SHIRA A. SCHEINDLIN, District Judge.
Alan Newton was released from prison on July 6,2006, after serving more than twenty-two years for a rape and assault that DNA testing ultimately proved he did not commit. In 1988, Newton sought and was granted permission to test the rape kit containing the exonerating DNA evidence. This never happened. Instead, Patricia Ryan, a laboratory scientist employed by the Office of the Chief Medical Examiner of the City ofNew York ("OCNIE") rather than an independent laboratory — conducted the required forensic analysis. Ryan did not detect the presence of any sperm in the biological fluid samples taken from the victim, and thus could not rule out Newton as the attacker. Subsequent tests performed on the rape kit in 2006 and 20 I 0, however, identified ample amounts of sperm and were able to conclusively establish Newton's innocence.
Newton has since brought a civil rights action against the City for his erroneous conviction, and asserts constitutional claims against Ryan for her alleged role in defendants' investigation, prosecution, and subsequent failure to examine exculpatory evidence.
In the early morning hours of June 23, 1984, a woman known as V.J.
At trial, Newton presented two witnesses to support his assertion of an alibi.
Newton first requested testing on the rape kit on or about January 29, 1988, in a motion filed with the Supreme Court of the State of New York, Bronx County.
On September 2, 1988, Ryan provided a written report stating that the there was insufficient semen in the rape kit to complete the requested tests.
Based on the new evidence presented by Dr. Blake, this Court reinstated three causes of action in Newton's Amended Complaint, which alleged three federal civil rights claims against Ryan directly, as well as a state law claim against the City based on Ryan's alleged misconduct.
When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must "accept as true all of the factual allegations contained in the complaint"
When determining the sufficiency ofa claim under Rule 12(b)(6), the court is normally required to consider only the allegations in the complaint. However, the court is allowed to consider documents outside the pleading if the documents are integral to the pleading or subject to judicial notice.
"[G]oven1ment officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats ofliability."
Absolute immunity gives "public officials entrusted with sensitive tasks a protected area of discretion within which to carry out their responsibilities."
The Supreme Court has recognized three factors that must be addressed in determining whether a government official should be accorded absolute immunity for a particular function: (1) whether a historical or common law basis exists for immunity from suit arising out of performance of the function; (2) whether performance of the function poses obvious risks of harassing or vexatious litigation against the official, and (3) whether there exist alternatives to damage suits against the official as a means of redressing wrongful conduct.
"[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question."
For public officials outside the purview of absolute immunity, "the protection takes the form of `qualified immunity,' i.e., immunity from liability if the employee was acting in subjective and objective good faith."
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
The inquiry as to whether an eligible government official is entitled to qualified immunity is two-fold. One, the court "must decide whether the facts that a plaintiff has alleged make out a violation of a constitutional right."
The Second Circuit has held that a right is clearly established for qualified immunity purposes if "(1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful."
The first factor identified by the Supreme Court in determining whether absolute immunity protects a government official's discretionary determination is "[t]he absence of historical or common-law support either direct or by analogy — for cloaking the challenged actions with absolute immunity."
Because there is no direct historical precedent involving the immunity of a forensic scientist tasked with testing biological evidence in a proceeding collateral to a criminal conviction, the court "may look by analogy to the historic or common law immunity granted to other figures within the judicial process."
There is no question that Ryan as a forensics scientist charged with testing the evidence against Newton — was "intimately associated with the judicial phase of the criminal process."
Although Ryan's job was ostensibly to provide a neutral assessment of forensic data, her functional role cannot be ascertained 011 the basis of her "discrete actions."
To this end, in Warney v. Monroe County, the Second Circuit made clear that prosecutors would be fully insulated from liability for their administrative or investigative role in submitting DNA evidence for postconviction testing.
In any event, plaintiff does not contest the `advocacy' categorization of Ryan's functional role. To the extent that plaintiff challenges Ryan's entitlement to absolute immunity, he posits that she was not a quasi-judicial officer because "she was not appointed by the court and she was not authorized to conduct any testing."
The public policy prong of the three-factor immunity test also counsels in favor of granting absolute immunity to Ryan. If laboratory scientists were exposed to liability on the basis of their alleged forensic testing errors, every criminal case involving biological evidence would become a breeding ground for additionallitigation against the state and its actors. Because Section 1983 lawsuits against forensics examiners "could be expected with some frequency" as defendants "transform resentment at being convicted into allegations" of improper scientific analysis, the "concern that harassment by unfounded litigation would cause a deflection of the [official's] energies from his public duties" is directly implicated.
Exposure to suit may yield other unfavorable public policy results. While laboratory scientists are compelled to comply with court orders requiring their services, other public officials may be less inclined to grant permission for post-conviction testing if doing so may invite the "the threat of a protracted lawsuit, not to mention the prospect of money damages, [that] would inevitably involve the diversion of the government's attention and resources."
