Plaintiff commenced the instant action by filing a complaint on June 17, 1991.
Although the defendants deny the substantive allegations in plaintiff's amended complaint, such allegations are accepted as true for the purposes of this motion. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). At this time, defendants raise four main defenses: (1) absolute immunity for acts undertaken by the district attorney defendants within the scope of their prosecutorial duties; (2) statute of limitations; (3) failure to satisfy all the elements for a claim based on malicious prosecution; and (4) failure to file a notice of claim against the County.
A. Absolute Immunity
In order to assure "the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system," Imbler v. Pachtman, 424 U.S. 409, 427-28, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), prosecutors are entitled to absolute immunity to § 1983 claims for their prosecutorial activities that are "intimately associated with the judicial phase of the criminal process. . . ." Id. at 430. Moreover, when the actions of a prosecutor are subject to absolute immunity, a supervising prosecuting attorney is also covered by that immunity. Buckley v. Fitzsimmons, 952 F.2d 965, 966 (7th Cir. 1992); Haynesworth v. Miller, 820 F.2d 1245, 1269 (D.C. Cir. 1987).
Courts use a functional analysis test to determine whether absolute immunity applies to a particular activity of a prosecutor. See Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934, 1939 (1991); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981); Barrett v. United States, 798 F.2d 565, 573 (2d Cir. 1986). Moreover, the Second Circuit has held that the bounds of a prosecutor's absolute immunity are not to be narrowly construed. Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987) ("unless a prosecutor proceeds in the clear absence of all jurisdiction, absolute immunity exists for those prosecutorial activities intimately associated with the judicial phase of the criminal process"). Furthermore, when prosecutors' acts are covered by absolute immunity, the motives behind those acts are not subject to judicial scrutiny. Robison v. Via, 821 F.2d 913, 918 (2d Cir. 1987); see Schloss v. Bouse, 876 F.2d 287, 291 (2d Cir. 1989).
Plaintiff alleges six distinct acts, taken by one or more of the district attorney defendants, which caused his injuries: (1) defendants improperly sought to increase plaintiff's bail; (2) defendants misled the Grand Jury to obtain an indictment against plaintiff for Bail Jumping; (3) defendants breached their plea agreement with plaintiff; (4) defendants misrepresented the status of plaintiff's state prosecution to the Bureau of Prisons; (5) defendants arranged to transfer plaintiff from Allenwood to the Riverhead Jail and (6) defendants arranged to have plaintiff frequently transported by bus, in chains, from the Riverhead Jail to the Hauppauge Courthouse on days that his case was not on the court calendar. Defendants, however, contend that the first five of these alleged acts are covered by absolute immunity.
1. The Application to Increase Plaintiff's Bail
Plaintiff alleges that certain of the district attorney defendants made an out-of-court determination to raise his bail on the Possession charges from $ 10,000 to $ 250,000 for the sole purpose of coercing him into pleading guilty to one count of Possession. New York Criminal Procedure Law expressly provides for the district attorney's involvement in a determination to order bail or a subsequent review of a bail order. See CPL § 530.40(4) ("a superior court may not order . . . bail when the defendant is charged with a felony unless and until the District Attorney has had an opportunity to be heard in the matter").
The Second Circuit has not addressed whether prosecutorial immunity applies to bail applications. However, other circuits have held that "seeking a particular bail amount [is] part of [the] 'initiation and presentation' of a prosecution within the meaning of Imbler." Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983); see Burns v. County of King, 883 F.2d 819, 822-23 (9th Cir. 1989); Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir.), cert. denied, 484 U.S. 828, 98 L. Ed. 2d 58, 108 S. Ct. 97 (1987). Therefore, this Court finds that the district attorney defendants have absolute immunity to plaintiff's claim based on the application to increase his bail.
2. Presentation to the Grand Jury
Plaintiff alleges that certain of the district attorney defendants presented false information to the Suffolk County Grand Jury regarding the Bail Jumping charge and also withheld mitigating evidence from it. New York Criminal Procedure Law authorizes the district attorney to call witnesses and present evidence to the grand jury and designates him as the Grand Jury's legal advisor. CPL §§ 190.25(6), 190.30(6), 190.50(2), 190.55(2).
