Barnett v. The City of Yonkers

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JEROME BARNETT,

Plaintiff,

No. 15-CV-4013 (KMK)

v.

OPINION & ORDER

THE CITY OF YONKERS, et al.,

Defendants.

Appearances:

Jerome Barnett

Cape Vincent, NY

Pro se Plaintiff

Irma Wheatfield Cosgriff, Esq.

Westchester County Attorney’s Office

White Plains, NY

Counsel for Defendant Richard Logan

KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Jerome Barnett (“Plaintiff”) brings this Action against the City Of

Yonkers (“Yonkers”) and Detective Sullivan (“Sullivan”) (jointly, “Yonkers Defendants”); Karl

A. Scully, Esq. (“Scully”); and Richard Logan, Esq. (“Logan” or “Defendant”) (collectively,

“Initial Defendants”), alleging Initial Defendants violated his rights under the Fourth and Sixth

Amendments of the United States Constitution and under New York state law. (See Compl. (Dkt.

No. 2).) On September 28, 2018, the Court granted the Yonkers’ Defendants’ Motion for

Summary Judgment, and entered judgment in their favor. (See 2018 Opinion (Dkt. 50).) Before

the Court is Logan’s Motion To Dismiss (the “Motion”). (Def.’s Not. of Mot. (“Not. of Mot.”)

(Dkt. No. 85).) For the following reasons, the Motion is granted.

I. Background

A. Factual Background

The Court has already provided a full description of the facts of this case in a prior

Opinion. (See 2018 Op.) Accordingly, the Court relates only those facts, drawn from Plaintiff’s

Complaint and presumed true, relevant to the instant Motion.

From June 10, 2009 through January 1, 2015, over 100 civil rights actions were filed

against members of the Yonkers Police Department (“YPD”). (Compl. ¶ 16.) Most of these

actions pertained to alleged uses of excessive force, unlawful searches and seizures, false arrests

and malicious prosecutions. (Id. ¶ 17.)

On April 7, 2011, occupants of a residence at 31 Cedar Street called 911 to report fumes

coming from the building. (Id. ¶ 56.) Members of the YPD, including Sullivan, responded to

the scene and determined that the fumes were coming from 30 five-gallon containers of fuel

stored in the basement. (Id. ¶¶ 56–57.) After interviewing residents and reviewing camera

footage, Sullivan focused his investigation on Plaintiff, who lived in the basement apartment of

the building. (Id. ¶¶ 58–59.) Sullivan then searched Plaintiff’s room, damaged Plaintiff’s

property by throwing several items into sewage water, and stole several pieces of jewelry and

other personal possessions. (Id. ¶ 60.) Later that day, Sullivan arrested Plaintiff at his

girlfriend’s residence, allegedly using a racial slur, threatening Plaintiff, and suggesting that the

arrest was retaliation for Plaintiff’s prior interactions with law enforcement. (Id. ¶¶ 68–70.)

“Plaintiff was produced in Yonkers City Court and assigned counsel on or about April 8,

2011.” (Id. ¶ 72.) Plaintiff was then assigned a series of lawyers, each of whom was “relieved

due to their urgency in having Plaintiff take a plea bargain,” while Plaintiff insisted on

maintaining his innocence. (Id. ¶ 73.) Eventually, Scully was assigned to represent Plaintiff, and

Plaintiff immediately informed Scully of his innocence and his desire to stand trial. (Id. ¶ 74.)

On April 28, 2011, Plaintiff was indicted on unrelated charges by the Westchester

District Attorney’s Office (“WDAO”) in Westchester County Court. (Id. ¶ 75.) At the time,

Logan was an Assistant District Attorney of the WDAO. (Id. ¶ 10.) Plaintiff was represented in

the Westchester County Court proceedings by T. Brundage (“Brundage”). (Id. ¶ 80.) However,

Plaintiff alleges that Scully and Brundage “inappropriately” exchanged information regarding

Plaintiff’s criminal matters without Plaintiff’s authorization. (Id. ¶¶ 80–81.)

