PAMELA K. CHEN, United States District Judge:
On March 26, 2015, Plaintiff Ying Li commenced this action against Defendants pursuant to 42 U.S.C. § 1983 ("Section 1983") and New York law. (See Dkt. 1.) Plaintiff's ten-count Amended Complaint alleges numerous theories of liability against Defendants. (See Dkt. 36, Amended Complaint ("Am. Compl.").) In general, Plaintiff alleges that she was wrongfully accused of being responsible for the death of her infant daughter. (Id.) The Amended Complaint makes claims against two groups of defendants: (i) the first group is
Plaintiff asserts the following ten counts, of which eight are against all Defendants: Count 1 (false arrest and imprisonment), Count 2 (malicious prosecution), Count 3 (malicious abuse of process), Count 4 (failure to intervene), Count 5 (conspiracy), Count 6 (unreasonably prolonged detention), Count 7 (violation of due process), Count 8 (Monell liability against the City), Count 9 (Monell-type liability against Flushing Hospital), and Count 10 (violation of the New York State Constitution). Except for Count 10, all of Plaintiff's claims are alleged as federal claims pursuant to Section 1983.
Presently before the Court are two separate motions to dismiss filed by the two groups of Defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). For the reasons set forth below, both the City Defendants' and Medical Center Defendants' motions are GRANTED IN PART and DENIED IN PART. Furthermore, all claims against the following Defendants are dismissed in their entirety: ADA Bishop, Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.
Early in the morning of October 23, 2007, Annie, the 8-1/2-week-old daughter of Plaintiff and her husband Hang Bin Li, suddenly went limp while being fed. (Am. Compl. ¶¶ 92, 95.) The Lis called 911 and took Annie to the emergency room at Flushing Hospital. (Am. Compl. ¶¶ 95, 98, 108.) Annie was unresponsive when she arrived at the emergency room, where she was revived and placed on life support. (Am. Compl. ¶ 98.)
Suspecting child abuse, Flushing Hospital called Det. Phelan and the NYPD Child Abuse Squad that day. (Am. Compl. ¶ 101.) Det. Phelan went to the hospital, spoke
The next day, October 24, 2007, Det. Phelan went to the Lis' house, and Plaintiff's husband gave written consent for Det. Phelan to search the home. (Am. Compl. ¶ 110.) Later, detectives from the 109th Precinct went to search the Lis' home after getting a warrant. (Am. Compl. ¶ 110.) Subsequently, the Lis were interviewed again by numerous people, including Dets. Heffernan and Moser, officers from the Queens Homicide Squad, and medical personnel at Flushing Hospital, including Dr. Kupferman.
On October 25, 2007, Dr. Kupferman conducted a "forensic interview" of Plaintiff. (Am. Compl. ¶ 120.) A day later, Annie was confirmed brain dead, and was diagnosed with "Shaken Baby Syndrome" ("SBS").
On March 11, 2008, Plaintiff and her husband were arrested for Annie's death based on the conclusion that Annie had died of SBS. (Am. Compl. ¶¶ 133-34.) Plaintiff was charged with two counts of Manslaughter in the First Degree, and one count of Endangering the Welfare of a Child. (Am. Compl. ¶¶ 146.) The grand jury indicted Plaintiff on various charges, including Manslaughter in the Second Degree. (Am. Compl. ¶ 181, 184, Ex. C.) Plaintiff pled not guilty to all charges. (Am. Compl. ¶ 179.) Plaintiff's husband was also indicted for one count of Murder in the Second Degree, two counts of Manslaughter in the Second Degree, and one count of Endangering the Welfare of a Child. (Am. Compl. ¶ 185.) Unable to make bail, Plaintiff was held at the Riker's Island correctional facility for about four years without a trial. (See Am. Compl. ¶¶ 180, 234.) On March 26, 2012, Plaintiff was released after her bail was reduced. (Am. Compl. ¶ 197.) On January 2, 2013, ADA Bishop moved to dismiss the criminal charges against Plaintiff. (Dkt. 63-6, Ex. F.) Hang Bin Li's trial began the next day. (Am. Compl. ¶ 199.) On February 1, 2013, he was convicted of reckless manslaughter. (Am. Compl. ¶ 200.)
Plaintiff filed this action on March 26, 2015. (Dkt. 1.) On November 19, 2015, she filed the Amended Complaint. (Dkt. 36.) On March 7, 2016, Defendants moved to dismiss the Amended Complaint pursuant to FRCP 12(b)(6). (Dkt. 53, 58.)
Plaintiff and Defendants both seek to have the Court consider certain information and documents outside of the Amended Complaint. Both parties have attached to their moving papers the Queens County criminal court complaint ("criminal complaint") against Plaintiff (Dkt. 60, Ex. B;
In determining the adequacy of a claim under Rule 12(b)(6), courts are generally limited to the facts alleged in the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and facts that may be judicially noticed. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)); see also Wilson v. Kellogg Co., 628 Fed.Appx. 59, 60 (2d Cir. 2016) (summary order) (noting that the court may consider matters of which judicial notice may be taken in deciding a Rule 12(b)(6) motion). However, even if the complaint does not expressly cite a document, the complaint is deemed to include that document if it is "integral" to the complaint. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)); Sira, 380 F.3d at 67 (document not expressly cited in the complaint was "incorporated into the pleading because [it] was integral to [plaintiff's] ability to pursue" his cause of action); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) ("Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.") (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir. 2002)); Fed. R. Evid. 201 (a court may take judicial notice of "a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned").
By repeatedly referring to the criminal complaint, the Amended Complaint incorporates it by reference.
The Court, however, declines to take judicial notice of the grand jury minutes in People v. Hang Bin Li and Ying Li, Indictment No. 603/08 (Dkt. 65, Ex. A), which the City Defendants have attached to their Reply brief, because the City seeks to rely on the substance and truth of the testimony set forth in those minutes, and not just the fact of the testimony being given or the date on which it was given. See St. John's Univ., N.Y. v. Bolton, 757 F.Supp.2d 144, 156 (E.D.N.Y. 2010) ("[T]he court may, at its discretion, consider matters of which judicial notice may be taken. . . ." (emphasis added) (citation omitted)).
Under Rule 12(b)(6) of the FRCP, a defendant may move for dismissal on the ground that the complaint "fail[s] to state a claim upon which relief can be granted." To withstand a Rule 12(b)(6) motion, a complaint must plead sufficient facts "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
Plaintiff has brought this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), which provides a cause of action for anyone subjected "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by a person acting under color of state law. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of [federal] rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). To state a claim under Section 1983, a plaintiff must plausibly allege "(1) that the defendants deprived him of a right `secured by the Constitution or laws of the United States'; and (2) that they did so `under color of state law.'" Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)); see Flynn v. James, 513 Fed.Appx. 37, 39 (2d Cir. 2013).
Plaintiff asserts her federal claims not only against the City Defendants but also against the Medical Center Defendants, who ordinarily would be considered non-State actors. See White v. St. Joseph's Hosp., 369 Fed.Appx. 225, 226 (2d Cir. 2010) ("[P]rivate actors and institutions, such as the hospitals . . . are generally not proper § 1983 defendants because they do not act under color of state law.") (citing Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)); see also Kia P. v. McIntyre, 235 F.3d 749, 756 (2d Cir. 2000) (finding that a hospital was not a State actor to the extent it acted in its capacity as a private provider of medical care). As a general matter, liability under Section 1983 is proper only with respect to individuals acting under "color of state law," i.e., State actors, or individuals acting in concert with a State actor. See 42 U.S.C. § 1983; Jones v. City of New York, No. 12-cv-9144, 2013 WL 4028183, at *6 n.3 (S.D.N.Y. Aug. 8, 2013) ("Section 1983 addresses only those injuries caused by state actors or those acting under color of state law.") (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992)). For a private entity to be held liable under Section 1983, a plaintiff must establish that the private entity acted as a "willful participant in joint activity with the State or its agents." Betts v. Shearman, 751 F.3d 78, 85 (2d Cir.
Although the Medical Center Defendants argue that they are not State actors and therefore not subject to liability under Section 1983, they also note that this issue may be more appropriate to be decided on summary judgment. (See Dkt. 55 at 19 n.3.) Because the Medical Center Defendants essentially defer arguing the issue, the Court reserves consideration of the issue for summary judgment. For purposes of ruling on Defendants' motions to dismiss, the Court assumes without deciding that the Medical Center Defendants are State actors who acted "under color of state law."
The City Defendants point out—and rightfully so—that Plaintiff has failed to allege any personal involvement by many of the named Officer Defendants. (Dkt. 59 at 6.) "An individual defendant is not liable under § 1983 absent personal involvement." Morris v. Eversley, 282 F.Supp.2d 196, 202 (S.D.N.Y. 2003) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); Spavone v. New York State Dept. of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Pleadings that do not differentiate which defendant was involved in the unlawful conduct are insufficient to state a claim. See, e.g., Wright v. Orleans Cnty., No. 14-cv-0622A, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a § 1983 case that "[g]roup pleading is insufficient for purposes of Rule 8(a)(2) [of the FRCP] which requires a short and plain statement of the claim showing that the pleader is entitled to relief." (citation and quotation marks omitted)); Holmes v. Allstate Corp., No. 11-civ-1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan. 27, 2012) ("Plaintiffs' method of group pleading is incoherent or illogical" and "[FRCP] 8(a) is violated where a plaintiff, by engaging in `group pleading,' fails to give each defendant fair notice of the claims against it."); Pierson v. Orlando Regional Healthcare Systems, Inc., 619 F.Supp.2d 1260, 1273 (M.D. Fla. 2009) (dismissing complaint because group-pleading method of collectively referring to individual defendants and two physician groups as "Peer Review Defendants" throughout complaint did not satisfy [FRCP] 9(a)).
The Amended Complaint fails to allege facts from which it can be reasonably inferred that Lt. Conforti, Det. Perdoch, Sgt. Rodriguez, Lt. Hall, and Det. Lee had any involvement in Plaintiff's Queens County criminal proceedings. Though the lengthy Amended Complaint devotes six paragraphs to each of these Defendants (see Am. Compl. ¶¶ 19-22, 82-83 (for Lt. Conforti); Am. Compl. ¶¶ 27-30, 81-82 (for Det. Perdoch); Am. Compl. ¶¶ 39-42, 82-83 (for Sgt. Rodriguez); Am. Compl. ¶¶ 43-46, 82-83 (for Lt. Hall); Am. Compl. ¶¶ 55-58, 82-83 (for Det. Lee)), these paragraphs simply recite the same conclusory, formulaic, and non-substantive allegations as to each of these Defendants, asserting that they were "acting within the course and scope of their employment" and "under color of state law," that they are being sued in their individual and official capacities, and that they should be referred to as "CITY DEFENDANTS" or "OFFICER DEFENDANTS." In short, Plaintiff does not allege that any of these five officers had even a minimal role in arresting, investigating, or prosecuting
Based on Plaintiff's counsel's representation at the pre-motion conference, it appears that Plaintiff named some of these individual Defendants because they were listed as having supervisory roles in the Queens County District Attorney's press release (dated March 12, 2008). (See Ex. D, Dkt. 63-4 at ECF 3.) Even though the Court takes judicial notice of the press release, as noted, it does not take judicial notice of the press release for the truth of its contents, i.e., that the identified officers were, in fact, supervisors at the time of Plaintiff's arrest and prosecution. See Roth, 489 F.3d at 509. Furthermore, the mere listing of these officers as supervisors in a press release is insufficient to create an inference of personal involvement absent further allegations, especially because "a defendant [may not] be held liable merely by his connection to the events through links in the chain of command." Reynolds v. Goord, No. 98-cv-6722, 2000 WL 235278, at *7 (S.D.N.Y. Mar. 1, 2000); Colon, 58 F.3d at 873-74 ("The bare fact that [the defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim.").
