Sclafani v. Spitzer

734 F.Supp.2d 288

Mario SCLAFANI and Braulio Baeza, Plaintiffs,

v.Eliot SPITZER, Individually, The New York Racing Association, Inc., Assistant Deputy Attorney General John Dormin, Individually, Assistant Attorney General Meryl Ann Lutsky, Individually, Paul Borella New York State Police Investigator, Individually, Safir Rosetti, LLC, Fred Baldino, Individually, and David Samuel, Individually, Defendants.

No. 08-CV-3654 (JBW).

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

Aug. 27, 2010.

Addabbo & Greenberg, Forest Hills, NY, by Todd D. Greenberg, Jonathan I. Edelstein, Esq., New York, NY, Der Ohannesian & Der Ohannesian, Albany, NY, by Paul Der Ohannesian, II, Esq., for Plaintiffs.

New York State Department of Law, New York, NY, by Daniel Schulze, Esq., for Defendants.

Cozen & O'Conner, New York, NY, by Russell V. Wheeler, Esq., Richard Fama, for Safir Defendants.

MEMORANDUM, ORDER & JUDGMENT

JACK B. WEINSTEIN, Senior District Judge:

I.	Introduction	291
II.	Facts and Procedural History	292

A.	Parties	292
B.	Procedural History	293
C.	NYRA/Safir Investigation	293

1.	Baldino Alerts Borella to Potential Improprieties	293
2.	Meetings Between Safir Defendants and State Defendants	294

D. State's Investigation 294

1.	Surveillance of Jockey Room at Saratoga	294
2.	Surveillance of Jockey Room at Aqueduct and Belmont	294

E.	Indictments and Dispositions	294
F.	Request for Additional Discovery	295

III. Law 295

A. Summary Judgment 295

1.	Rules 56(c) and (e)	295
2.	Rule 56(f)	295

B. Immunity for Government Officials 296

1.	Absolute	296
2.	Qualified	297

C.	Liability under Section 1983 for Private Actors Under Color of State Law	297
D.	Conspiracy with Public Officials	297
E.	Malicious Prosecution under New York Law and Section 1983	297

1. Liability for Individuals 297

a. Initiation of a Criminal Proceeding 298

b.	Probable Cause	298
c.	Actual Malice	299
d.	Favorable Termination	299

2. Vicarious Liability 299

F. "Stigma-Plus" Claim Under Section 1983 299

IV. Application of Law to Facts 300

A. Immunity for Government Officials 300

1.	Absolute	300
2.	Qualified	301

B.	Liability under Section 1983 for Private Actors under Color of State Law	301
C.	Conspiracy with Public Officials	302
D.	Organization's Liability for Torts Committed by Employees	302
E.	Malicious Prosecution	302
F.	Stigma Plus	302

V. Conclusion 305

I. Introduction

Plaintiffs Mario Sclafani and Braulio Baeza, former employees of the New York Racing Association ("NYRA"), sued a former New York State Attorney General and other government officials, described below, pursuant to Section 1983 of Title 42 of the United States Code. See, infra, Part II.A (describing State defendants). They raise federal constitutional and pendantstate claims. Improper criminal investigations and prosecutions in state court were, they allege, based on trumped up charges that plaintiffs defrauded the betting public and owners of horses by allowing jockeys to ride while weighing more than is permitted by New York law, by keeping false records, and by accepting bribes.

The defendants' alleged motives: the NYRA pursued them to demonstrate to state and federal officials that it was committed to cleaning up horse racing; and others prosecuted them for political public relations advantages to further their careers. At the time of the State's investigation, the NYRA was facing possible federal prosecution. Its license to operate horse races was about to expire. It hired a private investigative firm, Safir Rosetti, to investigate possible fraud, and contacted New York State Investigators.

Plaintiffs seek $100,000,000 in compensatory damages and $100,000 in punitive damages. Attorneys' fees are requested.

Immunity and other defenses require dismissal. Although prosecutors are not always unblemished or free of any personal motive, they must have wide discretion to ensure that spectator sports remain as unsullied as possible. A court is not in a position to determine their aspirations by psychoanalyzing public officials-that is the role of the voter. Government officials and quasi-public organizations, including the NYRA, require a large degree of freedom in utilizing private investigators to ferret out illegality and in taking appropriate prophylactic and purification precautions. Here, they violated no right of plaintiffs in carrying out their duties.

For the reasons stated below summary judgment is granted against plaintiffs. The case is dismissed. No reasonable juror could fail to find for all the defendants.

II. Facts and Procedural History

A. Parties

Plaintiffs were employees of the NYRA. Compl. ¶¶ 6, 7. Sclafani was a Clerk of the Scales. Id. Baeza was an Assistant Clerk of the Scales. Id. N.Y. Comp. Codes R. & Regs. tit. 9, § 4023.4(c). The NYRA is a private non-profit quasi-governmental actor, against whom the complaint was voluntary dismissed. The other defendants are adequately described by their titles or were privately employed by those charged with protecting the public against misfeasance at the race tracks.