Plaintiff further alleges that Scully and Logan “acted in concert” to prevent Plaintiff from

going to trial on the Yonkers City Court charges. (Id. ¶ 76.) In particular, Scully repeatedly

acquiesced to requested adjournments, ignoring Plaintiff’s vocal objections to the same. (Id.)

Finally, in January 2013, Plaintiff was convicted after trial of several of the charges in

Westchester County Court. (Id. ¶ 77.) The next day, Plaintiff was taken to Yonkers City Court

for an appearance on a misdemeanor charge, which had been pending for 21 months. (Id. ¶ 78.)

The Yonkers City Court determined that the pending charge was “satisf[ied]” by the Westchester

County Court verdict. (Id.)

Plaintiff was then transferred to the custody of the New York State Department of

Correction and Community Supervision (“DOCCS”), where he initiated several grievance

proceedings seeking to “remove all charges relating to the Yonkers City Court from his record.”

(Id. ¶ 79.) On March 27, 2015, Justice Thomas R. Daly of Yonkers City Court dismissed all

charges relating to the Yonkers City Court matter. (Id. ¶ 86.)

Based on the foregoing, Plaintiff alleges violations of his rights under the First, Fourth,

Fifth, Sixth and Fourteenth Amendments. (Id. ¶ 87.) In particular, Plaintiff alleges that Logan

“conspired” with Scully and others to delay Plaintiff’s case in Yonkers City Court through

repeated adjournments. (Id. ¶ 82.) Accordingly, Plaintiff seeks compensatory and punitive

damages of at least $750,000, as well as attorney costs, and any other remedies that the Court

may provide. (Id. ¶ 120.)

B. Procedural Background

Plaintiff initiated the Action by filing the instant Complaint on May 14, 2015. (Compl.)

On June 8, 2018, the Court issued an Order of Service. (Dkt. No. 6.) Although most Initial

Defendants were served, Logan was not. (Dkt. Nos. 9, 13.)1 As counsel for the Yonkers

Defendants explained, they were unable to provide an address for Logan following his departure

from the Westchester County District Attorney’s Office. (Dkt. No. 20). On August 26, 2015,

Yonkers and Sullivan filed an Answer. (Dkt. No. 11.)

On December 23, 2015, Plaintiff filed a letter requesting that the Court appoint pro bono

counsel. (Dkt. No. 17.) In an Order dated February 23, 2016, the Court denied Plaintiff’s

Motion for Assignment of Counsel without prejudice, (Dkt. No. 18), and a copy of the Order was

mailed to Plaintiff, (see Dkt. (entry for Feb. 29, 2016)). However, the Order was returned to the

Court on March 18, 2016. (See Dkt. (entry for Mar. 18, 2016).) On September 1, 2016, the

Court issued an Order directing Plaintiff to show cause, by no later than September 30, 2016,

why this case should not be dismissed for failure to prosecute. (Order to Show Cause (Dkt. No.

1 Although a summons was issued as to Scully on June 22, 2015, (see Dkt. (entry for June

22, 2015)), and proof of effective service on Scully was filed on July 30, 2015, (Dkt. No. 10),

Scully did not initially appear in this Action, (see Dkt. No. 60 at 1 n.1). He was therefore

deemed in default under Federal Rule of Civil Procedure 55(a). (Id.) However, on September

20, 2019, Scully filed a notice of appearance on his own behalf and a letter stating his desire to

contest Plaintiff’s claims. (Dkt. Nos. 71–72.) The Court then denied Plaintiff’s Motion for

Default Judgment against Scully, and directed Scully to file an Answer by October 25, 2019.

(Dkt. No. 77.) On October 23, 2019, Scully filed an Answer. (Dkt. No. 78.)

19).) A copy of the Order was mailed to Plaintiff, (see Dkt. (entry for Sept. 2, 2016)), but the

Order was again returned to the Clerk of the Court, (see Dkt. (entry for Sept. 21, 2016)). On

October 14, 2016, the Court obtained an address for Plaintiff from the New Rochelle Area Parole

Office, and mailed another Order directing Plaintiff to show cause, by no later than November

13, 2016, why this case should not be dismissed. (Dkt. No. 21.) Plaintiff did not respond, and

on December 7, 2016, the Court dismissed the case for failure to prosecute. (Dkt. No. 22.)

