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Robert Bertuglia, et al v. the City of New York

March 19, 2012

ROBERT BERTUGLIA, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

OPINION AND ORDER

This case arises out of the initiation, investigation and prosecution of criminal charges brought against plaintiff Robert Bertuglia ("Bertuglia"), and his companies, plaintiffs Laro Maintenance Corporation and Laro Service Systems (collectively "Laro"), and the subsequent demise of Laro. The plaintiffs assert claims against six named employees of the Port Authority of New York and New Jersey (collectively, the "PA defendants") and two New York County assistant district attorneys (collectively, the "ADA defendants"), for numerous alleged violations of the plaintiffs' federal civil rights under 42 U.S.C. § 1983. The plaintiffs also assert state law claims for tortious interference with contract and tortious interference with economic advantage against the ADA defendants and one of the PA defendants. The plaintiffs also assert a municipal liability claim against the City of New York (the "City") under 42 U.S.C. § 1983 for failure to train and discipline prosecutors, and a state law claim for malicious prosecution.

The PA defendants, the ADA defendants, and the City each have moved separately to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and § 1367.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); Arista Records LLC v. Lime Grp. LLC, 532 F. Supp. 2d 556, 566 (S.D.N.Y. 2007). 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). The Court should not dismiss a claim if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 129 S. Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.; see also SEC v. Rorech, 673 F. Supp. 2d 217, 221 (S.D.N.Y. 2009).

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Rorech, 673 F. Supp. 2d at 221.

II.

The following factual allegations are accepted as true unless otherwise noted:

Bertuglia founded Laro, a provider of janitorial and maintenance services, over 30 years ago. At its height Laro employed over 3,000 people and had a gross annual revenue in excess of $72,000,000. Laro was based in Bayshore, New York, and its clients have included numerous public entities; it has provided services at well-known landmarks, including the Statute of Liberty, the Fulton Fish Market, and the Port Authority Bus Terminal in Manhattan. (Am. Compl. ¶¶ 32-37.) In 1996, Laro began working for the Port Authority at the Port Authority Bus Terminal. Since that time, the Port Authority renewed its contract with Laro several times, and as late as 2008 praised Laro's work. (Am. Compl. ¶¶ 38-39 & Ex. A.)

In 2004, Laro entered into a new contract with the Port Authority to provide cleaning services at the Port Authority Bus Terminal. A new provision in this 250 page contract provided that Laro was required to purchase new cleaning equipment for its work for the Port Authority. This provision was included as part of a vendor-wide policy by the Port Authority and was not specifically directed at Laro. The contract provided that Laro would be paid an additional $0.76 an hour to offset the cost of purchasing new equipment. (Am. Compl. ¶¶ 40-43.) While Laro purchased most of the new equipment, it inadvertently failed to purchase all of the new equipment required under the new contract due to the departure of staff members tasked with that responsibility. The Port Authority continued to use and praise Laro's services despite Laro's failure to purchase all of the new equipment. (Am. Compl. ¶¶ 44-49 & Ex. A.) The plaintiffs allege that they failed to purchase two cleaning machines. (Am. Compl. ¶ 55.)

The plaintiffs allege that no one at Laro ever intended to defraud or steal from the Port Authority, and further that Bertuglia did not even know he was submitting invoices that contained a $0.76 overcharge to the Port Authority. (Am. Compl. ¶¶ 50-51, 57) The plaintiffs further allege that they had no motive to defraud or steal from the Port Authority, because doing so would have risked their excellent reputation as well as the business generated from a major client, and would further have risked triggering the liquidated damages clause in the Port Authority contract. (Am. Compl. ¶¶ 52-55.)