With respect to P.O. Yam, Sgt. Cai, and Det. Chan, the allegations in the Amended Complaint are also insufficient to show personal involvement in unlawful conduct that supports any of Plaintiff's claims. Based on the Amended Complaint, the participation of these officers was limited to serving as translators during the investigations of Plaintiff's criminal case.
With respect to Dets. Moser, Phelan, and Heffernan, the Court finds that Plaintiff has provided sufficient allegations as to
Accordingly, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan are dismissed as Defendants due to the insufficiency of allegations establishing personal involvement. See Zurich American Ins. Co. v. Dah Sing Bank, Ltd. No. 03-civ-7778, 2004 WL 1328215, at *6 (S.D.N.Y. Jun. 15, 2004) (dismissing claims against one defendant bank where plaintiff did not put forth "a single factual allegation" but instead "lump[ed] the three bank defendants together and assert[ed] that they collectively processed the checks"); Hernandez v. Goord, 312 F.Supp.2d 537, 548 (S.D.N.Y. 2004) (dismissing individual defendants who were merely listed at the beginning of the complaint and were never connected in the complaint to any particular adverse action); see also S.B. v. City of New York, No. 14-cv-1021, 2016 WL 4530455, at *13 (E.D.N.Y. Aug. 29, 2016) (dismissing claims where the complaint did "not even directly name any of the defendants or allege the particular actions they undertook" (citation omitted)); Barber v. Ruzzo, No. 10-cv-1198, 2011 WL 4965343, at *2 (N.D.N.Y. Oct. 19, 2011) ("Simply stating that [defendants] were `personally and actively involved in the continuation of criminal proceedings against [a plaintiff],' is grossly insufficient to establish personal involvement in the actual prosecution.").
A claim for false arrest under Section 1983, resting on the Fourth Amendment right to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as that under New York law.
The statute of limitations for Section 1983 claims filed in federal court in New York is determined by New York State's statute of limitations for personal injury actions. See Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102 L.Ed.2d
While the applicable limitations period is determined by State law, the accrual date "is a question of federal law". Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ("[T]he accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law." (emphasis in the original)). Under federal law, a Section 1983 false arrest claim accrues at the time that the alleged false arrest ends, i.e., when the arrestee "becomes held pursuant to [legal] process—when, for example, he is bound over by a magistrate or arraigned on charges." Wallace, 549 U.S. at 389, 127 S.Ct. 1091; see also Lynch v. Suffolk Cnty. Police Dep't, Inc., 348 Fed.Appx. 672, 675 (2d Cir. 2009) (summary order) (applying Wallace to find that plaintiff's § 1983 false arrest claim was time-barred).
Here, the Medical Center Defendants and the City Defendants contend that Plaintiff's false arrest claim as to all Defendants is time-barred. (Dkt. 55 at 4; Dkt. 64 at 3.) Plaintiff concedes this (Dkt. 66 at 6), and the Court agrees. Plaintiff was arrested on March 11, 2008 in connection with her daughter's death. (Am. Compl. ¶ 133.) For Plaintiff's false arrest claim to be timely, she must have made an initial appearance or been arraigned on or after March 26, 2012, i.e., three years from the filing of her complaint. See Wallace, 549 U.S. at 389, 127 S.Ct. 1091 (false arrest claim accrues when plaintiff's false arrest ends and plaintiff becomes held pursuant to legal process). However, Plaintiff alleges that she was arrested on March 11, 2008 and that she was incarcerated as of that date until March 26, 2012.
Recognizing that the statute of limitations has run, Plaintiff contends that equity demands tolling of the statute of limitations. (Dkt. 66 at 7.) Plaintiff's claim for equitable tolling is based on the notion of fraudulent concealment.
When a "defendant fraudulently conceals the wrong, the [statute of limitations] does not begin running until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, the cause of action." Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (quoting Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983)); Pearl, 296 F.3d at 81; see also Halstead v. City of New York, No. 13-cv-4874, 2015 WL 1506133, at *4 (E.D.N.Y. Mar. 31, 2015). To benefit from this doctrine of equitable tolling based on fraudulent concealment, the "plaintiff must submit non-conclusory evidence of conspiracy or other fraudulent wrong which precludes his possible discovery of harms that he suffered." Pinaud, 52 F.3d at 1157 (emphasis in original); see also Govt. Employees Ins. Co. v. U.S., No. 13-cv-4063, 2014 WL 582164 (E.D.N.Y. Feb. 14, 2014) ("the `burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff.'" (quoting Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000))). The Second Circuit has made clear that, "as a matter of fairness", the doctrine should only be applied "where a plaintiff has been `prevented in some extraordinary way from exercising [her] rights'". Pearl, 296 F.3d at 85 (citation and quotation marks omitted). Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (noting that courts apply equitable tolling only in "rare and exceptional circumstances" (citation and internal quotation marks omitted)).
Here, Plaintiff presents only an unsupported, conclusory statement to justify equitable tolling: "[D]efendants' fraud, misrepresentation, and deception, induced plaintiff from filing a timely action. Defendants' misconduct caused the plaintiff to delay in bringing suit and/or wrongfully deceived or misled plaintiff in order to conceal the existence of a cause of action." (Am. Compl. ¶ 209.) The Amended Complaint does not allege (a) which of the numerous Defendants committed fraud, misrepresentation, or deception, (b) what information was kept from Plaintiff, or (c) how the alleged withholding of information made it impossible for Plaintiff to discover the harms she had suffered. See, e.g., Harrison v. Harlem Hosp., 364 Fed.Appx. 686, 688 (2d Cir. 2010) (summary order) ("The appellants have failed to identify any specific fact they have learned since the limitations period expired which, if known by them sooner, would have led them to file suit sooner." (emphasis in original)).
In her opposition brief, Plaintiff claims that she became aware of her false arrest only "when Plaintiff's attorneys were told. . . that there was no `medical proof' that she could have saved her daughter," and that Plaintiff's reliance on Dr. Kupferman's assessment that earlier medical intervention could have saved Annie caused Plaintiff to delay filing her false arrest claim. (Dkt. 66 at 7.) However, as the Medical Center Defendants correctly point out, none of these factual allegations are in Plaintiff's Amended Complaint.
Even accepting Plaintiff's new, and improperly asserted, theory of fraudulent concealment, her case is indistinguishable from Paige and Pearl: Plaintiff "had full knowledge" of her actions relating to her child's death, including whether she knowingly delayed getting her child medical attention, and thus the purportedly withheld information that earlier medical intervention might not have saved Annie's life does not lead to a "newly developed awareness of a previously concealed cause of action", but simply provides potentially persuasive evidence for that claim. Indeed, Plaintiff fails to explain how Dr. Kupferman's purported diagnosis with regard to Annie made it "impossible" for Plaintiff to learn that she had a claim for false arrest. See Pearl, 296 F.3d at 85 (reiterating that, with respect to application of the equitable tolling doctrine, "we made it clear that we had in mind a situation where a plaintiff `could show that it would have been impossible for a reasonably prudent person to learn' about [her] cause of action." (emphasis in original)). In fact, some allegations in the Amended Complaint suggest that Plaintiff always knew or believed that she had a false arrest claim. For example, she alleges that she had "steadfastly denied wrongdoing throughout the numerous interrogations
In sum, Plaintiff's Amended Complaint provides only an unsupported, conclusory assertion regarding "fraud, misrepresentation, and deception" that is patently insufficient to support equitable tolling with respect to her false arrest claim, which is barred by the three-year statute of limitations. Furthermore, even Plaintiff's belated and improper assertion of facts regarding the withholding of information by the Medical Center Defendants fails to show that Plaintiff could not have timely brought her false arrest claim, and thus even these facts, if accepted as true, would not support the application of the equitable tolling doctrine.
Accordingly, Defendants' motions to dismiss Plaintiff false arrest claim are granted.
Plaintiff asserts a federal malicious prosecution claim against all Defendants. (Am. Compl. ¶ 211-213.) To allege a Section 1983 claim for malicious prosecution, a plaintiff must allege the four elements of a malicious prosecution claim under New York law—"(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions"—as well as a violation of the plaintiff's rights under the Fourth Amendment.
The Medical Center Defendants contend that Plaintiff cannot satisfy three out of the five requisite elements—specifically, favorable termination, lack of probable cause, and malice. (Dkt. 55 at 5-9.) The City Defendants argue that Plaintiff's claim must be dismissed because there was probable cause and because none of the Officer Defendants initiated the prosecution against Plaintiff. (See Dkt. 59 at 7-11.) For the reasons stated below, the Court finds that Plaintiff has adequately alleged a malicious prosecution claim against Det. Degnan, Dr. Landi, and also Dr. Kupferman, but not as to all of the other Defendants. The malicious prosecution claim is dismissed as to Dets. Moser, Phelan, and Heffernan, Lt. Conforti, Lt. Perdoch, Sgt. Rodriguez, Lt. Hall, Det. Lee, Sgt. Manfredi, P.O. Yam, Sgt. Cai, and Det. Chan.
To initiate or continue a criminal proceeding, "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." Manganiello, 612 F.3d at 163 (quoting Rohman, 215 F.3d at 217) (alteration and internal quotation marks omitted). An active role in prosecution is inferred when a defendant had the plaintiff arraigned, filled out a complaining and corroborating affidavit, or signed a felony complaint. See Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (noting that a police officer can initiate prosecution by filing charges or other accusatory instruments); see also Costello v. Milano, 20 F.Supp.3d 406, 415 (S.D.N.Y. 2014). Additionally, a defendant could have initiated a prosecution "by creating material, false information and forwarding that information to a prosecutor or by withholding material information from a prosecutor." Costello, 20 F.Supp.3d at 415; see also Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 383 (S.D.N.Y. 2005) ("[A]n arresting
The Medical Center Defendants do not dispute that they took part in the initiation of the criminal proceeding (see Dkt. 55), whereas the City Defendants contend that Plaintiff's Amended Complaint only alleges active participation in the prosecution by Det. Degnan (see Dkt. 59 at 9 n.10). The Court finds that the Amended Complaint contains sufficient factual allegations to support a plausible inference that not only Det. Degnan, but also Dr. Landi, initiated Li's prosecution.
Plaintiff has adequately alleged that Det. Degnan initiated the prosecution, because the Amended Complaint alleges that Det. Degnan swore to the criminal complaint. (See Am. Compl. ¶ 145.) Plaintiff has also alleged that Dr. Landi "swore under oath in the criminal complaint against plaintiff" and made assertions that were "false, misleading, and perjurious, and entirely unsupported and unsupportable by any medical science or clinical or forensic evidence." (Am. Compl. ¶¶ 149-150.) See Cameron, 598 F.3d at 63 (noting that a police officer can initiate prosecution by filing charges or other accusatory instruments). The Amended Complaint also alleges that Dr. Landi "played an active role in the prosecution of Ying Li. She provided advice and encouragement, that went well beyond her role, and into ancillary and forensic aspects of motive, culpability, and the veracity of Ying Li." (Am. Compl. ¶ 155.)
These City Defendants "cannot hide behind the decision of the DA to prosecute" when they, according to Plaintiff's allegations, provided the prosecutor with false information. Blake v. Race, 487 F.Supp.2d 187, 211 (E.D.N.Y. 2007) (rejecting the defendants' argument that the District Attorney, not the officers, initiated the prosecution); Zahrey v. Coffey ("Coffey"), 221 F.3d 342, 352 (2d Cir. 2000) ("[I]t is not readily apparent why the chain of causation should be considered broken where the initial wrongdoer can reasonably foresee that his misconduct will contribute to an `independent' decision that results in a deprivation of liberty.") Therefore, the Court finds that Plaintiff has adequately alleged that Det. Degnan and Dr. Landi participated in the initiation of Plaintiff's criminal proceeding.
