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Kogut v. Coutny of Nassau

August 3, 2009

JOHN KOGUT, PLAINTIFF,
v.
THE COUNTY OF NASSAU, POLICE COMMISSIONER DONALD KANE, POLICE COMMISSIONER WILLIAM J. WILLETT (2005), POLICE COMMISSIONER JAMES LAWRENCE, DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE 1985), DETECTIVE DENNIS FARRELL (HEAD OF HOMICIDE 2005), DETECTIVE JOSEPH VOLPE, DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT MARTINO, DETECTIVE WAYNE BIRDSALL, DETECTIVE MILTON G. GRUBER, DETECTIVE CHARLES FRAAS, DETECTIVE FRANK SIRIANNI, DETECTIVE HARRY WALTMAN,*FN1 P.O. MICHAEL CONNAUGHTON, P.O. WILLIAM DIEHL, AND JOHN DOES 1-5, DEFENDANTS.
JOHN RESTIVO, DENNIS HALSTEAD, MELISSA LULLO, JASON HALSTEAD, HEATHER HALSTEAD AND TAYLOR HALSTEAD, PLAINTIFFS,
v.
NASSAU COUNTY, JOSEPH VOLPE, IN HIS INDIVIDUAL CAPACITY, ROBERT DEMPSEY, IN HIS INDIVIDUAL CAPACITY, FRANK SIRIANNI, IN HIS INDIVIDUAL CAPACITY, MILTON GRUBER, IN HIS INDIVIDUAL CAPACITY, HARRY WALTMAN IN HIS INDIVIDUAL CAPACITY ALBERT MARTINO, IN HIS INDIVIDUAL CAPACITY, CHARLIE FRAAS, IN HIS INDIVIDUAL CAPACITY, THOMAS ALLEN IN HIS INDIVIDUAL CAPACITY, RICHARD BRUSA, IN HIS INDIVIDUAL CAPACITY, VINCENT DONNELLY, IN HIS INDIVIDUAL CAPACITY, MICHAEL CONNAUGHTON, IN HIS INDIVIDUAL CAPACITY, WAYNE BIRDSALL, IN HIS INDIVIDUAL CAPACITY, WILLIAM DIEHL, IN HIS INDIVIDUAL CAPACITY, JACK SHARKEY, IN HIS INDIVIDUAL CAPACITY, DANIEL PERRINO, IN HIS INDIVIDUAL CAPACITY, ANTHONY KOZIER, IN HIS INDIVIDUAL CAPACITY, DETECTIVE SERGEANT CAMPBELL, (SHIELD #48), IN HIS INDIVIDUAL CAPACITY, SEAN SPILLANE, IN HIS INDIVIDUAL CAPACITY, RICHARD ROE SUPERVISORS #1-10, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



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

MEMORANDUM AND ORDER

INTRODUCTION

Plaintiffs, John Kogut ("Kogut"), John Restivo ("Restivo"), Dennis Halstead ("Halstead"), Melissa Lullo ("Lullo"), Jason Halstead ("J. Halstead"), Heather Halstead ("H. Halstead"), and Taylor Halstead ("T. Halstead")*fn2 (collectively "Plaintiffs") commenced these actions 07-CV-6695 and 07-6720 on December 19, 2006, and December 21, 2006, respectively. By recent Order, this Court consolidated both cases into the earlier-filed action. Kogut, Restivo, and Halstead base the majority of their claims against Nassau County ("County") and various Nassau County Police Department ("NCPD") officers and supervisors (collectively "Defendants") on 42 U.S.C. § 1983, alleging, inter alia, malicious prosecution, false arrest, and false imprisonment.*fn3 Additionally, Kogut, Restivo, and Halstead asserted 14th Amendment due process violations, and a variety of state claims*fn4 stemming from their prior interrogations, arrests, and subsequent state prosecutions. Finally, Halstead's Children assert their own cause of action, unconstitutional denial of familial association, which they claim stems from their father's wrongful conviction and imprisonment.

