Dos Santos v. The Onondaga County District Attorney's Office

NORTHERN DISTRICT OF NEW YORK

ALEJANDRO DOS SANTOS, III,

Plaintiff,

v. 5:22-CV-1102

(MAD/ATB)

THE SYRACUSE POLICE DEPT., et al.

Defendants.

ALEJANDRO DOS SANTOS, III,

Plaintiff,

v. 5:22-CV-1164

(MAD/ATB)

JARRETT WOODFORK., et al.

Defendants.

ALEJANDRO DOS SANTOS, III, Plaintiff, Pro Se

ANDREW T. BAXTER, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk sent to this court, for review, two related civil rights complaints,

together with motions to proceed in forma pauperis (“IFP”), filed by plaintiff Alejandro

Dos Santos, III. (Case No. 5:22-CV-1102 (“No. 1102”), Dkt. Nos. 1, 2; Case No.

5:22-CV-1164 (“No. 1164”), Dkt. Nos. 1, 2). The court has reviewed the pro se

plaintiff’s IFP applications and finds that plaintiff has demonstrated sufficient

economic need to meet the financial criteria for proceeding IFP.

However, in addition to determining whether plaintiff qualifies to proceed IFP,

the court must also consider the sufficiency of the allegations set forth in the complaints

in light of 28 U.S.C. § 1915, which provides that the court shall dismiss a case at any

time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state

defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether

the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.

319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of

court process, as well as to discourage the waste of judicial resources. Neitzke, 490

U.S. at 327. The court has a duty to show liberality toward pro se litigants, and must

use extreme caution in ordering sua sponte dismissal of a pro se complaint before the

adverse party has been served and has had an opportunity to respond. However, the

court still has a responsibility to determine that a claim is not frivolous before

permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp.,

221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous

complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain

sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,

550 U.S. at 555). In assessing whether a complaint states a plausible claim, the court

may review documents integral to the complaint upon which the plaintiff relied in

drafting his pleadings, as well as any documents attached to the complaint as exhibits

and any statements or documents incorporated into the complaint by reference. See,

v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).

I. Plaintiff’s Complaints

A. Case No. 1102

Plaintiff’s first complaint was filed on October 25, 2022. It alleges that, on

October 20, 2019, Syracuse City Court Judge Vanessa E. Bogan issued a search warrant

for the apartment of Jasmine McCarthy on Jamesville Avenue in Syracuse, seeking

evidence of suspected child abuse, after plaintiff and Ms. McCarthy brought their infant

daughter to the emergency room with symptoms of a serious brain injury. (Compl., No.

1102, Dkt. No.1 at 5, 9, 33).1 After the officers executing the search warrant found, in

the rear bedroom of the apartment, a shotgun which plaintiff claims was legally owned

by Ms. McCarthy, defendant Detective Pelz sought an amended search warrant from

Judge Bogan. (Id. at 5, 8).2 Plaintiff asserts that Det. Pelz3 “falsely” stated in the

supporting affidavit that plaintiff resided in the Jamesville Avenue apartment, and that

he was a convicted felon who could not legally possess a firearm. (Id. at 34-36). The

officers then allegedly moved the shotgun and other evidence to different locations in

1 Plaintiff attached, to his complaints, various other documents, including letters of intent

to sue, police photographs of the premises searched, search warrants, and various police reports

related to the police investigation. Given the inconsistent page numbering of plaintiff’s

complaints and the attached exhibits, the court references the page numbers assigned by the

court’s electronic docketing program–CM/ECF.

2 The searching officers also found some drug paraphernalia and suspected marijuana.

(No. 1102, Dkt. No. 1 at 7, 27, 28, 38, 41, 43).

3 Plaintiff misspelled this defendant’s last name as “Peltz.” The court will use the correct

spelling of this defendant’s last name–“Pelz.”

shotgun, the ammunition, and a letter addressed to plaintiff at the address of the

Jamesville Avenue apartment were found together in the master bedroom. (Id. at 6-8,

22-24, 38, 41, 43). Plaintiff alleges that the officers tampered with the evidence and

“manufactured a crime scene” in an effort to “seal in” a criminal weapons possession

charge against him. (Id. at 5, 8, 9).

Plaintiff has consistently alleged that he did not reside with Jasmine McCarthy in

the Jamesville Avenue apartment and was not a convicted felon. (No. 1102, Dkt. No. 1

at 5, 9, 13, 16, 39). He noted that the Syracuse Police ultimately concluded that there

was not enough evidence to charge him (or Ms. McCarthy) with any criminal offense,

and he does not allege that he was ever arrested. (Id. at 8, 9, 12, 42). Plaintiff asserts,

however, that the false and misleading evidence that the defendants manufactured in an

unsuccessful effort to support a criminal case against him were later used in Family

Court proceedings, which, for an extended period of time, prevented plaintiff from

enjoying visitation or custodial rights with respect to his daughter. (Id. at 9, 12, 13).

Plaintiff further claims that the defendants violated his parental rights and those of

Jasmine McCarthy by having them removed from the hospital six hours after they

brought their daughter to the emergency room on October 20, 2019, which prevented

them from continued contact with their infant child. (Id. at 13).