By contrast, the Amended Complaint contains no factual allegations to support the inference that Dets. Moser, Phelan,
The second element of a malicious prosecution claim is termination of the criminal proceeding in the plaintiff's favor. The Medical Center Defendants argue that Plaintiff's criminal proceeding did not terminate in her favor because (i) the prosecution was not terminated on its merits, (ii) Plaintiff does not set forth factual allegations to support an inference that the charges were dropped because she was innocent, and (iii) a dismissal "in the interest of justice" does not constitute a favorable termination. (See Dkt. 56 at 5-8.) The Court disagrees, and finds that Plaintiff has sufficiently alleged a favorable termination for purposes of her malicious prosecution claim.
The Court looks to New York law to determine whether Plaintiff has sufficiently alleged a favorable termination of her Queens County criminal proceeding. Neal v. Fitzpatrick, 250 F.Supp.2d 153, 154 (E.D.N.Y. 2003) (citing Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir. 1992)). "Under New York law, there are two ways to establish [a] favorable termination: `(1) an adjudication of the merits by the tribunal in the prior action,' or (2) `an act of withdrawal or abandonment on the part of the party prosecuting the prior action.'" Liberty Synergistics, Inc. v. Microflo Ltd., 50 F.Supp.3d 267 (E.D.N.Y. 2014) (quoting Morgan v. Nassau County, No. 03-cv-5109, 2009 WL 2882823, at *8 (E.D.N.Y. Sept. 2, 2009) and citing Castro v. East End Plastic, Reconstructive & Hand Surgery, P.C., 47 A.D.3d 608, 850 N.Y.S.2d 483, 485 (2008)); Castro, 850 N.Y.S.2d at 485 ("The favorable termination element must be established by evidence that `the court passed on the merits of the charge or claim . . . under circumstances as to show . . . nonliability,' or evidence that the action was abandoned under circumstances `which fairly imply the plaintiff's innocence.'") (citation and internal quotation marks omitted). Thus, the fact that a criminal prosecution never reached the merits does not preclude a plaintiff from alleging a favorable termination. See Castro, 850 N.Y.S.2d at 485; see also Norton v. Town of Brookhaven, 47 F.Supp.3d 152, 158 (E.D.N.Y. 2014) (noting, on reconsideration, "the fact that the underlying prosecutions against the Plaintiff [were dismissed pursuant to statutes that] did not reach the merits does not, without more, render the termination of the prosecution inconsistent with innocence"); Verboys v. Town of Ramapo, 12 A.D.3d 665, 785 N.Y.S.2d 496, 497 (2004) (holding that favorable termination can be shown by "the formal abandonment of the proceedings").
Furthermore, "New York law does not require a malicious prosecution
While New York and federal courts in this circuit have consistently applied the Cantalino "not inconsistent with innocence" standard in deciding whether a termination is favorable, there is open disagreement and divergence in this circuit on the constituent issue of whether the termination of a criminal case "in the interest of justice" is a favorable termination, i.e., a termination that is not inconsistent with innocence.
The Court now turns to the Medical Center Defendants' three arguments. First, the argument that Plaintiff cannot show a favorable termination because her criminal case was not terminated on the merits is plainly unavailing. As discussed, there are "two ways to establish a favorable termination", one of which is the "act of withdrawal or abandonment" of the case by the prosecution, which is what Plaintiff alleges happened here. (Am. Comp. ¶ 201 ("Contemporaneously with the commencement of Hang Bin's trial, all charges against plaintiff were dismissed.").)
Second, the argument that Plaintiff has not sufficiently alleged malicious prosecution because she has not alleged facts from which it can be inferred that the criminal charges against her were dropped because she was innocent similarly lacks merit. As the New York Court of Appeals made clear in Smith-Hunter, a claim of malicious prosecution does not require that the plaintiff prove her innocence of the charges that were dropped, or even that the termination of her prosecution was indicative of innocence. 95 N.Y.2d at 195-96, 712 N.Y.S.2d 438, 734 N.E.2d 750.
Third, the Medical Center Defendants argue that the termination of Plaintiff's prosecution was an "interest of justice" dismissal and therefore does not constitute a favorable termination. However, the Court cannot make that determination at this stage, because it cannot determine the reason or reasons for the District Attorney's dismissal of the charges against Plaintiff. The Amended Complaint simply alleges that, "Defendants . . . caused plaintiff to be prosecuted with malice and without probable cause—a prosecution that terminated in plaintiff's favor. . . ."
Accordingly, the Court finds that Plaintiff has adequately alleged a favorable termination of her criminal proceedings.
The Medical Center Defendants also contend that Plaintiff's malicious prosecution claim must be dismissed because there was probable cause. (Dkt. 55 at 8.) Specifically, they assert that the Amended Complaint's factual allegations regarding Annie's condition when she arrived at FHMC and her subsequent medical test results are sufficient to establish the existence of probable cause at the time criminal proceedings were initiated against Plaintiff. (Dkt. 55 at 8) They also argue that there is a presumption of probable cause unless the indictment was procured through improper means. (Dkt. 55 at 9.) For the reasons explained below, the Court finds that Plaintiff has rebutted the presumption of probable cause, and that the facts alleged in the Amended Complaint support a plausible inference that there was no probable cause for Plaintiff's prosecution.
As an initial matter, the Court notes that probable cause for malicious prosecution is different from probable cause for false arrest. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) ("The defendants seem to conflate probable cause to arrest with probable cause to believe that [the plaintiff] could be successfully prosecuted. Only the latter kind of probable cause is at issue with respect to the malicious prosecution claim . . . ."). For a malicious prosecution claim, probable cause to prosecute consists of "facts and circumstances [that] would lead a reasonably prudent person to believe the plaintiff guilty." Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003) (citing Colon v. City of New York, 60 N.Y.2d 78, 82, 455 N.E.2d 1248, 468 N.Y.S.2d 453 (N.Y. 1983)). Probable cause to prosecute is evaluated "in light of the facts known or reasonably believed at the time the prosecution was initiated, as opposed to at the time of arrest." Drummond v. Castro, 522 F.Supp.2d 667, 677-78 (S.D.N.Y. 2007) (citations and quotation marks omitted).
A grand jury indictment "gives rise to a presumption that probable cause exists" and thereby defeats a claim for malicious prosecution. Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (quoting McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006)). "If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the
Plaintiff alleges that the indictment against her was procured by bad faith on the part of the City Defendants. Plaintiff alleges that "the Officer Defendants failed to obtain or disclose evidence inconsistent with plaintiff's guilt, did not document or inform the district attorney's office of exculpatory evidence, falsely reported facts in reports and search warrant affidavits, and fabricated oral statements of witnesses. Officers sought to strengthen their case against plaintiff in order to avoid acquittal, leading them to falsify and omit information in their reports and representations to the district attorney's office." (Am. Compl. ¶ 178; see also id. ¶ 181.) More specifically, Plaintiff alleges that "it was apparent from medical evidence that [she] was innocent." (Am. Compl. ¶ 201.) Plaintiff also alleges that Dr. Landi "enthusiastically and with commitment" sought the Lis' prosecution and conviction "despite the lack of any evidence connecting them with any crime whatsoever." (Am. Compl. ¶ 171.) The Amended Complaint further alleges that Dr. Landi misrepresented that the medical evidence conclusively showed Plaintiff's guilt. (Am. Compl. ¶ 208.)
Taking these allegations as true and given the circumstantial nature of the case against Plaintiff, which, in turn, rested almost entirely on Dr. Landi's and Dr. Kupferman's medical conclusions, the Court finds that these allegations are sufficient to rebut the presumption of probable cause created by the grand jury indictment. See Anilao v. Spota, 774 F.Supp.2d 457, 494 (E.D.N.Y. 2011) (denying defendant's motion to dismiss finding that plaintiff sufficiently overcame the presumption of probable cause by alleging that the grand jury indictment was based on falsified evidence and testimony in spite of defendant's knowledge of significant exculpatory evidence, and that the defendants agreed to present false evidence to the grand jury); McLennon, 2015 WL 1475819, at *8 (finding sufficient allegations similar to Plaintiff's allegations about Defendants procuring indictment in bad faith); see also Brandon v. City of New York, 705 F.Supp.2d 261, 273-74 (S.D.N.Y. 2010) (denying summary judgment to defendant with respect to malicious prosecution claim where jury could reasonably find that the indictment was secured through bad faith or perjury).
Accordingly, the Court finds that Plaintiff has sufficiently rebutted the presumption of probable cause.
Plaintiff also sufficiently alleges that the indictments were procured in bad faith by the Medical Center Defendants. For example, Plaintiff alleges that "Defendant FHMC and Kupferman made no efforts to seek a diagnosis other than SBS."
While the Court acknowledges that a grand jury witness is entitled to absolute immunity in Section 1983 actions, Rehberg v. Paulk, 566 U.S. 356, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012), the Second Circuit's decision in Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015), provides a clarification of this principle that is applicable to Plaintiff's malicious prosecution claim against Dr. Kupferman. In Coggins, the plaintiff was arrested and charged with various felonies based on allegations made by two officers in police paperwork and also verbally to the grand jury. 776 F.3d 108. The Second Circuit affirmed the district court's denial of absolute immunity to one of the police officers because the plaintiff's Section 1983 claims against that officer were based on alleged misconduct "prior to and independent of [the police officer's] perjurious grand jury appearance." Id. at 113 ("The fact that [the police officer's] grand jury testimony paralleled information he gave in other contexts does not mean that [plaintiff's] malicious prosecution claim was `based on' [the officer's] grand jury testimony[;] . . . [thus,] the district court properly found that absolute immunity is inappropriate.") Similarly, here, Plaintiff alleges that, separate and apart from Dr. Kupferman's grand jury testimony, the Medical Center Defendants, including Dr. Kupferman, diagnosed Annie with SBS in bad faith and provided false information about the cause of Annie's death to the prosecutor. (See Am. Compl. ¶¶ 122, 150-52.)
For the same reasons just discussed, the Court finds that the allegations in the Amended Complaint are sufficient to create a plausible inference that there was no probable cause to prosecute Plaintiff at the time she was indicted. The case against Plaintiff was almost entirely circumstantial and depended upon the accuracy of the Medical Center Defendants' determination that SBS and the failure to obtain prompt medical attention caused Annie's death. Plaintiff's allegations that both the Medical Center Defendants and the City Defendants
To plead a malicious prosecution claim, Plaintiff must also allege malice for each of the Defendants. Manganiello, 612 F.3d at 160-61. "[M]alice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff." Id. at 163; see also TADCO Const. Corp. v. Dormitory Auth. of State of New York, 700 F.Supp.2d 253, 271 (E.D.N.Y. 2010) ("Actual malice requires pleading facts that show the defendant `commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'" (citation and quotation marks omitted)); Manbeck v. Micka, 640 F.Supp.2d 351, 377 (S.D.N.Y.2009) ("Malice in this context does not have to be actual spite or hatred." (citation, internal quotation marks, and alteration omitted)); Newton v. City of New York, 566 F.Supp.2d 256, 273 (S.D.N.Y. 2008) (Malice is "a wrong or improper motive[.]" (citations and quotation marks omitted)). "[A] lack of probable cause generally creates an inference of malice." Manganiello, 612 F.3d at 163 (citation and quotation marks omitted) (emphasis added); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) ("In most cases, the lack of probable cause—while not dispositive—`tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause.'" (quoting Conkey v. State, 74 A.D.2d 998, 427 N.Y.S.2d 330, 332 (1980))).
