NEWTON v. CITY OF NEW YORK

. The Second Circuit has confirmed that "[t]he advocacy function of a prosecutor includes seeking exoneration and confessing error to correct an erroneous conviction." Thus, while forensic analysis may sometimes be viewed as an investigatory activity, here it served as an advocacy tool.

See id.

See generally id.

Cornejo, 592 F.3d at 127 (quoting Butz v. Economou, 438 U.S. 478, 515 (1978)).

Warney, 587 F.3d at 125.

In any event, plaintiff does not contest the `advocacy' categorization of Ryan's functional role. To the extent that plaintiff challenges Ryan's entitlement to absolute immunity, he posits that she was not a quasi-judicial officer because "she was not appointed by the court and she was not authorized to conduct any testing." The basis for plaintiff's assertion is that the court order "authorized testing by a forensic scientist retained by Mr. Newton's attorneys . . . [The Judge] did not appoint his own expert." Yet absolute immunity is "justified and defined by the functions it protects and serves, not by the person to whom it attaches," and as plaintiff concedes, Ryan was "undeniably acting within the scope of her duty as an OCME laboratory scientist in testing the rape kit pursuant to court

8/4/10 Plaintiff's Sur-Reply Memorandum of Law Filed in Opposition to Defendants' Motion "For Preclusion and/or Dismissal of Reinstated Claims, and for Reconsideration" ("Pl. Sur-Rep."), at 3.

Id.

Forrester v. White, 484 U.S. 219, 227 (1988).

order." Indeed, in plaintiff's words, "Ms. Ryan was employed by the OCME specifically to conduct such tests and produce the type of report that is in issue in this matter. Particularly after a court issued order, Ms. Ryan's report was foreseeable and the natural incident of her employment." Because Ryan was acting as an arm of the state in conducting the testing, it is irrelevant that she was not acting as a court-appointed expert. As the Second Circuit has stated, "the critical inquiry is not the official position of the person seeking absolute immunity, but the specific action for which the person seeks immunity." Thus, in view of the context in which Ryan conducted forensic testing of the rape kit, as well as the specific and individualized purpose of the testing in Newton's criminal case, the first and most important factor of the absolute immunity inquiry favors Ryan's protected status.

Pl. Tr. Br. at 14. Plaintiff's assertion about the scope of Ryan's professional duties belies his only other argument against affording her absolute immunity. Plaintiff argues that "[e]ven if this Court were to make a stretch and deem Patricia Ryan a quasi-judicial officer, under New York law her actions still lack any colorable claim of authority and do not entitle her to immunity." Pl. Sur. Rep. at 3. However, absolute immunity still applies where conduct occurred in excess of jurisdiction, rather than the absence of it. See, e.g., Mireles v. Waco, 502 U.S. 9, 13 (1992) ("If judicial immunity means anything, it means that a judge "will not be deprived of immunity because the action he took was in error . . . or was in excess of his authority.") (quotation omitted). Because Newton accepts that Ryan had general authority to conduct such tests at the OCME, he can only argue that she exceeded her jurisdiction, thus leaving her immunity protection intact.

Pl. Tr. Br. at 14.

Mangiafico, 471 F.3d at 394.

2. Prong Two: Public Policy Considerations

The public policy prong of the three-factor immunity test also counsels in favor of granting absolute immunity to Ryan. If laboratory scientists were exposed to liability on the basis of their alleged forensic testing errors, every criminal case involving biological evidence would become a breeding ground for additional litigation against the state and its actors. Because Section 1983 lawsuits against forensics examiners "could be expected with some frequency" as defendants "transform resentment at being convicted into allegations" of improper scientific analysis, the "concern that harassment by unfounded litigation would cause a deflection of the [official's] energies from his public duties" is directly implicated. After all, a defendant receiving unfavorable forensic results can be expected to be disgruntled. As the Supreme Court has noted, "if the defendant official could be made to answer in court each time a disgruntled defendant charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law" or otherwise facilitating the criminal justice process. The primary purpose underlying the long-standing tradition of absolute immunity for judges, prosecutors, and witnesses thus applies with equal force to forensic scientists — the ability to "perform their respective functions without harassment or intimidation."