In April 2007, an attorney for Laro sent a letter to the Port Authority challenging the integrity of the bidding process for the maintenance contract for Laguardia Airport, based on the allegation that a competitor, Guardian Maintenance, had intimated that it had already secured the contract, potentially outside of the formal bidding process. (Am. Compl. Ex. B.) The plaintiffs allege that this same attorney had also written a letter to defendant Robert Van Etten ("Van Etten"), the Port Authority's Inspector General, regarding a similar complaint about the integrity of the bidding process for a new World Trade Center project. The plaintiffs also allege that Bertuglia had personally made similar complaints about the World Trade Center bidding to Charles Gargano, a Port Authority board member, noting that Guardian had "openly boasted that an upcoming project at the World Trace [sic] Center was already 'in the bag'" and Bertuglia asked "to 'get a fair shake' on an upcoming bid." (Am. Compl. ¶¶ 15, 102-105.)

The plaintiffs allege that the Port Authority's Office of the Inspector General ("OIG") commenced an investigation into Laro's failure to purchase new equipment as a result of these complaints about the "rigged" Port Authority bidding process. (Am. Compl. ¶¶ 58-59, 66, 106.) Defendant Jeffrey Schaffler ("Schaffler"), a Port Authority Supervising Investigator, led the investigation. (Am. Compl. ¶¶ 23, 60.) Also involved in the investigation were the defendants Fred Ferrone ("Ferrone"), a Forensic Auditor for OIG, and Bernard D'Aleo ("D'Aleo"), a Contract Administrator for the Port Authority Bus Terminal, as well as five other unnamed OIG officers. (Am. Compl. ¶¶ 21, 25, 59-60.) The plaintiffs allege that this team was supervised by Inspecter General Van Etten, as well as Port Authority Director of Investigations Michael Nestor and Investigative Manager Edward Kennedy. (Am. Compl. ¶¶ 17, 19, 59-65, 106.)

The plaintiffs allege that this investigation uncovered no evidence of any criminality or intentional misconduct by any of the plaintiffs, and the defendants failed to ask the plaintiffs or any Laro employees directly about the additional $0.76 an hour charge. (Am. Compl. ¶¶ 57, 61-63.) The plaintiffs allege that, despite the lack of any evidence, the PA defendants falsely told the New York County District Attorney's Office that Bertuglia "had committed intentional criminal misconduct by knowingly submitting invoices containing the $.76 charge without having bought the new equipment." (Am. Compl. ¶ 64.) The plaintiffs allege that the defendants "grossly distorted the actual facts and circumstances," and that they told the District Attorney's Office that Bertuglia "had 'stolen a lot of money' from the Port Authority, was a 'thief' and a 'crook', and should be arrested and prosecuted." (Am. Compl. ¶¶ 65, 67.) The plaintiffs allege that these statements were made with the express intent that the plaintiffs be arrested and prosecuted, that the PA defendants continued to advocate for the plaintiffs' arrest and prosecution even after the case was referred to the District Attorney's Office, and that the PA defendants withheld exculpatory evidence from the District Attorney's Office, including that the Port Authority had continued to pay Laro on the contract despite the alleged fraud, and had even renewed the Laro contract for another three years. (Am. Compl. ¶¶ 68-70, 206.)

The plaintiffs allege that ADA Elyse Ruzow ("ADA Ruzow") of the New York County District Attorney's Office opened a criminal investigation in response to the allegations by the Port Authority defendants. (Am. Compl. ¶¶ 10, 71.) The plaintiffs allege that ADA Ruzow, in connection with her role in the District Attorney's Labor and Racketeering Unit, had been separately investigating a person named Vincent Grimaldi who had been on the phone call with Bertuglia and Charles Gargano in which Bertuglia had told Gargano that he was concerned about the Port Authority's bidding process and wanted a "fair shake," and that ADA Ruzow had received a recording of the phone call. (Am. Compl. ¶¶ 101-104.) The plaintiffs allege that, despite the fact that Bertuglia had not implicated himself, Mr. Gargano or Mr. Grimaldi in any criminality in that phone call, ADA Ruzow erroneously believed that Bertuglia was withholding information about Grimaldi, and that, because of this erroneous belief, ADA Ruzow wanted to teach Bertuglia a "lesson." (Am. Compl. ¶¶ 74, 100, 103-104, 107.) The plaintiffs allege that ADA Ruzow became "enraged" when Bertuglia refused to provide information (that he did not have) that might be helpful to ADA Ruzow's other investigation, and that ADA Ruzow threatened to "ruin" Bertuglia, and to prosecute his daughter and his 80-year-old father. (Am. Compl. ¶¶ 108-111, 113.)

