# Ricks v. Brown

> District Court, W.D. New York · February 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10365847

## Case

- **Court:** District Court, W.D. New York
- **Decided:** February 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KEYONTAY RICKS,

Plaintiff,
20-CV-43-LJV-LGF
v. DECISION & ORDER

THOMAS BROWN, et al.,

Defendants.

On January 10, 2020, the plaintiff, Keyontay Ricks, commenced this action under
42 U.S.C. § 1983 for, among other things, malicious prosecution and wrongful
imprisonment. See Docket Item 1. The case is now before this Court on defendants
Chris Dates’s and Mark Joseph Lauber’s motion for judgment on the pleadings. Docket
Item 23.
In 2005, Ricks had been convicted in a New York State court for first-degree
robbery and third-degree criminal possession of stolen property. Docket Item 1 at ¶
122. More than a decade later, Ricks’s robbery conviction was vacated in a state
collateral proceeding. Id. at ¶ 136. About a year after that, Ricks sued several
defendants for false arrest and malicious prosecution in New York State Supreme
Court, Erie County. Docket Item 23-3. After the state court dismissed some of his
claims, Ricks filed this case bringing similar claims under 42 U.S.C. § 1983. See
Docket Items 1, 23-4.
On September 21, 2020, this Court accepted the late United States Magistrate
Judge Hugh B. Scott’s recommendation to dismiss Ricks’s claims against defendant
Thomas Brown because those claims were barred by the doctrine of res judicata.
Docket Item 19. The remaining defendants, Dates and Lauber, then moved for
judgment on the pleadings, arguing that Ricks’s claims against them likewise are barred
by res judicata and, because of this Court’s prior decision, by law of the case. Docket
Item 23.

On June 2, 2022, United States Magistrate Judge Leslie G. Foschio, to whom
this case had been reassigned, issued a Report and Recommendation (“R&R”) finding
that Dates’s and Lauber’s motion should be granted and the case dismissed. Docket
Item 29. Ricks objected to that recommendation, and Dates and Lauber responded to
Ricks’s objection. Docket Items 30, 36. On October 31, 2022, this Court requested
additional briefing on whether the state court had entered final judgment on Ricks’s
claims against Dates and Lauber and, if not, whether the state court’s decision has res
judicata effect on Ricks’s remaining claims in this case. Docket Item 37. The parties
then filed supplemental briefing, and Dates and Lauber responded to Ricks’s
supplemental brief. Docket Items 38-40.

Because this Court should have addressed Dates’s and Lauber’s motion for
judgment on the pleadings in the first instance, the Court now considers the motion de
novo.1 For the reasons stated below, the Court denies Dates’s and Lauber’s motion for
judgment on the pleadings.

1 This Court originally referred the case to Judge Scott for all pre-trial matters
under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 8. When this Court adopted
Judge Scott’s recommendation, it referred the case back to him only under 28 U.S.C. §
636(b)(1)(A). See Docket Item 19. But both Judge Foschio, to whom this case was
reassigned after Judge Scott’s death, and this Court subsequently overlooked the
change in the referral order, and Judge Foschio issued an R&R pursuant to 28 U.S.C. §
636(b)(1)(A) and (B). Because Judge Foschio did not have the authority to issue that
R&R under this Court’s limited referral, this Court apologizes to him and decides the
motion de novo.
FACTUAL BACKGROUND2

On December 8, 2004, Ricks was indicted for first-degree robbery, grand larceny,
and third-degree possession of stolen property. Docket Item 1 at ¶ 113. Those charges
stemmed from a robbery scheme concocted by Kurtel Walker, who was Ricks’s family
friend, and Antwyninas Degraffenried, who worked at a Buffalo Rent-A-Center. Id. at ¶¶
28, 31, 33-34. To settle an outstanding debt, Walker and Degraffenried planned to
stage a robbery “while Degraffenried was making his customary bank deposit of the
Rent[-]A[-]Center’s funds.” Id. at ¶ 33. More specifically, they agreed that Degraffenried
would “hand Walker the Rent[-]A[-]Center’s funds[] and pretend to have been robbed, []
Walker would take [the] funds” that Degraffenried owed him, and the two of them would

split the rest. Id. at ¶ 34. Walker and Degraffenried staged the robbery on June 28,
2004, and Degraffenried subsequently called the police to report the sham robbery. Id.
at ¶ 38, 42.
Ricks, who was unaware of the plan, nevertheless became entangled in law
enforcement’s investigation because he unwittingly drove Walker to the scene of the
staged robbery. Id. at ¶¶ 35-38, 43. Ricks was taken into custody and ultimately
charged in a criminal complaint signed by Dates. Id. at ¶ 93. Ricks says that Dates and
Lauber, two Buffalo police officers who were detectives on the case, see id. at ¶¶ 63,

