WATSON v. GRADY

ce to or excluded exculpatory evidence from the Grand Jury, they are protected by absolute immunity for such acts of advocacy. See Peay v. Ajello, 470 F.3d 65, 68 (2d Cir. 2006) (upholding lower court's decision to grant ADA's motion to dismiss on absolute immunity grounds where ADA allegedly suborned perjury and deliberately withheld exculpatory evidence from trial); Bernard, 356 F.3d at 506 (affirming dismissal on absolute immunity grounds when the prosecutor allegedly knowingly presented perjured testimony to the grand jury).

Plaintiff's only specific allegation regarding allegedly investigatory action taken by Defendants Grady and Whitesell is that they met with Defendant Baker in December 2005. (Am. Compl. ¶ 58.) This alleged interview occurred approximately six months prior to the decision to convene the Grand Jury in the summer of 2006 (Aff. of David L. Posner ("Posner Aff.") Ex. A), and, as a result, plausibly occurred prior to the prosecutors having probable cause to arrest Plaintiff. See Hill, 45 F.3d at 661 ("Before any formal legal proceeding has begun and before there is probable cause to arrest, it follows that a prosecutor receives only qualified immunity for his acts."). Nevertheless, Plaintiff has failed to allege any due process violation stemming from this interview because he does not allege that the prosecutors committed any acts that violated his constitutional rights.

Of course, the Supreme Court and the Second Circuit have held that prosecutors are not protected by absolute immunity for fabricating evidence if they acted in an investigatory role. See Buckley, 509 U.S. at 275 (finding that absolute immunity did not protect prosecutors when "[i]t was well after the alleged fabrication of false evidence concerning the bootprint that a special grand jury was impaneled," noting that the prosecutors' alleged fabrication "occurred well before they could properly claim to be acting as advocates"); Hill, 45 F.3d at 662 ("[Absolute] immunity does not protect efforts to manufacture evidence that occur during the investigatory phase of a criminal case."). For example, in Zahrey, the Second Circuit held "that there is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity, at least where the officer foresees that he himself will use the evidence with a resulting deprivation of liberty." 221 F.3d at 344; accord McGhee v. Pottawattamie County, 547 F.3d 922, 933 (8th Cir. 2008) ("[Absolute] immunity does not extend to the actions of a [prosecutor] who violates a person's substantive due process rights by obtaining, manufacturing, coercing, and fabricating evidence before filing formal charges, because this is not a distinctly prosecutorial function." (internal quotation marks omitted), cert. granted, 129 S. Ct. 2002 (2009), and dismissed, 130 S. Ct. 1047 (2010)); Milstein v. Cooley, 257 F.3d 1004, 1006, 1011 (9th Cir. 2001) (finding that absolute immunity did not protect prosecutors from fabricating evidence by approaching a defense witness "for the purpose of inducing [him] to agree to testify falsely" against the plaintiff). However, the Second Circuit has explained that "the investigatory act of obtaining evidence known to be false is not itself a violation of a constitutional right," but that a plaintiff may state a claim against a prosecutor "where a deprivation of liberty results from the initial act of obtaining evidence known to be false, at least . . . where the same person who fabricated the evidence forseeably used it." Zahrey, 221 F.3d at 354 (emphasis in original).

The issue in Zahrey was not whether the prosecutor's act of allegedly fabricating evidence was investigatory or prosecutorial because the defendant prosecutor conceded, for purposes of the appeal, that his act was investigatory. 221 F.3d at 347 (declining to answer the question of whether "a prosecutor [] speaking with a potential witness prior to the witness's grand jury testimony" is "preparing as an advocate or developing evidence as an investigator" because the defendant did not dispute that he "was acting in an investigative role").