The plaintiffs allege that it was clear from the beginning of ADA Ruzow's investigation that there had been no criminal conduct by the plaintiffs, and that there was never "any evidence that any employee at Laro ever knowingly intended to defraud, steal or otherwise wrongfully take money" from the Port Authority, and that, despite this, ADA Ruzow "launched a 'scorched earth' investigation" into the plaintiffs. (Am. Compl. ¶¶ 72-74, 114-15, 128.) The plaintiffs allege that ADA Ruzow's activities were approved of and encouraged by her supervisor, ADA Scotto. (See, e.g., Am. Compl. ¶¶ 89, 116.)

The plaintiffs allege that ADA Ruzow conducted interviews with current and former Laro employees in which she pressured and induced them to give false testimony against the plaintiffs. The plaintiffs allege, for example, that ADA Ruzow told one employee, Robert Kolakowski, that Bertuglia was going to implicate him in a crime, and that Bertuglia had deprived him of insurance benefits to which he was entitled, in a successful effort to induce Kolakowski to give false testimony implicating Bertuglia in a fraud against the Port Authority. (Am. Compl. ¶¶ 75-78.) The plaintiffs allege that ADA Ruzow threatened to prosecute Laro employees who did not give testimony implicating the plaintiffs in a crime, and that ADA Ruzow also asked inappropriate and baseless questions about whether various members of Bertuglia's family were receiving personal benefits from Laro, including insurance and access to company cars. (Am. Compl. ¶¶ 79-82.)

The plaintiffs also allege that ADA Ruzow, aided by defendant Schaffler, served numerous subpoenas on the plaintiffs and various third parties for the sole purpose of harassing and intimidating the plaintiffs. (Am. Compl. ¶¶ 83-86, 224-229) Various subpoenas compelled at least six Laro employees, as well as Bertuglia's daughter, to appear at ADA Ruzow's office for an interview. (Am. Compl. ¶¶ 85-87.) The plaintiffs allege that some or all of these actions were taken before any grand jury had been convened. (Am. Compl. ¶¶ 84, 88.)

The plaintiffs also allege that ADA Ruzow and defendant Schaffler, with ADA Scotto's encouragement, contacted at least five specifically named Laro clients, visiting them in person and telling them that the plaintiffs had been stealing from the Port Authority and might also be stealing from them. (Am. Compl. ¶¶ 90-95, 318-325, 328-335.) The plaintiffs allege that ADAs Ruzow and Scotto and defendant Schaffler had no legitimate reason for contacting these clients, that these defendants did so for the sole purpose of inflicting harm on the plaintiffs, and that the clients who were contacted breached their contracts and severed their relationships with Laro as a result of these contacts. (Am. Compl. ¶¶ 94-99.)

The plaintiffs allege that they were indicted on August 7, 2008, and charged with one count of first degree grand larceny, three counts of falsifying business records, and three counts of offering a false instrument for filing. (Am. Compl. ¶¶ 117, 119.) The plaintiffs allege that the indictment was the result of "false and misleading evidence" provided by the Port Authority defendants. (Am. Compl ¶ 118.) The plaintiffs were arrested and arraigned in New York State Supreme Court in Manhattan on that same day. (Am. Compl. ¶ 120.) Bertuglia posted $25,000 bail seven hours later, and was thereafter required to make multiple court appearances in connection with the criminal prosecution, and submit to "multiple restrictions on his liberty as a result of the bail conditions which had been set." (Am. Compl. ¶¶ 120-21.) The plaintiffs allege that the actual arrest was made by Port Authority officers, "in accordance with the express directives, guidance, and advice" of ADAs Ruzow and Scotto. (Am. Compl. ¶ 199.)

