Kendrick v. Troche

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAMES DEAN KENDRICK,

Plaintiff,

V. 18-CV-6932 CJS

DECISION AND ORDER

MARIA DENISE TROCHE, JEFFREY

LAFAVE, JASON VAUGHN, RENADY

BENJAMIN, MATTHEW SCHWARTZ,

SANDRA DOORLEY, AND THE

ROCHESTER POLICE DEPARTMENT,

Defendants.

Plaintiff James Dean Kendrick is a federal prisoner presently housed at the United

States Penitentiary, Allenwood, however the events about which he complains took place

while he was being detained by the State of New York.’ Kendrick has filed a pro se

Amended Complaint under 42 U.S.C. § 1983 alleging claims against Maria Denise

Troche; Officers Jeffrey LaFave and Jason Vaughn; Investigator Randy Benjamin;

Assistant District Attorneys Matthew Schwartz and Sandra Doorley. (Docket (“Dkt.”) No.

5.) He previously submitted an application to proceed in forma pauperis which was

granted by the Court. (Dkt. No. 4.)

1 Kendrick does not state where he was being detained, but presumably it was ina

state facility since the Defendants sued are state actors.

DISCUSSION

Because Kendrick is proceeding as a pauper, under 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A(a), this Court must screen the Amended Complaint.

Section 1915 "provide[s] an efficient means by which a court can screen for and

dismiss legally insufficient claims." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a

Complaint in a civil action in which a prisoner seeks redress from a governmental entity,

or an officer or employee of a governmental entity, if the Court determines that the action

(1) fails to state a claim upon which relief may be granted or (2) seeks monetary relief

against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2).

Generally, the Court will afford a pro se plaintiff an opportunity to amend or to be heard

prior to dismissal “unless the court can rule out any possibility, however unlikely it might

be, that an amended complaint would succeed in stating a claim." Abbas, 480 F.3d at

639 (internal quotation marks omitted). But leave to amend pleadings may be denied

when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir. 2000).

1. Factual Allegations

Kendrick states that from January 14, 2010 through January 20, 2010, Troche,

LaFave, Vaughn and Benjamin “joined in an agreement to act in concert with each other

and with others known and unknown, to manufacture false evidence in the form of a dying

declaration to be used against [Kendrick] in criminal proceedings [and] for the purpose

[of] depriving [him] of [his] liberty.” (Dkt. No. 5 at 6.) In furtherance of this conspiracy,

“while the case was in the investigative stages,” LaFave and Vaughn “manufacture[d]

false evidence in the form of a dying declaration.” (/d. at 7.) “In furtherance of said

agreement, [Troche] did provide information to the officers, and gave a signed statement

to [Benjamin] to be used to establish [a] motive for the Jose Troche homicide for the

purpose of bolstering the manufactured dying declaration.” (/d.) “Also in furtherance of

the conspiracy,” Vaughn and Troche gave false testimony at Kendrick’s preliminary

hearing to “secure his continued detention,” Benjamin witnessed and signed Troche’s

statement and “together with” LaFave and Vaughn forwarded the manufactured dying

declaration and Troche’s statement to the Monroe County District Attorney which used

the evidence against Kendrick. (/d.)

LaFave and Vaughn manufactured a “dying declaration claiming that the victim,

Jose Troche, identified [Kendrick] as the person who shot him.” (/d. at 9.)

Despite obtaining a surveillance video “which proved” that Kendrick did not shoot

Jose Troche, from January 14, 2010 through December 22, 2016, Schwartz and Doorley

refused to drop the murder charge against Kendrick, refused to ask the Court to release

him from custody, and refused to “present the case to a grand jury for possible

indictment.” (/d. at 12.)

Liberally construed, the allegations in Kendrick’s complaint assert the following

claims: (1) violation of his Fourth Amendment right to be free from illegal searches and

seizures against Defendants Troche,? LaFave, Vaughn and Benjamin, (2) conspiracy by

2 Defendant Troche is a private person, not a state actor. To state a claim under 42

U.S.C. § 1983 for violation of the Fourth Amendment, “the behavior complained of must

be considered an action of the government, and not that of a private actor.” Henderson v.

