McCrary v. County of Nassau

• Decision Date: 02 July 2007
• Docket Number: No. 06-CV-4982 (SJF)(ARL).,No. 06-CV-3048 (SJF)(ARL).,06-CV-3048 (SJF)(ARL).,06-CV-4982 (SJF)(ARL).
• Citation: 493 F.Supp.2d 581
• Parties: J.C. McCRARY, Plaintiff, v. COUNTY OF NASSAU, Defendant. J.C. McCrary, Plaintiff, v. County of Nassau; Kathleen Rice, District Attorney, in her official capacity; Gregory Hecht, Associate Court Clerk of the District Court of Nassau County, in his individual capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

493 F.Supp.2d 581

J.C. McCRARY, Plaintiff, v. COUNTY OF NASSAU, Defendant.

J.C. McCrary, Plaintiff, v. County of Nassau; Kathleen Rice, District Attorney, in her official capacity; Gregory Hecht, Associate Court Clerk of the District Court of Nassau County, in his individual capacity, Defendants.

No. 06-CV-3048 (SJF)(ARL).

No. 06-CV-4982 (SJF)(ARL).

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

July 2, 2007.

COPYRIGHT MATERIAL OMITTED

J.C. McCrary, Jr., Fishkill, NY, pro se.

Sondra M. Mendelson, Nassau County Attorneys Office, Mineola, NY, for Defendants.

OPINION AND ORDER

FEUERSTEIN, District Judge.

I. Introduction

On June 15, 2006, plaintiff J.C. McCrary ("Plaintiff' or "McCrary") commenced civil action number 06-CV-3048 pursuant to 42 U.S.C. § 1983 alleging, inter alia, that the County of Nassau ("Nassau County") violated his civil rights. On September 8, 2006, Plaintiff commenced civil action number 06-CV-4982 pursuant to 42 U.S.C. § 1983 alleging, inter alia, that Nassau County, Nassau County District Attorney Kathleen Rice ("Rice"), and Associate Court Clerk of the District Court of Nassau County Gregory Hecht. ("Hecht") violated his civil rights. Defendant Nassau County now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) in both actions. Defendant Rice now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) in 06-CV-4982. Defendant Hecht now moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6)¹ in 06-CV-4982.

For the reasons set forth below, Nassau County's motion in 06-CV-3048 is denied. In 06-CV-4982, Nassau County's motion and Rice's motion are granted in part and denied in part and Hecht's motion is granted.

II. Plaintiff's Pleadings

A pro se plaintiff's submissions are held "to less stringent standards than formal pleadings drafted by lawyers...." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Therefore, a court must "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nonetheless, a pro se plaintiff is not exempt from compliance with relevant rules of procedural and substantive law. Faretta v. California, 422 U.S. 806, 834 n. 36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

III. Facts

The facts alleged in 06-CV-3048 and 06-CV-4982 arise from the same underlying events. The facts alleged in 06-CV-4982 are a continuation of the facts alleged in 06-CV-3048.

A. Case 06-CV-3048

On September 3, 2005, Police Officer Brandon Hillman ("Hillman") arrested McCrary for robbery, in the first degree and various counts of criminal possession of a weapon. Second Am. Compl. ¶ 6. On or about December 19, 2005, McCrary's case was presented to a grand jury, which returned an indictment against him. Id. ¶ 7.

Assistant District Attorney Alexis Walters ("Walters") presented McCrary's case to the grand jury. Hillman testified that on September 3, 2005, responding to a radio call of a robbery in progress, he was "canvassing for a male black, in jeans, T-shirt, and a do-rag, who was being pursued by another officer and that a man fitting that description ran in front of his car," which caused him to arrest McCrary. Id. ¶ 8. According to McCrary, when he was arrested by Hillman, Hillman was canvassing for a "Hispanic male, 5'9", blue jeans, black shirt" as transmitted via police radio. Id. ¶ 9. He asserts that the police were not furnished with a description of the alleged robber prior to his arrest. See id. McCrary alleges that Hillman lied during his testimony to the grand jury. Id. ¶¶ 8-9.

On January 5, 2006, McCrary was arraigned on the indictment. Id. ¶ 7. McCrary alleges that on March 8, 2006, Assistant District Attorney Gregory Grizopoulos ("Grizopoulos") failed to disclose Hillman's allegedly false testimony from the grand jury to defense counsel and the court, and allowed Hillman to, testify falsely again during a Mapp hearing.² Id. ¶ 10.

On March 23, 2006, pursuant to New York State Criminal Procedure Law ("NYCPL") Sections 210.20(c) and 210.35(5), McCrary filed a motion to dismiss his indictment on the ground that his grand jury proceeding had been tainted by false testimony. Id. ¶ 11. McCrary asserts that Assistant District Attorney Kylie Higgins ("Higgins"), in opposition to his motion to dismiss, knowingly mischaracterized Hillman's `testimony as a mistake of recollection and stated that Walters was not in possession of the radio transmission at the time Hillman testified before the grand jury. Id. ¶ 14.

