel filing first a Motion for leave to

conduct a private investigation which motion was granted on August 12, 2019.” Id. ¶ 23.

On August 14, 2019, ADA Fallon offered a plea bargain to Plaintiff in exchange for her

cooperating with the District Attorney’s Office in its prosecution of Plaintiff’s sons. Plaintiff

2 NY CPL §210.10 addresses the requirement of, and methods of securing, a defendant’s

appearance for arraignment upon indictment. It does not address the sufficiency of evidence to establish the

commission of a crime, and there is no subsection (1)(b) in this statute.

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rejected that plea offer.

On October 3, 2019, Plaintiff’s defense counsel filed a motion to dismiss “on the

basis that, inter alia, the evidence presented to the Grant Jury was legally insufficient to

sustain the offenses charged against Plaintiff and on the grounds that Plaintiff’s arrest was

wholly without probable cause.” Id. ¶ 25. After the initial pre-trial court conference held on

October 13, 2019 during which Plaintiff’s counsel highlighted the insufficiency of the

evidence, ADA Fallon refused “to dismiss or even amend the charges.” Id. ¶ 26. “Instead,

she submitted a Supplemental Affirmation in Opposition to Plaintiff’s Motion to Dismiss and

made a contorted argument that the absence of any evidence that Plaintiff possessed a

weapon, provided a weapon to her sons or drove her sons to the location of the altercation

undermined [sic] the conspiracy to possess a weapon charge.” Id. ¶ 26.

Plaintiff also claims that during the course of the criminal proceedings, ADA Fallon

failed to satisfy her obligations to turn over all Brady materials including exculpatory

material, which further prejudiced Plaintiff’s constitutional rights.

On October 25, 2019, the Hon. Roger D. McDonough, Acting New York State

Supreme Court Justice, found that the evidence that was presented to the Grand Jury was

legally insufficient to support the charges in the Indictment or any applicable lesser included

offenses. Accordingly, Judge McDonough granted Plaintiff’s motion to dismiss all charges

due to the insufficiency of evidence before the Grand Jury.

IV. DISCUSSION

a. Official Capacity

ADA Fallon argues that she is entitled to sovereign immunity under the Eleventh

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Amendment to the extent she is sued in her official capacity as an assistant district attorney.

Plaintiff responds that she is not suing ADA Fallon in her official capacity, but only in her

individual capacity. Dkt. 33, at p. 19. Accordingly, that much of ADA Fallon’s motion to

dismiss any official capacity claim against her is granted.

b. Absolute Prosecutorial Immunity - §1983 Claims

ADA Fallon asserts that she is entitled to absolute prosecutorial immunity for her

conduct that is alleged to have violated Ms. Brown's federal rights. “The doctrine of absolute

immunity applies broadly to shield a prosecutor from liability for money damages (but not

injunctive relief) in a § 1983 lawsuit, even when the result may be that a wronged plaintiff is

left without an immediate remedy.” Anilao v. Spota, 27 F.4th 855, 863–64 (2d Cir.

2022)(citing Imbler v. Pachtman, 424 U.S. 409, 427 (1976)).3 In Anilao, the Second Circuit

explained:

Our cases make clear that prosecutors enjoy “absolute immunity from § 1983

liability for those prosecutorial activities intimately associated with the judicial

phase of the criminal process.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.

1987)(quotation marks omitted). The immunity covers “virtually all acts,

regardless of motivation, associated with [the prosecutor's] function as an

advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (quoting

Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). For example, a prosecutor

enjoys absolute immunity when determining which offenses to charge,

initiating a prosecution, presenting a case to a grand jury, and preparing for

trial. See id.; Imbler, 424 U.S. at 431, 96 S. Ct. 984 (concluding that a

prosecutor is absolutely immune from a § 1983 suit for damages based on his

“initiating a prosecution and ... presenting the State's case”). For that reason,

we have held that absolute immunity extends even to a prosecutor who

“conspir[es] to present false evidence at a criminal trial. The fact that such a

conspiracy is certainly not something that is properly within the role of a

3As the Second Circuit stated in a footnote in Anilao: “Recognizing that it would be unjust to allow

prosecutorial misconduct to go unpunished and that absolute immunity does not render the public powerless,

we have pointed to other methods, such as criminal and professional sanctions, to deter and redress

wrongdoing.” Anilao, 27 F.4th at 864, n. 3 (citing Schloss v. Bouse, 876 F.2d 287, 292 (2d Cir. 1989); Imbler,

424 U.S. at 429 & n.29).

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prosecutor is immaterial, because the immunity attaches to his function, not to

the manner in which he performed it.” Dory, 25 F.3d at 83 (cleaned up).