2 The following facts are taken from the complaint, Docket Item 1, and the state
court filings that the parties have submitted. See L-7 Designs, Inc. v. Old Navy, LLC,
647 F.3d 419, 422 (2d Cir. 2011) (“On a [Rule] 12(c) motion, the court considers the
complaint, the answer, any written documents attached to them, and any matter of
which the court can take judicial notice for the factual background of the case.” (citation
and internal quotation marks omitted)).
65, engaged in misconduct during the investigation that led to Ricks’s being falsely
charged, see, e.g., id. at ¶¶ 75, 77, 79.
Ricks was tried in New York State Supreme Court, Erie County, and ultimately
was convicted of first-degree robbery and third-degree possession of stolen property.3

Id. at ¶¶ 117, 122. He was sentenced to twenty years’ imprisonment on the robbery
charge and two-and-one-third to seven years’ imprisonment on the stolen property
charge, with the sentences to run concurrently. Id. at ¶ 126.
On January 30, 2017, Ricks’s robbery conviction was vacated in a state collateral
proceeding. Id. at ¶ 136. The state court did not, however, vacate Ricks’s conviction
for possession of stolen property. Id. at ¶ 137. On February 3, 2017, Ricks—who at
that point had been incarcerated far longer than the time imposed for the stolen property
conviction—was released from prison. Id. at ¶ 138.
About a year after that, Ricks filed suit in New York State Supreme Court, Erie
County, bringing negligence, false arrest, false imprisonment, and malicious prosecution

claims. Docket Item 23-3. He named various municipalities and municipal employees
as defendants, including the three defendants in this case: Dates, Lauber, and Brown.
Id. Brown was a police officer in Amherst at the time of Ricks’s arrest. See Docket Item
1; Docket Item 23-3.
Brown and the Town of Amherst then moved to dismiss the complaint against
them under N.Y. C.P.L.R. § 3211, arguing that Ricks’s complaint should be dismissed
based on documentary evidence, see N.Y. C.P.L.R. § 3211(a)(1), because it was
untimely, see id. § 3211(a)(5), and for failure to state a cause of action, see id. §

3 The trial court dismissed the grand larceny charge. Docket Item 1 at ¶ 118.
3211(a)(7). See Docket Item 15-4. As noted in this Court’s prior order, Brown argued
that Ricks’s claims were barred by the statute of limitations and, even if timely, were not
viable because Ricks failed to allege an essential element of a malicious prosecution
claim—favorable termination. See id. And Brown said that because Ricks’s stolen

property conviction remained on the books after his collateral appeal, his arrest was
supported by probable cause and therefore his false arrest and false imprisonment
claims were not viable. See id. at 9-10 (citing Broughton v. State of New York, 37
N.Y.2d 451, 335 N.E.2d 310 (1975)).4
On July 2, 2018, New York State Supreme Court Justice John F. O’Donnell
issued a written decision on Brown’s and Amherst’s motions.5 Justice O’Donnell
rejected the timeliness argument but nevertheless concluded that “[t]he complaint must
be dismissed on the merits.” Docket Item 23-4 at 6-7. Justice O’Donnell explained that
Ricks’s malicious prosecution claim was not viable because he “ha[d] failed to plead”
that “there was no probable cause for the criminal proceeding.” Id. at 7. Justice

O’Donnell further concluded that Ricks’s malicious prosecution and false arrest claims

4 In Broughton, the New York Court of Appeals explained that when an individual
is arrested without a warrant,
evidence of a subsequent arraignment or indictment is admissible as some
proof of the presence of probable cause. Moreover, a conviction which
survives appeal would be conclusive evidence of probable cause. On the
other hand, evidence of a subsequent dismissal, acquittal or reversal on
appeal would also be admissible to refute the affirmative defense of
justification.
Broughton, 37 N.Y.2d at 458, 335 N.E.2d at 315.
5 Justice O’Donnell also granted Erie County’s and Assistant Erie County District
Attorney Michael McHale’s motions to dismiss. Docket Item 23-4.
“must [] be dismissed” because “[a] conviction remained after the determination” of
Ricks’s collateral appeal and “it has long been the rule in New York that a conviction
after a jury trial presumes probable cause and defeats a claim for malicious
prosecution.” Id. For those reasons, Justice O’Donnell concluded that “the defense

motions are granted and the complaint against them dismissed.” Id. Justice O’Donnell
subsequently issued a separate order in which he “ordered, adjudged and decreed[]
that the summons and complaint of the plaintiff, Keyontay Ricks, is hereby dismissed in
its entirety with respect to the defendants, Town of Amherst, Officer Thomas Brown,
County of Erie and A.D.A. Michael McHale, along with all cross-claims against these
defendants.” Id. at 1-3. (capitalization removed).
After Justice O’Donnell issued that order, nothing else of substance happened in
the case. The case docket reflects that a notice of appeal was filed but then was
“returned for correction.” Docket Item 23-5 at 2 (capitalization removed). The case is
marked as “disposed” on the New York State Courts Electronic Filing system. Id. at 1.

