Barkai v. Nuendorf

1

ARIEL DAN BARKAI, Plaintiff, v. DETECTIVE ROBERT NEUENDORF, et al., Defendants.

No. 21-CV-4060 (KMK)

United States District Court, S.D. New York

February 21, 2024

Ariel D. Barkai Pro Se Plaintiff

Darius P. Chafizadeh, Esq., Mathew T. Dudley, Esq., Harris Beach PLLC Counsel for Defendants Robert Neuendorf, John Leonard Unnamed Jane/John Doe Employees, Rockland County District Attorney's Office

John M. Flannery, Esq., Eliza M. Scheibel, Esq., Wilson Elser Moskowitz Edelman & Dicker LLP Counsel for Defendants Anthony Culianos, Detective Donegan, and Jeff Wanamaker

John J. Walsh, II, Esq., Michael K. Burke, Esq., Paul E. Svensson Esq., Hodges Walsh & Burke, LLP Counsel for Defendants Donald Butterworth, Anthony Palazolo, Dany Ryan, and Ben Gorcynzski

OPINION & ORDER

KENNETH M. KARAS, United States District Judge:

Plaintiff Ariel Dan Barkai (“Plaintiff”), proceeding pro se, brings this Action against Rockland County District Attorney's Office (“RCDAO”) Detective Robert Neuendorf (“Neuendorf”), Rockland County Sheriff's Department (“RCSD”) Deputy John Leonard (“Leonard”), two Jane/John Doe employees of the RCDAO (“RCDAO Does”; collectively with Neuendorf and Leonard, “Rockland Defendants”) Clarkstown Police Department (“CPD”) Police Officer (“PO”) Anthony Culianos (“Culianos”), CPD Detective Donegan (“Donegan”), CPD Captain Jeff Wanamaker (“Wanamaker”; collectively with Culianos and Donegan, “Clarkstown Defendants”), Orangetown Police Department (“OPD”) Chief of Police Donald Butterworth (“Butterworth”), OPD Detective Sergeant Anthony Palazolo (“Palazolo”), OPD Detective Dan Ryan (“Ryan”), and OPD Officer Ben Gorcynzski (“Gorcynzski”; collectively with OPD, Butterworth, Palazolo, and Ryan, “Orangetown Defendants”), alleging various federal and state law claims against Defendants. (See generally Fourth Am. Compl. (“FAC”) (Dkt. No. 212).). Before the Court are three motions to dismiss: (1) the Rockland Defendants' Motion to Dismiss; (2) Defendant Wanamaker's Motion to Dismiss; and (3) the Orangetown Defendants' Motion to Dismiss. (See Defs.' Not. of Mot. (“Rockland Not. of Mot.”) (Dkt. No. 227); Def.'s Not. of Mot. (“Wanamaker Not. of Mot.”) (Dkt. No. 232); Defs.' Not. of Mot. (“Orangetown Not. of Mot.”) (Dkt. No. 235).) For the foregoing reasons, the Motions are granted.

I. Background

A full factual and procedural history of the Action is recounted in the Court's March 29, 2023 Opinion & Order (“Prior Opinion”), (see Prior Op. 4-20 (Dkt. No. 189)), and therefore, what follows is an abbreviated account of the relevant facts and procedural history.^[1]

A. Factual Background

The following facts are drawn from Plaintiff's Amended Complaints and associated filings, all of which are assumed to be true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).^[2]

1. February 18, 2020 Complaint

On January 27, 2020, Plaintiff's mother passed away at Montefiore Nyack Hospital (“MNH”). (See FAC ¶ 22.) Several days after his mother's death, Plaintiff went to MNH to obtain his mother's medical records. (See id. ¶ 23.) Plaintiff alleges that at the hospital he spoke with MNH Head of Patient Services Kristin DeLorenzo (“DeLorenzo”), who offered to investigate his complaints related to his mother's death. (See id.) Plaintiff claims he spoke to DeLorenzo in the presence of Jim Hastings (“Hastings”), head of security at MNH. (See id.) After the end of the conversation, Hastings and DeLorenzo walked Plaintiff to the exit and DeLorenzo gave Plaintiff her email. (See id.) Plaintiff states that over the next two weeks he sent DeLorenzo eleven emails and spoke with her twice on a conference call. (See id. ¶ 24.)

On February 18, 2020, DeLorenzo filed a complaint, with Gorcynzski, against Plaintiff including a sworn accusation that he was harassing her with emails. (See id. ¶ 25.) Gorcynzski sent the complaint to the Nyack Justice Court. (See id. ¶ 26.)

On April 8, 2020, Ryan served Plaintiff with the charges as filed by the RCDAO and a restraining order issued by the court. (See id. ¶ 29.) Plaintiff complained to Ryan, however Ryan refused to intervene. (See Id. ¶ 30.) Plaintiff escalated the matter to Palazolo who arranged a meeting between Plaintiff and Butterworth some time in June 2020. (See id.) Butterworth reviewed the emails and told Plaintiff that MNH never told the police the matter involved the death of plaintiff's mother. (See Id. ¶ 31.) Butterworth said he would recommend that the district attorney drop the case. (See Id. ¶ 30.) The RCDAO dropped the case two months later. (See id.) After the charges were dropped, Plaintiff wanted the police to bring charges against DeLorenzo and MNH Nurse Tom Nguyen (“Nguyen”) for making false statements under oath. (See Id. ¶ 33.) The police investigated but refused to recommend that charges be brought. (See id.)

