United States District Court, S.D. New York
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
OPINION AND ORDER
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 and submitted an ex parte motion. In November, ADA Klein
told Sheff's attorney that Gibson was not mentally fit.
November 1998 Conviction
On November 24, ADA Kobre lowered the charges against Sheff to an
attempt, thereby depriving Sheff of a right to a jury trial. On November
28, Justice Paul Feinman found Sheff guilty on both counts and sentenced
him to a conditional discharge. ADAs Kobre and Jaffe were trial counsel.
ADAs Klein and Murray attended the trial.
Sheff appealed his conviction. In responding to Sheff's pro se
post-judgment motions, the prosecutors allegedly lied. ADA Jaffe also
called Sheff's attorney and asked for negative material about Sheff to
include in the response.
Sheff alleges that in March 2000, the DA's Office provided Sheff with
certain Gibson telephone records that it had not produced at trial. These
records demonstrate that Gibson was not in New York when she testified
that Sheff had called her in New York.*fn2
Foltin's Admissions of Wrongdoing
On August 4, 2000, Foltin told Sheff that he deserved to be found
guilty. Foltin had served Sheff with the order of protection. Foltin
revealed that ADA Kobre and Gibson's attorney had told Foltin to testify
that Sheff had acted weird and nervous when served with the order. Foltin
reported that ADA Kobre had admitted that the charges against Sheff had
been lowered because a jury would not convict Sheff. On July 21, 2001,
Foltin did not arrest Sheff for driving with a suspended registration
because, as Foltin admitted, he had lied at trial.
December 2001 Reversal
On December 4, 2001, the Appellate Division reversed Sheff's conviction
on the ground that there was insufficient evidence that calling Gibson
and then hanging up was an attempt to
communicate. "Defendant's conduct in dialing the complainant's telephone
number and hanging up without completing the call after an unspecified
number of rings did not constitute an attempt to `communicate' with the
complainant within the meaning of Penal Law § 240.30(1)." People v.
Sheff, #00-292, 97NO62394 (1st Dep't 2001).
Sheff pleads four causes of action pursuant to Section 1983 against the
DA and the ADAs in both their official and personal capacities. First,
Sheff alleges that the defendants conspired to deprive him of a right to
a jury trial and to convict him through the false testimony of Foltin.
Second, Sheff alleges that the defendants maliciously prosecuted him by
filing Complaint 394 and by providing false testimony and withholding
important information from the court. Third, in connection with Complaint
834, Sheff alleges that defendants maliciously prosecuted him by falsely
charging him without probable cause, providing false testimony, and
withholding vital information from the court, and that they violated his
First Amendment right to free speech by prosecuting him for asking for
his possessions in a non-threatening manner. Finally, he alleges that the
City, the DA, and supervisory ADAs Ryan, Murray and Klein were negligent
in their training and supervision of ADAs; that the DA and these
supervisory ADAs deprived him of a right to a jury trial through a
practice in the DA's Office of lowering charges to
misdemeanors; and that the DA allows ADAs to do favors for friends,
improperly helped Stancik get his job, and hires the children of the rich
and powerful at the expense of better qualified candidates.
With respect to Foltin, Sheff alleges that he violated Section 1983
when he testified falsely as to Sheff's reaction when served with the
order of protection. Sheff also claims that Foltin is liable under
Section 1983 for conspiring with the prosecutors to provide the false
testimony. Sheff seeks $1,000,000 in compensatory damages from each of
the defendants, as well as punitive damages.
Notice pleading under Rule 8(a)(2), Fed.R. Civ. P., requires only a
"fair notice of what the plaintiff's claim is and the grounds upon which
it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)
(citation omitted). See Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.
2002) (applying the liberal notice standard when evaluating a motion to
dismiss a Section 1983 claim).
When considering a motion to dismiss pursuant to Rules 12(b)(1) and
12(b)(6), Fed.R. Civ. P., a court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor of the
plaintiff. See, e.g., Sec. Investor Protection Corp. v. BDO Seidman,
LLP, 222 F.3d 63, 68 (2d Cir. 2000). "Dismissal is inappropriate
unless it appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him or her to relief." Raila v. United
355 F.3d 118, 119 (2d Cir. 2004). Where, as here, a plaintiff is
proceeding pro se, the court has an obligation to "construe pro se
pleadings broadly, and interpret them to raise the strongest arguments
that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)
(citation omitted).*fn3 This is "especially true" when the pro se
complaint alleges civil rights violations. Weixel v. Bd. of Educ. of New
York, 287 F.3d 138, 146 (2d Cir. 2002).