Briscoe, 460 U.S. at 343-44 (citations omitted)

Id. (citations omitted).

Butz, 438 U.S. at 512.

Exposure to suit may yield other unfavorable public policy results. While laboratory scientists are compelled to comply with court orders requiring their services, other public officials may be less inclined to grant permission for post-conviction testing if doing so may invite the "the threat of a protracted lawsuit, not to mention the prospect of money damages, [that] would inevitably involve the diversion of the government's attention and resources." At the very

Mangiafico, 471 F.3d at 397. The Supreme Court has held that prisoners do not have a constitutional right to post-conviction DNA testing. See District Attorney's Office for the Third Judicial District v. Osborne, ___ U.S. ___, 129 S.ct. 2308 (2009). New York's subdivision 1-a to New York Criminal Procedure Law section 440.30 ("section 440.30(1-a)(a)"), enacted in 1994, permits a post-conviction defendant to "request the performance of a forensic DNA test on specified evidence" when moving to vacate a judgment. While the request "shall" be granted upon a court's "determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict will have been more favorable to the defendant," there is still a measure of judicial discretion involved in a defendant's post-conviction right to access evidence. N.Y. Crim. Proc. L. § 440.30 (1-a)(a). See, e.g., Fuentes v. Superintendent, Great Meadow Corr. Facility, No. 04 Civ. 0737, 2009 WL 2424206, at *9 (E.D.N.Y. Aug. 5, 2009) (finding no procedural due process violation in light of Osborne where state court denied post-conviction defendant's request for access to evidence for DNA testing under section 440.30(1-a)(a) upon the state court's determination that the defendant had failed to show the requisite reasonable probability).
Moreover, New York has no law requiring the preservation of evidence, a fact which could unfortunately serve to circumvent the spirit of section 440.30 (1-a)(a). The fear of continuous litigation in the wake of post-conviction testing may encourage the use of this evidentiary loophole. It may also dampen prosecutorial enthusiasm in helping post-conviction defendants access the evidence. Indeed, Newton's rape kit would not ultimately have been found were it not for Bronx Assistant District Attorney Elisa Koenderman's personal request that officials at the city storage facility conduct another search and her inclusion of the information identifying its location "for [their] convenience." 7/14/05 Letter from ADA Koenderman to Trabitz, Ex. H to Schutty Decl. I.

least, "[t]he defense of such suits would necessarily complicate, if not intimidate, the making of what may be routine, discretionary decisions" by judges and prosecutors." Moreover, the "finality of judgments" — identified by the Supreme Court as part of the foundational rationale for absolute immunity — would be compromised, and respect for the criminal justice process eroded, as defendants second-guessed the integrity of the scientific testing used to convict them or justify their confinement, even after their guilt had already been subject to the safeguards of trial and determined by an impartial jury. As the Supreme Court has noted, "[t]he loser in one forum will frequently seek another."

Mangiafico, 471 F.3d at 397.

Forrester, 484 U.S. at 225.

Briscoe, 460 U.S. at 335.

3. Prong Three: Alternative Means of Redress

The third factor in the absolute immunity inquiry, the existence of other remedies against laboratory scientists, is also satisfied. State medical examiners and forensics scientists are subject to professional disciplinary action, which has been "considered sufficient in previous cases affording absolute immunity." Additionally, the public is not left "powerless to deter misconduct or to punish that which occurs," because the criminal law could respond to "willful deprivations of constitutional rights."

Mangiafico, 471 F.3d at 397 n. 4.

Imbler, 424 U.S. at 428-29. "This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law." Id. at 429.

4. Analysis

Taken as a whole then, the circumstances of the instant case support absolute immunity for Ryan. Certainly, the extension of absolute immunity to laboratory scientists presents the supremely difficult task of balancing the equities between the public good and individual rights, with "evils inevitable in either alternative." "To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a[n officer] whose malicious or dishonest action deprives him of liberty." For this reason, the protection of absolute immunity may not be appropriate in a pre-conviction context where the jury's determination of guilt may result from a faulty scientific process, and where the laboratory scientist's role is primarily an investigative one.