The plaintiffs allege that, after the arrest, ADAs Scotto and Ruzow created and, through the District Attorney's Office, disseminated, a press release "boasting" of Bertuglia's arrest that contained "blatantly false and misleading allegations" concerning the plaintiffs. (Am. Compl. ¶¶ 122-24.) The plaintiffs allege that ADAs Scotto and Ruzow contacted the press before the arrest occurred, and that, as a result, there were tabloid photographers waiting outside the courthouse when Bertuglia arrived. (Am. Compl. ¶ 124.) The plaintiffs allege that the ADAs proceeded to hold a press conference on the steps of the courthouse "to further publicize the false criminal charges." (Am. Compl. ¶ 124.) The plaintiffs allege that the press release and the press conference "set off a torrent of highly damaging and prejudicial news coverage throughout the New York metropolitan region," and that Laro lost business as a direct result of this news coverage. (Am. Compl. ¶¶ 125-27.)

On February 26, 2009, Justice Ronald Zweibel of the New York State Supreme Court dismissed the charges against Bertuglia based on the insufficiency of the evidence against him, with leave to re-present to a new grand jury. (Am. Compl. ¶ 129; see also Roque Decl. Ex. A. ("Zweibel Feb. 26 Dismissal"), at 3 ("The People's case as to Bertuglia is based on speculation as opposed to legally sufficient evidence.").) Justice Zweibel did not dismiss the indictment against Laro. (See Zweibel Feb. 26 Dismissal at 1.) The plaintiffs allege that, in April, 2009, ADAs Ruzow and Scotto decided to seek a new indictment against Bertuglia on a single charge, second degree grand larceny, based on the theory that Bertuglia "implicitly misrepresented" that Laro performed the contract for cleaning services by using the new cleaning equipment and had thereby stolen $50,000 from the Port Authority. (Am. Compl. ¶ 131.) The plaintiffs allege that ADAs Ruzow and Scotto then convened a second grand jury for the purpose of obtaining a new indictment against Bertuglia, even though they knew there was no probable cause to prosecute him. (Am Compl. ¶ 132.)

The plaintiffs allege that ADAs Ruzow and Scotto engaged in repeated misconduct before the second grand jury, including that they "improperly vouched for prosecution witnesses, impugned the integrity of witnesses who were favorable to the defense, and improperly introduced prior 'bad act' evidence that was not only grossly misleading and highly prejudicial, but also, was completely irrelevant to the actual charges that had been brought against [Bertuglia]." (Am. Compl. ¶¶ 133-34; see also Am. Compl. ¶¶ 141-55.) The plaintiffs allege that, as a result of this misconduct, Bertuglia was indicted a second time, rearrested, had restrictions on his travel imposed, and was forced to attend court proceedings and defend against the charges against him for the next fourteen months. (Am. Compl. ¶¶ 135-36.) The plaintiffs further allege that the second indictment "ended any hopes of Laro's survival," because additional clients cancelled their contracts with Laro as a result of the new indictment, including the Port Authority, which "abruptly terminated" a 2008 contract with Laro. (Am. Compl. ¶¶ 137-38.)

On October 5, 2009, Justice Zweibel dismissed the indictment against the plaintiffs in the interests of justice. (Am. Compl. Ex. A ("Zweibel Decision"), at 44; see also Am. Compl. ¶ 139.) The plaintiffs allege that Justice Zweibel's decision documented a litany of misconduct by ADAs Ruzow and Scotto before the grand jury, including the intentional introduction of irrelevant and prejudicial "bad act evidence," (see Am. Compl. ¶¶ 142-46; Zweibel Decision at 34-36), improper questioning of witnesses and bolstering of testimony, (Am. Compl. ¶¶ 147-50; Zweibel Decision at 30-32), and implicitly threatening one grand jury witness with a perjury charge, (Am. Compl. ¶¶ 151-52; Zweibel Decision at 33). The plaintiffs allege that Justice Zweibel found that this misconduct substantially prejudiced the plaintiffs, and rendered the ADAs' presentation of the case to the grand jury so defective that dismissal of the indictment was warranted. (Am. Compl. ¶¶ 153-55; Zweibel Decision at 35-36.) The plaintiffs further allege that Justice Zweibel found that there was no evidence to support the intent requirement for the charges against the plaintiffs, (Am. Compl. ¶¶ 157-66; see also Zweibel Decision at 24-29, 39-40), and that the case was "a quintessentially civil transaction gone awry" that "does not merit prosecutorial cognizance in the criminal hemisphere." (Zweibel Decision at 37, 40; see Am. Compl. ¶¶ 167-174.)