Id. at 864 (footnote omitted).

The courts apply a "functional approach" to determine whether a prosecutor enjoys

absolute immunity. Simon v. City of New York, 727 F.3d 167, 171-72 (2d Cir. 2013). This

approach examines "the nature of the function performed, not the identity of the actor who

performed it." Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal quotation marks

omitted). Functions to which absolute immunity applies are when a prosecutor’s conduct,

acting as an advocate during the judicial phase of the criminal process, involves the

exercise of discretion. See Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011)(“Prosecutors

are absolutely immune from suit only when acting as advocates and when their conduct

involves the exercise of discretion.”)(citing Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).

This includes such functions as "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, witness selection, and issuing subpoenas," Simon, 727 F.3d

at 171, and whether and when to drop charges. Taylor, 640 F.2d at 452 (“[T]he failure to

drop charges until immediately before trial [has] been held to be prosecutorial [activity] for

which absolute immunity applies.”)(citations omitted). “This immunity attaches to conduct in

court, as well as conduct ‘preliminary to the initiation of a prosecution and actions apart from

the courtroom.’” Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012))(quoting Imbler, 424

U.S. at 431 n. 33).

Immunity even extends to “the falsification of evidence and the coercion of

witnesses,” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee

v. Willins, 617 F.2d 320, 321-22 (2d Cir. 1980)), “the knowing use of perjured

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testimony,” “the deliberate withholding of exculpatory information,” Imbler, 424

U.S. at 431 n.34, the “making [of] false or defamatory statements in judicial

proceedings,” Burns, 500 U.S. at 490 (collecting cases), and “conspiring to

present false evidence at a criminal trial,” Dory, 25 F.3d at 83.

Wilson v. County of Onondaga, 5:20-CV-1489 (GTS/TWD), 2021 WL 5971316, at *6

(N.D.N.Y. Apr. 21, 2021). “[O]nce a court determines that challenged conduct involves a

function covered by absolute immunity, the actor is shielded from liability for damages

regardless of the wrongfulness of his motive or the degree of injury caused.” Bernard v.

County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004)(citing Cleavinger v. Saxner, 474 U.S.

193, 199–200 (1985)).

"By contrast, prosecutors receive only qualified immunity when performing

‘administrative duties and those investigatory functions that do not relate to an advocate's

preparation for the initiation of a prosecution or for judicial proceedings.'" Simon, 727 F.3d

at 172 (quoting Buckley, 509 U.S. at 273). "Investigation, arrest, and detention have

historically and by precedent been regarded as the work of police, not prosecutors, and they

do not become prosecutorial functions merely because a prosecutor has chosen to

participate." Id. (interior quotation marks and citations omitted); see Giraldo, 694 F.3d at

166 (“‘[A]ctions taken as an investigator enjoy only qualified immunity.’”)(quoting Zahrey v.

Coffey, 221 F.3d 342, 346 (2d Cir. 2000)). “Under a functional approach, actions are not

shielded by absolute immunity merely because they are performed by a prosecutor. ‘A

prosecutor's administrative duties and those investigatory functions that do not relate to an

advocate's preparation for the initiation of a prosecution or for judicial proceedings are not

entitled to absolute immunity.’” Giraldo, 694 F.3d at 166 (quoting Buckley, 509 U.S. at 273).

“Although all investigative activity could be considered in some sense to be

‘prepar[ation] for the initiation of judicial proceedings,’ the Supreme Court has

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sought to draw a line between those preparatory steps that a prosecutor takes

to be an effective advocate of a case already assembled and those

investigative steps taken to gather evidence.” Smith v. Garretto, 147 F.3d 91,

94 (2d Cir.1998) (quoting Buckley, 509 U.S. at 273, 113 S.Ct. 2606). The

Supreme Court “has identified ‘evaluating evidence and interviewing

witnesses' as falling on the absolute immunity side of the line, leaving

‘searching for the clues and corroboration’ that might lead to a

recommendation for an arrest on the qualified immunity side.” Id. at 94

(quoting Buckley, 509 U.S. at 273, 113 S. Ct. 2606).

