17-3235 Ogunkoya v. Drake

In the United States Court of Appeals For the Second Circuit

August Term, 2018

Argued: September 27, 2018 Decided: January 9, 2019

Docket No. 17‐3235‐cv

SEUN OGUNKOYA,

Plaintiff‐Appellee,

v.

MARK MONAGHAN, JAMES EGAN, COUNTY OF MONROE,

Defendants‐Appellants,

SANDRA DOORLEY, ALBERT DRAKE III, INVESTIGATOR, DARIUSZ ZYSK, INVESTIGATOR, PETER SCHRAGE, TROOPER, MARK EIFERT, INVESTIGATOR, JOHN DOE, RICHARD ROE,

Defendants.

 The Clerk of Court is respectfully requested to amend the official caption as set forth above. 1 Appeal from the United States District Court for the Eastern District of New York No. 15‐CV‐06119, Matsumoto, Judge.

Before: HALL, LYNCH, and CARNEY, Circuit Judges.

This appeal arises out of Plaintiff‐Appellee Seun Ogunkoya’s § 1983 lawsuit alleging constitutional violations during his warrantless arrest and subsequent prosecution. He was acquitted of all charges. Two Monroe County Assistant District Attorneys appeal the District Court’s denial of their Rule 12(b)(6) motion to dismiss on the ground that they have absolute immunity for the violations alleged. We hold that the Assistant District Attorneys have absolute immunity from suit and thus reverse the decision of the District Court with respect to claims against these prosecutors in their individual capacities. Monroe County also appeals the District Court’s denial of its Rule 12(b)(6) motion arguing that municipal liability is not warranted because the county prosecutors were state, not county, actors. Because the elements of the claim against the county are not inextricably intertwined with the question of absolute immunity, we are without appellate jurisdiction to hear the county’s interlocutory appeal.

REVERSED IN PART; DISMISSED IN PART; AND REMANDED.

MATTHEW D. BROWN, for Michael E. Davis, County Attorney, Monroe County, New York, for Defendants‐ Appellants.

DANIEL M. WHITE, Milbank, Tweed, Hadley & McCloy, LLP, New York, NY (Alexandra Wang, Max Kelly, Milbank, Tweed, Hadley & McCloy, LLP, New York, New York, on the brief) for Plaintiff‐Appellee.

PETER W. HALL, Circuit Judge:

This appeal principally concerns whether two Monroe County Assistant District

Attorneys, James Egan and Mark Monaghan (“the ADAs”), are absolutely immune from

2 civil suit for interfering in the timing of Plaintiff‐Appellee Seun Ogunkoya’s

arraignments in several town courts as the ADAs were preparing to present the charges

to a grand jury. Ogunkoya alleged that the ADAs, along with other state and county

defendants, violated his Fourth and Fourteenth Amendment rights by failing to timely

arraign him on four of six identity fraud and larceny charges. Because the ADAs were

performing a traditional prosecutorial function when they determined that they would

initiate Ogunkoya’s prosecution via grand jury indictment and thus delay his

arraignment on separate individual charges, we reverse the District Court’s denial of

absolute immunity.

Regarding Monroe County’s effort to appeal the denial of its motion to dismiss,

because the claims against the county are not inextricably intertwined with the question

of the ADAs’ immunity, we are without jurisdiction to consider the County’s appeal at

this time.

I.

Absolute immunity protects a prosecutor “not only from liability but also from

suit.” Shmueli v. City of New York,

(2d Cir. 2005). “Hence, an

interlocutory order rejecting the defense [of absolute immunity] is immediately

appealable under the collateral order doctrine.”

“When a district court denies immunity on a Rule 12(b)(6) motion to dismiss, ‘we

review the district court’s denial de novo, accepting as true the material facts alleged in

3 the complaint and drawing all reasonable inferences in plaintiffs’ favor.’” Warney v.

Monroe Cty.,

(2d Cir. 2009) (quoting Johnson v. Newburgh Enlarged Sch.

Dist.,

, 250 (2d Cir. 2001)).

II.

