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April 21, 2003


The opinion of the court was delivered by: William C. Conner, Senior United States District Judge


Plaintiff Richard F. Thomas brings the instant action against defendants County of Putnam, Putnam County District Attorney's Office, Putnam County Sheriffs Department, Paul Velardi, Joseph A. Charbonneau, Robert Langley and Michael Nalbone.*fn1 Plaintiff claims that defendants undertook and conspired to prosecute criminal complaints against him in bad faith, with the intent of depriving plaintiff of his constitutional rights in violation of 42 U.S.C. § 1983. Plaintiff also asserts state law claims for false imprisonment, false arrest, malicious prosecution, negligence and intentional infliction of emotional distress. Defendant Velardi now moves for summary judgment on the grounds that he is immune from suit under the doctrine of absolute immunity. For the reasons stated below, the motion is granted.


Plaintiffs claims against Velardi (and against all other defendants) arise from, and relate to, various criminal complaints filed by Valerie Buchanan against plaintiff and the investigation and prosecution of those complaints. In November of 2000, Buchanan, with whom plaintiff had been having an extra-marital affair, filed a criminal complaint against plaintiff with the Putnam County Sheriffs Department. (Velardi Aff. ¶ 5.) In her criminal complaint, Buchanan alleged that plaintiff had physically assaulted her when she told him that she wished to terminate their relationship.

As a result of this alleged assault, Buchanan sought and obtained an Order of Protection against plaintiff which barred him from contacting or attempting to contact Buchanan. (Id. ¶ 9.) On January 24, 2001, Buchanan filed another criminal complaint against plaintiff, claiming that he had violated the Order of Protection. A third criminal complaint was filed alleging that plaintiff had again violated the Order of Protection by repeatedly calling Buchanan at her residence and by otherwise harassing her. (Id. ¶ 13.) For these alleged violations of the Order of Protection, plaintiff was charged with aggravated harassment and criminal contempt.

All of Buchanan's various criminal complaints against plaintiff were referred to the Putnam County District Attorney's Office for investigation and possible prosecution. Although defendant Charbonneau was initially assigned to the matter, because he had previously represented Buchanan in another matter, application was made to the District Attorney's Office and an Order of County Court Judge Robert B. Miller was issued appointing defendant Velardi as Special Prosecutor to investigate Buchanan's criminal complaints against plaintiff. (Thomas Aff. ¶ 10.) On or about June 22, 2001, a grand jury was convened by the District Attorney's Office for the purpose of investigating various criminal complaints — including, but not limited to, Buchanan's complaints against plaintiff — and to determine whether there was reasonable cause to believe that criminal conduct had in fact occurred. (Velardi Aff. ¶ 19.)

During that proceeding, Velardi submitted documentary evidence (including Buchanan's medical and hospital records) and presented various witnesses to testify before the grand jury in connection with Buchanan's criminal complaints. Plaintiff also testified before the grand jury, and denied all of Buchanan's allegations of wrongdoing (except for the fact that they had been having an extra-marital affair). (Id. ¶ 20.) Following its deliberations, the grand jury declined to indict plaintiff on charges of assault, aggravated harassment and criminal contempt. During the course of his testimony before the grand jury, plaintiff (who was married at the time) admitted to having had an adulterous sexual relationship with Buchanan (who was not married). Based on plaintiffs own admissions and in accordance with what Velardi perceived to be his responsibilities as Special District Attorney, on July 2, 2001, Velardi signed a Misdemeanor Complaint against plaintiff charging him with the crime of adultery. (Pl.'s Reply Mem. Supp. Summ, J. at 8-9.) Thereafter, Velardi wrote to the court indicating that he believed that he had "exceeded [his] authority in bringing the [misdemeanor] charge against [Mr. Thomas] . . . since it was not part of the authorization from the Court as a Special District Attorney." (Id. at 10, Ex. E.) In that letter, Velardi tendered his "withdrawal as the prosecutor in this case so that the court can attend to the present charge against [Mr. Thomas] . . . as it deems fit. (Id.) By Decision and Order dated September 18, 2001, the County Court of the State of New York, County of Putnam (Hon. Robert B. Miller) dismissed the Class B misdemeanor charge against plaintiff. (Id. at 10-11.)


A. Summary Judgment Standard

Summary judgment maybe granted "if the pleadings. depositions. answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F. Supp.2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Ticali, 41 F. Supp.2d at 255. To defeat summary judgment, the nonmovant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).

I. Absolute Immunity

Prosecutors facing individual capacity liability can claim absolute or qualified immunity. 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) Absolute prosecutorial immunity is generally limited to litigation-related activities and decisions whether to prosecute. Ying Jing Gan, 996 F.2d 522, 530 (2d Cir. 1993); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). For example, a prosecutor is immune from liability when routinely evaluating and organizing evidence for presentation to a grand jury. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 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.

However, absolute immunity is not available when a prosecutor undertakes conduct that is beyond the scope of his or her litigation-related duties. 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, Id. 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. 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 v. Smith, 836 F.2d 96, 99 (2d Cir. 1997).

To resolve the issues raised in Velardi's motion, we must determine whether the Special Prosecutor 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. Plaintiffs claim that Velardi is not entitled to immunity ...

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