“A [§ 1983] complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” (citations omitted)
How later courts described this case
- “A [§ 1983] complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” (citations omitted)
- “[P]rospective injunctive relief can only be had against [a state official].” (emphasis added)
- dismissing a Monell claim where “plaintiffs fail[ed] to allege any facts showing that there is a [municipal] policy—unspoken or otherwise—that violates the . . . 23 Constitution”
- “A § 1983 claim for false arrest arises under the Fourth Amendment.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RICHIE FOSTER LEVINE,
1:21-cv-503
Plaintiff, (GLS/DJS)
v.
NEW YORK STATE POLICE
et al.,
Defendants.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Richie Foster Levine
Pro se
PO Box 410
Hoosick Falls, NY 12090
FOR THE DEFENDANTS:
New York State Police,
New York State Police Troop G,
Keith M. Corlett, Major Robert
Patenaude, Michael Altieri, Todd
Potts & Daniel Beaudoin
HON. LETITIA JAMES GREGORY J. RODRIGUEZ,
New York Attorney General Assistant Attorney General
The Capitol
Albany, NY 12224
County of Albany, Albany County
District Attorney's Office, P. David
Soares & Linda Griggs
Liguori & Houston, PLLC JOHN W. LIGUORI, ESQ.
69 State Street - Suite 1200
Albany, NY 12207
Okeefe Electric, LLC & Robert
O'Keefe
E. Stewart Jones Hacker Murphy, LLP JOHN F. HARWICK, ESQ.
200 Harborside Drive - Suite 300
Schenectady, NY 12305
28 Second Street - Suite 203 JULIE A. NOCIOLO, ESQ.
Troy, NY 12180
Regan Lawncare and Landscape,
Inc. & Matthew Regan
Gomez Law, LLC RAFAEL O. GOMEZ, ESQ.
2746 Delaware Avenue
The Eberhardt Mansion
Buffalo, NY 14217
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Richie Foster Levine commenced this action against
defendants New York State Police, New York State Police Troop G, Keith
M. Corlett, Major Robert Patenaude, Michael Altieri, Todd Potts, Daniel
Beaudoin (hereinafter “NYSP Defendants”), County of Albany, Albany
County District Attorney's Office, P. David Soares, Linda Griggs
(hereinafter “County Defendants”), Okeefe Electric, LLC, Robert O’Keefe,
2
Regan Lawncare and Landscape, Inc., and Matthew Regan (hereinafter
“Private Actor Defendants”) alleging a host of violations pursuant to 42
U.S.C. §§ 1983 and 1985 and state law. (Compl., Dkt. No. 1.) Pending is
Private Actor Defendants’ motions to dismiss pursuant to Fed. R. Civ.
P. 12(b)(1) and 12(b)(6), (Dkt. Nos. 39, 48), NYSP Defendants’ motion for
judgment on the pleadings, (Dkt. No. 60), County Defendant’s motion for
judgment on the pleadings, (Dkt. No. 61), and Levine’s motion to amend,
(Dkt. No. 56). For the reasons that follow, Private Actor Defendants’
motions to dismiss are granted, NYSP Defendants’ motion for judgment on
the pleadings is granted in part and denied in part, County Defendant’s
motion for judgment on the pleadings is granted, and Levine’s motion to
amend is denied as moot.
II. Background1
Levine describes himself as “a person with prior [criminal] convictions
who utilizes [various] New York State . . . Law[s] . . . against employers
who advertise conviction bars in print . . . and directly discriminate against
him in violation of public policy.” (Compl. ¶ 42.) On December 1, 2019,
1 The facts are drawn from Levine’s complaint, (Dkt. No. 1), and
presented in the light most favorable to him.
3
Levine mailed a letter to Regan Lawncare regarding a job posting on
“indeed.com,” which required applicants to have a “clean criminal record.”
(Id. ¶ 45.) The letter noted that Regan Lawncare was in violation of N.Y.
Corrections Law art. 23-A, requested “a good faith settlement,” and stated
that Levine “was going to commence civil litigation if necessary . . . to
enforce his . . . rights.” (Id.) Sometime thereafter Levine mailed a similar
letter to Okeefe Electric in response to another “indeed.com” job posting
“that contained a prohibition of ‘no felony’” convictions for applicants. (Id. ¶
46.)
On January 16, 2020, O’Keefe sent a “threatening” letter to Levine
that accused Levine of “engag[ing] in a scheme to defraud” and extort
Okeefe Electric. (Id. ¶ 47.) O’Keefe and Regan then both contacted
Altieri, a New York State Police Investigator, to “conspire” in order “to stop .
. . Levine from “extorting,” scheming,” and “defrauding” their businesses.
(Id. ¶¶ 48-49.) On January 24, 2020, O’Keefe gave a supporting
deposition to Altieri and New York State Police Commander Patenaude
stating that Levine had “made false claims against” Okeefe Electric and
that he wanted Levine to be arrested. (Id. ¶ 52.) Altieri and Major
Patenaude applied for a search warrant regarding the job postings in order
4
“to prove that [Levine] posted the [employment] advertisements in question
and had attempted to scheme and extort Okeefe Electric . . . and Regan
Lawncare.” (Id. ¶ 54.)
On February 7, 2020, Altieri contacted Albany County Assistant
District Attorney Griggs, who “counseled [him] about the propriety and
legality of the investigation of” Levine, instructed him to continue the
investigation, and requested that he inform her of the results of the search
warrant. (Id. ¶ 59.) On February 24, 2020, Altieri and Patenaude obtained
the information requested from Indeed.com, which showed “no job
postings . . . from Okeefe Electric . . . or any application to Okeefe Electric
by . . . Levine,” nor did the information show any job postings by Regan
Lawncare or applications by Levine thereto. (Id. ¶¶ 60, 62-63.) However,
both job postings were “still . . .online and were plainly visible if [Altieri and
Patenaude] had just simply bothered to look for them.” (Id. ¶¶ 62-63.)
That same day Altieri and Patenaude conferred again with Griggs, who
“counseled [them] about the propriety and legality of arresting” Levine. (Id.
¶ 61.)
On February 29, 2020, Levine was arrested by Trooper Potts, who,
when arresting Levine, handcuffed him “extremely tight, so much so that
5
[his] circulation was restricted.” (Id. ¶¶ 66-68.) Levine was then brought to
“the Clifton Park facility” and was picked up by Altieri, who drove him to the
New York State Police Troop G headquarters in Albany for processing.
(Id. ¶¶ 69-70.) While driving there, Altieri questioned Levine “about the
arrest” after Levine indicated that he wished to invoked his right against
self-incrimination. (Id. ¶ 72.) At the Troop G headquarters, Levine was
charged with two misdemeanors, fingerprinted, questioned, and issued a
Desk Appearance Ticket (DAT). (Id. ¶¶ 73-75.) After a period of delays
due to the COVID-19 pandemic and some initial proceedings in the Town
of Guilderland Criminal Court, the charges against Levine were “dismissed
by the [Albany County] District Attorney’s [O]ffice . . . on consent.” (Id. ¶¶
77-78, 80, 83-87.)
