GARY L. SHARPE, Senior District Judge.
Plaintiff Russell Towner brings this action pursuant to 42 U.S.C. § 1983 against defendants Tioga County, Kirk Martin, Patrick Hogan, Wayne Moulton, and C.J. Alexander. (2d Am. Compl., Dkt. No. 122.) He claims that his due process rights were violated and he was falsely arrested and maliciously prosecuted after serving as a cooperating informant at defendants' behest. (Id. ¶¶ 42-58.) Pending is defendants' 12(b)(6) motion to dismiss Towner's second amended complaint. (Dkt. No. 124.) For the following reasons, defendants' motion is granted in part and denied in part.
In March 2014, Towner was incarcerated in the Tioga County Jail with another inmate, David Nugent. (2d Am. Compl. ¶¶ 9-10.) Nugent informed Towner that he intended to kill an assistant district attorney, Cheryl Mancini, (id. ¶¶ 10-11), and solicited inmates including Towner to assist in his devious plan, (id. ¶ 12).
Towner wrote Mancini and cautioned that Nugent intended to kill her. (Id. ¶ 13; Dkt. No. 72, Attach. 1 at 18-19.) After learning of this correspondence, Tioga County District Attorney Martin arranged for a meeting between Towner and investigators Hogan and Moulton. (2d Am. Compl. ¶¶ 15, 29.) Martin did not attend the meeting, which was held in early April 2014,
During the meeting, "there was discussion" about having Towner lure Nugent into the jail library to discuss his plans while investigators secretly monitored the conversation.
Shortly thereafter, Towner successfully lured Nugent into the jail library and engaged him in a discussion about his threats against Mancini. (Id. ¶ 22.) About a week after the library encounter, Towner wrote Moulton and stated that he had no intention of being involved with Nugent's plans; he just wanted to get out of jail and move it on a little farther down the line. (Id. ¶¶ 23-24.) In an undated letter provided by defendants, Towner also asked Moulton to put him "in play" by letting him "pretend" to go along with Nugent's plans and allowing him to wear a "wire." (Dkt. No. 72, Attach. 1 at 21.) Towner had no further communication with defendants until Nugent's wife bailed him out of jail on May 8, 2014. (2d Am. Compl. ¶¶ 25, 27; Dkt. No. 133 at 3.)
Upon Towner's release, Hogan asked him to participate in an interview with the sheriff's department. (Id. ¶ 28.) At some point, "Martin, Hogan, and Moulton made a joint decision or otherwise acquiesced in [Towner] being arrested for [conspiracy in the second degree]." (Id. ¶ 30.) Investigator Alexander, who previously met with "Hogan and/or others involved in the investigation," arrested Towner that same day. (Id. ¶¶ 33-36, 46.) When "Hogan was asked what facts he had to support a reasonable belief that [Towner] engaged in conduct [constituting conspiracy in the second degree,] [he] admitted he had no facts other than his own belief [that] [Towner] was a disreputable person." (Id. ¶ 32.) On November 5, 2015, the charges against Towner were dismissed. (Id. ¶ 37.)
Towner commenced this action in Tioga County Supreme Court alleging various claims under state law, 42 U.S.C. § 1983, and 18 U.S.C. § 242.
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled and will not be repeated here. For a full discussion of the standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y. 2010).
In determining a Rule 12(b)(6) motion to dismiss, the court may consider the complaint, any exhibit attached to the complaint, materials incorporated by reference, and documents that are integral to the complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). A document is integral to the complaint if the complaint "relies heavily upon its terms and effect." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation marks and citation omitted).
Towner's response relies on materials outside the four corners of the complaint, which he fails to sufficiently demonstrate were integral to the complaint or relied upon in drafting it.
For the reasons stated in defendants' memorandum of law, (Dkt. No. 124, Attach. 1 at 10-12), and given Towner's failure to dispute these arguments in his response, (see generally Dkt. No. 133), the court finds that Martin is shielded by absolute immunity. Accordingly, all claims against him are dismissed.
However, defendants' arguments in favor of granting qualified immunity to investigators Moulton, Hogan, and Alexander are not as airtight. (Dkt. No. 124 at 19-20.) Qualified immunity applies if either: "(1) the official's actions did not violate clearly established law, or (2) . . . the official was objectively reasonable in believing in the lawfulness of his actions." Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 101-02 (2d Cir. 2003).
As more thoroughly discussed below, the complaint demonstrates a lack of probable cause, which violates the clearly established protection against unlawful arrest and prosecution. See, e.g., Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003) ("Freedom from malicious prosecution is a constitutional right that has long been clearly established."); Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (collecting cases discussing the right not to be arrested without probable cause). This is so because it can be reasonably inferred that the investigators were all working hand-in-hand behind the scenes and shared the same exculpatory information regarding the operation Towner participated in at their direction. (2d Am. Compl. ¶¶ 19-21, 26, 30, 33-36, 46.) Nonetheless, despite knowing that Towner was merely "`acting as an agent of the police,'" they jointly decided to arrest and charge him. (Id. ¶ 19.) At this juncture, the court cannot say as a matter of law that "it was objectively reasonable for the officer[s] to believe that probable cause existed, or [that] officers of reasonable competence could disagree on whether the probable cause test was met." Myers v. Patterson, 819 F.3d 625, 632-33 (2d Cir. 2016).