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.) ("As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance, it has been thought better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.").

Imbler, 424 U.S. at 427-28.

But these are not the circumstances presented here. Newton had an opportunity to assert his innocence at trial. He presented two alibi witnesses to testify on his behalf and successfully convinced the jury to acquit him of one of the incidents of rape with which he was charged. Biological evidence played no role in his initial conviction.

See Am. Compl. ¶¶ 82, 94.

Ryan's role in his prolonged incarceration resulted from her participation in a court ordered post-conviction adversarial proceeding, as a state advocate engaged in a search for the truth — thus satisfying "the ultimate question" for the grant of full immunity. The general characteristics of her profession only lend credence to the need for absolute immunity. Under these circumstances, "the alternative of qualifying [her] immunity would disservice the broader public interest." As the Supreme Court has underscored, "the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible."

Warney, 587 F.3d at 121.

Imbler, 424 U.S. at 427-28.

Briscoe, 460 U.S. at 332-33 (quotation omitted). Cf. Pierson v. Ray, 386 U.S. 547, 553-54 (1967) ("[Judicial] immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of the consequences.").

B. Qualified Immunity

1. Role of Judgment in Forensic Analysis

Even assuming, arguendo, that Ryan is not entitled to absolute immunity, she is shielded by the doctrine of qualified immunity. As a threshold matter, Newton argues that Ryan's actions were not discretionary, and that she is therefore not eligible for qualified immunity. In support of his contention, Newton offers one conclusory assertion: "There is simply no factual basis for arguing that Patricia Ryan had the `discretion' to `act in the shoes of [the named doctor on the court order] and report findings that were patently false." Newton misapprehends the discretionary element which triggers qualified immunity. Newton's constitutional grievance against Ryan lies with her failure to properly examine the slides — not in the fact that she examined them.

Pl. Sur. Rep. Br. at 4.

To the extent that Newton asserts constitutional claims arising out of the City's misdelivery of the rape kit to the wrong doctor, he necessarily does so against the City — Ryan was not, by any account, responsible for the procedural error in the delivery. Her alleged misconduct is limited to the faulty examination or misreporting regarding the absence of sperm on the slides, and her eligibility for qualified immunity depends only on whether this particular act required an exercise of judgment. Moreover, whether or not Ryan was malicious or incompetent in not identifying the semen on the slides has no bearing on the question of whether her act of examining them necessarily entailed a measure of judgment so as to leave open the possibility of a qualified immunity analysis.

That Ryan exercised discretionary judgment is underscored by the Supreme Court's recent holding in Melendez-Diaz v. Massachusetts, which requires forensic laboratory scientists to testify at the criminal trials for which they handled evidentiary analysis. The Court indicated that seemingly "neutral scientific testing" is not really quite so "neutral or . . . reliable," and noted that even the straight-forward methodology used to analyze seized drugs "requires the exercise of judgment and presents a risk of error that might be explored on cross-examination." The Court explained that "[t]he same is true of many of the other types of forensic evidence commonly used in criminal prosecutions" and cited an article "discussing problems of subjectivity, bias, and unreliability of common forensic tests." The Court highlighted its conclusion that "there is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material." Certainly the process of forensic testing is not a ministerial act with a definitive outcome — while DNA and biological evidence are precise, they are still handled and interpreted by human beings. The phenomenon of judgment involved in even the most routine medical analysis is evoked by the common refrain that a patient should always obtain a second opinion in regards to any serious diagnosis — even one derived from a seemingly clear x-ray.

Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.ct. 2527 (2009) (finding that forensic lab reports are testimonial in nature and subject to the Confrontation Clause, thereby allowing defendants to challenge their validity).

Id. at 2537.

Id.

Id. at 2538 (quoting National Academy Report S-5 and citing 5-9, 5-12, 5-17, and 5-21 of the Report).