The plaintiffs allege that they have suffered massive economic damages, including the total demise of Laro, the loss of millions of dollars in business, approximately $500,000 in legal fees, and the destruction of Bertuglia's reputation, without due process of law. (Am. Compl. ¶¶ 179-92, 197.) The plaintiffs further allege that Bertuglia was arrested and imprisoned and had other conditions on his liberty imposed, suffered severe emotional distress as a result of the events alleged, and was publicly humiliated. (See, e.g., Am. Compl. ¶ 196.)

The plaintiffs filed this lawsuit on March 29, 2011. They filed an Amended Complaint in July, 2011. The plaintiffs assert numerous causes of action against the PA defendants (Van Etten, Kennedy, Nestor, Schaffler, D'Aleo, and Ferrone) and the ADA defendants (Ruzow and Scotto) under 42 U.S.C. § 1983 for violations of their constitutional rights, including false arrest, malicious prosecution, malicious abuse of process, denial of the right to a fair trial, inducement of false testimony, conspiracy and "stigma-plus." The plaintiffs have also asserted a claim against the City of New York under § 1983, alleging that the City has a policy or practice of failing to train or discipline district attorneys such that they do not commit the types of misconduct that allegedly occurred here. The plaintiffs also assert pendent state law claims for tortious interference with contract, and tortious interference with economic advantage, against PA defendant Schaffler and the ADA defendants. The plaintiffs assert a pendent state law malicious prosecution claim against the City.

The PA defendants, the ADA defendants, and the City have each moved separately to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained below, the motions are granted in part and denied in part.

III.

The PA defendants have moved to dismiss the various claims against them.

A.

The PA defendants first argue that all of the plaintiffs' federal claims against them must be dismissed because they are barred by the Rooker-Feldman doctrine.

The Rooker-Feldman doctrine provides that federal district courts lack jurisdiction over suits that are, in substance, appeals from state court judgments. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005); see generally Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005). For the doctrine to apply, four requirements must be met: "(1) the federal-court plaintiff must have lost in state court; (2) the plaintiff's injuries must be caused by the state court judgment; (3) the plaintiff's claims must invite the district court to review and reject the state court judgment; and (4) the state-court judgment must have been rendered prior to the commencement of the district court proceedings." Grosso v. Radice, No. 07 Civ. 3620, 2009 WL 749906, at *8 (E.D.N.Y. Mar. 16, 2009) (citing Hoblock, 422 F.3d at 85).

The PA defendants admit that these requirements are not "technically" met, because the plaintiffs were not state court losers. Indeed, the plaintiffs succeeded in having the state court indictments against them dismissed, and thus there was no "extant and controlling" judgment with continuing "legal effect" in their case. McCray v. City of New York, No. 03 Civ. 9685, 2007 WL 4352748, at *11 & n.14 (S.D.N.Y. Dec. 11, 2007). Moreover, the PA defendants have not explained how the plaintiffs' alleged injuries were caused by the New York State Supreme Court's dismissal of those indictments, as opposed to the underlying conduct by the defendants that the plaintiffs argue resulted in, among other things, the issuance of those indictments. The PA defendants have not only failed to satisfy the "technical requirements" of the Rooker-Feldman doctrine, they have failed to satisfy the substantive requirements of the doctrine. Accordingly, the PA defendants' motion to dismiss on the basis of the Rooker-Feldman doctrine is denied.*fn1

B.

The PA defendants next move to dismiss the plaintiffs' first cause of action under § 1983 as a generalized repetition of the plaintiffs' subsequent, more specific allegations of, for example, false arrest, malicious prosecution, and malicious abuse of process. The plaintiffs argue in response that a pattern of government misconduct is itself actionable as an independent cause of action under § 1983.