Plaintiff alleges, in three causes of action, that the defendants violated his

constitutional rights under the Fourth, Sixth, and Fourteenth Amendments. (No. 1102,

Dkt. No. 1 at 4). The Fourth Amendment claim is predicated on plaintiff’s allegations

submitted tampered evidence, misleading Judge Bogan into executing the amended

warrant. (Id. at 11). Plaintiff also alleges that the officer’s conduct relating to the

search violated federal and state criminal laws, and he demands the return of the

property seized. (Id. at 9-10, 15). The plaintiff also alleges that the police violated his

Sixth Amendment rights by “making it seem as if [a] crime has been committed with

falsified evidence and statements.” (Id. at 12). Although the Syracuse Police closed

their criminal case, plaintiff alleges that the falsified evidence from the investigation

became “the start and foundation of the family court/child protective services case”

against him. (Id. at 12). Finally, plaintiff alleges that his Fourteenth Amendment rights

were violated when the defendants “seized access to my child at the hospital without a

court order and the[n] submitted false reports and evidence against me which cause[d]

me to have my parental rights taken away without any due process of law for over 3

years and counting.” (Id. at 13). Plaintiff seeks compensatory and punitive damages of

$10,500,000. (Id. at 15).

B. Case No. 1164

On November 8, 2022, plaintiff filed a separate lawsuit against Assistant District

Attorney (“ADA”) Jarrett Woodfork and the Onondaga County District Attorney’s

Office (“D.A.’s Office”), alleging violations of his rights under the Fourth Amendment

and 42 U.S.C. § 1986. (Compl., No. 1164, Dkt. No. 1). The complaint in Case No.

1164 alleges many of the same facts regarding the search of the Jamesville Avenue

apartment that were contained in the complaint in No. 1102. (Id. at 6-7). The Fourth

and guns” seized during the search. (Id. at 2, 3, 5, 6). The complaint also suggests that

ADA Woodfork and the D.A.’s Office violated Section 1986 by failing to take action

against the police officers involved in the search, notwithstanding the fact that plaintiff

advised them of the alleged wrongdoing of the officers. (Id. at 2, 3, 6). Plaintiff

demands return of all property illegally seized and $1,000,000 in damages. (Id. at 4).

For the reasons stated below, the court concludes that both complaints fail to

state viable claims for any violation of plaintiff’s constitutional rights. Accordingly,

this court recommends that plaintiff’s complaint be dismissed.

II. Fourth Amendment Claims

A. Applicable Law

Plaintiff claims that the defendants violated his Fourth Amendment rights in

connection with the search of Jasmine McCarthy’s apartment on October 20, 2019.4

4 The court notes that plaintiff’s Fourth Amendment claim, and any other claims based

solely on the defendants’ conduct on October 20, 2019, may be barred by the applicable statute of

limitations. Federal courts borrow the state law personal injury statute of limitations period for

purposes of filing section 1983 actions, which, in New York, is three years. See Owens v. Okure,

488 U.S. 235, 250-51 (1989); N.Y. C.P.L.R. § 214(5). Plaintiff’s first complaint in this action

was dated and filed on October 25, 2022, more than three years after the search on October 20,

2019. Even if the statute of limitations has run, “the doctrine of equitable tolling permits courts

to deem filings timely where a litigant can show that ‘he has been pursuing his rights diligently’

and that ‘some extraordinary circumstance stood in his way.’” Torres v. Barnhart, 417 F.3d 276,

279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Second

Circuit has cautioned against sua sponte dismissal on untimeliness grounds without giving the

litigant notice and an opportunity to be heard. Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir.

2007) (“The pleading requirements in the Federal Rules of Civil Procedure . . . do not compel a

litigant to anticipate potential affirmative defenses, such as the statute of limitations, and to

affirmatively plead facts in avoidance of such defenses.”) Accordingly, in connection with this

initial review, the court will not recommend dismissal of any of plaintiff’s claims based on the

statute of limitations. The plaintiff should, however, be prepared to present any facts supporting

a claim of equitable tolling should the defendants elect to pursue that defense.

plaintiff were violated are the same as those applicable to criminal defendants seeking

suppression of the fruits of a law enforcement search. Calderon v. City of New York,

138 F. Supp. 3d 593, 604 (S.D.N.Y. 2015).

“Normally, the issuance of a warrant by a neutral magistrate, which depends on a

finding of probable cause, creates a presumption that it was objectively reasonable for

the officers to believe that there was probable cause . . . .” Golino v. City of New

Haven, 950 F.2d 864, 870 (2d Cir. 1991). “[W]hile a party challenging a warrant on the

ground that it was issued on less than probable cause bears a ‘heavy burden,’ . . . that

burden can be met . . . [if] the affidavit on which the probable cause determination was

based was knowingly or recklessly false.” Calderon v. City of New York, 138 F. Supp.

3d at 604. A party who challenges the legality of a search warrant on this basis must

show that “(1) the affiant knowingly and intentionally, or with a reckless disregard for

the truth, made false statements or omissions in his application for a warrant, and (2)

such statements or omissions were necessary to the finding of probable cause.” Conroy

v. Caron, 275 F. Supp. 3d 328, 346-47 (D. Conn. 2017) (citing, inter alia, Franks v.

Delaware, 438 U.S. 154, 155-56 (1978).

“Evidence seized pursuant to a warrant does not violate the Fourth Amendment

even if the warrant lacks probable cause or is technically deficient if the executing

officers relied upon it in ‘objective good faith.’” Cherry v. Jorling, 31 F. Supp. 2d 258,

268 (W.D.N.Y. 1998) (citing United States v. Leon, 468 U.S. 897, [919-22] (1984)).