While the immunity inquiry for federal claims is necessarily separate from that of state law claims, the determination that Ryan was engaged in a discretionary judgment for federal qualified immunity purposes is also instructive in a state law context. See, e.g., McLean v. City of New York, 12 N.Y.3d 194, 202 (2009) ("[D]iscretionary acts may not be a basis of liability: [W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice.") (quotation omitted). See also United States v. City of New York, 683 F. Supp. 2d 225, 269 (E.D.N.Y. 2010) ("The New York Court of Appeals has framed the official immunity standard as follows: `Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment. . . . [G]overnmental immunity . . . [attaches] to those [actions] involving an exercise of that discretion.'") (quoting Mon v. City of New York, 78 N.Y.2d 309, 313 (1991)).
Because I hold that Ryan's actions were discretionary in nature, she is entitled to immunity on Newton's state law claims. See, e.g., Arteaga v. State, 72 N.Y.2d 212, 216-217 n. 1 (1988) (providing medical examiner as example warranting absolute immunity); Pertilla v. Genetic Design, Inc., 166 Misc.2d 843 (Sup. Ct. Chenago Co. 1995) (extending full immunity to private laboratory performing DNA tests in a paternity proceeding). Cf. Hirschfeld v. Spanakos, 909 F.Supp. 174, 180 (S.D.N.Y. 1995) (noting that New York "affords public officials considerably greater protection from individual capacity suits than the federal doctrine of qualified immunity").

2. Clearly Established Constitutional Right

Having determined that Ryan was conducting a discretionary function, the ensuing issue for qualified immunity purposes is whether she violated Newton's clearly established constitutional rights when she erred — inadvertently or otherwise — in her analysis of the rape kit. Even accepting Newton's claim that Ryan acted with malice or incompetence, there is still no basis to infer that she violated a clearly established constitutional right.

Newton alleges a violation of his Fifth and Fourteenth Amendment due process rights, as well as a First Amendment claim for denial of his right of access to the courts. Because the First Amendment claim can be summarily dismissed on grounds other than immunity, I begin with a discussion of that claim.

a. First Amendment Claim

Defendants argue that Newton's First Amendment claim must be dismissed because it was first raised in his trial brief and opposition in the instant motion, and "submitted less than two months before trial in this three-year old case." In response, Newton refers to two earlier references to a First Amendment claim in his submissions to the Court:

Def. Rep. at 13.

The very first paragraph of the Amended Complaint states: `This action arises under the Constitution of the United States, particularly the First, Fourth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States through the Civil Rights Act, Title 42 U.S.C. Sections 1983 and 1988. In arguing that his constitutional rights were violated, plaintiff previously stated in a memorandum of law filed with this Court that: "Due to `page limits' imposed by the Court on the lengths of legal briefs . . . we address the Due Process Clauses of the Fifth and Fourteenth Amendments below, while expressly reserving plaintiff's right to assert the other constitutional violations asserted in the Complaint.

Devoting two sentences to a constitutional claim amongst the countless court submissions offered in the course of three years of litigation constitutes abandonment. Defendants are entitled to notice of the specific issues that will be litigated at trial, and two vague allusions to a First Amendment claim, without explication and merely as a vehicle to reserve the right, are insufficient.

See, e.g., Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 312 (S.D.N.Y. 1998) (plaintiff's claim deemed "abandoned" where it was alleged in the complaint but "not raised elsewhere in the record"); Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 907 n. 11 (S.D.N.Y. 1997) ("[T]he failure to provide argument on a point at issue constitutes abandonment of the issue . . . which provides an independent basis for dismissal."), aff'd, 130 F.3d 1101 (2d Cir. 1997); Spearman v. Duchess County, No. 05 Civ. 148, 2008 WL 2945991, at *1 n. 1 (N.D.N.Y. July 25, 2008) (considering the First Amendment claims referenced in plaintiff's Complaint abandoned because plaintiff did not provide supporting arguments in his brief); Kozey v. Quarles, No. 04 Civ. 1724, 2005 WL 2387708, at *2 (D.Conn. Sept. 28, 2005) (holding that the plaintiff abandoned any First Amendment claims because his "brief d[id] not make any arguments founded upon the First Amendment").