Here, Plaintiff alleges that Defendant Baker relayed "fabricated and unsupportable claims" regarding Plaintiff to the prosecutors at the 2005 interview, including presenting the erroneous Palumbo check and claiming that Plaintiff was paid by Palumbo. (Am. Compl. ¶¶ 58-65.) Unlike the plaintiffs in Buckley, Zahrey, and Hill, who alleged that the prosecutors actively participated in fabricating evidence, Plaintiff does not allege that Defendants Grady and Whitesell fabricated evidence at this interview, or coerced, pressured, or encouraged Defendant Baker to fabricate evidence. Indeed, Plaintiff does not even allege that the prosecutors influenced Defendant Baker's allegations in any way or knew, during the interview with Defendant Baker, that the information he presented was false. As a result, Plaintiff has failed to allege that the prosecutors' mere participation in this interview caused any due process violation. See Urrego v. United States, No. 00-CV-1203, 2005 WL 1263291, at *3 (E.D.N.Y. May 27, 2005) (granting defendant prosecutor's motion to dismiss when the plaintiff alleged that the prosecutor spoke "with a potential witness [] prior to that witness' grand jury testimony" because the "complaint [did] not allege that [the witness] was pressured to lie at that meeting" or "that any documents were fabricated by the government"), aff'd, 186 F. App'x 97 (2d Cir. 2006); see also Bernard, 356 F.3d at 506-07 (declining to exercise interlocutory jurisdiction over the plaintiff's claim, noting that "the complaint [did] not accuse [the] defendant [prosecutor] of using his various pre-indictment meetings . . . to induce th[e] witness to commit perjury"); Norton v. Town of Islip, No. 04-CV-3079, 2009 WL 804702, at *16 (E.D.N.Y. Mar. 27, 2009) (dismissing the plaintiff's claim against the defendant prosecutor because although "the act of conspiring to create false evidence is an investigatory function," the plaintiff failed to show that the prosecutor falsified evidence or "added false information to the document" (emphasis in original)), rev'd on other grounds, 2010 WL 2070550 (2d Cir. May 25, 2010); cf. Conte v. County of Nassau, No. 06-CV-4746, 2008 WL 905879, at *4-5, *24-25 (E.D.N.Y. Mar. 31, 2008) (finding that absolute immunity did not protect prosecutors from allegations related to their misconduct in conducting surveillance of the plaintiff, threatening witnesses with prosecution if they did not cooperate, and spreading defamatory falsehoods); Crews, 2007 WL 4591325, at *15 n. 16 (finding that absolute immunity did not protect prosecutors from allegations of "misconduct that took place in the course of participation in and supervision of criminal investigations," such as allegedly attempting to coerce a confession prior to the plaintiff's arrest).

Plaintiff did not specify whether he was asserting a procedural or substantive due process claim against Defendants Grady and Whitesell regarding their alleged investigatory actions. Nor did the Second Circuit in Zahrey specify whether fabrication of evidence by prosecutors constitutes substantive or procedural due process violations. See Zahrey, 221 F.3d at 349; cf. Zahrey v. City of New York, No. 98-CV-4546, 2009 WL 1024261, at *8 n. 14 (S.D.N.Y. Apr. 15, 2009) (characterizing the Second Circuit's decision in Zahrey as establishing a procedural due process right). Regardless, for reasons already explained, Plaintiff has failed to sufficiently allege that the prosecutors fabricated evidence. To the extent Plaintiff asserts a separate substantive due process claim regarding the prosecutors' supposed investigation, this claim is discussed infra, Section II.D. The Court also notes that Plaintiff's claim does not fall within the confines of the Fourth Amendment because it relates to purported investigative failures occurring prior to Plaintiff's arrest. Cf. Russo v. City of Bridgeport, 479 F.3d 196, 208 (2d Cir. 2007) (finding that allegations regarding police officer's investigative misconduct occurring while the plaintiff was in police custody "fit[] comfortably under the coverage of the Fourth Amendment").

