The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Pablo Nieves ("Nieves") and his wife commenced this action against the County of Monroe (the "County"), the City of Rochester, New York, Rochester Police Investigator Catherine Lucci, the Monroe County Office of Child Protective Services and two of its investigators, Brice Meade and Elizabeth Opp. Nieves alleges a civil rights violation, pursuant to 42 U.S.C. § 1983 and alleges malicious prosecution by defendants relative to his felony indictment for three counts of rape.
The County, Child Protective Services, Meade and Opp (collectively "the County defendants") now move to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(c).
Because I find that plaintiff has failed to adequately plead a federal malicious prosecution cause of action against any of the defendants, and because I believe the two child protective services investigators are entitled to qualified immunity, their motion to dismiss the complaint (Dkt. #11) is granted, and the complaint as against them is dismissed.
The relevant facts are, for the most, part not in dispute. Nieves' daughter, Evelyn, made certain statements to a probation officer in Reading, Pennsylvania, accusing Nieves of several instances of child abuse and molestation over the course of several years. Because some of the activities had occurred in Monroe County, the matter was referred to Monroe County Child Protective Services and both defendant Meade and Opp became involved. A written statement was taken from Evelyn Nieves, the alleged victim, and the matter was eventually referred to the Monroe County District Attorney's Office. That office determined that the complaint should be submitted to the Monroe County Grand Jury, but that Nieves not be arrested until the matter had been presented to the Grand Jury.
Apparently efforts were made to contact Nieves concerning the allegations made by his daughter. He advised investigators that he had retained counsel and, therefore, they did not seek to interview Nieves at that time.
It does not appear that either investigators Meade or Opp testified before the Monroe County Grand Jury or provided any information to that body. Nieves' lengthy complaint does not allege anything to the contrary. It appears that the evidence submitted to the Grand jury consisted of Evelyn Nieves' statements to the Reading Police Department, and statements made to Rochester Police Department Investigator Lucci.
Nieves was aware of the charges and, along with his counsel, met with investigators. It does not appear that Nieves testified before the Monroe County Grand Jury. On September 25, 2006, Nieves was indicted and charged with three counts of rape of his minor daughter. The case was tried by a jury, and on May 18, 2007, Nieves was acquitted of all charges. This action followed.
The applicable standard for determining motions to dismiss now requires the plaintiff's pleading to set forth sufficient facts that the claim is plausible on its face. The prior requirement that a motion to dismiss would be granted if there was any set of facts upon which relief could be granted is no longer operative since the United States Supreme Court decision in Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqubal, ____ U.S. ____, 129 S. Ct. 1937, 1949 (2009). The County Defendants contend that plaintiff has failed to meet this test of plausibility, and further argue that in any event, the Child Protective Service defendants are entitled to qualified immunity.
Plaintiff references several documents and reports in the complaint, and defendants have included some of those in its motion to dismiss. This Court may consider such statements or documents when ruling on a Rule 12(b)(6) motion especially to the extent plaintiff relied on such information and documents in framing the complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) ("[a] complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint") (internal citations omitted). See also Johnson v. Univ. of Rochester Med. Ctr., 686 F. Supp. 2d 259, 264 (W.D.N.Y. 2010); Savino v. Fiorella, 2007 U.S. Dist. LEXIS 43284 at *10-*11 (W.D.N.Y. 2007).
A malicious prosecution claim consists of four elements: (1) the commencement or continuation of a criminal proceeding by the defendant(s) against the plaintiff; (2) the termination of the proceedings in plaintiff's favor; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice. In addition, a "plaintiff asserting a Fourth Amendment malicious prosecution claim under §1983 must . show some deprivation of liberty consistent with the concept of 'seizure,'" in order "to ensure that the §1983 plaintiff has suffered a harm of constitutional proportions." Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995).
One of the principal grounds for defendants' motion to dismiss is that plaintiff has failed to adequately plead a malicious prosecution cause of action. First of all, plaintiff must plead that the named defendants "initiated" a criminal prosecution against the plaintiff. Simply reporting a crime, or providing facts relating to a potential crime to law enforcement, is insufficient to allege or establish the "commencement or continuation" of criminal proceedings against a plaintiff. Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010) ("[t]o initiate a prosecution, a defendant must do more than report the crime or give testimony. He must 'play[ ] an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act'"), quoting Rohman v. New York City Transit Authority, 215 F.3d 208, 217 (2d Cir. 2000). Thus, a jury may permissibly find that a defendant initiated a prosecution where he "fil[ed] the charges," signed a criminal complaint against the defendant, or "prepar[ed an] alleged false confession and forward[ed] it to prosecutors." Id., quoting Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997).
Here, all that plaintiff alleges the named Child Protective Services investigators did was to "forward" the matter to the Monroe County District Attorney's Office. No further follow-up or prosecutorial involvement by the investigators is alleged or evidenced in the record. Rather, evidence was submitted to the Monroe County Grand Jury, and that body determined that there was probable cause and, therefore, returned the three-count indictment against Nieves. It appears that the evidence before the grand jury consisted mainly in the testimony of the victim Evelyn. The decision to submit the case to the grand jury was not made by defendants Meade or Opp but by others and, therefore, it cannot be ...