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SMITH v. GRIBETZ

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


March 6, 1997

JAMES F. SMITH, Plaintiff, against HONORABLE KENNETH GRIBETZ, District Attorney, Rockland County, THE OFFICE OF THE DISTRICT ATTORNEY, ROCKLAND COUNTY, NEW YORK, ORANGE & ROCKLAND UTILITIES, INC., JOHN AND JANE DOES I THROUGH X, EDWIN STIER and STIER, ANDERSON & MALONE, Defendants.

The opinion of the court was delivered by: CONNER

OPINION AND ORDER

 CONNER, Senior D.J.:

 Plaintiff James F. Smith brings this action pursuant to 42 U.S.C. § 1983. Plaintiff initially alleged violations of his constitutional rights by the former district attorney of Rockland County, New York, Kenneth Gribetz ("District Attorney"). *fn1" Plaintiff subsequently filed an amended complaint in which he named as additional defendants the Office of the Rockland County District Attorney; plaintiff's former employer, Orange and Rockland Utilities, Inc.; the law firm of Stier, Anderson & Malone; and Edwin Stier, a partner in that firm (hereinafter Orange and Rockland Utilities, Mr. Stier, and his law firm are collectively referred to as the O&R Defendants).

 Plaintiff contended that the defendants violated 42 U.S.C. § 1983 by engaging in actions that deprived him of his rights under the Fifth, Sixth, and Fourteenth Amendments. In addition, plaintiff asserted pendent state law claims of malicious prosecution and abuse of process against the O&R Defendants. Subsequently, plaintiff settled his claims against the O&R Defendants, and these claims are no longer before the court. The District Attorney and the Office of the District Attorney ("D.A. Defendants") now move to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted.

 BACKGROUND

 Plaintiff served as the chief executive officer and chairman of the board of Orange & Rockland Utilities, Inc ("O&R"). In August 1993, a vice-president of O&R was arrested and charged with criminal misconduct relating to her employment at O&R. Shortly thereafter, Judge Ingrassia, the administrative judge for the ninth judicial district of New York, ordered a special investigative grand jury impaneled to investigate any criminal conduct involving O&R or its employees. In late August 1993, Smith initiated the appointment of a Special Committee of the Board of Directors to oversee an internal investigation at O&R. The Special Committee eventually retained the law firm of Stier, Anderson & Malone to conduct the investigation.

 On October 7, 1993, O&R terminated plaintiff's employment and entered into a cooperation agreement with the District Attorney's Office pursuant to which O&R agreed, inter alia, to provide the District Attorney with unfettered access to all of O&R's relevant corporate records as well as to any evidence and analysis produced by Stier, Anderson & Malone in the course of its investigation. In exchange for O&R's cooperation, the District Attorney agreed not to file criminal charges against O&R.

 In March 1994, O&R filed a civil action in Rockland County Supreme Court alleging that plaintiff misused approximately $ 366,000 in corporate funds and property. Shortly thereafter, Justice Miller compelled arbitration of O&R's claims pursuant to a provision in plaintiff's employment contract. On March 21, 1994, the grand jury indicted Smith. That same grand jury returned a superseding indictment on June 12, 1994, charging Smith with twenty-four counts of larceny and falsifying business records. Each count stems from Smith's alleged improper use of corporate funds and property for personal purposes. The indictment charged Smith with the misappropriation of a total of approximately $ 45,000.

 In a motion dated July 20, 1994, Smith moved before Rockland County Court Judge Robert Meehan to dismiss the indictment on the grounds that the grand jury had been denied exculpatory information about Smith and that it was impermissibly biased against him. *fn2" Moreover, plaintiff claimed that the conduct for which he was indicted was not criminal, that he was a victim of selective prosecution, and that O&R had improperly influenced the district attorney's decision to proceed against him. Judge Meehan denied plaintiff's motion on October 19, 1994. Smith then applied to the Appellate Division for a Writ of Prohibition, which was denied, and to the Court of Appeals for leave to appeal, which was also denied.

