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Osborne v. County of Seneca

United States District Court, W.D. New York

June 6, 2014

BURL OSBORNE, Plaintiff,
THE COUNTY OF SENECA, RICHARD E. SWINEHART, as District Attorney for the County of Seneca and individually, DAVID G. MASHEWSKE, MARK SINKEWICZ, PATRICK J. MORRELL, ROBERT STEELE, as employees of the Office of the Seneca County District Attorney and individually, and ROBERT SCHULTZ, as a member of the New York State Police and individually, Defendants.

Jeffrey P. DiPalma, Esq., Osborn, Reed & Burke, LLP, Rochester, New York, for Plaintiff.

Michael P. McClaren, Esq., Jeremy A. Colby, Esq., Webster Szanyi LLP, Buffalo, New York, for Seneca County Defendants.


CHARLES J. SIRAGUSA, District Judge.

This is an action brought by a former Deputy of the Seneca County Sheriff's Department who claims that he was maliciously prosecuted by the former Seneca County District Attorney, Richard Swinehart, and members of his staff ("Defendants").[1] Now before the Court is Defendants' motion (Docket No. [#26]) to dismiss the Amended Complaint. The application is granted.


Defendants are moving to dismiss pursuant to FRCP 12(b)(6). It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited as to what it can consider. See, Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y. Sep.24, 2012) (On a 12(b)(6) motion, "a court may consider documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or... documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.'" Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) ( quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)).").

Here, the Amended Complaint repeatedly mentions a number of documents that are not actually attached to the pleading. Specifically, the Amended Complaint describes, and alludes to the contents of, police reports and written witness statements concerning an incident that occurred on December 30, 2008, as well as prosecutor's informations and misdemeanor informations that were filed against Plaintiff.[2] The lynchpin of Plaintiff's claims is that some of these documents contain false information, while others were improperly filed or not turned over to him in a timely fashion as part of the prosecution against him in state court. Accordingly, the Court will consider these documents, because to the extent they may not be expressly incorporated by reference into the Amended Complaint, Plaintiff obviously had them in his possession[3] and relied upon them[4] in drafting the pleading to such an extent that they are integral to the Amended Complaint.[5] See, Bath Petroleum Storage, Inc. v. Market Hub Partners, L.P., 129 F.Supp.2d 578, 581 (W.D.N.Y., 2000) ("[A] plaintiff should not be permitted to survive a motion to dismiss and put a defendant to the trouble and expense of discovery simply by excluding highly relevant facts and documents from its complaint.") ( citing Cortec Industries v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991)[6]), aff'd 229 F.3d 1135 (2d Cir.2000) (table), cert. den. 532 U.S. 1037, 121 S.Ct. 1998, 149 L.Ed.2d 1001 (2001)).

The reader is reminded that much of the factual recitation that follows is based on Plaintiff's as-yet-unproven allegations, which the Court must assume to be true for purposes of this Decision and Order.

The Seneca Meadows Landfill is located on the east side of New York State Route 414, in Waterloo, New York, approximately 3.6 miles south of Exit 41 of the New York State Thruway. A travel plaza containing a Petro gas station and a restaurant is located near the Thruway entrance, on the east side Route 414, across from the Exit 41 toll booths. A Nice N Easy convenience store/gas station is located at the intersection of Routes 414 and 318, between the Seneca Meadows Landfill and the Thruway exit.[7]

