Byrne v. City of New York ( 2018 )

17-3191-cv
Byrne v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of May, two thousand eighteen.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge.*
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JOHN BYRNE,
Plaintiff-Appellant,
PHILIP BLESSINGER, SCOTT GRECO, DARLENE ILCHERT,
Plaintiffs,
v. No. 17-3191-cv
CITY OF NEW YORK, DISTRICT ATTORNEY
CYRUS R. VANCE, JR., individually and in his official
capacity as District Attorney of the New York County
District Attorney’s Office, ASSISTANT DISTRICT
ATTORNEY JODIE KANE, individually and in her
official capacity as Assistant District Attorney,
ASSISTANT DISTRICT ATTORNEY MICHAEL OHM,
individually and in his official capacity as Assistant
District Attorney, ASSISTANT DISTRICT ATTORNEY
*
Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
CHRISTOPHER SANTORA, individually and in his
official capacity as Assistant District Attorney, BRYAN
SERINO, individually and in his official capacity as
Assistant District Attorney, ASSISTANT DISTRICT
ATTORNEY VIMI BHATIA, individually and in her
official capacity as Assistant District Attorney,
Defendants-Appellees.
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FOR APPELLANT: Dana E. Heitz, Heitz Legal, P.C., New York,
New York.
FOR APPELLEES: Devin Slack, Scott Shorr, for Zachary W.
Carter, Corporation Counsel of the City of New
York, New York, New York, for City of New
York.
Elizabeth N. Krasnow, New York County
District Attorney’s Office, New York, New
York, for Cyrus R. Vance, Jr., Jodie Kane,
Michael Ohm, Christopher Santora, Bryan
Serino, and Vimi Bhatia.
Appeal from a judgment of the United States District Court for the Southern
District of New York (William H. Pauley III, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 5, 2017, is AFFIRMED.
Plaintiff John Byrne appeals the dismissal of his complaint, filed pursuant to 42
U.S.C. § 1983, against New York County District Attorney Cyrus R. Vance, Jr. and
several assistant district attorneys (collectively, the “District Attorney Defendants”), as
well as the City of New York, for various constitutional violations allegedly sustained in
his dismissed prosecution for Social Security Disability fraud. Specifically, Byrne
challenges (1) the determination that the District Attorney Defendants were entitled to
absolute prosecutorial immunity from claims brought against them in their individual
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capacities,1 and (2) the dismissal of his Monell claim against the City of New York.
We review de novo the dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6),
“accepting all factual allegations as true and drawing all reasonable inferences in favor of
the plaintiff.” Trustees of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843
F.3d 561, 566 (2d Cir. 2016). Our de novo review also encompasses an absolute
immunity determination. See City of Providence v. Bats Glob. Markets, Inc., 878 F.3d
36, 46 (2d Cir. 2017). Applying these standards here, we assume the parties’ familiarity
with the facts and procedural history of this case, which we reference only as necessary to
explain our decision to affirm.
1. Absolute Immunity
In challenging the district court’s absolute immunity determination, Byrne argues
that his individual claims against the District Attorney Defendants challenge their
investigative rather than prosecutorial actions. See, e.g., Simon v. City of New York, 727
F.3d 167, 171–72 (2d Cir. 2013) (distinguishing absolute prosecutorial immunity for
“acts intimately associated with the judicial phase of the criminal process” from more
limited qualified immunity for prosecutors’ performance of administrative and
investigatory functions not related to an advocate’s preparation for prosecution or judicial
proceedings (internal quotation marks omitted)). In determining whether a prosecutor
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Byrne does not challenge the dismissal of his claims against the District Attorney
Defendants in their official capacities on Eleventh Amendment grounds. To the extent
Byrne argues that the district court erroneously applied Eleventh Amendment immunity
to defendants in their individual capacities, the argument is belied by the district court’s
decision, which clearly identifies only the official capacity claims as barred by the
Eleventh Amendment. See Blessinger v. City of New York, No. 17-cv-108 (WHP), 2017
WL 3841873, at *1–2 (S.D.N.Y. Sept. 1, 2017).
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has absolute or qualified immunity, we focus “on the nature of the function performed,
not the identity of the actor who performed it.” Bernard v. Cty. of Suffolk, 356 F.3d
495, 503 (2d Cir. 2004) (internal quotation marks omitted). While “the party claiming
absolute immunity . . . bears the burden of establishing its applicability,” once a court
determines that absolute immunity applies, “the actor is shielded from liability for
damages regardless of the wrongfulness of his motive or the degree of injury caused.”
Id. (internal quotation marks omitted).
Here, Byrne’s allegations effectively claim that the District Attorney Defendants
brought charges against him without first conducting an adequate investigation. The
decision whether to bring charges—and even the decision to bring charges in the absence
of adequate evidence—falls squarely within a prosecutor’s role as advocate and,
therefore, is protected by absolute immunity. See id. at 503–04 (applying absolute
immunity where crux of complaint is decision to seek indictment despite lack of probable
cause); Hill v. City of New York, 45 F.3d 653, 661–62 (2d Cir. 1995) (recognizing as long
settled prosecutors’ entitlement to absolute immunity for initiating prosecution, despite
alleged reliance on falsified evidence); see also Schnitter v. City of Rochester, 556 F.