Drawing all inferences in favor of Plaintiff, the Court finds that Plaintiff has adequately pled malice only for Det. Degnan and Dr. Landi. (Am. Compl. ¶ 145 (alleging that Degnan signed the criminal complaint knowing that its content was false and fabricated); see also Am. Compl. ¶ 150 (alleging that Dr. Landi swore under oath in the criminal complaint and made a statement that was false, perjurious, and entirely unsupported by any medical science or clinical or forensic evidence).) Plaintiff incorrectly argues that she has "plainly alleged malice" for all Defendants and directs the Court to Paragraph 215 of the Complaint. However, that paragraph is conclusory and is one of the numerous instances where Plaintiff resorts to "group pleading" against all the Defendants.
Notwithstanding Plaintiff's failure to cite to the relevant paragraphs in the Complaint, the Court finds that Plaintiff has adequately alleged malice on the part of the Medical Center Defendants. Plaintiff alleges that Defendants "arrested and imprisoned [her] despite knowing that there was no legal justification . . . in order to pressure plaintiff to testify against her husband . . . or to put pressure on plaintiff's husband to plead guilty." (Am. Compl. ¶ 196.) More specifically, Plaintiff alleges that "[d]espite lab results showing high alkaline phosphatase and low calcium, consistent with metabolic bone disesase," FHMC and Dr. Kupferman "made no effort to seek a diagnosis other than SBS." (Am. Compl. ¶ 122). Plaintiff also alleges, in describing "the interrogations and searches of [the Lis'] home by three separate squads . . . [and] forensic interrogations by several medical personnel at Flushing Hospital," that she was treated with "suspicion and unconcealed and unrestrained racism." (Am. Compl. ¶ 114.) Drawing inferences in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently alleged malice on the part of the Medical Center Defendants, based on their motives in concealing exculpatory medical evidence to enable the prosecutor's use of Plaintiff as a "bargaining chip" against Plaintiff's husband
Accordingly, the Medical Defendants' motion to dismiss the malicious prosecution claim is denied in its entirety, and the City Defendants' motion to dismiss Plaintiff's malicious prosecution claim is denied as to Det. Degnan and Dr. Landi, but is granted as to all other City Defendants.
Plaintiff also asserts a claim of abuse of process under Section 1983 against the City Defendants.
"The crux of a malicious abuse of process claim is the collateral objective element." Kraft v. City of New York, 696 F.Supp.2d 403, 416 (S.D.N.Y. 2010), aff'd, 441 Fed.Appx. 24 (2d Cir. 2011). To plead a collateral objective, a plaintiff must plausibly plead not that defendant acted with an "improper motive," but rather an "improper purpose": "[A plaintiff] must claim that [the defendant] aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution." Savino, 331 F.3d at 77.
The City Defendants argue that Plaintiff's abuse of process claim should be dismissed because the claim accrued at the time of Plaintiff's arrest, and therefore the three-year statute of limitations expired sometime around March 2011. (Dkt. 59 at 21.) The Court, however, finds that because Plaintiff could not have discovered one of the two collateral objectives she alleges until her prosecution was dismissed on January 12, 2013, her complaint in this action was timely filed.
A claim for abuse of process accrues "at such a time as the criminal process is set in motion—typically at arrest—against the plaintiff. However, accrual cannot be appropriate before such time as plaintiff is aware, or ought to be aware, of those facts providing a basis for his claim." Duamutef v. Morris, 956 F.Supp. 1112, 1118 (S.D.N.Y. 1997) (Sotomayor, J.) (citing Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989) and Singleton, 632 F.2d at 192); see also Hadid v. City of New York, No. 15-cv-19, 2015 WL 7734098, at *5 (E.D.N.Y. Nov. 30, 2015) (citing Duamutef, 956 F.Supp. at 1118). Unlike the plaintiffs in other cases, Plaintiff in this case does not even allege in the Complaint when she learned of her abuse of process claim. See, e.g., Duamutef, 956 F.Supp. at 1118-19 (finding that plaintiff's abuse of process claim was not time-barred because "[a]ccording to the allegations in [plaintiff's] Complaint, plaintiff was unaware that he was being retaliated against until September 28, 1995, when he received an affidavit detailing defendants' intention to stifle his
Here, Plaintiff alleges that Defendants had two collateral objectives for prosecuting her: (1) using her as a "bargaining chip" to get her husband to plead guilty; and (2) covering up their illegal arrest of her. (See Am. Compl. ¶ 215). While these two objectives are sufficient to state an abuse of process claim
However, Plaintiff also alleges that another purpose of her prosecution was to use her as leverage to get her husband to plead guilty. As to that collateral objective, the Court finds that Plaintiff was not reasonably aware of that possible objective until the dismissal of her case, without any effort to pursue her prosecution during the four years of her pretrial incarceration and only after her husband was convicted. It was only when Plaintiff's case was dismissed, without prosecution and following her husband's conviction, did the objective of using Plaintiff as a "bargaining chip" become clear.
The Court briefly addresses the City Defendants' two other grounds for
While the Court finds that Plaintiff has sufficiently and timely pled an abuse of process claim, she has not adequately alleged that claim as to all City Defendants. Plaintiff, again, indiscriminately group pleads her abuse of process claim against all Defendants. (See Am. Compl. ¶¶ 215-217.) As with Plaintiff's malicious prosecution claim, however, her abuse of process claim is only properly pled as to Det. Degnan and Dr. Landi. These are the only City Defendants as to whom Plaintiff has adequately pled involvement in the use of legal process, i.e., arresting and detaining Plaintiff on the basis of allegedly false or incomplete evidence, and thus these are the only Defendants as to whom the pursuit of one or both of the alleged collateral objectives could be plausibly inferred. Although the court in TADCO Const. Corp. suggested that individuals who "improperly contributed" to the plaintiff's arrest could be held liable for malicious abuse of process, there, the defendants were alleged to have directly contributed to the plaintiff's arrest. Here, while Dets. Moser, Phelan, and Heffernan are alleged to have participated in the investigation of Plaintiff's case, there is nothing in the Amended Complaint from which to infer that they participated in the actual legal process that was used against Plaintiff, i.e., her arrest and detention.
Accordingly, Defendants' motion to dismiss Plaintiff's abuse of process claim is denied as to Det. Degnan and Dr. Landi, and granted as to all other City Defendants.
The Amended Complaint asserts, as part of Plaintiff's Section 1983 claim, that all Defendants failed to intervene to prevent other Defendants from violating her constitutional rights not to be subjected to false arrest, malicious prosecution, and abuse of process. Both groups of Defendants argue for dismissal of this claim on the grounds that Plaintiff's claim is based on conclusory allegations. The Court agrees. Moreover, the Court independently
"It is widely recognized that law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). "An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official." Anderson, 17 F.3d at 557 (citations omitted). To establish a claim for failure to intervene, a plaintiff must show (1) the officer's failure "permitted fellow officers to violate [plaintiff's] clearly established statutory or constitutional rights," and (2) it was "objectively unreasonable for him to believe that his fellow officers' conduct did not violate those rights." Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (citation and quotation marks omitted). Additionally, Plaintiff must show that the officer had "a realistic opportunity to intervene to prevent the harm from occurring" but failed to do so. See Cerbelli v. City of New York, No. 99-CV-6846, 2008 WL 4449634, at *11 (E.D.N.Y. Oct. 1, 2008) (citation and quotation marks omitted).
Plaintiff's failure to intervene claim is dismissed as to all Defendants for two reasons.
Such a generalized pleading, which fails to differentiate between the Defendants, is especially problematic where, as here, Plaintiff is also alleging that Defendants are all liable under a theory of direct participation.
Accordingly, Defendants' motion to dismiss with regard to Plaintiff's failure to intervene claim is granted as to all Defendants.
Plaintiff asserts a Section 1983 conspiracy claim against all Defendants. (Am. Compl. ¶¶ 221-223.) "[T]o survive a motion to dismiss on [a plaintiff's] § 1983 conspiracy claim, [the plaintiff] must allege (1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). "[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Id. (quoting
While Plaintiff's pleading of her conspiracy claim is hardly robust, drawing all reasonable inferences in her favor, the Court finds that Plaintiff has adequately pled this claim as to Dets. Degnan, Moser, Heffernan, and Phelan, Dr. Landi, and Dr. Kupferman. The Complaint provides factual allegations that these Defendants acted jointly. For example, Plaintiff alleges that Det. Degnan was present at the autopsy of Annie that Dr. Landi performed (Am. Compl. ¶ 129) and that "Defendant Degnan and Heffernan engaged in lengthy communications with FHMC staff, including Defendant Kupferman" (Am. Compl. ¶ 108). Plaintiff also alleged that Dr. Kupferman joined Dets. Heffernan and Moser in screaming at her during an investigation (Am. Compl. ¶ 115) and that Dr. Landi "made her determination largely based on the evidence presented to her by" Dr. Kupferman and other City Defendants (Am. Compl. ¶ 152). Moreover, Plaintiff alleges that Det. Phelan and Det. Degnan together interrogated the Lis, and participated in the early stages of investigating Plaintiff's criminal case. (See, e.g., Am. Compl. ¶¶ 102-104, 106, 110.)
Pointing to Plaintiff's allegations in paragraphs 157 and 158 that Dr. Kupferman acted "as a deputy of the NYPD and the Queens County D.A.'s office," the Medical Center Defendants argue that they are "legally incapable of conspiring" with the City Defendants under the intra-corporate conspiracy doctrine. (See Dkt. 55 at 11-12.) Plaintiff responds that she has adequately pled facts to support this claim
Under the intra-corporate conspiracy doctrine, "there is no conspiracy if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own directors, officers, and employees, each acting within the scope of his employment." Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (citation omitted). While the Court must accept the factual allegations
Accordingly, the City Defendants' motion to dismiss Plaintiff's conspiracy claim is denied as to Dets. Degnan, Moser, Heffernan, and Phelan, and Dr. Landi, but granted as to all other City Defendants; the Medical Center Defendants' motion to dismiss Plaintiff's Section 1983 conspiracy claim is denied.
Plaintiff also asserts a Section 1983 claim for unreasonably prolonged detention in violation of her Fourth Amendment rights. (Am. Compl. ¶¶ 225-229.) Specifically, Plaintiff alleges that Defendants' mishandling, concealing, and suppressing of exculpatory evidence, and their intimidation and coercion of witnesses, caused her unreasonably prolonged detention. (Id. (citing Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007).).)
Unreasonably prolonged pretrial detention where exculpatory evidence is readily available can form the basis of a Section 1983 claim against police officers as a violation of the Fourth Amendment's protection against unreasonable seizures. Russo, 479 F.3d at 208-09. To state such a claim, Plaintiff must allege that (1) she has a right to be free from continued detention stemming from law enforcement officials' mishandling or suppression of exculpatory evidence, (2) the actions of the officers violated that right, and (3) the officers' conduct "shocks the conscience." Russo, 479 F.3d at 205 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). In Russo, the Second Circuit considered the following three factors in determining whether the plaintiff's detention was excessive in violation of the Fourth Amendment: (1) the length of time the plaintiff was incarcerated; (2) the ease with which the exculpatory evidence in the officers' possession could have been checked; and (3) the alleged intentionality of the defendants' behavior. Id. at 209.
Applying these standards, the Court finds that Plaintiff has adequately alleged an unreasonably prolonged detention claim against some of the City Defendants, but
The City Defendants argue that this claim should be dismissed because (1) Plaintiff only recites the elements of the cause of action, and (2) Plaintiff cannot allege the third element, i.e., that the alleged conduct "shocks the conscience", because the exculpatory evidence at issue is not equivalent to the exculpatory evidence in Russo.
