Sr. v. County Of Nassau

Decision Date17 March 2010
Docket NumberNo. 08-CV-4526 (JFB)(AKT).,08-CV-4526 (JFB)(AKT).
Citation702 F.Supp.2d 40
PartiesKenneth C. VARRICCHIO, Sr., Plaintiff, v. COUNTY OF NASSAU, Nassau County Sheriff's Department, Nassau County District Attorney's Office, Thomas Amato & Desiree Laster, Defendants.
CourtU.S. District Court — Eastern District of New York






Kenneth C. Varricchio, Sr., pro se.

Matthew Brian Weinick, Office of the County Attorney, Mineola, NY, for Defendants County of Nassau, Nassau County Sheriff's Department, Nassau County District Attorney's Office, and Desiree Laster.

memorandum and order

JOSEPH F. BIANCO, District Judge:

Plaintiff Kenneth Varricchio (hereinafter plaintiff or “Varricchio”) brings this action against the County of Nassau (hereinafter County), the Nassau County Sheriff's Department, the Nassau County District Attorney's Office, Thomas Amato, and Desiree Laster, alleging denial of the right to a speedy trial, malicious prosecution, cruel and unusual punishment, municipal liability, conspiracy under 42 U.S.C. § 1983, and various state law tort claims, all arising from the allegedly unlawful confinement of Varricchio. Plaintiff Varricchio also filed a request that the Court grant him visitation rights to see his children, and has filed a motion to “change venue,” to remove his pending state court criminal proceeding to this Court.

Defendants County of Nassau, Nassau County Sheriff's Department, Nassau County District Attorney's Office, and Desiree Laster now move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, defendants' motion to dismiss is granted in part and denied in part. Specifically, defendants' motion to dismiss plaintiff's state law tort claims and request for visitation rights with his children is granted, but defendants' motion to dismiss plaintiff's remaining claims is denied. The Court also denies plaintiff's request to remove his criminal court proceeding to federal court.

I. Background
A. The Complaint

For purposes of this motion to dismiss, the Court has taken the facts described below from the plaintiff's complaint (“Compl.”). These facts are not findings of fact by the Court but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the non-moving party. See LaFaro v. N.Y. Cardiothoracic Group, 570 F.3d 471, 475 (2d Cir.2009).

Plaintiff alleges that he was unlawfully imprisoned in Nassau County jail for over two years. (Compl. at 4.) 1 In January 2004, plaintiff's wife obtained a protective order against plaintiff and had him evicted from their home. ( Id.) Despite their separation, according to plaintiff, by April 2004, he was allowed to have unsupervised visitation with his children. ( Id.) On April 18, 2004, plaintiff alleges that it was agreed that he could deliver groceries to his children; however, when he dropped off the groceries, his wife called the police, stating that he was not allowed to be there. ( Id.) Two days later, plaintiff claims he was arrested for dropping off the groceries in violation of the protective order, charged with contempt for a class “A” misdemeanor, and placed in Nassau County jail. ( Id.)

At that point, plaintiff alleges that he demanded a speedy trial by jury. ( Id.) He was arraigned and was supposed to be represented by an attorney from Legal Aid; however, when he contacted Legal Aid after six months of imprisonment, he was told that there would not be a trial because he had already plead guilty to the charges. ( Id.) Plaintiff alleges that he never pled guilty to the charges. Plaintiff claims that he was able to retain an attorney whom he met in the holding cells at First District Court in Hempstead, NY, John J. Budnick, whom he retained to represent him. ( Id. at 5.)

Plaintiff claims that, on December 17, 2005, the Assistant District Attorney (“ADA”) handling his case, Desiree Laster, submitted a false affirmation stating that he had already pled guilty to the two charges against him in front of Judge Norman St. George; however, she claimed that the court reporter was not in the courtroom at the time of the guilty plea. ( Id.) Laster's affirmation also stated that there had been a change of attorney hearing, at which Legal Aid was relieved and attorney Tim Aldrige was appointed to represent Varricchio. ( Id.) Varricchio contends that he knew Aldrige personally and was able to obtain an affidavit from Aldrige stating that he had never been appointed to represent Varricchio.