On December 30, 2008, a commercial truck driver named Frederick Grant ("Grant") was delivering a truckload of waste to the Seneca Meadows Landfill. At approximately 6:00 p.m., Grant had delivered his load and was preparing to exit the landfill and turn left onto Route 414, going North, toward the Thruway exit. At that same moment, Burl Osborne ("Plaintiff") was riding in a car driven by his daughter's fiance/boyfriend, Jeffrey Jones ("Jones"), heading north on Route 414. Plaintiff was an off-duty deputy employed by the Seneca County Sheriff's Department, dressed in civilian clothing, and was carrying a pistol. As Grant turned into the roadway, Jones had to swerve in order to avoid a collision with Grant's truck.[8] Gary Bessette ("Bessette"), another truck driver, who was familiar with Grant, was also exiting the landfill at the same time, and witnessed the near-collision between Grant's truck and the car in which Plaintiff was riding. After the near collision, Grant drove north to the travel plaza. Plaintiff directed Jones to pursue Grant. In that regard, Plaintiff and Jones were in Jones' private vehicle, which did not have any type of police markings or lights. Bessette exited the landfill and also went north on Route 414, but stopped at the Nice N Easy convenience store, while Plaintiff and Jones followed Grant north to the travel plaza.

At the travel plaza, Plaintiff directed Jones to follow Grant's truck into the parking lot, and Plaintiff exited Jones' car and, after chasing Grant's truck around the parking lot on foot with his gun drawn, pointed his gun at Grant, who was still inside his truck. Plaintiff ordered Grant to get out of his truck, and threatened to shoot Grant if he did not comply. Grant got out of the truck, and Plaintiff held him at gunpoint for several minutes until members of the Seneca County Sheriff's Department arrived.

There were a number of witnesses to these events. Of those, on December 30, 2008, the Seneca County Sheriff's Department took written statements from at least the following persons: 1) Grant; 2) Bessette; 3) Jones; 4) James Onley ("Onley"); 5) Matthew Springer ("Springer"); 6) Thomas Smith ("Smith"); and 7) Anton Heindl ("Heindl").

To the extent that some of these affidavits are pertinent to the subject motion, the Court will quote them extensively. Regarding the traffic incident that led to the violent confrontation, Bessette gave a statement, as follows:

On 12/30/08 I was leaving the Seneca Meadows land fill. Fred Grant was ahead of me. There was a dark vehicle coming up [Route 414, ] he was about 2 tractor trailer lengths behind Fred. I watch him pick up speed and I thought he was going to pass Fred Grant on the right but he backed out it [sic] and stayed right behind him. I turned around because I decided not to go to the Petro. To me I didn't think anything of it.

Docket No. [#29-3] at p. 12. This statement from Bessette obviously does not mention events at the travel plaza. However, as will be discussed further below, it is evident that although Bessette did not go to the Petro travel plaza immediately after leaving the landfill, he went there shortly thereafter because he was at the Petro travel plaza when Seneca County Sheriff's deputies took his statement as part of their investigation into Plaintiff's "arrest" of Grant.

Regarding events at the travel plaza, Grant gave a sworn statement, which indicates, in pertinent part:

They [Osborne and Jones] followed me into the Petro truck stop and followed me around the parking lot... then [Osborne] ordered me out of the truck by gunpoint w/out telling me he was an officer and when I asked him several times to put his gun down I begged him and he said get out lay on the ground and shut up or he would put 15 rounds into my head. Still not telling me he was an officer yet. Then I got out almost in tears and he grabbed me [and] held the gun in front of me a couple feet away and ordered me to shut up or he would shoot me. Another man I work with [Springer] asked the man with the gun for identification and he showed it. I tried to walk away and shut my truck off and he [Osborne] held onto me and said don't move I'm telling you I'll kill you like you tried to kill me. Then the officer showed up. [sic]

Docket No. [#29-3] at pp. 5-6.

James Onley also provided a written statement to Seneca County Sheriff's deputies, which indicates, in pertinent part:

[On] 12-30-08 about 1700 I pulled into Petro, I was looking for place to park up front. As I was circling the parking lot I notice[d] a semi, speeding kicking up dirt. Then I saw a black Jeep with [the] passenger door open. The passenger was running after the truck yelling ["G]et him Jeff["] [evidently referring to Jones, who was driving the Jeep] Then I saw an opening and as I was parking I notice[d] a man with [illegible] blue coat, Levis - pointing a gun at the truck driver... he came around [the] corner... yelling at him, to get out of truck or he would shoot him. The [truck] driver tried to put it in reverse to get away but by this time, the man with gun was by [the] driver[s] door. And I could see [that the] people in [the] truck was scared. What was done on [the] driver's side I don't know.

