1 (RFT) have a United States Magistrate P. 73, the parties consented to

. 43, which consent was approved by the Honorable Lawrence E. IV C

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...... 4-7 ED Plaintiff, Defendants. TABLE OF CONTENTS MEMORANDUM-DECISION and ORDER ...... 4-11 .Rbr el’ Abeitd eso fteEet...... 5-6 Events...... the of Version “Abbreviated” Wells’s Robert 1. - v - No. 1:07-CV-1273 Civ. Street th Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 1 of 68 1 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Pursuant to 28 U.S.C. § 636(c) and F 1 A. September 6, 2005 Incident A. September I. BACKGROUND New York, New York 10022-4965 FIRMMURPHY, BURNS LAW and Town of North Greenbush Attorney for Defendants Durivage 226 Great Oaks Blvd. Albany, New York 12203 FIRM LAW NAPIERSKI, VANDENBURGH Nugent Attorney for Defendant Timothy Extension Avenue 296 Washington Albany, New York 12203 THOMAS K. MURPHY, ESQ. THOMAS J. O’CONNOR, ESQ. RANDOLPH F. TREECE United States Magistrate Judge ROBERT DURIVAGE, TIMOTHY NUGENT, TOWN TIMOTHY NUGENT, ROBERT DURIVAGE, and ROBERT D. WELLS, OF NORTH GREENBUSH, APPEARANCES:JOHN A. ARETAKIS, ESQ. Pro Se Plaintiff 353 East 54 OF COUNSEL: UNITED STATES DISTRICT COURT STATES DISTRICT UNITED OF NEW YORK DISTRICT NORTHERN JOHN A. ARETAKIS, conduct any and all proceedings in this case, Dkt. No. Kahn, Senior United States District Judge, on March 17, 2008, Dkt. No. 55.

RFT ...... 15-29 ...... 9-10 ...... 6-7 ...... 7-9 ...... 41-42 ...... 54-57 -2- ...... 10-11 ...... 57-62 ...... 13-15 ...... 64-66 n...... 40-52 ...... 67-68 ...... 11-66 .FleArs ...... 16-17 Arrest 26-29 ...... 17-26 Cause False 1. Prosecution...... Probable 2. 42-43 Malicious Amendment...... 3. Fourteenth the to ...... Pursuant 43-45 Rights ...... Law 45-47 of 1964 1. Title VII of the Civil Rights Act Process the of Due 2. Amendment First Protection 3. 47-52 Equal 4. Conspiracy...... 5. 52-62 Practicy and Policy 1. Rensselaer County and Nugent 2. Town of North Greenbush 2. John Aretakis’s “Abbreviated” Version of the Events Version “Abbreviated” 2. John Aretakis’s Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 2 of 68 2 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case B. Town of North Greenbush Police Department Investigation Police Department of North Greenbush B. Town 12-13 Trial the Criminal Prosecutor and of the Special C. Appointment Standard...... Litigation this of D. Commencement Dismiss to Motion A. 29-31 Standard Judgment B. Summary 31-40 Distress...... Immunity...... Violations Malicious Prosecution, and Constitutional C. False Arrest, Emotional of Absolute and Infliction Nugent Intentional Prosecutor D. Special E. F. Second Cause of Actio 63-64 Negligence...... Nugent’s and to Supervise, Failure to Train, and G. Municipal Liability – Failure Durivage’s – Action of Cause Sixth H. I. Sundry of Other Legal Issues II. ANALYSIS III. CONCLUSION

RFT . ED (continued...) 12(b)(6), as well as Motion for

P. In turn, only Defendants Wells and In turn, only Defendants Wells 5

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Nos. 1, Compl. & 5, Am. Compl. Challenging Compl. & 5, Am. Nos. 1, Compl. . Robert Durivage, Special Prosecutor Timothy Special Robert Durivage, obert D. Wells, alleging that his constitutional obert D. Wells, and (3) Defendant Nugent’s Motion to Dismiss, and (3) Defendant Nugent’s Motion ted as follows: (1) Defendant Wells’s Motion to Motion ted as follows: (1) Defendant Wells’s 3 ED and, in the alternative, two motions for summary two motions and, in the alternative, -3- collectively referred to Durivage) Mem. of Law collectively referred to Durivage) Mem. P. 56;

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R. 12(b)(6); (2) Defendants Durivage’s and the Town of North

. P.

ED . Plaintiff, John A. Aretakis, Esq., commenced a civil rights action, Esq., commenced John A. Aretakis, Plaintiff, IV C

12(b)(6) as well as a Motion for Summary Judgment, pursuant to F pursuant Judgment, Summary 12(b)(6) as well as a Motion for R.

. pro se P.

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. Aretakis opposes each Motion. Dkt. No. 62. Aretakis opposes each Motion. 4 ED 56.

pursuant to F Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 3 of 68 3 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Nugent’s Motion is comprised of the following: Nugent’s Motion is comprised Durivage’s and the Town of North Greenbush’s Motion is comprised of the following: Durivage’s and the Town of North Greenbush’s Motion is comprised Wells’s Motion to Dismiss is comprised of the following: is comprised Wells’s Dismiss Motion to 2 P. 4 3 2 On June 5, 2007, On June

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pursuant to F Greenbush’s Motion to Dismiss, pursuant to F Greenbush’s Motion to Dismiss, pursuant to 42 U.S.C. § 1983, against Police Officer against Police to 42 U.S.C. § 1983, pursuant R Town of North Greenbush, and Nugent, Esq., the pursuant to F Judgment, Summary rights were violated when he was arrested on September 16, 2005, and prosecuted in the North 16, 2005, and prosecuted when he was arrested on September rights were violated Dkt. Court on two misdemeanors. Greenbush Town are threeAretakis’s claims motions to dismiss judgment. The pending dispositive motions are lis motions The pending dispositive judgment. Dismiss R. Dkt. No. 53Dkt. No. 53-2Dkt. No. 53-7 Judgment and/or Summary Motion to Dismiss J. O’Connor, Esq., Decl., dated Mar. 14, 2008, as well as Exs. Timothy Dkt. No. 53-12Esq., Aff., dated Mar. 13, 2008, as well as Exs. A-D Nugent, Timothy of Facts Material Statement Dkt. No. 52Dkt. No. 52-2Dkt. No. 52-3 Judgment and/or Summary Motion to Dismiss K. Murphy, Esq., Decl., dated Mar. 14, 2008, as well as Exs A-D Thomas Dkt. No. 52-4 Robert J. Durivage Aff., dated Mar. 14, 2008 Dkt. No. 52-9 of Facts Material Statement Durivage’s and Town’s (hereinafter Dkt. No. 50Dkt. No. 50-2Dkt. No. 50-3 Motion to Dismiss Michael Esq., Decl., dated Mar. 6, 2008 J. Costello, Dkt. No. 50-4 Exs. of Law Wells’s Mem.