 On December 1, 1994, plaintiff again moved for a dismissal of the indictment, repeating many of his previous allegations. Judge Meehan denied this motion on February 10, 1995. Also on that date, Judge Meehan granted Smith's motion to preclude the State's introduction at trial of evidence of uncharged crimes. After the case was transferred to Justice Colabella, plaintiff moved to dismiss the indictment on the ground that he had been prejudiced by the District Attorney's submission to the grand jury of evidence of uncharged conduct. On May 3, 1995, Justice Colabella, having examined the grand jury minutes, concluded that no grand jury misconduct had occurred.

 On April 6, 1995, plaintiff commenced this civil rights action seeking damages and an order enjoining the New York State criminal proceeding against him. We denied plaintiff's request for injunctive relief and observed that plaintiff "raised each of his federal constitutional arguments in a motion to dismiss the indictment that was included in his Omnibus Motion made before Judge Meehan in Rockland County Court. . . . We have no doubt that plaintiff has been afforded a full and fair opportunity to air his federal constitutional claims in New York state court." Opinion and Order dated May 26, 1995, at 10-11. However, we also denied a motion by the District Attorney to dismiss and ordered that plaintiff's action be placed on this court's suspense docket pending the resolution of the criminal prosecution in state court.

 Plaintiff's criminal trial commenced on June 5, 1995. Shortly thereafter, Justice Colabella, based on statements of a witness during cross-examination, found that the State had failed to disclose potentially exculpatory material and directed the State to provide plaintiff with that material immediately. On August 15, 1995, after denying plaintiff's motion for a trial order of dismissal, Justice Colabella acquitted plaintiff of all charges. In mid-September, plaintiff filed an Amended Complaint with this court in which he named the Rockland County District Attorney's Office, O&R, the Stier law firm, and Edwin Stier as additional defendants.

 DISCUSSION

 I. The District Attorney Defendants' Motion to Dismiss

 The D.A. Defendants move to dismiss plaintiff's Amended Complaint for failure to state a claim. The D.A. Defendants contend that absolute immunity shields them from liability for their quasi-judicial actions and that plaintiff failed to allege any conduct on their part for which they are not entitled to immunity. *fn3"

 When deciding a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations of the complaint and must draw all inferences in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." International Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied sub nom., Cortec Indus. v. Westinghouse Credit Corp., 503 U.S. 960, 118 L. Ed. 2d 208, 112 S. Ct. 1561 (1992). Dismissal is warranted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). "The latter principle is to be applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). However, a motion under 12(b)(6) should be granted if an affirmative defense or other bar to relief such as the immunity of the defendants is apparent from the face of the complaint. See Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). *fn4"

 A. The District Attorney

 The doctrine of absolute prosecutorial immunity creates a formidable obstacle for a plaintiff seeking to maintain a civil rights action against a district attorney in his individual capacity. *fn5" Pinaud v. County of Suffolk, 52 F.3d 1139, 1147 (2d Cir. 1995). The Second Circuit has defined prosecutorial immunity from section 1983 liability as covering "virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994). This immunity ensures "the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." Imbler 424 U.S. at 427-28.

 In assessing a prosecutor's claim of absolute immunity, the court must inquire whether the actions in question are part of a prosecutor's traditional function and whether they are closely associated with the judicial process. Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996). A district attorney acting in his role as advocate for the State is absolutely immune from civil liability for "actions preliminary to the initiation of a prosecution and actions apart from the courtroom." Buckley v. Fitzsimmons, 509 U.S. 259, 272, 125 L. Ed. 2d 209, 113 S. Ct. 2606 (1993) (quoting Imbler, 424 U.S. at 431 n.33). For example, a prosecutor is often immune from liability when evaluating and organizing evidence for presentation to a grand jury. Id. at 273. In addition, the actual presentation of evidence to a grand jury after a decision to seek an indictment has been made falls squarely within the prosecutor's traditional function. Id. at 273; Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984); Lee v. Willins, 617 F.2d 320 (2d Cir.) cert. denied, 449 U.S. 861, 66 L. Ed. 2d 78, 101 S. Ct. 165 (1980). Similarly, a prosecutor's determination of which offenses are to be charged is also immune. See Ying Jing Gan, 996 F.2d at 530.