III. Standards of Review
A. Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure allows a party not
otherwise permitted to amend its pleading to do so with leave of the court.
See Fed. R. Civ. P. 15(a)(2). The rule mandates that “[t]he court should
freely give leave when justice so requires.” Id. Barring “futility, undue
delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
6
amendments previously allowed, or undue prejudice to the non-moving
party,” leave should generally be granted. Burch v. Pioneer Credit
Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (citation omitted).
B. Motions to Dismiss
1. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of the
complaint where the court lacks subject matter jurisdiction. “The burden of
proving jurisdiction is on the party asserting it.” Malik v. Meissner, 82 F.3d
560, 562 (2d Cir.1996) (internal quotation marks and citation omitted). In
reviewing a Rule 12(b)(1) motion, the court “may consider affidavits and
other materials beyond the pleadings to resolve the jurisdictional issue, but
. . . may not rely on conclusory or hearsay statements contained in the
affidavits.” J.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
Regarding claims brought pursuant 42 U.S.C. § 1983, whether a defendant
acts “under color of state law” is a jurisdictional determination. See Velez
v. Long Island Bus. Inst., 16-cv-5825, 2017 WL 4350422, at *2 (E.D.N.Y.
May 3, 2017).
7
2. Rule 12(b)(6)
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the governing
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), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191
(2d Cir. 2015).
3. Rule 12(c)
“The standard for addressing a Rule 12(c) motion for judgment on
the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Wright v. Monroe Cmty. Hosp., 493 F. App’x 233,
234 (2d Cir. 2012) (internal quotation marks and citation omitted); see Ellis,
701 F. Supp. 2d at 218.
IV. Discussion
A. Levine’s Causes of Action
While keeping in mind the court’s duty to “liberally construe pleadings
. . . submitted by pro se litigants, reading such submissions to raise the
strongest [claim]s they suggest,” Bertin v. United States, 478 F.3d 489,
491 (2d Cir. 2007) (internal quotation marks and citations omitted), many of
8
Levine’s claims are duplicative or cannot be supported by law. The court
construes Levine’s first, twelfth, and seventeenth enumerated causes of
action, against Altieri, Patenaude, Potts, Beaudoin, Corlett, Griggs,
Soares, and Private Actor Defendants, as one cause of action for First
Amendment retaliation under 42 U.S.C. § 1983, stemming from Levine’s
claim that he was “malicious[ly] prosecut[ed] and false[ly] arrest[ed],” as a
result of the letters he sent to Okeefe Electric and Regan Lawncare.2
(Compl. ¶¶ 153-59, 241-45, 269-76.) The court construes Levine’s
second, fifth, ninth, tenth, and fifteenth enumerated causes of action,
against Altieri, Patenaude, Potts, Beaudoin, Corlett, Griggs, Soares, and
Private Actor Defendants, as one cause of action for § 1983 false arrest in
violation of his Fourth Amendment rights, stemming from his arrest on
February 29, 2020.3 (Compl. ¶¶ 160-66, 181-87, 214-24, 257-
2 Levine’s first, twelfth, and seventeenth enumerated causes of
action are labeled: “42 U.S.C. § 1983 violating the First Amendment Right
of [Levine],” “First Amendment Retaliation,” and “New York State
Constitution Article 1, § 8,” respectively, and all stem from the same
alleged conduct. (Compl. ¶¶ 153-59, 241-45, 269-76); see Bianchi v.
Green, No. 1:18-cv-619, 2019 WL 1440095, at *5 (N.D.N.Y. Mar. 29,
2019) (finding that a “retaliation claim pursuant to Article I, Section 8 of the
New York State Constitution is duplicative of [a] § 1983 First Amendment
retaliation claim”).
3 Levine’s second, fifth, ninth, tenth, and fifteenth enumerated
causes of action are labeled: “42 U.S.C. § 1983 violating the Fourth
9
62.) The court construes Levine’s sixth, thirteenth, and fourteenth
enumerated causes of action, against Altieri, Patenaude, Potts, Beaudoin,
Corlett, Griggs, Soares, and Private Actor Defendants, as one cause of
action for § 1983 malicious prosecution, stemming from the criminal
Amendment Rights of [Levine],” “False Arrest under 42 U.S.C. § 1983,”
“Intentional Infliction of Emotional Distress under 42 U.S.C. § 1983,”
“False Imprisonment under 42 U.S.C. § 1983,” and “Negligence under 42
§ U.S.C. 1983,” respectively, and all stem from the same alleged
conduct—his arrest on Feb 29, 2020. (Compl. ¶¶ 160-66, 181-87, 214-24,
257-62); see McCarthy v. Roosevelt Union Free Sch. Dist., No.
15-CV-01468, 2017 WL 4155334, at *4 (E.D.N.Y. Sept. 19, 2017) (finding
an intentional infliction of emotional distress claim duplicative of § 1983
false arrest claim where they stemmed from the same conduct); see also
Hillary v. Village of Potsdam, No. 7:12-cv-1669, 2015 WL 902930, at *4
n.5 (N.D.N.Y. Mar. 3, 2015) (construing separate § 1983 false arrest and
false imprisonment causes of action as one claim where they were
premised on the same conduct); Maldonado v. City of New York, No. 11
Civ. 3514, 2014 WL 787814, at *12 (S.D.N.Y. Feb. 26, 2014) (“It is well
settled that New York courts do not recognize claims for . . . negligence
arising out of an arrest or prosecution, . . . [t]hus, a plaintiff seeking
damages for an injury resulting from a wrongful arrest and detention may
not recover under broad general principles of negligence . . . but must
proceed by way of the traditional remedies of false arrest and
imprisonment.” (internal quotation marks, alterations, and citations
omitted)). Additionally, to the extent the complaint alleges false arrest
under common law, (see Compl. ¶ 220), or that Levine’s arrest violated his
Fifth Amendment rights, (see Compl. ¶ 170), these claims are also
subsumed. See Hillary, 2015 WL 902930, at *4 n.5; see also Santos v.
New York City, 847 F. Supp. 2d 573, 577 (S.D.N.Y. 2012) (“A § 1983
claim for false arrest arises under the Fourth Amendment.”).
10
proceeding commenced against him in Guilderland Town Court.4 (Compl.
¶¶ 188-98, 246-256.) To the extent Levine attempts to make out a claim
for Monell liability, against Albany County and the Albany County District
Attorney’s Office,5 under any of his various § 1983 enumerated causes of
action, (see, e.g., Compl. ¶ 157), these allegations are subsumed by his
enumerated Monell cause of action, (Compl. ¶¶ 205-13.) Additionally, to
the extent Levine alleges a cause of action under the “Cat’s Paw Theory
4 Levine’s sixth, thirteenth, and fourteenth enumerated causes of
action are labeled: “Malicious Prosecution under 42 U.S.C. § 1983,”
“Abuse [o]f Process under 42 U.S.C. § 1983,” and “Intentional or
Malicious Harm [t]o Another (Prima Facie Tort) under 42 U.S.C. § 1983,”
respectively, and all stem from the same alleged conduct. (Compl. ¶¶
188-98, 246-256); see Lagorio v. Hilton Cent. Sch. Dist., No. 17-CV-6460,
2018 WL 4491453, at *2 (W.D.N.Y. Sept. 19, 2018) (“When a plaintiff
alleges claims for malicious prosecution and abuse of process under §
1983 . . . all premised on the same facts, the [abuse of process] claims . .