RFT District of New York. the persona of Attorney 6 cess server, was assigned to serve a Summons cess server, was assigned to serve Law, Dkt. No. 68, and another Timothy Affidavit from filed his Opposition to each dispositive Motion. That lly within the Northern gain an appreciation of ndant Wells submitted a Reply Memorandum of Law, Dkt. a Reply ndant WellsMemorandum submitted ll as Aretakis himself, have captured widespread ll as Aretakis himself, s’ respective narrations may diverge, particularly may s’ respective narrations ores of people who have claimed to be victims of victims to be ores of people who have claimed that commenced on September 6, 2005, and the that commenced -4- recitation because of the divergent interpretations. recitation because which was revised on June 5, 2008, Dkt. No. 64 I. BACKGROUND upon which we may be able to analyze the stated claims for relief. be able to analyze the stated claims upon which we may Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 4 of 68 4 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case In terms of Replies to Aretakis’s Opposition, Defe In terms (...continued) filing, Aretakis On May 30, 2008, in an omnibus On September 6, 2005, Robert A. Wells, a pro 6, 2005, Robert A. Wells, On September 6 4 5 In order to appreciate the chain of events In order to appreciate the chain of The Court has reviewed very carefully the lengthy Amended Complaint and the disputed Complaint Amended very carefully the lengthy The Court has reviewed A. September 6, 2005 Incident Aretakis. Over the years, Aretakis represented sc Aretakis. Over the years, Aretakis as we of claims, clergy sexual abuse. These types exposure over the last several years, especia media Aretakis has of this high profile group and has been involved served as an advocate on behalf Albany. Catholic Diocese of Roman extensively in litigation against the underlying nature of this litigation, we must first we must underlying nature of this litigation, Material Statements of Facts. Although the partie Material Statements thereof, contentions and inferences numerous actual events as well as the of as to the interpretation set of facts there is still a core core set of facts defies a brief Regrettably, this Nugent filed Replies to Aretakis’s Opposition. Dkt. Nos. 66 and 68. Dkt. Nos. Opposition. Replies to Aretakis’s Nugent filed Opposition is comprised of the following: Opposition is comprised Dkt. No. 62 of Material Facts, Counter Statement Dkt. No. 62-3Dkt. No. 62-5 John A. Aretakis Aff., dated May 30, 2008, with Exs Dkt. No. 62-6 Esq., Aff., dated May 29, 2008 C. Cholakis, Nia of Law Mem. Aretakis’ Dkt. No. 53-13 of Law Mem. Nugent’s of No. 66, while, Defendant Nugent filed a Reply Memorandum Nugent, which is dated June 12, 2008, Dkt. No. 68-4.

RFT See Part I.D l. at ¶ It was 17. See infra ich were attached to entually got out of his etakis got out of his car is was going to ram him is was going to ram ing with his parents, who were ing with his parents, parate Affidavits, wh of these motions, that we will accept as true he recognized Aretakis’s car, Wells followed he recognized Aretakis’s car, Wells l papers on the hood of that car. He then told and attempted to open the door. He was and attempted he believed that Aretak e upon Aretakis. Am. Comp Am. e upon Aretakis. car came to rest, Wells ev to rest, Wells car came ttend to his family, particularly his wife who had particularly ttend to his family, the hospital, possibly because of a cardiac event. because of a cardiac event. the hospital, possibly was returning to his car, Ar -5- grabbed the drivers side window and door. Robert, who had served papers upon Aretakis in the Robert, who had served papers upon order to transfer custody of his son to them while he traveled to custody of his son to them order to transfer ng his son but prior to rendezvous ng his son but prior 1. Robert Wells’s “Abbreviated” Version of the Events 1. Robert Wells’s Dkt. No. 53-4 & 53-5, (Exs. B-1 & B-2); John A. Aretakis, Dep., dated Feb. 7, 2007, at Dkt. No. 53-4 & 53-5, (Exs. B-1 Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 5 of 68 5 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case John Aretakis then came to my car and to my John Aretakis then came He then tried to shake the window and door Both Robert and Rosemary Wells aver in se aver Wells Both Robert and Rosemary and approached Wells’s vehicle. Wells then avers that then avers vehicle. Wells and approached Wells’s so he jumped back into his car. When Aretakis’s back into his car. When so he jumped car and approached Aretakis’s car and placed lega Aretakis that he had been legally served. As he him until they both stopped in a traffic circle on school grounds. Wells swears that as he was exiting grounds. Wells until they both stopped in a traffic circle on school him and his vehicle Aretakis was driving towards him criminal complaints filed against Aretakis, that complaints criminal once again. When to serve him past, was attempting generally differ dramatically. pp. 28-64. Here the version of events Am Compl. at ¶ 25. After securi at ¶ 25. Compl. Am anticipated that Aretakis would be served in the Town of North Greenbush. of North Greenbush. in the Town would be served that Aretakis anticipated jurisdiction). For the purposes (discussion on court a New York City to from Aretakis was returning that she was being taken to him called to advise in at another location awaiting him that Wells had an altercation. Aretakis claims and Aretakis Wells the hospital to visit with his wife, his lot. house until they both stopped their vehicle in a school parking from pursued him and Complaint from the Albany Catholic Dioces the Albany Catholic from and Complaint