However, defendants are entitled to qualified immunity on Towner's substantive
Secondly, even if substantive due process rights in this context were clearly established, to be actionable, the defendants' conduct must be "arbitrary, conscience-shocking, or oppressive in the constitutional sense, not merely incorrect or ill-advised." Ferran v. Town of Nassau, 471 F.3d 363, 370 (2d Cir. 2006) (internal quotation marks and citation omitted). And "time has shown that the judicial conscience is sturdy. There are very few cases in which this demanding standard has been met." (Dkt. No. 124, Attach. 1 at 8) (quoting Labensky v. County of Nassau, 6 F.Supp.2d 161, 171 (E.D.N.Y. 1998), aff'd sub nom. Labensky v. Rozzi, 173 F.3d 845 (2d Cir. 1999) (Sotomayor, J.)). Here, "officers of reasonable competence could disagree" whether defendants' conduct shocks the conscience. Crotty, 346 F.3d at 102 (internal quotation marks and citation omitted). Therefore, defendants are shielded from Towner's due process claim by qualified immunity.
Accordingly, defendants' motion with respect to qualified immunity is granted as to the due process claim and denied with leave to renew as to the remaining claims.
To prevail on a false arrest claim under New York law,
Defendants unconvincingly argue that the investigators' conduct is analogous to entrapment, which does not constitute a constitutional violation. (Dkt. No. 124, Attach. 1 at 15-16) (citing DiBlasio v. City of New York, 102 F.3d 654, 656-57 (2d Cir. 1996); Labensky, 6 F. Supp. 2d at 177 ("A claim of entrapment does not negate the commission of the crime charged or the existence of any element thereof. It is an excuse for a crime, not a denial of one.")). However, this entrapment defense is premised on circumstances "where the predisposition of the defendant to commit the crime was established." Hampton v. United States, 425 U.S. 484, 489 (1976). Here, the conduct alleged in the complaint is more analogous to planting evidence than entrapment. See Lewis v. Meloni, 949 F.Supp. 158, 162 (W.D.N.Y. 1996) ("While `entrapment' and `planting evidence' of a crime on an innocent person may be offspring of the same family of offensive police conduct, the latter, if proven, clearly supports a § 1983 action."). Towner's claim that he was acting as an agent of the police is an exculpatory defense because it negates a requisite element of the crime of conspiracy; specifically, the mens rea element. See N.Y. Penal Law § 105.15 ("A person is guilty of conspiracy in the second degree when, [1] with intent that conduct constituting a class A felony be performed, [2] he agrees with one or more persons to engage in or cause the performance of such conduct.").
Moreover, while it may be true that officers had no duty to investigate Towner's intent at the time he was released on bail, see Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006), it can be reasonably inferred from the complaint that defendants were aware that he was acting solely as their agent and not with the actual intention of committing a crime, which carries far more weight than defendants' characterization of a "mere possibility of an innocent explanation consistent with the facts," (Dkt. No. 124, Attach. 1 at 17). It is unreasonable to think—based solely on the facts in the second amended complaint—that Towner, as a cooperating operative who was following investigators' direction, would intentionally engage in criminal conduct when he knew he was being monitored.
Furthermore, defendants' argument that Towner's prior waiver of his preliminary hearing also waives his present ability to contest probable cause is equally unconvincing. (Id. at 20-21.) For strategic purposes, prosecutors often refuse to go forward with preliminary hearings when there are other grounds to hold a criminal defendant—without conceding a lack of probable cause. Just as often, criminal defendants agree to waive a preliminary hearing in exchange for a favorable deal with the prosecutor—without conceding the existence of probable cause. As such, it is unsurprising that the New York State Appellate Division case relied upon by defendants stands for the proposition that a presumption of probable cause attaches to a determination made by a judge only after a preliminary hearing is held. (Id. at 20) (citing Landsman v. Moss, 133 A.D.2d 359, 360 (2d Dep't. 1987)). It would be absurd to hold that a preliminary hearing that never was prevents a plaintiff from later contesting probable cause.
Without the need for further elaboration, assuming the truth of the facts as alleged in the complaint and construing all reasonable inferences in Towner's favor, the claim of false arrest is sufficiently pled. (See, e.g., 2d Am. Compl. ¶¶ 19-21, 26, 30, 33-36, 46.)
In order to state a claim for malicious prosecution, a plaintiff must allege that: (1) defendants initiated or continued a criminal proceeding; (2) without probable cause; (3) the proceedings terminated in plaintiff's favor; and (4) defendants were motivated by malice. See Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). Defendants seek dismissal of this claim, (2d Am. Compl. ¶¶ 52-54), on the grounds that (1) there was probable cause to commence the proceeding, (2) the complaint fails to demonstrate that defendants acted with actual malice, and (3) the complaint fails to allege that any defendants were personally involved with initiating the criminal proceeding against Towner, (Dkt. No. 124, Attach. 1 at 23-25).
