United States District Court, N.D. New York
RUSSELL D. TOWNER, Plaintiff,
COUNTY OF TIOGA et al., Defendants.
THE PLAINTIFF: Office of Ronald R. Benjamin
THE DEFENDANTS: The Law Firm of Frank W. Miller
R. BENJAMIN, ESQ., FRANK W. MILLER, ESQ., CHARLES C.
MEMORANDUM-DECISION AND ORDER
L. Sharpe Senior District Judge
Russell Towner brings this action pursuant to 42 U.S.C.
§ 1983 against defendants Tioga County, Kirk Martin,
Patrick Hogan, Wayne Moulton, and C.J. Alexander. (2d Am.
Compl., Dkt. No. 122.) He claims that his due process rights
were violated and he was falsely arrested and maliciously
prosecuted after serving as a cooperating informant at
defendants' behest. (Id. ¶¶ 42-58.)
Pending is defendants' 12(b)(6) motion to dismiss
Towner's second amended complaint. (Dkt. No. 124.) For
the following reasons, defendants' motion is granted in
part and denied in part.
March 2014, Towner was incarcerated in the Tioga County Jail
with another inmate, David Nugent. (2d Am. Compl.
¶¶ 9-10.) Nugent informed Towner that he intended
to kill an assistant district attorney, Cheryl Mancini,
(id. ¶¶ 10-11), and solicited inmates
including Towner to assist in his devious plan, (id.
wrote Mancini and cautioned that Nugent intended to kill her.
(Id. ¶ 13; Dkt. No. 72, Attach. 1 at 18-19.)
After learning of this correspondence, Tioga County District
Attorney Martin arranged for a meeting between Towner and
investigators Hogan and Moulton. (2d Am. Compl. ¶¶
15, 29.) Martin did not attend the meeting, which was held in
early April 2014,  but it was recorded. (Id.
the meeting, “there was discussion” about having
Towner lure Nugent into the jail library to discuss his plans
while investigators secretly monitored the
conversation. (Id. ¶ 20.) Hogan assured
Towner that he would be “‘acting as an agent of
the police'” and that nothing he said or did could
be used against him--a statement that Martin allegedly
learned of. (Id. ¶¶ 19, 26.) Hogan
directed Towner to “‘show [the investigators]
[he] care[d] about this woman's life.'”
(Id. ¶ 19.) And Moulton told Towner that they
arranged for a correctional officer at the jail to serve as
the middle man during the operation. (Id. ¶
thereafter, Towner successfully lured Nugent into the jail
library and engaged him in a discussion about his threats
against Mancini. (Id. ¶ 22.) About a week after
the library encounter, Towner wrote Moulton and stated that
he had no intention of being involved with Nugent's
plans; he just wanted to get out of jail and move it on a
little farther down the line. (Id. ¶¶
23-24.) In an undated letter provided by defendants, Towner
also asked Moulton to put him “in play” by
letting him “pretend” to go along with
Nugent's plans and allowing him to wear a
“wire.” (Dkt. No. 72, Attach. 1 at 21.) Towner
had no further communication with defendants until
Nugent's wife bailed him out of jail on May 8, 2014. (2d
Am. Compl. ¶¶ 25, 27; Dkt. No. 133 at 3.)
Towner's release, Hogan asked him to participate in an
interview with the sheriff's department. (Id.
¶ 28.) At some point, “Martin, Hogan, and Moulton
made a joint decision or otherwise acquiesced in [Towner]
being arrested for [conspiracy in the second degree].”
(Id. ¶ 30.) Investigator Alexander, who
previously met with “Hogan and/or others involved in
the investigation, ” arrested Towner that same day.
(Id. ¶¶ 33-36, 46.) When “Hogan was
asked what facts he had to support a reasonable belief that
[Towner] engaged in conduct [constituting conspiracy in the
second degree, ] [he] admitted he had no facts other than his
own belief [that] [Towner] was a disreputable person.”
(Id. ¶ 32.) On November 5, 2015, the charges
against Towner were dismissed. (Id. ¶ 37.)
commenced this action in Tioga County Supreme Court alleging
various claims under state law, 42 U.S.C. § 1983, and 18
U.S.C. § 242. (Compl., Dkt. No. 2.) Thereafter,
defendants removed the lawsuit to this court. (Dkt. No. 1.)
Towner eventually retained counsel, (Dkt. No. 38), and filed
an amended complaint, (Am. Compl., Dkt. No. 67). Defendants
filed a motion to dismiss Towner's amended complaint.
(Dkt. No. 72.) In response, Towner filed a motion for leave
to amend his complaint again to add a claim that he
“inadvertently omitted.” (Dkt. No. 99.) After
carefully considering the parties' arguments, the court
dismissed Towner's negligence claims and his state law
claims against all defendants in their official capacities.
(Dkt. No. 111 at 1 n.1.) The court denied the remainder of
defendants' motion to dismiss with leave to renew and
gave Towner “one last opportunity to amend his
complaint.” (Id. at 2.) Subsequently, Towner
filed a second amended complaint,  (Dkt. No. 122), and
defendants' pending motion to dismiss soon followed,
(Dkt. No. 124).
Standard of Review
standard of review under Fed.R.Civ.P. 12(b)(6) is well
settled and will not be repeated here. For a full discussion
of the standard, the court refers the parties to its prior
decision in Ellis v. Cohen & Slamowitz, LLP, 701
F.Supp.2d 215, 218 (N.D.N.Y. 2010).
determining a Rule 12(b)(6) motion to dismiss, the court may
consider the complaint, any exhibit attached to the
complaint, materials incorporated by reference, and documents
that are integral to the complaint. See Sira v.
Morton, 380 F.3d 57, 67 (2d Cir. 2004). A document is
integral to the complaint if the complaint “relies
heavily upon its terms and effect.” Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
(internal quotation marks and citation omitted).
response relies on materials outside the four corners of the
complaint, which he fails to sufficiently demonstrate were
integral to the complaint or relied upon in drafting
As such, and for the reasons stated in defendants' reply,
(Dkt. No. 137 at 2-4), these materials are excluded from the
court's analysis at this stage. Defendants also attempt
to draw the court's attention to documents outside the
complaint. (Dkt. No. 124, Attach. 1 at 3-4.) However, because
defendants have ...