. must be dismissed as duplicative.” (citation omitted)); see also Gallagher
v. N.Y.C. Health & Hosps. Corp., No. 16 Civ. 4389, 2017 WL 4326042, at
*6 (S.D.N.Y. Sept. 20, 2017) (dismissing prima facie tort claim where
plaintiff reasserted “the same allegations of misconduct and general harm
that form the basis of their other causes of action”).
5 Although the complaint appears to allege this cause of action
against Soares in his official capacity, (Compl. ¶ 212), such a claim would
be duplicative. See Conte v. County of Nassau, No. 06-CV-4746, 2009
WL 393642, at *1 (E.D.N.Y. Feb. 13, 2009). Additionally, while the
complaint also appears to allege Monell liability against the New York
State Police, Troop G, and Corlett in his official capacity as
Commissioner, (Compl. ¶ 211), these defendants are state actors, and,
thus, not amenable to Monell liability. See Daly v. Town of Dewitt, No.
18-cv-845, 2019 WL 4170162, at *3-4 (N.D.N.Y. Sept. 2, 2019).
11
under 42 U.S.C. § 1983,” (Compl. ¶¶ 353-62), such a claim is unavailable
under the law. See Levine v. N.Y. State Police, No. 1:21-cv-1181, 2022
WL 1987845, at *15 (N.D.N.Y. June 6, 2022) (collecting cases). Finally,
although not specifically alleged by Levine, in accordance with the court’s
duty to read Levine’s complaint to “raise the strongest [claim]s [it]
suggest[s],” see Bertin, 478 F.3d at 49, the court has considered whether
Levine’s allegations adequately state a Fourth Amendment claim for
excessive force against Potts, (see Compl. ¶ 68 (alleging that Potts
“[hand]cuffed . . . [Levine] extremely tight, so much so that [his] circulation
was restricted”)), and finds that, at this early stage, it does.6
Accordingly, Levine’s complaint is construed as alleging First
Amendment retaliation, (Compl. ¶¶ 153-59, 241-45, 269-76), Fourth
Amendment false arrest, (id. ¶¶ 160-66, 181-87, 214-24), Fourteenth
Amendment Equal Protection, (id. ¶¶ 174-80), Fourth Amendment
malicious prosecution, (id. ¶¶ 188-98, 246-256), Fifth Amendment right
6 NYSP Defendants’ argument that Potts’ “allegations are
insufficient to state a claim for excessive force . . . as there is no allegation
that he suffered any type of injury beyond temporary pain and discomfort,”
(Dkt. No. 60, Attach. 2 at 12 n.3), even if true, does not defeat his claim.
See Rizk v. City of New York, 462 F. Supp. 3d 203, 224 (E.D.N.Y. May
22, 2020) (“Fourth Amendment excessive force claims cannot be
dismissed solely for failure to establish more than de minimis injury.”).
12
against self-incrimination, (id. ¶¶ 167-73), Fourth Amendment failure to
intervene, (id. ¶¶ 199-204), and Sixth Amendment fabrication of evidence,
(id. ¶¶ 263-68), all pursuant to 42 U.S.C. § 1983, against defendants
Altieri, Patenaude, Potts, Beaudoin, Soares, Griggs, Corlett, and Private
Actor Defendants; Fourth Amendment excessive force, pursuant to 42
U.S.C. § 1983, against Potts (id. ¶ 68); a conspiracy claim pursuant to
§ 1985(3), (id. ¶¶ 225-40), against defendants Altieri, Patenaude, Potts,
Beaudoin, Soares, Griggs, Corlett, and Private Actor Defendants; a Monell
claim against defendants Albany County and the Albany County District
Attorney’s Office, (id. ¶¶ 205-13); and numerous state law claims against
Private Actor Defendants, (id. ¶¶ 277-352).
B. Private Actor Defendants
Private Actor Defendants argue that the § 1983 claims against them
must be dismissed because Private Actor Defendants were not acting
under color of state law, that the § 1985(3) claim must be dismissed
because Levine has not adequately pleaded conspiracy, and that the court
should decline to exercise jurisdiction over the remaining state law claims
or that they should be dismissed on the merits. (Dkt. No. 39, Attach. 1 at
6-12; Dkt. No. 48, Attach. 11 at 3-15.) Levine counters that Private Actor
13
Defendants were acting under color of state law because they acted
together with the state actors, that he has pleaded a conspiracy, and that
the court should retain jurisdiction over his state law claims, which he has
adequately pleaded. (Dkt. No. 42 at 5-12; Dkt. No. 52 at 5, 10-15.) For the
reasons that follow, Private Actor Defendants’ motions are granted.
42 U.S.C. § 1983 provides remedies for violations of federal
statutory and constitutional rights by persons acting under color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988). “Private actors . . .
generally are not proper defendants to a 42 U.S.C. § 1983 action, because
they do not act under color of state law.” White v. Monarch Pharm., Inc.,
346 F. App’x 739, 740 (2d Cir. 2009) (internal citation omitted). However, a
private actor may be liable under § 1983 if “there is a sufficiently close
nexus between the State and the challenged action of the [private actor] so
that the action of the latter may be fairly treated as that of the State itself.”
Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974). Such a nexus
exists when:
[T]he state exercises coercive power, is entwined in
the management or control of the private actor, or
provides the private actor with significant
encouragement, either overt or covert, or when the
private actor operates as a willful participant in joint
activity with the State or its agents, is controlled by an
14
agency of the State, has been delegated a public
function by the state, or is entwined with
governmental policies.
Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 187 (2d Cir. 2005)
(internal quotation marks and citation omitted).
Additionally, in order to demonstrate that a private actor was acting
under color of state law by engaging in a conspiracy with the state actors
“a complaint ‘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 in furtherance of that goal causing damages.’” Fisk v.
Letterman, 401 F. Supp. 2d 363, 376 (S.D.N.Y. 2005) (quoting Ciambriello
v. County of Nassau, 292 F.3d 307, 324-35 (2d Cir. 2002)). Conclusory
allegations of conspiracy will not meet this standard. See Spear v. Town of
West Hartford, 954 F.2d 63, 68 (2d Cir. 1992).
While a plaintiff is not required to allege that the defendants acted
under color of state law to make out a claim under 42 U.S.C. § 1985(3),
see Jones v. Crisis Serv. of Erie Cty., No. 16-CV-234, 2019 WL 4303441,
at *2 (W.D.N.Y. Sept. 11, 2019), the plaintiff must “allege: ‘1) a conspiracy;
2) for the purpose of depriving . . . any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under
15
the laws,’” Oliver v. N.Y. State Police, No. 1:19-cv-233, 2020 WL 1849484,
at *9 (N.D.N.Y. Apr. 13, 2020) (quoting Dolan v. Connolly, 794 F.3d 290,
296 (2d Cir. 2015)). Further, “[v]ague and conclusory allegations that
defendants entered into an unlawful agreement will not suffice to state a
conspiracy claim under . . . § 1985(3).” Powell v. City of Jamestown, No.