1. Official Capacity
In the caption to the complaint, Sheff indicates that this suit is
brought against the individual defendants in their official capacities as
government employees.*fn4 "A claim for damages against state officials
in their official capacity is considered to be a claim against the State
and is therefore barred by the Eleventh Amendment." Davis v. New
York, 316 F.3d 93, 101 (2d Cir. 2002) (citation omitted). Eleventh
immunity extends to district attorneys in certain circumstances. "When
prosecuting a criminal matter, a district attorney in New York State,
acting in a quasi-judicial capacity, represents the State not the
county," and is protected by the Eleventh Amendment. Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988). See also Rodriguez v. Weprin, 116 F.3d 62,
66 (2d Cir. 1997).
When it comes, however, to issues concerning "the administration of the
district attorney's office," the district attorney is treated as a
municipal official and not as a state official. Ying Jing Gan v. City of
New York, 996 F.2d 522, 536 (2d Cir. 1993). See also Meyers v. County of
Orange, 157 F.3d 66, 77 (2d Cir. 1998); Pinaud v. County of Suffolk,
52 F.3d 1139, 1153 n.14 (2d Cir. 1995); Walker v. City of New York,
974 F.2d 293, 301 (2d Cir. 1992). In any event, a suit against a
government official acting in his official capacity is construed as a way
of pleading an action against the entity of which the official is an
agent. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham,
473 U.S. 159, 165 (1985); Pinaud, 52 F.3d at 1153.
Each of the claims brought against the individual defendants must be
dismissed to the extent that they are brought against these defendants in
their official capacity. To the extent the claims against the DA and the
ADAs concern the administration of the DA's office, they will be
considered as filed against the City. Each of the claims against Foltin
in his official capacity will also be considered as filed against the
2. Absolute Immunity
The defendants other than Foltin move to dismiss the claims brought
against them in their individual capacities on the ground that they are
protected from a suit for damages by the doctrine of absolute immunity.
This prong of the defendants' motion requires an analysis of the
functions that these defendants performed that gave rise to the
When prosecutors are sued for damages in their individual capacity,
they may be entitled to either absolute or qualified immunity. Ying Ging
Gan, 996 F.2d at 529. "The doctrine of absolute prosecutorial immunity
creates a formidable obstacle for a plaintiff seeking to maintain a civil
rights action against a district attorney." Pinaud, 52 F.3d at 1147. To
determine whether a prosecutor is entitled to absolute immunity courts
"apply a functional approach, examining the nature of the function
performed, not the identity of the actor who performed it." Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996) (quoting Buckley v.
Fitzsimmons, 509 U.S. 259, 269 (1993)). Prosecutors have absolute
immunity from damage claims "arising out of prosecutorial duties that are
intimately associated with the judicial phase of the criminal process."
Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001) (citation
omitted). See also Bernard v. County of Suffolk, 356 F.3d 495, 502 (2d
Cir. 2004); Doe, 81 F.3d at 1209. The doctrine protects a defendant from
damages "regardless of the wrongfulness of his motive or degree of injury
caused." Bernard, 356 F.3d at 503. In contrast,
"[w]hen a prosecutor is engaged in administrative or investigative
activities, he is entitled only to qualified immunity." Pinaud, 52 F.3d
at 1147. See also Parkinson, 238 F.3d at 150.
The first claim concerns principally Sheff's right to a jury trial and
Foltin's alleged perjury. The prosecutors are entitled to absolute
immunity on both of these allegations. See, e.g., Bernard, 356 F.3d at
504; Parkinson, 238 F.3d at 150; Dory v. Ryan, 25 F.3d 81, 83-84 (2d Cir.
Insofar as this motion concerns his second and third claims, Sheff has
identified the following seven acts by the DA and the ADAs which he
asserts occurred during the investigative stage of the prosecution
against him, and which he characterizes as investigative or
administrative acts which would entitle the defendants to at most
1. Charging Sheff despite having been told by a police department
lieutenant that Sheff's conduct did not constitute probable cause for an
2. Charging Sheff with a crime despite having told a colleague that
Sheff did not commit a crime.
3. Requesting that the court amend the order of protection.
4. Charging an innocent person with a crime and changing the DA's unit
to which the case was assigned because of a request from a friend, that
5. Reducing the charges against Sheff to avoid a trial by jury.
6. Including allegations in a complaint that Sheff had telephoned
Gibson twenty times after being told not to do so, but omitting from the
complaint that Gibson called Sheff as often and had shared a ski house
with him while they were dating.
7. Filing charges against Sheff despite knowledge that Gibson had asked
a police officer to fabricate evidence against Sheff.
