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United States District Court, S.D. New York

April 12, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

William Washington, proceeding pro se, brings this action under section 1983 of Title 42 of the U.S. Code ("section 1983") seeking damages for false arrest, wrongful imprisonment and malicious prosecution. Plaintiff alleges that on April 16, 2002, Police Officer Milutinovic arrested him at the Port Authority bus terminal in New York City and charged him with two felonies: robbery in the third degree and criminal possession of stolen property. After trial, plaintiff was acquitted of the more serious robbery charge but was found guilty of the stolen property charge. District Attorney Robert M. Morgenthau ("D. A. Morgenthau") moves to dismiss on the basis that plaintiff's allegations fail to state a claim against him upon which relief can be granted. For the following reasons, D. A. Morgenthau's motion is granted and he is dismissed from this lawsuit. I. BACKGROUND

  Plaintiff claims that his Fourth Amendment rights were violated when P.O. Milutinovic arrested him at the Port Authority bus terminal and charged him with robbery in the third degree and criminal possession of stolen property. Plaintiff admits that he stole a wallet containing $90 in cash but claims that he should only have been charged with petit larceny, a misdemeanor. See Complaint, Statement of Claim at 1-2. Plaintiff asserts that P.O. Milutinovic, working under the direct supervision of Police Commissioner Raymond Kelly, knew that the felony arrest was a "fraud" but nonetheless detained plaintiff and initiated a criminal proceeding. See id., Second Cause of Action at I. In addition, plaintiff claims that the State lacked probable cause to prosecute him for third-degree robbery and that the prosecution for that charge was motivated by "malice." See id., First Cause of Action. Plaintiff seeks compensatory damages from all defendants.


  A. Motion to Dismiss

  Under Rules 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Caiola v. Citibank, N.A., New York, 295 F.3d 312, 321 (2d Cir. 2002) (internal quotation marks and citation omitted); see also Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (per curiam) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Therefore, the task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof" Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (quoting Saunders v. Coughlin, No. 92 Civ. 4289, 1994 WL 98108, at *2 (S.D.N.Y. Mar. 15, 1994)).

  When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. See Chambers v. Time Warner. Inc., 282 F.3d 147, 152 (2d Cir. 2002). Courts may not consider matters outside the pleadings but may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings. See id. at 152-53. Of course, the allegations of a pro se plaintiff should be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). However, if a liberally construed pro se complaint fails to meet these minimal standards, it must be dismissed like any other deficient complaint. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) ("Although less stringent standards apply where, as here, a litigant is pro se, dismissal is nevertheless appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief) (internal quotation marks and citations omitted).

  B. False Arrest/Malicious Prosecution

  Under New York law, false arrest is synonymous with false imprisonment. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). To establish a cause of action for false arrest or false imprisonment, a plaintiff must show that "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Id. at 97.

  In order to state a claim for malicious prosecution, a plaintiff must establish the following elements: (1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in plaintiff's favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice. See DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996) (applying state tort law elements to a section 1983 malicious prosecution claim).


  A. Plaintiff's Claims Must Be Dismissed for Lack of Personal Involvement

  "It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Because the general doctrine of responded superior does not apply in section 1983 actions, the defendant must be responsible for the alleged constitutional deprivation. See Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989); see also Ying Jing Can v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) ("[A] supervisory official cannot be held liable under § 1983 on a theory of respondeat superior.").

  A supervisory official may be personally involved in a section 1983 violation in several ways: (1) the official may have directly participated in the violation; (2) the official, after learning of the violation, may have failed to remedy the wrong; (3) the official may have created a policy or custom under which unconstitutional practices occurred; (4) the official may have been grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) the official may have exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).

  Plaintiff has failed to plead any facts which would support the imposition of liability as to D.A. Morgenthau on any of the foregoing theories. With regard to his malicious prosecution and wrongful imprisonment claims, plaintiff does not assert that D.A. Morgenthau personally prosecuted the case against him. Rather, plaintiff seeks to hold D.A. Morgenthau liable on a respondeat superior theory for the actions of his employees. Given that the doctrine of respondeat superior is inapplicable to section 1983 claims, personal involvement is necessary for the imposition of liability. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) ("[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority."); Colon v. Coughlin, 58 F.3d at 873. Because there are no allegations that D.A. Morgenthau was personally involved in plaintiff's prosecution, the malicious prosecution and wrongful imprisonment claims against D.A. Morgenthau must be dismissed.*fn1

  Plaintiff also claims that he was falsely arrested on felony charges in violation of his constitutional rights. While plaintiff asserts that P.O. Milutinovic detained him without probable cause to charge him with a felony, plaintiff does not allege that D.A. Morgenthau was personally involved in his arrest. Therefore, the false arrest claim must be dismissed as to D.A. Morgenthau. See Black, 76 F.3d at 74; Colon, 58 F.3d at 873. Even if plaintiff had alleged that D.A. Morgenthau participated in his arrest, he still would have failed to state a claim for false arrest. Plaintiff states that he could have been arrested for petit larceny but that he should not have been charged with a felony. However, as far as the Fourth Amendment is concerned, an arrest is valid if an officer has probable cause to believe that the suspect has committed any crime, including a misdemeanor. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.") — Similarly, under New York law, a police officer may make a warrantless arrest if he has reasonable cause to believe that the suspect has committed a "crime." N.Y. Crim. Proc. Law § 140.10(1)(b). New York law defines a "crime" as either "a misdemeanor or a felony." N.Y. Penal Law § 10.00(6). Because plaintiff acknowledges that P.O. Milutinovic had probable cause to arrest him for a misdemeanor, i.e., petit larceny, plaintiff's arrest on the other charges was valid. Plaintiff's false arrest claim must therefore be dismissed as to D.A. Morgenthau.

