Simon v. City of New York, 09–CV–1302 (ENV) (RER).

819 F.Supp.2d 145

Alexina SIMON, Plaintiff,

v.The CITY OF NEW YORK, Detective Douglas Lee, Sergeant Evelyn Allegre, Ada Francis Longobardi, Defendants.

No. 09–CV–1302 (ENV) (RER).

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

Oct. 7, 2011.

Ugochukwu Uzoh, Ugo Uzoh, P.C., Brooklyn, NY, for Plaintiff.

Andrew Thomas Myerberg, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

VITALIANO, District Judge.

Plaintiff Alexina Simon commenced this action against the City of New York, Detective Douglas Lee, Sergeant Evelyn Allegre, and Assistant District Attorney Francis Longobardi, alleging violations of her civil rights. On May 14, 2010, Simon filed a motion to amend her complaint a second time, which the Court referred to Magistrate Judge Ramon E. Reyes for a Report and Recommendation (“R & R”). On January 28, 2011, the Court adopted Judge Reyes's R & R in its entirety, which, among other things, concluded that Simon's claims were “precluded by absolute or qualified immunity.” Simon v. City of New York, 09–CV–1302, 2011 WL 317975, at *8, 2011 U.S. Dist. LEXIS 9515, at *26 (E.D.N.Y. Jan. 3, 2011). Defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For essentially the same reasons set forth in Judge Reyes's R & R, the Court finds that plaintiff's claims fail as a matter of law and, accordingly, summary judgment is granted in favor of defendants.

I. BACKGROUND

At the start of this episode, plaintiff was identified by the Queens County District Attorney's Office (“Queens DA”) as a person of interest in the theft of a Shantell McKinnies' vehicle. When McKinnies reported her vehicle missing, she also named “Alexandra Griffin” as the last person to see the vehicle. When police officers tried to locate “Alexandra Griffin,” they were unsuccessful. However, plaintiff herself telephoned the NYPD on January 16, 2008 in connection with the missing car complaint, informing that her name was Alexandra Simon, not Griffin, and that she was perplexed by McKinnies's allegation regarding her missing vehicle. On July 17, 2008, the Queens DA failed in its attempt to serve plaintiff with a subpoena to appear to provide information and give testimony before a grand jury.

About three weeks later, on August 8, 2008, Francis Longobardi, an Assistant District Attorney, filed both an application for a material witness order naming Simon and a warrant for her arrest, which was issued on the same day. Simon alleges that, on August 11 and 12, 2008, certain officers, who were purportedly “assigned to the New York Police Department's 102nd Precinct,” unlawfully arrested and detained her. She alleges that the officers told her that they had a warrant for her arrest, took her into custody, and transported her to criminal court. Plaintiff claims that the officers interrogated her without an attorney and deprived her of food, drink, and medication. She filed suit on March 27, 2009, pursuant to 42 U.S.C. § 1983, alleging that the police officers she sued had unlawfully arrested and detained her in August 2008.

Defendants have a very different version of the story. They deny that Simon was “arrested” on either August 11 or 12; instead, they say, she was “picked up by two investigators employed by the Queens County DA's Office, and [ ] then transported to the Queens DA's Office, in accordance with the material witness order.” On August 11, 2008, the Queens DA investigators met plaintiff at her place of business and escorted her to the office pursuant to the material witness order. Plaintiff was returned home on August 11, 2008, and was met by the same investigators at her home the next day, August 12, 2008. Again, plaintiff accompanied the investigators to the Queens DA's office and returned home later that same day.

II. STANDARD OF REVIEW

A motion for summary judgment is granted only if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court's responsibility in assessing the merits of a summary judgment motion is thus not to try issues of fact, but rather to “determine whether there are issues of fact to be tried.” Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir.1995) ( quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984)). Accordingly, the moving party bears the burden of demonstrating that there is no genuine issue as to any material fact, see, e.g., Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005), and the Court must resolve all ambiguities in the evidence and draw all permissible factual inferences in favor of the party opposing the motion. See, e.g., Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.2004); Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir.1997) (“If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.”).

If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party to present “specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e). The nonmoving party may not then rely solely on “conclusory allegations or unsubstantiated speculation” in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Rather, the nonmoving party must “make a showing sufficient to establish the existence of [each] element to that party's case ... since a complete failure of proof concerning an essential element of ... the non-moving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. If the evidence favoring the nonmoving party is “merely colorable ... or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations omitted).

III. DISCUSSION

A. Absolute and Qualified Immunity1. The Prosecutor's Actions

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court first recognized the absolute immunity of prosecutors to § 1983 suits, holding that “a state prosecuting attorney [acting] within the scope of his duties in initiating and pursuing a criminal prosecution” is not amenable to suit. “ Imbler defined the scope of prosecutorial immunity not by the identity of the actor, but by reference to the ‘function’ performed.” Warney v. Monroe Cnty., 587 F.3d 113, 120–121 (2d Cir.2009) (citing Imbler, 424 U.S. at 430, 96 S.Ct. 984); see also Hill v. City of New York, 45 F.3d 653, 660 (2d Cir.1995). In that respect, “those acts that are ‘intimately associated with the judicial phase of the criminal process' would be shielded by absolute immunity, but not ‘those aspects of the prosecutors responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.’ ” Id. (citing Imbler, at 430–31, 96 S.Ct. 984). The cases therefore “draw a line between the investigative and administrative functions of prosecutors, which are not protected by absolute immunity, and the advocacy functions of prosecutors, which are so protected.” Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir.2001). Generally, it is “unhelpful to ascertain the prosecutors' functional role by isolating each specific act done or not done ... [because] a prosecutor's function depends chiefly on whether there is pending or in preparation a court proceeding in which the prosecutor acts as an advocate.” Warney, 587 F.3d at 123.

Actions taken prior to the start of a formal legal proceeding are not entitled to absolute immunity because prior to the start of such a formal proceeding, the prosecutor has not stepped into his role as an advocate. See, e.g., Burns v. Reed, 500 U.S. 478, 493, 111 S.Ct. 1934, 1943, 114 L.Ed.2d 547 (1991) (“advising the police during the investigative stage of a case that they have probable cause to arrest” is not advocacy and is only entitled to qualified immunity); Hill, 45 F.3d at 661 (“investigation of charges of child abuse and the removal of a child from its parents' custody is accorded only qualified protection”). Absolute immunity also does not apply “when a prosecutor gives advice to police during a criminal investigation, when the prosecutor makes statements to the press, or when a prosecutor acts as a complaining witness in support of a warrant application.” Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 861, 172 L.Ed.2d 706 (2009) (citations omitted). Absolute immunity does apply “when a prosecutor prepares to initiate a judicial proceeding, or appears in court to present evidence in support of a search warrant application.” Id.

Simon alleges that Longobardi presented false and misleading information in his judicial application for the material witness warrant. She focuses on the fact that the ADA submitted a sworn affidavit in support of the application, thus placing himself, she argues, in the role of an investigator or witness. On this point, Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), is instructive. There, the Supreme Court held that a prosecutor's “activities in connection with the preparation and filing of two of ... three charging documents—the information and the motion for an arrest warrant—[were] protected by absolute immunity” but “her act in personally attesting to the truth of the averments in [a] certification” was not protected as she was “acting as a complaining witness rather than a lawyer when she executed the certification ‘under...