Faison v. Maccarone

TIMOTHY FAISON, Plaintiff,

v.JOHN MACCARONE, ET AL., Defendants.

No 11-CV-0137 (JFB) (ETB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 1, 2012

Dated: March 1, 2012

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Timothy Faison (hereinafter "plaintiff" or "Faison") brought this action against defendants John Maccarone, United States Attorney Loretta Lynch ("USA Lynch"), Assistant United States Attorney Lara Gatz ("AUSA Gatz"), Nassau County District Attorney Kathleen Rice ("DA Rice"), Nassau County Assistant District Attorney Joanna Hershey ("ADA Hershey"), Chris Grella and Robert Schlee. Plaintiff alleges that defendant Maccarone violated his Fifth, Sixth and Fourteenth Amendment rights. Plaintiff alleges defendants AUSA Gatz and USA Lynch violated his Fifth and Fourteenth Amendment rights. Plaintiff alleges that defendants ADA Hershey, DA Rice, Grella and Schlee violated his Fourth, Fifth and Fourteenth Amendment rights. The Court construes plaintiff's claims to allege conspiracy, malicious prosecution, grossly negligent supervision, false arrest and double jeopardy against some or all of the defendants.¹

Defendants AUSA Gatz and USA Lynch moved to dismiss plaintiff's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants DA Rice and ADA Hershey moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(c). Defendant Maccarone separately moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(c).² For the reasons discussed herein, the Court grants defendants' motions to dismiss and dismisses plaintiff'scomplaint with respect to the moving defendants.

I. BACKGROUND

A. The Complaint

The following facts are taken from the complaint and plaintiff's supplement to the complaint,³ are not findings of fact by the Court. They are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to the plaintiff, the non-moving party.

On June 19, 2010, plaintiff appeared in Hempstead District Court to face unspecified criminal charges.⁴ (Complaint ("Compl.") at 5.⁵ ) Defendant Maccarone entered the "bullpen" and informed plaintiff that defendant Maccarone had been appointed to represent plaintiff. (Id.) Plaintiff alleges that defendant Maccarone demanded a retainer of $7,500, and plaintiff provided defendant Maccarone with the combination to his safe and directions to go to plaintiff's house with plaintiff's wife in order to retrieve the money from the safe. (Id.) Plaintiff alleges that defendant Maccarone went to his house, opened the safe, and stated to plaintiff's family, "[t]here's some interesting stuff in this safe." (Id.) Plaintiff alleges that defendant Maccarone returned to the "bullpen" and told plaintiff that he had "seen some interesting stuff in [plaintiff's] safe." (Id.)

Plaintiff alleges that defendant Maccarone informed plaintiff that, before plaintiff could return home, plaintiff could "debrief" with the Nassau County District Attorney's office and the arresting officers. (Id.) On June 21, 2010, plaintiff attended this meeting. (Id.) Plaintiff signed a form in the meeting agreeing to "debrief." (Id. at 6.) Before leaving the meeting, defendant Maccarone told plaintiff to "tell them everything about [himself] as well as others." (Id.) It is unclear from the complaint whether plaintiff complied with defendant Maccarone's instructions. At some point, an agent with the Drug Enforcement Administration, Scott J. Knox, introduced himself and began interrogating plaintiff and asking plaintiff what was in plaintiff's house. (Id.) Plaintiff alleges that, before leaving the meeting, defendant Maccarone informed plaintiff of everyone who would be present at the meeting, but he did not inform plaintiff that Knox would be at the meeting. (Id.)

Plaintiff retained new counsel on August 4, 2010. (Id.) That day, defendant Maccarone informed the son of plaintiff's new counsel, who is also an attorney, that plaintiff would be arraigned in federal court the next day. (Id.) On August 5, 2010, plaintiff was arraigned in federal court based on a complaint sworn by Agent Knox. (Id.) Plaintiff alleges that defendant Maccarone conspired with the defendants and others to force plaintiff to incriminate himself, and alleges that defendant Maccarone disclosed to Agent Knox the contents of plaintiff's safe. (Id. at 7.)

Plaintiff alleges that one of the charges brought in federal court was the same charge brought in state court. (Id. at 8.) Plaintiff alleges that the state charges were dismissed on September 24, 2010, and sealed on October 29, 2010. (Id. at 9.) Plaintiff alleges that defendants Grella and Schleefailed to return a vehicle and money seized from plaintiff after the charges were dismissed.⁶ (Id.)