Docket No. [#29-3] at p. 15 (emphasis added).

Matthew Springer's statement similarly details the events, and states in pertinent part:

[A]s I exited the rear door of the building toward my truck, I noticed a tractor trailer pulling in and a Jeep was coming behind it sliding sideways across the parking lot. The driver of the truck stopped next to me and stated the psycho behind has a gun. Freddy the driver continued thru the parking lot toward the fuel island to get away from the guy with the gun and the driver of the Jeep continued to follow him. I approached the guy with the gun and told him put the gun away, and he didn't say a word and he then took off between the parked trucks. I had started to walk toward the fuel islands because Freddy had drove in that direction but he just made a loop and came right back behind the Petro building and stopped. I walked back over to Freddy's truck and when I came around to the driver side the guy in the blue coat with the gun was standing on the side of his truck with the gun pointed at him and was screaming at him calling him a rotten fucker and numerous other curse words and was telling him to get out of the truck. I still at this point hadn't heard the man identify himself but I yelled at Freddy to get out of the truck and as soon as he did the guy pushed him against the truck and had the gun to his head. I pushed the gun down from Freddy's head and got between them and he started yelling at me that I'm going to have you arrested and that was when he said he was a cop and I demanded that he show me ID and after several requests he showed me his ID. I kept telling him if the cops are coming put the gun down and calm down Freddy's not going anywhere. [He] never calmed down and continued to act like he was crazy and at no time did anyone make any threats toward him. I was afraid that if Freddy hadn't listened to the guy he was acting crazy enough that I thought he was going to shoot him. After the other officer showed up in uniform the guy calmed down and back[ed] away from Freddy and put his gun away.

Docket No. [#29-3] at p. 16.

As mentioned earlier, sheriff's deputies also took statements from Smith, Heindl and Jones, which essentially corroborate various aspects of Grant's, Onley's and Springer's versions of events.[9]

No criminal charges were filed against anyone as a result of the December 30, 2008, incident and the ensuing investigation by the Seneca County Sheriff.

Prior to the foregoing events, the former Seneca County Sheriff, Leo Connolly ("Connolly"), and several members of his department, had been prosecuted for various alleged acts of corruption. In particular, Connolly was prosecuted by R. Michael Tantillo ("Tantillo"), District Attorney of Ontario County, New York, who had been appointed Special Prosecutor. According to Plaintiff, Tantillo was appointed as special prosecutor because the Seneca County District Attorney, Richard Swinehart ("Swinehart"), who is allegedly a political ally of Connolly's, was being investigated for possible involvement in the alleged wrongdoing by Connolly.[10]

Plaintiff, an employee of the Seneca County Sheriff's Department, claimed to have knowledge of malfeasance by Connolly, [11] although it is unclear from the present record whether Tantillo utilized Plaintiff as a prosecution witness. Swinehart allegedly knew that Plaintiff claimed to have incriminating information about Connolly, although it is unclear when he learned that.[12]

In August 2008, a jury convicted Connolly of two misdemeanor counts of Official Misconduct, in violation of New York Penal Law ยง 195.00[1]. See, People v. Connolly, 63 A.D.3d 1703, 881 N.Y.S.2d 257 (4th Dept. 2009). Connolly appealed those convictions.

On or about May 26, 2009, while Connolly's appeal was pending, Swinehart began looking into the incident on December 30, 2008, involving Plaintiff. As to the timing of the investigation, Swinehart apparently maintains that the Seneca County Sheriff's Department never told him about the incident when it occurred, and that he had only learned about it in March, 2009, when Grant called his office to inquire about the status of any prosecution against Plaintiff. Swinehart subsequently obtained the police reports and statements made on December 30, 2008. Swinehart also requested the assistance of the New York State Police in re-investigating the incident. Robert Schultz ("Schultz"), an investigator with the State Police, was assigned by his supervisor to assist Swinehart with the ...

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