Even construed liberally, Plaintiff does not allege any particular acts of investigative misconduct by Defendants Grady and Whitesell. Rather, Plaintiff vaguely alleges that the prosecutors "recklessly investigated" Defendant Baker's allegations by "discount[ing] and hid[ing] evidence . . . [that] exonerated him." (Am. Compl. ¶¶ 66-68.) First, Plaintiff has presented no specific allegations to support his claim that the prosecutors acted recklessly or negligently during the investigation. Rather, as Plaintiff makes clear, his claim is that the prosecutors "intentionally ignored [certain] facts made known to them during their investigation in their effort to maliciously prosecute [Plaintiff]." ( Id. ¶ 72.) In other words, Plaintiff's complaint is that he disagrees with the prosecutors' decision to convene the Grand Jury and indict because Plaintiff believes that the prosecutors' ignored exculpatory evidence in making this decision. But, as already explained, Defendants Grady and Whitesell's decision to discount or ignore certain evidence in deciding to prosecute Plaintiff is a prosecutorial decision cloaked with absolute immunity. See Urrego, 2005 WL 1263291, at *3 (finding that the plaintiff's allegation regarding the defendant prosecutor's alleged participation in a witness interview might show that the prosecutor knew that the evidence he presented to the grand jury (but did not fabricate) was false, but that presentation of false testimony was protected by absolute immunity); see also Williams, 2009 WL 3254465, at *10 (finding that the defendant prosecutors were protected by absolute immunity for "evaluating evidence and deciding whether to initiate a prosecution"). Second, courts have consistently rejected claims against prosecutors for alleged negligent investigations. See Fudge v. Town of Shandaken Police, No. 09-CV-300, 2010 WL 3258385, at *8-9 (N.D.N.Y. Aug. 16, 2010) (rejecting claim that the defendant prosecutors "failed to properly investigate the witnesses' allegedly false statements and proceeded with their cases," because "there is no general obligation to investigate the veracity of witness' statements before deciding to prosecute" and "[t]he presentation of evidence to the Grand Jury is a prosecutorial function"); Aretakis v. Durivage, No. 07-CV-1273, 2009 WL 249781, at *31 (N.D.N.Y. Feb. 3, 2009) (noting "that alleging negligence does not support a claim that a person's constitutional rights were deprived"); see also Curto, 2005 WL 724156, at *10 n. 9 (noting that the plaintiff's claim that the prosecutor "purportedly fail[ed] to also interview a witness she identified . . . [did] not implicate a constitutional violation").

Moreover, despite Plaintiff's continued assertions regarding Defendant Grady and Whitesell's alleged personal and political motivations (Am. Compl. ¶¶ 67-68, 72), their motivations are irrelevant to the absolute immunity analysis when Plaintiff's allegations boil down to a claim that the prosecutors were maliciously motivated in deciding to prosecute him. See Shmueli, 424 F.3d at 237 (finding that absolute immunity applied regardless of the prosecutor's improper motivation or state of mind); Bernard, 356 F.3d at 507 ("[A] political motive does not deprive prosecutors of absolute immunity from suit for authorized decisions made in the performance of their function as advocates."). Accordingly, Defendants Grady and Whitesell's Motion to Dismiss Plaintiff's Due Process claims is granted.

D. Deprivation of Liberty Interest Claim

Plaintiff's third claim, also brought pursuant to § 1983, alleges that Defendants Grady and DiNapoli made public comments regarding Plaintiff that they "knew to be false or about which [they] recklessly disregarded the truth," thereby depriving Plaintiff of a liberty interest in violation of the substantive due process clause of the Fourteenth Amendment. (Am. Compl. ¶ 121.)

Grady is not entitled to absolute immunity protection with respect to his public comments because press conferences and statements are not part of a prosecutor's role as advocate. See Buckley, 509 U.S. at 277-78 (finding that because "[t]he conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state's case in court, or actions preparatory for these functions[,] . . . a prosecutor is in no different position than other executive officials who deal with the press," and thus a prosecutor's "statements to the media are not entitled to absolute immunity").

"Generally, defamation is an issue of state, not of federal constitutional, law." Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010); see also Siegert v. Gilley, 500 U.S. 226, 233 (1991) ("Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation."). However, a plaintiff may bring a federal constitutional claim based on "defamation committed by government officials" if he "can demonstrate a stigmatizing statement plus a deprivation of a tangible interest," often called a "stigma-plus" claim. Vega, 596 F.3d at 81 (internal quotation marks omitted). "To establish a `stigma plus' claim, a plaintiff must show (1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights." Vega, 596 F.3d at 81 (internal quotation marks omitted); see also Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) ("[A] stigma-plus claim[] [] involves an injury to one's reputation (the stigma) coupled with the deprivation of some tangible interest or property right (the plus), without adequate process." (internal quotation marks omitted)).