 By contrast, absolute immunity is not available when a prosecutor undertakes conduct that is beyond the scope of his or her litigation-related duties. If the challenged conduct either is not a traditional function or is not "intimately associated with the judicial phase of the criminal system," the prosecutor is not entitled to absolute immunity. Imbler, 424 U.S. at 430. Thus, when a prosecutor acts in an investigative or administrative capacity rather than in a prosecutorial one, absolute immunity is not available. Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995). For example, immunity is not available when a prosecutor releases information or evidence to the media, Buckley, 509 U.S. at 276-78; Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984), authorizes or directs the use of wiretaps, Powers, 728 F.2d at 103, or performs the functions normally performed by the police such as assisting in the execution of a search or seizure. See Buckley, 509 U.S. at 273. An official also has no immunity if he or she has acted in the "clear absence of all jurisdiction." Phillips, 81 F.3d at 1209.

 It is well settled that courts are to apply a "functional approach" to determine whether a prosecutor enjoys absolute immunity. Burns v. Reed, 500 U.S. 478, 486, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991). However, the line between a prosecutor's acts in preparing for a prosecution, which are immune, and his or her acts of investigation or administration, which are not immune, is somewhat blurred. See Imbler, 424 U.S. at 431 n.33; Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (observing that "it is not at all clear what actions are so closely related to a prosecution as to come within the ambit of absolute immunity"), cert. denied sub nom., Barbera v. Schlessinger, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989). Although declining to establish a bright-line test, the Second Circuit has observed that "in each of the cases we have reviewed where absolute immunity was upheld, some type of formal proceeding had been commenced or was being commenced by the challenged acts. Conversely, where no proceedings have begun, qualified immunity is the norm." Barbera, 836 F.2d at 100. Subsequently, in Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995), the Second Circuit stated that before any formal legal proceeding has begun and before there is probable cause to arrest, it follows that a prosecutor receives only qualified immunity for his acts.

 To resolve the issues raised in the D.A. Defendants' motion, we must determine whether the District Attorney performed the conduct alleged in the pleadings as part of his traditional prosecutorial functions, and whether that conduct is closely associated with the judicial process. Phillips, 81 F.3d at 1209. Before we can examine the issue of absolute immunity, we must endeavor to identify the specific conduct upon which plaintiff predicates his claims. However, plaintiff's Amended Complaint is vague, and his submission to this court equally ambiguous, in setting forth the factual basis for his claims.

 Although this circuit has not adopted a heightened pleading standard for civil rights claims, plaintiff's Amended Complaint must satisfy the pleading requirements of Rule 8(a), which calls for a short and plain statement of the claim showing that the pleader is entitled to relief. *fn6" Plaintiff's allegations are inadequate if they contain only broad, conclusory statements. The Second Circuit has held that "complaints relying on civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).

 In his Amended Complaint, plaintiff alleges that Defendant Gribetz and the District Attorney's Office violated his Fifth, Sixth, and Fourteenth Amendment rights by "improperly administrating, investigating, and prosecuting" him. Amended Complaint at P 40. *fn7" In support of these allegations, plaintiff's Amended Complaint asserts that the District Attorney Defendants (1) failed to exercise proper discretion in evaluating whether plaintiff's alleged conduct warranted criminal prosecution, Amended Complaint at P 29; (2) wrongfully interfered with the grand jury proceedings by preventing the grand jurors from obtaining evidence that would exculpate plaintiff and presenting evidence of plaintiff's noncriminal activities, id. at PP 32, 33; (3) failed to indict other O&R executives for conduct similar to plaintiff's, id. at P 34; (4) prosecuted plaintiff for actions that did not rise to the level of criminal conduct, id. at P 38; and (5) acted in league with the O&R Defendants to maliciously prosecute plaintiff, id. at P 38, 44. *fn8"