“For the good faith exception to apply, the officers who obtained the warrant must

known facts.” Id. (citing United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996).

Although warrantless searches of private property are generally presumed to be

unreasonable, the law recognizes certain other exceptions, for example, when the search

is conducted pursuant to the consent of an authorized person. See Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973); United States v. Lewis, 386 F.3d 475, 481 (2d

Cir. 2004) (recognizing that where authorized party consents to search, “neither a

warrant nor probable cause is necessary”).

“To have standing to object to an entry and search of a home under the Fourth

Amendment, a plaintiff must show that he had a “‘legitimate expectation of privacy’” in

the place searched.” Nieves v. New York City Police Dep’t, 716 F. Supp. 2d 299, 307 &

n.62 (S.D.N.Y. 2010) (citing U.S. v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008)

(quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). “‘This inquiry involves two

distinct questions: first, whether the individual had a subjective expectation of privacy;

and second, whether that expectation of privacy is one that society accepts as

reasonable.’” Id. at 307 & n.63 (citing U.S. v. Hamilton, 538 F.3d at 167).

B. Analysis

1. The Search

For various reasons, plaintiff has not stated a viable Fourth Amendment claim

relating to the search of Jasmine McCarthy’s apartment by the defendant officers.5

5 Plaintiff’s claims relating to the search appear to be based, in part, on the officer’s

alleged violations of federal or state criminal statutes such as perjury or evidence tampering.

(Case No. 1102, Dkt. No. 1 at 9-10). However, plaintiff may not assert claims under Section

1983 based on criminal violations. See, e.g., Ong v. Park Manor (Middletown Park) Rehab. &

repeatedly insisted that he did not reside in the Jamesville Avenue apartment where

Jasmine McCarthy and his daughter lived. (See, e.g., No. 1102, Dkt. No. 1 at 5, 13, 16,

39). Moreover, plaintiff denied ownership or possession of the key items seized in the

search, including the shotgun. (No. 1102, Dkt. No. 1 at 5, 16 (“legally owned shotgun

belong[ed] to my daughter’s mother”)). Thus, plaintiff, by his own admissions, lacks

standing to claim that his Fourth Amendment rights were violated by the search of

Jasmine McCarthy’s apartment.6 See, e.g., Tobias v. Cnty. of Putnam, 191 F. Supp. 2d

364, 372-73 (S.D.N.Y. 2002) (Mr. Tobias, who had his own apartment in a different

town, and did not live at the cottage “cannot say that he had a reasonable expectation of

privacy” in the cottage); U.S. v. Sanchez, 419 F. App’x 27, 30-31 (2d Cir. 2011)

(“Samuels’s own affidavit disclaimed any expectation of privacy in his ex-girlfriend’s

apartment, stating that he ‘do[es] not live’ there, ‘never lived’ there, and ‘did not have

Healthcare Ctr., 51 F. Supp. 3d 319, 348 n.19 (S.D.N.Y. 2014) (allegations that defendants

violated criminal statutes by submitting false statements and falsified documents, or committing

perjury “cannot form the basis of a . . . § 1983 or related claim given that those statutes apply

only to violations of federal constitutional rights”) (collecting cases); Patterson v. Patterson, No.

1:16-CV-00844, 2019 WL 1284346, at *7 (W.D.N.Y. Mar. 20, 2019) (“Courts within this Circuit

have accordingly held consistently that criminal charges . . . ‘cannot be prosecuted by a private

person.’”) (collecting cases).

6 Because plaintiff is not a licensed attorney, he may not litigate claims on behalf of Ms.

McCarthy. See, e.g., Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (federal statute

governing appearances in federal court “does not permit ‘unlicensed laymen to represent anyone

else other than themselves.’”) (citations omitted); DePonceau v. Pataki, 315 F. Supp. 2d 338,

341-42 (W.D.N.Y. 2004) (pro se plaintiff did not have standing to file § 1983 complaint on

behalf of other individuals, even though they had given him power of attorney, where plaintiff

did not have license to practice law); Silver v. D.C. Metropolitan Police Dept., 939 F. Supp. 2d

20, 21, 22 (D.D.C. 2013) (Arrestee bringing § 1983 action against police officers in connection

with warrantless search of his grandmother’s house could not, as a lay person, bring Fourth

Amendment claims on behalf of his grandmother and uncle).

permission.’ He therefore may not challenge the search of that home.”).

The police records attached to plaintiff’s complaint document that Jasmine

McCarthy consented to the search of her apartment (No. 1102, Dkt. No. 1 at 37, 39),

which would likely make the search compliant with the Fourth Amendment even if the

amended warrant was tainted by the alleged falsification of the affidavit in support of

the amended search warrant. Even if Jasmine McCarthy might contest that she

voluntarily consented to the search, plaintiff would not have standing to assert that

challenge in support of his Fourth Amendment claim.