Therefore, not every interview, interrogation, or other act by a prosecutor with

the potential of revealing new information is an investigative act entitled to only

qualified immunity. See [Warney v. Monroe Cty., 587 F.3d 113, 124 (2d Cir.

2009)](prosecutors' actions to deal with post-trial initiatives challenging a

criminal conviction, even though they could be seen as investigative and

administrative, were “also integral to the overarching advocacy function”).

Good prosecutors may—usually should—perform acts reasonably

characterized as investigative at all phases of a criminal proceeding. The

investigative acts that are entitled to only qualified immunity are those

undertaken in the phase of law enforcement that involves the gathering and

piecing together of evidence for indications of criminal activities and

determination of the perpetrators. Smith, 147 F.3d at 94.

In contrast, investigative acts reasonably related to decisions whether or not to

begin or to carry on a particular criminal prosecution, or to defend a conviction,

are shielded by absolute immunity when done by prosecutors.

Id. at 166.

“On a motion to dismiss a claim against a prosecutor based on absolute immunity,

the plaintiff's allegations are taken as true.” Vann v. City of Rochester,

6:18-CV-06464(MAT), 2019 WL 2646616, at *3 (W.D.N.Y. June 27, 2019)(citing Kalina, 522

U.S. at 122, in turn citing Buckley, 509 U.S. at 261). “‘[T]he official seeking absolute

immunity bears the burden of showing that such immunity is justified for the function in

question. The presumption is that qualified rather than absolute immunity is sufficient to

protect government officials in the exercise of their duties.’” Id. (quoting Burns v. Reed, 500

U.S. 478, 486-87 (1991)(citations omitted)). “Analysis of a claim of immunity requires [the

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Court] to view the relevant circumstances as would a reasonable official in the claimant's

position.” Giraldo, 694 F.3d at 165 (citing Hill, 45 F.3d at 662 (“[T]he ‘functional’ test for

absolute immunity is an objective one; it does not depend upon the state actor's subjective

intent.”); Dory, 25 F.3d at 83; Burns, 500 U.S. at 487–88 (allegations that prosecutor

“deliberately misled the Court” during preliminary hearing were deemed irrelevant where the

prosecutor's objective act—presenting evidence at the hearing—enjoyed absolute

immunity)). “The relevant question, therefore, is whether a reasonable prosecutor would

view the acts challenged by the complaint as reasonably within the functions of a

prosecutor. If the generic acts are within those functions, absolute immunity applies to

protect the prosecutor even in the face of a complaint's allegations of malicious or corrupt

intent behind the acts.” Id. at 166 (citing Burns, 500 U.S. at 489–90).

Analysis

In opposition to ADA Fallon’s contention that she is entitled to absolute prosecutorial

immunity, Plaintiff argues that she is suing ADA Fallon for damages “arising from ADA

Fallon’s actions taken during the investigatory phase of the case that resulted in Plaintiff

being arrested without probable cause as well as being indicted and detained through her

knowing use of false, fabricated, misleading or inherently unreliable evidence.” Dkt. 33, at

p. 11 (citing Compl. at ¶¶ 41-434). Plaintiff further argues that she can maintain her § 1983

claims against ADA Fallon because

Plaintiff alleges the non-prosecutorial conduct engaged in by Ms. Fallon as being that

she 1) instigated her own investigation of the alleged gun possession crime and

fabricated her own evidence of a crime that did not occur by pulling the police

4 These paragraphs in the Complaint are part of Plaintiff’s §1983 claims against ADA Fallon and rely

on the prior allegations in the Complaint.

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interview tapes of July 22, 2019 that the police did not submit to the DA’s Office (see

Dckt. Doc. No.1 at paragraph 16); and 2) substituted her own advice and opinion as

to the existence of probable cause for that of the Albany Police Department

detectives and issued a sealed indictment and made a warrantless arrest of the

Plaintiff (See Dckt Doc No. 1 at paragraph 16 and 17).

Dkt. 33, at p. 11.

Plaintiff’s arguments are without merit.

Viewed through the eyes of a reasonable prosecutor, ADA Fallon’s acts in this case

were well within her legitimate function as a prosecutor during the judicial phase of the

criminal process. Plaintiff’s invocation of the term “investigation” to describe ADA Fallon’s

conduct does not make it so. See Vann, 2019 WL 2646616, at *3 (“As an initial matter,

Vann's repeated invocation of the adjective “investigative” to describe Harrigan's conduct is

immaterial to the Court's inquiry.”)(citing Watson v. Grady, No. 09-CV-3055 KMK, 2010 WL

3835047, at *16 (S.D.N.Y. Sept. 30, 2010) (“[The] [p]laintiff's labeling of the prosecutor's

actions as investigatory does not make it so.”), in turn citing Crews v. Cty. of Nassau, No.