The third factor in the absolute immunity inquiry, the existence of other remedies against laboratory scientists, is also satisfied. State medical examiners and forensics scientists are subject to professional disciplinary action, which has been "considered sufficient in previous cases affording absolute immunity."
Taken as a whole then, the circumstances of the instant case support absolute immunity for Ryan. Certainly, the extension of absolute immunity to laboratory scientists presents the supremely difficult task of balancing the equities between the public good and individual rights, with "evils inevitable in either alternative."
But these are not the circumstances presented here. Newton had an opportunity to assert his innocence at trial. He presented two alibi witnesses to testify on his behalf and successfully convinced the jury to acquit him of one of the incidents of rape with which he was charged.
Ryan's role in his prolonged incarceration resulted from her participation in a court ordered post-conviction adversarial proceeding, as a state advocate engaged in a search for the truth thus satisfying "the ultimate question" for the grant of full immunity.
Even assuming, arguendo, that Ryan is not entitled to absolute immunity, she is shielded by the doctrine of qualified immunity. As a threshold matter, Newton argues that Ryan's actions were not discretionary, and that she is therefore not eligible for qualified immunity. In support of his contention, Newton offers one conclusory assertion: "There is simply no factual basis for arguing that Patricia Ryan had the `discretion' to `act in the shoes of [the named doctor on the court order] and report findings that were patently false."
To the extent that Newton asserts constitutional claims arising out of the City's misdelivery of the rape kit to the wrong doctor, he necessarily does so against the City — Ryan was not, by any account, responsible for the procedural error in the delivery. Her alleged misconduct is limited to the faulty examination or misreporting regarding the absence of sperm on the slides, and her eligibility for qualified imn1Unity depends only on whether this particular act required an exercise ofjudgment. Moreover, whether or not Ryan was malicious or incompetent in not identifying the semen on the slides has no bearing on the question of whether her act of examining them necessarily entailed a measure of judgment so as to leave open the possibility of a qualified immunity analysis.
That Ryan exercised discretionary judgment is underscored by the Supreme Court's recent holding in Melendez-Diaz v. Massachusetts, which requires forensic laboratory scientists to testify at the criminal trials for which they handled evidentiary analysis.
Having determined that Ryan was conducting a discretionary function, the ensuing issue for qualified immunity purposes is whether she violated Newton's clearly established constitutional rights when she erred inadvertently or otherwise — in her analysis of the rape kit. Even accepting Newton's claim that Ryan acted with malice or incompetence, there is still no basis to infer that she violated a clearly established constitutional right.
Newton alleges a violation of his Fifth and Fourteenth Amendment due process rights, as well as a First Amendment claim for denial of his right of access to the courts. Because the First Amendment claim can be summarily dismissed on grounds other than immunity, I begin with a discussion of that claim.
Defendants argue that Newton's First Amendment claim must be dismissed because it was first raised in his trial brief and opposition in the instant motion, and "submitted less than two months before trial in this three-year old case."
Devoting two sentences to a constitutional claim amongst the countless court submissions offered in the course of three years of litigation constitutes abandonment. Defendants are entitled to notice of the specific issues that will be litigated at trial, and two vague allusions to a First Amendment claim, without explication and merely as a vehicle to reserve the right, are insufficient.
Moreover, the sole reference to a First Amendment claim in plaintiffs legal briefs offered as one of plaintiffs two pieces of evidence that he did in fact assert a First Amendment violation earlier in the litigation — was in a response to defendants' June 5, 2009 motion for summary judgment, which sought dismissal "of all of plaintiffs federal constitutional claims concerning the alleged loss, or non-production, of the rape kit collected from the victim in his criminal case, during the years 1994-2005."
While post-conviction defendants have no Fifth or Fourteenth Amendment due process rights to DNA testing, they do obtain a due process liberty interest if a state enacts a statute providing post-conviction defendants access to evidence.
Newton's remaining state law claim against the City for Ryan's alleged misconduct is necessarily precluded by the determination that she acted with discretion.
For the foregoing reasons, defendants' motion to dismiss the reinstated claims regarding plaintiff's third, sixth, and ninth causes of action is granted. The Clerk of the Court is directed to close this motion (docket no. 145).
Defendants allege that plaintiff has failed to demonstrate newly discovered evidence so as to merit reinstatement of his claims. Because I find that Ryan's damages liability is precluded by governmental immunity even when the alleged newly discovered evidence is taken into account, I do not address this argument.