The facts as alleged in Ogunkoya’s complaint are as follows. The investigation

leading to his arrest began when Home Depot reported several gift card purchases

suspected to be fraudulent to the New York State Police (“NYSP”). The gift cards, totaling

$28,000, were all acquired on April 26, 2014, at Home Depot stores in three Monroe

County towns—Greece, Henrietta, and Irondequoit. NYSP Investigator Mark Eifert

opened a criminal investigation and learned that Ogunkoya used his personal credit card

for small purchases in the Greece and Henrietta stores around the same time as the gift

cards were purchased. Eifert also reviewed Home Depot’s surveillance tapes. Those

tapes show someone other than Ogunkoya purchasing the gift cards. On January 20,

2015, Eifert prepared six felony complaints charging Ogunkoya with one count of identity

theft and one count of grand larceny in each of the three towns.

A month later, acting on Eifert’s knowledge and belief, but without an arrest

warrant, the NYSP arrested Ogunkoya in his Brooklyn apartment. Over the course of the

day, NYSP officers drove Ogunkoya to Monroe County, where he was brought for

arraignment before the Henrietta Town Court around 10 P.M. The NYSP filed all six

felony complaints with the Henrietta court, but the judge refused on jurisdictional

4 grounds to arraign Ogunkoya on the four complaints based on conduct alleged to have

occurred in Greece and Irondequoit. The judge instructed the NYSP to have Ogunkoya

arraigned on the remaining complaints during the next business day, Monday, February

23, 2015.

Ogunkoya was never arraigned in Greece or Irondequoit. Instead, a bail hearing

was held that Monday in Monroe County Court. At the hearing, Ogunkoya, who was

planning to sit for the bar exam in New York City the following day, asked to be arraigned

on the four remaining complaints “in time for a new bail application to be made on all

the charges.” J. App. 11. Considering Ogunkoya a “flight risk,” the ADAs argued for a

$100,000 cash/$300,000 bond bail “based on the combined allegations of the six felony

complaints.” Id. The judge set Ogunkoya’s bail at $100,000 cash/$300,000 bond. As

alleged by Ogunkoya, “[t]his amount of bail is unusually high considering the amount of

the alleged thefts [] and local custom.” Id.

Ogunkoya’s family then sought to arrange for bail, but the bail bondsman

“expressed reluctance at posting a bond” because of Ogunkoya’s four outstanding

criminal complaints on which he had not yet been arraigned. J. App. 12. Ogunkoya’s

counsel wrote to ADA Egan and again requested that Ogunkoya be arraigned on the four

outstanding complaints so that he could secure bail. Egan responded by email:

There is no need to ever arraign him on the charges in the local court. He was arrested on the Henrietta charges and received his prompt arraignment on them as required by the CPL. The purpose of CPL 140.20 is to ensure a person who is arrested gets a prompt arraignment and doesn’t have to sit 5 in jail waiting for bail to be set. The other charges are essentially “sealed” charges since he has never been arrested or arraigned on them. In any event, they were all referred to the grand jury and they will be presented together. This is done frequently in cases involving charges in multiple jurisdictions.

Id.

Ogunkoya’s counsel continued to press for arraignment, seeking a writ on the

ground that “Ogunkoya was prepared to post a $300,000 bond but that the bail bondsman

refused to post the bond solely because of the unarraigned charges.” J. App. 13. On

March 20th—28 days after his arrest—Ogunkoya was released after a Monroe County

Court judge signed his bond documents. On or about May 15, 2015, a Monroe County

grand jury indicted Ogunkoya on three counts of identity theft, one count from each

town. At trial, the jury acquitted Ogunkoya on all charges.

After his acquittal Ogunkoya, pro se, filed a § 1983 lawsuit naming the NYSP

officers involved in his arrest, Monroe County DA Sandra Doorley,1 Monroe County

ADAs Monaghan and Egan, and Monroe County itself. Ogunkoya amended his

complaint twice, with pro bono counsel filing the second amended complaint. Both the

NYSP and Monroe County defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6)

1 Monroe County District Attorney Sandra Doorley was incorrectly sued in her individual capacity as Susan Doorley. Although the briefs list Doorley as an appellant, the District Court adopted the magistrate judge’s recommendation that all claims against her be dismissed. Accordingly, nothing remains pending against her at this time, and she has no stake in the instant appeal. 6 arguing that Ogungoya’s complaint failed to state a claim and that the prosecutors had

absolute immunity. The fully briefed motions were referred to the magistrate judge.