LEGAL PRINCIPLES

The standard for deciding a Rule 12(c) motion is “the same standard [that
applies] to dismissals pursuant to Rule 12(b)(6).” L-7 Designs, 647 F.3d at 429
(alterations omitted). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 556).

DISCUSSION
“The doctrine of claim preclusion,” otherwise known as res judicata, “holds that a

final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Bank of N.Y. v.
First Millennium, Inc., 607 F.3d 905, 918 (2d Cir. 2010) (alterations omitted) (quoting
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284 (2d Cir. 2000)). “[W]hen
evaluating the preclusive effects of a state court judgment,” a court “appl[ies] the
doctrine of res judicata ‘under the law of the State in which the judgment was
rendered.’” Russo v. City of New York, 705 F. App’x 38, 39 (2d Cir. 2017) (summary
order) (italicization added) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 81 (1984)).
“New York law has adopted a ‘transactional approach’ to claim preclusion.”

McKithen v. Brown, 481 F.3d 89, 104 (2d Cir. 2007). The “transactional approach
dictates that ‘once a claim is brought to a final conclusion, all other claims arising out of
the same transaction or series of transaction[s] are barred.’” Russo, 705 F. App’x at 39
(alterations omitted) (quoting McKithen, 481 F.3d at 104). So a prior New York State
court judgment “precludes a party from litigating a claim where a judgment on the merits
exists from a prior action between the same parties or their privies involving the same
subject matter, even when the claim is based upon different legal theories or seeks
different or additional relief.” Dekom v. Fannie Mae, 846 F. App’x 14, 19 (2d Cir. 2021)
(summary order) (alterations, citations, and internal quotation marks omitted).
This Court previously found that Justice O’Donnell’s decision granting Brown’s
motion to dismiss precluded Ricks’s claims against Brown here. Docket Item 19. Dates

and Lauber argue that Ricks’s claims against them likewise are barred by res judicata
because Justice O’Donnell dismissed Ricks’s claims against them too.6 Docket Items
23, 25, 38, 40. And Dates and Lauber say that even if Justice O’Donnell did not dismiss
Ricks’s claims against them, the decision nevertheless precludes Ricks’s remaining
claims here because they are in privity with Brown. Docket Item 38 at 3-6. For the
reasons that follow, this Court disagrees.
First, Justice O’Donnell never dismissed Ricks’s claims against Dates and
Lauber. Although Justice O’Donnell wrote in his decision that “[t]he complaint must be
dismissed on the merits,” he did that in the context of a motion to dismiss the complaint
brought by only some defendants, and in the same decision he specifically said that “the

defense motions are granted and the complaint against them dismissed.” Docket Item
23-4 at 7 (emphasis added). Moreover, any ambiguity in Justice O’Donnell’s decision is
clarified by his accompanying order, which reflects that Justice O’Donnell “ordered,
adjudged[,] and decreed[] that the summons and complaint . . . is hereby dismissed in
its entirety with respect to the defendants[] Town of Amherst, Officer Thomas Brown,
County of Erie[,] and A.D.A. Michael McHale.” Id. at 3 (emphasis added and

6 This Court previously found that Justice O’Donnell’s decision, which granted
Brown’s motion to dismiss, precluded Ricks’s claims only against Brown. Docket Item
19. Because Justice O’Donnell’s decision does not have res judicata effect on Ricks’s
claims against Dates and Lauber for the reasons stated below, the law of the case does
not bar Ricks’s claims here.
capitalization removed). In other words, Justice O’Donnell decided only the motions
before him and adjudged the claims only against the Town of Amherst, Brown, Erie
County, and McHale to be dismissed; he did not dismiss Ricks’s claims against the
remaining defendants.