RFT the Second Degree in violation of let you hit me. I didn’t even let you hit me. 7 the vehicle, gave a similar rendition of the events. rendition vehicle, gave a similar the nts to visit his wife, who was hospitalized, Dkt. No. 53, Ex. B., Criminal Informations Dkt. No. 53, Ex. B., Criminal nts. While traveling to meet his parents, there traveling to meet nts. While ect that he had been served and then swore at See grab items from my back seat. I said to my from grab items 2005. Officer Jus served as a witness to both Robert and the back driver’s side of my car door. He side of my the back driver’s ny in violation of New York Penal Law § 155.25, ny in violation of New York Penal lot followed by Wells. At somelot followed by Wells. point Wells to call 911 for help. Then I told him [to] I told him for help. Then to call 911 n statements, which were made a part of Criminal which were made n statements, out of the ignition. He was screaming and outscreaming He was of the ignition. -6- s being followed by another vehicle. He pulled into s being followed by another vehicle. s calling me an asshole and saying that he and saying that an asshole me s calling tion. Believing Wells had business cards on his car tion. Believing Wells were interviewed by Officer Durivage in Officer Jus’s by Officer Durivage in Officer were interviewed t out of the car and I will t out of the car and ainst Aretakis for Harassment in ainst Aretakis for Harassment 2. John Aretakis’s “Abbreviated” Version of the Events 2. John Aretakis’s “Abbreviated” Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 6 of 68 6 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case As Wells,stated above, who was a passenger in Rosemary 7 As stated above, Aretakis was making arrangeme As stated above, Aretakis was making Eventually, Wells andhis wife trying to reach in my vehicle. He wa vehicle. reach in my trying to would kick my ass. I yelled for my wife I yelled for my ass. my would kick go ahead hit me and then I will have you arrested. At this point he was waist deep he was waist At this point have you arrested. and then I will hit me go ahead car keys my car trying to get inside my I will ge yelling. I then said, I noticed that he opened get out of the car. started to back seat and my then went inside him pouch briefcase with black leather doing? what the hell are you took my He my He took affidavits documents. and legal summons, handles. It contained citizens [sic] Bank. checkbook from Dkt. No. 53, Ex. A, Rosemary WellsDkt. Dep., dated Sept. 6, No. 53, Ex. A, Rosemary him. Aretakis then demanded some identifica some Aretakis then demanded him. as well as making child care arrangement with his pare child care arrangement as well as making realized that he wa when he a point in time came the Gardner Dickinson Grade School parking in his hands and he eventually placed a big white package approached Aretakis’s car with something to the eff on Aretakis’s windshield, saying something and Warrant of Arrest. and Warrant and further served as a basis for a warrant of arrest. and further served as a basis for a presence. Those interviews were reduced to swor presence. Those interviews were that were filed ag Informations and Petty Larce New York Penal Law § 240.26(1) Dkt. No. 53, Ex. A., Robert Wells Dep., dated Sept. 6, 2005. Dep., dated Sept. A., Robert Wells Dkt. No. 53, Ex. See Roberta Wells’s sworn statements.

RFT with his parents. While rts and during the course rts and during is leaned into the back seat of is leaned into the ge may have typed the statements ge may if to deflect his effo if to deflect e incident and North Greenbush Police Officer e incident and North Greenbush Police drove off, but when he did Aretakis had the drove off, but when a hold of a “file folder” or a briefcase, as he a hold of a “file hool and asked his mother to retrieve it, which illfold” or briefcase on the grass alongside the or briefcase illfold” was screaming to his wife to call 911. Somehow was screaming Wells’s car. Upon Aretakis reaching into his reaching Aretakis car. Upon Wells’s ttempting to call 911 and then told them that there to call 911 and then told them ttempting 2007, at pp. 28-64; Dkt. No. 62-3, Aretakis Aff., 2007, at pp. 28-64; Dkt. No. 62-3, left the scene and met up left the scene and met -7- etakis and Officers Durivage and Jus took sworn home and retrieved the “billfold.” Dkt. No. 53-4, Exs. and retrieved the “billfold.” home . Durivage Aff. at ¶ 3. Duriva e ignition of the car. Then Aretak e ignition of the Am. Compl. at ¶¶ 41, 59-61, & 81. That same evening, Wells at ¶¶ 41, 59-61, & 81. That same Compl. Am. the Mr. and Mrs. Wells’s execution of their respective signed execution of their respective the Mr. and Mrs. Wells’s etakis Aff. at ¶ 12; Dkt. No. 52-3, Robert J. Durivage Aff., dated see also Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 7 of 68 7 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Mrs. Wells made a 911 call to police during th made Mrs. Wells B. Town of North Greenbush Police Department Investigation B. Town and Jus acted as a witness to to a witness and Jus acted as Jus arrived on the scene. Later that day, Defendant Durivage assumed responsibility for the Jus arrived on the scene. Later that day, Defendant Durivage assumed investigation of this matter. Ar Mar. 14, 2008, at ¶ 2; expressed a desire to file charges against Ar Mr. and Mrs. Wells from statements vehicle, Wells placed his hand on Aretakis’s hand as hand on Aretakis’s placed his Wells vehicle, shut off th of that struggle someone car and gained of Wells’s the driver side window a Mrs. Wells speaking with his parents, he recalled the ground near the sc left on materials were some parents’ she did. Later, Aretakis went to his dated Feb. 7, B-1 & B-2, John A. Aretakis, Dep., dash, Aretakis reached into the front window of window front reached into the dash, Aretakis continued to look for Wells’s identification. Wells identification. for Wells’s continued to look of the parking lot. Eventually, Aretakis pavement at ¶¶ 6-11. the car window was rolled up and Aretakis was pinned in the window. Aretakis eventually pinned in the window. Aretakis was rolled up and Aretakis was the car window before Wells the window extricated himself from in his hands. Aretakis dropped the “b “billfold”

RFT .; Durivage Aff. .; Durivage . at ¶ 8; Dkt. No. Id Id x. C-1, Warrant of Arrest. x. C-1, Warrant Sworn Statements. In Sworn Statements. sum, Mr. and Aretakis of violating New York State Penal Aretakis of violating New York State r the penalty of perjury. Durivage Aff. at ¶ r the penalty of perjury. Durivage e charges against Aretakis. Durivage Aff. at ¶ e charges against Aretakis. Durivage ing Wells’s property to the police department. property to the police department. ing Wells’s 7, 2005. Upon recovering the briefcase, Durivage 7, 2005. Upon recovering the briefcase, -8- akis Dep. at p. 67. During theirakis Dep. at p. 67. conversation on and 14, 2005, the Informations ons. On September ily. On September 16, 2005, Aretakis appeared, was ily. On September ¶¶ 11 & 12; Dkt. No. 52, E akis of harassment and petty larceny. and petty akis of harassment , at approximately 7:43 p.m., Aretakis brought Wells’s 7:43 p.m., , at approximately th with the Dispatcher, Officer Littlefield. Littlefield. with the Dispatcher, Officer d to the Town of North Greenbush Justice for a warrant of North Greenbush Justice for d to the Town of Am. Compl. at ¶ 26. Compl. Am. Dkt. No. 52, Exs. C-4. Mr. & Mrs. Wells’s 52, Exs. C-4. Mr. Dkt. No. See see also Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 8 of 68 8 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case That same evening, Durivage contacted evening, That same and discussed the incident Aretakis by telephone accusing were prepared Informations Criminal Mrs. Wells’s sworn statements accused Aret statements sworn Mrs. Wells’s at ¶¶ 4-6; Aretakis next couple of days, Durivage and at ¶¶ 6 & 7. In fact, over the Durivage Aff. with him. the incident. Aret about spoke several times to br 7, 2005, Durivage advised Aretakis September 7 Durivage Aff. at ¶ 7. On September it to the police station and left briefcase 9. on September in the Second Degree, and § 155.25, Petty Larceny, and, Law § 240.26(1), Harassment unde reviewed and signed the Informations 9th, Wells The Informati 10; Dkt. No. 52, Exs. C-2 & C-3, supporting depositions were submitte arrest. 15, 2008, the Honorable Andrew G. Ceresia, the Town Justice, issued the On September warrant for Aretakis’s arrest. Durivage Aff. at On that of the warrant and provided him day, Durivage contacted Aretakis and advised him same in voluntar with an opportunity to turn himself statements. statements. called Wells, who reiterated that he wanted to pursu who reiterated called Wells, 52, Ex. C-6, Adam J. Littlefield Dep., dated Sept. 52, Ex. C-6, Adam

