Swinton v. the City of N.Y.

• Decision Date: 28 March 2011
• Docket Number: No. 08 CV 3278 (RJD) (RML).,08 CV 3278 (RJD) (RML).
• Citation: 785 F.Supp.2d 3
• Parties: Silva SWINTON, Joseph Swinton, Silva Swinton as parent for Elianna (“ICE”) Swinton (infant) and Silva Swinton as parent for Elian (“INI”) Swinton (infant), Plaintiffs,v.The CITY OF NEW YORK, Queens County District Attorney Richard Brown, Assistant District Attorney Eric Rosenbaum, Assistant District Attorney Marjory Fisher, Detective Janet Barry and Police Officers John Doe (1), John Doe (2) and John Doe (3), Defendants.
• Court: U.S. District Court — Eastern District of New York

785 F.Supp.2d 3

Silva SWINTON, Joseph Swinton, Silva Swinton as parent for Elianna (“ICE”) Swinton (infant) and Silva Swinton as parent for Elian (“INI”) Swinton (infant), Plaintiffs,

v.The CITY OF NEW YORK, Queens County District Attorney Richard Brown, Assistant District Attorney Eric Rosenbaum, Assistant District Attorney Marjory Fisher, Detective Janet Barry and Police Officers John Doe (1), John Doe (2) and John Doe (3), Defendants.

No. 08 CV 3278 (RJD) (RML).

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

March 28, 2011.

Robert Milton Rambadadt, The Rambadadt Law Firm, P.C., New York, NY, for Plaintiffs.David M. Hazan, Kathleen Erin Naughton, Steve Stavridis, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEARIE, Chief Judge.

Plaintiffs bring claims under 42 U.S.C. §§ 1983, 1985 and 1986, and New York State law, arising from plaintiffs' arrest and conviction on charges relating to the severe malnutrition of their newborn infant. Defendants move to dismiss plaintiffs' First Amended Complaint (the “Amended Complaint” or “AC”) under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the following reasons, defendants' motion to dismiss is granted and plaintiffs' Amended Complaint is dismissed with prejudice.

I. Background.

As this case has been the subject of extensive prior judicial proceedings and media reporting, the parties tend to agree on the relevant facts.¹ As always, where accounts diverge, the Court will accept the Amended Complaint's allegations as true and resolve all reasonable inferences in plaintiffs' favor for purposes of this motion. See, e.g., Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir.2009).

A. The Swintons' arrest.

On July 31, 2000, Ice Swinton (“Ice”) was born to Joseph and Silva Swinton. At birth, Ice weighed less than three pounds. From birth, the Swintons fed Ice what they believed to be a strict vegan diet.² On or around November 16, 2001, after several anonymous calls to the Administration of Child Services (“ACS”) which the Swintons later discovered were made by Ice's aunt, Emergency Medical Technicians removed Ice from her parents' home in Queens and brought her to the hospital. Doctors observed that Ice, then sixteen months old, had low levels of vitamin D and calcium, resulting in rickets, and suffered from severe malnutrition. Up to that point, the Swintons had never taken Ice to a doctor despite the baby's noticeable developmental delays, soft spot on the skull, complete lack of teeth and abnormal amount of body hair. “[T]he strict vegetarian diet provided by the defendants was to blame for Ice's many maladies.” People v. Swinton (“Swinton I”), 21 A.D.3d 1039, 1041 (2d Dep't 2005) (Miller, J., dissenting in part).

Ice spent the next five months recovering in various hospitals. During this time, the Swintons consulted with ACS representatives about regaining custody of Ice. Pursuant to ACS's instruction, the Swintons enrolled in parenting and nutrition classes and programs. During the same five-month period, Queens County Assistant District Attorneys (“ADAs”) Eric Rosenbaum and Marjory Fisher and New York City Police Department (“NYPD”) Detective Janet Barry, all now defendants, investigated the Swintons' treatment of Ice. ACS eventually recommended that the District Attorney's (“DA's”) Office not pursue criminal charges due to the Swintons' absence of history with ACS and apparent lack of desire to harm their child. Of the witnesses interviewed as part of the investigation, none professed a belief that the Swintons had intended to harm Ice.

On April 25, 2002, at approximately 9:00 p.m., Detective Barry arrested the Swintons at their home. According to the Amended Complaint, Detective Barry, acting without a warrant, initially informed Mr. Swinton that the NYPD was investigating a reported domestic violence incident. Mr. Swinton denied that such an incident had occurred and refused the Detective entry. Ms. Swinton then came to the door to confirm that no domestic violence had taken place. After the Detective twice more requested to enter the house, Mr. Swinton, allegedly feeling intimidated, “believed he had no choice but to comply.” (AC ¶ 31.) Detective Barry and the other officers entered and, according to the Amended Complaint, searched the premises before demanding that the Swintons produce Ice. The Swintons replied “that infant Ice was not on the premises and that in fact she had been removed from the home and [had been] at the hospital” for the past five months. ( Id. ¶ 34.) After Detective Barry allegedly called the DA's Office for instructions, the officers arrested the Swintons, brought them to the precinct house and charged them with first-degree assault, first-degree reckless endangerment and endangering the welfare of a child.