Together with others, plaintiffs were responsible for weighing jockeys before races to see that they did not ride "overweight." A jockey more than two pounds overweight needs permission to race from the owner of the horse. N.Y. Comp. Codes R. & Regs. tit. 9 § 4033.5. A jockey more than five pounds overweight is not allowed to race. N.Y. Comp. Codes R. & Regs. tit. 9 § 4033.6.

There are four New York State Government defendants. Eliot Spitzer was the Attorney General of New York when the acts charged were allegedly committed. Compl. ¶ 8. He supervised the conduct of the other State defendants. Id. ¶ 75. Assistant Deputy Attorney General John Dormin and Assistant Attorney General Meryl Ann Lutsky were assigned to the plaintiffs' prosecution. Id. ¶¶ 9-10, 82. Paul Borella investigated the plaintiffs as a New York State Police Officer. Id. ¶ 11.

The NYRA retained Safir Rosetti, LLC, a private investigative firm, to conduct a broad integrity review of the organization's policies, procedures, and operations. Fred Baldino and David Samuel were Safir's employees. An NYRA board member alerted Safir to possible improprieties involving procedures used to weigh jockeys at NYRA racetracks and concerns thataccurate jockey weights were not being recorded.

B. Procedural History

The plaintiffs advanced claims against the firm and two of its investigators, Fred Baldino and David Samuel, who assisted in the investigation and prosecution (Safir Rosetti, LLC, Baldino and Samuel, collectively hereinafter "Safir defendants"). Id.

All defendants moved for dismissal of all claims. See Gov't Mem. Supp. Mot. Dismiss ("Gov't Br."), Feb. 20, 2009, Docket Entry No. 30; Safir's Mem. Supp. Mot. Dismiss ("Safir's Br."), Feb. 20, 2009, Docket Entry No. 32. See also Gov't Reply Mem. Supp. Mot. Dismiss ("Gov't Reply"), Apr. 5, 2010, Docket Entry No. 104; Safir's Reply Mem. Supp. Mot. Dismiss ("Safir's Reply"), Apr. 6.2010; Docket Entry No. 106. By court order, the motion was converted to one for summary judgment. Order, Apr. 24, 2009, D.E. No. 37.

At argument, see Hr'g Tr. Apr. 12, 2010, plaintiffs consented to dismissal of their claims for false arrest, abuse of process, denial of a fair trial and denial of equal protection. They "have withdrawn [ ] all but their malicious prosecution claim under Section 1983, and ... New York State Law." Id. at 26 (claiming a conspiracy between the private and state defendants); see also Pls.' Mem. in Opp. to Defs.' Mot. Dismiss ("Pls.' Br."), Mar, 12, 2010, Docket Entry No. 102, at 1 n. 2. They also oppose dismissal of their "stigma plus" due process claims and their federal and state malicious prosecution claims. See Id. at 17-56. Considered and determined by the court to be without merit were the original claims for denial of equal protection of the law, false arrest, malicious abuse of process, and denial of a fair trial. Any other possible claims would be frivolous. No basis for an amended complaint exists.

C. NYRA/Safir Investigation

Samuel and Baldino obtained NYRA approval to establish video and physical surveillance of the jockey rooms. During the winter 2004 racing season, a camera was placed in the New York City Aqueduct track jockey room. On the video feed Baldino observed the weigh-out of jockeys to be quick, and he noticed that the needle did not come to a complete rest. He reported those observations to Samuel. On one or two occasions, they observed a jockey place a small unidentified object into the jacket pocket of the person recording the jockey weights at a desk next to the scales.

When the meet moved to the Belmont track the camera followed. Baldino transferred it to the Belmont jockey room, and obtained authority from Samuel to add another camera directly above the scale. Baldino observed the weigh-out process to be quick and recalled one instance in which the weight shown by the scale appeared to exceed what he thought was listed for that jockey in the racing program.

1. Baldino Alerts Borella to Potential Improprieties

At Samuel's request, Baldino phoned Borella on June 4, 2004 to advise him of the initial information the Safir defendants had received about possible improprieties in weighing jockeys. Borella testified that he was already aware of this "evidence," having been advised by a confidential source in early 2004 of allegations that jockeys were being allowed to ride overweight. Baldino's deposition revealed that he did not tell Borella that jockeys were bribing the clerk of scales, and that he neither asked Borella to take any action with respect to the investigation nor told Borella that he would do so.

2. Meetings Between Safir Defendants and State Defendants

Safir and his associates reported their observations to state officials at June 23, June 30 and July 31, 2004 meetings. After this last meeting, the Safir group had no substantial contact with the investigation.

D. State's Investigation

1. Surveillance of Jockey Room at Saratoga

The State's investigation began without Safir and focused on the Saratoga track and jockey room. Electronic and physical surveillance at...