as plaintiffs repeatedly proclaim was the cause for the alleged violations herein.
Monetary claims against defendant Morgenthau in his official capacity and defendant DAO are also dismissed. The causes of action against defendants Morgenthau and the DAO arise from alleged decisions that were inextricably tied to the specific decision to prosecute. When the DAO makes such decisions, it is acting in a quasi-judicial capacity and thus is representing the state, not the county. Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014, 102 L. Ed. 2d 796, 109 S. Ct. 805 (1989); Gentile v. County of Suffolk, 926 F.2d 142, 152 n.5 (2d Cir. 1991); Walker, 974 F.2d at 301. Thus, the 11th Amendment protects the DAO from Section 1983 liability while it acts as a state representative.
Plaintiffs argue that the Second Circuit's Walker decision precludes dismissal of their claims against defendants Morgenthau and DAO. The Court disagrees for two reasons. First, as mentioned above, Walker recognizes that the DAO acts as a state body when making its specific decisions to prosecute. See Walker, 974 F.2d at 301. Second, the facts in Walker, which found viable a Section 1983 claim for municipal liability arising from a DAO's alleged failure to train or supervise, are far different from the circumstances before this Court. Walker involved an assistant district attorney in Kings County whose perjury and withholding of Brady evidence resulted in the plaintiff's spending 19 years of his life in prison for a murder that he did not commit. See 974 F.2d at 294. The present case, however, involves the alleged use of P.G. 118-9 testimony that is entitled to use immunity. Unlike Brady and perjury issues, which may arise in every state criminal case, use-immunity concerns arising from P.G. 118-9 testimony are rarely at issue in criminal proceedings. Cf. East Coast Novelty Co. v. City of New York, 809 F. Supp. 285 (S.D.N.Y. 1992) (distinguishing Walker and dismissing claims for municipal liability based upon DAO misconduct due to relative infrequency of possible prosecutorial misconduct involving Section 270.00 of the New York Penal Law in comparison with Brady obligations). This Court's failure to distinguish between the alleged misuse of P.G. 118-9 testimony and an assistant district attorney's failure to comply with Brady obligations would substantially undercut the DAO's traditional prosecutorial and state immunities, as most challenges to prosecutorial conduct would then be transformed into failure-to-supervise-or-train claims. Therefore, the Court dismisses the causes of action for monetary damages against defendants Morgenthau and the DAO.
Plaintiffs' pleading, however, is sufficient to sustain a claim for monetary damages against the police department defendants. Plaintiffs have pled sufficient facts to confer liability upon defendant police officers, who lack the absolute immunity conferred upon defendants Stevens and Strauss. Furthermore, plaintiffs' claims against defendants Brown, NYPD, and SAD also survive defendants' motions to dismiss. Unlike defendants Morgenthau and the DAO, defendants Brown, NYPD, and SAD are undoubtedly municipal policymakers. In the amended complaint, plaintiffs allege that an official policy or custom of the NYPD deprived them of their constitutional rights, satisfying Monell v. Dep't of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The plaintiffs also allege, in accordance with City of Canton v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989), that the NYPD, as a municipal policymaker, should have known that such inadequate training or supervision was "so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." In particular, plaintiffs have pled that the NYPD failed to train or supervise its officers regarding the handling of P.G. 118-9 interrogations and the need to separate the investigative and interrogative agencies within the NYPD and the DAO.
Finally, plaintiffs also claim that the NYPD and DAO defendants conspired to violate plaintiffs' constitutional rights, also in violation of Section 1983. Because one may conspire with another who is immune from prosecution, see Dennis v. Sparks, 449 U.S. 24, 27, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980), and plaintiffs have adequately pled a cause of action for conspiracy, the Section 1983 conspiracy claim survives as to the NYPD defendants.
C. Plaintiffs' Section 1985 Claim
For plaintiffs' § 1985(3) claim to be sustained, plaintiffs must allege with sufficient specificity the existence both of a conspiracy to prevent or to hinder the state authorities from giving or securing to all persons within the state or territory equal protection of the laws and of a racial or other class-based discriminatory animus behind the conspirator's actions. See Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 113 S. Ct. 753, 61 U.S.L.W. 4080, 4081 (Jan. 13, 1993); United Brotherhood of Carpenters & Jones, Local 610 v. Scott, 463 U.S. 825, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983); Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). "A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.), cert. denied, 464 U.S. 857, 78 L. Ed. 2d 158, 104 S. Ct. 177 (1983); see also Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
Plaintiffs' Section 1985 claims must be dismissed for failure to state a claim upon which relief may be granted. Plaintiffs fail to establish the existence of any class-based discriminatory animus towards them. Furthermore, their allegations of a conspiracy are an example of the sort of conclusory charges that have been held to be fatal to a Section 1985 claim.
For the reasons set forth above, defendants' motions are granted in part and denied in part. Pursuant to Deakins, 484 U.S. at 202, plaintiffs claims pursuant to Section 1983 for monetary damages against defendants Brown, NYPD, IAD, DiMartini, Foley, Harvey, Miller, and Laine are stayed until the completion of the state criminal proceedings. All other claims against all other defendants are dismissed. The Court orders that this case be placed on its suspense docket. The parties are to report in writing to this Court concerning the status of the state action by July 1, 1993.
Dated: New York, New York
February 17, 1993
JOHN F. KEENAN
United States District Judge