  B. The Suit Against D.A. Morgenthau in His Official Capacity is Barred by the Eleventh Amendment

  Moreover, regardless of D.A. Morgenthau's level of personal involvement, the action against him must be dismissed on other grounds, namely Eleventh Amendment immunity and prosecutorial immunity. To the extent that plaintiff is suing D.A. Morgenthau in his official capacity, plaintiff's suit is barred by the Eleventh Amendment. "` When prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county.'" Ying Jing Gan 996 F.2d at 536 (quoting Baez v. Hennessey, 853 F.2d 73, 77 (2d Cir. 1988)). It is well established that an action against a State actor in his official capacity is tantamount to a suit against the State itself. See Hafer v. Melo, 502 U.S. 21, 25 (1991) ("[T]he real party in interest in an official-capacity suit is the governmental entity and not the named official."). Therefore, all immunities possessed by the State, including Eleventh Amendment immunity, are applicable in an official capacity action against a governmental official. See id. Accordingly, official capacity actions against county prosecutors arising from their prosecution of criminal cases are barred by the Eleventh Amendment. See Rodriguez, 116 F.3d at 66 (holding that an official capacity suit against a Brooklyn District Attorney was barred by the Eleventh Amendment); Carbajal v. County of Nassau, 271 F. Supp.2d 415, 420 (E.D.N.Y. 2003) ("Where, as here, the plaintiff seeks damages against the District Attorney's Office and assistant district attorneys in their official capacity for specific actions related to the plaintiff's prosecution, the Eleventh Amendment to the U.S. Constitution shields them from liability."). Therefore, plaintiff's official capacity action against D.A. Morgenthau is precluded by the Eleventh Amendment.

  C. The Suit Against D.A. Morgenthau in His Individual Capacity Is Barred by Absolute Prosecutorial Immunity

  "Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 25. "[O]fficials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as [absolute prosecutorial immunity]." Id. To the extent that plaintiff is suing D.A. Morgenthau in his individual capacity, his malicious prosecution and unlawful imprisonment claims are barred by the doctrine of absolute prosecutorial immunity. A prosecutor enjoys absolute immunity for the "initiation and pursuit of a criminal prosecution, including presentation of the state's case at trial." Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); see also Imbler v. Pachtman, 424 U.S. 409,431 (1976) ("[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under section 1983."). Prosecutors are absolutely immune from civil suits for acts committed within the scope of their official duties where the challenged activities are not administrative or investigative in nature, but instead are "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430; see also Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990). The purpose of the immunity doctrine is to "preserve the integrity of the judicial process" and enable zealous performance of prosecutorial functions without the "constant threat of legal reprisals." Pinaud v. County of Suffolk, 52 F.3d 1139, 1147 (2d Cir. 1995) (quoting Hill v. City of New York, 45 F.3d 653, 656 (2d Cir. 1995)) (internal quotation marks omitted).

  Plaintiff seeks money damages from D.A. Morgenthau for maliciously prosecuting him on felony charges which resulted in his alleged wrongful imprisonment. In prosecuting plaintiff, D.A. Morgenthau acted in the quasi-judicial capacity of a public prosecutor. D.A. Morgenthau's prosecution of plaintiff clearly involved the "initiation and pursuit of a criminal prosecution," Buckley, 509 U.S. at 269, and was "intimately associated with the judicial phase of the criminal process," Imbler, 424 U.S. at 430. Nor does it matter whether D.A. Morgenthau allegedly conspired with the New York City Police Department to falsely prosecute him. Claims of conspiracy do not remove allegations from the scope of absolute prosecutorial immunity. See Pinaud, 52 F.3d at 1148 ("[S]ince absolute immunity covers Virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate,' when the underlying activity at issue is covered by absolute immunity, the `plaintiff derives no benefit from alleging a conspiracy.'" (quoting Hill, 45 F.3d at 659 n.2). In fact, "absolute immunity protects a prosecutor from § 1983 liability for virtually all acts, regardless of motivation, associated with his function as an advocate. This would even include . . . allegedly conspiring to present false evidence at a criminal trial." Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).


  For the reasons stated above, plaintiff's Complaint, including his false arrest, wrongful imprisonment and malicious prosecution claims, is hereby dismissed as to D.A. Morgenthau for lack of personal involvement, Eleventh Amendment immunity, and prosecutorial immunity. A conference with the remaining defendants has been scheduled for Tuesday, May 4, 2004, at 4:30 p.m. The Clerk of the Court is directed to close this motion (Document # 8).


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