Moreover, the sole reference to a First Amendment claim in plaintiff's legal briefs — offered as one of plaintiff's two pieces of evidence that he did in fact assert a First Amendment violation earlier in the litigation — was in a response to defendants' June 5, 2009 motion for summary judgment, which sought dismissal "of all of plaintiff's federal constitutional claims concerning the alleged loss, or non-production, of the rape kit collected from the victim in his criminal case, during the years 1994-2005." Ryan's involvement in Newton's case was limited to 1988, and this attempt to preserve Newton's First Amendment claim (even if it were sufficient) cannot be applied to Ryan. To hold otherwise would be unfairly prejudicial and unfair to defendants. b. The Fifth and Fourteenth Amendment Claims

5/18/09 Defendants' Memorandum of Law in Support of Their Motion for Partial Summary Judgment Dismissing All Claims Concerning Production of the Rape Kit ("Def. SJ Mem."), at 1 (emphasis added).

Newton attests that he did not argue any First Amendment claims out of deference to the Court's page limits for party submissions. See Pl. Sur. Rep. at 5 ("Due to page limits imposed by the Court on the lengths of legal briefs . . . we address the Due Process Clauses of the Fifth and Fourteenth Amendments below . . .") (quoting 6/26/09 Plaintiff's Memorandum of Law in Opposition to Defendants' Rule 56 Motion for Summary Judgment). I do not credit this explanation. He had no such qualms when he recently submitted six separate memoranda of law, totaling about sixty pages, for his motions in limine — despite the Court's limitation of twenty-five pages for legal briefs.

While post-conviction defendants have no Fifth or Fourteenth Amendment due process rights to DNA testing, they do obtain a due process liberty interest if a state enacts a statute providing post-conviction defendants access to evidence. The Supreme Court has recognized that fundamental fairness requires that once a state creates a statutory right and puts procedures in place to protect that right, those procedures must comport with due process in application. However, New York did not enact a statute granting Newton the post-conviction right to access evidence until 1994 — six years after Ryan's flawed handling of the evidence. Indeed, in Colon v. Kuhlmann — decided the same year that Ryan conducted her forensic analysis — the Second Circuit held

See Osborne, 129 S.ct. at 2322 (declining due process protection to convicted defendant denied access to DNA evidence: "We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA."). See also Meachum v. Fano, 427 U.S. 215, 226 (1976) (holding that once a state imposes limitations on its own discretion and requires that a specific standard prevail for decisionmaking, it creates a liberty interest "regardless of whether the limits stem from statute, rule or regulation"); Williams v. Town of Greenburgh, 535 F.3d 71, 75 (2d Cir. 2008) ("Liberty interests `may arise from two sources — the Due Process Clause itself and the laws of the States.'") (quoting Kentucky Dep't of Corr, v. Thompson, 490 U.S. 454, 460 (1989)).

See Evitts v. Lucey, 469 U.S. 387, 399-401 (1985) (holding that if a state chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so only if such action does not intrude upon the client's due process rights, noting that "when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause"); Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) (recognizing that states have the responsibility of establishing procedures regarding parole revocation hearings, but that such procedures must comport with "the minimum requirements of due process"); Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (recognizing that although a state may choose whether to institute a welfare program, it must operate whatever programs it does establish subject to the protections of the due process clause).

that a police laboratory test for the presence of sperm on a rape kit slide did not violate the defendant's constitutional rights, even though the test rendered the slide useless for serological analysis and the defendant lacked any alternative biological evidence which could rule him out as the rapist. Consequently, Ryan is entitled to qualified immunity with respect to Newton's federal claims.

