Tretola v. D'Amico

MARTIN TRETOLA; THOMAS TRETOLA;MARBLES ENTERPRISES, INC.d/b/a T&T GUNNERY;and T&T TACTICAL, INC., Plaintiffs, v. JOSEPH A. D'AMICO, Superintendent of the New York State Police;JAMES DEWAR, New York State Police Captain; EDWARD FRANKE, New York State Police Investigator;JOHN DOES #1-8, New York State Police Investigators;JOHN DOE #9, New York State Police Technical Sergeant;COUNTY OF NASSAU; KATHLEEN M. RICE, Nassau County District Attorney;ELISE MCCARTY, Nassau County Assistant District Attorney;KAREN BENNETT, Nassau County Assistant District Attorney;CHRIS RIBANDO, Nassau County District Attorney Chief Investigator;and NASSAU COUNTY DISTRICT ATTORNEY INVESTIGATOR JOHN DOES #1-8, Defendants.

13-CV-5705(JS)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: July 1, 2014

MEMORANDUM & ORDER

APPEARANCES

For Plaintiffs:

Charles H. Horn, Esq.

Harfenist Kraut & Perlstein, LLP

For Defendants

State Defendants:

Daniel Scott Hallak, Esq.

Office of the New York State

Attorney General

County Defendants:

Ralph J. Reissman, Esq.

Nassau County Attorney's Office

SEYBERT, District Judge:

Plaintiffs Martin Tretola, Thomas Tretola, Marbles Enterprises, Inc. d/b/a T&T Gunnery, and T&T Tactial, Inc. (collectively, "Plaintiffs") commenced this action on October 17, 2013 against defendants Joseph A. D'Amico, Superintendent of the New York State Police; James Dewar, New York State Police Captain; Joseph DeMaria, New York State Police Senior Investigator; Edward Franke, New York State Police Investigator; John Does #1-8, New York State Police Investigators; John Doe #9, New York State Police Technical Sergeant (collectively, the "State Defendants"); County of Nassau ("the County"); Kathleen M. Rice, Nassau County District Attorney; Elise McCarthy, Nassau County Assistant District Attorney; Karen Bennett, Nassau County Assistant District Attorney; Charles Ribando, Nassau County District Attorney Chief Investigator (together with the County, Rice, McCarthy, Bennett, and Ribando, the "County Defendants"); and Nassau County District Attorney Investigator John Does #1-8 (collectively, "Defendants") pursuant to 42 U.S.C. §§ 1983 and 1988. Currently pending before the Court are: (1) the State Defendants' motion to dismiss (Docket Entry 22); (2) the County Defendants' motion to dismiss (Docket Entry 23); and (3) an additional motion by the County Defendants to dismiss, which isduplicative of their first motion (Docket Entry 36). For the following reasons, the State Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, the County Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, and the County Defendants' additional motion to dismiss is DENIED AS MOOT given that it is duplicative of the first motion.

BACKGROUND¹

Plaintiffs' claims stem from a 2010 investigation. Prior to that time, in or about March 2006, the County, under the direction of Rice, began an investigation into T&T Gunnery, Martin Tretola's firearms store located in Seaford, New York. (Compl. ¶ 18.) The County ultimately brought seven misdemeanor charges against T&T Gunnery in Nassau County District Court. (Compl. ¶ 20.) After a trial, the court dismissed all of the charges. (Compl. ¶ 20.) Thereafter, the County and Rice initiated a felony prosecution for reckless endangerment against Martin Tretola. (Compl. ¶ 21.) That charge was also dismissed. (Compl. ¶ 22.) As a result, Martin Tretola and T&T Gunnery initiated a federal lawsuit of their own against the County and its employees. (Compl. ¶ 23.) That suit ended in a jury trial in Martin Tretola's and T&T Gunnery's favor. (Compl. ¶ 23.)

Plaintiffs allege that Defendants then began an investigation into T&T Gunnery in 2010 in retaliation for the prior suit. (Compl. ¶ 24.) Specifically, Defendants held meetings and arranged to purchase semi-automatic rifles from T&T Gunnery and other stores as part of a plan to prosecute individuals and stores for selling rifles that were in violation of New York Penal Law Section 265(22). (Compl. ¶¶ 25-26.) According to the Complaint, Defendants selected rifles to purchase based upon characteristics that they erroneously alleged made the rifles illegal. (Compl. ¶ 30.)