On January 4, 2017, Plaintiff filed a letter requesting that the Court re-open his case.

(Dkt. No. 23.) Two days later, the Court granted the request and scheduled a conference for

February 8, 2017. (Dkt. No. 24). Plaintiff failed to appear at the conference until after the time

scheduled for the conference had concluded. (See Dkt. (minute entry for Feb. 8, 2017).) On July

20, 2017, the Court held a conference and set a discovery schedule. (Dkt. Nos. 31, 34.)2 On

February 9, 2018, pursuant to a scheduling order issued by this Court, the Yonkers Defendants

filed their Motion for Summary Judgment and accompanying papers. (Dkt. Nos. 41–43.) On

September 28, 2018, the Court issued an Opinion & Order granting the Motion for Summary

Judgment and entering judgment for the Yonkers Defendants. (See generally 2018 Op.) The

Court simultaneously ordered counsel for the Yonkers Defendants to provide additional

identifying information concerning Logan to facilitate service on him. (Id. at 29–30.)

On October 15, 2018, Counsel for Yonkers Defendants responded to the Court’s directive

concerning identification of Logan. (Dkt. No. 52.) On June 20, 2019, the Court issued an Order

of Service with respect to Logan. (Dkt. No. 60.) Logan was served on August 7, 2019, (Dkt.

No. 66), and pursuant to the Court’s scheduling order, (Dkt. No. 76), Logan filed the instant

2 Plaintiff requested the Court appoint counsel again on June 12, 2017, August 4, 2017,

and November 14, 2017, (Dkt. Nos. 32, 35, 38), which the Court denied, (Dkt. Nos. 33, 36, 39).

Motion and accompanying papers on November 20, 2019, (Not. of Mot.; Decl. of Irma Cosgriff,

Esq. in Supp. of Mot. (“Cosgriff Decl.”) (Dkt. No. 86); Def.’s Mem. of Law in Supp. of Mot.

(“Def.’s Mem.”) (Dkt. No. 88)). Plaintiff twice requested additional time to respond to the

Motion, (Dkt. Nos. 90, 92), and the Court set March 31, 2020 as the final deadline for Plaintiff’s

response, (Dkt. No. 94). Plaintiff never filed a response, and the Court deems the Motion fully

submitted.

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it

tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation

marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been

stated adequately, it may be supported by showing any set of facts consistent with the allegations

in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to

relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims

across the line from conceivable to plausible, the[ ] complaint must be dismissed,” id.; see also

Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will .

. . be a context-specific task that requires the reviewing court to draw on its judicial experience

and common sense. But where the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—'that

the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed.

R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering the Defendant’s Motion, the Court is required to “accept as true all of the

factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court

must “draw[ ] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res.,

Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int'l PLC, 699 F.3d

141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must “construe[ ]

[his complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].”

Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted).

However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from

compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp.

2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County,

517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves

regarding procedural rules and to comply with them.” (italics and quotation marks omitted)).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

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

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

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation

marks and citation omitted). When a plaintiff proceeds pro se, however, the Court may consider

“materials outside the complaint to the extent that they are consistent with the allegations in the

complaint,” Alsaifullah, 2013 WL 3972514, at *4 n.3 (quotation marks omitted), including

“documents that a pro se litigant attaches to his opposition papers,” Agu, 2010 WL 5186839, at

*4 n.6 (italics omitted), statements by the plaintiff “submitted in response to [a] defendant’s

request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11 CV-4733, 2013

WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents either in [the] plaintiff[’]s

possession or of which [the] plaintiff[ ] had knowledge and relied on in bringing suit,” Chambers

v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted).

B. Analysis

Defendant argues that Plaintiff’s claims are barred by absolute immunity, that Plaintiff

has failed to state a cognizable claim for malicious prosecution, violation of due process, or

conspiracy, that the Complaint fails to comply with Federal Rule of Civil Procedure 4(m), and

that many of Plaintiff’s claims are barred by the applicable statutes of limitations. (See generally

Def.’s Mem.) Because the Court agrees with Defendant’s absolute immunity argument, it need

not, and does not, reach the remaining arguments.