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9 resia, Town of North d Mar. 13, 2008, at ¶ 6. Motion to Dismiss. The Motion to Dismiss Motion to Dismiss. lified her office from prosecuting this matter lified her office from oomey, Town Justice for the Town of Sand Town Justice for the Town of oomey, )(d), appointed Defendant Nugent to act as a )(d), appointed Defendant eating Ceresia and, according to her and Aretakis there to according eating Ceresia and, to Nugent’s appointment, Carmelo LaQuidera, Esq., was Carmelo to Nugent’s appointment, the Honorable Andrew Ce since. Cholakis avers that in previous cases involving e Town Court of North Greenbush. Aretakis Aff. at ¶ 28; to why Judge Ceresia recused himself from this case. Thomas B. Canfield, New York Supreme Court Supreme B. Canfield, New York Thomas existed a conflict of interest which started in 1999. In 1999, Dkt. No. 62-5, Nia Cholakis Aff., dated May 30, Dkt. No. 62-5, Nia Cholakis Aff., ugent, Esq., Aff., date ugent, Esq., Aff., prosecution of Aretakis. Dkt. No. 53, Ex. C, Order, prosecution of Aretakis. Dkt. No. -9- Am. Compl. at ¶ 107. He was eventually released on eventually released ¶ 107. He was at Compl. Am. See

8 , LaQuidera withdrew. Am. Compl. at ¶ 15. Compl. , LaQuidera withdrew. Am. 7; Dkt. No. 53, Ex. D, Order, dated May 27, 2008. This matter went May 27, 2008. This matter 7; Dkt. No. 53, Ex. D, Order, dated In his stead, the Honorable Paul G. T 10 No official reason is stated within this record as Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 9 of 68 9 of Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Aretakis notes in his Amended Complaint that prior Complaint Amended his in Aretakis notes Aretakis states he was handcuffed, fingerprinted, into the police department, that after he turned himself Omnibus Motions were filed, which included a Motions were filed, which included Omnibus 9 10 8 C. Appointment of the Special Prosecutor and the Criminal Trial of the Special Prosecutor and C. Appointment District Attorney disqua The Rensselaer County Lake, was appointed to preside over this criminal prosecution. this criminal Lake, was appointed to preside over was denied. Nugent Aff. at ¶ Special District Attorney regarding the criminal the criminal Special District Attorney regarding his own recognizance. Durivage Aff. at ¶¶ 13 &14. Aff. at recognizance. Durivage his own that her office. Upon determining being handled by matter in another was a victim because Aretakis was appropriate, the Honorable the disqualification to New York County Law § 701(1 Justice, pursuant N Timothy dated Oct. 13, 2005; Dkt. No. 53-7, processed, and arraigned on the charges. and arraigned processed, Greenbush Justice, prosecution. Justice seeking presiding over this criminal from his recusal and recused himself. Ceresia granted the motion 2008, at ¶ 28. Immediately thereafter, Aretakis filed a motion with Aretakis filed a motion thereafter, Immediately Aretakis’s wife, Nia Cholakis, however, postulates that there she was elected Town of North Greenbush Justice in 1999 def has ever been hard feeling between the respective families Cholakis Aff. at ¶¶ 25-28. Aretakis, Judge Ceresia would recuse himself. photographed, and transported in a squad car presumably to th to presumably and transported in a squad car photographed, at ¶ 100. Compl. Dkt. No. 5, Am. appointed as the special prosecutor, however

RFT 6. For example,

Dkt. Nos. 18-20, r venue as well as r venue as well P.

. es District Court for IV x. D, Notice of Claim. C

R.

. ED See generally Amended Complaint, Dkt. No. Complaint, Amended 12(b)(3), for imprope

Claim, pursuant to New York Municipal pursuant to New York Claim, P. udge Scheindlin transferred this case to the udge Scheindlin transferred this case

. ecution, false arrest, and violations of his ecution, false arrest, action in the United Stat IV ts of other causes of action are randomly stated ts of other causes of action are randomly rting that his official residence was within that rting that his official filed with the Honorable Shira A. Scheindlin, filed with the Honorable Shira A. S.C. § 1983, alleging that his civil rights under to the United States Constitution were violated, ffenses. Dkt. No. 52, E ffenses. Dkt. No. C

R. r five days of trial, on June 9, 2006, Aretakis was 9, 2006, Aretakis of trial, on June r five days

. -10- . the Amended Complaint, among other things, is that other things, among Complaint, the Amended submitted to a deposition on February 7, 2007. to a deposition submitted ous prosecution, negligence, and intentional infliction ED all other pending motions. Dkt. No. 33. Dkt. No. all other pending motions. Am. Compl. at ¶ 174. Compl. Am. see Southern District of New York . at ¶ 8; On October 9, 2007, Aretakis filed an On October 9, 2007, Aretakis filed Id. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 10 of 68 of 10 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case D. Commencement of this Litigation D. Commencement of 5, 2006, Aretakis filed a Notice On September A Motion to Dismiss, pursuant to F pursuant A Motion to Dismiss, Aretakis brings this action, pursuant to 42 U. when identifying a particular cause of action, elemen Law § 50-e, accusing Defendants of malicious pros Defendants of malicious Law § 50-e, accusing other violations and o among constitutional rights, Attorney were a Cross Motion to disqualify Wells’s United States District Judge for the United States District Judge for the acquitted of both charges. both charges. of acquitted Law § 50-h, Aretakis Pursuant to Municipal this commenced Thereafter, on June 8, 2007, Aretakis asse presumably the Southern District of New York, District. Dkt. No. 1, Compl. an Answer, Dkt. Nos. 7, 37, & 40. 5, to which each Defendant filed 30, 2007, J November 22, 23, & 26. By an Order, dated along with Northern District of New York, to trial and Aretakisto trial and represented Afte himself. the First, Fourth, Fifth, and Fourteenth Amendments the First, Fourth, Fifth, as well state tort claims of false arrest, malici as well state tort claims with is problematic distress. What of emotional of conciseness, precision, nor clarity as required by F it is not a model

