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Doe v. Green

January 6, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge



In the early morning hours of June 1, 2007, an altercation occurred between two groups of people on South Goodman Street in the City of Rochester, New York. At some point, officers of the Rochester Police Department ("RPD") were summoned, but upon their arrival they became embroiled in a confrontation with some of the participants in the altercation, several of whom were then taken into custody.

On June 26, 2007, five members of one of the two groups involved in the altercation filed a civil rights lawsuit, Lieberman v. City of Rochester, 07-CV-6316 ("Lieberman") against the City of Rochester ("City") and other defendants, alleging that certain RPD officers violated plaintiffs' constitutional rights in a number of respects during the June 1 incident.

On November 1, 2007, the same five plaintiffs filed a second lawsuit, Doe v. Green, 07-CV-6538 ("Green") -- the case now before the Court -- based on events that occurred after the June 1 incident. In Green, the plaintiffs allege that the defendants, who include Monroe County ("County"), Monroe County District Attorney ("DA") Michael Green, Assistant District Attorney ("ADA") William Gargan, and Officer Ron Evangelista (who at the time of the relevant events was president of the Rochester Police Locust Club, the RPD officers' union), violated plaintiffs' constitutional rights in connection with a grand jury investigation of the June 1 incident. Plaintiffs also allege in Green that defendants' actions, particularly certain public statements that defendants made concerning the June 1 incident and the ensuing RPD and grand jury investigations of that incident, impeded or interfered with plaintiffs' ability to pursue their claims in the Lieberman action.*fn1

In the instant action (Green), the County, Green and Gargan (collectively "County defendants") have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Evangelista has separately moved under Rule 12(b)(6) to dismiss the claims against him.

In addition, plaintiffs have filed a motion to amend the Green complaint, and to consolidate the Green and Lieberman actions.*fn2 Plaintiffs need not seek leave of court to amend the complaint at this juncture, however. Rule 15(a) permits a party to amend a "pleading once as a matter of course ... before being served with a responsive pleading." The Second Circuit has held that "a motion to dismiss is not a responsive pleading within the meaning of Rule 15(a)." Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir. 1996); see also Batyreva v. New York City Dep't of Educ., No. 07 Civ. 4544, 2008 WL 4344583, at *15 (S.D.N.Y. Sept. 18, 2008); Denuzzo v. Yale New Haven Hosp., 465 F.Supp.2d 148, 156 (D.Conn. 2006). Accordingly, I will treat the amended complaint as having been filed as of right, and decide the motions to dismiss in light of the claims asserted in the amended complaint.


As stated, both the Lieberman and Green actions have their roots in events that occurred on June 1, 2007. Since Green, which is the subject of the pending motions to dismiss, is directly based on events occurring after that date, however, the events of June 1 will only be briefly summarized here.

The facts concerning those events are sharply disputed by the two sides, but for purposes of the motions to dismiss I must accept the truth of plaintiffs' allegations. See Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 2964 (2008). The following summary, then, is based on the complaints in both Lieberman and Green.

In the early morning hours of June 1, 2007, the plaintiffs--Alexander Terrance, Josh Lieberman, Megan Barrett, Christine Herrick and Dave GREENLAWN--were walking home from a bar on Monroe Avenue in Rochester. As they were passing a house on South Goodman Street, a group of two women and two men on the front porch of the house began verbally harassing plaintiffs and calling them "faggots," "queers," etc.

Plaintiffs continued walking, but the other four persons came off the porch and began following plaintiffs. The four then physically attacked plaintiffs with kicks, punches, and blows using a metal pipe.

At some point during this melee, the police were called. When they arrived, the participants were still on the scene, although they were no longer physically fighting. One of the plaintiffs pointed out their alleged attackers, one of whom was still carrying the pipe that she had used in the assault.

The police initially made no arrests, and told everyone to just "go home." This upset the plaintiffs, who believed then, and allege now, that they were the victims of an unprovoked assault. Some of the plaintiffs began arguing with the officers, and the argument soon escalated to the point that the officers told the plaintiffs that they would be arrested if they did not leave the scene.