Pending before the Court are Defendants' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Defendants claim that they are entitled to this relief based on the following arguments: (1) Plaintiffs' claim of malicious prosecution is both precluded by law and not cognizable under 42 U.S.C. § 1983; (2) Plaintiffs' due process claims, based on falsified evidence, are: (a) barred by the statue of limitations; (b) barred by the rule set forth in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed. 2d 383 (1994); and (c) precluded by prior case law; (3) Plaintiffs' claims of conspiracy are barred by the intra-corporate conspiracy doctrine;

(4) Plaintiffs' municipal liability claims under 42 U.S.C. § 1983 fail as a matter of law, because the claims against the individual Defendants fail as a matter of law; (5) since Plaintiffs failed to comply with New York's notice of claim requirement, Gen. Mun. Law § 50-e and 50-I, their state law claims are barred; (6) Plaintiffs' claim for the loss of familial association has no basis in law;

(7) Plaintiffs' claims against Donald Kane ("Kane"), William J. Willett ("Willett"), Vincent Donnelly ("Donnelly"), Milton Gruber ("Gruber"), and Anthony Kozier ("Kozier") should be dismissed because Plaintiffs have failed to allege their personal involvement; (8) Plaintiffs' respondeat superior claim fails because the claims against the individual Defendants fail; and (9) Plaintiffs' claims of negligent supervision should be dismissed as a matter of law. The Court addresses these claims in order below.

For the reasons discussed below, the Court GRANTS in part and DENIES in part Defendants' motions. Accordingly, the following claims are DISMISSED: (1) Plaintiffs' claims for malicious prosecution, based on Section 1983 and New York law, relating to Plaintiffs' First Trials; (2) Plaintiffs' claims for false arrest and false imprisonment, based on Section 1983 and New York law;

(3) Plaintiffs' claims of due process violations based on Defendants' alleged offering of false evidence; (4) Kogut's conspiracy claim; (5) Plaintiffs' Monell claims; (6) Halstead's Children's claims for loss of familial association; (7) Kogut's battery claim; (8) Restivo's and Halstead's claims for failure to intercede; (9) Restivo's and Halstead's claims for intentional or reckless infliction of emotional distress; (10) Plaintiffs' claims for negligent infliction of emotional distress; (11) Restivo's and Halstead's claims based on negligent supervision; and (12) Restivo's and Halstead's claims based on respondeat superior. Going forward, the only remaining claims are as follows: (1) Kogut's malicious prosecution claim relating to his second trial, his negligent supervision claim, and a claim based on respondeat superior; and (2) Restivo's and Halstead's conspiracy claims.

FACTUAL BACKGROUND & PROCEDURAL HISTORY*fn5

On November 10, 1984, at approximately 9:47 p.m., Theresa Fusco ("Fusco"), a sixteen-year-old girl, left Hot Skates--a local roller skating rink. The following day, when Fusco did not return home, her mother reported her missing to the Lynbrook Police Department. On December 5, 1984, Fusco's body was discovered naked and brutalized by the railroad tracks near Park Place and Rocklyn Avenue in Lynbrook. The Nassau County Police Department immediately responded and Defendant Joseph Volpe ("Volpe") was assigned as lead detective for the investigation. The medical examiner estimated that the time of death occurred between seven to fourteen days prior to the date of discovery of the body. The autopsy also revealed that Fusco had suffered severe blows to the face, and death, ultimately, resulted from ligature strangulation. There was no trauma around the vaginal area; however, a vaginal swab produced seminal fluids. After interviews with Fusco's mother and best friend it was concluded, by Vople, that Fusco was not sexually active. (Restivo & Halstead Am. Compl. ¶ 49). The investigating officers knew of these findings; however, not all of this information was made public.

In early March 1985, Defendants Frank Sirianni ("Sirianni"), Daniel Perrino ("Perrino") and others questioned Harold Smyle ("Smlye") as a suspect in the Fusco rape and murder. Smyle, who had a history of psychological illness, informed the Defendants that Plaintiff Restivo told Symle he knew who killed Fusco. (Id. ¶ 50.) On March 5, 1985, Volpe had Restivo brought to NCPD headquarters. (Id. ¶ 51.) The Defendants then proceeded to interrogate Restivo.

Restivo claims that his interrogation lasted twenty-four hours, during which Defendants refused to let him leave the interrogation room, denied his request to contact a lawyer or his girlfriend, and employed coercive and abusive interrogation tactics in order to produce false accusations against Halstead. (See id. ¶¶ 52-64.) After suffering through hours of "physical and emotional abuse," Restivo claims that he signed a written statement, created by Defendants, which falsely indicated that Halstead had told him that he raped a girl by a cemetery and then strangled and killed her. (Id. ¶ 60.) Morever, Restivo maintains that he had no knowledge of the Fusco murder and that the Defendants provided him with all of the facts related to the rape and murder. (Id. ¶ 61.) Subsequently, based on Restivo's statements, the Defendants acquired a warrant to wiretap Halstead's phone. On March 11 and again on March 13, 1985, Defendants Volpe, Allen, and others stopped Halstead as he was walking in the street, placed him in one of their police vehicles, and drove him to the parking lot of the Lynbrook Police Department. Halstead claims that during these two informal interrogations, members of the NCPD placed listening devices in his apartment. During the time that he was in police custody on both dates, Halstead was questioned about the Fusco rape and murder, and he repeatedly denied any involvement in or knowledge of the crime. (Id. ¶ 69.)