The court also notes that, other than identifying Det. Dallas Pelz as the affiant on

the amended search warrant, the complaint does not plead any facts indicating that the

other officers participating in the search knew of the alleged falsification of the

affidavit or would not have relied, in good faith, on the amended warrant or the consent

provided by Jasmine McCarthy. Plaintiff’s names, as defendants, every officer who

appears to have been involved in the search,7 without pleading any facts indicating that

the officers other than Det. Pelz were personally involved in the alleged constitutional

violations relating to the search.8 Hence, even if the plaintiff had standing to challenge

7 Plaintiff purports to identify the officers involved in the search from a “CNYLEADS CS

INCIDENT PAGE,” (No. 1102, Dkt. No. 1 at 7, ¶ 9), which does not appear to be attached as an

exhibit to the complaint. The court found no other documents attached to the complaint which

indicated that defendants Demand, Henderson, or Malone were involved in the search, as

plaintiff alleges.

8 It has long been established that “personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983.” See Wright v.

Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted); Black v. Coughlin, 76 F.3d 72, 74 (2d

Cir. 1996).

Fed. R. Civ. P. 8(a)9 with respect to the Fourth Amendment claim against all but one of

the officers who were involved in the search.

2. Failure to Return Seized Property

In both complaints, the plaintiff has complained that the police and the District

Attorney’s Office refused to return certain property to plaintiff even though they

determined that they lacked sufficient evidence to prosecute him. Plaintiff denied

ownership or possession of the property seized from the apartment of Jasmine

McCarthy, particularly the shotgun that ADA Woodfork did not allow to be returned.10

Based on the analysis above, plaintiff therefore lacks standing to assert claims based on

the failure of the police or ADA Woodfork to return that property.

Deprivation of property by a state actor, whether done intentionally or

negligently, will not support a due process claim redressable under § 1983 if “adequate

state post-deprivation remedies are available.” Davis v. New York, 311 F. App’x 397,

400 (2d Cir. 2009) (quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)). Courts in

the Second Circuit addressing this issue have dismissed federal claims for deprivation

of property without due process of law, reasoning that New York has adequate state

9 Fed. R. Civ. P. 8(a)(2) and 8(d)(1) require that a complaint contain “‘a short and plain

statement of claim showing that the pleader is entitled to relief,’ and that each averment be

‘concise and direct.’” Whitfield v. Johnson, No. 18-CV-1232, 2018 WL 1385890, at *2

(dismissing, under 28 U.S.C. § 1915(a)(3), a “complaint [which] fails to give the defendants fair

notice of plaintiff’s claims and fails to allege facts against each individual named in the caption

of the complaint”) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).

10 The complaint in Case No. 1164 indicates that most of Ms. McCarthy’s property, other

than “weapons and guns” were eventually returned to her. (No. 1164, Dkt. No. 1 at 5, 6).

conversion with the Court of Claims.” Wahid v. Mogelnicki, 406 F. Supp. 3d 247, 249-

50 (E.D.N.Y. 2017).

Based on plaintiff’s allegations, it would appear that the failure to return Jasmine

McCarthy’s property by the police and ADA Woodfork were random or unauthorized

acts by employees, rather than actions pursuant to an established government

procedure. With respect to ADA Woodfork, the complaint states that he “interjected

himself into the matter and blocked the release of the property that was already released

by the Syracuse Police who obtained it illegally.” (No. 1164, Dkt. No. 1 at 2).

Accordingly, even if plaintiff had standing to raise a Section 1983 due process claim for

deprivation of property, it would be subject to dismissal due to the availability of other

adequate state post-deprivation remedies, based on the authority cited above.

III. Failure of the D.A.’s Office to Prosecute Officers Involved in the Search

Plaintiff alleges that ADA Woodfork and the D.A.’s Office violated his rights

under 42 U.S.C. § 1986 when it failed to investigate or prosecute the officers involved

in the search of the Jamesville Avenue apartment, after learning about their illegal

conduct from plaintiff. (No. 1162, Dkt. No. 1 at 2, 3, 6, 7).11 The complaint in Case

No. 1162 fails to state a viable claim for relief relating to the failure of the D.A.’s

Office to investigate or prosecute, under Section 1986 or otherwise.

11 Plaintiff may also be asserting that the D.A.’s Office failed to intervene to prevent the

allegedly unconstitutional actions of the officers in connection with the search. However, as

discussed further below, plaintiff does not make any non-conclusory allegations indicating that

the D.A.’s Office had contemporaneous knowledge of the officer’s alleged misconduct in

connection with the search, or had the ability to intervene to stop any such conduct.

“42 U.S.C. § 1985. . . permits the recovery of damages against persons who

conspire to violate a plaintiff’s civil rights. Section 1986 ‘provides a cause of action

against anyone who having knowledge that any of the wrongs conspired to be done and

mentioned in section 1985 are about to be committed and having power to prevent or

aid, neglects to do so.’” DeLong v. Soufiane, No. 05-CV-5529, 2010 WL 234781, at *6

(E.D.N.Y. Jan. 14, 2010) (citing, inter alia, Mian v. Donaldson, Lufkin & Jenrette Sec.

Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)). “For this reason, a claim under Section 1986

must be predicated upon a valid Section 1985 claim.” Id. (citing Brown v. City of

Oneonta, New York, 221 F.3d 329, 341 (2d Cir. 2000)). A valid claim under Sections

1985 and 1986 must allege that “defendants engaged in a conspiracy that was motivated

by invidious discriminatory animus.” White v. Moylan, 554 F. Supp. 2d 263, 265 n.1

(D. Conn. 2008) (citations omitted). A complaint which contains only bare, conclusory

allegations of a conspiracy, without any recitation of supporting facts which tend to

show the existence of an unlawful agreement, is insufficient to establish a cause of

action under Sections 1985 or 1986. McKnight v. Middleton, 699 F. Supp. 2d 507, 531

(E.D.N.Y. 2010), aff’d, 434 F. App’x 32 (2d Cir. 2011).