06–CV–2610, 2007 WL 4591325, at *15 n. 15 (E.D.N.Y. Dec. 27, 2007) (stating that the

plaintiffs' “labeling various actions ‘investigative’ or ‘administrative’ in the complaint is of no

moment”)). Rather, the Court must look at the actual substance of the actions and

determine whether they were the work of an advocate and integral to the prosecution. Id.

(citing Kalina, 522 U.S. at 130).

ADA Fallon’s decision to review the transcript does not make her conduct

investigatory within the meaning of the absolute prosecutorial immunity doctrine. The

allegations in the Complaint do not indicate that ADA Fallon had anything to do with or

participated in Ms. Brown’s interview by members of the Albany Police Department. Rather,

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the Complaint indicates that Ms. Brown was brought to the Albany Police South Station

after the search of her apartment, and interviewed as part of the APD’s investigation into the

circumstances surrounding the July 21, 2019 shooting incident. Although Plaintiff was not

charged by the police, her sons were identified as a defendants in Detective Behrens’

property reports filed the same day as Plaintiff’s interview, and the sons were arrested

shortly thereafter for their alleged involvement in the altercation that occurred on July 21,

2019. Thus, it is clear that the judicial phase of the criminal process related to the July 21,

2019 shooting incident had begun, and that Plaintiff’s interview conducted by APD officers

was part of the process of assembling and gathering evidence for that prosecution.

Unlike in Zahrey, ADA Fallon’s act of pulling the transcript was not an investigatory

act intended to create evidence to commence the judicial phase of the criminal process.

That phase had already begun. A reasonable prosecutor would view ADA Fallon’s act of

pulling and reviewing the transcript a discretionary prosecutorial act to determine whether

Plaintiff’s already-provided statement supported prosecuting her. Thus, a reasonable

prosecutor would view this conduct as “those preparatory steps that a prosecutor takes to

be an effective advocate of a case already assembled.” Geraldo, 694 F.3d at 166. Even

assuming that Plaintiff was charged similarly to her sons related to the July 21, 2019

shooting incident, the earlier charges against her sons would not prevent a reasonable

prosecutor from exploring whether Plaintiff should also be charged related to this incident.

ADA Fallon’s acts of pulling and reviewing the transcript are clearly tasks adjunct to her

advocacy functions of "deciding whether to bring charges and presenting [the] case to a

grand jury.” Simon, 727 F.3d at 171.

Furthermore, the courts have long held that a prosecutor’s determination to bring

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charges against an individual by the presentment of a case to a grand jury, even if it

involves the presentation of false or fabricated evidence, is an act by an advocate intimately

related to the judicial phase of the criminal process to which absolute prosecutorial

immunity applies. See Imbler, 424 U.S. at 431 (concluding that a prosecutor is absolutely

immune from a § 1983 suit for damages based on his "initiating a prosecution and ...

presenting the State's case"); Anilao, 27 F.4th at 864 ("[A] prosecutor enjoys absolute

immunity when determining which offenses to charge, initiating a prosecution, presenting a

case to a grand jury, and preparing for trial.")(citations omitted); Simon, 727 F.3d at 171

(absolute immunity applies to such functions as "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, witness selection, and issuing

subpoenas"); Bernard, 356 F.3d at 503 (The act of "knowingly presenting false evidence to,

while at the same time withholding exculpatory evidence from [the grand jury] ... lie[s] at the

very core of a prosecutor's role as an advocate engaged in the judicial phase of the criminal

process.")(citing Imbler, 424 U.S. at 431 & n. 34); Pinaud v. County of Suffolk, 52 F.3d

1139, 1149 (2d Cir.1995) (holding district attorneys absolutely immune from claim for

malicious prosecution and presentation of false evidence to the grand jury); Maglione v.

