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Fiorito v. Difiore

United States District Court, S.D. New York

October 2, 2014

TERRENCE J. FIORITO, Plaintiff,
v.
JANET DIFIORE, et al., Defendants.

OPINION & ORDER

CATHY SEIBEL, District Judge.

Before the Court is Defendants' Motion to Dismiss the Amended Complaint, filed on April 17, 2014. (Doc. 26.) For the reasons stated below, the Motion is GRANTED.

I. Background

For purposes of this Motion, the Court accepts as true the facts (but not the conclusions) alleged by Plaintiff in his Amended Complaint ("Compl."), (Doc. 15).

Plaintiff Terrence J. Fiorito is a retired school athletic director. (Compl. ¶ 10.) Defendant Janet DiFiore is the District Attorney for Westchester County and Defendants John M. George, Paul Scharf, Doreen Lloyd and Amit Parab are all Assistant District Attorneys for Westchester County.[1] ( Id. ¶¶ 4-8.)

Plaintiff alleges that on the evening of February 27, 2010, while attending a high school basketball tournament, a man charged toward him while screaming insults and then lunged at him. ( Id. ¶¶ 12, 14.) A scuffle ensued and the man was dragged away from Plaintiff by several people, including the tournament's security guards. ( Id. ¶ 12.)

Plaintiff later learned that the man was Stephen Kelly, the husband of Diane Ramos-Kelly, who at that time was the Superintendent of the Valhalla Union Free School District. ( Id. ¶ 14.) Although Plaintiff had never met Mr. Kelly before, Plaintiff and Ms. Ramos-Kelly had worked together when Plaintiff was an athletic director and had a strained relationship; indeed, Plaintiff had previously sued Ms. Ramos-Kelly over a job-related matter.[2] ( Id. )

Immediately after the altercation, Plaintiff was interviewed several times by security officers and he requested to file a report; Plaintiff also returned to the tournament venue the following day and gave a statement. ( Id. ¶¶ 17-18.) On March 1, 2 and 4, 2010, Plaintiff provided information about the altercation to detectives, which culminated in their preparation of a Violation Information, which Plaintiff signed. ( Id. ¶¶ 19-21.)

On April 22, 2010, Mr. Kelly appeared in court and entered a plea of not guilty. ( Id. ¶ 24.) The court scheduled Mr. Kelly's trial for May 10, 2010, and issued an Order of Protection prohibiting Mr. Kelly from having contact with Plaintiff. ( Id. ¶¶ 25-26.)

The following week, Ms. Ramos-Kelly called Defendant Janet DiFiore, the District Attorney of Westchester County, about Mr. Kelly's case. ( Id. ¶ 28.) During this phone call, Ms. Ramos-Kelly, who is allegedly politically connected to and friendly with Defendant DiFiore, allegedly convinced her to "make the case against Kelly go away'". ( Id. ¶ 29.) That same day, Defendant DiFiore allegedly instructed Defendant George, the First Deputy District Attorney, to make that happen. ( Id. ¶¶ 30-31.)

Defendant George, working together with Defendants Scharf, Lloyd, Parab and others, allegedly executed this plan by manufacturing an administrative policy against prosecuting individuals when the accusatory instrument is signed by only the complainant (and not a law enforcement officer), and used that policy as a pretext to withdraw the Kelly case. ( Id. ¶¶ 31-38.) At the next scheduled court hearing on May 10, 2010, Defendant Lloyd, appearing for the District Attorney's office, told the court that the government was withdrawing the Kelly case without prejudice and "turn[ing] the matter over to the Westchester County Police for further investigation." ( Id. ¶ 41.) No further investigation was conducted. ( Id. )[3]

Plaintiff alleges that after Mr. Kelly's attack on him, he feared for his life and was in a fragile psychological state. ( Id. ¶¶ 13, 18.) He had long suffered from clinical depression, and after the incident it became increasingly severe. ( Id. ¶¶ 11, 13). When Plaintiff learned that Mr. Kelly would not be prosecuted and that the Order of Protection against Mr. Kelly had been vacated as a result of the withdrawal of the criminal case, his depression became "debilitating." ( Id. ¶¶ 40, 42, 45.)

Based on these allegations, Plaintiff asserts two Equal Protection claims under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to the U.S. Constitution.[4] First, Plaintiff argues that Defendants' decision not to prosecute Mr. Kelly (based on its fabricated policy concerning accusatory instruments) denied Plaintiff his right to equal protection under the law. ( Id. ¶¶ 47-57.) Second, Plaintiff argues that Defendants' failure to further investigate (or to ensure that the police would further investigate) the Kelly case also deprived Plaintiff of equal protection. ( Id. ¶¶ 58-64.)

Defendants move to dismiss these claims on three grounds: (1) Plaintiff's lack of standing, (2) Defendants' absolute immunity (or alternatively, qualified immunity) as prosecutors and (3) Plaintiff's failure ...


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