"The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Berger v. United States, 295 U.S. 78 (1935). It appears clear that prosecutors too often strike not only hard blows but foul ones as well.

SAMANTHA RICHARDS, Plaintiff,

-against-

THE CITY OF NEW YORK; NEW YORK CITY POLICE DEPARTMENT; NEW YORK CITY POLICE COMMISSIONER HOWARD SAFIR; NEW YORK CITY DETECTIVES KEVIN McCANN, DANIEL CARMOSIN and MIKE PAUL; DETECTIVES/POLICE OFFICERS JOHN and JANE DOE; ASSISTANT DISTRICT ATTORNEYS ANGELA DOMANSKI, FRANK LAUDADIO, DANA GROSSBLATT, MITCHELL BENSON, LEE TRINK, JULIE MENDIK, HEIDI MASON, "JOHN" MAHDAVIAN (aka MODAVIAN), KEN TAUB, and JOHN and JANE ROE; and DISTRICT ATTORNEY CHARLES J. HYNES, Defendants.

97 Civ. 7990 (MBM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

1998 U.S. Dist. LEXIS 13675

September 2, 1998, Decided

September 3, 1998, Filed

SUMMARY OF DECISION: The defendants' motion to dismiss the complaint under Rule 12(b)(6) is denied (in part) as to all defendant assistant district attorneys other than ADA Grossblatt; and the complaint was dismissed as to ADA Grossblatt.

ATTORNEYS: LAWRENCE A. VOGELMAN, ESQ., Shuchman & Krause-Elmslie, PLLC, Exeter, NH, for Plaintiff; MICHAEL L. SPIEGEL, ESQ., New York, NY, for Plaintiff; and MICHAEL HESS, ESQ., Corporation Counsel of the City of New York, ANDREW MULTER, ESQ., Assistant Corporation Counsel, New York, NY, for Defendants.

OPINION AND ORDER

MICHAEL B. MUKASEY, U.S.D.J.

Samantha Richards sues the City of New York, the Police Department and certain law enforcement personnel, including nine assistant district attorneys ("ADA's") — Mitchell Benson, Angela Domanski, Dana Grossblatt, Frank Laudadio, John Mahdavian, Heidi Mason, Julie Mendik, Ken Taub, and Lee Trink (the "ADA defendants") — alleging a violation of 42 U.S.C. Section 1983 and related state law torts. Plaintiff's claims arise out of a murder investigation and prosecution in which she was initially targeted but eventually cleared. Pursuant to Fed. R. Civ. P. 12(b)(6), the ADA defendants now move to dismiss the complaint as it pertains to them, asserting both absolute and qualified immunity. For the reasons stated below, this motion is granted as to ADA Grossblatt, and granted in part and denied in part as to the remaining ADA defendants.

I

The following facts are taken from the complaint and assumed to be true for purposes of this motion. In and around September 1995, plaintiff and her two daughters, then aged 4 and 5, respectively, lived in a Brooklyn apartment with a man named Gersham O'Connor. (Compl. PP 18, 22) On September 11, 1995, O'Connor was shot and killed while inside the apartment. (Id. P 18)

During the ensuing police investigation, homicide detectives, assisted by ADA's Trink and Mendik, interviewed plaintiff several times. (Id. P 20) Plaintiff consistently denied any involvement in the crime, explaining that O'Connor had been shot by "a tall, skinny black man." (Id.) As part of their investigation, the police also questioned plaintiff's daughters, who contradicted their mother's denials and stated that they had seen her commit the crime. (Id. PP 22, 23) According to the complaint, the detectives elicited these statements from the children through "a pattern of coercion, trickery and misrepresentation" and with a reckless disregard for the truth. (Id. P 24)

Based in substantial part on the children's statements, plaintiff was arrested and charged with O'Connor's murder. (Id. P 27) ADA Grossblatt prepared and presented the case to the grand jury, which returned an indictment against plaintiff. (Id. P 45) At trial, however, "it came to light that the children had never seen the plaintiff shoot O'Connor and that their earlier false statements were caused by the intentional, reckless and/or negligent acts of the defendants." (Id. P 28) Accordingly, all charges against the plaintiff were dropped, and she was released. (Id. P 29)

This action followed. The complaint seeks to hold the ADA defendants individually liable for violating plaintiff's civil rights by "intentionally, maliciously and/or . . . recklessly" investigating and prosecuting her for murder. (Id. P 47) In particular, plaintiff alleges that the ADA defendants: "supervised," "assisted," and "gave advice" to the police in the course of their investigation; "acted and conspired" with them in that investigation; "decided whether there was probable cause to arrest the plaintiff"; and/or "knew or should have known" that the police conducted "the investigation in disregard of the civil and constitutional rights of the plaintiff." (Id. PP 44, 46, 47) As noted, the ADA defendants now move to dismiss the complaint as it pertains to them.

II.

A motion to dismiss under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 37 (2d Cir. 1998) (internal quotation marks omitted). The court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See id.

The ADA defendants raise two arguments in support of their motion. First, they contend that any actions they took in connection with the murder case against plaintiff were "intimately associated" with their quasi-judicial roles as prosecutors and therefore protected by absolute immunity. (See Def. Mem. at 6 (internal quotation marks omitted)) Second, the ADA defendants contend that, even if they are not entitled to absolute immunity for their actions, they are, as a matter of law, entitled to qualified immunity. I find neither argument persuasive.

