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SCHIAVONE v. MONTUORO

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


July 11, 1984

RONALD R. SCHIAVONE, et al., Plaintiffs, against MARIO MONTUORO, et al., Defendants.

The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

Owen, District Judge

 In this action, sounding in defamation, plaintiffs claim that their reputations were injured and their Constitutional rights infringed by two Assistant United States Attorney's for the Eastern District of New York, defendants James D. Harmon, Jr. and Thomas P. Puccio. *fn1" Defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the amended complaint against them for failure to state a claim upon which relief may be granted.

 The plaintiffs are the Schiavone Construction Company ("SCC") a New Jersey corporation, and Ronald A. Schiavone, Joseph D. DiCarolis and Gennaro Liguori, all officers of SCC.

 The relevant events here commenced with allegations in 1981 by defendant Mario Montuoro of a illegal payoff in 1979 made in a Long Island City restaurant *fn2" to a labor union official on behalf of SCC by Di Carolis in the presence of Schiavone and Liguori and another SCC officer, Raymond J. Donovan. At the time the allegation was made, Donovan was the United States Secretary of Labor. The foregoing allegations having been made, Assistant U.S. Attorneys Harmon and Puccio sent a letter to the Attorney General of the United States informing him of the allegations and requesting an investigation pursuant to the Ethics in Government Act, 28 U.S.C. ยง 591 et seq. A Special Prosecutor was then appointed, and a Grand Jury empaneled a month later. The subsequent report of the Special Prosecutor stated there was insufficient credible evidence upon which to base prosecution of Secretary Donovan.

 Plaintiffs allege Montuoro recounted his version of the "payoff" and plaintiff's participation in it to the media. Plaintiffs assert that these statements and interviews were part of a conspiracy among Montuoro and the federal defendants to have the allegations publicized so that Assistant U.S. Attorney Harmon would be named Special Prosecutor. *fn3" Plaintiffs contend that these "false, malicious and defamatory statements" injured them in their "personal, social and business li[ves] and caused them to suffer extreme embarrassment, great pain and mental anguish and grave damage to their good name and reputation." The individual plaintiffs and SCC seek $2,500,000 in damages from Harmon and Ruccio.

 The claim based on the letter to the Attorney General cannot succeed. The letter requesting an investigation is clearly within the scope of official functions of a federal prosecutor, even if, ultimately, no charges are brought. See, e.g., Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490 (D.C. Cir. 1983). Because the injury to reputation does not involve a constitutional harm, Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1975), these defendants acting within the scope of the duties, are not liable. Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979); Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). The defendant's claim arising form the letter is accordingly dismissed.

 The gravamen of plaintiffs' other claims appear to be that the federal defendants conspired with Montuoro to cause plaintiffs harm of Constitutional dimensions by leaking defamatory material to the media. The amended complaint contains no more than conclusory allegations, with not a shred of factual support. The law in this Circuit is clear that "complaints containing only "conclusory," "vague," or "general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed." Ostrer v. Aronwald, 567 F.2d 551, (2d Cir. 1977),

 The action against the federal defendants is hereby dismissed.


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