First, the Court disagrees with the City Defendants' contention that Plaintiff only recites the elements of unreasonably prolonged detention and nothing more. In the Amended Complaint, Plaintiff alleges that she was held at Riker's Island Jail for about four years (Am. Compl. ¶¶ 180, 234), and that Defendants "disregarded plainly exculpatory evidence" (Am. Compl. ¶ 173), "failed to . . . disclose evidence inconsistent with plaintiff's guilt" (Am. Compl. ¶ 182), and mishandled and suppressed "exculpatory . . . evidence" (Am. Compl. ¶ 225). Had Plaintiff only alleged this, her claim would have been conclusory. However, Plaintiff provides specifics regarding these broad allegations. For example, she alleges that Defendants mishandled evidence that "Annie's injuries could have been caused by osteogenesis imperfecta or other natural causes" (Am. Compl. ¶ 137), and that Dr. Landi's statement was "entirely. . . unsupportable by any medical science" (see Am. Compl. ¶ 150). She also alleges that Dr. Landi withheld exculpatory evidence (Am. Compl. ¶ 154), falsely "swore under oath in the criminal complaint" that the Lis could have prevented Annie's death by getting her prompt medical attention the night she died (Am. Compl. ¶ 150), and "ignored signs of rib anterior flaring, and [the need for] any kind of thorough eye [sic] exam for eyes, or bones." (Am. Compl. ¶ 152.) To the extent that Dets. Degnan, Moser, Phelan, and Heffernan took an active role in investigating the Lis, the Court can infer that any exculpatory evidence concealed by Dr. Landi was also known by these Officer Defendants. From these allegations, the Court can plausibly infer that these City Defendants failed to disclose medical evidence that would have contradicted Dr. Landi's diagnosis and thus suppressed evidence that would have exculpated Plaintiff sooner.
Second, the Court disagrees with the City Defendants' contention that the exculpatory evidence in this case—i.e., that Annie could not have been saved even if medical care was sought out sooner or that she died due to a condition other than SBS—is not equivalent to the definitive and conclusive exculpatory evidence contemplated by the Second Circuit in Russo. (Dkt. 59 at 25.) The failure to obtain or disclose evidence that is only arguably exculpatory does not shock the conscience. See, e.g., Wilson v. City of New York, 480 Fed.Appx. 592, 595 (2d Cir. 2012) (summary order) (distinguishing Russo because the evidence in Wilson was conflicting and some of the testimonial evidence at issue identified the defendant as an accomplice to the charged crime). In Russo, the exculpatory evidence at issue was a video surveillance tape that showed the perpetrator of the robbery in question without tattoos on his arms; Russo, who was arrested for the robbery, had distinctive tattoos covering his arms and repeatedly alerted the defendant-officers that the surveillance video would establish his innocence. Id. at 200. Here, the exculpatory evidence that Plaintiff alleges was concealed is the absence of any medical support for the charge that she caused Annie's death by SBS. (Id. ¶¶ 150, 135 (asserting that charge of SBS was "entirely . . . unsupportable by any medical science," that the "there was no evidence, and no reasonable basis to believe, that plaintiff had any time
Accordingly, the City Defendants' motion to dismiss Plaintiff's unreasonably prolonged detention claim is denied as to Dets. Degnan, Moser, Phelan, and Heffernan, and Dr. Landi, but granted as to all other City Defendants.
The Medical Center Defendants contend that Plaintiff cannot state a claim for unreasonably prolonged detention against Dr. Kupferman because that claim can only be brought against law enforcement officers. (Dkt. 55 at 12.) Plaintiff, citing no legal authority, argues that the Second Circuit's holding in Russo should be extended to non-law-enforcement officials. (Dkt. 66 at 19.) Plaintiff also argues that as long as the defendant acted under color of state law, that defendant is subject to an unreasonably prolonged detention claim recognized by the court in Russo. The Court disagrees with Plaintiff's overly expansive and unsupported reading of Russo.
In Russo, the Second Circuit specifically stated that a plaintiff has a right to be free from prolonged detention "stemming from law enforcement officials' mishandling or suppression of exculpatory evidence . . . ." See Russo, 479 F.3d at 205 (emphasis added). Indeed, all three prongs of the test for determining whether an unreasonably prolonged detention has occurred expressly references conduct by a law enforcement officer. See id. There is nothing in Russo or any case applying Russo that suggests that non-State individuals or entities can be held liable for unreasonably prolonged detention. See, e.g., Jackson v. City of New York, 29 F.Supp.3d 161, 178 (E.D.N.Y. 2014) ("Russo has been narrowly construed to involve situations where a law enforcement official has mishandled or suppressed readily available exculpatory evidence . . . ."); Harewood v. Braithwaite, 64 F.Supp.3d 384, 401-03 (E.D.N.Y. 2014); Thompson v. City of New York, 603 F.Supp.2d 650, 656 (S.D.N.Y. 2009); Wilson v. City of New York, 480 Fed.Appx. 592, 594-95 (2d Cir. 2012) (summary order); Nelson v. Hernandez, 524 F.Supp.2d 212, 224-25 (E.D.N.Y. 2007). Nor does Plaintiff cite any such case law.
Under the Due Process Clause of the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. This prohibition applies to municipalities. See Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004) (stating that the Fourteenth Amendment due process right applies only to government entities whose action may be fairly attributed to the State).
The Due Process Clause was "intended to secure the individual from the arbitrary exercise of the powers of government." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (quoting Hurtado v. California, 110 U.S. 516, 527, 4 S.Ct. 292, 28 S.Ct. 232 (1884)). Procedural due process requires that government action depriving an individual of substantial interest in life, liberty, or property "be implemented in a fair manner." United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Substantive due process, as recognized by the Supreme Court, bars "certain government actions regardless of the fairness of the procedures used to implement them," in order to "prevent governmental power from being used for purposes of oppression." Daniels, 474 U.S. at 331, 106 S.Ct. 662 (citation and quotations marks omitted); McClary v. O'Hare, 786 F.2d 83, 88 (2d Cir. 1986). "In other words, while a procedural due process claim challenges the procedure by which [deprivation of liberty] is effected, a substantive due process claim challenges the `fact of the [deprivation'] itself." See Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012) (alteration in original omitted) (differentiating a procedural due process claim from a substantive due process claim); see also Kerry v. Din, ___ U.S. ___, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015) ("[T]here are two categories of implied rights protected by the Due Process Clause: really fundamental rights, which cannot be taken away at all absent a compelling state interest; and not-so-fundamental rights, which can be taken away so long as procedural due process is observed.").
The Court interprets Plaintiff's due process claim, set forth in her seventh cause of action, to be based on the alleged (1) concealment of exculpatory evidence, i.e., a Brady violation (Am. Compl. ¶¶ 232-233), (2) fabrication of evidence (id.), (3) failure to investigate (Am. Compl. ¶ 235), (4) violation of the right to a speedy trial (Am. Compl. ¶ 234), and (5) violation of the right to be treated with dignity during her pretrial detention (¶ 236). While Plaintiff does not clearly articulate which due process claims are procedural and which are substantive, the Court interprets the first two claims, regarding the mishandling of evidence, to be procedural
A procedural due process violation occurs when the government deprives a person of a protected life, liberty, or property interest without first providing notice and an opportunity to be heard. See B.D. v. DeBuono, 130 F.Supp.2d 401, 432-33 (S.D.N.Y. 2000). "To determine whether a Section 1983 due process claim is plausibly alleged, the Court evaluates the sufficiency of the allegations with respect to the liberty or property interest alleged and the process due before deprivation of that interest." Norton v. Town of Islip, 97 F.Supp.3d 241, 266 (E.D.N.Y. 2015); see also Ciambriello, 292 F.3d at 313.
Here, Plaintiff has asserted Section 1983 due process claims that are often referred to as fair trial claims. "A fair trial claim is a civil claim for violations of a criminal defendant's Fourteenth Amendment due process rights." Fappiano v. City of New York, 640 Fed.Appx. 115, 118 (2d Cir. 2016) (citing Ramchair v. Conway, 601 F.3d 66, 73 (2d Cir. 2010)). A defendant's right to a fair trial is violated when exculpatory evidence is withheld, i.e., when a Brady violation occurs (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), and also when an officer forwards fabricated evidence to prosecutors, Ricciuti, 124 F.3d at 130. "A plaintiff need not have gone to a full trial on the merits in order to have an actionable Section 1983 claim based on the denial of a fair trial." Marom v. City of New York, No. 15-CV-2017, 2016 WL 916424, at *9 (S.D.N.Y. Mar. 7, 2016); see Ricciuti, 124 F.3d at 127 (plaintiffs who brought a Section 1983 claim for right to a fair trial had their criminal charges dismissed pretrial).
The Court finds that Plaintiff has adequately alleged fair trial claims against Dets. Degnan, Moser, Phelan, and Heffernan, Dr. Landi, and the Medical Center Defendants.
The Supreme Court held that a prosecutor violates a criminal defendant's due process right when the prosecutor fails to disclose favorable material to the defendant, "irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194; see also Poventud v. City of New York, 750 F.3d 121, 155 (2d Cir. 2014) ("[T]he constitutional right defined by Brady . . . is the criminal defendant's procedural due process right to the disclosure of `evidence that is material to his guilt or punishment.'") (quoting Cone v. Bell, 556 U.S. 449, 469, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009)). Police officers also "can be held liable for Brady due process violations under § 1983 if they withhold exculpatory evidence from prosecutors." Bermudez v. City of New York, 790 F.3d 368, 376 n.4 (2d Cir. 2015).
"A classic Brady violation contains three elements: `The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Fappiano v. City of New York, 640 Fed.Appx. 115, 118 (2d Cir. 2016) (summary order) (quoting United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004)). "To establish prejudice, a plaintiff must show the evidence was material; i.e., whether the `evidentiary suppression undermines confidence in the outcomes of the trial.'" Id. at 118 (quoting Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir. 2001)).
Here, Plaintiff has sufficiently pled her Brady violation claim against Dets. Degnan, Moser, Phelan, and Heffernan, Dr. Landi, and Dr. Kupferman.
Separate from her malicious prosecution claim, Plaintiff alleges a procedural due process violation based on Defendants' alleged fabrication of evidence. (See Am. Compl. ¶ 233.)
To state a claim of fabrication of evidence, a plaintiff must allege that "an (1) investigating official (2) fabricat[ed] information (3) that is likely to influence a jury's verdict, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result." Garnett v. Undercover Officer C0039, 838 F.3d 265, 280 (2d Cir. 2016).
The City Defendants assert that Plaintiff's fabrication of evidence claims should be dismissed for three reasons: (1) none of the City Defendants could have possibly fabricated the SBS medical evidence, and the Complaint does not credibly allege that Dr. Landi "fabricated" evidence of SBS; (2) ADA Bishop is absolutely immune from the claims; and (3) the claims are time-barred, because Plaintiff was always aware of her theory that Annie died from a genetic disorder and not from any action taken by Plaintiff or her husband. (Dkt. 59 at 27-28.) Plaintiff provides a somewhat haphazard analysis in response and argues, "[Det.] Degnan states `that he was informed by Dr. Landi that earlier medical attention for the complainant could have resulted in the complainant's survival, and that the lack of immediate medical attention contributed to the complainant's death' . . . . Whether such a statement was fabricated is discoverable." (Dkt. 61 at 25 (citing Plaintiff's Exhibit B, Criminal Court Complaint in People v. Ying Li)). Notwithstanding Plaintiff's cursory response to the City Defendants' arguments, the Court finds that Plaintiff has adequately alleged a plausible claim of fabrication of evidence against Dets. Degnan, Moser, Heffernan, and Phelan, and Dr. Landi.
Although Plaintiff fails to identify the relevant paragraphs of the Amended Complaint, except for Paragraph 233, the Amended Complaint does contain allegations of fact that support her fabrication of evidence claim with regard to these City Defendants. (See Am. Compl. ¶¶ 145, 146, 150, 160, 178.) Specifically, Plaintiff alleges that Det. Degnan signed the criminal court complaint in spite of his knowing that its content was not true (Am. Compl. ¶ 145), that Plaintiff was arraigned based on the fabricated information Defendants forwarded to the District Attorney's Office (Am. Compl. ¶ 146), and that Defendants "falsely reported facts in reports and search warrant affidavits, and fabricated oral statements of witnesses." (Am. Compl.