1. Absolute Immunity Generally

“Absolute immunity protects a prosecutor not only from liability but also from suit.”

Ogunkoya v. Monaghan, 913 F.3d 64, 67 (2d Cir. 2019) (citation and quotation marks omitted).

Prosecutors are entitled to absolute immunity from civil suits for damages under § 1983 when

“function[ing] as advocates for the state in circumstances intimately associated with the judicial

phase of the criminal process.” Bernard v. County of Suffolk, 356 F.3d 495, 502 (2d Cir. 2004)

(citation and quotation marks omitted); see also Kroemer v. Tantillo, 758 F. App’x 84, 86–87 (2d

Cir. 2018) (“Prosecutorial immunity from § 1983 liability is broadly defined, covering virtually

all acts, regardless of motivation, associated with the prosecutor’s function as an advocate.”)

(alterations and quotation marks omitted) (quoting Hill v. City of New York, 45 F.3d 653, 661 (2d

Cir. 1995))). However, not every action performed by a prosecutor is “absolutely immune

merely because [it was] performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993). Rather, a prosecutor’s entitlement to absolute immunity turns on “the capacity in which

the prosecutor acts at the time of the alleged misconduct.” Zahrey v. Coffey, 221 F.3d 342, 346

(2d Cir. 2000). Thus, to determine whether a prosecutor’s conduct is entitled to absolute

immunity, courts apply “a functional approach, which looks to the nature of the function

performed [by the prosecutor], not the identity of the actor who performed it.” Buckley, 509 U.S.

at 269 (citations and quotation marks omitted); see also Van de Kamp v. Goldstein, 555 U.S.

335, 342 (2009) (noting that courts “must take account of . . . ‘functional’ considerations” in

deciding “whether absolute immunity attaches to a particular kind of prosecutorial activity”

(citations omitted)).

It is clear that “the initiation and pursuit of a criminal prosecution are quintessential

prosecutorial functions” covered by absolute immunity. Shmueli v. City of New York, 424 F.3d

231, 237 (2d Cir. 2005) (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Hill, 45

F.3d at 661 (noting that absolute immunity covers such acts as “initiating a prosecution and

presenting the case” in court proceedings (citations omitted)). Also covered is prosecutors’

“professional evaluation of the evidence assembled by the police and appropriate preparation for

its presentation at trial or before a grand jury after a decision to seek an indictment has been

made.” Buckley, 509 U.S. at 273; see also Hill, 45 F.3d at 661 (noting that prosecutors are

“immune for conduct in preparing for [prosecutorial] functions,” including “evaluating and

organizing evidence for presentation at trial or to a grand jury, or determining which offenses are

to be charged”) (citations omitted)). Absolute immunity even protects “the knowing presentation

of perjured testimony to a grand jury, without any prosecutorial involvement in its earlier

inducement.” Bernard, 356 F.3d at 506 (citation omitted). Furthermore, a prosecutor’s motives

for actions that are deemed to be within his or her role as an advocate are irrelevant for purposes

of absolute immunity. See Shmueli, 424 F.3d at 237–38 (holding that absolute immunity is “not

affected by allegations that improperly motivated prosecutions were commenced or continued

pursuant to a conspiracy”); Bernard, 356 F.3d at 503 (holding that “once a court determines that

challenged conduct involves a function covered by absolute immunity, the actor is shielded from

liability for damages regardless of the wrongfulness of his motive or the degree of injury caused”

(citation omitted)).

By contrast, “[w]hen a [prosecutor] functions outside his or her role as an advocate for

the People, the shield of [absolute] immunity is absent.” Hill, 45 F.3d at 661. Specifically,

“[w]hen a prosecutor performs the investigative functions normally performed by a detective or

police officer, it is neither appropriate nor justifiable that, for the same act, immunity should

protect the one and not the other.” Buckley, 509 U.S. at 273 (citation and quotation marks

omitted); see also Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998) (“[W]hen a prosecutor . . .

performs the investigative functions normally performed by a detective or police officer, he is

eligible only for qualified immunity.” (citations and quotation marks omitted)). When

determining whether a prosecutor is functioning within a prosecutorial or an investigative role,

courts must look to the prosecutor’s general “role and function in an ongoing proceeding,” and

will reach a determination based “chiefly on whether there is pending or in preparation a court

proceeding in which the prosecutor acts as an advocate.” Ogunkoya, 913 F.3d at 70 (citation and

quotation marks omitted).