The Second Circuit has routinely held that "the presentation of a case to a grand jury falls squarely within the prosecutor's traditional function and is thus subject to absolute immunity under Imbler." Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984); see Fields v. Soloff, 920 F.2d 1114, 1120 (2d Cir. 1990) ("subjecting prosecutors to liability for their conduct before grand juries raises the same policy concerns upon which absolute immunity for trial-related activities is founded"); Baez v. Hennessy, 853 F.2d 73, 75 (2d Cir. 1988), cert. denied, 488 U.S. 1014, 109 S. Ct. 805, 102 L. Ed. 2d 796 (1989); Powers v. Coe, 728 F.2d 97, 104 (2d Cir. 1984). Consequently, the district attorney defendants are immune to plaintiff's charge of misconduct before the grand jury.
3. Abrogation of Plaintiff's Plea Agreement
Plaintiff alleges that he entered a plea agreement based on O'Connell's representations concerning the term and location of his imprisonment and that the district attorney defendants breached that agreement.
In Taylor, the plaintiff charged that the prosecutor lied to him during plea negotiations and reneged on a promise not to recommend a sentence. The Appellate Division of the New York State Supreme Court subsequently directed that the plaintiff be resentenced because of the prosecutor's failure to honor that promise. Nevertheless, the Second Circuit affirmed the dismissal of the plaintiff's § 1983 claim, holding that a prosecutor's "conduct in the plea bargaining negotiations and the sentencing proceeding in state court is protected by the doctrine of absolute prosecutorial immunity." Taylor, 640 F.2d at 451-52; see Coe, 728 F.2d at 103-04 ("the alleged breach of the agreement not to prosecute, while not technically a plea bargain which would render the prosecutor's immunity absolute . . . is so closely analogous to a plea bargain that we think the same principle of absolute immunity applies").
Although the Appellate Division in the instant case vacated plaintiff's sentence and remanded the matter for further proceedings, the district attorney defendants are entitled to absolute immunity regarding plaintiff's claims arising from the breach of the plea agreement.
4. Communication With the Bureau of Prisons
Plaintiff alleges that Cohen violated his civil rights by fraudulently telling the Bureau of Prisons that the District Attorney's Office was appealing the Appellate Division order vacating plaintiff's sentence.
In Allen v. Thompson, 815 F.2d 1433 (11th Cir. 1987), the Eleventh Circuit dismissed a complaint alleging that a federal prosecutor "maliciously wrote a letter to the Bureau of Prisons and the Parole Commission, falsely advising that [plaintiff] was guilty of additional drug trafficking for which he had not been charged nor convicted." Id. at 1434. The court deemed the prosecutor's response to an inquiry from the Parole Commission to be analogous to a probation officer's preparation of a presentence report. The Eleventh Circuit had previously held that the latter activity is shielded by absolute immunity. See Hughes v. Chesser, 731 F.2d 1489, 1490 (11th Cir. 1984). Applying that precedent, the court found that the prosecutor's letter to the Parole Commission and the Bureau of Prisons constituted a "continuation of the sentencing process" and was an activity "so intimately associated with the judicial phase of the criminal process as to cloak the prosecutors with absolute immunity from suits for damages." Allen, 815 F.2d at 1434.
The Second Circuit has not addressed whether a prosecutor's communications with the Bureau of Prisons are entitled to absolute immunity. However, it has held that probation officers are immune to § 1983 claims arising from the preparation of a presentence report. Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir. 1987) (preparation of presentence reports is "one of the most critical phases of the judicial process"), and it has also immunized prosecutors for their participation in a sentencing proceeding. See Taylor, 640 F.2d at 451-52. Consequently, this Court finds that a prosecutor's response to an inquiry from the Bureau of Prisons which directly relates to the sentence to be served is a prosecutorial function entitled to absolute immunity.
Furthermore, plaintiff had no constitutional or statutory right to receive credit against his federal sentences for the time he served on his state sentence. Pinaud v. James, 851 F.2d at 31 ("even state prisoners whose state sentences have been vacated have been held not entitled to credit on unrelated federal sentences"). Since the recision of the credit for Pinaud's state imprisonment did not violate a constitutional right, Pinaud cannot rely on that recision to state a claim under § 1983. See Siegert v. Gilley, 114 L. Ed. 2d 277, 111 S. Ct. 1789, 1794 (1991).