1:21-cv-721, 2022 WL 1913581, at *18 (W.D.N.Y. June 3, 2022) (citation
omitted).
Here, the complaint does not adequately allege that Private Actor
Defendants were acting under color of state law. The Private Actor
Defendants are private citizens and privately owned business entities.
(Compl. ¶¶ 18-21.) While Levine alleges that O’Keefe and Regan
contacted, and ultimately, met with Altieri, a State Police Officer, “to
conspire” against him, and that O’Keefe gave a supporting deposition to
Altieri and Patenaude, another State Police Officer, that he knew were
false in order to “have him arrested,” (Compl. ¶¶ 12-13, 48-49, 52, 317,
347), these allegations are insufficient to demonstrate that Private Actor
Defendants were acting under color of state law. See Pacherille v. City 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
16
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 § 1983.” (citations omitted)); see also
Leon v. Murphy, 988 F.2d 303, 311 (2d. Cir. 1993) (“A [§ 1983] complaint
containing only conclusory, vague, or general allegations of conspiracy to
deprive a person of constitutional rights cannot withstand a motion to
dismiss.” (citations omitted)). Additionally, these allegations fail to meet
the pleading standard for a § 1985(3) conspiracy claim. See Powell, 2022
WL 1913581, at *18. Accordingly, Levine’s §§ 1983 and 1985(3) claims
against Private Actor Defendants are dismissed, and the court declines to
exercise jurisdiction over the remaining state law claims against these
defendants. See Clark v. Dominique, 798 F. Supp. 2d 390, 408 (N.D.N.Y.
2011) (“Although a federal court has discretion to retain jurisdiction over
state law claims after the dismissal of the federal claims that created
original jurisdiction, ‘where, as here, the federal claims are eliminated in
the early stages of litigation, courts should generally decline to exercise
pendent jurisdiction over remaining state law claims.’” (quoting Klein & Co.
Futures, Inc. v. Bd. of Trade of N.Y., 464 F.3d 255, 262 (2d Cir. 2006))).
; see Mhina v. Doren, No. 5:15-cv-327, 2016 WL 5374114, *3
17
(N.D.N.Y. Sept. 26, 2016) (“[W]here federal claims against [some]
defendants remain, courts have declined to exercise supplemental
jurisdiction over state law claims against defendants for whom all federal
claims have been dismissed.” (citations omitted)).
C. County Defendants
1. Claims Against Griggs and Soares
County Defendants seek dismissal of Levine’s claims against Griggs
on the grounds that she is entitled to absolute prosecutorial immunity.7
(Dkt. No. 61, Attach. 1 at 2-5.) Levine counters that Griggs is not entitled
to immunity because her actions were taken “in an investigatory or legal
advice capacity.” (Dkt. No. 71 at 5.)
“Prosecutorial immunity from . . . 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
7 Because all claims against County Defendants are dismissed, as
discussed below, the court need not address County Defendant’s
arguments regarding qualified or Eleventh Amendment immunity. (Dkt.
No. 61, Attach. 1 at 5-7.)
18
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 of
New York, 45 F.3d 653, 661 (2d Cir. 1995).
Here, Levine bases his claim against Griggs on the fact that she
“offered legal advice to . . . Altieri.” (Dkt. No. 71 at 4.) Specifically, the
complaint alleges that Griggs “counseled [Altieri] about the propriety and
legality of the investigation of” Levine, “counseled [him] to continue the
investigation and upon receiving the search warrant results, to contact
her,” and “counseled [Altieri and Patenaude] about the propriety and
legality of arresting” Levine after receiving the results of the search
warrant. (Compl. ¶¶ 59, 61.) These actions, which the complaint later
characterizes as “determining whether probable cause existed in a legal
capacity,” (id. ¶ 106), are akin to the advocacy functions discussed in
Giraldo, and, thus, prosecutorial immunity applies. See Giraldo, 694 F.3d
at 165; see also O’Neal v. Morales, 679 F. App’x 16, 18 (2d Cir. 2017)
19
(noting that prosecutorial immunity covers the actions of a prosecutor
unless she “performs the investigative functions normally performed by a
detective or police officer, such as searching for . . . clues and
corroboration” (internal quotation marks and citation omitted)).
Accordingly, Levine’s 42 U.S.C. §§ 1983 and 1985(3) claims against
Griggs are dismissed.
Levine’s 42 U.S.C. §§ 1983 and 1985(3) claims against Soares are
also dismissed, as the complaint does not allege his personal involvement
in the investigation or prosecution of Levine, other than by alleging that
“Griggs . . . [is] an agent of . . . Soares.”8 (Compl. ¶ 17); see Sant v.
Stephens, 821 F. App’x 42, 45 (2d Cir. 2020) (noting a plaintiff must allege
defendant’s personal involvement in the violation of plaintiff’s constitutional
rights under 42 U.S.C. §§ 1983 and 1985); see also Tangreti v. Bachmann,
983 F.3d 609, 618 (2d Cir. 2020) (finding that there is no personal
8 The complaint makes the occasional stray, conclusory, allegation
that “Soares . . . counseled [Altieri and Patenaude] in an advisory function
in the investigative phase of [Levine’s] criminal case,” however this is
contradicted by the remainder of the complaint which states that Griggs
was the prosecutor who “counseled” Altieri and Patenaude, and describes
their interactions in detail. (Compl. ¶¶ 59, 61); see Rekowicz ex rel.
Congemi v. Sachem Cent. Sch. Dist., No. 11-CV-1561, 2012 WL
4172487, at *1 (E.D.N.Y. Sept. 17, 2012) (dismissing 42 U.S.C. § 1983
where “[p]laintiff ha[d] not provided anything beyond conclusory
allegations of the individuals’ personal involvement in any . . . violations”).
20
involvement of a supervisor unless “a plaintiff . . . plead[s] . . . that [the
supervisor] defendant, through [their] own individual actions, has violated
the Constitution.” (internal quotation marks and citation omitted)).
2. Monell Liability
County Defendants seek dismissal of Levine’s Monell claim because
Levine does not allege with any particularity a policy, practice, or custom
by County Defendants that resulted in Levine’s alleged constitutional
deprivation. (Dkt. No. 61, Attach. 1 at 7-9.) Levine counters, in a
confusing fashion, prosecutorial immunity does not apply because, in other
litigation it was determined that the Albany County District Attorney’s Office
withheld exculpatory evidence from a criminal defendant and “denial of
equal protection by County [o]f Albany without proof of a racially
discriminatory motive.” (Dkt. No. 71 at 12-13.) Additionally, Levine argues
that “[t]here cannot be a reliance on any ‘prosecutor professional training’
when the issue is legal advice, not the actual prosecution of [Levine] which
was initiated by . . . Altieri on a DAT not Griggs or . . . Soares.” (Id. at 14.)