865 F.2d 29 (2d Cir. 1988).

Because I hold that Ryan is entitled to immunity, I do not consider defendants' merit-based arguments in support of dismissal. For similar reasons, I decline to address defendants' argument that these claims should be dismissed as a sanction pursuant to Rule 37(b)(2) based on Newton's failure to comply with this Court's July 12 Order. See Daval Steel Prods, v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) (upholding severe sanctions when a party disobeys discovery orders preventing disclosures relating to the merits of particular claims). Nonetheless, a brief review of the sanctions issue is useful in order to present and preserve a complete record.
On July 12, 2010, I ordered Newton to provide defendants with his blood type and whether he is or is not a secretor. This information might have been critical to defendants in responding to Newton's First Amendment claim. Depending on the results or such serological testing, it is possible that Newton cwuld not have been ruled out as V.J.'s attacker, based on testing available in 1988 — even if Ryan had properly performed such testing. In that event, the alleged mishandling of the testing would have caused no prejudice to Newton and could not have deprived him of his access to the courts.
Newton failed to comply with this Order. During a telephone conference held on September 2, 2010 Newton's counsel admitted that he had not complied with the Order but defended his non-compliance by shifting blame to the City for failing to justify the need for such testing. This was wholly inappropriate. His quarrel was with the Court not with the City. Non-compliance with a legitimate court is not an option. After this conference, Newton immediately had a blood test which identified his blood type as B+ (which made him a possible secretor), but never provided information as to his secretor status. While this Court could dismiss the reinstated claims pursuant to Rule 37(b)(2) based on Newton's failure to comply with a court order, I do not do so on this ground given the important public policy and constitutional issues implicated in Newton's reinstated claims. Moreover, I am confident as to my ruling that the claims against Ryan must be dismissed based on either absolute or qualified immunity. Nonetheless, should this ruling be overturned by a reviewing court, the sanction application would then be entitled to full and serious consideration.

C. Remaining State Law Claim Against the City

Newton's remaining state law claim against the City for Ryan's alleged misconduct is necessarily precluded by the determination that she acted with discretion. The New York Court of Appeals has explained: "A public employee's discretionary acts — meaning conduct involving reasoned judgment-may not result in the municipality's liability." As discussed at length above, Ryan's forensic analysis did not require "direct adherence to a governing rule or standard with a compulsory result," but involved the exercise of her scientific experience and skill. As such, the City "is not answerable in damages for the injurious consequences of [Ryan's] action."

See supra Part III.B.I.

Lauer v. City of New York, 95 N.Y.2d 95, 99 (2000).

Tango v. Tulevech, 61 NY2d 34, 41 (1983).

Haddock v. City of New York, 75 N.Y.2d 478 (1990). Even if Ryan's actions were considered to be exclusively ministerial, Newton would need to demonstrate that the City owes him a special duty that might give rise to municipal liability. See, e.g., McClean, 12 N.Y.3d at 202 ("[D]iscretionary municipal acts may never be a basis for liability, while ministerial acts may support liability only where a special duty is found."). "A special relationship can be formed . . . when [a municipality] voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty." Id. at 199. Not only has Newton pled no such facts in relation to Ryan, but this Court has already dismissed any cause of action arising from a putative special relationship. See 7/16/08 Opinion and Order (noting that plaintiff has not specified a cause of action stemming from a special relationship claim).
Moreover, Newton did not respond to defendants' motion to dismiss his claim against the City for Ryan's wrongdoing in his Opposition Brief, and therefore abandoned his claim. To the extent that he acknowledged his ninth cause of action for malicious prosecution at all, he did so only in relation to Ryan directly. See, e.g., Dineen ex rel Dineen v. Stramka, 228 F. Supp. 2d 447, 454 (S.D.N.Y. 2002) ("We note at the outset that plaintiff does not address these claims in its opposition papers, enabling the Court to conclude that it has abandoned them.").

V. CONCLUSION

For the foregoing reasons, defendants' motion to dismiss the reinstated claims regarding plaintiff's third, sixth, and ninth causes of action is granted. The Clerk of the Court is directed to close this motion (docket no. 145).

