Dowd v. DeMarco

314 F.Supp.3d 576

Charles DOWD, Plaintiff,

v.Daren DEMARCO, individually, and in his capacity as an officer of the New York City Police Department, Kurt Weber, individually, and in his capacity as an officer of the New York City Police Department, Joseph DiBartolomeo, individually, and in his capacity as an officer of the New York City Police Department, Joseph Reznick, individually and in his capacity as an officer of the New York City Police Department, and John Does of the New York City Police Department, the identity and number of whom is presently unknown, Defendants.

17–Cv–8924 (SHS)

United States District Court, S.D. New York.

Signed June 12, 2018

Michelle Nicole Tanney, Susrut A. Carpenter, John W. Moscow, Baker & Hostetler LLP, New York, NY, for Plaintiff.

Courtney Patrice Fain, Ryan Glenn Shaffer, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge

This action is brought pursuant to 42 U.S.C. § 1983 by a former Assistant Chief of the New York Police Department, Charles Dowd, against NYPD internal affairs officers who allegedly maliciously subjected him to baseless ethical charges that he improperly accepted gifts from an outside vendor. Though Dowd was ultimately cleared of those charges after an administrative hearing, he claims that he was harmed by having to pay lawyers to defend him and by the continued presence of the departmental charges in his NYPD personnel file.

The four named defendants are NYPD officers who are represented by the Corporation Counsel of the City of New York. Defendants previously moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and plaintiff amended his complaint in response. Defendants then moved to dismiss the amended complaint, again for failure to state claims upon which relief can be granted.

As set forth below, the Court agrees that plaintiff has failed to set forth viable claims for relief and therefore grants defendants' motion to dismiss the amended complaint.

I. Background

A. Factual Background

The following facts are as alleged in the first amended complaint ("FAC") and are assumed to be true for purposes of this motion. Plaintiff Charles F. Dowd served thirty-four years in the New York Police Department and attained the rank of Assistant Chief, which is in "the top forty officers of the hierarchy of the NYPD," before retiring in May 2014. (FAC, Doc. 25 ¶¶ 8–9.) Defendants Sergeant Daren DeMarco, Lieutenant Kurt Weber, Deputy Inspector Joseph DiBartolomeo, and Deputy Commissioner Joseph Reznick are NYPD officers who served in the department's Internal Affairs Bureau ("IAB") in 2014. (Id. ¶¶ 10–13.) These four officers are sued in both their individual and official capacities, along with unidentified John Doe police officers alleged to be their co-conspirators. (Id. ¶¶ 10–14.)

Beginning in March 2014, Dowd alleges, defendants conspired to subject him to baseless disciplinary charges falsely asserting that he improperly accepted gifts from Black Box Network Services, a vendor doing business with the NYPD. (Id. ¶¶ 1–2, 16, 19.) Assisted by an unspecified number of John Does, Reznick allegedly supervised the work of DiBartolomeo; DiBartolomeo supervised Weber; and Weber in turn supervised DeMarco, who was the "primary investigator in the matter." Plaintiff identifies DeMarco as "the individual on which the entire investigation into Chief Dowd pivoted," but also alleges that all four defendants approved the filing of the disciplinary charges. (Id. ¶¶ 10, 21; see also id. ¶¶ 11–14.)

The substance of those charges was that on specified dates from 2010 to 2013, Black Box paid the costs for Dowd's attendance at five meals, a golf outing, and a Yankees game—for an estimated total value to him of more than $780. (Id. ¶ 21; Petition, Doc. 29–3 ¶ 6.) In fact, however, Dowd possessed alibi evidence proving that he was out of state or otherwise occupied on six of these seven occasions. And as for the seventh—a July 1, 2010 dinner at Wolfgang's Steakhouse, at a cost of $342.87 per person—the department possessed insufficient evidence to prove either that Dowd attended the dinner or that, if he did, he failed to pay his fair share. (FAC ¶ 27.)

Plaintiff cites various reasons to believe that defendants' investigation was conducted in bad faith. According to Dowd, defendants either chose not to review or else maliciously suppressed available evidence—"NYPD documents such as duty rosters, time sheets, travel requests and approvals, EZ Pass records, official photographs, and telephone records"—that would have exculpated him by establishing his absence from the events in question. (Id. ¶ 30; see also id. ¶¶ 17, 27.) Defendant DeMarco, the lead investigator, did not interview either plaintiff or the Black Box salesmen implicated in the allegations, although two investigators from the U.S. Attorney's office did interview Dowd. (Id. ¶¶ 16, 31–32.) In addition, though DeMarco later testified under oath (at the administrative hearing described below) that he maintained a file recording the details of his investigation, the NYPD Legal Bureau denied the existence of any such file in response to a subpoena. (Id. ¶ 31.)