To prove the "stigma" element, a plaintiff must show that the defendant made a stigmatizing or defamatory statement about the plaintiff that jeopardized his "good name, reputation, honor, or integrity." Segal, 459 F.3d at 212 (internal quotation marks omitted). "[S]tatements that denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession will satisfy the stigma requirement." Id. (internal quotation marks omitted); see also Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 631-33 (2d Cir. 1996) (noting that although "vague statements of unspecified incompetence [did] not harm an employee's professional reputation," specific and serious allegations that went "to the heart of [the plaintiff's] professional competence" were sufficiently stigmatizing). A plaintiff must also show that "the stigmatizing statements were made public." Spang v. Katonah-Lewisboro Union Free Sch. Dist., 626 F. Supp. 2d 389, 395 (S.D.N.Y. 2009).

Defendant Grady first argues that Plaintiff has failed to state a stigma-plus claim against him because the claim is based only on Defendant DiNapoli's statement that Plaintiff put more than a million dollars of taxpayer money at risk. (Grady Whitesell Mem. 19-20.) It is true that the Amended Complaint inartfully states that only Defendant DiNapoli commented about the million dollars (Am. Compl. ¶ 88), and then later alleges a stigma-plus claim against both Defendants Grady and DiNapoli based on this same comment, ( id. ¶ 121). However, the Amended Complaint alleges several other statements by Defendant Grady, such as that, when "specifically asked about the shared responsibility of the [Defendant] [B]oard for" the actions predicating the indictment, he stated that Plaintiff's "alleged illegal conduct took place without the knowledge or approval of the [Defendant] [B]oard and [] that `there was only reason to charge [Plaintiff].'" ( Id. ¶ 69; id. ¶¶ 103-04 (alleging that on February 7, 2008, Defendant Grady publicly stated "several times" that Plaintiff acted "without the approval or knowledge of the [Defendant] [B]oard").) The Court sees no reason why these other alleged statements, explicitly attributed to Defendant Grady, cannot be considered.

Moreover, the Court is not persuaded that Defendant Grady's alleged statements were not defamatory as a matter of law. First, although Defendant Grady argues that some of his comments were not published in the Poughkeepsie Journal article about Plaintiff (Grady Whitesell Mem. 23), there is no requirement that the alleged defamatory statements be published in a newspaper so long as they are made public. See Donato, 96 F.3d at 631 (finding that statements in employee's personnel file were sufficiently publicized when they were "likely to be disclosed to prospective employers" (internal quotation marks omitted)). Considering that Plaintiff alleges that Defendant Grady made statements at a press conference (Am. Compl. ¶ 69), Plaintiff has plausibly alleged that the statements were made public. See Malapanis v. Regan, 340 F. Supp. 2d 184, 193-96 (D. Conn. 2004) (analyzing stigma-plus claim based on statements made at a press conference), aff'd, 147 F. App'x 219 (2d Cir. 2005); see also D'Allessandro v. City of Albany, No. 04-CV-788, 2008 WL 544701, at *4, *10-11 (N.D.N.Y. Feb. 26, 2008) (analyzing stigma-plus claim based on oral and written statements made to a city council). Second, despite Defendant Grady's claims to the contrary, his statements about Plaintiff making questionable decisions regarding hiring and payments to himself or others, without Board approval, can plausibly be read to impugn his professional competence and damage his professional reputation. See Donato, 96 F.3d at 627, 633 (finding that comments about the plaintiff being "ineffective as a disciplinarian" and "show[ing] a lack of concern in her interactions with parents" were stigmatizing because they went "to the heart of her professional competence and damage[d] her professional reputation"); Spang, 626 F. Supp. 2d at 393, 396 (finding that comments about the plaintiff superintendent improperly delegating tasks, and failing to communicate with colleagues or timely finish work, could plausibly be stigmatizing and impede the plaintiff's ability to find work); Peres v. Oceanside Union Free Sch. Dist., 426 F. Supp. 2d 15, 27 (E.D.N.Y. 2006) (denying motion to dismiss because statements about the plaintiff teacher having "lapses of supervision and judgment" were plausibly stigmatizing (internal quotation marks omitted)). Accordingly, Plaintiff has sufficiently alleged the "stigma" portion of his claim.