On March 21, 1985, Volpe had Kogut brought to NCPD headquarters for questioning. Kogut was a part-time employee of Restivo's moving business. At this first interrogation, Kogut repeatedly denied any knowledge of the murder. (Id. ¶ 70.) On March 25, 1985, Kogut was again brought to the NCPD headquarters for questioning. Plaintiffs allege that during this twelve-hour interrogation, Defendants utilized abusive and coercive tactics. Finally, Kogut signed a confession that included the following information: (1) Halstead and Restivo raped Fusco in the cemetery; (2) Kogut strangled her to death with a cord as she lay face down on the ground because she threatened to tell the authorities who raped her; and (3) all three of them transported Fusco's dead body in Restivo's van to "the Fort" area where they hid her body under leaves and wooden pallets. (See id. ¶ 76.) Kogut was never informed of his Miranda rights, and only signed a Miranda waiver after fifteen hours of interrogation. (Id. ¶ 79.) After Kogut signed his confession, Volpe and Robert Dempsey ("Dempsey") directed Sirianni and Harry Waltman ("Waltman"), "with the active participation and approval of [D]efendant Camp[b]ell," to take Kogut to the area of the cemetery where Fusco's body was discovered. (Id. ¶ 80.) Plaintiffs further allege that, during this time, Sirianni and Waltman were under Volpe's and Dempsey's orders to coach Kogut about the particular circumstances of the crime. (Id.) Finally, Volpe, Dempsey, and their fellow officers compelled Kogut to repeat his confession on videotape in front of Assistant District Attorneys Peck and McCarty.*fn6 (Id. ¶ 81.) Kogut's interrogation and confession culminated in his arrest and arraignment on March 26, 1985, approximately nineteen hours after he was picked up for his second interrogation.

Subsequently, on March 26, 1985, NCPD seized Restivo's van and transported it to police headquarters. Defendant Charlie Frass ("Frass") compared samples taken from Plaintiff Restivo's van with the hair and blood samples taken from Fusco. Plaintiffs claim that between March 1, 1985 and June 20, 1985 the Defendants, through coercion, intimidation and physical force, began collecting evidence against the Plaintiffs. (Id. ¶ 90.) In addition, Plaintiffs state that Defendants failed to disclose or document exculpatory evidence or statements that were allegedly made by witnesses. (Id. ¶ 92.)

On June 20, 1985, Restivo and Halstead were arrested for Fusco's rape and murder. On December 3, 1986, they were both convicted of rape and second-degree murder. Both of them were sentenced to thirty-three and one-third years to life in prison. On May 28, 1986, Kogut was convicted on all counts in the Indictment, and on June 27, 1986 was sentenced to an aggregate indeterminate term of imprisonment of 31.5 years to life.*fn7 (Kogut Compl., Ex. A., unnumbered page 2.) Kogut appealed his conviction, claiming, inter alia, that the trial court erred in ruling that his confession was voluntary. The State Appellate Division affirmed Plaintiff's conviction on October 17, 1991. (Kogut Compl. ¶ 79.) On November 21, 1991, Plaintiff sought leave to appeal to the Court of Appeals and was denied. (Id. ¶ 80.) Subsequently, Plaintiff petitioned for writ of habeas corpus alleging numerous constitutional challenges to his conviction. On April 15, 2002, the U.S. District Court dismissed the writ.

