The opinion of the court was delivered by: DENISE COTE, District Judge Page 2
Douglas Sheff ("Sheff") has brought suit pursuant to 42 U.S.C. § 1983
("Section 1983") seeking compensatory and punitive damages against the
City of New York ("City"), Robert Morgenthau, the District Attorney of
New York County ("DA"), various current and former Assistant District
Attorney's ("ADAs") from the DA's office, and Thomas Foltin ("Foltin"),
*fn1 a police officer, in connection with criminal charges that were
filed against him but ultimately dismissed. He alleges that the
defendants conspired against him to deprive him of a jury trial and to
present false testimony against him, that they maliciously prosecuted him
and falsely charged him, and that the DA and supervisory ADAs were
negligent in their training and supervision of subordinate ADAs.
The DA and the ADAs have filed a motion to dismiss the claims against
them under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. Foltin has also
moved to dismiss the allegations against him under Rules 12 and 56, Fed.
R. Civ. P. For the following reasons, the motions are granted in part and
denied in part.
Sheff was charged in February 1997 with harassing his former
girlfriend. That charge was eventually dismissed. Sheff was charged in
June 1997 with harassment and violating an order of protection. Although
convicted on those charges at trial, the conviction was overturned on
appeal. The relevant details behind
these events, as alleged by the plaintiff, or as reflected in the
documents which are integral to his complaint, follow.
The February 10, 1997 arrest; Complaint 834
On February 10, 1997, Sheff was arrested on charges that he had left
telephone messages at his ex-girlfriend's apartment ("Gibson") for the
purpose of annoying and harassing her by asking for the return his
personal belongings and by asking her to have her friends stop calling
him. The case was assigned to Unit 30 in the DA's Office and given
misdemeanor complaint number 97NO26834 ("834").
Gibson asked a friend Edward Stancik ("Stancik"), a former ADA and then
Special Investigator for the New York City Public School System, to
intervene with the DA's Office to insure that Sheff was prosecuted.
Stancik asked his friends, defendant ADAs Klein and Murray, to have the
case transferred to them in Unit 50.
As of March 17, Unit 50 was handling the case. At a court appearance on
that day, the state court judge dismissed the case, but stayed the
dismissal for 30 days to permit a superceding complaint to be filed that
would include Sheff's statements that were alleged to constitute
harassment. Sheff alleges that the judge also said that it was crazy to
charge Sheff. On April 17, Unit 50 filed a superceding complaint. Sheff
alleges that the case was restored through an improper ex parte
proceeding and without an unsealing order. On May 6, the complaint was
dismissed by the court.
On June 13, in an ex parte proceeding, the court vacated the May 6
dismissal. According to the minutes of the court proceeding, the ADA had
notified defense counsel that a superceding information was being filed
but defense counsel was unable to appear. The court placed the matter on
the June 16 calendar so that defense counsel could appear and be heard.
The June 16, 1997 Order of Protection
On June 16, at a proceeding attended by defense counsel, the court
issued an order of protection against Sheff, directing him to stay away
from and to refrain from harassing Gibson and her son from June 13, 1997
until July 31, 1997. After the order was issued, ADA Klein, who was
normally a homicide prosecutor, presented the court with a letter from
3tancik which indicated that Stancik feared for Gibson's life. On June
24, Sheff alleges that ADA Kobre appeared ex parte and asked that a
second order of protection be issued to prohibit Sheff from making
telephone calls to Gibson.
The June 26, 1997 Arrest; Complaint 394
On June 26, Sheff surrendered and was arrested and jailed until the
following day. Sheff was charged in misdemeanor complaint number
97NO62394 ("394") with two counts of aggravated harassment in the second
degree based on the allegations that on June 17 Gibson had received a
telephone call at home shortly
after midnight in which the caller did not speak. The complaint alleged
that Sheff admitted to Gibson that he had made the call, that telephone
records showed the call came from Sheff's home, and that the call
violated the June 16 order of protection. The complaint included
allegations of other conduct by Sheff which had caused Gibson to fear
that he would harm her physically.
Sheff alleges that defendant ADA Kobre lied in a footnote in papers
filed to oppose Sheff's motion to dismiss complaint 394. The footnote
reads as follows:
For example, the defendant claims to have dialled
[sic] the complainant's number on the morning of June
17, 1997 by mistake, and to have hung up before the
complainant answered. The People allege instead that
the defendant reached the complainant and said `hello'
several times before the complainant hung up the
phone. This is an issue of fact for the jury to
(Emphasis in original.) At trial, ADA Kobre was asked by defense counsel
to stipulate that Gibson had made an inconsistent statement. Kobre
explained that he had transposed the words defendant and complainant in
the footnote. The footnote should have stated that the complainant said
"hello" several times before hanging up the phone.
As reflected in the record for proceedings on April 17, 1998, Complaint
834 was dismissed on speedy trial grounds and a trial was ordered on
Complaint 394. The court ordered a hearing to determine if Sheff had been
served with the June 16 order of protection.
Misconduct Prior to Trial
At a hearing on September 14, the court refused to sign a subpoena for
Gibson's American Express records, which Sheff hoped would show that
Gibson had sent Sheff's daughters two books. Sheff contends that between
April and November 1998, ADAs in Unit 50 improperly opposed the subpoena
by moving to quash it.
Sheff alleges that prosecutors failed to give him Brady material in
discovery, to wit, notes from a Vermont police officer reflecting
Gibson's request that the officer lie, and a speeding ticket reflecting
that Gibson was not in New York on March 19, 1997, at a time she said
that Sheff had called her. At some point between April and November
1998, a law clerk told Sheff's attorney that ADA Kobre had met ex parte
with the judge ...