45 F.3d 653 (2nd Cir. 1995), 1664, Hill v. City of New York

Docket Nº:1664, Docket 93-9343.
Citation:45 F.3d 653
Party Name:Diane HILL, Plaintiff-Appellee, v. CITY OF NEW YORK; Richard Dixon, individually and as Detective, New York City Housing Authority Police Department; Bruce Clark, individually and as Police Officer with New York City Housing Authority Police Department, Defendants, Richard Adago, individually and as Assistant District Attorney of New York County; A
Case Date:January 17, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 653

45 F.3d 653 (2nd Cir. 1995)

Diane HILL, Plaintiff-Appellee,


CITY OF NEW YORK; Richard Dixon, individually and as

Detective, New York City Housing Authority Police

Department; Bruce Clark, individually and as Police Officer

with New York City Housing Authority Police Department, Defendants,

Richard Adago, individually and as Assistant District

Attorney of New York County; Awilda Rialano, individually

and as employee of the Child Abuse Bureau, District

Attorney, New York County; Michael Mannion, individually

and as supervisor of the Video Unit, District Attorney, New

York County; Clayton Frazier, individually and as video

technician, District Attorney, New York County, Defendants-Appellants.

No. 1664, Docket 93-9343.

United States Court of Appeals, Second Circuit

January 17, 1995

Argued May 24, 1994.

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David J. Mudd, Asst. Dist. Atty., New York City (Mark Dwyer, Asst. Dist. Atty., Robert M. Morgenthau, Dist. Atty., of counsel), for defendants-appellants.

Bruce A. Young, New York City, for plaintiff-appellee.


CARDAMONE, Circuit Judge:

The issue in this Sec. 1983 civil rights litigation concerns the precise scope of a local district attorney's immunity from suit. Because a public prosecutor cannot zealously perform the prosecutorial duties of the office if compelled to work under the constant threat of legal reprisals, such official is shielded from liability for civil wrongs by the doctrine of absolute immunity. When this doctrine, necessary to preserve the integrity of the judicial process, shields an alleged egregious and contemptable abuse of official power it is of course very troubling.

A district attorney plays more than one role in discharging the duties of the prosecutorial office: sometimes an administrative, sometimes an investigative, and sometimes an advocate's role. When acting as a criminal investigator, a prosecutor is accorded only the qualified immunity ordinarily granted to the police function. Thus, whether a district attorney is or is not entitled to absolute immunity for his or her conduct depends on the function being performed at that time. Here, because what function was being performed "is smother'd in surmise," W. Shakespeare, Macbeth, Act I, scene iii (Oxford Press ed. 1928), that aspect of the case must first be resolved in the district court into a final order before we may entertain jurisdiction over it.

This appeal arises out of a civil rights action brought under 42 U.S.C. Sec. 1983 (1988) against an assistant district attorney, a social worker and two videotape technicians employed by the New York County District Attorney's office. Defendants are charged with having engaged in a conspiracy to fabricate false evidence against the plaintiff, Diane Hill. Assistant District Attorney Richard Adago was in charge of investigating the alleged sexual abuse of plaintiff's five-year-old son Joseph.

According to Hill's complaint, the state prosecutor, having obtained only confused and contradictory accounts from the infant victim, determined to manufacture probable cause against the child's mother, plaintiff Hill, by videotaping an interview in which Joseph accused her in a coached and coerced script. Two videotaped interviews were conducted: in the first, Joseph accused his former foster brother, "Little Jesse," of the abuse; in the second interview Joseph implicated his mother. The assistant district attorney

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ignored the substance of the earlier interview, and used the second tape as the basis for ordering plaintiff's arrest and obtaining an indictment against her. Joseph and his brother were removed from their mother's custody and both were placed in foster homes. Unable to raise bail, plaintiff spent seven months in prison awaiting trial. During this period, she gave birth to her third child while shackled to a hospital bed. This infant was also taken from her custody to be placed in foster care. Not until the earlier, exculpatory videotape came to light, was plaintiff finally released.

Defendants moved to dismiss Hill's complaint on the grounds of absolute immunity, and the district court for the Southern District of New York (Sprizzo, J.) denied the motion. This appeal is from that denial. For the reasons given below, we affirm in part, and reverse and dismiss in part, and remand to the district court for further proceedings.