A. Absolute Immunity

The parties agree that the question of whether a prosecutor has absolute immunity "depends principally on the nature of the function performed, not on the office itself." Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993); see also Kalina v. Fletcher, 139 L. Ed. 2d 471, 118 S. Ct. 502, 508 (1997) (reaffirming this functional approach). "It is well-settled that prosecutors performing prosecutorial activities that are 'intimately associated with the judicial phase of the criminal process' are entitled to absolute immunity from an action for damages under Section 1983." Ying Jing Gan, 996 F.2d at 530 (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976)). The "judicial phase of the criminal process" encompasses not only the actual trial, but also all actions that a prosecutor takes "in preparing for the initiation of judicial proceedings . . . and which occur in the course of his role as an advocate for the State." Kalina, 118 S. Ct. at 507 (internal quotation marks omitted). Such actions include the decision to bring particular charges against a defendant, see Ying Jing Gan, 996 F.2d at 530, the presentation of evidence to a grand jury, see Barrett v. United States, 798 F.2d 565, 571-72 (2d Cir. 1986), and the evaluation and organization of evidence prior to trial. See Kalina, 118 S. Ct. at 507-08.

As the authorities cited above suggest, however, prosecutors do not have absolute immunity for every action taken in their official capacity. "Absolute immunity is not available . . . when a prosecutor undertakes conduct that is beyond the scope of his litigation-related duties." Barbera v. Smith, 836 F.2d 96, 100 (2d Cir. 1987). Thus, when a prosecutor supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest — that is, when he performs functions normally associated with a police investigation — he loses his absolute protection from liability. See Burns v. Reed, 500 U.S. 478, 493, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991) ("We do not believe . . . that advising the police in the investigative phase of a criminal case is so intimately associated with the judicial phase of the criminal process . . . that it qualifies for absolute immunity." (internal quotation marks and citations omitted)); see also Kalina, 118 S. Ct. at 508; Ying Jing Gan, 996 F.2d at 531; Barbera, 836 F.2d at 100.

In this case, the complaint alleges two types of conduct by the ADA defendants. The first includes actions by those defendants in the course of, or in close connection with, the judicial phase of the criminal case against plaintiff. (See, e.g., Compl. P 47 (alleging that the ADA defendants maliciously "presented this case to the grand jury" and otherwise "caused plaintiff to be prosecuted")) For these and similar actions, the ADA defendants were acting in their role as advocates and therefore are entitled to absolute immunity. See Imbler, 424 U.S. at 430.

However, plaintiff alleges as well that those defendants, with the exception of ADA Grossblatt — who apparently did nothing more than prepare and present testimony to the grand jury (See Pl. Mem. at 4 n.1) — also participated in the fact finding leading up to plaintiff's arrest by supervising, advising and assisting the police in their investigation of O'Connor's murder. It is also reasonable to infer from the complaint that those ADA defendants, again apart from Grossblatt, advised the police as to the existence of probable cause to arrest plaintiff. (See Compl. P 44) Contrary to the ADA defendants' argument (See Def. Mem. at 7), such actions are not "intimately associated" with the judicial process but are rather paradigmatic examples of activities that fall outside the scope of a prosecutor's judicial function. See Burns, 500 U.S. at 493; see also Kalina, 118 S. Ct. at 508; Ying Jing Gan, 996 F.2d at 531; Barbera, 836 F.2d at 100. Accordingly, to the extent that the ADA defendants — again, with the exception of ADA Grossblatt — engaged in the investigatory and non-judicial activities alleged in the complaint, they are not entitled to absolute immunity.

B. Qualified Immunity
In the alternative, the ADA defendants argue that they are entitled to qualified immunity for any actions they may have taken in connection with the murder investigation. "Government officials may enjoy a privilege of qualified immunity from liability for damages arising out of their performance of discretionary official functions so long as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Doe v. Phillips, 81 F.3d 1204, 1211 (2d Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)), cert. denied, 117 S. Ct. 1244 (1997). Put otherwise, a government official has qualified immunity for actions that were "objectively reasonable." Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990).

In this case, the ADA defendants assert baldly that "the Complaint fails to allege any facts which, if proven, would demonstrate that their investigatory actions were not objectively reasonable under the circumstances." (See Def. Mem. at 9) On the contrary, the complaint alleges that the ADA defendants, with a malicious or intentional state of mind, played a key role in an investigation predicated on trickery and coercion. It may well be that these allegations are unfounded or exaggerated. However, accepting them to be true and drawing all reasonable inferences in plaintiff's favor, I cannot say beyond doubt that plaintiff will be unable to prove that the ADA defendants acted in an objectively unreasonable manner. See Thomas, 143 F.3d at 36-37.

For the above reasons, the ADA defendants' motion to dismiss is granted as to ADA Grossblatt, and granted as to the remainder of the ADA defendants to the extent the complaint seeks to hold them liable for actions intimately associated with their judicial functions. However, in accordance with the discussion above, the motion is denied to the extent the complaint seeks to hold the ADA defendants liable for supervising, participating with and assisting the police in their investigation of O'Connor's murder.

SO ORDERED:

Dated: New York, New York

September 2, 1998

Michael B. Mukasey,

U.S. District Judge

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