However, this is not the end of the inquiry. To establish the "plus" element of a stigma-plus claim, Plaintiff must allege a tangible, state-imposed burden, such as a "deprivation of a legal right or status." Sadallah v. City of Utica, 383 F.3d 34, 38-39 n. 3 (2d Cir. 2004) (internal quotation marks omitted); see also Vega, 596 F.3d at 81 (noting that a plaintiff must demonstrate a "deprivation of a tangible interest" that is "in addition to the stigmatizing statement" (internal quotation marks omitted)); Malapanis, 340 F. Supp. 2d at 194 ("Government imposition of a `tangible burden' on future employment prospects may satisfy the `plus' requirement."). For example, courts have found that plaintiffs sufficiently stated a "plus" by alleging termination of government employment, Donato, 96 F.3d at 631-32, suspension of a medical license, Diblasio, 344 F.3d at 304, or placement on a government registry for child abusers, Valmonte v. Bane, 18 F.3d 992, 1002 (2d Cir. 1994). In contrast, damage to a plaintiff's reputation is not a "tangible" burden that can alone establish the "plus" in a stigma-plus claim. See Siegert, 500 U.S. at 233-34 (finding that damage to a plaintiff's reputation and impairment of "future employment prospects" failed to satisfy the requirements of stigma-plus claim); Paul v. Davis, 424 U.S. 693, 701 (1976) (holding that damage to a plaintiff's reputation alone does not constitute a deprivation of liberty interest, and that the damage must be accompanied by a more tangible interest). Additionally, Plaintiff must allege that the stigma and the plus were "sufficiently proximate." Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). Although the "stigma" and "plus" need not have been contemporaneous, there must be rough temporal proximity so that "the stigma and plus would, to a reasonable observer, appear connected." Id.; see also Siegert, 500 U.S. at 234 (noting that the defamatory statements must have been "incident to" the plaintiff's termination); Patterson, 370 F.3d at 330 ("[P]laintiff must show the stigmatizing statements were made concurrently in time to plaintiff's dismissal from government employment.").

Plaintiff alleges that he voluntarily entered into a severance agreement with the District in November 2005, which set Plaintiff's last day of employment as February 9, 2006 (Am. Compl. ¶¶ 13, 29), and that Defendants DiNapoli and Grady made stigmatizing statements in August 2007 and February 2008, respectively ( id. ¶¶ 87, 103), which damaged his "professional standing and reputation" and ruined his career, ( id. ¶¶ 116-17). These allegations fail to sufficiently allege the "plus" element of a stigma-plus claim — damage to Plaintiff's reputation and his resulting difficulty getting a job from the allegedly defamatory statements do not alone constitute a tangible burden separate from the effects of the alleged defamation. See Sadallah, 383 F.3d at 39 (granting motion to dismiss when plaintiff had "not alleged a plus sufficient to sustain a stigma plus claim," where plaintiff alleged damage to his "business reputation" and good will because such harms were not "in addition to the alleged defamation, but rather [were] direct deleterious effects of that defamation" (internal quotation marks and citation omitted)); Jana-Rock Constr., Inc. v. City of Syracuse, No. 05-CV-1191, 2007 WL 3274801, at *4 (N.D.N.Y. Nov. 5, 2007) (granting motion to dismiss because allegations that plaintiff lost contracts and potential contracts because of allegedly defamatory statements failed to sufficiently state "plus" element); Trudeau v. N.Y. State Consumer Prot. Bd., 05-CV-1019, 2006 WL 1229018, at *13 (N.D.N.Y. May 4, 2006) ("The loss of revenue can be viewed as a deleterious effect[] flowing directly from a sullied reputation, and as such, would not constitute a `plus' under the `stigma plus' doctrine.").