“The law in th[e Second] Circuit has long shielded federal prosecutors with an

absolute immunity from any damage actions based on their conduct while acting in

their official capacities[,]” including in actions under Section 1985. Boruski v. Stewart,

381 F. Supp. 529, 534 (S.D.N.Y. 1974); accord, Willis v. Blevins, 957 F. Supp. 2d 690,

693-94 (E.D. Va. 2013) (“The absolute immunity enjoyed by prosecutors subject to

afforded to judges and extended to prosecutors acting in a quasi-judicial capacity.”)

(citing Imbler v. Pachtman, 424 U.S. 409, 420 (1976)). The Second Circuit has

recently stated: “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.’” Anilao v. Spota, 27 F.4th 855, 864 (2d Cir. 2022)

(citation omitted). “The immunity covers ‘virtually all acts, regardless of motivation,

associated with [the prosecutor’s] function as an advocate.’” Id. (citations omitted).

“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.” Id. (citing, inter alia, Imbler, 424 U.S. at 431). Further more, “[t]he decision to

investigate or prosecute a person for an alleged violation of a criminal statute is left to

the discretion of the federal law enforcement agencies, and federal courts traditionally

refrain from overturning, at the instance of a private person, discretionary decisions of

federal prosecuting authorities not to prosecute persons against whom a complaint of

criminal conduct has been made.” Rzayeva v. United States, 492 F. Supp. 2d 60, 84 (D.

Conn. 2007); see also Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375,

382-83 (2d Cir.1973) (finding no authority, in civil rights action, to compel state

prosecutors to investigate and prosecute violation of New York state criminal law).

B. Analysis

Plaintiff’s complaints claim, in conclusory fashion, that all of the officers

purportedly involved in the search of the Jamesville Avenue apartment conspired to

amended search warrant and by “staging” the evidence. The initial complaint makes

one passing reference suggesting the officers were motivated by “blatant and extreme

racism,” without providing any further support that the alleged conspiracy was

motivated by racial animus, as required to establish a violation of Sections 1985 and

1986. (Case No. 1102, Dkt. No. 1 at 9). Plaintiff’s claim under Section 1986 requires

proof that ADA Woodfork or the D.A.’s Office had contemporaneous knowledge of the

wrongs the police conspired to commit in connection with the search, and that those

defendants had the power to prevent those wrong and, neglected to do so. Nothing in

either complaint plausibly alleges that crucial element of a Section 1986 violation.12

Hence, plaintiff fails to state a plausible claim under Sections 1985 and 1986.

In any event, to the extent the D.A.’s Office decided not to investigate or

prosecute the police officers for the misconduct alleged by plaintiff, that decision

would clearly trigger absolute prosecutorial immunity, based on the authority cited

above. Any civil rights claim predicated on the failure of the D.A.’s Office to

investigate or prosecute the police officers involved in the search, whether under

Section 1986 or some other authority, would not be viable.

IV. Sixth Amendment Claims

Plaintiff acknowledges that he was never prosecuted as a result of the search and

12 Plaintiff alleges that he informed the D.A.’s Office of the wrongdoing of the police but

that clearly would not have happened until after the allegedly illegal search was completed. Even

if ADA Woodfork knew of the police misconduct when he blocked the return of the shotgun to

Jasmine McCarthy, the failure to return that property does not support a viable civil rights claim

for the reasons discussed above. In any event, plaintiff would lack standing to assert any claim

regarding the return of property owned and possessed by others.

the use of allegedly false evidence obtained from the police search and related

investigation in connection with Family Court proceedings addressing the custody of

his daughter with Jasmine McCarthy. Sixth Amendment rights are limited to criminal

prosecutions13 and do not apply to civil proceedings, such as in Family Court. See, e.g.,

Sundbye v. Ogunleye, 3 F. Supp. 2d 254, 262 n.14 (E.D.N.Y. 1998) (claim that Sixth

Amendment rights apply in Family Court proceedings is without merit because such

proceedings are civil in nature); Williams v. Savory, 87 F. Supp. 3d 437, 451-52

(S.D.N.Y. 2015) (proceedings involving the emergency removal of children from the

custody of their parent were civil in nature, not criminal, so the Sixth Amendment did

not apply) (citing, inter alia, People v. Roselle, 84 N.Y.2d 350, 355 (1994) (“The

orientation of Family Court is rehabilitative, directed at protecting the vulnerable child,

as distinct from the penal nature of a criminal action which aims to assess blame for a

wrongful act and punish the offender.”)).

V. Due Process Claims

Plaintiff’s first complaint alleges that the Syracuse Police Department defendants

violated his due process rights under the Fourteenth Amendment by blocking his access

to his daughter six hours after he took her to the hospital. (No. 1102, Dkt. No. 1 at 13).