SO ORDERED:

Dated: New York, New York

September 14, 2010

OPINION AND ORDER

On September 15, 2010, plaintiff submitted a letter requesting leave to file a motion for reconsideration of this Court's September 14, 2010 Opinion and Order ("9/14/10 Opinion"). The 9/14/10 Opinion granted defendants' motion to dismiss all of the reinstated claims against defendant Patricia Ryan ("Ryan") and against the City for Ryan's alleged misconduct on immunity grounds. Motions for reconsideration are governed by Local Civil Rule 6.3 and are committed to the sound discretion of the district court. A motion for reconsideration is appropriate where "`the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" A motion for reconsideration may also be granted to "`correct a clear error or prevent manifest injustice.'"

See 9/15/10 Letter of John F. Schutty, plaintiff's counsel ("Pl. Ltr."); Newton v. City of New York, No. 07 Civ. 6211, 2010 WL 3584012, at * 1 (S.D.N.Y. Sept. 14, 2010).

See Patterson v. United States, No. 04 Civ. 3140, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006) ("The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court.") (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).

In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation omitted).

RST (2005) Inc. v. Research in Motion Ltd., No. 07 Civ. 3737, 2009 WL 274467, at *1 (S.D.N.Y. Feb. 4, 2009) (quoting Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).

The limitations imposed by Local Civil Rule 6.3 are intended to "`ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'" Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Courts have repeatedly been forced to warn counsel that such motions should not be made reflexively to reargue "`those issues already considered when a party does not like the way the original motion was resolved.'" A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced," nor is it a substitute for appeal.

Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v. Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001)). Accord Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005) ("[A] movant may not raise on a motion for reconsideration any matter that it did not raise previously to the court on the underlying motion sought to be reconsidered.").

United States v. Treacy, No. 08 CR 366, 2009 WL 47496, at *1 (S.D.N.Y. Jan. 8, 2009) (quotation marks omitted). Accord Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the motion when the movant "seeks solely to relitigate an issue already decided").

Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at *1 (S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)).

Associated Press v. United States Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).

See Grand Crossing, 2008 WL 4525400, at *3.

Plaintiff perceives three deficiencies in the 9/14/10 Opinion. First, plaintiff argues that leave for reconsideration should be granted because "the parties never had any opportunity to brief the common-law doctrine of absolute prosecutorial immunity." Plaintiff contends that the doctrine of quasi-judicial immunity was only briefed in the context of New York state law, not under the federal common law upon which it was ultimately granted. However, defendants' reply brief — to which plaintiff was permitted to reply for the specific purpose of addressing the immunity arguments raised — explicitly discusses and advocates for absolute immunity based on federal common law. To underscore the point, the relevant section is aptly titled "Quasi-Judicial Immunity — Federal Law."

Pl. Ltr. at 1.

The fact that defendants raised their federal immunity arguments in their reply brief is not relevant for purposes of plaintiff's request for reconsideration, and plaintiff does not argue to the contrary. On the one hand, "as a general rule all meritorious arguments should be considered in ruling on a case." Playboy Enterprises, Inc. v. Dumas, 960 F. Supp. 710, 720 n. 7 (S.D.N.Y. 1997). On the other hand, the rationale of fair play which permits courts to disregard arguments first raised in reply papers is not implicated here. Plaintiff specifically requested and was granted permission to submit a sur-reply to any novel issues presented in defendants' reply brief. See Docket Entry No. 183. Both sides thus had an opportunity to be heard, and as plaintiff points out in his 8/24/10 Letter to the Court, courts have broad discretion to consider arguments in a sur-reply. See also Westchester Fire Ins. Co. v. Massamont Ins. Agency, Inc., 420 F. Supp. 2d 223, 226 (S.D.N.Y. 2005).

Defendants' Reply Memorandum in Support of Their Motions in Limine ("Def. Rep."), at 7-8.

The substantive arguments raised by defendants in their reply brief contradict plaintiff's assertion that the federal immunity issue was "never raised by the parties," thus depriving Newton of "any opportunity to brief this question." For example, the last sentence of the section reads, "Applying the `functional' approach used by the federal courts, we submit that the same result is warranted under federal law: Patricia Ryan is entitled to absolute immunity here." Consequently, plaintiff's claim that he "had no notice that Imbler's functional test was ever on the table" is baseless, as is his claim that "it was error for the Court to enter judgment on an issue never raised by the parties." Second, plaintiff posits that "on the merits, Ryan's forensic testing and misreporting is an act of investigation, not advocacy, so Imbler immunity does not apply." In support of this argument, plaintiff cites patently inapposite cases. As noted in the 9/14/10 Opinion, whether an individual is entitled to absolute immunity is based on a case by case inquiry of the specific function she was engaging in at the time of the challenged conduct, not her official position or title.