Because this is a review of a motion to dismiss, we accept the allegations in the amended complaint as true, see Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, --- U.S. ----, ----, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993), bearing in mind that the amended complaint may not be dismissed if plaintiff can prove any set of facts that would entitle her to relief. See Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). The facts upon which we rely therefore are derived from those allegations of plaintiff's amended complaint that support her Sec. 1983 claim.

  1. Factual Allegations

    On June 18, 1985 Diane Hill gave birth to Joseph Hill, who shortly after his birth was placed in foster care. Three years later, Hill gave birth to a second son, Matthew McDonald, who resided with plaintiff until the events at issue in this lawsuit took place. Hill repeatedly sought to have Joseph returned to her custody, and beginning in January of 1991, Hill was permitted unsupervised weekend visits with him.

    On January 26, 1991 during the third such visit, Hill discovered wood particles in Joseph's feces after he screamed in pain while using the bathroom. Joseph told his mother that "Big Jesse" and "Little Jesse"--two members of the foster home where Joseph had been living until October of 1990--had inserted a piece of wood in his rectum. Plaintiff immediately contacted the foster care agency social workers and made arrangements for Joseph to be taken to Beth Israel Hospital. Officer Bruce Clark of the New York City Housing Police went to Hill's home on the same day, examined the feces and took a sample to the hospital. Unfortunately, instead of being analyzed, the sample was destroyed.

    At the hospital the examining doctor found a square piece of wood inside Joseph's rectum. There were no other signs of physical abuse. Joseph told the doctor Big Jesse and Little Jesse put the wood inside him. After consulting with social workers, Officer Clark discharged Joseph into his mother's custody, the determination having been made not to return him to foster care. No report of suspected child abuse was filed.

    On January 28, 1991 New York County Assistant District Attorney Adago was assigned to investigate the case. He interviewed Joseph several times at the Manhattan district attorney's office. During the first interview Joseph stated that his former foster mother Dricilla Harris--the mother of Little Jesse--had inserted the wood in his rectum. Joseph had been removed from Harris' home because she physically abused him. Despite this allegation against Harris, Adago filed a report of suspected child abuse against the child's mother, plaintiff Hill, stating that she had used a stick to sexually abuse both Joseph and his younger brother, Matthew McDonald. There was no indication at that time that Matthew had suffered any abuse, nor was any such proof ever produced. The assistant district attorney nonetheless successfully requested that Matthew be removed from plaintiff's custody.

    On January 29, 1991 the prosecutor and defendant Awilda Rialano, a social worker for

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    the New York County District Attorney's Office Child Abuse Bureau, videotaped an interview with Joseph. Defendant Michael Mannion, an employee of the New York County District Attorney's Office, operated the video camera. Plaintiff alleges that Adago and Rialano specifically instructed Joseph to state that plaintiff beat him with a stick and then inserted it in his anus. In response to Adago's question of how the wood got into Joseph's anus, Joseph named his former foster brother, "Little Jesse." Adago immediately ordered that the videotape be stopped, and Mannion complied. 1

    On January 31, 1991 Joseph was interviewed again on videotape. On this occasion, defendant Clayton Frazier, also an employee of the district attorney's office, operated the video camera. Plaintiff complains of a number of failures on the part of appellants to follow the procedures mandated by the grand jury child witness statute, New York CPL Sec. 190.32. Specifically, she charges that Adago misstated the witness' age, failed to certify that the testimony was unsworn, and omitted to record statements on each tape that more than one tape was used to record the examination. See NYCPL Sec. 190.32(5)(b)-(f) (McKinney 1993). Adago did not indicate, as required by Sec. 190.32, that this was a second tape. He encouraged Joseph to state that plaintiff had sexually abused him, and succeeded on this second try in eliciting the testimony that "My mommy gave me a beating when I throwed up" and "She put a stick in my butt."

    That night, at the direction of Adago, Officer Dixon placed Hill under arrest. A felony complaint was filed in the New York County Criminal Court charging her with aggravated sexual abuse in the third degree and acting in a...

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