The details of what occurred next need not be set forth at length here, but in short, the confrontation between plaintiffs and the officers escalated, and two of the plaintiffs, Terrance and Lieberman, ended up being arrested and taken into custody. Plaintiffs allege that the officers used excessive force when making the arrests, and that some of the officers used anti-gay slurs and were otherwise verbally abusive toward plaintiffs.

Lieberman was taken to the police station, where he was held for a few hours and released. He was charged with three counts of disorderly conduct. Terrance was initially taken to a hospital for treatment of his injuries, and from there he was taken to jail.*fn3 He was eventually released and charged with "failure to disperse."

Plaintiffs filed the complaint in Lieberman on June 26, 2007, asserting various claims under federal and state law against the City, RPD Police Chief David Moore, RPD Sergeant Shaw, RPD Lieutenant Ward, and RPD Officers Tortoro, MacFall, and Yodice.*fn4 All the individual defendants are named in both their official and individual capacities.*fn5 Plaintiffs seek an unspecified amount of compensatory and punitive damages.

As stated, the complaint in this second action (Green) was filed on November 1, 2007. In Green, plaintiffs allege the following facts concerning events that transpired after the June 1 incident.

According to plaintiffs, following that incident, they filed a citizens' complaint with the RPD, based on the RPD's failure to arrest any of the alleged perpetrators of the assault. Plaintiffs allege that the RPD initially made little effort to investigate plaintiffs' allegations, and showed little inclination to investigate any potential wrongdoing on the part of its own officers.

Eventually, however, the RPD did initiate an internal investigation of the June 1 incident. On July 25, 2007, Chief Moore held a news conference in which he stated that there were "concerns about the conduct of several officers" and that he was "very much concerned about inappropriate behavior" on the part of some RPD officers. Amended Complaint ¶ 75.

On September 13, 2007, the RPD announced that a civilian review board had upheld some of plaintiffs' allegations concerning the June 1 incident, though Chief Moore would not disclose which specific allegations had or had not been found substantiated. Moore stated that the RPD had "made some mistakes," but he did say whether any particular officers had been found to have violated any laws or departmental policies, nor did he identify any officers who had been disciplined as a result of the investigation. Amended Complaint ¶¶ 94-97.

In October 2007, defendant Green convened a grand jury to decide whether any charges should be brought with respect to the June 1 incident. In mid-October, the grand jury returned a "no bill," and no charges were filed. Amended Complaint ¶¶ 118-24.

Plaintiffs' claims in Green relate generally to alleged acts and statements made by the defendants during the investigation of the June 1 incident. In particular, plaintiffs allege that Green and Gargan dissuaded them from testifying before the grand jury. They allege that on September 18, 2007, at Gargan's request, plaintiff Terrance and plaintiffs' attorney met with Gargan at his office.

Gargan allegedly refused to tell them whether plaintiffs were a "target" of the grand jury, and he indicated that plaintiffs would not be subpoenaed or given immunity to testify.*fn6 Amended Complaint ¶¶ 103-08.

Plaintiffs also allege that Evangelista improperly injected himself into these matters, making a number of public comments supporting the RPD officers who were the subject of plaintiffs' complaints and the ensuing internal RPD investigation and grand jury proceedings. Evangelista criticized Moore for "throwing the officers under the bus for the sake of political correctness," Complaint ¶ 83, and he also issued a public challenge to plaintiffs, stating, "Live by the sword you swing at us. Go into a grand jury, waive immunity, like we do, speak your peace. My guess is you won't show up." Amended Complaint ¶ 84.

In what is perhaps the most serious--yet most speculative--allegation in Green, plaintiffs allege that the handling of the grand jury investigation was affected by purely political motives on Green's part. Plaintiffs allege that Green, who was "in the middle of a hotly contested [re]election campaign," sought to "exploit the claims that the Plaintiffs had made against the police for his personal political gain." Amended Complaint ¶¶ 88, 89, 90. Specifically, plaintiffs allege that Green sought to curry favor with RPD officers and their union, the Locust Club, by manipulating the grand jury proceedings in such a way that the grand jury (which plaintiffs refer to as a "dummy grand jury," Amended Complaint ¶ 126) would be virtually certain to return a no-bill, meaning that no RPD officers would be charged with any crimes. That, according to plaintiffs, is why the DA's office refused to subpoena plaintiffs or grant ...

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