Marom v. Town of Greenburgh

Background

Michael Marom proceeded without a lawyer and sued the former Westchester County District Attorney, Anthony Scarpino, Jr.; Assistant District Attorney Cortney Johnson; the Town of Greenburgh; Detective Ed Demalo; Mark Gordon; and Audrey Pierot. The amended complaint asserted five claims: two requests for a court order compelling Scarpino to investigate or prosecute alleged federal crimes; a claim against Johnson under New York Judiciary Law § 487; malicious-prosecution claims against Gordon and the Town Defendants under 42 U.S.C. § 1983 and New York law; and a claim against the Town under the rule commonly called Monell, which concerns municipal responsibility for constitutional violations.

The dispute arose after Gordon reported that Marom had threatened to kill him. Demalo filed a criminal charge against Marom for second-degree harassment in Greenburgh Town Court. Marom was convicted after a trial, but the New York Appellate Term later held that the evidence was legally insufficient and reversed the conviction and dismissed the charge. Marom alleged that Johnson used perjured testimony, withheld favorable evidence, and presented evidence misleadingly. He also alleged that Scarpino failed to investigate his complaints.

Motions and legal standards

Gordon moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. The DA Defendants made a similar motion. On such a motion, the court generally accepts well-pleaded factual allegations as true and asks whether they plausibly support relief. The court also applies a more flexible pleading standard to a complaint filed without a lawyer, but it may not invent facts that were not alleged.

Claims against the DA Defendants

The court dismissed the two mandamus claims for lack of subject-matter jurisdiction. A writ of mandamus is a court order compelling an official to perform a duty, but the federal Mandamus Act gives federal district courts authority to compel officers or employees of the United States, not state or local officials. The court concluded that the Westchester County District Attorney did not fall within that statute. It dismissed the first and second claims under Rule 12(h)(3), which requires dismissal when the court determines that it lacks subject-matter jurisdiction, and dismissed Scarpino as a defendant.

The court also dismissed the Judiciary Law § 487 claim against Johnson. That statute can impose treble damages for certain attorney deceit or collusion. The court held that Johnson’s alleged decisions about witness testimony and evidence were acts closely connected to the judicial phase of the criminal prosecution. Under New York law, those acts receive absolute prosecutorial immunity, meaning the prosecutor cannot be held civilly liable for them. The court therefore dismissed the third claim and Johnson as a defendant. It also noted that professional-conduct rules do not themselves create a private right to sue.

Claims against Gordon

The court dismissed the federal malicious-prosecution claim against Gordon. A claim under 42 U.S.C. § 1983 requires a violation of a federal right by a person acting under state law. Gordon was a private individual, and the complaint did not adequately allege that he conspired with government actors to violate Marom’s federal rights. The court concluded that allegations that Gordon disliked Marom, spoke with law-enforcement officials, and gave a statement about Marom’s threat were insufficient to plead such a conspiracy.

The court also dismissed the New York malicious-prosecution claim against Gordon. One required element was that Gordon initiated or continued the criminal proceeding. The court found that the complaint alleged that Demalo filed the accusatory instrument and that Gordon’s role was limited to reporting the incident and giving a statement. Those allegations did not show that Gordon actively induced the authorities to prosecute Marom. Because the court resolved the claim on that element, it did not decide Gordon’s arguments concerning probable cause or actual malice. The court rejected Gordon’s statute-of-limitations argument and concluded that the claim was timely, but still dismissed the claim for failure to plead initiation of the proceeding.

Disposition

The court granted both motions to dismiss. The first, second, and third claims were dismissed in their entirety. The fourth claim was dismissed insofar as it sought relief against Gordon. Scarpino, Johnson, and Gordon were dismissed as defendants. The opinion does not state a final disposition of the claims against the Town, Demalo, or any other remaining defendant. The court directed the Clerk to terminate the motion sequences at docket entries 32 and 42 and stated that it would issue an initial pretrial conference order.