That same evening, Queens DA Richard Brown held a press conference to announce the arrest. During the press conference, which was widely reported on television and radio stations, DA Brown showed the Swintons' arrest photos, called the Swintons “monsters” and reported “that he had full knowledge and supported the arrest and charges” of the Swintons. ( Id. ¶ 39.)

B. The Swintons' indictment, conviction and appeal.

The Swintons were arraigned the day after their arrest. The Amended Complaint alleges that during the grand jury proceedings, ADA Rosenbaum “deliberately and knowingly misstate[d] and withh[e]ld pertinent information” by not allowing Detective Barry “to state the cause, basis or justification of the [Swintons'] arrest.” ( Id. ¶ 46.) The grand jury indicted the Swintons and, on April 4, 2003, a jury convicted the Swintons of all three charges. As a result, Ms. Swinton received a sentence of six years in prison; Mr. Swinton, five years.

On September 19, 2005, the Appellate Division (by a 4–1 vote) affirmed the jury verdict but vacated the conviction for “reckless endangerment in the first degree [a]s a lesser-included offense of assault in the first degree.” ³ Swinton I, 21 A.D.3d at 1040, 801 N.Y.S.2d 403. On July 6, 2006, the New York Court of Appeals modified that decision by “reducing defendants' convictions for assault in the first degree to assault in the third degree.” People v. Swinton (“Swinton II”), 7 N.Y.3d 776, 777, 820 N.Y.S.2d 537, 853 N.E.2d 1105 (2006). Citing to its holding a day earlier in People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006) (ruling that depraved indifference to human life, rather than recklessness, is the applicable mens rea in statutes in which the former appears), the Court of Appeals found the evidence “legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference.” Swinton II, 7 N.Y.3d at 777, 820 N.Y.S.2d 537, 853 N.E.2d 1105. The Court of Appeals found the evidence “legally sufficient, however, to support the jury's determination that defendants acted recklessly.” Id. On July 18, 2006, the Swintons were released from prison. In November 2008, the Swintons regained custody of Ice.

C. The ensuing civil proceedings.

On October 16, 2007, plaintiffs sought leave from New York Supreme Court to file a late notice of claim pursuant to New York General Municipal Law § 50–e(5), as the 90–day post-accrual period for notifying New York City and its employees of tort claims had elapsed. The proposed notice of claim alleged physical and emotional injuries stemming from “ ‘civil rights violations' ” including “false arrest, false imprisonment and malicious prosecution.” Swinton v. City of New York (“Swinton III”), 61 A.D.3d 557, 557, 877 N.Y.S.2d 68 (1st Dep't 2009). The Supreme Court denied plaintiffs' request to file the late notice. Affirming the denial, the Appellate Division recited that “[l]eave to file a late notice of claim should be denied where the claims are ‘patently meritless.’ ” Id. (quoting Catherine G. v. County of Essex, 3 N.Y.3d 175, 178, 785 N.Y.S.2d 369, 818 N.E.2d 1110 (2004)), The Appellate Division then held that “[t]o the extent the subject notice of claim alleged false arrest and imprisonment and malicious prosecution, these claims are not viable in light of petitioners' conviction of assault in the third degree.” Id.

D. Plaintiffs' claims.

In the Amended Complaint, plaintiffs assert claims under 42 U.S.C. §§ 1983, 1985 and 1986 based on unlawful search and seizure, false arrest and malicious prosecution,⁴ including conspiracies to commit these offenses, in violation of plaintiffs' rights under the Fourth Amendment and Equal Protection Clause. (Counts I to III.) Plaintiffs also bring a claim against New York City for inadequate training or supervision of its officers. (Counts IV and V.) Further, the Swintons claim that defendants' displaying their likenesses and making allegedly defamatory statements a press conference violated their civil rights. (Count VI.) Finally, plaintiffs bring claims under New York law against all defendants for malicious prosecution, intentional infliction of emotional distress and deprivation of society, services, companionship and consortium. (Counts III, VII and VIII.)

II. Discussion.

“[A] complaint is insufficient as a matter of law unless it pleads specific facts that ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 188 (2d Cir.2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). “ ‘Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Ruston v. Town Bd., 610 F.3d 55, 58 (2d Cir.2010) (quoting Iqbal 129 S.Ct. at 1950). In making this determination, a court may take judicial notice of prior state court proceedings. See, e.g., United States v. Alexander, 123 Fed.Appx. 444, 445 (2d...