Pl. Ltr. at 2.

Def. Rep. at 8. Plaintiff argues that because "defendants never invoked Imbler [v. Pachtman] immunity, a doctrine of federal common law, the issue was not briefed by either side." Pl. Ltr. at 2. But while Imbler was a seminal Supreme Court decision, federal immunity doctrines are not contained within or limited to one decision. While defendants did not specifically cite Imbler, they cited a subsequent Supreme Court decision that adopted Imbler's immunity rationale and specifically laid out the federal framework for absolute immunity. See Def. Rep. at 8 (citing Cleavinger v. Saxner, 474 U.S. 193, 201 (1985), to note that "courts adopt a `functional approach' to determining immunity, by considering `the nature of the responsibilities of the individual official. . . .'). Indeed, Imbler is one of many Supreme Court decisions supporting the proposition that government officials engaged in discretionary activities are entitled to absolute immunity if their challenged conduct was integral to an advocacy function.

Pl. Ltr. at 3 n. 5.

Id. at 3.

Id. at 1.

That some forensic examiners have not been granted immunity has no bearing on Ryan — the importance of any immunity holding cannot be considered apart from the context in which the actor in question was acting. Thus, the two out-of-Circuit cases cited by plaintiff are easily distinguished. Neither case addresses the role of forensic examiners in a post-conviction setting. Instead, both involve pre-trial investigative activities in preparation for prosecution — circumstances that the 9/14/10 Opinion specifically noted may not be appropriate for absolute immunity. Third, plaintiff argues that "forensic scientists have no qualified immunity for misrepresenting the evidence, because false reporting by any official, at any stage of the proceedings, violates clearly established constitutional law." In support of his claim that the "constitutional bar on falsifying evidence is unequivocal and longstanding," plaintiff cites to three cases. However, none of these cases involves the mishandling of evidence in a post-conviction context — instead, they concern due process violations that arise from injuries to a defendant's pre-conviction liberty interest. Because post-conviction defendants do not enjoy the same due process protections, and New York state did not establish a right to access post-conviction evidence until six years after Ryan's alleged misconduct, Newton does not cast doubt on the qualified immunity analysis set forth in the 9/14/10 Opinion.

See Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006) ("Under the Supreme Court's functional test, the pre-trial investigatory acts by forensic examiners merit no more protection under absolute immunity than do other persons performing investigatory actions.") (emphasis added); Keko v. Hingle, 318 F.3d 639, 644 (5th Cir. 2003) ("[T]o the extent Dr. West's pre-testimonial activities were investigative, his immunity ought to correlate with the merely qualified immunity granted to the police for comparable activities.") (emphasis added).

Pl. Ltr. at 1.

Id. at 4.

See Miller v. Pate, 386 U.S. 1, 3-4 (1967) (holding that "the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence" where prosecutor deliberately misrepresented paint splatter on defendant's shorts as blood in order to secure a conviction); Brown v. Miller, 519 F.3d 231, 237 (5th Cir. 2008) ("A criminal defendant's due process rights are violated when the government obtains a conviction with testimony that government agents know is false."); Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004) (finding a due process violation where a forensic scientist's deliberate or reckless falsification of evidence provided a basis for the charges against the defendant and influenced the District Attorney's decision to proceed to trial). In contrast, Ryan only entered the scene after Newton's conviction, and her errors did not contribute to the jury's determination that he was guilty — indeed, Newton's conviction was based solely on eye witness testimony and V.J.'s testimony. See Compl. ¶ 88.

Accordingly, plaintiff does meet the standard for reconsideration, and his request for leave to file a motion for reconsideration is denied.

SO ORDERED:

Dated: September 20, 2010

New York, New York