Varricchio makes several claims regarding his treatment during the course of his unlawful incarceration. ( Id.) First, plaintiff claims that he was improperly medicated on two occasions. The first instance occurred in April 2004. Plaintiff alleges that he is a diabetic but was given a “beta blocker,” which lowered his heart rate. ( Id.) He allegedly asked to be brought to the hospital but did not receive assistance until several days later, when he was brought to medical. ( Id.) The medical staff allegedly told Varricchio that his heart rate was only 40 to 43 beats per minute, but he was sent back to his cell. ( Id.) He claims that two days later he was found lying face down in his cell in a puddle of his own urine, with a heart rate of 15 beats per minute-effectively, he was in a coma. ( Id.) He was taken by ambulance to Nassau University Medical Center where he was treated. ( Id.) Plaintiff claims that he was told by an emergency room doctor that he has permanent brain injury from the lack of oxygen flow to his brain as a result of receiving the “beta blocker.” ( Id. at 6.)

Plaintiff alleges that he was also improperly medicated in December 2004: specifically, he was given two-hundred milligrams of Benadryl a day for three months. ( Id.) He claims that he requested the labeling for the Benadryl but did not receive it. ( Id.) The Benadryl dosage raised plaintiff's heart rate and caused him chest pains and trouble breathing. ( Id.) This resulted in plaintiff being taken back to Nassau University Medical Center again for treatment, where he claims his heart rate was over 125 beats per minute. ( Id.)

Plaintiff thereafter filed a notice of claim with the County Attorney and the New York Supreme Court for being improperly medicated. ( Id.) Plaintiff claims that, as a result of filing this claim, he was placed in maximum security lockup with several members of the Bloods Gang. ( Id.) After being placed in maximum security lockup, plaintiff began to have chest pains and requested that he be removed from maximum security because he felt his safety was endangered by being there. ( Id.) He claims that he was removed from maximum security and, instead, placed in solitary confinement for the next sixteen months. ( Id. at 7.) Plaintiff claims he wrote a letter to Denis Dillon, the then-Nassau County District Attorney, regarding this confinement, and was interviewed by Internal Affairs at the Sheriff's Department. ( Id.) While he was in solitary confinement, plaintiff alleges that both his sister Cynthia and his brother Steve passed away, and he was unable to attend their wakes or funerals as a result of his imprisonment. ( Id.)

Plaintiff then appeared before Judge Susan T. Kluwer, who ordered a “730.30 exam,” 2 a psychological test to determine whether a defendant is fit to stand trial. ( Id.)Plaintiff's complaint claims that the 730.30 exam is the “government's safety valve.” ( Id.) Plaintiff wrote an affidavit refusing to take the 730.30 exam. He claims that, nonetheless, Judge Kluwer ordered the 730.30 exam on him four times. ( Id. at 8.) Plaintiff alleges that because he refused to submit to the exam, three sheriffs did a “shake down” of his cell and removed pictures of his children and his legal documents and supplies. ( Id.) He was also informed that he would no longer be allowed to use certified mail to mail his legal documents. ( Id. at 9.)

Plaintiff also contends that his meals were contaminated. Specifically, he claims that he found bodily waste, soap, and metal pins in his food. ( Id.) He claims that two x-rays revealed metal objects in his stomach that had been mixed in with his food and that he had accidentally ingested. ( Id.) Plaintiff thereafter began a hunger strike to protest his legal situation and because he was worried about finding more hazardous items in his food. ( Id.) After plaintiff had gone ten days without eating, the sheriffs took plaintiff to Nassau University Medical Center Prison Ward for treatment. ( Id.)

While at the prison ward, a Patient Care Assistant attempted to draw blood from Varricchio. While the assistant was attempting to draw Varricchio's blood, Varricchio got into a verbal altercation with Sheriff Thomas Amato. ( Id.) Amato yelled at Varricchio to “sit down so they can take your blood!” but Varricchio refused to sit down because Amato would not turn on the light so that the Patient Care Assistant could see properly. ( Id. at 10.) Plaintiff alleges that Amato grabbed him, threw him over a chair, and then “body slammed” him onto the floor. ( Id.) Amato then grabbed plaintiff by his left arm “all the while twisting [plaintiff's] arm and digging his finger nails into [plaintiff's] arm.” ( Id.) At that point, other sheriffs came down the hall to break up the fight, and Varricchio was returned to his cell. ( Id.) Nassau County's Sheriff's Department's Internal Affairs bureau interviewed plaintiff about the alleged attack. ( Id.)

On August 3, 2006, while plaintiff was leaving his cell, Sheriff Amato allegedly instructed plaintiff to stand against the wall and face the wall, and then “body slammed” plaintiff into a steel door, cutting open plaintiff's left arm and elbow. ( Id.) Internal Affairs again interviewed plaintiff about the altercation. ( Id.)

In September 2006, plaintiff alleges that he ran into his friend Tim Aldrige, an...

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