The clearest indication of Levine’s position is his statement that he “has
pled sufficient facts to establish that if a proper policy had been in place by
the County of Albany it would have never offered legal advice to arrest a
21
pro-se civil litigant in violation of his clearly established [First] [A]mendment
[rights].” (Dkt. No. 71 at 12.)
A municipality may be liable under Section 1983 “when execution of
a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). To establish a municipal policy or custom, a plaintiff must allege
(1) a formal policy endorsed by the municipality; (2) actions taken or
decisions made by the municipality’s policymakers, which caused the
alleged civil rights violation; (3) a practice so widespread that it constitutes
“a custom or usage”; or (4) a failure by the municipality’s policymakers to
properly train or supervise their subordinates. See Green v. City of New
York, 465 F.3d 65, 80-82 (2d Cir. 2006).
Levine’s argument regarding the absence of “a proper policy,” (Dkt.
No. 71 at 12), is rejected. See Gerte v. Borough of Naugatuck, No.
3:19-CV-1511, 2021 WL 1165362, at *6 (D. Conn. Mar. 26, 2021) (“Since
the absence of policy is not a policy within the meaning of [Monell] liability,
[p]laintiff’s Monell claim . . . fails”); accord Butchino v. City of Plattsburg,
No. 8:20-cv-796, 2022 WL 137721, at *8 (N.D.N.Y. Jan. 14, 2022). And, to
22
the extent that Levine’s Monell claim is premised on the theory that Albany
County failed to properly train or supervise its employees, his allegations
are wholly conclusory, (Compl. ¶¶ 105-06, 111, 117, 130, 133, 135, 143,
145, 207, 211), and cannot support his claim. See Johnson v. City of New
York, No. 06 CV 09426, 2011 WL 666161, at *4 (S.D.N.Y. Feb. 2011)
(holding that a complaint that “contain[ed] only an unsupported conclusory
allegation that the [municipality] failed to train the individual [d]efendants”
could not survive a motion to dismiss because the complaint did not
contain facts that “plausibly allege[d] a specific deficiency in the training or
supervision program” (citation omitted)). To the extent that Levine
premises his Monell claim on the fact that the Albany County District
Attorney’s Office has “a de facto policy of offering improper legal advice,
practice, and/or custom of supporting the arrest of individuals who exercise
their rights under the First Amendment . . . to justify a productivity quota,”
such a claim is supported only by pure speculation. (Compl. ¶¶ 4, 111,
117, 130, 158, 165, 172, 179, 207, 211); see 5 Borough Pawn, LLC v. City
of New York, 640 F. Supp. 2d 268, 300 (S.D.N.Y. 2009) (dismissing a
Monell claim where “plaintiffs fail[ed] to allege any facts showing that there
is a [municipal] policy—unspoken or otherwise—that violates the . . .
23
Constitution”). Finally, Griggs’ alleged violation of Levine’s constitutional
rights cannot save his Monell claim. See Connick v. Thompson, 563 U.S.
51, 63-64 (2011) (finding that a “single-incident” constituting a
constitutional violation cannot support the conclusion that a municipality
was failing to train or supervise its subordinates such to support a Monell
claim); see also Askew v. Lindsey, No. 15-CV-7496, 2016 WL 4992641, at
*4 (S.D.N.Y. 2016) (“[A] Monell claim cannot go forward based on . . . a
single incident without more evidence that connects this incident to a
municipal policy or practice.” (citations omitted)). Accordingly, Levine’s
Monell claim against County Defendants is dismissed.
D. NYSP Defendants
1. Corlett’s Personal Involvement
NYSP Defendants contend that Corlett cannot be held individually
liable under 42 U.S.C. §§ 1983 or 1985(3) because he was not personally
involved in any of Levine’s alleged constitutional harms. (Dkt. No. 60,
Attach. 2 at 23-24.) Levine does not appear to respond to this argument,
other than by noting that “Corlett was the Superintendent of the New York
State Police during the time of [his] arrest.” (Dkt. No. 70 at 26.)
Because Levine’s complaint does not aver any personal involvement
24
of Corlett in his alleged constitutional deprivations, beyond the fact that he
served in a supervisory role, all causes of actions under §§ 1983 and 1985
against Corlett are dismissed, see Sant, 821 F. App’x at 45 (noting a
plaintiff must allege defendant’s personal involvement in the violation of
plaintiff’s constitutional rights under 42 U.S.C. §§ 1983 and 1985); see also
Tangreti, 983 F.3d at 618 (finding that there is no personal involvement of
supervisor unless “a plaintiff . . . plead[s] . . . [that the superior] defendant,
through [their] own individual actions, has violated the Constitution”
(internal quotation marks and citation omitted)), and the court declines to
exercise jurisdiction over any remaining state law claims against him. See
Clark, 798 F. Supp. 2d at 408. (Dkt. No. 70 at 11-13, 15-17.)
2. First Amendment and Fourth Amendment Claims
NYSP Defendants seek dismissal of Levine’s First and Fourth
Amendment claims for false arrest and retaliation, because the action
giving rise to these claims—his arrest—was justified by probable cause.
(Dkt. No. 60, Attach. 1 at 9-12, 19-20.) Levine disputes the existence of
probable cause.
A false arrest claim requires that “(1) the defendant intended to
confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3)
25
the plaintiff did not consent to the confinement, and (4) the confinement
was not otherwise privileged.” Weyant v. Okst, 101 F.3d 845, 853 (2d
Cir.1996). The existence of probable cause to arrest “is a complete
defense to an action for false arrest.” Id. at 852 (internal quotation marks
omitted).
“To state a First Amendment retaliation claim, a plaintiff must
establish that: (1) his speech or conduct was protected by the First
Amendment; (2) the defendant took an adverse action against him; and (3)
there was a causal connection between this adverse action and the
protected speech.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267,
272 (2d Cir. 2011) (citations omitted). “[P]robable cause should generally
defeat a retaliatory arrest claim.” Nieves v. Bartlett, 139 S.Ct. 1715, 1727
(2019).
At this time, based solely on the complaint, it cannot be said as a
matter of law that probable cause to arrest Levine existed. NYSP
Defendants’ argument that O’Keefe’s supporting deposition, which states
that Levine made false claims about his business and was attempting to
extort him, and the fact that Altieri and Patenaude “obtained a search
warrant for records from Indeed.com” showing “that O’Keefe Electric and
26
Regan Lawncare . . . did not have any job postings on Indeed.com,”
provided them with probable cause, is contradicted by the complaint.
(Compl. ¶¶ 62-65.) In the complaint, Levine alleges that the job postings
were “plainly visible” online and that neither O’Keefe nor Regan provided
“proof or evidence” to Altieri or Patenaude “that [they] did not authorize, . . .