RFT ¶ 114. See work, and his outspoken ms which state different theories ms ff’s First Amendment right ff’s First Amendment of free s pleaded the affirmative defense of statute s pleaded the affirmative pleading wherein the facts and elements are and elements wherein the facts pleading s. Durivage, as well as denying the allegations, comply with New York State General Municipal comply ons, the existence of probable cause, failure to state se of action, absolute and qualified immunity, and se of action, absolute and qualified immunity, -11- Nature constitutional rights as well as Title speech and other for discrimination VII of the Civil Rights Act of 1964 based upon his religion, his the Catholic Church. of criticism rights for failure to properly train police Amendment officers. civil rights. Plaintiff’s speech free hindering and chilling the Plaintiff’s rights. Ans. Likewise, Defendant Nugent denied the allegations and pled cause of action, and two counterclai Paragraphs Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 11 of 68 of 11 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case In addition to denying the allegations, Wells ha Wells In addition to denying the allegations, Law. Dkt. No. 40, Durivage Am. Law. Dkt. No. 40, Durivage Am. defenses of failure to state a cau the affirmative Dkt. No. 7, Nugent Ans. the statute of limitations. of emotional distress. Dkt. No. 37, Wells Am. An Am. distress. Dkt. No. 37, Wells of emotional defenses of statute of limitati pled the affirmative and failure to a cause of action, qualified immunity, FirstSecond ¶¶ 89-112 ¶¶ 113-135 Violation of Plainti Distress Infliction of Emotional Intentional scattered about the complaint. Nonetheless, we suspect that the causes of action pled in Aretakis’s we suspect that the causes Nonetheless, complaint. scattered about the be stated as follows: jointly and severally, may against these Defendants, Complaint Amended Cause of Action ThirdFourthFifth136-150 ¶¶ SixthSeventh ¶¶ 151-162 Fourteenth Violation of Plaintiff’s Fourth and 163-174 ¶¶ 183-188 ¶¶ police officers. Failure to properly supervise ¶¶ 175-182 failure to state a of limitations, of prosecution, and violation False arrest, malicious by rights Violation of Plaintiff’s First Amendment Negligence therein,Such identified. is actually being cause of action to discern what it difficult making as a “shotgun” is aptly described methodology pleading

RFT Cortec See Cruz Geisler v. Scheuer v. , 532 F.3d 157, , 1997 WL 394667, at *2 394667, , 1997 WL phasis added)). On a motion ’ may be considered by the court in be considered by ’ may ., 937 F.2d 767, 773 (2d Cir. 1991)). ., 937 F.2d 767, 773 (2d Cir. 1991)). see also Arar v. Ashcroft is not whether a plaintiff will ultimately rily plead a particular fact if that fact is a See Retail Clerks Intern. Ass'n, Local 1625, fit of every reasonable inference to be drawn rmining a 12(b)(6) motion, the court may only the court may a 12(b)(6) motion, rmining Dismiss the Amended Complaint, and, in the and, Complaint, Amended the Dismiss assess the legal feasibility of the complaint, not complaint, the of assess the legal feasibility Spence v. Senkowski documents attached to the complaint, and matters and attached to the complaint, documents -12- ated by reference, a document ‘upon which [the ‘upon which ated by reference, a document , 489 F.3d 499, 509 (2d Cir. 2007) (quoting , 489 F.3d 499, 509 (2d Cir. 2007) II. ANALYSIS integral to the complaint Kramer v. Time Warner Inc , 949 F.2d 42, 47 (2d Cir. 1991) (em , 949 F.2d 42, 47 (2d Cir. 1991) Roth v. Jennings , 373 U.S. 746, 753 n. 6 (1963); relies and which is solely , 616 F.2d 636, 639 (2d Cir. 1980). “[T]he issue , 616 F.2d 636, 639 (2d Cir. 1980). Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 12 of 68 of 12 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case The court is bound to give the plaintiff the bene All of the Defendants have filed Motions to filed Motions Defendants have All of the Standard A. Motion to Dismiss as true. be accepted must of the complaint the allegations to dismiss, On a motion , 416 U.S. 232, 236 (1974). , 405 U.S. 319, 322 (1972). “Generally, in dete , 405 U.S. 319, 322 Moreover, “even if not attached or incorpor complaint] the complaint. the “well-pleaded” allegations of from AFL-CIO v. Schermerhorn 168 (2d Cir. 2008). Thus, the plaintiff need not necessa (N.D.N.Y. July 3, 1997) (citing ruling on such a motion.” Indus., Inc. v. Sum Holding L.P. to “is merely trial court’s function the to dismiss, to assay the weight be offered in support thereof.” the of which might evidence Petrocelli is entitled to offer evidenceprevail but whether the claimant to support the claims.” Rhodes to which the court may take judicial notice.” to which the court may consider those matters alleged in the complaint, in the complaint, alleged consider those matters alternative, Defendants Durivage and Nugent have further filed Motions for Summary Judgment. further filed Motions for Summary Durivage and Nugent have alternative, Defendants v. Beto

RFT

11 Conley Celotex , 373 U.S. Conley v. Gibson any,” that there is no , 550 U.S. 544 (2007). in original). In spite of the Assoc. Gen. Contractors of Gen. Assoc. pleading standard for civil rights 459 U.S. 519, 526 (1983). ther with affidavits, if , 34 F.3d 51, 54 (2d Cir. 1994) (citing omitted)). In so doing, the Court found that In so doing, omitted)). complaint). A motion to dismiss pursuant to complaint). to dismiss A motion e or she] has not alleged, or that the defendants See id.; see also Wheeldin v. Wheeler see also Wheeldin See id.; to demonstrate through “pleadings, depositions, to demonstrate those contexts where such amplification is needed such amplification those contexts where quate complaint claims, not the minimum standard of adequate not the minimum claims, quate complaint plaintiff’s complaint includes “enough facts to state includes “enough facts plaintiff’s complaint -13- has recently interpreted the foregoing language as the foregoing language has recently interpreted d entitle him to relief.” 127 to relief.” S.Ct. 1955, d entitle him 1968 (2007) (quoting Bell Atl. Corp. v. Twombly Bell Atl. Corp. v. . at 1969. Id , the Supreme Court abrogated the often-cited language of , the Supreme P. 56(c), summary judgment is appropriate only where “there is no is appropriate judgment P. 56(c), summary

. F.D.I.C. v. Giammettei IV [,]” but does not require a heightened C

R.