The magistrate judge’s Report and Recommendation (“R&R”) construed the

second amended complaint to plead the following claims against all the individual NYSP

and Monroe County defendants: false arrest and false imprisonment, malicious

prosecution, failure to arraign, and related claims for failure to intervene with respect to

each of the preceding claims. The R&R also construed Ogunkoya’s complaint to assert a

Monell municipal liability claim against Monroe County, alleging an unconstitutional

practice or custom and failure to train its officers. The magistrate judge recommended

that all claims against the NYSP defendants proceed except the claims alleging malicious

prosecution, failure to intervene in plaintiff’s prosecution, and failure to intervene in

plaintiff’s arraignment on the part of the arresting officers in Brooklyn.

With respect to the ADAs, the magistrate judge recommended that the false arrest,

malicious prosecution, and related failure to intervene claims be dismissed. The

magistrate judge recommended that the failure to arraign and related failure to intervene

claims proceed against the ADAs. In so doing, the magistrate judge ruled that the ADAs

were not entitled to absolute immunity for their roles in the events underlying

Ogunkoya’s failure to arraign claims.

In addition, the magistrate judge recommended that all claims against DA Doorley

be dismissed because she lacked personal involvement or had absolute immunity.

7 Finally, the magistrate judge recommended that the municipal liability claim against

Monroe County also proceed because Ogunkoya had plausibly pled a Monell violation

requiring the resolution of factual questions.

The district judge adopted the R&R. This appeal followed.

III.

Absolute immunity bars § 1983 suits against prosecutors for their role “in initiating

a prosecution and in presenting the State’s case.” Imbler v. Pachtman,

(1976). Instead of relying on strict categories of actions with respect to which absolute

immunity attaches, the relevant question is “whether there is pending or in preparation

a court proceeding in which the prosecutor acts as an advocate.” Warney,

.

Ultimately, we ask “whether a reasonable prosecutor would view the acts challenged by

the complaint as reasonably within the functions of a prosecutor.” Giraldo v. Kessler,

(2d Cir. 2012).

The ADAs’ decision to prosecute Ogunkoya and proceed by grand jury indictment

rather than proceed on separate criminal complaints is a prosecutorial exercise of

discretion entitled to absolute immunity. See Burns v. Reed,

(1991)

(quoting Imbler, 424 U.S. at 430–31) (holding that “[p]rosecutors are absolutely immune

. . . for their conduct in ‘initiating a prosecution’”). What we must decide is whether the

ADAs are entitled to absolute immunity when they directed the NYSP not to have

8 Ogunkoya arraigned in the Greece and Irondequoit town courts and informed those

courts that Ogunkoya would not be arraigned.

In our view, the Supreme Court’s pronouncement in Imbler squarely addresses the

conduct of the ADAs at issue here. 424 U.S. at 430–31. The Court noted:

We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, [and] whether and when to prosecute. . . .

at 431 n.33.

The District Court erred in denying the ADAs absolute immunity. The District

Court found that “’a reasonable prosecutor’ would conclude that the Greece and

Irondequoit arraignments were a police, not a prosecutorial, responsibility.” J. App. 113.

We disagree. It is true that, in New York, the responsibility for presenting a detained

person before a court for evaluation of the legality of his or her detention is generally a

police responsibility. See

(1) (McKinney) (“Upon arresting

a person without a warrant, a police officer . . . must . . . without unnecessary delay bring

the arrested person or cause him to be brought before a local criminal court and file

therewith an appropriate accusatory instrument charging him with the offense or

offenses in question.”) (emphasis added). When a police officer arrests a person without

a warrant, the officer is constitutionally obliged to present the arrestee before a judicial

9 officer for a determination of probable cause. See Gerstein v. Pugh,

, 113‐14

(1975). That is necessarily an obligation imposed on the officer, who has custody of the

arrested person, to prevent an extended unauthorized detention. However, whether a

prosecutor is performing a police function or acting as an advocate on behalf of the state

with regard to a detained individual “depends in part on whether one looks at the

prosecutors’ discrete actions, or at their role and function in an ongoing proceeding.”

Warney,

. We take the second approach, determining the prosecutor’s

immunity “chiefly on whether there is pending or in preparation a court proceeding in

which the prosecutor acts as an advocate.”

Viewed in the context of Ogunkoya’s

pending indictment and prosecution on multiple charges, a reasonable prosecutor would

conclude that the ADAs’ function in controlling Ogunkoya’s arraignments on multiple

different charges that would later be subsumed in a single charging document was part

of a prosecutor’s role as the gatekeeper of “whether and when to prosecute.” Imbler,

n.33.