 Plaintiff's first and third assertions implicate the District Attorney's traditional function of determining whether to initiate a prosecution, and if so on what charges. These are decisions as to which the District Attorney is entitled to absolute immunity. Ying Jing Gan, 996 F.2d at 530-31 (stating that a prosecutor is immune as to his decisions to institute a prosecution); Phillips, 81 F.3d 1204 at 1209-10 (acknowledging that a prosecutor will be absolutely immune for deciding not to institute criminal proceedings). Plaintiff's fourth contention -- that the District Attorney prosecuted him for noncriminal activities -- also alleges conduct for which the District Attorney is immune, since this claim relates to the District Attorney's prosecutorial actions, and there is no ground to conclude that the District Attorney acted in the absence of all jurisdiction. See Schloss v. Bouse, 876 F.2d 287, 291 (2d Cir. 1989). New York Criminal Procedure Law clearly provides the jurisdictional authority for the District Attorney to seek plaintiff's indictment, Crim. Proc. § 190, and New York Penal law, as cited in the indictment, furnishes the substantive basis for the charges against him. See Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987). As to plaintiff's claim of malicious prosecution, it is beyond dispute that a prosecutor "is absolutely immune from suit for malicious prosecution." Pinaud, 52 F.3d at 1149; Hill, 45 F.3d at 661. *fn9"

 Whether the District Attorney is entitled to absolute immunity for his alleged interference with the grand jury, including his purported failure to present exculpatory evidence, is a more complex issue. The Second Circuit has consistently stated, albeit in cases in which the grand jury considered a prosecutor's request to indict a specific individual rather than conducted a broad investigation, that prosecutors are immune from section 1983 liability for their conduct before a grand jury. Hill, 45 F.3d at 661-62; Powers, 728 F.2d at 104 ("We believe that a prosecutor must be permitted to work with a grand jury totally free of the threat of civil suit."); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975) ("It is clear that the presentation of evidence to grand juries is precisely the sort of prosecutorial function, often requiring 'principled and fearless decision making', that the immunity rule is designed to promote."); see Brenner v. County Rockland, 92 Misc. 2d 833, 401 N.Y.S.2d 434 (N.Y. Sup. Ct. 1978). Absolute immunity for a prosecutor's grand-jury conduct is consistent with both common-law tradition, see Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd per curiam, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 2d 395 (1927), and Imbler's holding that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune." Imbler, 424 U.S. at 431. However, in Buckley, the Supreme Court cabined the scope of absolute immunity with regard to a prosecutor's role in preparing evidence for presentation to a grand jury. The Court stated that immunity is appropriate "after a decision to seek an indictment has been made." Buckley, 509 U.S. at 273. According to the Court, when a prosecutor's mission is entirely investigative in character, "a prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Id.

 Plaintiff, relying on Buckley and Hill, contends that absolute immunity does not shield the District Attorney's conduct because the special grand jury proceedings were investigatory in nature and because the District Attorney did not initially have probable cause to seek plaintiff's indictment. Thus, plaintiff reasons that the District Attorney may not have been acting in an advocatory capacity when he engaged in the allegedly improper conduct. Plaintiff, citing Hill, argues that because it cannot be determined from the Amended Complaint whether the conduct at issue was performed by the District Attorney in an advocatory or an investigatory role, the applicability of absolute immunity should not be decided on a motion to dismiss.

 The present case is distinguishable from Buckley and Hill, in which the Supreme Court and the Second Circuit respectively determined that the defendant prosecutors in those cases were not necessarily entitled to immunity from allegations that they doctored evidence for subsequent presentation to the grand jury. Here, the specific acts of evidence manipulation that plaintiff alleges in his Amended Complaint relate to the District Attorney's presentation of evidence during the course of the grand jury proceedings. Plaintiff contends that the District Attorney acted improperly by "preventing Grand Jurors from obtaining exculpatory information about Smith or information which would demonstrate the absence of criminality on Smith's part," Amended Complaint at P 32, and by providing the grand jury with prejudicial evidence of plaintiff's "appropriate business conduct," id. at 33. Plaintiff's Amended Complaint contains no factual allegations of evidence fabrication or investigative misconduct during the period before the grand jury was convened. *fn10"

