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Simons v. State

January 31, 2007


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiffs Benjamin Simons ("Mr. Simons" or "plaintiff") and Robin Simons ("Mrs. Simons") (collectively "plaintiffs") bring this action against defendants the State of New York ("the State"), the New York State Police ("the State Police"), and Trooper John J. Fitzgerald ("Trooper Fitzgerald"), Investigator Gary Shultz ("Investigator Schultz"),*fn1 Trooper Hovey ("Sergeant Hovey"),*fn2 and Trooper Jack Graham ("Senior Investigator Graham")*fn3 in their individual and official capacities (collectively "defendants"). Plaintiffs assert eight causes of action: first, false arrest in violation of 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution; second, malicious prosecution in violation of § 1983 and the Fourth Amendment; third, deprivation of substantive due process in violation of § 1983 and the Fourteenth Amendment to the United States Constitution; fourth and fifth, abuse of process in violation of § 1983 and the Fourteenth Amendment, and the New York State Constitution; sixth, failure to properly train and supervise in violation of § 1983; seventh, common law defamation; and eighth, common law loss of consortium. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), and to dismiss pursuant to Rule 12, subsections (b)(1) and (b)(6). Plaintiffs oppose. Oral argument was heard on November 6, 2006, in Utica, New York. Decision was reserved.


Plaintiffs own a dairy farm in Steuben, New York. On July 15, 2002, a New York State Department of Environmental Conservation ("DEC") official discovered a dead cow on state-owned land adjacent to plaintiffs' farm.*fn5 The cow, which was mostly black in color, was chained to a tree and had a puncture wound in its right flank. The DEC official informed Mr. Simons of the discovery and asked him if he was missing a cow. Plaintiff told him that he was indeed missing a cow and accompanied the DEC official to the site. Thereafter, plaintiff contacted the State Police. Trooper Fitzgerald, Investigator Schultz, and Sergeant Hovey arrived at the scene and Investigator Schultz took control of the case. Investigator Schultz, suspecting animal cruelty, summoned a veterinarian and local media outlets in order to publicize the matter. Both Investigator Schultz and Mr. Simons spoke to members of the local media at the scene. The next day, plaintiff signed a written statement confirming that he had been missing his "number 8" cow for several days and that the deceased cow was his "number 8" cow.

Danielle Loranger, the wife of another local farmer named Brian Loranger ("Mr. Loranger"), became aware of the incident and contacted Investigator Schultz. She told him that the dead cow belonged to her husband, not Mr. Simons. On July 17, 2002, Mr. Loranger signed a written statement attesting to the fact that he owned the dead cow and explaining the circumstances surrounding its death and disposal. According to his statement, Mr. Loranger found the cow dead from natural causes, used a tractor-powered bailing spear to scoop the carcass onto the bed of his truck (possibly puncturing its right flank in the process), and drove it out to state land to dispose of it. After arriving at the location, he tied one end of a chain around the dead cow's neck and the other end to a tree. He then drove off, leaving the dead cow where it was later discovered. In his statement, Mr. Loranger also indicated that he didn't know Mr. Simons personally but that his grandparents raised him one summer, and that he heard Mr. Simons had drowned sick cows in the past to collect insurance money. Mr. Loranger did not attribute the statement regarding past insurance fraud to any particular person or otherwise provide the basis for such knowledge.

After speaking with Mr. Loranger, Investigator Schultz began to suspect that he and Mr. Simons were colluding to unlawfully obtain insurance money for the dead cow. That same day, Trooper Fitzgerald was sent to plaintiffs' farm to collect proof of ownership of the dead cow. When Trooper Fitzgerald arrived at plaintiffs' farm to obtain the requested documentation, Mr. Simons provided him with his "number 8" cow's milking records, as well its "Individual Cow History Record." The latter record describes plaintiffs' "number 8" cow as "mostly white." Trooper Fitzgerald secured these documents but neither he nor Investigator Schultz examined them until after July 18, 2002. Mr. Simons signed another written statement indicating that he provided the above-mentioned documentation to Trooper Fitzgerald, and also that his "number 8" cow was pregnant and due to deliver in two months. While Trooper Fitzgerald was at plaintiffs' farm, Mr. Simons telephoned his insurance agent and attempted to submit a claim on the cow. Plaintiffs claim that Mr. Simons telephoned his agent at Trooper Fitzgerald's urging; defendants claim that he did so of his own volition. Trooper Fitzgerald also spoke with the insurance agent and then left with the documents provided by plaintiff.

The next day, July 18, 2002, Trooper Fitzgerald and Investigator Schultz returned to plaintiffs' farm. They arrived at the same time but in separate vehicles. Investigator Schultz exited his vehicle and immediately confronted Mr. Simons. Plaintiffs claim that Investigator Schultz got very close to Mr. Simons, with his face only several inches from his face. He then told Mr. Simons that he knew Mr. Simons knew the dead cow did not belong to him, but rather to Mr. Loranger. Plaintiffs claim that Investigator Schultz was very emotional, his face red and veins protruding from his neck. He told Mr. Simons that he had to go to the police barracks to discuss the matter further and directed him to get into Trooper Fitzgerald's patrol car. Investigator Schultz then confronted plaintiffs' farmhand, Ernest Darvoe ("Mr. Darvoe"). When Mr. Darvoe told Investigator Schultz that the dead cow was plaintiffs' missing "number 8" cow, Investigator Schultz raised his voice and told him to stop lying or else he would be arrested for insurance fraud. Both men were then taken to the police barracks for questioning.