App’x 5, 7–8 (2d Cir. 2014) (rejecting argument that absolute immunity did not apply
because prosecutor’s “conduct was investigative in nature”; holding plaintiff’s “claims of
‘inadequate investigation’” effectively charge that prosecutor “sought an indictment
based on insufficient or unpersuasive evidence” and “thus address[] an essential
prosecutorial decision”). Accordingly, Byrne’s challenge to absolute immunity fails.
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No different conclusion is warranted by Byrne’s charge that the District Attorney
Defendants acted without jurisdiction in prosecuting him. While a prosecutor can lose
“the absolute immunity he would otherwise enjoy” if he “proceeds in the clear absence of
all jurisdiction,” Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005) (internal
quotation marks omitted), that is not this case.
We reach that conclusion by looking to “the authority conferred by the New York
statutes.” Id. at 238. Here, Byrne does not dispute that indictment allegations that he
stole more than $50,000 from the Social Security Administration and aided co-defendants
in the larger fraud scheme authorized his prosecution for Second Degree Grand Larceny
and Fourth Degree Criminal Facilitation. See N.Y. Penal Law §§ 115.00(1), 155.40(1).
Rather, he complains that defendants “manufactured jurisdiction” in New York County
by creating a post office box there to which some of the criminal defendants were
instructed to return a purported Social Security form in fact created by defendants, App’x
16 ¶ 42, circumstances that did not satisfy the venue requirements of N.Y. Crim. Proc.
Law § 20.40. The argument fails because the New York Supreme Court deemed venue
in New York County proper here not because defendants manufactured a form with a
New York County return address but because Byrne’s initial Social Security application
was processed in New York County. See People v. Byrne, No. 201/2014 (Sup. Ct. N.Y.
Cty. Jan. 16, 2015); Shmueli v. City of New York, 424 F.3d at 233 (recognizing court may
take judicial notice of matters of public record in underlying New York State prosecution
of § 1983 plaintiff). Accordingly, there is no basis in the record to deny the District
Attorney Defendants absolute immunity for acting “clearly beyond the scope of [their]
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jurisdiction.” Shmueli v. City of New York, 424 F.3d at 237 (internal quotation marks
omitted).
No different conclusion obtains as to defendant Bhatia, who initiated civil asset
forfeiture proceedings against Byrne. Our precedent affords absolute immunity “to
government attorneys who initiate civil suits.” Spear v. Town of W. Hartford, 954 F.2d
63, 66 (2d Cir. 1992); accord Mangiafico v. Blumenthal, 471 F.3d 391, 395 (2d Cir.
2006). Nor can Byrne show that Bhatia acted in the absence of jurisdiction by initiating
forfeiture before he was indicted, because New York law permits such actions to be filed
up to sixty days before an indictment is returned. See N.Y. C.P.L.R. § 1311(1)(a).
2. Monell Claim
Byrne faults the district court’s dismissal of his claim against the City of New
York for failure to train prosecutors not to suppress exculpatory evidence. See Connick
v. Thompson, 563 U.S. 51, 61 (2011) (explaining that, for municipal liability under
§ 1983, “a municipality’s failure to train its employees in a relevant respect must amount
to deliberate indifference to the rights of persons with whom the untrained employees
come into contact” (alterations and internal quotation marks omitted)); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978).
The argument fails because the complaint does not allege any such lack of training
as to prosecutors’ disclosure obligations, and we do not consider on a motion to dismiss
claims not asserted in the pleadings. See, e.g., Littlejohn v. City of New York, 795 F.3d
297, 324 n.23 (2d Cir. 2015). Further, the complaint does not allege any exculpatory
evidence that prosecutors withheld in Byrne’s case and, therefore, necessarily does not
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plead any violation of Byrne’s constitutional rights resulting from such conduct. See
Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (upholding dismissal of
deliberate indifference claim premised on alleged lack of police policy for “proper
handling of exculpatory evidence” where “[o]n the facts alleged . . . it is clear that any
failure to train or supervise the police as to the handling of exculpatory evidence did not
cause [plaintiff’s] injury”). Insofar as Byrne now suggests that, at the time of the
indictment, the District Attorney Defendants had in their possession but failed to disclose
his original Social Security application, the assertion squarely contradicts his complaint
allegation that defendants conducted an inadequate investigation by failing to obtain that
application. Moreover, to the extent Byrne complains that the District Attorney’s Office
failed to train prosecutors to disclose exculpatory evidence to the grand jury, the
argument is foreclosed by precedent instructing that “[t]he government ha[s] no
obligation to present exculpatory material to a grand jury.” United States v. Regan, 103
F.3d 1072, 1081 (2d Cir. 1997); see United States v. Williams, 504 U.S. 36, 51–52
(1992); see also Morse v. Fusto, 804 F.3d 538, 547 (2d Cir. 2015).
Thus, Byrne’s Monell claim against the City was correctly dismissed.
3. Conclusion
We have considered Byrne’s other arguments and conclude that they are without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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