Plaintiff's repeated reliance on Valmonte is misplaced. In Valmonte, the Second Circuit found that the plaintiff's placement on a child-abuse registry could constitute the "plus" for a stigma-plus claim. 18 F.3d at 1001-02. In so holding, the Second Circuit emphasized that child care providers were statutorily required to review the registry prior to hiring. Id. at 1001-02. As a result, the Second Circuit explained, the plaintiff had alleged "not just the intangible deleterious effect that flows from a bad reputation," but "[r]ather . . . a specific deprivation of her opportunity to seek employment caused by a statutory impediment established by the state." Id. at 1001. In contrast, Plaintiff argues that he "will not be able to get a job" in public education because of the allegedly defamatory statements and because employers might conduct a background check on their own volition, without alleging any specific statutory impediment. (Pl.'s Mem. 64 (internal quotation marks omitted).) But, as already explained, damage to a plaintiff's job prospects cannot alone constitute the "plus." Indeed, the Second Circuit in Valmonte explicitly stated that "the deleterious effects which flow directly from a sullied reputation [are] normally . . . insufficient [to constitute a plus], . . . includ[ing] the impact that defamation might have on job prospects, or, for that matter, romantic aspirations, friendships, self-esteem, or any other typical consequence of a bad reputation." Valmonte, 18 F.3d at 1001 (emphasis added). Of course, the remedy for any defamation could be had in a state law tort action. See Chisholm v. Ramia, 639 F. Supp. 2d 240, 245-46 (D. Conn. 2009) (noting that a "free-standing defamatory statement is not a constitutional deprivation, but is instead properly viewed as a state tort of defamation" (internal quotation marks omitted)).

Indeed, Plaintiff's case is similar to Siegert, in which the plaintiff voluntarily left his government employment pursuant to a severance agreement and later claimed that statements made about his work performance to a prospective employer damaged his reputation and prevented him from gaining new employment. 500 U.S. at 228-29. In Siegert, the Supreme Court found that the plaintiff had failed to satisfy the requirements of a stigma-plus claim because "injury to reputation by itself was not a `liberty' interest protected under the Fourteenth Amendment," and because damages flowing from such reputational harm, including "impairment of his future employment prospects" were also insufficient. Id. at 233-34. Just as the plaintiff in Siegert voluntarily left his employment and later claimed reputational harm from defamatory statements, Plaintiff here signed a voluntary severance agreement and claims only that damage to his reputation and the resulting difficulties in obtaining employment are tangible burdens.

Notably, Plaintiff does not even allege, let alone argue, that the severance agreement itself or the termination of his employment constituted the "plus." This is not surprising considering that the alleged defamatory statements were made well-over a year after Plaintiff signed the severance agreement and ceased working for the District. Even construing Plaintiff's allegations liberally, such a time-gap cannot plausibly suggest the required proximity between the stigmatizing statements and the termination of Plaintiff's employment. See id. at 234 (noting that the plaintiff failed to state a stigma-plus claim because "[t]he alleged defamation was not uttered incident to the termination of [the plaintiff's] employment by the hospital, since he voluntarily resigned from his position at the hospital, and the letter was written several weeks later"); see also Martz v. Inc. Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (finding that five months between plaintiff's job termination and the allegedly defamatory statements was insufficient to establish "nexus" between the stigma and plus elements); Holmes v. Gaynor, 313 F. Supp. 2d 345, 360 (S.D.N.Y. 2004) (finding no proximate connection between plaintiff's termination as a village employee and statements made by a village board member nine months after the termination). Accordingly, Defendants Grady and DiNapoli's Motions to Dismiss the stigma plus claim are granted.