As previously discussed (see supra Sections X.A.1), Plaintiff has alleged that Dr. Kupferman ignored evidence suggesting that Annie's death was not caused by SBS and provided false information to Dr. Landi, who based her conclusions on that false information.
Although the Medical Center Defendants argue that "the [Amended] Complaint does not contain an allegation regarding violation of plaintiff's right to a fair trial" (see Dkt. 56 at 10), the Court disagrees, given the numerous allegations of fabrication of evidence and Dr. Kupferman's alleged failure to consider Annie's lab results that were consistent with metabolic bone disease. (See Am. Compl. ¶¶ 122, 145, 146, 150, 178, 232, 233.) Even though, as the Medical Center Defendants point out, the Amended Complaint does not specifically mention the Fifth Amendment, the Court finds that the factual allegations in the complaint have given the Medical Center Defendants sufficient notice of this claim.
Having found that Plaintiff adequately pled both her Brady violation and fabrication of evidence claim against the City Defendants and the Medical Center Defendants, the Court turns to those Defendants' argument that these claims are time-barred (see Dkt. 59 at 28). The City Defendants contend that Plaintiff's fair trial claim accrued at the time of her arrest because "she was always aware of her theory that her baby died from a genetic disorder and not any action taken by plaintiff or her husband." (Id.) In response to this argument, Plaintiff simply states, without citing any legal authority, that her procedural due process claim is not time barred because "Federal equitable tolling standards should apply." (Dkt. 61 at 25.) Plaintiff makes no other argument. Notwithstanding Plaintiff's inadequate response, the Court finds the City Defendants' argument unpersuasive.
Fabrication of evidence claims accrue "when the plaintiff learns that evidence was fabricated and an injury was
Here, the Court finds that the City Defendants have not established that Plaintiff knew all along that she had Brady violation and fabrication of evidence claims simply because she believed in her innocence; the City Defendants' contrary assertion is too sweeping. At a January 2, 2013 status conference, Plaintiff learned that ADA Bishop moved to dismiss the criminal charges against Plaintiff because Dr. Kupferman informed ADA Bishop that Annie's brain injuries were so severe that immediate medical intervention would likely not have saved her. (See Dkt. 63 at Ex. F at ECF 6.) Therefore, it is plausible to infer that in January 2013 Plaintiff specifically learned that she might have a fabrication of evidence claim against the City Defendants based on Dr. Landi's earlier contrary assessment of how Plaintiff was responsible for Annie's death, in part, because Plaintiff failed to get medical attention for her daughter quickly enough. See Mitchell v. Home, 377 F.Supp.2d 361, 373 (S.D.N.Y. 2005) ("[A] fair trial claim premised on fabrication of evidence accrues when the plaintiff learns or should have learned that the evidence was fabricated and such conduct causes the claimant some injury[.]") (citing Veal v. Geraci, 23 F.3d 722, 724-25 (2d Cir. 1994)); see also Bailey v. City of New York, 79 F.Supp.3d 424, 444 (E.D.N.Y. 2015) (same).
As for Plaintiff's Brady violation claim, the Court cannot assess when it was that the claim could have plausibly accrued because Plaintiff does not specifically allege what exculpatory evidence the City Defendants concealed. However, because the City Defendants have the burden of establishing that the statute of limitations has expired, and in light of the cursory argument put forth by the City Defendants, the Court denies the City Defendants' motion to dismiss Plaintiff's fair trials claims on statute of limitations grounds with respect to Dets. Degnan, Moser, Phelan, Heffernan, and Dr. Landi. For the reasons previously discussed, the Medical Center Defendants' motion to dismiss Plaintiff's fair trials claims against them is also denied.
"[D]ue process protection in the substantive sense limits what the government may do in both its legislative, and its executive capacities . . . ." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Rochin v. California, 342 U.S. 165, 72 S.Ct. 205,
Against the Medical Center Defendants and Dr. Landi, Plaintiff asserts a claim best characterized as a claim of failure to investigate, in violation of Plaintiff's substantive due process rights. (See Am. Compl. ¶ 235; see also Dkt. 66 at 20.)
Both groups of Defendants contend that all of Plaintiff's substantive due process claims are solely based on Plaintiff's Fourth Amendment claims of false arrest, malicious abuse of process, and conspiracy, and thus are duplicative of her Fourth Amendment claims and should be dismissed. (See Dkt. 55 at 14; Dkt. 56 at 10; Dkt. 59 at 26.) Plaintiff responds that "the Fourth Amendment does not `cover a cause of action for government abuse of process in the investigation or pursuit of a suspect', and that she therefore has a separate, standalone substantive due process claim against certain Defendants for failing to investigate other explanations for Annie's death before concluding that she died from SBS. (Dkt. 66 at 20 (citing Russo v. City of Hartford, 184 F.Supp.2d 169, 184 (D. Conn. 2002)).)
"The right [to be free from arbitrary government action,] to the extent it exists, is the right to be free of arbitrary
Accordingly, both the City Defendants' and the Medical Center Defendants' motions to dismiss Plaintiff's substantive due process claim based on a failure to investigate are granted.
Plaintiff also alleges that she was denied a speedy trial, in violation of her right under the speedy trial clause of the Sixth Amendment. (See Am. Compl. ¶ 234.) The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. Specifically, Plaintiff alleges that she was held for more than four years in pretrial detention and that all Defendants encouraged this for the purpose of using Plaintiff's confinement as a bargaining chip to pressure her husband to plead guilty. (Am. Compl. ¶ 234.)
The Medical Center Defendants argue that Plaintiff failed to allege, other than in conclusory fashion, the causation element of this claim with respect to the Medical Center Defendants. (See Dkt. 55 at 14.) The Court agrees.
The City Defendants do not discuss Plaintiff's speedy trial claim in their briefing. In any event, the Court finds that Plaintiff's allegations that Defendants sought to use her as a "bargaining chip" to obtain a guilty plea from her husband, coupled with the four-year delay in her case being resolved and her case being dismissed shortly after her husband's conviction, is sufficient to state a speedy trial claim as to the City Defendants who were involved in her prosecution.
Accordingly, the Court denies the City Defendants' motion to dismiss Plaintiff's speedy trial claim as to Dets. Degnan, Moser, Phelan, Heffernan, and Dr. Landi, but grants the Medical Center Defendants' motion to dismiss this claim as to them.
Plaintiff also alleges that certain conditions of confinement violated her substantive and procedural due process rights. (Am. Compl. ¶ 236.)
Only the Medical Center Defendants discuss this claim; they assert that their conduct did not proximately cause Plaintiff's condition of detention. (See Dkt. 55 at 14.) Not only does Plaintiff fail to respond to this argument, she does not discuss this claim at all, and therefore abandons it. See deVere Grp. GmbH v. Op. Corp., 877 F.Supp.2d 67, 70 n.3 (E.D.N.Y. 2012) ("Because plaintiff did not address defendants' motion to dismiss with regard to this claim, it is deemed abandoned and is hereby dismissed.") (quoting Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 723 (S.D.N.Y. 2005)); Harley v. City of New York, 14-CV-5452, 2016 WL 552477, at *7 (E.D.N.Y. Feb. 10, 2016) (finding plaintiff's claims abandoned where plaintiff's response to motion to dismiss "did not dispute, and in fact wholly ignore[d],
In any event, the Medical Center Defendants are correct. Plaintiff's claim of unconstitutional conditions of confinement must be dismissed as to all Defendants because the Amended Complaint does not allege any facts establishing the personal involvement of any Defendant with respect to those conditions. See Spavone, 719 F.3d at 135; Johnson v. Barney, 360 Fed.Appx. 199, 201 (2d Cir. 2010) (summary order) (finding that plaintiff's claim failed "as a matter of law" where plaintiff failed to allege sufficient personal involvement on the part of the prison superintendent); Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (dismissing claim against Department of Correctional Services ("DOCS"), where plaintiff had argued that DOCS violated her constitutional rights by arresting her for non-compliance with her post-release supervision ("PRS"), since "the practice of re-incarcerating persons who violated their administratively-imposed PRS was a practice of the Division of Parole, and not of [DOCS]").
Accordingly, the Court grants the Medical Center Defendants' motion to dismiss Plaintiff's conditions of confinement claim as to them. The Court also dismisses that claim sua sponte as to the City Defendants since there are no factual allegations in the Amended Complaint that support such a claim as to these Defendants. See, e.g., Barreto v. Suffolk Cnty., No. 10-CV-0028, 2010 WL 301949, at *2 (E.D.N.Y. Jan. 20, 2010) ("When a complaint fails to comply with the requirements of Rule 8, district courts have the authority to dismiss the complaint sua sponte." (citing Salahuddin v. Cuomo, 861 F.2d 40, 41 (2d Cir. 1988))); LeBarron v. Warren Cnty. Sheriff's Office, No. 1:13-CV-1572, 2015 WL 2248749 (N.D.N.Y. May 13, 2015) (sua sponte dismissing plaintiff's claim where the claim failed to allege facts plausibly suggesting personal involvement of individual defendants even though the defendants did not raise a lack-of-personal-involvement challenge to the claim); Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district courts have power to sua sponte dismiss complaints "in order to preserve scarce judicial resources").
Plaintiff asserts a Monell claim against the City based on her Section 1983 claims for false arrest, malicious prosecution, and violation of right to a fair trial, alleging a theory of "deliberate indifference"
A municipality may be liable under Section 1983 if a municipal "policy or custom" causes "deprivation of rights protected by the Constitution." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012). For a Monell claim to survive a motion to dismiss, a plaintiff must allege "sufficient factual detail" and not mere "boilerplate allegations" that the violation of the plaintiff's constitutional rights resulted from the municipality's custom or official policy. Plair v. City of New York, 789 F.Supp.2d 459, 469 (S.D.N.Y. 2011) (collecting cases). "A policy or custom may be established by any of the following: (1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials with decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom through which constructive notice is imposed upon policymakers; or (4) a failure by policymakers to properly train or supervise their subordinates, such that the policymakers exercised `deliberate indifference' to the rights of the plaintiff." Moran v. Cnty. of Suffolk, No. 11 Civ.3704, 2015 WL 1321685 (E.D.N.Y. Mar. 24, 2015) (citing Parker v. City of Long Beach, 563 Fed.Appx. 39 (2d Cir. 2014), as amended, (Apr. 21, 2014) (failure to train); Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Hines v. Albany Police Dep't, 520 Fed. Appx. 5, 7 (2d Cir. 2013) (actions of policymakers); Schnitter v. City of Rochester, 556 Fed.Appx. 5, 8 (2d Cir. 2014) (failure to train or supervise); Missel v. Cnty. of Monroe, 351 Fed.Appx. 543, 545 (2d Cir. 2009) (formal policy and act of a person with policymaking authority for the municipality)).
Here, Plaintiff advances two theories of municipal liability. First, Plaintiff asserts that the City has a custom of zealously promoting "debated science", here, the diagnosis of SBS. (Dkt. 61 at 26-27.) Second, Plaintiff asserts that the City failed to train its employees, especially child abuse detectives, regarding SBS cases. (Dkt. 61 at 29, 30).
Plaintiff has alleged that "the NYPD and their precinct(s) and/or the OCME [Office of Chief Medical Examiner of the City of New York] . . . [r]outinely conclude[ed] that Shaken Baby Syndrome is responsible for many infant fatalities despite the absence of evidence necessary to make such a finding." (Am. Compl. ¶ 243a.)