B. Procedural History

Plaintiff filed his complaint on January 7, 2011. Plaintiff filed a document titled "Amending Civil Rights Complaint" on January 28, 2011. Defendant Maccarone filed an answer on March 18, 2011, defendants DA Rice and ADA Hershey filed an answer on March 24, 2011, and defendants AUSA Gatz and USA Lynch filed an answer on June 16, 2011. Defendants DA Rice and ADA Hershey filed a motion to dismiss on August 4, 2011. Defendants AUSA Gatz and USA Lynch filed a motion to dismiss on August 8, 2011. Defendant Maccarone filed a motion to dismiss on September 7, 2012. On September 16, 2012, defendants DA Rice and ADA Hershey filed a reply in support of the motion to dismiss. On September 26, 2011, plaintiff filed two separate oppositions to the two motions to dismiss filed by DA Rice and ADA Hershey, and AUSA Gatz and USA Lynch.⁷

C. The Federal Prosecution

On September 1, 2010, the government filed an indictment against Faison charging him with one count of possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)((1)(A)(iii). Indictment, United States v. Faison, 10-CR-674 (E.D.N.Y. Sept. 1, 2010), ECF No. 1. On December 14, 2010, Faison filed a motion pro se to dismiss the indictment on the grounds that the prosecution "did not follow due process of law by failing to establish the rule of dual sovereignty," that the double jeopardy clause bars separate prosecutions by state and federal authorities, and that the federal indictment fails to state other offenses that should be consolidated. Def.'s Motion to Dismiss at 2, 5,⁸ United States v. Faison, 10-CR-674 (E.D.N.Y. Dec. 14, 2010), ECF No. 14-2. At a status conference held on February 11, 2011, Faison requested to proceed pro se, and that application was granted. Minute Entry, United States v. Faison, 10-CR-674 (E.D.N.Y. Feb. 11, 2011), ECF No. 15.

On March 25, 2011, the court denied Faison's motion to dismiss filed on December 14, 2010, finding that "defendant was not placed in jeopardy in the state court action, and therefore double jeopardy in the federal action cannot occur." Minute Entry, United States v. Faison, 10-CR-674 (E.D.N.Y. Mar. 25, 2011), ECF No. 19.

On April 11, 2011, Faison's advisory counsel requested a competency hearing because Faison insisted on going to trial, after which he could be sentenced to life in prison due to his prior criminal history, despite his former cooperation which would substantially lessen his punishment should he plead guilty to the alleged crime.⁹ Lato Letter, United States v. Faison, 10-CR-674, (E.D.N.Y. Feb. 11, 2011), ECF No. 22. Faison's advisory counsel reported that a clinical psychiatrist expressed that Faisonmay be suffering from diminished or compromised cognitive ability or a thought disorder. Id.

On April 13, 2011, the grand jury returned a superseding indictment charging Faison with one count of possession of cocaine base with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii); one count of distribution of cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii); and two counts of distribution of cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Superseding Indictment, United States v. Faison, 10-CR-674 (E.D.N.Y. Apr. 13, 2011), ECF No. 26. The government also gave notice that it would seek forfeiture upon the conviction of any of the offenses. Id.

At a status conference held on June 22, 2011, the court accepted the psychological evaluation report submitted to the court on June 20, 2011 and found Faison competent to stand trial. Minute Entry, United States v. Faison, 10-CR-674 (E.D.N.Y. June 22, 2011), ECF No. 36.

On August 16, 2011, Faison filed a motion to dismiss the indictment on the grounds that AUSA Gatz committed prosecutorial misconduct by filing a false indictment. Def.'s Motion to Dismiss, United States v. Faison, 10-CR-674 (E.D.N.Y. Aug. 16, 2011), ECF No. 51.

On August 17, 2011, the grand jury returned a second superseding indictment charging Faison with one count of possession of cocaine base with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); one count of distribution of cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); and two counts of distribution of cocaine base, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Second Superseding Indictment, United States v. Faison, 10-CR-674 (E.D.N.Y. Aug. 17, 2011), ECF No. 54. The government also gave notice that it would seek forfeiture upon the conviction of any of the offenses. Id.

On September 8, 2011, the court denied Faison's motion to dismiss that was filed on August 16, 2011. Minute Entry, United States v. Faison, 10-CR-674 (E.D.N.Y. Sept. 8, 2011), ECF No. 64.

Trial began on September 14, 2011. On September 21, 2011, the jury returned a verdict of guilty on all counts of the second superseding indictment. Minute Entry, United States v. Faison, 10-CR-674 (E.D.N.Y. Sept. 21, 2011), ECF No. 75. Faison is currently awaiting sentencing for this conviction before Judge Hurley.

II. STANDARD OF REVIEW

When a Court reviews a motion to dismiss for failure to state a claim for which relief can be granted pursuant to Federal Rule of Civil...