With the possible exception of the charge that ADAs Klein and Murray
improperly changed the unit in the DA's office to which the Sheff
prosecution was assigned, each of these charges concerns a prosecutorial
function for which the defendants are entitled to absolute immunity. Each
of these acts are decisions by the district attorney's office regarding
what charges to bring against Sheff and how to prosecute him.
Although not expressly stated in his causes of action, the allegation
in Sheff's complaint that ADAs Klein and Murray improperly changed the
unit in the DA's office to which the Sheff prosecution was assigned is
arguably connected to initiating a prosecution and presenting the state's
case. See Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000) ("The line
between a prosecutor's advocacy and investigating roles might sometimes
be difficult to draw."). On the other hand, it may be appropriate to
characterize this act as administrative. Because the defendants have not
yet specifically addressed this issue, it is premature to decide that the
defendants are entitled to absolute immunity for this transfer.
The fourth claim concerns the supervision of subordinate ADAs
responsible for Sheff's prosecution and various policies of the DA's
office or of the DA. To the extent the supervision or policies concern
the prosecutorial decisions for which the ADAs have absolute immunity,
then those derivative allegations against supervisors must also be
dismissed on the ground that the supervising district attorneys have
absolute immunity for the prosecution-related decisions of their
subordinates and because Section 1983 supervisory liability depends upon
the existence of an underlying constitutional violation. See, e.g., Poe
v. Leonard, 282 F.3d 123, 142 (2d Cir. 2002); Ying Jing Gan, 996 F.2d at
The supervising district attorneys have absolute immunity for their
subordinates' decision to charge Sheff with a crime that did not entitle
him to a jury trial, and for any other actions taken by the prosecutors
in charging Sheff or prosecuting him. The claim that the DA allows ADAs
to do favors for friends is also within the scope of absolute immunity
since this claim is directed at the decision to prosecute Sheff as a
result of Stancik's alleged intervention on behalf of Gibson. Other
allegations in the fourth claim, however, may concern administrative
conduct and policies and be beyond the reach of the doctrine of absolute
immunity. They include potentially the reassignment of Sheff's
prosecution from Unit 30 to Unit 50, assisting Stancik to get his job, and
the DA's hiring practices.
3. The Fourth Claim
Sheff's fourth claim asserts that the DA and supervisory ADAs Murray,
Ryan, and Klein are each liable in their individual capacity for
violating his rights through their conduct of various policies in the
DA's Office and their failure to train and supervise ADAs. Those limited
portions of the fourth claim for which the individual defendants may not
have absolute immunity are listed above.
There is no liability under Section 1983 based on a theory of
respondeat superior. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 691
(1978); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). The
personal involvement of a defendant in the alleged constitutional
violation is a prerequisite to an award of damages under Section 1983.
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Supervisor
liability under Section 1983 can be demonstrated in one or more of the
(1) actual direct participation in the constitutional
violation, (2) failure to remedy a wrong after being
informed through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct amounting to
a constitutional violation, or allowing such a policy
or custom to continue, (4) grossly negligent
supervision of subordinates who committed a
violation, or (5) failure to act on information
indicating that unconstitutional acts were occurring.
Richardson, 347 F.3d at 435 (citation omitted).
The defendants have moved to dismiss any surviving portions of the
fourth claim by arguing that only the DA himself may set policy for the
DA's office. This argument is customarily made by the City since it
derives from the doctrine of municipal
liability articulated in Monell and its progeny. So long as the other
requirements for a Section 1983 claim are met, an individual defendant
may be liable under Section 1983 in her individual capacity even if she
is not the final decision-maker authorized to set a policy for the DA's
office or for the City.
4. Police Officer Foltin
Sheff charges that Foltin violated Section 1983 by committing perjury
at trial when he testified falsely about Sheff's reaction to being served
with the order of protection. Police officers may not be held liable
under Section 1983 for perjurious testimony. See, e.g., Briscoe v.
LaHue, 460 U.S. 325, 346 (1983); Sykes v. James, 13 F.3d 515, 519-20 (2d
Cir. 1993).*fn5 Foltin is not, however, immune from Section 1983
liability for the allegation that he conspired with the prosecutors to
present false testimony. While prosecutors have absolute immunity "not
just for the presentation of testimony, but . . . for all actions
relating to their advocacy," police officers are not immune for
extra-judicial actions such as an alleged conspiracy to present false
testimony. Dory, 25 F.3d at 83. Foltin's motion for summary judgment on
this single, remaining claim against him is premature.
The motions to dismiss plaintiff's claims by District Attorney Robert
Morgenthau, Assistant District Attorneys Nancy E. Ryan and Warren Murray,
former Assistant District Attorneys Steven J. Kobre, Doreen Klein, and
Elena Jaffe, and Police Officer Thomas Foltin are granted in part.