 Nonetheless, Plaintiff's argument that absolute immunity should not be available because the grand jury proceedings in this matter were initially investigative, and the District Attorney did not begin to act as an advocate until the as yet undetermined point when he elected to seek plaintiff's indictment is not without force. Courts have recognized that a prosecutor's activities during the grand jury process may involve an investigatory component. Powers v. Coe, 728 F.2d 97, 104 (2d Cir. 1984); Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490, 503 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100, 80 L. Ed. 2d 125, 104 S. Ct. 1593 (1984). In McGinley v. Hynes, 51 N.Y.2d 116, 432 N.Y.S.2d 689, 694, 412 N.E.2d 376 (1980) (addressing the availability of a writ of prohibition), the New York Court of Appeals observed that where a grand jury investigation had not progressed to the stage at which individual wrongdoers had been identified or discrete charges of criminality raised, the prosecutor was acting in an investigative capacity. With regard to the point at which an investigative grand jury proceeding becomes accusatorial and absolute immunity is warranted, the Court of Appeals for the District of Columbia stated in Gray :

 

A pre-indictment investigation . . . will necessarily have focused on a particular suspect or crime when the prosecutor actually begins presenting evidence of probable cause to a Grand Jury. Any related prosecutorial action before a Grand Jury, moreover, takes place in a formal procedural setting in which the prosecutor's role approximates his role at trial.

 Gray, 712 F.2d at 503.

 Here, Judge Ingrassia empaneled the special grand jury to undertake a general investigation into wrongdoing at Orange & Rockland Utilities. Thus, the District Attorney's actions cannot be considered advocatory from the outset. The question is whether, at the time that the District Attorney allegedly engaged in misconduct, he had identified plaintiff as a wrongdoer and begun to present the grand jury with evidence of plaintiff's criminal activity in an effort to obtain an indictment. Assuming the truth of plaintiff's factual allegations and mindful that the commencement of formal proceedings does not automatically immunize a prosecutor's subsequent actions, it is nevertheless clear from plaintiff's Amended Complaint that the District Attorney must have already targeted plaintiff and assumed the quasi-judicial role of advocate when he selectively offered evidence of plaintiff's conduct, manipulated the grand jury, and ultimately obtained an indictment against plaintiff. *fn11" At that point in the grand jury proceeding, the District Attorney clearly was not performing "the investigative functions normally performed by a detective or police officer." Buckley, 509 U.S. at 273. We can envision no scenario, other than one in which the District Attorney was seeking to initiate a prosecution that could explain the District Attorney's presentation of unduly prejudicial evidence and his concomitant failure to disclose exculpatory evidence to the grand jury. Therefore, we conclude that if the District Attorney did engage in the allegedly improper conduct, he did so as part of his quasi- judicial, prosecutorial function and is entitled to absolute immunity.

 B. The Office of the District Attorney

 The defense of absolute immunity is a personal privilege available to government officials only with respect to damage claims asserted against them in their individual capacities. Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). A governmental entity, as opposed to an individual official, possesses no personal privilege of absolute immunity. Id. Thus, the Office of the District Attorney, named by plaintiff as a defendant in this action, may not avail itself of the absolute immunity defense. Nonetheless, the Amended Complaint must be dismissed as against the District Attorney's Office. To the extent plaintiff seeks damages from the Office of the District Attorney for specific actions related to plaintiff's prosecution, the Eleventh Amendment protects the District Attorney's Office from liability. Ying Jing Gan, 996 F.2d at 529; Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014, 109 S. Ct. 805, 102 L. Ed. 2d 796 (1989); see Zimmerman v. City of New York, 52 Misc. 2d 797, 276 N.Y.S.2d 711, 714-15 (Sup. Ct. 1966) (stating that the district attorney acts for the State in criminal matters, "including criminal investigations and prosecutions within his county"). Moreover, plaintiff has neither alleged that he suffered injury as the result of any administrative policy or custom. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). *fn12" Thus, plaintiff has failed to state a claim against the Office of the District Attorney in its capacity as a representative of the county.

 CONCLUSION

 Based on the foregoing, plaintiff's claims against the D.A. Defendants are dismissed. This dismissal is without prejudice to plaintiff's filing, within thirty days, a second amended complaint alleging facts which, if proven, would establish that his constitutional rights were violated by actions of the District Attorney prior to or outside the performance of his prosecutorial function.

 SO ORDERED

 Date: March 6, 1997

 White Plains, NY

 William C. Conner

 Senior United States District Judge


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