[or] post such position.” (Compl. ¶¶ 62-65.) Accordingly, the motion to
dismiss is denied as to Altieri and Patenaude.9
3. Malicious Prosecution
NYSP Defendants seek dismissal because Levine has not alleged
that “Altieri, or any [NYSP D]efendant, maintained control of the
prosecution of the criminal charges against plaintiff,” and because probable
cause justified his prosecution. (Dkt. No. 60, Attach. 2 at 13-15.)
Additionally, NYSP Defendants argue that Levine has failed to allege that
the criminal proceeding terminated in his favor, or that they acted with
9 These claims are dismissed against all other remaining NYSP
Defendants because Levine makes no allegations that they were aware of
a lack of probable cause for his arrest. (See generally Compl.)
Additionally, Levine’s claim that NYSP Defendants “failed to intervene to
stop his arrest,” (Compl. ¶ 201), cannot stand against any of the NYSP
Defendants besides Altieri, because the complaint does not allege any
other NYSP Defendant “had a realistic opportunity to intervene” and
“would know that [Levine’s] constitutional rights were being violated.”
Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y.2010) (internal
quotations and citations omitted).
27
malice. (Id. at 13-16.) Levine counters that Altieri and Patenaude
“fabricated evidence” and initiated his prosecution without probable cause.
(Dkt. No. 70 at 14-18.)
To state a malicious prosecution claim pursuant to Section 1983, a
plaintiff must plead the following elements: “(1) the defendant initiated a
prosecution against plaintiff, (2) without probable cause to believe the
proceeding can succeed, (3) the proceeding was begun with malice, and
(4) the matter terminated in plaintiff's favor.” Rentas v. Ruffin, 816 F.3d
214, 220 (2d Cir. 2016) (alterations and citation omitted). “An arresting
officer may be held liable for malicious prosecution if he or she played an
active role in the prosecution, such as giving advice and encouragement or
importuning the authorities to act.” Barone v. United States, No. 12 Civ.
4103, 2014 WL 4467780, at *17 (S.D.N.Y. Sept. 10, 2014) (internal
quotation marks and citation omitted). “In addition, an officer will be liable
for malicious prosecution if he or she creates false information likely to
influence a jury’s decision and forwards that information to prosecutors, or .
. . withholds relevant and material information from the prosecutor.” Id.
(internal quotation marks and citation omitted).
Regarding Altieri, Levine has plausibly alleged that he initiated his
28
criminal proceeding via two “accusatory instruments,” (Compl. ¶ 73),
satisfying the first element of his claim against Altieri. See Levine, 2022
WL 1987845, at *13. Additionally, as noted earlier, at this juncture, it
cannot be said, as a matter of law that probable cause to arrest Levine
existed, (Compl. ¶¶ 62-65); see supra Part IV.D.2, and, therefore, the
second and third elements of Levine’s claim are satisfied with respect to
Altieri. See Crews v. County of Nassau, 996 F. Supp. 2d 186, 207-08
(E.D.N.Y. 2014) (“[I]n most cases, a lack of probable cause—while not
dispositive—tends to show that the accuser did not believe in the guilt of
the accused, and malice may be inferred from the lack of probable cause.”
(internal quotation marks, alterations, and citations omitted)); see also
Levine, 2022 WL 1987845, at *14 (“Thus, at this early stage, because
Plaintiff has alleged a lack of probable cause, the [c]ourt concludes that he
has also alleged malice.”). Levine has also sufficiently pleaded the fourth
element of his claim, with respect to Altieri, by alleging that the criminal
proceedings terminated in his favor. (Compl. ¶ 87); see Thompson v.
Clark, 142 S. Ct. 1332, 1335 (2022) (“To demonstrate a favorable
termination of a criminal prosecution for purposes of the Fourth
Amendment claim under § 1983 for malicious prosecution, a plaintiff need
29
only show that his prosecution ended without a conviction.”) Accordingly,
NYSP Defendants’ motion is denied with respect to Altieri.
With respect to Patenaude, Potts, and Beaudoin, Levine does not
sufficiently allege a malicious prosecution claim, as the complaint does not
alleges that they initiated Levine’s criminal proceeding, (Compl. ¶ 73), and
any argument that they “create[d] false information likely to influence a
jury’s decision,” see Barone, 2014 WL 4467780, at *17, due to their
involvement in the alleged fabrication of O’Keefe’s supporting deposition, is
wholly conclusory, (Compl. ¶ 264 (“[The NYSP Defendants] conspired with
non-state actors to create false information in a supporting deposition.”)).
Accordingly, NYSP Defendants’ motion is granted as to Levine’s malicious
prosecution claim against Patenaude, Potts, and Beaudoin.
4. Fabrication of Evidence
NYSP Defendants argue that “[i]t is well settled that unspecified and
unsubstantiated allegations of fabricated evidence and false statements
along with conclusory allegations are insufficient to state a claim for
fabrication of evidence.” (Dkt. No. 60, Attach. 2 at 22-23 (internal quotation
marks and citation omitted). Levine counters that Altieri “took a deposition
concerning a civil matter and possible civil litigation by [Levine] and turned
30
it into a criminal deposition by . . . [O’Keefe] that did not even state a crime
thus altering the trial process.” (Dkt. No. 70 at 25.)
To state a claim for fabrication of evidence, a plaintiff must allege that
“an (1) investigating official (2) fabricates evidence (3) that is likely to
influence a jury’s decision, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of liberty as a result.” Shabazz v.
Kailer, 201 F. Supp. 3d 386, 394-95 (S.D.N.Y. 2016) (citing Jovanovic v.
City of New York, 486 F. App’x 149, 152 (2d Cir. 2012)).
NYSP Defendants are correct that any allegations that they were
involved in the alleged fabrication of O’Keefe’s supporting deposition are
wholly conclusory, (Compl. ¶ 264 (“[NYSP Defendants] conspired with
non-state actors to create false information in a supporting deposition.”)).
Accordingly, this cause of action is dismissed. See Levine, 2022 WL
1987845, at *15 (concluding that “[p]laintiff's conclusory assertion that
[d]efendants ‘fabricated evidence’” was “insufficient to state a claim”).
5. Equal Protection
The NYSP Defendants argue that Levine’s equal protection claim
must be dismissed because any disparate treatment he faced was not
motivated by discriminatory intent based on membership of a protected
31
class, nor has Levine demonstrated that he is a “class-of-one.” (Dkt.
No. 60, Attach. 2 at 6-9.) Levine counters in an unclear and contradictory
fashion, appearing to allege that he is a member of a protected class due
to his status as a formerly-incarcerated individual,10 and also by attempting
to make out a selective enforcement theory, but then notes that his
complaint “clear[ly] and concise[ly] . . . only support[s] a ‘class [-]of[-
]one’ theory.” (Dkt. No. 70 at 9-11; see Compl. ¶ 103 (“Levine [is] an ex-
offender, which is a protected class in New York State”).)
“The Equal Protection Clause of the Fourteenth Amendment requires
the government to treat all similarly situated individuals alike.” Young v.