He further claims due process violations because those defendants made false and

misleading statements to Social Service case workers and Family Court judges, which

13 The Sixth Amendment “‘does not attach until a prosecution is commenced, that is, at or

after the initiation of adversary judicial criminal proceedings–whether by way of formal charge,

preliminary hearing, indictment, information or arraignment.’” Texas v. Cobb, 532 U.S. 162,

166-68 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).

and custodial rights. (Id. at 9, 12, 13). Plaintiff’s conclusory allegations do not provide

any details identifying which defendants were engaged in blocking his access to his

daughter on October 20, 2019, or how that was carried out. Nor does the complaint

provide any particulars about which defendants communicated the results of their

investigation of plaintiff and Jasmine McCarthy to case workers or in connection with

Family Court proceedings. Accordingly, plaintiff’s first complaint fails to satisfy the

minimal notice pleading requirements of Fed. R. Civ. P. 8(a). As discussed below,

there are other reasons why plaintiff may not be able to state a viable claim for due

process violations under the apparent circumstances of this case.

A. Applicable Law

“Parents . . . have a constitutionally protected liberty interest in the care, custody

and management of their children.” Southerland v. City of New York, 680 F.3d 127,

142 (2d Cir. 2012) (citations omitted). “First, both the parents and the children may

have a cause of action for violation of the Fourteenth Amendment under a theory of

denial of procedural due process.” Id. The Fourteenth Amendment requires that,

“except in emergency circumstances, judicial process must be accorded both parent and

child before removal of the child from his or her parent’s custody may be effected.” Id.

(citations omitted). The emergency exception allows “government officials [to] remove

a child from his or her parents’ custody before a hearing is held where there is an

objectively reasonable basis for believing that a threat to the child’s health or safety is

imminent.” Gottlieb v. County of Orange, 84 F.3d 511, 518, 520 (2d Cir. 1996).

right to substantive due process.” Southerland, 680 F.3d at 142. “Such a claim can

only be sustained if the removal of the child ‘would have been prohibited by the

Constitution even had the [parents] been given all the procedural protections to which

they were entitled.’” Id. (citations omitted). “To prevail on a substantive due process

claim, a plaintiff must establish that the infringement on her liberty interest to be with

her children is ‘so shocking, arbitrary and egregious that the Due Process clause would

not countenance it even were it accompanied by full procedural protection.’” Hunter v.

Child Protective Servs. of Niagara Cnty., No. 1:20-CV-18, 2021 WL 2368024, at *12

(W.D.N.Y. Feb. 22, 2021), report and recommendation adopted, 2021 WL 1996772

(W.D.N.Y. May 19, 2021) (citing Anthony v. City of New York, 339 F.3d 129, 143 (2d

Cir. 2003)).

In American Airlines, Inc. v. Block, the Second Circuit held that “[a] federal court

presented with matrimonial issues or issues ‘on the verge’ of being matrimonial in

nature should abstain from exercising jurisdiction so long as there is no obstacle to their

full and fair determination in state courts.” 905 F.2d 12, 14 (2d Cir. 1990). Deem v.

DiMella-Deem, 941 F.3d 618, 623-25 (2d Cir. 2019) (“Deem I”) re-affirmed the vitality

of domestic relations abstention doctrine articulated in American Airlines. In Deem I

the plaintiff sued his estranged wife and others under Section 1983, for damages and

injunctive relief, alleging that they conspired to maliciously prosecute him and violate

his right to intimate association with his children by seeking and obtaining a temporary

order of protection prohibiting him from contacting his children. Deem I, 941 F.3d at

American Airlines because Deem’s claims were, “at a minimum, on the verge of being

matrimonial in nature” and that there was “no obstacle to their full and fair

determination in state courts.” Id. at 623. In a second lawsuit, the same plaintiff again

sued his estranged wife and others, for damages and injunctive relief, for obtaining an

extension of the temporary order of protection from the family court, which allegedly

deprived plaintiff of his due process rights by preventing him from seeing his children

and gaining access to his guns. Deem v. DiMella-Deem, 800 F. App’x 62, 62-63 (2d

Cir.), cert. denied, U.S. , 141 S. Ct. 244 (2020) (“Deem II”). The Second Circuit in

Deem II affirmed the dismissal of this action, again applying the domestic relations

abstention doctrine. Id.

“[W]itnesses, including police officers, who testify in judicial proceedings[,] . . .

‘are integral parts of the judicial process’ and, accordingly, are shielded by absolute

immunity.” Cleavinger v. Saxner, 474 U.S. 193, 200 (1985) (citations omitted). Such

absolute immunity applies to witnesses, “whether governmental, expert, or lay

witnesses” in Family Court proceedings. Storck v. Suffolk Cnty. Dep’t of Soc. Servs.,

62 F. Supp. 2d 927, 945 (E.D.N.Y. 1999).

B. Analysis

1. The October 20, 2019 Incident

As noted above, the plaintiff’s initial complaint provides no details as to the

circumstances by which he and Jasmine McCarthy were deprived of access to their

alleged conduct. One of the police reports attached to plaintiff’s complaint documented

that Patrol Officer Mitchell Anthony responded to Upstate Hospital in response to a

“Child complaint” at approximately 11:31 p.m. on Saturday, October 19, 2019. (No.

1102, Dkt. No. 1 at 40).15 Officer Mitchell learned, from a Child Protective Services

(“CPS”) case worker at the scene, that doctors had reported that plaintiff’s seven-

month-old daughter suffered from a brain bleed, caused by trauma, which led to a

stroke. (Id.) According to the doctor, the infant’s condition was symptomatic of

“shaken baby syndrome” and was not consistent with the parent’s statement that the

child had fallen from a bed several days earlier. (Id.) Officer Anthony interviewed

plaintiff and Jasmine McCarthy at the hospital and confirmed their stories regarding

how their daughter had been injured. (Id.)