Despite the Supreme Court's clear directive, the Second Circuit has not been consistent in regards to the circumstances under which a governmental officer is entitled to qualified immunity. Compare Manganiello v. City ofNew York, 612 F.3d 149, 164 (2d Cir. 2010) (recognizing a third condition under which qualified inununity is triggered: "A government official sued in his official capacity is entitled to qualified immunity (1) if the conduct attributed to him is not prohibited by federal law; or (2) where that conduct is so prohibited, if the plaintiff's right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct; or (3) ifthe defendant's action was objectively legally reasonable . . . . in light ofthe legal rules that were clearly established at the time it was taken.") (quotations and citations omitted) (emphasis added)) with Okin v. Village ofCornwall-On-Hudson Police Dept., 577 F.3d 415, 433 n. 11 (2d Cir. 2009) ("[O]nce a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for a police officer who violated this clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful."). Accord Amore, 610 F.3d at 162 (recognizing tension in the case law as to [w]hether the `objectively reasonable' inquiry is framed as part of the `clearly established' inquiry, or apart from it. . . ."). Because the Supreme Court has made clear that the qualified immunity test consists only of two prongs, I will not consider the reasonableness of defendants' conduct here. See, e.g., Walczyk v. Rio, 496 F.3d 139, 165 (2d Cir. 2007) (Sotomayor, J., concurring) ("I write separately to call the Court's attention to our collective failure to harmonize our qualified immunity analysis with the Supreme Court's directives."). Accord Maldonado v. Fontanes, 568 F.3d 263,269 (lst Cir. 2009) ("[W]e adopt the [Supreme] Court's two-part test and abandon our previous usage of a three-step analysis.").
Moreover, New York has no law requiring the preservation of evidence, a fact which could unfortunately serve to circumvent the spirit of section 440.30 (l-a)(a). The fear of continuous litigation in the wake of post-conviction testing may encourage the use of this evidentiary loophole. It may also dampen prosecutorial enthusiasm in helping post-conviction defendants access the evidence. Indeed, Newton's rape kit would not ultimately have been found were it not for Bronx Assistant District Attorney Elisa Koenderman's personal request that officials at the city storage facility conduct another search and her inclusion of the information identifying its location "for [their] convenience." 7114/05 Letter from ADA Koenderman to Trabitz, Ex. H to Schutty Decl. I
Because I hold that Ryan's actions were discretionary in nature, she is entitled to immunity on Newton's state law claims. See, e.g., Arteaga v. State, 72 N.Y.2d 212, 216-217 & n. 1 (1988) (providing medical examiner as example warranting absolute immunity); Pertilla v. Genetic Design, Inc., 166 Misc.2d 843 (Sup. Ct. Chenago Co. 1995) (extending full immunity to private laboratory performing DNA tests in a paternity proceeding). Cf Hirschfeld v. Spanakos, 909 F.Supp. 174, 180 (S.D.N.Y.l995) (noting that New York "affords public officials considerably greater protection from individual capacity suits than the federal doctrine of qualified immunity").
On July 12, 2010, I ordered Newton to provide defendants with his blood type and whether he is or is not a secretor. This information might have been critical to defendants in responding to Newton's First Amendment claim. Depending on the results or such serological testing, it is possible that Newton could not have been ruled out as V.J.'s attacker, based on testing available in 1988 even if Ryan had properly performed such testing. In that event, the alleged mishandling of the testing would have caused no prejudice to Newton and could not have deprived him of his access to the courts.
Newton failed to comply with this Order. During a telephone conference held on September 2,2010 Newton's counsel admitted that he had not complied with the Order but defended his non-compliance by shifting blame to the City for failing to justify the need for such testing. This was wholly inappropriate. His quarrel was with the Court not with the City. Non-compliance with a legitimate court is not an option. After this conference, Newton immediately had a blood test which identified his blood type as B+ (which made him a possible secretor), but never provided information as to his secretor status. While this Court could dismiss the reinstated claims pursuant to Rule 37(b)(2) based on Newton's failure to comply with a court order, I do not do so on this ground given the important public policy and constitutional issues implicated in Newton's reinstated claims. Moreover, I am confident as to my ruling that the claims against Ryan must be dismissed based on either absolute or qualified immunity. Nonetheless, should this ruling be overturned by a reviewing court, the sanction application would then be entitled to full and serious consideration.
Moreover, Newton did not respond to defendants' motion to dismiss his claim against the City for Ryan's wrongdoing in his Opposition Brief, and therefore abandoned his claim. To the extent that he acknowledged his ninth cause of action for malicious prosecution at all, he did so only in relation to Ryan directly. See, e.g., Dineen ex rel Dineen v. Stramka, 228 F. Supp. 2d 447,454 (S.D.N.Y. 2002) ("We note at the outset that plaintiff does not address these claims in its opposition papers, enabling the Court to conclude that it has abandoned them.").