Plaintiff brings a "Monell-type" claim
While Plaintiff's pleading of a Monell-type claim against FHMC is largely based on conclusory allegations,
Accordingly, FHMC's motion to dismiss Plaintiff's Monell claim against it is denied.
Plaintiff also argues that FHMC should be held liable under the doctrine of respondeat superior and therefore Plaintiff need not show that a violation of Plaintiff's constitutional rights by FHMC's employees was due to a policy or custom. (Dkt. 66 at 21-22.) However, the doctrine of respondeat superior is not available to render a supervisor liable under Section 1983 for the unconstitutional conduct of his subordinates. Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) ("[U]nder § 1983, local governments are responsible only for `their own illegal acts.' . . . They are not vicariously liable under § 1983 for their employee's actions."). In Connick, the Supreme Court unequivocally stated that respondeat superior cannot be applied either to superiors or to local government entities. See id.; Monell, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (holding that Section 1983's language demands a causal relationship between the conduct of the defendant and the plaintiff's constitutional deprivation, and that this relationship is absent when liability is imposed solely on the basis of respondeat superior). In Rojas, the Second Circuit extended Monell to Section 1983 suits against private entities. 924 F.2d 406. And just as a municipal entity cannot be held liable under respondeat superior, a private corporation cannot be held liable under respondeat superior for the allegedly unconstitutional conduct of its employee. Green v. City of New York, 465 F.3d 65 (2d Cir. 2006) (citing Rojas, 924 F.2d at 408); see also Feder v. Sposato, No. 11-CV-193, 2014 WL 1801137, at *10 (E.D.N.Y. May 7, 2014) (noting that under Rojas a plaintiff must prove an official policy that caused a constitutional tort rather than relying on respondeat superior theory).
Plaintiff's tenth claim against all Defendants alleges violation of Plaintiff's rights under the New York State Constitution to be free of unreasonable and unlawful searches and seizures under Article I, Section 12 and to be free of deprivation of liberty and property without due process of law under Article I, Section 6. (Am. Compl. ¶¶ 270-275.)
Plaintiff's State constitution claims must be dismissed because "[d]istrict courts in this circuit have consistently held that there is no private right of action under the New York State Constitution where, as here, remedies are available under § 1983." Campbell v. City of N.Y., No. 09-CV-3306, 2011 WL 6329456, at *5 (E.D.N.Y. Dec. 15, 2011) (citation and quotation marks omitted); see also Biswas v. City of New York, 973 F.Supp.2d 504, 522 (S.D.N.Y. 2013) (dismissing plaintiff's State constitutional tort claims of unlawful seizures and arrest because the plaintiff had a remedy at common law for false arrest/false imprisonment and a § 1983 claim based on the same grounds and stating that "the state constitutional tort is usually available only in cases in which a plaintiff . . . has no alternative remedy."); see also Wahad v. F.B.I., 994 F.Supp. 237, 240 n.4 (S.D.N.Y. 1998) ("Section 1983 need not provide the exact same standard of relief in order to provide an adequate remedy").
Here, Plaintiff has a remedy based on Section 1983. Furthermore, Plaintiff has asserted the same due process claim under Section 1983, making Plaintiff's State constitutional claim duplicative. Accordingly, Defendants' motion to dismiss Plaintiff's State constitutional claim is granted.
District courts "are encouraged to determine the availability of an absolute immunity defense at the earliest appropriate stage." Norton v. Town of Brookhaven, 33 F.Supp.3d 215, 229 (E.D.N.Y. 2014) (citation and quotation marks omitted), reconsidered on other grounds, 47 F.Supp.3d 152 (E.D.N.Y. 2014). ADA Bishop claims absolute immunity from liability for her prosecutorial actions (Dkt. 59 at 15). See Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (defendant claiming absolute immunity bears burden of showing that immunity doctrine applies).
Prosecutors performing core prosecutorial functions are entitled to absolute immunity. See Warney v. Monroe Cnty., 587 F.3d 113, 120 (2d Cir. 2009) (citing Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). They are entitled to absolute immunity "because their prosecutorial activities are `intimately associated with the judicial phase of the criminal process, and thus [are] functions to which the reasons for absolute immunity apply with full force.'" Cornejo, 592 F.3d at 127 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984) (modification in the original). Prosecutorial functions protected by absolute immunity include conduct "preliminary to the initiation of a prosecution," such as "whether to present a case to a grand jury . . . whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present." Giraldo,
Plaintiff argues that ADA Bishop's conduct was administrative and investigatory in nature. (See Dkt. 61 at 15-17.) In support of this argument, Plaintiff notes that ADA Bishop "was an initial point of contact for the hospital, and had been in communications with its staff [and] had investigators . . . from the DA's Office involved . . . ." (Id. at 16.) However, none of this is alleged in the Complaint, and Plaintiff does not direct the Court to any relevant portion of the Complaint in support of these assertions. Moreover, because information from FHMC staff was crucial to the prosecution of the Lis, ADA Bishop's communications with them are considered part of the prosecutorial process. See, e.g., Schnitter v. City of Rochester, 556 Fed. Appx. 5 (2d Cir. 2014) (summary order) (finding ADA's interview of crucial witness to be a core part of the prosecutorial process).
Plaintiff's other allegations regarding ADA Bishop also relate to prosecutorial functions. Plaintiff alleges that ADA Bishop "failed to examine the medical reports and ask relevant questions as to [Annie's medical] history" (Am. Compl. ¶ 169), and also "ignored evidence . . . and [the] absence of witnesses" (Am. Compl. ¶ 174). However, these allegations "amount[ ] to the claim that [ADA Bishop] sought an indictment based on insufficient or unpersuasive evidence[,] . . . [thus challenging] an essential prosecutorial decision." Schnitter, 556 Fed.Appx. at 7. Moreover, a prosecutor is entitled to absolute immunity even in the face of allegations of "deliberate withholding of exculpatory information" or "his knowing use of perjured testimony." Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005) (citing Imbler, 424 U.S. at 431 n.34, 96 S.Ct. 984); see also Warney v. Monroe Cnty., 587 F.3d 113, 125 (2d Cir. 2009) ("[I]f the prosecutors had tested all the evidence, and then sat on the exculpatory results for at least 72 days, they may well have violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); but they would be absolutely immune from personal liability"). Thus, absolute immunity applies even though Plaintiff alleges that ADA Bishop "concealed evidence" (Am. Compl. ¶ 175) and "misrepresented facts" (Am. Compl. ¶ 208).
To the extent that Plaintiff's claims are asserted against ADA Bishop in her official capacity, they are barred because Bishop acted on behalf of New York State, which is immune under the Eleventh Amendment. See Caldwell v. James, 14-CV-5384, 2015 WL 427980, at *3 (E.D.N.Y. Jan. 30, 2015) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against
Accordingly, Plaintiff's claims against ADA Bishop are dismissed with prejudice.
The City Defendants also contend that the Officer Defendants are entitled to qualified immunity as to Plaintiff's Fourth Amendment claims of false arrest and malicious prosecution.
"Qualified immunity shields law enforcement officers from § 1983 claims for money damages provided that their conduct does not violate clearly established constitutional rights of which a reasonable person would have been aware." Barboza v. D'Agata, 676 Fed. Appx. 9, 21, 2017 WL 214563, at *2 (summary order) (2d Cir. 2017) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Zalaski v. City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013)). It is an affirmative defense as to which the defendant officers or officials bear the burden of proof. Harlow, 457 U.S. at 815, 102 S.Ct. 2727.
In analyzing the applicability of qualified immunity, courts conduct a two-step analysis: "First, do the facts show that the officer's conduct violated plaintiff's constitutional rights? Second, if there was a constitutional violation, was the right clearly established at the time of the officer's actions?" Barboza, 676 Fed. Appx. at 12, 2017 WL 214563, at *2 (citation omitted); Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In short, "[e]ven if the right at issue was clearly established in certain respects, ... an officer is still entitled to qualified immunity if `officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Barboza, 676 Fed. Appx. at 12, 2017 WL 214563, at *2 (emphasis in original) (quoting Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)). Moreover, courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236, 129 S.Ct. 808.
At this juncture, the Court cannot find that the Officer Defendants are entitled to qualified immunity, especially where Plaintiff's theory of liability is based on the alleged fabrication of evidence and suppression of exculpatory evidence. (See, e.g., Am. Compl. ¶ 145 (with respect to malicious prosecution claim, stating that a criminal complaint containing false information was signed with knowledge that there was no legal basis to prosecute Plaintiff); Am. Compl. ¶ 222 (with respect
Based on these allegations, Plaintiff has sufficiently demonstrated potential violations of her constitutional right to be free from prosecution based on fabricated or suppressed exculpatory evidence. Those rights were clearly established at the time of her prosecution and pretrial detention, such that no reasonable officer could believe that fabricating evidence or suppressing exculpatory evidence is constitutional. See Coggins v. Cnty. of Nassau, 988 F.Supp.2d 231, 245, n.8 (E.D.N.Y. 2013) ("It is beyond cavil that [ ] conspiring to and actually falsifying police records, evidence, and testimony violates clearly established rights.... and [ ] no public official would think it was objectively reasonable to violate those rights."); see also Coggins, 776 F.3d 108 (affirming the district court's conclusion that qualified immunity was inappropriate); Blake v. Race, 487 F.Supp.2d 187, 214 (E.D.N.Y. 2007) ("The [Second Circuit] found qualified immunity unavailable because conspiring to fabricate and forward to prosecutors a known false confession `violates an accused's clearly established constitutional right, and no reasonably competent police officer could believe otherwise.'") (quoting Ricciuti, 124 F.3d at 130); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) ("The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right.").
The City Defendants assert that the Officer Defendants are entitled to qualified immunity because a police officer who signs a supporting deposition under penalty of perjury may be entitled to qualified immunity from a malicious prosecution claim if he reasonably relied on the statement of a witness. See, e.g., Jean-Laurent v. Bowman, 2014 WL 4662221, at *4 (citing Loria v. Gorman, 306 F.3d 1271, 1289-90 (2d Cir. 2002)). However, because Plaintiff contends that Dr. Kupferman's and Dr. Landi's diagnoses of Annie's condition and the cause of her death were "entirely unsupported and unsupportable by any medical science or clinical or forensic evidence" (see Am. Compl. ¶¶ 150, 160), the Court cannot determine at this point whether it was reasonable for the officers—some of whom are members of the NYPD Child Abuse Squad—to rely on the statements of witnesses, such as Dr. Kupferman or Dr. Landi. Moreover, Plaintiff alleges that the Officer Defendants (and Dr. Kupferman) ignored her claims of innocence out of "unconcealed and unrestrained racism" (Am. Compl. ¶ 114), and that this led to her arrest and prosecution. No reasonable officer would believe seeking arrest and prosecution based on such improper motives was constitutional.
Additionally, in support of their argument, the City Defendants cite to V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010). Although V.S. may seem similar to the instant case, the two are distinguishable in that the "reasonably objective" decision made by the defendants in V.S. was in a very different circumstance from the challenged conduct of the Officer Defendants here. In V.S., the Second Circuit held that a caseworker at the New York City Administration of Child Services was entitled to qualified immunity because she sought a court order permitting the removal of a child from the parent. Id. at 431. On summary judgment, the district court found that qualified immunity could not be granted given the plaintiff's allegation that the caseworker had relied on a diagnosis
Here, in determining whether the officers reasonably believed that there was probable cause to prosecute Plaintiff, the Court notes that the decision to prosecute was not made under the same threat of imminent harm or time-sensitivity; there was no child to be protected from a potentially abusive parent, as the Lis' only child had already died. Nor was the decision to prosecute a temporary one. Moreover, in V.S., the Second Circuit found that the caseworker's actions were reasonable because the doctor had diagnosed the child with SBS "in the absence of any plausible alternative." V.S., 595 F.3d at 431 (emphasis added). By contrast, Plaintiff alleges that there were several plausible alternative explanations to SBS as the cause of death, including a genetic disorder and the child's prior medical history, that the Officer Defendants chose to ignore. (Am. Compl. ¶ 173.) Plaintiff also alleges that at some point, the Officer Defendants became aware of information that cast doubt on the medical opinions, including the SBS diagnosis, upon which the investigation was premised, but the officers failed to disclose that information to the prosecution or consider it before deciding to prosecute Plaintiff or continue that prosecution. (See, e.g., Am. Compl. ¶ 178.) At this stage, the Court must accept these allegations as true, and thus V.S. does not dictate that the Officers are entitled to qualified immunity.