Center for Community Alternatives, 911 F. Supp. 689, 707 (S.D.N.Y. 1996) (citing West

v. Atkins, 487 U.S. 42, 48 (1988); Myron v. Consolidated Rail Corp., 752 F.2d 50, 54 (2d

Cir. 1985). “The language ‘under color of” law found in § 1983 is treated as the same

thing as the ‘state action’ required under the Constitution.” /d. (Internal quotations

Troche, LaFave, Vaughn and Benjamin under 42 U.S.C. §§ 1983, 1985 to deprive

Kendrick of his civil rights; (3) deprivation of the right to a fair trial against LaFave and

Vaughn; and (4) malicious prosecution against Schwartz and Doorley

ll. Standard of Review

In evaluating the Amended Complaint, the court must accept all factual allegations

as true and must draw all inferences in the plaintiff's favor. See Larkin v. Savage, 318

F.3d 138, 139 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir.

1999). "Specific facts are not necessary,” and the plaintiff "need only ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotation marks and citation omitted); see also Boykin v. Keycorp, 521

F.3d 202, 213 (2d Cir. 2008) (discussing pleading standard in pro se cases after Twombly:

"even after Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate

only in the most unsustainable of cases."). Although "a court is obliged to construe [pro

se] pleadings liberally, particularly when they allege civil rights violations," McEachin v.

McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must meet

the notice requirements of Rule 8 of the Federal Rules of Civil Procedure. Wynder v.

McMahon, 360 F.3d 73 (2d Cir. 2004).

omitted). United States v. Price, 383 U.S. 787, 794 n. 7 (1966). To the extent Troche’s

actions cannot be “fairly attributable to the State,” Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982), Kendrick’s claims against her for violation of his constitutional rights

must be dismissed.

lll. Analysis

"To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997)

(citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.1994)). "Section 1983 itself

creates no substantive rights; it provides only a procedure for redress for the deprivation

of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing

City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

A. Conspiracy

Kendrick alleges that Troche, LaFave, Vaughn and Benjamin conspired to

manufacture false evidence in the form of a dying declaration to establish a motive for the

Jose Troche murder and to ensure that Kendrick was detained.

As the Court previously explained, Kendrick cannot maintain a claim for conspiracy

under 42 U.S.C. § 1985 because, as with the original Complaint, there are no allegations

in the Amended Complaint to suggest that the conspiracy entered into between the

Officers and Troche was motivated by some racial or other “class-based invidious

discriminatory animus.” Chillemi v. Town of Southampton, 943 F. Supp. 2d 365, 381

(E.D.N.Y. 2013) (explaining that “[a] plaintiff must... allege that the conspiracy was

motivated by “some racial or perhaps otherwise class—based, invidious discriminatory

animus.”)

Kendrick’s allegations also fail to state a claim for conspiracy under § 1983. “To

prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more

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

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

damages.” Pangburn v. Culbertson, 200 F3d 65, 72 (2d Cir. 1999); Ciambriello v. County

of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). A private entity acts under color of state

law for purposes of § 1983 when “(1) the State compelled the conduct [the ‘compulsion

test’], (2) there is a sufficiently close nexus between the State and the private conduct

[the ‘close nexus test’ or ‘joint action test’], or (3) the private conduct consisted of activity

that has traditionally been the exclusive prerogative of the State [the ‘public function

test’].” Hogan v. A.O. Fox Memorial Hosp., 346 F. App’x. 627, 629 (2d Cir. 2009) (citing

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)).

“The fundamental question under each test is whether the private entity’s challenged

actions are ‘fairly attributable’ to the state.” Fabrikant v. French, 691 F.3d 193, 207 (2d

Cir. 2012) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).

“It is well settled that claims of conspiracy ‘containing only conclusory, vague, or

general allegations of conspiracy to deprive a person of constitutional rights cannot

withstand a motion to dismiss.’” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011)

(quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993)). The failure to allege any fact

corroborating a meeting of the minds among the alleged conspirators renders a

conspiracy claim baseless. /d.

It is also well settled that a private entity's “provision of background information to

a police officer does not by itself make [that entity] a joint participant in state action under

Section 1983.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir.