From 1993 to 2003, various samples of semen obtained from Fusco's body were subjected to DNA testing; on five separate occasions, Plaintiffs claim, the tests proved that the DNA found inside of the victim did not belong to Restivo, Halstead, or Kogut. On June 11, 2003, the convictions of Restivo, Halstead and Kogut were vacated; however, the charges were not dropped. (Kogut Compl. ¶ 81.) In 2005, Nassau County District Attorney, armed with newly discovered evidence, retried Kogut. At Kogut's second trial, Judge Victor Ort, held that "the question hairs were [not] left in the van on or about November 10th of 1984, and absent those hairs, there is no corroboration, whatsoever, for the [Kogut's] confession concerning the count of rape. (Id. ¶ 73.) Kogut was acquitted of all charges on December 21, 2005. (Id. ¶ 85.) Shortly thereafter, on December 29, 2005, upon the motion of the Nassau County District Attorney's Office, Judge William C. Donnino of the Nassau County Supreme Court dismissed the charges against Restivo and Halstead for lack of evidence. (Restivo & Halstead Am. Compl. ¶ 113.)

On December 19, 2006 and December 21, 2006, respectively,

Plaintiffs commenced these actions.

DISCUSSION

I. Standard of Review Under Rule 12(c)

The standard for evaluating a motion for judgment on the pleadings, pursuant to Rule 12(c), is the same as the standard for a motion to dismiss under Rule 12(b). See Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005). To withstand a motion to dismiss under Rule 12(b)(6), a complaint must plead facts sufficient "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009) (reversing the Second Circuit's decision in Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citations and quotations omitted). Examining whether a complaint states a plausible claim for relief is "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint fails to state a claim. Id. The plaintiff's factual allegations, in short, must show that the plaintiff's claim is "plausible," not merely "conceivable." Id. at 1951.

A district court, in applying this standard, must "accept all of plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999); H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 249, 109 S.Ct. 2893, 2906, 106 L.Ed. 2d 195 (1989).

Under Rule 8 of the Federal Rules of Civil Procedure, a claimant is only required to give "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed. 2d 80 (1957); Twombly, 550 U.S. 544; see also Geisler v. Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980) ("The pleading of additional evidence is not only unnecessary, but in contravention of proper pleading procedure."). Therefore, this Court, when addressing a motion on the pleadings, only has a duty to "assess the feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler, 616 F.2d at 639. It is within this framework that the Court addresses the present motion to dismiss.

II. Heck v. Humphrey

A. Rule Against Undermining Convictions in Parallel Court Proceedings

When a claim for damages under § 1983 calls into question the validity of an underlying conviction, a district court must dismiss the claim, unless the conviction has been invalidated. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed. 2d 383 (1994). The Supreme Court has enumerated only four methods of demonstrating that a conviction has been invalidated: (1) the conviction was reversed on a direct appeal; (2) an executive order expunged the conviction; (3) a habeas corpus petition was issued by a federal court; or (4) an authorized state tribunal declared the conviction invalid. Id. at 486-87. In this case, Plaintiffs cannot maintain that their convictions were invalidated by any of the first three methods. Thus, under Heck, the only question before this Court is whether the Plaintiffs' vacated convictions or the subsequent dismissal of the charges against them constitutes an invalidation of their convictions; if the convictions have not been invalidated, then Plaintiffs may not maintain any action in this case that collaterally attack their convictions.

B. Motion Pursuant to N.Y. Crim. Proc. Law § 440.10(1)(g) and the District Attorney's

Dismissal of the Indictments do not Invalidate the Convictions Under New York Law Plaintiffs' convictions were vacated upon motion by the District Attorney pursuant to New York Criminal Procedure Law § 440.10. Section 440.10 provides in relevant part:

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: . . .

(g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence . . ..

N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 2007). In interpreting this section, the New York State Court of Appeals has stated that, on "motion to vacate judgment upon the ground of newly discovered evidence[,] the validity of the judgment is not attacked, only the likelihood of a similar verdict being rendered if there were an enlargement of the evidence on the principle issue." New York v. Crimmins, 343 N.E.2d 719, 728, 38 N.Y.2d 407, 381 N.Y.S.2d 1 (1975).*fn8 Thus, the 2003 vacation of the Plaintiffs' conviction does not demonstrate the conviction's "unlawfulness" under New York State law. A vacated conviction simply reverses the prior ruling because newly acquired evidence, unavailable to the Plaintiffs, may have reasonably affected the outcome in their 1986 trial.

Whether the Plaintiffs' vacated convictions were invalidated for purposes of Heck may be a different matter. The New York State Court of Appeals' interpretation of New York law does not bind a federal court in its interpretation of the United States Constitution or federal case law. Perhaps, under an alternative reading of Heck, and given the nature of the evidence that lead to the vacation of Plaintiffs' convictions, a court could find Heck's requirements satisfied. In light of its duty to interpret the ...


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