Plaintiffs claim that during Investigator Schultz's questioning of Mr. Darvoe at the police barracks, he could be overheard forcefully urging Mr. Darvoe to tell him what he wanted to hear and to sign a statement he had prepared or else he would go to jail. Mr. Darvoe eventually signed a written statement attesting to the fact, among others, that plaintiffs were not missing any cows and that Mr. Simons knew the dead cow did not belong to him. Mr. Darvoe has since recanted these statements and says that he told Investigator Schultz those things because he thought it is what he wanted to hear. After Mr. Darvoe signed the written statement, Investigator Schultz questioned Mr. Simons about his theory that he and Mr. Loranger were colluding to collect insurance money. Plaintiff denied the allegations. Sergeant Hovey was present at the police barracks during this time.

At some point, Mr. Simons contacted his wife and explained that Investigator Schultz informed him that the dead cow actually belonged to Mr. Loranger and that he was being accused of insurance fraud. She then sent several farmhands out to search the property for the missing "number 8" cow. After being questioned by Investigator Schultz, Mr. Simons was formally placed under arrest and transported to his arraignment by Trooper Fitzgerald. En route to his arraignment, Mrs. Simons called Mr. Simons on his mobile telephone and informed him that the farmhands located his "number 8" cow. It was found dead, stuck in the mud somewhere on plaintiffs' property. Plaintiffs claim that Mr. Simons immediately relayed this information to Trooper Fitzgerald.

Trooper Fitzgerald filed accusatory instruments charging Mr. Simons with insurance fraud in the fourth degree, falsely reporting an incident in the third degree, and making a false punishable written statement, in violation of New York Penal Law Sections 176.15, 240.50(3)(a), and 210.45, respectively. Plaintiff was arraigned in Town Court and released in his own recognizance. The judge instructed Trooper Fitzgerald to drive him home. Upon arriving at plaintiffs' farm, Mr. Simons and Trooper Fitzgerald, along with Mr. Darvoe and another farmhand, were taken to the location of the "number 8" cow. Trooper Fitzgerald took several photographs of the "number 8" cow, which in fact was mostly white in color. The cow's identity was confirmed by matching its identification tags with farm records. Plaintiffs claim that the next day Mr. Simons contacted Senior Investigator Graham to request a dismissal of the charges. However, Senior Investigator Graham simply told Mr. Simons that he was unaware of the discovery of the "number 8" cow, and that in any event it should be buried.

Some months later, the grand jury declined to indict Mr. Simons.


A. Standards of Review

1. Summary Judgment

Summary judgment is granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991). The court will not try issues of fact on a motion for summary judgment, rather it will determine "whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512 (1986). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). In sum, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).

2. Rule 12(b)(6)

On a Rule 12(b)(6) motion to dismiss, the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). However, factual allegations must be distinguished from "[c]onclusory allegations or legal conclusions masquerading as factual conclusions," as the latter will not be accepted as true. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation marks omitted). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). In this regard, Federal Rule of Civil Procedure 8(a) provides, in relevant part, "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief, and [ ] a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). Thus, the pleading standard is undoubtedly a liberal one. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). In more definite terms, a plaintiff's complaint will be dismissed for legal insufficiency only 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957).*fn6

B. Sovereign Immunity

Defendants move to dismiss plaintiffs' claims against the State and the State Police on the ground that such claims are barred by the Eleventh Amendment to the United States Constitution.

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Eleventh Amendment's bar on federal suits against "one of the United States" also extends to certain instrumentalities of the states. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 903 (1997).*fn7 The question whether sovereign immunity extends to a particular instrumentality depends on the nature of the relationship between the instrumentality and the state, which, in turn, depends on the "essential nature and effect of the proceeding against it," as well as the "nature of the entity created by state law." Id. (internal quotation marks omitted). In most cases, if the suit names a state instrumentality but seeks money damages which, if awarded, would be paid by the state, that instrumentality may invoke sovereign immunity. See id. at 430, 117 S.Ct. at 905.

Plaintiff has named the State and the State Police as defendants in this action. There can be no question that the State itself is immune from suit. With respect to the State Police, any money damages awarded to plaintiffs as against that instrumentality would be paid by the State. Therefore, all claims for damages against the State and the State Police are barred by the Eleventh Amendment. Indeed, plaintiffs concede that neither the State nor the State Police can be sued as "persons" under § 1983.

Plaintiffs also seek injunctive relief from the State and the State Police. These claims are also barred because plaintiffs have named the State and the State Police instead of a state official. See Santiago v. New York State Dep't of Corr. Servs., 945 F.2d 25, 32 (2d Cir. 1991) (referencing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908)). Moreover, when plaintiffs previously sought leave to amend the complaint to substitute the State Police Commissioner for the State and the State Police, Magistrate Judge DiBianco found that to grant leave to amend would be futile since ...

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