Shortly thereafter, plaintiff and Jasmine McCarthy ended up at the Jamesville

Avenue apartment, where Ms. McCarthy signed a consent to search form (at 12:07 a.m.

on October 20, 2019) and where she and plaintiff were interviewed further by the

police. (No. 1102, Dkt. No. 1 at 37, 39). The documentation attached to the complaint

14 As discussed in note 4 above, any claims involving alleged police interference with

plaintiff’s access to his daughter on October 20, 2019, may be barred by the applicable statute of

limitations because the first complaint was filed on October 25, 2022–more than three years after

the relevant event. “[C]ourts have held that the limitations period began to run on the date a

parent’s children were removed [from parental custody].” Williams v. Savory, 87 F. Supp. 3d at

453 (citations omitted).

15 The report is dated “20 OCT 2019,” but based on the references to “Saturday” on the

report, and the context provided by other police reports and documents, it is clear that Officer

Mitchell’s report related to investigative activity conducted during the late evening on Saturday,

October 19, 2019.

hospital to Jamesville Avenue.

“The right to family integrity clearly does not include a constitutional right to be

free from child abuse investigations.” Brown v. Town of E. Haddam, 213 F.3d 625

(Table), 2000 WL 536156, at *2 (2d Cir. 2000) (quoting, with approval, Watterson v.

Page, 987 F.2d 1, 8 (1st Cir. 1993)). To the extent plaintiff relies on the mere fact that

the authorities conducted a child abuse investigation after learning about the nature of

the severe injuries to his daughter, that would not support a viable due process claim.

Plaintiff’s claim that he and Jasmine McCarthy were removed from the hospital

by the police and deprived of custody of their daughter was conclusory and

unsupported.16 Even if that claim were to be accepted, the information available to the

police at that time supported an objectively reasonable basis for believing that the

parents presented an imminent threat to their daughter’s health and safety, justifying an

emergency depriviation of parental custody without a court order.17 While plaintiff’s

complaint does not discuss the timing of the subsequent Family Court proceedings, it is

clear that the Family Court soon assumed control over the issue of custody of plaintiff’s

16 A later police report indicated that plaintiff’s infant daughter remained in the care of

doctors at the hospital as of approximately 2:30 a.m. on October 20th and “appeared inanimate as

she was lying on her bed.” (No. 1102, Dkt. No. 1 at 39). There is no indication that the child

was not being cared for or that she was in a condition to be responsive to her parents.

17 The evidence gather by the police was sufficiently compelling that Judge Bogan issued

the original search warrant for the Jamesville Avenue apartment for evidence of child abuse.

(No. 1102, Dkt. No. 1 at 33). Even if the police separated plaintiff from her daughter, as he

claims, the police conduct, under the circumstances, certainly did not “shock the conscience,” as

would be required to state a substantive due process claim.

information to support a plausible claim that any particular defendant deprived him of

the custody of his daughter on October 20, 2019.

2. The Family Court Proceedings

Plaintiff’s initial complaint does not identify which of the defendant police

officers provided information relating to the Family Court proceedings involving

plaintiff’s daughter, or how they may have done so. To the extent police officers

presented evidence as witnesses in Family Court proceedings, they would be entitled to

absolute witness immunity, based on the authority cited above. Moreover, it would

appear that the Family Court could render “a full and fair determination” with respect to

the custody of plaintiff’s daughter. Plaintiff provides no information suggesting that

the Family Court was not able to evaluate the accuracy and credibility of any

information presented by the police regarding the circumstances of the daughter’s

injuries and the firearm and drug-related items found in her mother’s apartment on

October 20, 2019. Accordingly, any claim of plaintiff predicated on the Family Court

proceedings relating to the order of protection against him and the custody of his

daughter would be subject to dismissal under the domestic relations abstention doctrine,

as articulated in the Second Circuit’s Deems cases. See also Hunter v. Child Protective

Servs. of Niagara Cnty., No. 1:20-CV-18, 2021 WL 2368024, at *8 (W.D.N.Y. Feb. 22,

2021) (“While plaintiff disagrees with . . . the outcome of the custody proceedings, she

18 A CPS case worker was at the hospital where plaintiff’s daughter was being treated

before plaintiff left the hospital. (No. 1102, Dkt. No. 1 at 40). While it is not clear from

plaintiff’s complaint, CPS may have been involved in any decision to deprive plaintiff of custody

of his daughter on an emergency basis, if that, in fact, was what happened.

fair determination from the Family Court. Thus, this Court should abstain from

exercising its federal-question jurisdiction over plaintiff’s claims . . .” pursuant to the

domestic relations abstention doctrine), report and recommendation adopted, 2021 WL

1996772 (W.D.N.Y. May 19, 2021), appeal pending.

VI. The Entity Defendants

Departments that are merely administrative arms of a municipality do not have a

legal identity separate from the municipality and may not sue or be sued, including

under Section 1983. Rose v. County of Nassau, 904 F. Supp. 2d 244, 247 (E.D.N.Y.