1999) (To qualify as a state actor, a private citizen must be a willful participant in joint

activity with the State or its agents) (quoting United States v. Price, 383 U.S. 787, 794

(1966)); see also Adebiyi v. City of New York, 13-CV-0480, 2014 WL 4922888, at *4

(E.D.N.Y. Sept. 30, 2014) (“Case law in this Circuit is well-established that the provision

of 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

purposes of § 1983.” ); Vazquez v. Combs, 04—CV-4189, 2004 WL 2404224, at □□

(S.D.N.Y. Oct. 22, 2004) (Lynch, J.) (“[Mlerely filing a complaint with the police, reporting

a crime, requesting criminal investigation of a person, or seeking a restraining order, even

if the complaint or report is deliberately false, does not give rise to a claim against the

complainant for a civil rights violation”). Likewise, “[a] private party supplying information

or seeking police assistance does not become a state actor . . . unless the police officers

were improperly influenced or controlled by the private party.” Adebiyi, 2014 WL 4922888,

at *4 (quoting Stewart v. Victoria's Secret Stores, LLC, 851 F. Supp. 2d 442, 446

(E.D.N.Y. 2012)).

Moreover, even where a private citizen has done more than simply call police and provide

sworn information, a claim of state action may be sustained only if the plaintiff alleges

facts showing concerted action, even at the pleading stage. See e.g. Bacquie v. City of

New York, No. 99CIV.10951(JSM), 2000 WL 1051904, at *2 (S.D.N.Y. July 31, 2000).

The plaintiff must set forth allegations to demonstrate a “plan, prearrangement,

conspiracy, custom or policy.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d

268, 272 (2d Cir. 1999) (citation omitted); see also Valez, 2008 WL 5329974, at *1, *3

(S.D.N.Y. Dec, 16, 2008) (holding that plaintiff failed to state a § 1983 claim based on

allegations that the defendants gave the police false information “out of malice and in an

effort to get [the plaintiff] ejected from the home he was renting” where plaintiff failed to

“allege facts suggesting that defendants and the police had any meeting of the minds or

intent to conspire”); Manbeck v. Micka, 640 F.Supp.2d 351, 379 (S.D.N.Y. 2009)

(requiring a “meeting of the minds between law enforcement and private individual to

support a finding of state action”); Tornheim v. Eason, 175 F. App’x 427, 429 (2d Cir.

2006) (where private actors provided law enforcement with a false affidavit, “it cannot be

said that there had been a meeting of the minds between the private and state actors

such that they had been ‘jointly engaged' in a plan to deprive [the plaintiff] of any rights”);

Moreno v. Town of Greenburgh, No. 13 Civ. 7101(VB), 2014 WL 3887210, at *3 (S.D.N.Y.

June 9, 2014) (concerning § 1983 claims, “[a] private actor who provides information to

police officers or prosecutors does not act under color of state law. [.. .] This is so even

if the information provided is deliberately false.”); Stewart, 851 F. Supp. 2d at 446

(dismissing § 1983 claim where only actions were attributable to private actor and

“Imlerely providing information to law enforcement, even if that information is false or

mistaken, does not render the supplier of information a state actor”); Baez v. JetBlue

Airways, 745 F. Supp. 2d 214, 221 (E.D.N.Y. 2010) (dismissing claims because “providing

false information to the police does not make a private individual . . . a state actor and

liable under § 1983”). Moreover, “[c]lommunications between a private and a state actor,

without facts supporting a concerted effort or plan between the parties, are insufficient to

make the private party a state actor.” Fisk v. Letterman, 401 F. Supp. 2d 362, 377

(S.D.N.Y. 2005).

In the Amended Complaint, Kendrick offers no explanation of how Troche planned

or prearranged with the state defendants to provide false information. See Stewart, 851

F. Supp. 2d at 445 (explaining that, “[c]omplaints alleging nothing more than vague and

general allegations of conspiracy are properly dismissed. While places and dates of

meetings need not be pled with particularity, pleadings must set forth a plausible theory

of agreement and concerted action.” (internal citations omitted)); Ciambriello, 292 F.3d at

324 (“A merely conclusory allegation that a private entity acted in concert with a state

actor does not suffice to state a § 1983 claim against the private entity.”)

Moreover, even if Kendrick intended to allege that only the three state actors,

LaFave, Vaughn and Benjamin, conspired together, the Amended Complaint contains

only “conclusory, vague, or general allegations.” Gallop, 642 F.3d at 369. There are no

allegations from which the Court can discern that the state actors had a “meeting of the

minds such that defendants entered into an agreement, express or tacit, to achieve the

unlawful end.” Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000) (citation

omitted). Kendrick has not alleged, except in the most conclusory fashion, that a meeting

of the minds occurred among the three state actor Defendants. His conspiracy claim

against Troche, LaFave, Vaughn and Benjamin must therefore fail. See Boddie v.

Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (dismissal of “conclusory, vague or general

allegations of conspiracy to deprive a person of constitutional rights” is proper). This claim

will be dismissed without leave to amend. See Anthony v. Brockway, No. 15-CV-451,

2015 WL 5773402, at *3 (N.D.N.Y. Sept. 30, 2015) (‘{The] [plaintiff has already been

given one opportunity to amend his complaint . . ., and there is nothing in his second

amended complaint suggesting that [he] could do better given another opportunity."); Al-

Qadaffi v. Servs. for the Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8

(S.D.N.Y. Jan. 30, 2015) (denying leave to amend where “[the plaintiff] has already had

one chance to amend his [c]omplaint, and there is still no indication that a valid claim

might be stated if given a second chance’), affd, 632 F. App’x. 31 (2d Cir. 2016); Bui v.

Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an

amended complaint with prejudice where the plaintiff failed to cure the deficiencies

identified in his initial complaint despite “being given ample opportunity to do so’).

B. Deprivation of the Right to Fair Trial

The Court has already screened Kendrick’s claim for deprivation of his right to a

fair trial based on the fabrication of evidence and determined that he alleged sufficient

facts for that claim to be served on Defendants LaFave and Vaughn. The Court need not

rescreen this claim.

Cc. Malicious Prosecution

Kendrick states that while he was working in an investigative capacity Schwartz

obtained a surveillance video that proved he did not shoot Troche. He also states that

Schwartz obtained other evidence that was exculpatory and discredited the false dying

declaration and that Schwartz and Doorley withheld this exculpatory evidence from the

defense for seven years. Although they became aware of the exculpatory evidence in

January, 2010, Schwartz and Doorley refused to drop the charges, request that he be

released from custody or present Kendrick’s case to the Grand Jury for seven years.

As the Court previously explained, “it is well settled that prosecutors are entitled to

absolute immunity against Section 1983 claims, for actions performed in the course of

their prosecutorial duties, including but not limited to the presentation of evidence to grand

juries and participation in criminal trials.” Brown v. Ontario County, 787 F.Supp.2d 273,

277 (W.D.N.Y.2011) (citing Imblerv. Pachtman, 424 U.S. 409, 427-28, (1976) and Barrett

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v. United States, 798 F.2d 565, 571-72 (2d Cir.1986)); see also Imbler, 424 U.S. at 430-

31 (holding that prosecutors are absolutely immune from suits for damages arising from

actions which are “intimately associated with the judicial phase of the criminal process.”)

Whether a prosecutor has absolute immunity "depends principally on the nature of the

function performed, not on the office itself." Ying Jing Gan v. City of New York, 996 F.2d

522, 530 (2d Cir.1993). Such functions include the decision to bring charges against a

defendant, see id., presenting evidence to a grand jury, see Barret v. United States, 789

F.2d 565, 571-72 (2d Cir.1986), and the evaluation of evidence prior to trial, see Kalina

v. Fletcher, 522 U.S. 118, 126 (1997). See also Lawlor v. Connelly, 471 F. App’x. 64, 65

(2d Cir. 2012) (stating that “[t]his Court has repeatedly held . . . that a prosecutor is

absolutely immune from liability under 42 U.S.C. § 1983 for his conduct before a grand

jury’ and that “this Court has specifically held that a prosecutor is immune from § 1983

liability for withholding exculpatory evidence from a grand jury”) (citations omitted);

Warney v. Monroe County, 587 F.3d 113, 125 (2d Cir. 2009) (“if the prosecutors had

tested all the evidence, and then sat on the exculpatory results for at least 72 days, they

may well have violated Brady v. Maryland, 373 U.S. 83, 83 (1963); but they would be

absolutely immune from personal liability’).

Second, “prosecutors are absolutely immune from liability under § 1983 for their

conduct in ‘initiating a prosecution and in presenting the State’s case,’ . . . insofar as that

conduct is ‘intimately associated with the judicial phase of the criminal process.” Burns

v. Reed, 500 U.S. 478, 486, (1991) (quoting Imbler, 424 U.S. at 430 ). The conduct for

which a prosecutor is absolutely immune includes “the professional evaluation of the

evidence assembled by the police and appropriate preparation for its presentation at trial

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or before a grand jury after a decision to seek an indictment has been made.” Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993). In addition, this absolute immunity “bars suit for

malicious prosecution, even in the complete absence of even arguable probable cause.”