Suffolk County, 705 F. Supp. 2d 183, 204 (E.D.N.Y. 2010) (citing City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, (1985)). When a
plaintiff does not allege an equal protection violation due to their
membership in a protected class, they may still prevail on their claim under
a “class-of-one” theory. See NRP Holdings LLC v. City of Buffalo, 916
F.3d 177 (2d Cir. 2019) (“[T]he Supreme Court has . . . endorsed a
class-of-one theory for equal protection claims, under which a single
10 To the extent Levine claims to be part of a protected class due
his status as “an ex-offender,” (Compl. ¶ 103), the court is not persuaded,
see Bottom v. Pataki, No. 9:03-CV-835, 2006 WL 2265408, at *2
(N.D.N.Y. Aug. 2006).
32
individual can claim a violation of her Equal Protection rights based on
arbitrary disparate treatment.” (internal quotation marks and citations
omitted)); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). To succeed under a class-of-one theory, a plaintiff must
demonstrate “[1] that []he has been intentionally treated differently from
others similarly situated and [2] that there is no rational basis for the
difference in treatment.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir.
2019) (citation omitted).
Nowhere in Levine’s complaint does he provide an example of a
comparator who was treated differently than he was, (see generally
Compl.), such to adequately plead his claim under a class-of-one theory,
and, thus, his equal protection claim against NYSP Defendants is
dismissed. See Levine, 2022 WL 1987845, at *11 (dismissing equal
protection claim brought under class-of-one theory where plaintiff “failed to
allege facts regarding any comparator, much less one that is prima facie
identical to him” (internal quotation marks and citations omitted)).
6. Fifth Amendment
NYSP Defendants seek dismissal arguing that the Fifth Amendment
does not apply here as it “governs the conduct of the federal government
33
and federal employees, and does not regulate the activities of state
officials or state actors.” (Dkt. No. 60, Attach. 2 at 20.) Levine counters
that “Altieri, a private person acting under color of law, has not met his
burden . . . that [his] unconstitutional conduct could not be attributed to the
federal government.” (Dkt. No. 70 at 22.)
Notwithstanding the NYSP Defendants’ argument, the court
construes Levine’s cause of action as a “violation[] of his right against
self-incrimination as guaranteed by the Fifth Amendment . . . as applied to
the States and their political subdivisions through the Fourteenth
Amendment.” Terracino v. Barr Pharm. Inc., No. 09 Civ. 09523, 2011 WL
1330776, at *1 (S.D.N.Y. Apr. 4, 2011). However, even assuming that
Altieri’s conduct, as alleged in the complaint, (Compl. ¶¶ 72, 170), was
unconstitutional, Levine still has not stated a claim. “[A] § 1983 action may
exist under the Fifth Amendment self-incrimination clause if coercion was
applied to obtain a waiver of the plaintiff[’s] rights against self-incrimination
and/or to obtain inculpatory statements, and the statements thereby
obtained were used against the plaintiffs in a criminal proceeding.”
Deshawn E. ex rel. Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir.1998)
(emphasis added). Even if Levine has plausibly alleged that Altieri
34
attempted to coerce him into answering questions, “about [his] arrest” after
Levine had indicated that he wished to invoked his right against self-
incrimination, (Compl. ¶ 72), nowhere in the complaint does Levine allege
that he made a statement, let alone that the statement was used against
him in a subsequent criminal proceeding, (see generally Compl.).
Accordingly, this cause of action must be dismissed. See Dunkelberger
v. Dunkelberger, No. 14-CV-3877, 2015 WL 5730605, at *18 (S.D.N.Y.
Sept. 30, 2015) (collecting cases).
7. Conspiracy Under § 1985(3)
NYSP Defendants argue that Levine’s § 1985(3) conspiracy claim
must be dismissed because Levine has not alleged membership of a
protected class, nor has he pleaded a conspiracy with the requisite
specificity. (Dkt. No. 60, Attach. 2 at 17-19.) Levine counters that he is a
member of a protected class “equal to sex, race, [and] age,” due to his
criminal history and has pleaded “a minimal showing” such to “meet his
burden.” (Dkt. No. 70 at 19-20; Compl. ¶ 103.)
To state a cause of action under 42 U.S.C. § 1985(3), a plaintiff must
allege: “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
35
laws, or of equal privileges and immunities under the laws; and 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.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015)
(citation omitted). “The conspiracy must also be ‘motivated by some racial
or perhaps otherwise class-based, invidious discriminatory animus.’” Id.
(quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir.
2007)).
For the reasons already mentioned, see supra note 10, Levine has
not adequately alleged any “racial or perhaps otherwise class-based”
discrimination, and, accordingly, this cause of action is dismissed. See id.
(quoting Cine SK8, 507 F.3d at 791); see also Fox v. City of New York, No.
03 Civ. 2268, 2004 WL 856299, at *9 (S.D.N.Y. Apr. 16, 2004) (finding,
where plaintiff alleged “defendants allegedly acted with animus against
criminal defendants,” that “it is clear that such discrimination against
criminal defendants is not within the narrow ambit that Congress intended
when it enacted Section 1985(3)” (citations omitted)).
8. Other Bases for Dismissal
Finally, NYSP Defendants contend that qualified immunity shields
36
them from liability, as does the Eleventh Amendment, to the extent they are
sued in their official capacities. (Dkt. No. 60, Attach. 2 at 5-6, 26.) Levine
contends that the Eleventh Amendment does not apply where a plaintiff
seeks prospective relief, and that qualified immunity is inapplicable here.
(Dkt. No. 70 at 4-8, 27-29.)
Sovereign immunity, the principle confirmed by the Eleventh
Amendment, generally shields states, their agencies, and departments
from suit in federal court absent consent, waiver, or abrogation. See Va.
Office for Protection and Advocacy v. Stewart, 563 U.S. 247, 253-54
(2011); Papasan v. Allain, 478 U.S. 265, 276 (1986). Under the Ex parte
Young, 209 U.S. 123 (1908), exception, such immunity may also give way
when the plaintiff seeks prospective relief from a state officer in certain
circumstances. See Va. Office, 563 U.S. at 254. However, Ex parte
Young “has no application in suits against the States and their agencies,
which are barred regardless of the relief sought.” P.R. Aqueduct and
Sewer Auth. v. Mecalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see
Pennington Seed, Inc. v. Produce Exch. No. 299, Allied Seed, L.L.C., 457
F.3d 1334, 1342 (Fed. Cir. 2006) (“[P]rospective injunctive relief can only
be had against [a state official].” (emphasis added)).
37
Qualified immunity shields a government employee from liability in
two circumstances: “(1) [when his] conduct did not violate clearly
established rights of which a reasonable person would have known, or (2)
it was objectively reasonable to believe that [his] acts did not violate these
clearly established rights.” Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.