Additionally, there is no allegation that the defamatory statements (made later) were in any way related to the severance agreement or Plaintiff's termination when Plaintiff merely alleges that Defendant DiNapoli's statements were made in connection with announcing the findings of the audit report and Defendant Grady's statements were made in connection with announcing the indictment. Cf. Velez, 401 F.3d at 90 (finding that the plaintiff adequately alleged a stigma-plus claim when the defendants made stigmatizing statements regarding the plaintiff's criminal and inappropriate behavior that "explicitly requested her removal" from office, and that the decision to remove her from employment was " expressly" based on the stigmatizing statements (emphasis in original)).

E. Deprivation of Substantive Due Process

Plaintiff's last claim, brought against all Defendants, is for a deprivation of substantive due process for "engaging in [a] shocking course of conduct." (Am. Compl. ¶ 122.) As Defendants point out, "where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process." Velez, 401 F.3d at 94; see also Conte, 2008 WL 905879, at *14 n. 12 ("[S]ubstantive due process analysis is not available where a more specific constitutional standard is directly applicable." (internal quotation marks omitted)). Indeed, the Supreme Court has specifically declined to recognize a substantive due process right to be free from criminal prosecution because the Fourth Amendment provides the basis for a claim of "pretrial deprivations of liberty." Albright v. Oliver, 510 U.S. 266, 274-75 (1994) (plurality opinion). Following this principle, courts dismiss Fourteenth Amendment due process claims when the conduct involves an allegedly malicious prosecution because "the Fourth Amendment provides the source for [such] a claim under Section 1983." Conte, 2008 WL 905879, at *14 n. 12 (rejecting argument that actions constituting malicious prosecution, even if allegedly done "in [] an outrageously arbitrary way" could be based on substantive due process); see also Russo v. City of Bridgeport, 479 F.3d 196, 208-09 (2d Cir. 2007) (construing substantive due process claims brought pursuant to the Fourth Amendment); Lenhard v. Dinallo, No. 08-CV-165, 2009 WL 890596, at *6 (N.D.N.Y. Mar. 31, 2009) (finding that claims of due process regarding pre-trial deprivation of liberty should be analyzed under the Fourth Amendment).

Here, the Court has already explained why Plaintiff's allegations against Defendants Baker, Sims, the Board, and DiNapoli regarding the failed prosecution are properly brought as Fourth Amendment malicious prosecution claims, not Fourteenth Amendment substantive due process claims. Similarly, to the extent Plaintiff bases his "substantive due process" claim on the alleged public false statements of Defendants Grady and DiNapoli, this claim is subsumed by his stigma-plus claim, which is a procedural due process claim. See Velez, 401 F.3d at 93-94 (upholding motion to dismiss substantive due process claim when the alleged "outrageous" conduct was based on the same conduct allegedly constituting her First Amendment and stigma-plus procedural due process claims); see also Conte, 2008 WL 905879, at *14-15 (analyzing claim for deprivation of "due process" relating to plaintiff's alleged loss of business from defamatory statements under stigma-plus doctrine).

