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March 23, 2004.

DOUGLAS SHEFF, Plaintiff, -v- THE CITY OF NEW YORK, STEVEN GARY KOBRE, individually and as a former New York County Assistant District Attorney, ELENA JAFFE, individually and as Assistant District Attorney, WARREN MURRAY, individually and as Assistant District Attorney, NANCY E. RYAN, individually and as Assistant District Attorney, ROBERT MORGANTHAU, individually and as District Attorney, THOMAS FULTON, individually and as a Police Officer, Defendants

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 Page 3 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 Page 4 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 Page 5 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 decide.
(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. Page 6

 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 ...

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