5. The Transfer from Federal to State Prison
Plaintiff alleges that the district attorney defendants violated his rights by obtaining his transfer from Allenwood to the Riverhead Jail. New York Criminal Procedure Law authorizes the district attorney to request that a prisoner in federal custody be delivered to state court for the purposes of a New York prosecution. CPL § 580.30(2); see generally Ponzi v. Fessenden, 258 U.S. 254, 66 L. Ed. 607, 42 S. Ct. 309 (1922). The district attorney's exercise of this authority is therefore a prosecutorial function.
When the Appellate Division vacated the judgment imposed against plaintiff in October 1984, it did not dismiss the indictments, but remanded the matter for further proceedings in the County Court. People v. Pinaud, 517 N.Y.S.2d at 561. The existence of a pending state prosecution satisfies the principal condition for the district attorney to request a transfer under CPL § 580.30.
In addition, plaintiff's transfer from federal to state prison did not violate his liberty interests under the Fourteenth Amendment. See Olim v. Wakinekona, 461 U.S. 238, 245, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983) ("Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State"); Ruark v. Solano, 928 F.2d 947, 949 (10th Cir. 1991) (transfer from federal to state facility); Johnson v. Moore, 926 F.2d 921, 923 (9th Cir. 1991) (same); Cofone v. Manson, 594 F.2d 934 (2d Cir. 1979) (transfer from state to federal facility). Therefore, plaintiff's transfer pursuant to CPL § 580.30 provides no basis for alleging a constitutional deprivation. See Lopez v. Levi, 422 F. Supp. 846, 849 (S.D.N.Y. 1976). Consequently, that transfer does not sustain a claim under § 1983. See Siegert, 111 S. Ct. at 1789.
6. Absolute Immunity Applies to Injuries Arising from the Prosecution
Finally, plaintiff's alleged injuries emanate from the duration and conditions of his imprisonment and therefore arise directly from his prosecution. Plaintiff may not recover under § 1983 from the district attorney defendants for such injuries.
[A] prosecutor is immune from a suit to recover for an injury arising solely from the prosecution itself -- e.g., being compelled to stand trial or to suffer imprisonment or pretrial detention. Such harm must always result in substantial part from the protected prosecutorial activities of initiating prosecution or presenting the State's case.
Lee v. Willins, 617 F.2d 320, 322 (2d Cir.), cert. denied, 449 U.S. 861, 66 L. Ed. 2d 78, 101 S. Ct. 165 (1980); see Taylor, 640 F.2d at 453.
7. Impact of Burns v. Reed and Cooney v. White
Plaintiff does not dispute that Imbler and its progeny confer absolute immunity on the district attorney defendants for acts they perform in court as part of their prosecutorial function. He contends, however, that Burns v. Reed, when considered in conjunction with Cooney v. White, 115 L. Ed. 2d 965, 111 S. Ct. 2820 (1991), indicates that the Supreme Court intends to limit prosecutorial immunity only to acts that take place in court. Therefore, because plaintiff in the instant action has limited his claims against the district attorney defendants solely to acts and decisions that they allegedly made outside the court, plaintiff contends that the district attorney defendants are not entitled to absolute immunity.
In Burns, the majority held that a prosecutor is absolutely immune for statements made to the court during a probable cause hearing but not for legal advice that he gave to police officers handling an investigation. Plaintiff, however, ignores the majority opinion and relies instead on Justice Scalia's dissent opposing the granting of absolute immunity and on plaintiff's own interpretation of the reasons behind the Supreme Court's vacatur and remand (without any analysis or comment) of another absolute immunity case eleven days later "for further consideration in the light of Burns v. Reed." Cooney, 111 S. Ct. at 2820. With that nebulous authority, plaintiff surmises that the Supreme Court intends to deny absolute immunity to prosecutors who make out-of-court decisions to fulfill prosecutorial functions.
In Buckley, another absolute immunity case that was remanded by the Supreme Court for consideration in light of Burns, the plaintiff made an argument similar to the one made by plaintiff in the instant case. The Seventh Circuit gave it short shrift, stating:
It would be a hoax to proclaim immunity for presentation of testimony in court if the person aggrieved by that testimony may attack its preparation. Immunity is not limited to unprepared events at trial! Allowing evasion through litigation about preparation for trial would make no more sense than undermining judicial immunity by entertaining a suit against the law clerk who participated in the preparation of the opinion.