Armatas v. Maroulleti, No. O8—CV-310 (SJF)(RER), 2010 WL 4340437, at *12 (E.D.N.Y.

Oct. 19, 2010) (citing Bernard v. County of Suffolk, 356 F.3d 495, 502-05 (2d Cir. 2004));

see also Conte v. County of Nassau, No. 06-CV-4746, 2010 WL 3924677, *16 (E.D.N.Y.

Sept. 30, 2010) (‘Assuming arguendo that there was no probable cause to continue the

prosecution . . ., the County defendants are protected by absolute immunity with respect

to the decision to continue the ongoing prosecution.”).

The Supreme Court has made clear, however, “that absolute immunity may not

apply when a prosecutor is not acting as ‘an officer of the court,’ but is instead engaged

in other tasks, say, investigative or administrative tasks.” Van de Kamp v. Goldstein, 555

U.S. 335, 342 (2009) (citing Imbler, 424 U.S. at 431 n. 33). A prosecutor who engages in

such activities is protected instead only by qualified, good-faith immunity. Sclafani v.

Spitzer, 734 F. Supp. 2d 288, 296 (E.D.N.Y. 2010) (citing Van de Kamp, 555 U.S. at 342).

Kendrick’s Amended Complaint clearly faults Schwartz and Doorley for their

behavior as prosecutors—evaluating the evidence, deciding which evidence to present

to the Grand Jury, and continuing the prosecution. To the extent Kendrick is attempting

to shoe-horn his claim into the investigative task category by suggesting that Schwartz

should not be absolutely immune from suit because he secured the video surveillance

and other exculpatory evidence, he fails. Securing evidence to present at trial is a routine

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prosecutorial function, but even if these were investigative functions, they did not violate

any of Kendrick’s constitutional rights.

At bottom, Kendrick’s claim rests upon the decision of Schwartz and Doorley to

prosecute him for a crime, that is a quintessentially prosecutorial task for which they are

immune from suit. See Stein v. Disciplinary Bd. of Supreme Court of New Mexico, 520

F.3d 1183, 1194 (10th Cir. 2008) (“Deciding whether to bring charges—which necessarily

includes an evaluation of whether there has been sufficient investigation to support

charges—is a quintessential prosecutorial function protected by absolute immunity’)

(citing Buckley v. Fitzsimmons, 509 U.S. 259, 273, (1993)). This claim will be dismissed

without leave to amend. See Anthony, 2015 WL 5773402, at *3; Al-Qadaffi, 2015 WL

585801, at *8; Bui, 594 F. Supp. 2d at 373.

D. False Arrest

The Court has already screened Kendrick’s claim for false arrest based on the

fabricated evidence and determined that he alleged sufficient facts for that claim to be

served on Defendants LaFave and Vaughn.* The Court need not rescreen this claim.

CONCLUSION

For the reasons set forth above, Kendrick’s claims for conspiracy and malicious

prosecution will be dismissed under 28 U.S.C. § 1915(e)(2)(B) and 1915A(b). Troche,

Benjamin, Schwartz and Doorley shall be terminated from this action. Kendrick’s claims

3 The allegations in Kendrick’s Amended Complaint make clear that Benjamin was not

involved in manufacturing the dying declaration which Kendrick’s alleges was used to

“depriv[e] [him] of his liberty.” Dkt 5 at 6-7.

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for deprivation of a fair trial and false arrest against LaFave and Vaughn shall proceed to

service.

ORDER

In light of the above,

IT HEREBY IS ORDERED that the Clerk of Court is directed to cause the United

States Marshal to serve copies of the Summons, Amended Complaint and this Order

upon Defendants LaFave and Vaughn without Kendrick’s payment therefor, unpaid fees

to be recoverable if this action terminates by monetary award in Kendrick’s favor;

FURTHER, the Clerk of Court is directed to forward a copy of this Order by email

to Ted O’Brien Assistant Attorney General in Charge, Rochester Regional Office

<Ted.O’Brien@ag.ny.gov>;

FURTHER, that the Clerk of Court utilize the mailing address for non-inmate mail

provided by the New York State Department of Corrections and Community

Supervision's website, http:/Avww.doccs.ny.gov/faclist.html., as needed;

FURTHER, Defendants LaFave and Vaughn are directed to respond to the

Amended Complaint pursuant to 42 U.S.C. § 1997e(g)(2).

SO ORDERED.

Dated: August 2B, 2019

Rochester, New York

UNITED STATES DISTRICT JUDGE

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