When Dowd learned in March 2014 that he was under investigation in connection with these allegations, he twice sought unsuccessfully to meet with the police commissioner to discuss the matter. In April 2014, at least one New York newspaper published an article implicating Dowd in alleged Black Box-related ethics violations by two of his subordinates; Dowd alleges that defendants leaked the story to the press. Dowd then filed for retirement on May 1, 2014, effective thirty days later. (Id. ¶¶ 18–19.)

Defendants brought departmental charges against Dowd in August 2014 and forwarded the charges to the New York Conflicts of Interest Board ("COIB" or "Board"). (Id. ¶¶ 19, 23.) Dowd claims that defendants intentionally waited to file the charges until after his retirement, foreclosing the possibility of resolving the matter through an internal NYPD hearing—which would have spared him the "enormous" expenditure of legal fees for his own defense—and preventing him from challenging the departmental charges, which remain in his personnel file to this day. (Id. ¶¶ 3, 19–20, 22, 44, 57.)

In January 2015, the COIB served Dowd with a notice of their "initial determination ... that there is probable cause to believe [Dowd] violated provisions of Chapter 68 of the City Charter," which governs conflicts of interest. (Probable Cause Notice, Doc. 29–2; see FAC ¶ 23.) The Board gave Dowd twenty days to respond to the allegations before it would commence a hearing at the New York City Office of Administrative Trials and Hearings ("OATH") to determine whether the violations had in fact occurred. (FAC ¶¶ 23–24; Probable Cause Notice at 3.) Although Dowd responded to that first notice, the Board nonetheless served him in July 2015 with a Notice of Petition commencing formal proceedings, giving him thirteen days to answer the allegations or else be deemed to have admitted them in the subsequent OATH hearing. (FAC ¶¶ 24–26; Notice of Petition, Doc. 29–3 at 1–2.)

Dowd repeatedly characterizes these COIB charges as "criminal charges" or a "criminal prosecution," (FAC ¶¶ 2, 59; see also id. ¶¶ 1, 16–18, 26, 58), citing the provision in New York City Charter Section 2606(c) that a violator of the charter's conflicts-of-interest rules "shall be guilty of a misdemeanor." Hence, plaintiff asserts that any failure to respond to the COIB petition "would result in Chief Dowd being found guilty of a misdemeanor." (FAC ¶ 24.)

After Dowd hired counsel and presented evidence refuting the allegations against him, the administrative hearing judge recommended to the COIB that it dismiss the charges for lack of probable cause. (Id. ¶¶ 26–28.) The COIB agreed and Dowd was "acquitted" after the hearing. (Id. ¶¶ 4, 29.) However, the original departmental charges remain in plaintiff's permanent NYPD file—which "still reflect[s] that there are charges pending against him"—and Dowd alleges that as a result of his retirement he is "forbidden" from securing the removal of those charges from the file. (Id. ¶ 20; see also id. ¶¶ 4, 44, 69.) Due to this stain on his reputation, Dowd alleges, he has not subsequently obtained full-time employment, despite efforts to do so. (Id. ¶¶ 47, 53.)

Though Dowd claims that "Defendants had no other motive but to humiliate and embarrass" him, (id. ¶ 46), he hints darkly at an ulterior purpose with the allegation that "[a]t all relevant times, the Conspirators were aware that the Police Commissioner, who had been a shareholder and director of a company affected by Chief Dowd's decisions over the years, had no affection for him." (Id. ¶ 15; see also id. ¶¶ 9, 17.)

B. Original Complaint and First Motion to Dismiss

Dowd filed the original complaint in this action on November 15, 2017. That pleading asserted three claims against defendants pursuant to 42 U.S.C. § 1983 for (1) malicious prosecution, (2) conspiracy to deprive plaintiff of his constitutional rights, and (3) "injunctive relief." (Compl. ¶¶ 29–44.) Dowd asked the Court to order the NYPD to remove the charges from his personnel file and to award compensatory damages for his economic losses and reputational harms, along with punitive damages, fees, and costs. (Id. at 12–13.)

In January of this year, defendants moved to dismiss the complaint for failure to state a claim. Defendants argued that Dowd had failed to allege a deprivation of liberty implicating his Fourth Amendment rights, as required to state a claim for malicious prosecution, and that the conspiracy claim accordingly deserved dismissal due to the lack of any constitutional violation (or, alternatively, due to the intracorporate conspiracy doctrine's bar on conspiracy claims against officers in the same organization). (See Defs.' Original Mem., Doc. 24 at 1.)

C. Amended Complaint and Second Motion to Dismiss

Dowd...