The Court of Appeals for the Second Circuit has explained that "a true pattern of harassment by government officials," where that harassment is "systematic and intentional," "may make out a section 1983 claim for violation of due process of law." Chalfy v. Turoff, 804 F.2d 20, 22-23 (2d Cir. 1986) (per curiam); see Contractors Against Unfair Taxation Instituted on New Yorkers (C.A.U.T.I.O.N.) v. City of New York, No. 93 Civ. 4718, 1994 WL 455553, at *3 (S.D.N.Y. Aug. 19, 1994) (collecting cases); see also Espanola Way Corp. v. Meyerson, 690 F.2d 827, 828 (11th Cir. 1982) (plaintiff had a cause of action sounding in due process where the plaintiff alleged issuance of "344 building code violations . . . as well as numerous fire violations," all of which were unfounded and issued "to harass and drive the [the plaintiff's h]otel out of business") (cited by Chalfy, 804 F.2d at 22). While a plaintiff therefore may state a due process claim for a systematic pattern of harassment by government officials that is designed to destroy the plaintiff's business, these claims are difficult to maintain. See, e.g., Schultz v. Inc. Vill. of Bellport, No. 08 Civ. 0930, 2010 WL 3924751, at *7-*8 (E.D.N.Y. Sept. 30, 2010) (granting summary judgment to the defendant on the plaintiff's Chalfy claim).

Here, the plaintiffs' first cause of action does not specifically rely upon an alleged pattern of misconduct designed to destroy his business. Rather, it asserts generally that the "[d]efendants, collectively and individually, while acting under color of state law, engaged in conduct which constituted a violation of the Constitution of the United States." (Am. Compl. ¶ 194.) The plaintiffs allege that the acts described in the Amended Complaint deprived the plaintiffs of their rights under "the First, Fourth, Fifth, Eighth, and Fourteenth Amendments." (Am. Compl. ¶ 195.) Such conclusory allegations are insufficient to state a Chalfy claim. However, the plaintiffs do allege in other previous portions of the Amended Complaint that are incorporated by reference into the first cause of action, (Am. Compl. ¶ 193), an intentional effort by government officials, including the PA defendants, to harass Bertuglia and his family with improper subpoenas, and to drive away his clients and "ruin" his business, all for the purpose of satisfying personal or vindictive goals. The plaintiffs allege that Schaffler, the primary PA defendant, personally lied to prosecutors in an intentional effort to initiate a baseless criminal case against the plaintiffs, and that Schaffler personally visited Laro's clients to spread negative information about the allegedly baseless criminal charges against Laro, in order (successfully) to drive Laro out of business. (See Am. Compl. ¶¶ 58-70, 90-99.) These allegations, if proven, would constitute a true pattern of intentional, repeated, tortious harassment by a government official. See Chalfy, 804 F.2d at 22. The plaintiffs therefore have described a plausible due process claim founded upon a "pattern of harassment" theory with regard to PA defendant Schaffler. The PA defendants' motion to dismiss the first cause of action is therefore denied with respect to Schaffler.

However, the plaintiffs have not pleaded that the other PA defendants took part in the effort to visit Laro's clients and undermine Laro's business. Intentional government harassment "with the objective of driving plaintiffs out of business" is the essence of a Chafly claim. See C.A.U.T.I.O.N., 1994 WL 455553, at *3. Nor, in any event, have they pleaded that the other PA defendants were involved in serving improper or harassing subpoenas, or conducting inappropriate interviews. The PA defendants motion to dismiss the first cause of action is therefore granted with respect to the remaining PA defendants.

C.

The PA defendants also move to dismiss the bulk of the other § 1983 claims in this case against the PA supervisory defendants (Van Etten, Nestor and Kennedy) because the only alleged basis for those defendants' liability is their status as supervisors of PA defendants Schaffler, Ferrone, and D'Aleo.

A plaintiff must plead the personal involvement of each defendant in a violation of § 1983. "There is no respondeat superior liability in § 1983 cases." Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948.

The law in this Circuit before Iqbal was that a plaintiff may state a claim against a supervisory defendant in a ยง 1983 case when the plaintiff alleges that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful ...


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