Bell Atlantic . , 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis (emphasis , 490 F.3d 143, 157-58 (2d Cir. 2007) ED plausible By its opinion in Iqbal v. Hasty Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 13 of 68 of 13 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 11 Pursuant to F B. Summary Judgment Standard , 355 U.S. 41, 45-46 (1957) (internal quotation marks answers to interrogatories, and admissions on file, toge answers to interrogatories, and admissions genuine issue as to any material fact and . . . the moving party is entitled to judgment as fact and . . . the moving a matter genuine issue as to any material party bears the burdenof law.” The moving fact. genuine issue of material 647, 648 (1963) (inferring facts from allegations of facts from (1963) (inferring 647, 648 not be granted so long as the Rule 12(b)(6) may to relief that is plausible on its face.” a claim reasonable inference from facts properly alleged. properly alleged. facts inference from reasonable deference the court is bound to give to the plaintiff'sdeference the court is bound to not proper for the court to allegations, it is assume that “the [plaintiff] can prove facts which [h havelaws in ways that have not been alleged.” violated the . . . Council of Carpenters, California, Inc. v. California State The Court of Appeals for the Second CircuitThe Court of Appeals obliges a pleader to ‘plausibility standard,’ which courts apply “a flexible requiring that lower allegations in factual with some a claim amplify to render the claim claims. “described the breadth of opportunity to prove what an ade “described the breadth of opportunity Conley survival.” pleading to govern a complaint’s “that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can for failure should not be dismissed a claim to state “that a complaint woul which claim his prove no set of facts in support of

RFT Rexnord , 344 F.3d 282, , 964 F.2d 149, 154 (2d , 964 F.2d 149, 154 Procedure 56(e)] and has, Procedure that end, sworn statements are that end, sworn statements duty, in short, is confined at this Nora Beverages, Inc. v. Perrier Scott v. Coughlin

, 58 F.3d 865, 872 (2d Cir. 1995) and , 58 F.3d 865, 872 (2d Cir. 1995) t, the court must resolve all ambiguities t, the court must see also statements is better left to a trier of fact. statements . “[T]he trial court’s task at the summary . “[T]he e non-movant must “set specific facts forth als are ordinarilya not sufficient to defeat [Federal Rule of Civil [Federal lly limited to discerning whether there are any lly limited Glazer v. Formica Corp. Glazer v. Formica party has set out a documentary case.”); party has set out a documentary y, and should be treated as evidence in deciding a y, and should be treated as evidence P. 56(e);

and cannot rest on “mere allegations or denials” of and cannot rest on “mere . tried, those facts will be deemed admitted unless admitted deemed will be tried, those facts -14- IV C

Colon v. Coughlin R.

. ED served a concise statement of the material facts as to which it facts of the material statement served a concise be tried, not to deciding them. Its be tried, not to deciding them. , 21 F.3d 522, 525-26 (2d Cir. 1994). To , 21 F.3d 522, 525-26 (2d Cir. 1994). , 713 F.2d 10, 13 (2d Cir. 1983)). , 164 F.3d 736, 742 (2d Cir. 1998) , 344 F.3d at 289 (citing , 477 U.S. 317, 323 (1986)). “When a party has moved for summary judgment on judgment for summary party has moved a “When 317, 323 (1986)). , 477 U.S. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 14 of 68 of 14 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case When considering a motion for summary judgmen for summary considering a motion When To defeat a motion for summary judgment, th judgment, for summary To defeat a motion “more than mere conclusory than mere allegations subject to disregard . . . they are specific and detailed “more under penalty of perjur allegations of fact, made of such and the credibility motion” judgment summary Scott v. Coughlin 287 (2d Cir. 2003) (“Conclusory allegations or deni 287 (2d Cir. 2003) (“Conclusory when the moving judgment for summary motion Holdings, Inc. v. Bidermann Flaherty v. Coughlin the non-movant. of in favor inferences all reasonable and draw Group of Am., Inc. in accordance with local court rules, in accordance with no genuine issues to be contends there exist party.” by the nonmoving properly controverted Cir. 1992). for trial,” showing that there is a genuine issue F movant. by the submitted the facts judgment motion stage of the litigation is carefu to fact genuine issues of material Corp. v. Catrett Corp. v. the basis of asserted facts supported as required by supported as required of asserted facts the basis

RFT In re Carey

See e.g., , 280 Fed. See 12 Hoatson v. New York Archdiocese Gallo v. Prudential Residential Servs., Residential Prudential v. Gallo on excessively and repetitively ascribes a catch basin the various dispositive motions are thoroughly riddled the various dispositive motions ed by the Fourth Amendment and are applicable ed by the Fourth Amendment false arrest and malicious prosecution causes of false arrest and malicious , 34 A.D.3d 1044 (N.Y. App. Div. 3d Dep’t 2006); nt and material facts was severely plagued by the was severely plagued by facts nt and material fficials and agents, who are, by the way, not parties to this the fficials and agents, who are, by ch on the issues of clergy sexual abuse and how the Catholic and abuse ch on the issues of clergy sexual ny and harassment, without naming them as a party. Hardly them without naming ny and harassment, tigate the Roman Catholic Diocese as the catalyst for these tigate the Roman ’s Opposition to these dispositive motions, which these dispositive motions, ’s Opposition to olated his “civil rights.” Am. Compl. at ¶¶ 164-74. at ¶¶ 164-74. Compl. olated his “civil rights.” Am. irrelevant points and issues far exceed the presence irrelevant points and issues far exceed Opposition where the reader is not regaled by Aretakis about reader is not regaled by Aretakis Opposition where the -15- intended or not, muddles the actual conduct we are required to intended or not, muddles but for the frightening pattern of Aretakis’s pleadings. is claims that all of the Defendants participated in his false that is claims People v. Allen pp. Div. 3d Dep’t Dec. 11, 2008); , 1:07-CV-405; , 923 F.2d 18, 21 (2d Cir. 1991). , 923 F.2d 18, 21 , 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, mere conclusory allegations, conclusory Nonetheless, mere Cir. 1994). 1219, 1224 (2d , 22 F.3d The Amended Complaint and Aretakis’ Opposition to Complaint The Amended Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 15 of 68 of 15 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Additionally, Aretakis’s Amended Complaint and Oppositi Complaint Additionally, Aretakis’s Amended 12 C. False Arrest, Malicious Prosecution, and Constitutional Violations C. False Arrest, Malicious Prosecution, In his fifth cause of action, Aretak Aretakis’s Amended Complaint is truly unconventional. One of the more troublesome One of the more is truly unconventional. Complaint Aretakis’s Amended , 2008 WLA 5170771 (N.Y. Appx. 88 (2d Cir. 2008). Aretakis a page can be turned in the Amended Complaint and his Complaint a page can be turned in the Amended review. Maybe all of this could be ignored or excused with diatribes against the Roman Catholic Church and its o with diatribes against the Roman events, his arrest and prosecution for petty larce cataclysmic crusade and struggle against the Catholic Chur his long-term that these named DefendantsChurch has so poisoned the well against him have joined the and even the government Catholic Church’s cabal to injure him. of assorted venal motives to all Defendants and thus, Zlotnick v. Hubbard et al. action. Considerable effort is expended by Aretakis to cas by action. Considerable effort is expended arrest, maliciously prosecuted him, and further vi and further him, prosecuted arrest, maliciously As a generally recognized constitutional principle, As a generally recognized constitutional are subsum action, in the context of a § 1983 action, aspects of the Amended Complaint and Aretakis Complaint aspects of the Amended Ltd. P’ship judgment. unsupported for summary to defeat a motion by the record, are insufficient v. Crescenzi and is Aretakis’s barrage of conclusions our analysis unnecessarily cumbersome, has truly made of truly suppositions and the fact that interjection point to issue-finding; it does not extend to issue-resolution.” issue-resolution.” not extend to it does point to issue-finding; of facts. Our ability to discern and observe releva Our facts. of of the other parties’ and the inordinate assignment and kaleidoscope of conclusory statements prosecution. in causing his arrest and nonparties’ ulterior motives