Nov. 9, 2012) (dismissing claim against the police department) (collecting cases);

Michels v. Greenwood Lake Police Dep’t, 387 F. Supp. 2d 361, 367 (S.D.N.Y. 2005)

(the D.A.’s Office is not a proper party to this action, because the D.A.’s Office is not a

legal entity capable of being sued under Section 1983). Accordingly, plaintiff’s claims

against the Syracuse Police Department in Case No. 5:22-CV-1102 and against the

Onondaga County District Attorney’s Office in Case No. 5:22-CV-1164 are subject to

dismissal.

Even if the plaintiff were able to substitute, as defendants, the correct

municipalities for these sub-entities–the City of Syracuse and the County of

Onondaga–there are additional prerequisites for suing a municipality under Section

1983. A municipality may not be held vicariously liable for the conduct of employees

on the basis of the respondeat superior doctrine alone. See, e.g., Brewster v. Nassau

Cnty., 349 F. Supp. 2d 540, 548-49 (E.D.N.Y. 2004) (citing Monell v. Dept. of Social

of a municipality pursuant to 42 U.S.C. § 1983 for violation of civil or constitutional

rights, a plaintiff must allege that the municipality “has adopted a ‘custom’ or ‘policy’

which is the ‘moving force’ behind [the violation].” Zappala v. Albicelli, 980 F. Supp.

635, 639 (N.D.N.Y. 1997); Monell, 436 U.S. at 694-95. Generally speaking, a single

incident alleged in a complaint, especially if it involved only actors below the

policymaking level, will not suffice to raise an inference of the existence of a custom or

policy. Brewster v. Nassau Cnty., 349 F. Supp. 2d at 549 (citing, inter alia, Vann v.

City of New York, 72 F.3d 1040, 1050 (2d Cir. 1995)).

Plaintiff’s complaints do not allege any facts supporting a plausible claim of

municipal liability under Monell for either the Syracuse Police Department or the

D.A.’s Office. Accordingly, the claims against these defendants, and the appropriate

parent municipalities, if they were named, would be subject to dismissal.

VII. Opportunity to Amend

Generally, when a court dismisses a pro se complaint sua sponte, the court

should afford the plaintiff the opportunity to amend at least once; however, leave to

re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer

& Co., 987 F.2d 129, 131 (2d Cir. 1993). The court concludes that any effort by

plaintiff to amend the following claims would clearly be futile: (1) any claims asserted

under the Sixth Amendment;19 (2) any claims solely predicated on alleged violations of

19 Plaintiff’s primary Sixth Amendment claims was asserted in Case No. 1102, but an

attachment to the complaint in Case No. 1164 also makes a reference to the Sixth Amendment.

(No. 1164, Dkt. No. 1 at 6).

search; and (3) any claims asserted in Case No. 1164 predicated on the failure of the

D.A.’s Office to investigate or prosecute the Syracuse Police defendants for alleged

misconduct relating to the October 20, 2019 search. The court, therefore, recommends

that any such claims be dismissed with prejudice. The Syracuse Police Department and

Onondaga County District Attorney’s Office must be dismissed as defendants, because

they are municipal sub-entities not subject to suit, without prejudice to possible

amendment to assert claims not dismissed with prejudice against the municipalities, the

City of Syracuse and the County of Onondaga.

Otherwise, the court doubts that plaintiff can amend his complaint to state any

other plausible claims for relief that would not subject to dismissal on the merits or

based on standing, immunity, or abstention issues. However, given that one of the

reasons for dismissal of some of these claims was the insufficiency of plaintiff’s

pleading, I will recommend providing plaintiff with an opportunity to amend to correct,

to the extent possible, the various deficiencies in the other claims, as identified in this

opinion. HOWEVER, PLAINTIFF SHOULD NOT ATTEMPT TO AMEND HIS

COMPLAINT UNTIL DISTRICT JUDGE D’AGOSTINO RULES ON THE COURT’S

REPORT AND RECOMMENDATION. ANY MOTION TO AMEND FILED

PREMATURELY WILL BE STRICKEN BY THE COURT. Plaintiff may, however,

otherwise object to the Report-Recommendation, as indicated below.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiff’s application to proceed IFP is GRANTED only for

appeal is not taken in good faith per 28 U.S.C. 1915(a)(3), and it is

RECOMMENDED, that the following claims in Case Nos. 5:22-CV-1102 and

5:22-CV-1164 be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

1915(e)(2)(B)(i)-(iii): (1) any claims asserted under the Sixth Amendment; (2) any

claims solely predicated on alleged violations of federal or state criminal statutes by

defendants in connection with the October 20, 2019 search; and (3) any claims asserted

in Case No. 1164 predicated on the failure of any defendant to investigate or prosecute

the Syracuse Police defendants for alleged misconduct relating to the October 20, 2019

search, and it is

RECOMMENDED, that the Syracuse Police Department and the Onondaga

County District Attorney’s Office be DISMISSED WITH PREJUDICE pursuant to

28 U.S.C. § 1915(e)(2)(B)(i)-(iii), and it is

RECOMMENDED, that the other claims and defendants in the complaints in

Case Nos. 5:22-CV-1102 and 5:22-CV-1164 be DISMISSED WITHOUT

PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), and it is

ORDERED, that the Clerk serve a copy of this Order and Report-

Recommendation on plaintiff by regular mail.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have

fourteen (14) days within which to file written objections to the foregoing report. Such

objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO

THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE

REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary

of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 6(a), 6(e), 72.

Dated: November 15, 2022

Andrew T. Baxter

U.S. Magistrate Judge

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