2. August 31, 2020 Incident

Plaintiff alleges that on August 31, 2020, he called the RCDAO to speak to Neuendorf. (See Id. ¶ 43.) During this call, Plaintiff spoke with a secretary at the RCDAO and left a message for Neuendorf regarding an issue related to Plaintiff's EZ pass. (See Id. ¶¶ 43-47.)

After Plaintiff's call to RCDAO, Neuendorf called the CPD and spoke to a CPD dispatcher. (See Id. ¶ 51.) Neuendorf told the dispatcher that Plaintiff had made suicidal threats during a call to the RCDAO and requested that police conduct a welfare check of Plaintiff. (See id.) Plaintiff alleged that he never made any statements threatening harm to himself or others, and that Neuendorf lied when he told the CPD dispatcher that Plaintiff “sounded depressed and was being suicidal.” (See id. ¶ 58.)

Donegan and Culianos responded to Plaintiff's home, and ultimately took him to MNH pursuant to New York Mental Hygiene Law (“NYMHL”) § 9.41. (See id. ¶¶ 67, 74, 78-80.) MNH admitted Plaintiff and he was held for four days. (See id. ¶ 82.)

3. August 24, 2021 Incident

Plaintiff alleges he had a telephone conversation with Detective Alexandre Ramirez (“Ramirez”) from the New York State Attorney General's Office (“NYSAG”) on the morning of August 24, 2021. (See id. ¶¶ 88-89.) Plaintiff alleges that during his telephone conversation with Ramirez, Plaintiff had an exchange with Ramirez that gave Ramirez some pause. (See Id. ¶ 89.) Plaintiff told Ramirez, among other things, something to the effect of: “if I went to Gaza and indoctrinated myself into suicide bombing and walked into the district attorneys [sic] office and blew myself up nobody could blame me but I will not do that. I will not do that.” (Id. ¶ 94.)

At approximately 11:20AM, following Ramirez's call with Plaintiff, Ramirez sent an email to his superiors at the NYSAG's office memorializing his call with Plaintiff. (See Declaration of Darius P. Chafizadeh in Supp. of Rockland Defendants' Mot. To Dismiss (“Chafizadeh Decl.”) (Dkt. No. 228) Ex. H (8/24/21 Email Thread).) Ramirez wrote in his email to his superiors, among other things, that “[w]ithout mincing words, [Plaintiff] is an EDP [Emotionally Disturbed Person].” (Id. at 2.)

Assistant Chief Mario Rivera (“Rivera”), forwarded Ramirez's email to another individual, asking him to assign a detective to follow up with CPD and “make them aware of the threat.” (Id.) After a series of email forwards, (see id. at 1-2), the email finally reached RCSD Captain DeColyse (“DeColyse”), (see id. at 1).

Plaintiff alleges that, on August 24, 2021, he had a telephone conversation with DeColyse during which Plaintiff told DeColyse that Plaintiff never threatened anyone (during his telephone call with Ramirez earlier that morning), and that he possessed an audio recording of his telephone call with Ramirez that he claimed proved that he had not threatened anyone. (See FAC ¶¶ 99, 102.)

Plaintiff further contends that someone at the RCDAO told RCSD Detective John Scanlon (“Scanlon”) that Plaintiff was on his way to the RCDAO “to shoot the place up.” (See id. ¶¶ 104, 121.) Plaintiff alleges that the RCSD arrested him later that day. (See id. ¶ 103.) Plaintiff claims that the RCSD ignored the clearly exculpatory evidence of the audio recording of Plaintiff's telephone call with Ramirez, of which Plaintiff claims DeColyse and Leonard were plainly aware. (See id. ¶¶ 100-102, 120.)

Plaintiff alleges that, on October 27, 2021, the Westchester County District Attorney's Office dismissed the criminal complaint against Plaintiff. (See id. ¶ 97; Prior Opinion at 17.)

B. Procedural History

On March 29, 2023, the Court issued the Prior Opinion, which granted the Rockland Defendants' Motion To Dismiss Plaintiff's Second Amended Complaint in its entirety as against them and granted in part and denied in part the Clarkstown Defendants' Motion To Dismiss. (See Prior Opinion at 3, 82-83.) The Prior Opinion gave Plaintiff thirty days to file an amended complaint addressing the deficiencies identified therein. (See id. at 82.) Plaintiff subsequently filed the FAC on June 8, 2023. (See generally FAC.)^[3]

On June 21, 2023, the Rockland Defendants and the Orangetown Defendants each filed a pre-motion letter in anticipation of filing a motion to dismiss. (See Dkt. Nos. 214-15.) On June 27, 2023, the Defendant Wanamaker also filed a pre-motion letter in anticipation of filing a motion to dismiss. (See Dkt. No. 219.) After receiving letters from Plaintiff on June 27, 2023, (see Dkt. No. 220), and on June 28, 2023, (see Dkt. No. 221), the Court set a briefing schedule in lieu of holding a pre-motion conference, (see Dkt. No. 223).

On July 21, 2023, the Rockland Defendants filed their instant Motion. (See Rockland Not. of Mot.; Chafizadeh Decl.; Mem of Law in Supp. of Rockland Defen...