The analysis this Court undertook in Warney is helpful to our analysis here. In

Warney, we recognized that prosecutors who are alleged to have not timely disclosed

exculpatory DNA evidence obtained during habeas proceedings are entitled to absolute

immunity.

at 115–21, 125. We concluded that classifying the steps that the prosecutors

took—testing and delaying disclosure of DNA evidence, and identifying the real killer—

was impossible “with[out] reference to context.” Id. at 123. Inculpatory results would

10 aid advocacy; exculpatory results could give rise to an administrative burden to effect

disclosure; results inculpating another would support initiation of a new investigation.

We held that regardless of the test results, all the steps that the Warney prosecutors took

“were integral to and subsumed in the advocacy functions being performed in connection

with Warney’s post‐conviction initiatives.” Id.

Our decision in Warney follows the Supreme Court’s instruction in Van de Kamp v.

Goldstein,

(2009), that absolute immunity covers administrative acts

“directly connected with the conduct of a trial.” The Court explained:

[U]nlike with other claims related to administrative decisions, an individual prosecutor’s error in the plaintiff’s specific criminal trial constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information‐system management. And in that sense also Goldstein’s claims are unlike claims of, say, unlawful discrimination in hiring employees. Given these features of the case before us, we believe absolute immunity must follow.

In Warney, “[j]ust as the administrative act in Goldstein was integral to an advocacy

function,” the potentially administrative or investigative acts “were also integral to the

overarching advocacy function.”

.

Here, the ADAs’ direction that Ogunkoya not be arraigned in Greece and

Irondequoit cannot be understood without reference to their decision to proceed by

grand jury indictment on the three sets of charges together. Viewed as a set of discrete 11 acts, the ADAs’ interference in Ogunkoya’s arraignments in Greece and Irondequoit

ostensibly hampered a police administrative function—presentation of the defendant as

the last stage of the police’s investigation and arrest. See, e.g., Simon v. City of New York,

(2d Cir. 2013) (“Investigation, arrest, and detention have historically and

by precedent been regarded as the work of police, not prosecutors.”). But that is not the

lens through which to examine the prosecutor’s actions. Rather, we view what occurred

as the ADAs directing the NYSP on how to proceed with respect to a court proceeding

pending or in preparation “in which the prosecutor [is acting] as an advocate.” Warney,

.

The decision to initiate prosecution, what charges to bring, and how to perfect and

consolidate those charges is a quintessential prosecutorial function. See Imbler,

; Ying Jing Gan v. City of New York,

(2d Cir. 1993) (“A prosecutor

. . . has absolute immunity in connection with the decision whether or not to commence

a prosecution.”). The ADAs were not only participating in Ogunkoya’s arraignment on

the Henrietta charges but preparing to prosecute him on what they were informed were

multiple charges in two other towns as well. Exercising their “related discretion,” the

ADAs decided to initiate prosecution of Ogunkoya in the two other towns, and ultimately

to pursue all three sets of charges, by grand jury indictment rather than have three

separate criminal actions proceed under the six felony complaints. Goldstein,

344. The ADAs directed that Ogunkoya’s arraignment in Greece and Henrietta not occur

in order to control how the state’s criminal case would proceed.

So, while the District Court was correct that in New York state arraignment is

generally a police function, its analysis failed to consider that a court proceeding was in

preparation, Warney,

, and that the ADAs’ participation in the act of

scheduling arraignments on the multiple charges that were to be consolidated in a single

indictment was “directly connected with the conduct of a trial” and “require[d] legal

knowledge and the exercise of related discretion.” Goldstein,

. As the ADA

explained in his email to Ogunkoya’s counsel, Ogunkoya had already been arraigned on

the Henrietta charges and was being detained on that basis. Further arraignments on the

Greece and Irondequoit charges were not necessary for him to continue to be held

pursuant to the Henrietta arraignment and on terms set by the Henrietta court.2 As their