Briggs, 748 F.2d 116, 118 (2d Cir. 1984)(“The presentation of a case to a grand jury falls

squarely within the prosecutor’s traditional function and is thus subject to absolute

immunity....” ); J. & W. Trading & Leasing Inc. v. New York, 2015 WL 4135961, at *3

(N.D.N.Y. 2015)(granting absolute immunity where prosecutor allegedly presented false

testimony before grand jury). ADA Fallon’s use of the presumably inculpatory statements

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in the transcript to obtain the Indictment5 is conduct intimately associated with the judicial

phase of the criminal process for which ADA Fallon is entitled to absolute prosecutorial

immunity. See Dieter v. Quintilone, 764 Fed. Appx. 71, 73 (2d Cir. 2019)(unpublished)(“As

the presentation of inculpatory evidence showing probable cause to the grand jury is an

essential prosecutorial function, necessary to obtain an indictment, doing so is protected by

absolute immunity. It is ‘intimately associated with the judicial phase of the criminal

process.’”)(quoting Simon, 727 F.3d at 171–72).

The Court fails to see how ADA Fallon’s presentation of Plaintiff’s statements to the

grand jury amounts to ADA Fallon “creating her own evidence to present to the Grand Jury,”

or of her “fabricat[ing] her own evidence of a crime that did not occur.” As ADA Fallon

points out, the Complaint does not particularize how it is that ADA Fallon purportedly

created her own evidence to present to the grand jury or fabricated such evidence. Thus,

there are no plausible factual allegations to support Plaintiff’s claims in this regard. Further,

even assuming that ADA Fallon presented false or fabricated evidence to the Grand Jury,

she still would be entitled to absolute prosecutorial immunity for this conduct. See Bernard,

356 F.3d at 503; Dory, 25 F.3d at 83; Pinaud, 52 F.3d at 1149; Taylor, 640 F.2d at 452; J.

& W. Trading & Leasing, 2015 WL 4135961, at *3.

Although Plaintiff argues that ADA Fallon “substituted her own advice and opinion as

to the existence of probable cause for that of the Albany Police Department detectives,” a

reasonable prosecutor would view this as ADA Fallon exercising her prosecutorial discretion

to disagree with the police and present the matter to a grand jury for that body’s

5 The Court presumes that Plaintiff’s statements in the transcript were inculpatory because the

Complaint alleges that the Grand Jury returned an indictment based only on this evidence.

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determination whether probable cause existed. The fact that a judge later found the

evidence presented to the Grand Jury was insufficient to sustain criminal charges against

Plaintiff does not mean that ADA Fallon created or fabricated evidence against Plaintiff to

obtain the Indictment, or that there was no probable cause for the prosecution. See Blasini

v. City of New York, 11 CIV. 3022 SAS, 2011 WL 6224605, at *5 (S.D.N.Y. Dec. 14,

2011)(“[T]he dismissal of the Indictment for lack of legally sufficient evidence meant only

that the People lacked evidence to establish a prima facie case of guilt. The dismissal,

therefore, did not serve to rebut the presumption of probable cause arising from the

Indictment.”)(interior quotation marks and citations omitted).

Assuming, arguendo, that Plaintiff’s statements made during her interview with the

police are unreliable or would be inadmissible at trial because they were obtained in

violation of Miranda and without the presence of an attorney, Plaintiff presents no authority

for the proposition that the use of such evidence in a grand jury removes a prosecutor from

the protections of absolute immunity. The Court agrees with ADA Fallon that whether the

criminal court would have suppressed the out-of-court statements made to the police during

the pendency of the underlying criminal matter has no bearing on ADA Fallon’s

prosecutorial discretion to use this evidence to initiate a criminal prosecution against Ms.

Brown. Just as the courts have found that absolute prosecutorial immunity applies even

when a prosecutor presents false or fabricated evidence to a grand jury, the Court

concludes that absolute immunity applies to conduct of presenting to a grand jury evidence

that is unreliable or evidence that would be inadmissible at trial.

To the extent Plaintiff contends that ADA Fallon violated Plaintiff’s rights by failing to

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disclose exculpatory Brady material, her decisions regarding the disclosure of Brady

material fall squarely within a traditional prosecutorial function during the judicial phase of

the criminal process. She therefore is entitled to absolute immunity with regard the failure

to make these disclosures. See Hill, 45 F.3d at 662 (Granting absolute immunity to a

prosecutor who allegedly failed to turn over Brady material because “this omission occurred

after the prosecutorial phase of the case had begun and therefore is protected as a

discretionary advocacy function.”)(citing Imbler, 424 U.S. at 416, 430); see, e.g., Warney,

587 F.3d at 125 (“If the conduct challenged by Warney had occurred during Warney's trial,

that is, if the prosecutors had tested all the evidence, and then sat on the exculpatory

results for at least 72 days, they may well have violated Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963); but they would be absolutely immune from personal

liability. The reason that is so is that the disclosure of evidence to opposing counsel is an

advocacy function.”)(citing Jones v. Shankland, 800 F.2d 77, 80 (6th Cir.1986) (a

prosecutor's “non-disclosure of exculpatory information [is] certainly entitled to absolute

immunity”)).