2. Application

Here, the Complaint contains only a single allegation with respect to Logan. Specifically,

Plaintiff alleges only that Logan “conspired” with Scully and Brundage to “delay/adjourn

Plaintiff’s case in Yonkers City Court until Plaintiff’s sentencing on the Westchester Country

Court matter.” (Compl. ¶ 82.) Such conduct cannot subject Logan to suit because requests for

adjournments are clearly a part of “the initiation and pursuit of a criminal prosecution,” and are

therefore “quintessential prosecutorial functions” covered by absolute immunity. Shmueli, 424

F.3d at 237 (citation omitted); see also Van de Kamp, 555 U.S. at 343 (noting that “absolute

immunity applies when a prosecutor prepares to initiate a judicial proceeding” (citation omitted);

Blue v. City of New York, No. 16-CV-9990, 2018 WL 2561023, at *10 (S.D.N.Y. June 4, 2018)

(prosecutors “are protected by absolute immunity with respect to . . . § 1983 conspiracy claims”

based on indictments they file). Indeed, the Second Circuit has expressly held that when a

prosecutor’s charging decisions “delay [a plaintiff’s] arraignment on separate individual

charges,” such decisions are shielded by absolute immunity. Ogunkoya, 913 F.3d at 66.

Moreover, as Plaintiff himself acknowledges, Logan’s alleged conduct occurred while “a court

proceeding in which [Logan] act[ed] as an advocate” was “pending.” Warney v. Monroe County,

587 F.3d 113, 123 (2d Cir. 2009). Logan’s conduct therefore lies squarely within the field of

conduct shielded by prosecutorial immunity. See id. “Accordingly, because absolute immunity

applies to each of the allegations asserted against [Logan], the Court dismisses [Logan] from this

Action.” Cox v. City of New Rochelle, No. 17-CV-8193, 2019 WL 3778735, at *11 (S.D.N.Y.

Aug. 12, 2019).

I. Conclusion

For the reasons stated above, Defendant’s Motion is granted. Because this dismissal is

based on the clear applicability of absolute immunity, the Court concludes that amendment

would be futile. See Franza v. Stanford, No. 18-CV-10892, 2019 WL 6729258, at *9 (S.D.N.Y.

Dec. 11, 2019), reconsideration denied, 2020 WL 85228 (S.D.N.Y. Jan. 3, 2020) (denying leave

to amend, for futility, because dismissal was based on absolute immunity); Karris v. Varulo, No.

14-CV-1077, 2014 WL 1414483, at *4 (E.D.N.Y. Apr. 10, 2014) (‘Any amendment to [the]

plaintiff's amended complaint would be futile because, inter alia, all defendants are entitled to

absolute immunity ....” (italics omitted) (collecting cases)). Accordingly, and because the

majority of Plaintiff's claims have already been adjudicated on the merits and judgment entered

against him on those claims, (see 2018 Op.), dismissal is with prejudice, and Plaintiff is denied

leave to amend. See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (“[T]he district

court has the discretion to deny leave [to amend] if there is a good reason for it, such as futility . .

(citing, inter alia, Foman vy. Davis, 371 U.S. 178, 182 (1962))); Dilacio v. N.Y.C. Dist.

Council of the United Bhd. of Carpenters & Joiners of Am., 593 F. Supp. 2d 571, 578 (S.D.N.Y.

2008) (denying leave to replead because defendant was “absolutely immune” from suit.).

The Clerk of Court is respectfully directed to terminate the pending Motions, (Dkt. Nos.

85, 90, 92), and mail a copy of this Opinion & Order to Plaintiff.

The Court will hold a status conference for the remaining Parties (Plaintiff and Scully) on

June 9, 2020 at 11:30 a.m.

SO ORDERED. iy /

DATED: May 19, 2020 sing meee

White Plains, New York {

KENNETHM.KARAS

UNITED STATES DISTRICT JUDGE

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