2 Ogunkoya complains about ADA Egan’s argument to the Henrietta court that bail on the Henrietta charge should be set at a rate that reflected the pendency of the Greece and Irondequoit felony complaints, on which he had not been arraigned, in addition to the Henrietta complaints. He further asserts that the bail bondsman did not want to post bail “because of the possibility that as soon as he was released [he] would be arrested on the four counts on which he had not [been] arraigned.” J. App. 13. He cites documents not in the record assertedly showing that he “was arrested on the Greece charges as well as the Henrietta charges.” On this basis, he argues that the ADAs and the other New York state defendants violated his constitutional rights by failing to “intervene and prevent his extended detention.” J. App. 17. Although the sequence of events is regrettable, these facts do not alter our analysis regarding the prosecutors’ entitlement to absolute immunity in light of their exercise of prosecutorial functions in determining to arraign Ogunkoya only on the Henrietta charge, and to await a grand jury’s indictment on the charges pertaining to events in all three towns. 13 role with respect to the arraignments was prosecutorial, the ADAs are thus entitled to

absolute immunity.

Nor does our decision in Simon, on which the District Court relied, mandate a

different result.

. In Simon, we held that a prosecutor who used a material

witness warrant to detain a witness for questioning, instead of allowing officers to fulfill

the warrant by bringing the witness before the court, was not entitled to absolute

immunity.

at 169–70. We reasoned that arrest and detention are historically police

functions and that New York law explicitly entrusts the execution of material witness

warrants to police officers.

at 172–73.

Simon was not detained for a trial, but merely held in the course of a criminal

investigation, for which no judicial proceedings were scheduled. Simon,

. The prosecutor’s acts were not “subsumed [with]in the advocacy function” related

to a pending court proceeding in the nature of a criminal prosecution. Warney,

. We noted as much at the time. Simon,

(explaining, “[t]hat Simon

might eventually have been called to testify in a judicial proceeding does not make her

detention a prosecutorial function”) (citing Buckley v. Fitzsimmons,

, 275–76

(1993)). It was clear, given the context and timing of the Simon prosecutor’s acts in

question, that the prosecutor was involved in an investigation, not in advocacy related to

the initiation and prosecution of criminal charges.

Indeed, as we pointed out there,

the prosecutor in Simon was “actively avoiding the court‐ordered material witness

14 hearing”; his acts ensured that the plaintiff “had no way of contesting her detention.” Id.

at 173. In this case, in contrast, it is immaterial that the ADAs may have interfered with

a police function because the overarching reason for their directing the arraignments in

town courts to not occur was not related to Ogunkoya’s warrantless arrest, but rather

constituted an exercise of their prosecutorial discretion in preparing a case for indictment

and deciding when, where, and how to prosecute. The separation of the two functions is

highlighted further by the observation that once his bond documents for the Henrietta

charge alone were signed, he was released, despite his still not having been arraigned on

the Greece and Irondequoit charges. For these reasons, we hold that the ADAs have

absolute immunity and the claims against them must be dismissed.

IV.

Monroe County appeals from the District Court’s denial of its motion to dismiss

Ogunkoya’s Monell municipal liability and failure‐to‐train claims. Although the order

denying absolute immunity is “immediately appealable under the collateral order

doctrine,” Shmueli,

, pendent appellate jurisdiction is only appropriate

where an issue is “inextricably intertwined” with the other issues on appeal giving rise

to the appellate court’s jurisdiction or is necessary to ensure “meaningful review” of those

issues. Warney,

(internal quotation marks omitted). Our decision here is

guided, if not mandated, by the previous decision of this Court in Warney. There we held:

Unlike the order denying immunity, the order denying Monroe County’s motion to dismiss is not immediately appealable pursuant to the collateral 15 order doctrine. . . . The elements of a Monell claim, and the extent to which prosecutors in New York are agents of the state (as opposed to a county) are not inextricably intertwined with the question of absolute immunity. We therefore decline to exercise pendent appellate jurisdiction over these issues at this time.

Id.; cf. Askins v. Doe No. 1,

(2d Cir. 2013) (holding that an arresting

officer’s liability is irrelevant to liability of municipality). For these same reasons we hold

that the County’s appeal is premature and one over which we lack appellate jurisdiction.

V.

For the foregoing reasons, the order of the District Court insofar as it denied

absolute immunity to the ADAs is reversed, and this case is remanded for further

proceedings consistent with this opinion.3 The appeal filed by Monroe County is

dismissed.

3 Ogunkoya’s lawsuit against the remaining defendants will proceed in the District Court. We express no views as to the merits of those claims. 16