For the reasons discussed above, ADA Fallon has satisfied her burden of

establishing that she is entitled to absolute prosecutorial immunity for all alleged conduct

underlying Plaintiff’s §1983 claims against her.

c. State-Law Malicious Prosecution Claim

ADA Fallon argues that the Court should dismiss Plaintiff’s state-law malicious

prosecution claim on the merits, or alternatively, if all federal question claims are dismissed

the Court should decline to exercise supplemental jurisdiction over the state law claim.

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The Court will decline to exercise supplemental jurisdiction over the state-law

malicious prosecution claim. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118,

122 (2d Cir. 2006)(“a district court may decline to exercise supplemental jurisdiction if it has

dismissed all claims over which it has original jurisdiction”). In making this determination,

the Court “balances the traditional ‘values of judicial economy, convenience, fairness, and

comity.’” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Here, all factors weigh in favor

of declining supplemental jurisdiction over Plaintiffs’ state-law claims. First, judicial

economy favors dismissal in light of the fact that the case is at the pleading stage. While

the parties participated in an initial conference with Magistrate Judge Lovric, it appears that

there has been no discovery demands served by either ADA Fallon or the Plaintiff, and no

discovery has been exchanged. Dkt. 27. Further, Judge Lovric stayed the deadlines and

schedules in this matter pending the outcome of the instant motion. Dkt. 28. “Second,

refiling in state court will present only a minor inconvenience to the parties.” Corley v.

Vance, 365 F. Supp. 3d 407, 462 (S.D.N.Y. 2019), aff'd sub nom. Corley v. Wittner, 811

Fed. Appx. 62 (2d Cir. 2020)(unpublished). “Third, proceeding to state court will place none

of the parties at any disadvantage relative to their current positions in this litigation.” Id. at

462–63. Moreover, even

[w]here a state law claim would be barred by the statute of limitations, courts

in the Northern District have still declined to exercise supplemental jurisdiction

as the remaining state law claims would be protected by New York Civil

Procedure Law and Rules § 205(a), which allows for a tolling of the statute of

limitations. See N.Y. C.P.L.R. § 205(a); Yupa v. Country Stone & Fence, 2017

WL 27957, at *5 (E.D.N.Y. 2017); Trinidad v. New York City Dept. of

Correction, 423 F. Supp. 2d 151, 169 (S.D.N.Y. 2006). Further, 28 U.S.C. §

1367(d) provides that the period of limitations for any supplemental claim

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“shall be tolled while the claim is pending and for a period of 30 days after it is

dismissed unless State law provides for a longer tolling period.” 28 U.S.C. §

1367(d).

Tooly v. Schwaller, 7:13-CV-1575 (DNH/ATB), 2019 WL 1639942, at *2 (N.D.N.Y. Apr. 16,

2019). Thus, because “the applicable statute of limitations would not bar plaintiff from

re-filing [her] claim in New York state court, there is ‘no unfairness in declining to exercise

supplemental jurisdiction.” /d. (quoting Rizvi v. Town of Wawarsing, 654 Fed. Appx. 37, 40

(2d Cir. 2016)). And fourth, “comity dictates that the Court decline to decide” the dispute

raised by the state-law malicious prosecution claim. See Corley, 365 F. Supp. 3d at 463.

V. CONCLUSION

For the reasons discussed above, ADA Fallon’s Rule 12(c) motion, Dkt. 25, is

GRANTED. Any claims brought against ADA Fallon in her official capacity are DISMISSED

with prejudice, the § 1983 claims alleged in the Complaint are DISMISSED with

prejudice, and the Court declines to exercise supplemental jurisdiction over the state-law

malicious prosecution claim asserted in the Complaint. This state-law malicious

prosecution claim is DISMISSED without prejudice to refiling in New York State Court

within thirty (30) days of this Decision and Order, pursuant to 28 U.S.C. § 1367(d).

The Clerk of the Court is directed to close this case.

IT IS SO ORDERED.

Dated: September 8, 2022 4 horn ZI . WM L we

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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