Accordingly, the Court does not find that the Officer Defendants are entitled to qualified immunity as to Plaintiff's false arrest and malicious prosecution claims.
The City Defendants contend that Dr. Landi is entitled to absolute and qualified immunity. (Dkt. 59 at 17.) Again, at this stage of the litigation, the Court finds it inappropriate to dismiss claims against Dr. Landi based on immunity.
In determining whether Dr. Landi's acitivity was investigative or prosecutorial, the Court applies a "functional approach" and looks to the function being performed rather than to the office or identity of the defendant. See Cornejo, 592 F.3d at 127 (citing Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)); see also Warney v. Monroe Cnty., 587 F.3d 113, 121 (2d Cir. 2009) (identifying prosecutorial immunity "not by the identity of
In arguing that Dr. Landi is entitled to absolute immunity, the City Defendants rely heavily on Newton v. City of New York, 738 F.Supp.2d 397 (S.D.N.Y. 2010). However, the Court does not find Newton to be applicable here. In Newton, the plaintiff, who had been convicted of rape, brought a civil rights action against a forensic scientist, employed by the Office of the Chief Medical Examiner of the City of New York, for allegedly failing to conduct proper DNA testing that would have exonerated the plaintiff. Id. at 400-03. The forensic scientist had conducted a DNA test three years after the plaintiff was convicted for a court-ordered adversarial post-conviction proceeding. The district court held that the scientist was entitled to absolute and qualified immunity. Id. at 411, 416. However, in granting absolute immunity, the court stated that "the protection of absolute immunity may not be appropriate in a pre-conviction context where the jury's determination of guilt may result from a faulty scientific process, and where the laboratory scientist's role is primarily an investigative one." Id. at 411. That distinction is critical here, given that Dr. Landi, unlike the forensic scientist in Newton, was involved in Plaintiff's criminal case in a pre-conviction context and is alleged to have provided false statements and analyses in support of the criminal complaint and the NYPD's investigation.
Based on the allegations in the Complaint, the Court cannot find, as a matter of law, that Dr. Landi was acting in a prosecutorial role rather than an investigatory one. See Hill v. City of New York, 45 F.3d 653 (2d Cir. 1995) ("[W]hen it may not be gleaned from the complaint whether the conduct objected to was performed ... in an advocacy or an investigatory role, the availability of absolute immunity from claims based on such conduct cannot be decided as a matter of law on a motion to dismiss."); see also Wilkins v. Herky, No. 11-cv-6104, 2013 WL 2385065, at *7 (W.D.N.Y. May 29, 2013) ("[I]t is appropriate to address absolute immunity in a 12(b)(6) context if the complaint clearly indicates the nature of the function for which the defendant is being sued...." (emphasis added)); also compare Newton, 738 F.Supp.2d at 408, 412 (noting that the defendant-scientist was entitled to absolute immunity because the scientists' role in the plaintiff's criminal case was in an advocacy capacity and not for the purpose of identifying potential suspects) with Cornejo, 592 F.3d at 128 (finding that the district court was incorrect to find that a caseworker was entitled to absolute immunity because the caseworker's initiation of the child's removal from his mother's custody was functionally equivalent to police officers making arrests in criminal cases).
The City Defendants also argue that Dr. Landi is entitled to qualified immunity because she did not violate Plaintiff's Fourth Amendment rights. (Dkt. 59 at 19.) The City Defendants contend that Dr. Landi could not have falsely arrested or maliciously prosecuted Plaintiff and thus there was no violation of Plaintiff's clearly established constitutional right. (Id.) However, the Court has ruled that Plaintiff's malicious prosecution claim will, in fact, proceed against Dr. Landi and several Officer Defendants. Furthermore, Plaintiff's claims against Dr. Landi are not limited to false arrest and malicious prosecution. For example, as previously discussed, Plaintiff also asserts fair trial claims, based on alleged fabrication of evidence and concealment of exculpatory evidence, against Dr.
The Medical Center Defendants assert that Dr. Kupferman is entitled to statutory immunity under the New York Child Protective Services Act. (Dkt. 55 at 2-3.)
Section 413 of the Child Protective Services Act requires physicians, such as Dr. Kupferman and FHMC's staff, to report suspected child abuse if they have "reasonable cause" to believe that a child has been abused. See N.Y. Soc. Serv. Law § 413(1)(a) (McKinney). Failure to report a case of suspected child abuse is a class A misdemeanor. N.Y. Soc. Serv. Law § 420 (McKinney). Section 419 of the Child Protective Services Act provides good faith immunity from any liability to individuals who report suspected cases of child abuse. That section states in pertinent part:
Contrary to the Medical Center Defendants' assertion, the Court does not find Thomas v. Beth Israel Hospital Inc., 710 F.Supp. 935 (S.D.N.Y. 1989) to be particularly relevant. In Thomas, the court held that the defendant-physician who examined an infant and reported suspected child abuse had immunity under Section 419 of the Child Protective Services Act because the physician had "reasonable cause" to suspect abuse when the examination revealed multiple abrasions and black and blue marks. Id. at 941-42. In contrast to Thomas, however, Plaintiff alleges that Dr. Kupferman's role went beyond simply reporting suspected child abuse. Plaintiff alleges that Dr. Kupferman took on an active role in investigating the Lis. (See Am. Compl. ¶ 115 (Kupferman "repeatedly screamed at [the Lis] that they killed their daughter...."); Am. Compl. ¶ 120 ("Kupferman conducted a `forensic interview' of plaintiff.")).
Similarly, the Court is not convinced by the Medical Center Defendants' reliance on Storck v. Suffolk County Dep't of Social Servs., 62 F.Supp.2d 927, 946 (E.D.N.Y. 1999) because, there, the court "clearly" found that the defendant doctors were acting "in the discharge of their duties and within the scope of their employment." Here, Plaintiff's allegations, accepted as true, suggest that Dr. Kupferman's conduct may have exceeded the scope of her employment with FHMC. (See, e.g., Am. Compl. ¶ 157 (Kupferman "acted as a deputy of the NYPD and the Queens County D.A.'s Office" (emphasis in original)); Am. Compl. ¶ 161 (Kupferman "played an active role in the prosecution of Ying Li ... that went well beyond her role, and into ancillary and forensic aspects of determining motive, culpability, and the veracity of Ying Li.").) Moreover, Plaintiff alleges that Dr. Kupferman's determination that Annie died of SBS was "such a substantial departure from accepted professional judgment, practice, or standards" (Am. Compl. ¶ 235), and that Dr. Kupferman failed to consider other pertinent information that might have suggested alternative causes for Annie's death (see, e.g., Am. Compl. ¶ 122). Taking these allegations as true, such alleged acts "go beyond mere error and amount to willful misconduct," and thus Dr. Kupferman would not be entitled to statutory immunity based on the lack of
Accordingly, because the Court cannot determine at this time whether Dr. Kupferman enjoys immunity under the Child Protective Services Act, the Court denies the Medical Center Defendants' motion to dismiss the claims against Dr. Kupferman on the ground that she is statutorily immune.
Plaintiff has requested leave to amend her complaint in the event any of her claims are dismissed. For the reasons discussed below, the Court denies that request in its entirety.
Federal Rules of Civil Procedure 15(a) provides that a court "should freely give leave [to amend] when justice so requires." "Although `it is the usual practice upon granting a motion to dismiss to allow leave to replead, such leave should be denied where the proposed amendment would be futile.'" S.B. v. City of New York, No. 14-CV-1021, 2016 WL 4530455, at *18 (E.D.N.Y. Aug. 29, 2016) (citation and quotation marks omitted); see also Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011). An amendment to a pleading is considered futile if the claim is time-barred due to the expiration of the applicable statute of limitations period. See, e.g., Kwon v. Santander Consumer U.S.A., No. 15-CV-3352, 2016 WL 6518578, at *6 (E.D.N.Y. Oct. 6, 2016) (dismissing with prejudice claims that are time-barred while allowing the plaintiff to replead his other claims); Johnson v. New York City Police Dept., 651 Fed.Appx. 58 (2d Cir. 2016) (summary order) (affirming district court's dismissal of the plaintiff's Section 1983 claims "without granting him an opportunity to amend or discussing whether leave to amend would be appropriate" because the three-year statute of limitations expired).
First, the Court denies, as futile, leave to amend any time-barred claims and all claims against ADA Bishop, whom the Court has found is entitled to absolute immunity. See, e.g., Harrison v. Cnty. of Nassau, No. 15-cv-2712, 2016 WL 4083381, at *6 (E.D.N.Y. Aug. 1, 2016) (denying leave to replead claims against ADAs "because it is clear that all of plaintiff's allegations relate to their involvement in [plaintiff's] prosecution and are therefore protected by absolute immunity"); Johnson, 651 Fed.Appx. at 61 (finding leave to amend would be futile where the district court found the prosecutor was entitled to absolute immunity); Contreras v. Perimenis, 562 Fed.Appx. 50 (Summary Order) (2d Cir. 2014) (same).
Second, the Court exercises its discretion to deny Plaintiff leave to amend as to the other claims that the Court has dismissed. Avent v. Doe, No. 2008 WL 877176, at *14 (N.D.N.Y. Mar. 31, 2008) ("Plaintiff has already filed one amended complaint in this action, and this court has found that the complaint does not state a claim[.]"). The Court already permitted Plaintiff the opportunity to amend the complaint, and, in fact, at the pre-motion conference held in connection with Defendants' motions to dismiss, urged Plaintiff to correct the deficiencies identified in Defendants' pre-motion conference requests and at the conference, and to pare down her claims to only viable ones. However, as noted throughout this decision, Plaintiff
In summary, the following claims are dismissed:
For the reasons stated above, the City Defendants' motion to dismiss is GRANTED in part and DENIED in part. The Medical Center Defendants' motion to dismiss is GRANTED in part and DENIED in part. Plaintiff shall proceed on the following claims:
Given that several Defendants as to whom claims are proceeding are not yet represented (see supra footnote 1), Plaintiff shall by April 14, 2017 advise the Court in writing how she intends to proceed with respect to these Defendants.
SO ORDERED.
Of these individual Officer Defendants, Dets. Moser, Phelan, Heffernan, and Sgt. Manfredi are not represented. (Dkt. 69.)
Though the Court did not factor this into its decision, at the status conference in which the charges against Plaintiff were dismissed, Plaintiff explicitly refused any conditions, i.e., any compromise (Dkt. 63-6, Ex. F at 3:22-24; see Smith-Hunter, 95 N.Y.2d at 196, 712 N.Y.S.2d 438, 734 N.E.2d 750 ("noting that an action terminated by settlement cannot sustain a malicious prosecution claim").)
However, to the extent that Plaintiff argues in her MOL (Dkt. 61) that another "collateral motive . . . [for Plaintiff's arrest was to obtain Hang Bin's confession because] such confessions are very valuable to promoting the City's agenda in promoting the truth of SBS science," Plaintiff will not be permitted to pursue this as part of her abuse of process claim, since there is nothing remotely related to this allegation in the Complaint, nor does Plaintiff cite to any paragraph in the Complaint to support this newly proffered objective.