RFT , , , 63 F.3d 110, , 63 F.3d 110, , 101 F.3d at 852 , 316 F.3d 128, 134 see also Albright v. Oliver see also Albright Broughton v. State of New York Weyant v. Okst The quintessential justification, or Singer v. Fulton County Sheriff Jocks v. Tavernier stated in tandem, yet they are not distinct causes yet they stated in tandem, s of actions as well as the alleged Fourth actions as well as the alleged s of Singer v. Fulton County Sheriff is merges these independent causes of action these is merges ey are “substantially the same claim as claims claim same the ey are “substantially aintiff was conscious of the confinement, (3) the (3) aintiff was conscious of the confinement, tion clearly established for review, we begin our tion clearly established for In vindicating those constitutional protections those constitutional In vindicating other, the nomenclature can be, and often are, employed rather distinct from another common law cause of action, another common rather distinct from , malicious prosecution, and violation of the Fourth , malicious -16- one captioned cause of action. Notwithstanding this of action. Notwithstanding one captioned cause nd (4) the confinement was not otherwise privileged. was not otherwise privileged. nd (4) the confinement ntly invoked in these types of lawsuits. lawsuits. of ntly invoked in these types , 101 F.3d 845, 852 (2d Cir. 1996)); , 101 F.3d 845, 852 , 25 F.3d 98, 102 (2d Cir. 1994) (noting that the existence of only a species of false imprisonment. only a species of false imprisonment. 1. False Arrest Weyant v. Okst Under New York law, to prevail on a false arrest claim, a plaintiff must show a plaintiff must on a false arrest claim, Under New York law, to prevail 13 , 37 N.Y.2d 451, 456 (N.Y. Ct. App. 1975). The terms false arrest and false imprisonment are always false arrest and false imprisonment The terms Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 16 of 68 of 16 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 13 False arrest is a species of false imprisonment. False arrest is a species of false imprisonment. Contrary to proper pleading standards, Aretak Contrary to proper Bernard v. United States 37 N.Y.2d 451, 456 (N.Y. Ct. App. 1975). interchangeably. Nonetheless this species of action is prosecution, which is often concurre malicious of action but rather, false arrest is 118 (2d Cir. 1995). Because they are corollaries of each defense if you will, to false arrest is the presence of probable cause. defense if you will, to false arrest is the presence of probable cause. (citing Broughton v. State Amendment constitutional violations. With this no With constitutional violations. Amendment false arrest of whether the alleged determination survive these Motions. Amendment 118 (2d Cir. 1995). (2) the pl him, (1) the defendant intended to confine a plaintiff did not consent to the confinement, infirmity, we will address both common law cause common infirmity, we will address both from unreasonable seizures, we acknowledge that th acknowledge seizures, we unreasonable from under state law.” prosecution malicious for false arrest and (2d Cir. 2003) (citing 510 U.S. 266 (1994). prosecution into malicious of false arrest and to the Amendment. the Fourteenth states through

RFT , 14 Maliha v. Faluotico , 439 F.3d 149, 153 (2d Cir. 2006) by Nia Cholakis, Esq., Aretakis’s wife, who, because by e arresting of the arrest time officer at the r either his prosecution, arrest or the criminal by a neutral magistrate. Exclaiming that his Exclaiming by a neutral magistrate. for false arrest”)). Essentially, the presence of the presence arrest”)). Essentially, for false rrent of accusations against Durivage. It should inement were privileged. In order were privileged. inement for probable – not ready, or even usefully, reduced to – not ready, or even reasonable caution in the belief that the in the belief reasonable caution law practitioner for over fifteen years, claims some expertise some law practitioner for over fifteen years, claims Jaegly v. Couch on.” Dkt. No. 62-5, Nia Cholakis, Esq., Aff., dated May 30, ook to the ‘totality of the circumstances.’ ook to the ‘totality -17- e baldy and erroneously asserts that the “concept of probable , 316 F.3d at 135. Further stated, “the probable cause , 316 F.3d at 135. Further stated, “the d concept – turning on the assessment of d concept – turning on the assessment , 543 U.S. 146, 153 (2004) (emphasis added)); , 543 U.S. 146, 153 (2004) (emphasis Jocks v. Tavernier ; Id , 298 F.3d 156, 162 (2d Cir. 2002) (citations omitted). , 298 F.3d 156, 162 (2d Cir. 2002) 2. Probable Cause provided probable cause to arrest.” provided probable cause to arrest.” Devenpeck v. Alford The emphasis is added to clarify commentary provided commentary is added to clarify The emphasis Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 17 of 68 of 17 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case [citation omitted]. In looking to the totality of the circumstances, courts must be courts must the circumstances, In looking to the totality of [citation omitted]. cause is a flui aware that ‘probable rules.’ legal a neat set of 14 person to be arrested has committed or is committing a crime. [citations omitted] . omitted] [citations a crime. or is committing has committed person to be arrested l district court must . . [Therefore] [a] factualprobabilities in particular contexts Aretakis, supported by Cholakis, rails and prosecution. Their essential against the arrest have knowledge or reasonably trustworthyhave knowledge and circumstances of facts information to warrant a personthat are sufficient of inquiry is based upon whether the facts known by thinquiry is based upon whether the objectively (quoting 2008) (noting that probable cause is an objective test). 286 Fed. Appx. 742, 744 (2d Cir. Caldarola v. Calabrese In essence, probable cause is determined by the facts available to the officers at the time of the arrest by the facts available to the officers at the time In essence, probable cause is determined before. and immediately incrimination is that there was no probable cause fo is that there was no probable incrimination notwithstanding the issuance of a warrant of arrest arrest lacked probable cause, Aretakis launches a to cause to exist for an arrest, the arresting officers must an arrest, the arresting officers cause to exist for probable cause proclaims that the arrest and conf that the arrest cause proclaims probable probable cause “is a complete defense to an action defense to an cause “is a complete probable of her erstwhile employment as a Town Justice and criminal criminal as a Town Justice and of her erstwhile employment in these types of matters. In spite of that experience, sh in these types of matters. a subjective interpretaticause is esoteric and often times 2008, at ¶ 28.