On March 23, 2006, McCrary filed a criminal complaint with the Nassau County District Court charging Hillman with perjury and official misconduct for testifying falsely before the grand jury. Id. ¶ 12. On April 7, 2006, McCrary filed a criminal complaint with the Nassau County District Court charging Walters with official misconduct for permitting Hillman to testify falsely before the grand jury while knowing such testimony to be false. Id. ¶ 13.

McCrary maintains that District Attorney Rice refused to "correct the perjury," refused to prosecute Hillman and Walters, and "caused" the. Nassau County District Court to dismiss his criminal complaints against them, even though she allegedly knew that Walters allegedly allowed Hillman to perjure himself before the grand jury. Id. ¶¶ 15-16.

McCrary claims that Rice, Grizopoulos, and Higgins knew at the time he filed the complaint against Hillman that neither the victim, nor the witnesses to the robbery, had provided the police with a description of the person who robbed the store prior to his arrest and that there existed no basis in fact to support Hillman's grand jury testimony. Id. ¶¶ 16-18. McCrary asserts that an undisclosed 911 tape in the possession of the police department and the District Attorney's Office proves his allegations. Id.

McCrary alleges that Nassau County and the Nassau County District Attorney's Office has a policy, practice, and/or custom which precludes the consideration, investigation, and/or acceptance of criminal cross-complaints brought by an accused, against police officers and assistant district attorneys. See id. ¶¶ 19-22. According to McCrary, this policy, practice, and/or custom is based upon the status of the complainant as a pretrial detainee, rather than upon the facts and evidence known and possessed by defendants to prove the complainant's charges. See id. Moreover, the policy, practice, and/or custom allegedly insulates from investigation and criminal liability police officers and assistant district attorneys who allegedly commit and/or suborn perjury, when an accused files a complaint against them. See id.

B. Case 06-CV-4982

McCrary contends that, by letters dated July 12, 2006, and July 28, 2006, he informed County Attorney Lorna B. Goodman that Nassau County and the Nassau County District Attorney's Office had a policy in place which precludes the consideration, investigation, and/or acceptance of criminal cross-complaints brought by an accused, against police officers and assistant district attorneys. Compl. ¶ 5.

McCrary also informed the County Attorney that Walters, Grizopoulos, Higgins, and the District Attorney's Office were aware of and were covering up evidence which would prove that Hillman had committed perjury and official misconduct. Id. ¶ 6. McCrary informed the County Attorney that he was filing new criminal complaints in the District Court against Hillman and the assistant district attorneys and requested that the District Attorney's Office discontinue its alleged policy. Id. at ¶ 7.

On July 28, 2006, August 1, 2006, and August 2, 2006, McCrary prepared and mailed felony and misdemeanor complaints with supporting depositions to the Clerk of the District Court, Nassau County. Id. ¶ 8. On August 15, 2006, defendant Hecht, Associate Clerk of the Court, returned McCrary's complaints informing him that the District Attorney's Office had informed the District Court that it declined to prosecute the complaints pursuant to NYCPL § 160.50(3)(i). Id. ¶ 9.

McCrary asserts that rather than filing his felony and misdemeanor complaints, Hecht sent his complaints to the District Attorney's Office for pre-screening because he was a pretrial detainee, and that the District Attorney's Office conspired with the District Court (i.e., Hecht) against him. See id. ¶¶ 11-13.

McCrary again alleges that Nassau County and the Nassau County District Attorney's Office has a policy, practice, and/or custom which precludes the consideration, investigation, and/or acceptance of criminal cross-complaints brought by an accused, against police officers and assistant district attorneys, based upon the status of the complainant as a pretrial detainee. See id. ¶¶ 5, 11-13. Moreover, the policy, practice, and/or custom insulates police officers and assistant district attorneys, who allegedly commit and/or suborn perjury, from investigation and criminal liability when the complainant is a criminal defendant. See id.

IV. Procedural History

A. Case 06-CV-3048

On June 15, 2006, Plaintiff filed a complaint against Hillman, Rice, Walters, Grizopoulos, and Higgins. On August 3, 2006, Plaintiff moved for leave to amend his complaint. On August 8, 2006, Plaintiff filed an amended complaint which named Nassau County as an additional defendant.

On August 31, 2006, Plaintiff moved for leave to amend his complaint a second time. On October 2, 2006, Plaintiff served his initial complaint and his amended complaint. On October 3, 2006, each of the named defendants moved for an extension of time to answer.

At a conference on October 5, 2006, Plaintiff indicated that he wanted to withdraw his second amended complaint and have the Court consider his amended complaint incorporating by reference his initial complaint. O...