After the purchase of the rifles, "Defendants began to modify, alter, deface and change one, some or all of the purchased rifles to convert them from legal to illegal under Penal Law § 265(22)." (Compl. ¶ 34.) Specifically, Defendants used unknown tools to modify the rifles and alter them in such a way as to display characteristics of an illegal weapon. (Compl. ¶¶ 35-39.) Although the Complaint does not specify the particular individuals who modified the weapons, the modifications and alterations were performed in the presence of DeMaria and with the knowledge and/or instruction of Defendants. (Compl. ¶¶ 42-43.) These altered and modified semi-automatic rifles were then used to acquire a search warrant. (Compl. ¶ 50.)

On February 17, 2011, Defendants conducted a raid on T&T Gunnery and seized semi-automatic rifles. (Compl. ¶¶ 57, 63.) That same day, Plaintiffs were arrested and ultimately charged with multiple felonies and misdemeanors. (Compl. ¶¶ 52-55, 59.) Martin Tretola and Thomas Tretola were barred from purchasing or selling guns as a result of their arrest and prosecution. (Compl. ¶ 65.) Plaintiffs allege that "[d]espite knowing that the alleged illegal conduct engaged in by Plaintiffs was entirely lawful and based upon doctored evidence, all Defendants knowingly, willfully and intentionally initiated criminal proceedings against Plaintiffs on the fabricated evidence and false charges, causing Plaintiffs damages, including loss of business opportunity and severe emotional distress." (Compl. ¶ 74.)

Defendants presented their case to the Grand Jury. (Compl. ¶ 75.) In so doing, Defendants used altered rifles to support their case and members of the County and some of the individually named Defendants testified in front of the Grand Jury. (Compl. ¶¶ 76-77.) The Grand Jury dismissed all of the charges. (Compl. ¶ 78.)

Plaintiffs allege the following claims: (1) false arrest as against all Defendants; (2) malicious prosecution as against all Defendants; (3) First Amendment retaliation as against all Defendants; (4) failure to supervise as against theCounty; (5) failure to supervise as against D'Amico and Dewar; (6) Monell liability as against the County and Rice; (7) violation of Plaintiffs' Second Amendment rights as against all Defendants; and (8) legal fees against all Defendants.

DISCUSSION

Both the State Defendants and the County Defendants now move to dismiss. The Court will first address the applicable legal standard before turning to the respective motions. Where appropriate, the Court will provide a singular discussion of the motions and issues.

I. Legal Standard

In deciding Rule 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). First, although the Court must accept all allegations as true, this "tenet" is "inapplicable to legal conclusions;" thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at 72. Second, only complaints that state a "plausible claim for relief" can survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679. Determining whether a complaint does so is "a context-specific task that requiresthe reviewing court to draw on its judicial experience and common sense." Id.; accord Harris, 572 F.3d at 72.

II. Analysis

The State and County Defendants move to dismiss on several grounds. Notably, both motions address claims that Plaintiffs either do not intend to pursue, or did not raise in the Complaint. Some of these claims will be discussed infra. At this juncture, though, the Court notes that Plaintiffs have not raised any due process or conspiracy claims in the Complaint. (Pls.' Opp. Br. to State Defs.' Mot., Docket Entry 38, at 18.) Moreover, Plaintiffs concede that they cannot pursue their cause of action under the Second Amendment as currently pled. (Pls.' Opp. Br. to State Defs.' Mot. at 7-8; Pls.' Opp. Br. to County Defs.' Mot., Docket Entry 36-2, at 15.) Accordingly, the State and County Defendants' respective motions to dismiss Plaintiffs' claim for violation of their Second Amendment rights is GRANTED, and such claim is DISMISSED WITHOUT PREJUDICE.

The Court thus turns to the motions.

A. Immunity

Both the State and County Defendants move to dismiss based upon immunity. The State Defendants assert that the Eleventh Amendment bars Plaintiffs' claims against the State, the New York State Police, and the individual State Defendantssued in their official capacities. Like some of the claims just mentioned, however, Plaintiffs are not bringing such claims and any allegations against the individual State Defendants are against them in their individual capacities only. (Pls.' Opp. to State Defs.' Mot. at 17.) Accordingly, the Court will not address this argument further as it is inapplicable to the case at bar.

Similarly, though, the County Defendants assert that they are entitled to absolute prosecutorial immunity. (County Defs.' Br., Docket Entry 23-1, at 4-10.) Absolute immunity extends to claims against government officials in their official capacities that arise out of their performing functions "analogous to those of a prosecutor." Butz v. Economou, 438 U.S. 478, 515, 98 S. Ct. 2894, 2915, 57 L. Ed. 2d 895 (1978); see also Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). In determining whether a government official is immune from suit, "the courts are to apply a 'functional approach,' examining 'the nature of the function performed, not the identity of the actor who performed it.'" Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 199...