2010) (internal quotation marks, alteration, and citations omitted); see
supra Part IV.C.1. Additionally, a defendant bears the burden of proof in
asserting a qualified immunity defense. See Vincent v. Yelich, 718 F.3d
157, 166 (2d Cir. 2013). To meet this burden at the motion to dismiss
stage, the “facts supporting the defense [must] appear on the face of the
complaint,” and a “plaintiff is entitled to all reasonable inferences from the
facts alleged . . . that defeat the immunity defense.” McKenna v. Wright,
386 F.3d 432, 436 (2d Cir. 2004).
Levine does not specify what prospective relief he seeks in his
complaint, and only states that he “seeks . . . injunctive and declaratory
relief and such other relief as this [c]ourt deems equitable.” (Compl. ¶ 1.)
Affording Levine all the special solitude for which his pro se status entitles
him, he has alleged no facts to plausibly suggest that the violations alleged
in his complaint are ongoing. Accordingly, the Ex parte Young doctrine
38
does not apply here and NYSP Defendants are immune from suit insofar
as they are sued in their official capacities, with respect to any claims
remaining against them, as discussed above.11 See Levine, 2022 WL
1987845, at *10 (finding, where plaintiff made only “vague assertion[s] that
did not request specific injunctive or declaratory relief in his [c]omplaint . . .
[that these] conclusory assertions [we]re insufficient to invoke the
exception for prospective injunctive relief to sovereign immunity under the
Ex [p]arte Young doctrine”).
Additionally, here, NYSP Defendants’ one sentence argument that
they “are entitled to qualified immunity with respect to [Levine]’s federal
claims because, as discussed above, the [c]omplaint is deficient of facts
from which it could be plausibly inferred that a violation of [Levine]’s
constitutional rights occurred,” is insufficient to establish the defense at this
stage. See Ziemba v. Lynch, No. 11-cv-974, 2013 WL 5232543, at *9 (D.
Conn. Sept. 17, 2013) (denying motion to dismiss on qualified immunity
where defendant “only include[d] the legal standard for establishing
11 Regardless of the type of relief sought by Levine, the Eleventh
Amendment would shield the New York State Police and Troop G. See
P.R. Aqueduct and Sewer Auth., 506 U.S. at 146 (1993) (finding Ex parte
Young “has no application in suits against the States and their agencies,
which are barred regardless of the relief sought”).
39
qualified immunity and, in a conclusory manner, state[d] that the claims . . .
are subject to dismissal based on” that ground); see also Levine, 2022 WL
1987845, at *17.
E. Motion to Amend
Because Levine’s motion to amend only seeks to amend the
complaint to correct two “caption scrivener error[s],” regarding two
defendants who are dismissed from this action, (Dkt. No. 56 at 1), the
motion is denied as moot.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that complaint is construed as alleging the following
claims: First Amendment retaliation, Fourth Amendment false arrest,
Fourteenth Amendment equal protection, Fourth Amendment malicious
prosecution, Fifth Amendment right against self-incrimination, Fourth
Amendment failure to intervene, Sixth Amendment fabrication of evidence,
all pursuant to 42 U.S.C. § 1983, against defendants Altieri, Patenaude,
Potts, Beaudoin, Soares, Griggs, Corlett, O’Keefe, and Private Actor
Defendants; Fourth Amendment excessive force, pursuant to 42 U.S.C.
§ 1983, against Potts; a conspiracy claim pursuant to § 1985(3) against
40
defendants Altieri, Patenaude, Potts, Beaudoin, Soares, Griggs, Corlett,
Private Actor Defendants; a Monell claim against defendants Albany
County and the Albany County District Attorney’s Office; and numerous
state law claims against O’Keefe, Regan, O’Keefe Electrical LLC, and
Regan Lawncare; and it is further
ORDERED that O’Keefe and Okeefe Electric’s motion to dismiss
(Dkt. No. 39) is GRANTED and O’Keefe and Okeefe Electric are
DISMISSED from this action; and it is further
ORDERED that Regan and Regan Lawncare’s motion to dismiss
(Dkt. No. 48) is GRANTED and Regan and Regan Lawncare are
DISMISSED from this action; and it is further
ORDERED that County Defendants’ motion for judgment on the
pleadings (Dkt. No. 61) is GRANTED and Albany County, the Albany
County District Attorney's Office, Griggs, and Soares are DISMISSED from
this action; and it is further
ORDERED that NYSP Defendants’ motion for judgment on the
pleadings (Dkt. No. 60) is GRANTED IN PART and DENIED IN PART as
follows:
GRANTED as to all claims against the New York State Police,
41
Troop G, Corlett, and Beaudoin, and the New York State
Police, Troop G, Corlett, and Beaudoin, are DISMISSED from
this action;
GRANTED as to all claims against Alteri, Patenaude, and Potts
in their official capacities;
GRANTED as to Levine’s § 1983 Fourteenth Amendment equal
protection claim, § 1983 Fourth Amendment malicious
prosecution claim, § 1983 Fifth Amendment right against self-
incrimination claim, § 1983 Fourth Amendment failure to
intervene claim, § 1983 Sixth Amendment fabrication of
evidence claim, and § 1985(3) conspiracy claim as against
Patenaude in his individual capacity;
GRANTED as to Levine’s § 1983 Fourteenth Amendment equal
protection claim, § 1983 Fifth Amendment right against self-
incrimination claim, § 1983 Sixth Amendment fabrication of
evidence claim, and § 1985(3) conspiracy claim as against
Altieri in his individual capacity;
GRANTED as to a Levine’s § 1983 First Amendment
retaliation claim, § 1983 Fourth Amendment false arrest claim,
42
§ 1983 Fourteenth Amendment equal protection claim, § 1983
Fourth Amendment malicious prosecution claim, § 1983 Fifth
Amendment right against self-incrimination claim, § 1983
Fourth Amendment failure to intervene claim, § 1983 Sixth
Amendment fabrication of evidence claim, and § 1985(3)
conspiracy claim as against Potts in his individual capacity;
DENIED as to Levine’s § 1983 First Amendment retaliation
claim and § 1983 Fourth Amendment false arrest claim as
against Patenaude in his individual capacity;
DENIED as to Levine’s § 1983 First Amendment retaliation
claim, § 1983 Fourth Amendment false arrest claim, § 1983
Fourth Amendment malicious prosecution claim, and § 1983
Fourth Amendment failure to intervene claim as against Altieri
in his individual capacity;
DENIED as to Levine’s § 1983 Fourth Amendment excessive
force claim as against Potts in his individual capacity; and it is
further
ORDERED that the following claims remain: Levine’s (1) § 1983 First
Amendment retaliation claim against Altieri and Patenaude in their
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individual capacities, (2) § 1983 Fourth Amendment false arrest claim
against Altieri and Patenaude in their individual capacities, (3) § 1983
Fourth Amendment malicious prosecution claim against Altieri in his
individual capacity, (4) § 1983 Fourth Amendment failure to intervene claim
against Altieri in his individual capacity, and (5) § 1983 Fourth Amendment
excessive force claim against Potts in his individual capacity; and it is
further
ORDERED that Levine’s motion to amend (Dkt. No. 56) is DENIED
as moot; and it is further
ORDERED that the parties shall contact Magistrate Judge Daniel J.
Stewart to schedule further proceedings; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.
September 26, 2022 \
Albany, New York :
os Dam
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