Although Towner's malicious prosecution claim focuses on a different probable cause inquiry than his false arrest claim, see McClellan v. Smith, No. 1:02-CV-1141, 2009 WL 3587431, at *6 (N.D.N.Y. Oct. 26, 2009), aff'd sub nom. McClellan v. City of Rensselaer, 395 F. App'x 717 (2d Cir. 2010), the court cannot agree that the facts objectively support a reasonable belief that a criminal prosecution should have been initiated or continued because the prosecution could succeed, see D'Angelo v. Kirschner, 288 Fed. App'x. 724, 726-27 (2d Cir. 2008). The court proceeds with caution at this stage given that the probable cause standard is higher in the malicious prosecution context than it is for false arrest. See Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013). Likewise, with the question of probable cause still on the table, Towner's amended complaint sufficiently pleads actual malice. See Martin v. City of Albany, 42 N.Y.2d 13, 17 (1977) (finding that a jury may infer the existence of actual malice if there is no probable cause to initiate a criminal proceeding). The remaining issue of whether each investigator was personally involved in initiating Towner's prosecution is a closer call. (Dkt. No. 124, Attach. 1 at 23-24.)
Additionally, Towner alleges a claim against defendants for "conspir[ing] to falsely and maliciously charge the plaintiff with conspiracy to murder [ADA] Mancini[] when each of the defendants knew, or should have known, that [Towner] was in fact a good Samaritan who first alerted ADA Mancini to a potential threat on her life and thereafter acted as an agent of the investigators[.]" (2d Am. Compl. ¶ 42.) Towner claims that defendants furthered this conspiracy by meeting with each other, presumably conferring about Towner's operation, and then finally agreeing to arrest him without probable cause. (Id. ¶¶ 30, 33-36, 43, 46.) Defendants contend that Towner fails to state a claim for conspiracy. (Dkt. No. 124, Attach. 1 at 21-22.)
To successfully make out a claim of § 1983 conspiracy, a plaintiff must allege: "(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). As defendants point out, "[a] plaintiff must provide some factual basis supporting a meeting of the minds, such as that defendants entered into an agreement, express or tacit, to achieve the unlawful end" as well as "some details of time and place and the alleged effects of the conspiracy." (Dkt. No. 124, Attach. 1 at 21-22) (quoting Romer v. Morgenthau, 119 F.Supp.2d 346, 363 (S.D.N.Y. 2000) (internal quotation marks and citation omitted)).
Here, Towner has alleged a tacit agreement between defendants and an approximate time frame. (2d Am. Compl. ¶¶ 30, 33-36, 46.) Accordingly, although the court appreciates defendants' arguments, Towner's disjointed allegations remain glued together by reasonable inferences for the time being.
Lastly, defendants argue that Towner's § 1983 claims against Tioga County and defendants in their official capacities should be dismissed because he has failed to allege a municipal policy or custom that might give rise to their liability. (Dkt. No. 124, Attach. 1 at 22-23.)
Generally, § 1983 suits against a municipality require that—in addition to demonstrating an injury to a constitutionally protected right—the plaintiff point to an official custom or policy of the municipal defendant and establish a causal connection between the alleged injury and that custom or policy. See Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690, 694 (1978); Jean-Laurent v. Wilkerson, 461 F. App'x 18, 22 (2d Cir. 2012). A plaintiff can establish the existence of a custom or policy by: (1) demonstrating that an unconstitutional decision was issued from an authorized policymaker, see Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 406 (1997); (2) showing that a municipal agent's conduct was part of a widespread practice that constitutes a custom or usage with the force of law, see City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); or (3) demonstrating that a municipality was deliberately indifferent in failing to train or supervise its employees, see Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011). Vague and conclusory assertions of a municipal custom or policy are insufficient to effectively plead such a claim, absent "allegations of fact tending to support, at least circumstantially, such an inference." Zherka v. City of New York, 459 F. App'x 10, 12 (2d Cir.2012) (internal quotation marks and citation omitted).
Here, Towner fails to allege with any particularity the existence of a custom or policy that contributed to a violation of his rights. Rather, the complaint merely states in conclusory fashion that "Tioga [County] is responsible for all municipal affairs including but not limited to law enforcement and employees such as the individual defendants[.]" (2d Am. Compl. ¶ 6.) This is insufficient to allege a municipal policy. See Zherka, 459 F. App'x at 12. Additionally, Towner does not allege, and it cannot be reasonably inferred, that any of the named defendants are authorized to make policy decisions for Tioga County, were improperly trained, or acted pursuant to some informal custom.
For these reasons, the reasons stated by defendants, (Dkt. No. 124, Attach. 1 at 22-23), and in light of Towner's failure to adequately respond to such arguments, (see generally Dkt. No. 133), Towner's claims against Tioga County are dismissed. Because Towner's official capacity claims against the investigators are really claims against Tioga County, see D'Alessandro v. City of New York, 17-594-cv, 2017 WL 4641256, at *5 (2d Cir. Oct. 17, 2017), they are likewise dismissed.