Dates and Lauber are correct that a court may dismiss claims even when a
defendant does not move for dismissal, see Docket Item 40 at 1-2, but that is not what
happened here. Instead, Justice O’Donnell dismissed the complaint only “with respect
to the defendants” who moved for that relief. Docket Item 23-4 at 3. And without some
clearer indication that Justice O’Donnell granted the same relief to defendants who did
not ask for it, this Court will not infer that he dismissed all Ricks’s claims against all
defendants.
So neither Justice O’Donnell’s decision nor his subsequent order addressed
Ricks’s claims against Dates and Lauber. For some reason not reflected on the docket,
however, the case is marked “disposed” on the New York State Courts Electronic Filing

system. See Docket Item 23-5. Dates and Lauber therefore argue that this must mean
that the state court dismissed Ricks’s claims against them and entered final judgment in
the case. See Docket Item 38 at 3.
But due to some arcane idiosyncrasies of New York State procedure, that is not
necessarily true. See Arroyo v. Bd. of Educ. of City of N.Y., 110 A.D.3d 17, 21, 970
N.Y.S.2d 229, 233 (2d Dep’t 2013) (finding that “when the matter in this case was
‘marked off’ the calendar and later marked ‘disposed,’ those acts were a nullity”
because “th[e] action was never properly dismissed”). And while there is a document
“adjudg[ing]” Ricks’s claims against some defendants to be dismissed, see Docket Item
23-4 at 1-3, that document does not extend to Dates and Lauber. So whatever the
reason that the state court case is marked as “disposed,” it is not because Justice
O’Donnell dismissed Ricks’s complaint in its entirety when he decided the other
defendants’ motions to dismiss.
Nor have Dates and Lauber established that they are in privity with Brown.7

“Government officials sued in their official capacities are generally considered to be in
privity with the government entity that they serve,” so “[a] prior judgment in favor of a
government will generally bar actions against officials of the government in their official
capacity for the same claim.” Fabian v. Pappalardo, 395 F. Supp. 3d 257, 264
(S.D.N.Y. 2019). But “[t]he same is not true for government officials sued in their
individual capacities.” Id. And more to the point, courts have declined to apply res
judicata in suits involving “members of entirely different government entities.” Dean v.
Town of Hempstead, 527 F. Supp. 3d 347, 421 (E.D.N.Y. 2021).
Here, Ricks has sued Dates and Lauber for money damages under section 1983,

presumably claims brought against them in their individual capacity. See Docket Item 1.
And Dates and Lauber worked as Buffalo police officers at the time of Ricks’s arrest and
prosecution, while Brown worked for the Amherst Police Department. See id. at ¶¶ 10-

7 Dates and Lauber argue that even if Justice O’Donnell never dismissed Ricks’s
claims against them, they are in privity with Brown for the purposes of Brown’s motion to
dismiss and therefore Ricks’s claims against them now must be dismissed. That
argument may sound more in issue preclusion than res judicata, but Dates’s and
Lauber’s motion is based solely on law of the case and claim preclusion. See Docket
Item 37 at 2 n.1. The Court therefore does not address whether Ricks’s claims might be
barred by issue preclusion or for some other reason. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do [the] work, create the ossature for the
argument, and put flesh on its bones.”).
12. So while Dates and Lauber argue that they “should be considered in privity” with
Brown because all three defendants were “members of local [law] enforcement
agencies that serve the same purpose in adjacent communities,” Docket Item 38 at 6,
courts have declined to find privity under such circumstances,8 see Dean, 527 F. Supp.

3d at 421.
For those reasons, Dates and Lauber have not established that Justice
O’Donnell dismissed the complaint against them, and they have not shown that they are
in privity with Brown. In the absence of any other argument as to how res judicata
applies here, Dates’s and Lauber’s motion for judgment on the pleadings is denied.
See Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir. 1997) (“The
burden is on the party seeking to invoke res judicata to prove that the doctrine bars the
second action.”).

CONCLUSION
For the reasons stated above, Dates’s and Lauber’s motion for judgment on the
pleadings, Docket Item 23, is DENIED. The case is referred back to Judge Foschio for

further proceedings consistent with the limited referral order of September 21, 2020,
Docket Item 19.

8 Nor does the fact that Ricks has “sued the defendants jointly and severally,”
see Docket Item 38 at 5, necessarily mean that they are in privity with one another. Cf.
United States v. Manning Coal Corp., 977 F.2d 117, 122 (4th Cir. 1992) (“Claims
against joint obligors . . . are generally regarded as separate and distinct for res judicata
purposes. . . . The essence of joint and several liability is that a creditor, including the
government, may sue one or more of the parties to such liability separately, or all of
them together at his option.” (alterations, citation, and internal quotation marks omitted)
(italicization added)).
SO ORDERED.

Dated: February 15, 2023
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365847. Public record. Not legal advice.