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BERMAN v. TURECKI

May 4, 1995

STEPHEN BERMAN, Plaintiff, against STANLEY K. TURECKI and Special Agent STEVEN F. CHAPMAN, Defendants.


The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge:

 BACKGROUND

 The dispute giving rise to the instant action can perhaps best be described as vicious, malicious and pernicious. A brief review of the history of this case is a necessary precursor to a proper understanding of the matter currently before this Court. In 1985, Turecki was separated from his wife, Lucille Turecki ("Ms. Turecki"), and in 1987, they were divorced. Prior to their separation, Turecki and Ms. Turecki had been friends and neighbors of Berman. Afterwards, Ms. Turecki and Berman began dating.

 Turecki alleges that, during the summer of 1991, Ms. Turecki began to threaten him. He asserts that she threatened that she would circulate widely a photograph of him using cocaine unless he purchased a life insurance policy naming her as beneficiary, which he did. Turecki maintains that, after a brief hiatus, the threats resumed. *fn1" He observes that the resumption coincided with the institution, by both himself and Ms. Turecki, of legal actions against each other in state court relating to the amount of his alimony and child support payments. *fn2" On March 8, 1993, the Honorable Phyllis B. Gangel-Jacob, Justice of New York Supreme Court, First Judicial District, ordered Turecki to pay past due child support monies. On March 16, 1993, Turecki placed a telephone call to his wife during which he threatened "to kill her and throw acid in her face."

 Turecki contends that on or about March 17, 1993, Ms. Turecki agreed that she would not distribute the photographs if he increased the amount of his child support payments. On April 8, 1993, Turecki received a copy of a letter from Berman to Ms. Turecki's attorney stating that although Berman had agreed to limit the use of the photographs, he still intended "to take such steps that [he] deemed necessary to try and bring [Turecki's] behavior to public scrutiny." See Declaration of Steven F. Chapman, sworn to on November 16, 1994 ("Chapman Aff."), ex. C. On April 13, 1993, Turecki received word that his publisher had received a copy of the photograph of him using cocaine. *fn3"

 Based upon the criminal complaint, the Honorable Kathleen Roberts, Magistrate Judge of this Court, found probable cause that a crime had been committed and issued warrants for Berman's and Ms. Turecki's arrest and for a search of Berman's apartment. *fn4" On April 23, 1993, Berman and Turecki were arrested, and items were seized from Berman's apartment, including photographs and negatives of Turecki using cocaine and copies of various correspondence. In addition, three firearms and several boxes of ammunition were confiscated. *fn5"

 Due to a prior felony conviction, Berman's possession of the firearms violated 18 U.S.C. § 922(g)(1). After plea negotiations, Berman agreed to plead guilty to a felony information charging illegal possession of firearms. On July 23, 1993, all extortion and blackmail charges were dismissed against both Berman and Ms. Turecki. On October 12, 1993, Berman pleaded guilty to the firearms charge. Although Berman's plea could have resulted in a sentence of as much as ten years imprisonment and a $ 250,000 fine, on December 14, 1993, he was sentenced by the Honorable Charles M. Metzner, Judge of this Court, to only a $ 2,000 fine and a $ 50 special assessment.

 Berman brings the instant action against Chapman and Turecki for conspiring to deprive him of his civil rights. Specifically, he alleges that, in furtherance of the conspiracy, Chapman intentionally failed adequately to conduct an investigation into Turecki's allegations, filed a criminal complaint against Berman with the intention of misleading the magistrate judge, and put forth sworn allegations which he knew to be false. Berman contends that the warrants for his and Ms. Turecki's arrest, and the warrant to search his apartment, were improper and constituted a violation of his constitutionally protected rights. Berman seeks declaratory relief against Chapman, in his official capacity, and monetary relief against both defendants individually.

 DISCUSSION

 A. Standard for Motion to Dismiss

 Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of an action where a plaintiff has failed to state a claim upon which relief may be granted. In reviewing a motion to dismiss, a court must assume the facts alleged by the plaintiff to be true and must liberally construe them in the light most favorable to the plaintiff. Easton v. Sundram, 947 F.2d 1011, 1014 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992). Therefore, "the court should not dismiss the complaint for failure to state a claim 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). "The court's task on a Rule 12(b)(6) motion is not to rule on the merits of plaintiffs' claims, but to decide whether, presuming all factual allegations ...


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