Moreover, most of Plaintiff's claims against Defendants Grady and Whitesell are aimed at their alleged decision to initiate a prosecution against Plaintiff based on false or misleading evidence and ignoring other exculpatory evidence. As already explained, this prosecutorial decision is protected by absolute immunity. Moreover, to the extent Zahrey contemplates a substantive due process claim against prosecutors for fabricating and using evidence, the Court has explained why Plaintiff failed to sufficiently allege such a claim here. Finally, Plaintiff has simply failed to allege facts related to the prosecutors' purported investigation that are "`so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)); see also Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007) ("In order to shock the conscience and trigger a violation of substantive due process, official conduct must be outrageous and egregious under the circumstances; it must be truly brutal and offensive to human dignity." (internal quotation marks, citation, and ellipsis omitted)); Malapanis v. Regan, 335 F. Supp. 2d 285, 295 (D. Conn. 2004) ("Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority." (internal quotation marks omitted)), aff'd, 147 F. App'x 219 (2d Cir. 2005). Specifically, Plaintiff vaguely alleges that the prosecutors "failed [in their] basic investigative responsibilities" and "hid[] evidence" (Am. Compl. ¶¶ 67-68), without alleging what evidence the prosecutors supposedly hid or what specific investigative acts were so arbitrary as to violate due process. Indeed, Plaintiff alleges that the prosecutors were consistently lied to by Defendants Baker, Sims and the Board and were given (allegedly false) information suggesting that Plaintiff was involved in criminal activity. ( Id. ¶¶ 59-60, 72-75.) Based on these allegations, Plaintiff has failed to present facts plausibly suggesting that the prosecutors' supposed investigatory conduct was so outrageous as to shock the conscious. See Kenific v. Oswego County, No. 07-CV-213, 2010 WL 2977267, at *14 (N.D.N.Y. July 23, 2010) (granting motion to dismiss substantive due process claim based on allegations of a faulty investigation when the plaintiff did not plead facts "plausibly suggesting the absence of a reasonable basis for [the d]efendants' investigation and/or finding of abuse"); Kozey v. Quarles, No. 04-CV-1724, 2005 WL 2387708, at *6 (D. Conn. Sept. 28, 2005) (granting motion to dismiss substantive due process claim based on alleged reckless investigation when, "[g]iven the very high standard courts have consistently used in evaluating substantive due process claims," the plaintiff's claim that the defendants failed to submit exculpatory evidence was insufficient because other available information supported the defendants' actions), aff'd, 252 F. App'x 387 (2d Cir. 2007); see also Nelson v. Hernandez, 524 F. Supp. 2d 212, 225 (E.D.N.Y. 2007) (granting summary judgment motion on Fourth Amendment claim regarding alleged failure to investigate exculpatory information because conclusory claim that, "had defendants done a thorough and proper investigation . . . they would have easily concluded that" the plaintiff was not the perpetrator, was insufficient to show that defendants conduct shocked the conscience). Therefore, Defendants' Motions to Dismiss the substantive due process claim are granted.

Defendant Grady also argues that the entire Amended Complaint against him must be dismissed under Fed.R.Civ.P. 4(m) because the Court does not have jurisdiction over him as he was not properly served under Fed.R.Civ.P. 4(e). Given that here: (1) the statute of limitations would not bar a re-filed action; (2) Defendant Grady clearly had notice of the claims asserted in the Amended Complaint as he responded to them on the merits; and (3) Defendant Grady has not explained why he would be prejudiced by allowing an extension of time to serve, the Court in its discretion would have granted Plaintiff an additional thirty days to properly serve Defendant Grady. See Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) (stating that "district courts have discretion to grant extensions" of time for service); De La Rosa v. N.Y.C. 33 Precinct, No. 07-CV-7577, 2010 WL 1737108, at *6 (S.D.N.Y. Apr. 27, 2010) (listing factors courts should consider in assessing prejudice to the parties when deciding whether to grant an extension); Gore v. RBA Group, Inc., No. 03-CV-9422, 2009 WL 884565, at *7 (S.D.N.Y. Mar. 27, 2009) (granting extension of time pursuant to Rule 4(m)). However, because the Court is dismissing Plaintiff's claims against Defendant Grady under Fed.R.Civ.P. 12(b)(6), the issue of service is moot.

III. Conclusion

For the reasons stated herein, Defendants' Motions to Dismiss are granted in part and denied in part. Plaintiff's malicious prosecution claim against Defendant DiNapoli, due process claims against Defendants Grady and Whitesell, stigma-plus claims against Defendants Grady and DiNapoli, and substantive due process claims for "unconscionable conduct" against all Defendants are dismissed with prejudice. Plaintiff has already had two failed attempts at asserting colorable claims for these causes of action, and the Court finds that to be enough. See Treppel v. Biovail Corp., No. 03-CV-3002, 2005 WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005) ("[T]he Court finds that leave to amend would be futile because plaintiff has already had two bites at the apple and they have proven fruitless."). The Clerk of Court is respectively requested to terminate the pending motions (Dkt. Nos. 28, 34, 36, 37, 38, 43), and to terminate Defendants Grady, Whitesell, and DiNapoli as defendants.

SO ORDERED.

Dated: September 30, 2010

White Plains, New York