RFT Aretakis was exacerbated by Durivage’s keen Aretakis was exacerbated ed and impartial because of political conflicts, ed and impartial vage conducted the investigation with hostility, vage conducted the investigation was conceding that he had a bias and a conflict and bias Durivage permitted false and fabricated false permitted and bias Durivage been arrested; Durivage knew about the Catholic been arrested; Durivage knew about rs that Durivage knew about Wells’s several felony rs that Durivage knew about Wells’s r occasions; Durivage ignored evidence that during r occasions; Durivage ignored evidence -18- advocate against clergy abuse and Durivage’s active advocate against 6, 2005 of the September acts and circumstances Aretakis Aff. & Cholakis Aff. at ¶¶ 9-14. at ¶¶ 14-23; Am. Compl. at ¶¶ Compl. 48-49 & at ¶¶ 14-23; Am. 51-53. He mily. He further alleges that the intensity of Durivage’s vitriol Durivage’s of alleges that the intensity further He mily. See generally Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 18 of 68 of 18 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Aretakis complains that Durivage, among other things, has held a long-term, deep-seeded, long-term, has held a other things, among that Durivage, complains Aretakis institutedBased upon Durivage’s investigation of arrest being issued, prior to the warrant Aretakis further contends that probable cause did not exist for a warrant for his arrest from the beginning stages of this prosecution and that the executed warrant by “an admittedly biased this prosecution and that the executed warrant by “an admittedly the beginning stages of from which eventually lead to his recusal. Though not factually supported by the record, Aretakis which eventually lead to his recusal. Though not factually supported contends that Judge Ceresia himself, by recusing acrimonious hatred of him and his fa hatred of him acrimonious toward and commissions omissions and questionable high profile role as an awareness of Aretakis’s politics. Aretakis Aff. participation in town animosity that because of this simmering maintains lodged against Aretakis. to be allegations by Wells Aretakis contends that Durivage knew the f to have been secretly witnesses, including Aretakis, who claims Incident. Durivage spoke with the at ¶ 59. Aretakis proffe Compl. recorded. Am. arrested on othe to have him Church’s attempts telephone; Durivage repeatedly lied to the jury; that therethe incident Aretakis was on the was evidence of his innocence; and Duri overwhelming toward him. bias, and animus because the Judge who issued the warrant was bias not elude us that the burden of establishing lack of probable cause rests with Aretakis. cause rests with lack of probable of establishing us that the burden not elude convictions while also knowing that he had never convictions while also knowing that

RFT Singer v. Fulton , 37 N.Y.2d at 458. . at Ex. B; Durivage Aff. , 269 A.D.2d 654, 656 & Andrew Ceresia reviewed Id Broughton v. State , New York, 115 F.3d 1098, 1107 (2d Cir. , New York, 115 F.3d 1098, 1107 ntiff who challenge the validity of an arrest ntiff who challenge the validity of judge grants a warrant of arrest, there is a judge grants a warrant of arrest, ption of probable cause. Nonetheless, there cause existed.” Cholakis Aff. atcause existed.” ¶¶ 28-29. did not exist and because his bias prohibited to investigate further and not rely upon the l judge with jurisdiction since the arrest and l judge with jurisdiction since the ed after Town Justice no prior criminal record. The Judge who signed record. criminal no prior ory statements to Durivage, another eye witness ory statements issued by a Town Justice on September 15, 2005. Justice on September issued by a Town nd unfair, glad to oblige Ceresia was only as Mr. Amendment cannot lie where the arrest was made Amendment -19- e warrant was tainted and negated probablee warrant was tainted cause. e arresting officer had probable cause. Ellsworth v. City of Gloversville depositions of Mr. and Mrs. Wells. Wells. Mr. and Mrs. depositions of Simms v. Vill. of Albion , 63 F.3d at 119. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 19 of 68 of 19 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Aretakis insists that Durivage had a duty However, we have a facially valid warrant However, we have account that challenges Mr. and Mrs. Wells’s version of events, knowledge of the disparate account that challenges Mr. and Mrs. Wells’s Causes of action for false arrest and the Fourth Causes of action for false arrest pursuant to a valid warrant issued by an impartia are privileged. subsequent confinement However, a plai 657 (N.Y. App. Div. 3d Dep’t 2000). warrant faces a heavy burden. rebut the presum He must 1997) (citation omitted). cannot be a constitutional violation where th County Sheriff His exculpat of Mr. and Mrs. Wells. statements Because of the recusal, Aretakis posits that th Because of the recusal, Captain Durivage in a prosecution of a lawyer with of a lawyer Durivage in a prosecution Captain not have because probable cause the warrant should evaluating whether probable objectively from him Aretakis at ¶ 59. The warrant was issu Dkt. No. 53, Ex. C, Warrant. and written Informations the drafted at ¶ 11. As a general proposition of law, when a that the arrest was issued on probable cause. presumption judge is indicative that the warrant was biasedindicative that the judge is a

RFT , Krause Ricciuti v. N.Y.C. Curley v. Vill. of Suffern , 250 F. Supp. 2d 242, 258-59 , 460 F.3d 388, 396 (2d Cir. 2006) . at 135-36 (citing Id , 316 F.3d at 135. Investigating, 316 F.3d at 135. and sting officer has a reasonable basis for sting officer has a reasonable basis make credibility judgments, need not function credibility judgments, make rrest nor does he have to believe with any rrest nor does he have to believe tions but, for the most part, they do not have to part, they do not have most tions but, for the should have known that should and Wells was lying int or information charging someone withint or information the ence nor deliberately disregard facts which can ence nor deliberately a crime by a person who claims to be the victim, by a person who claims a crime ing arrested, assess the credibility of unverified ing arrested, assess lish probable cause, they are neither required nor lish probable cause, they are neither Donovan v. Briggs nnocence rather than probable cause for his arrest. cause for his rather than probable nnocence nt circumstances that raise doubts as to the victim’s nt circumstances through weighing the evidence.”) (quoting through weighing the evidence.”) -20- require a suspect’s guilt beyond a reasonable doubt). Jocks v. Tavernier see also Panetta v. Crowley , 124 F.3d 123 (2d Cir. 1997)). Once the arre , 124 F.3d 123 (2d Cir. 1997)). , 887 F.2d 362, 372 (2d Cir. 1989)); Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 20 of 68 of 20 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case In some circumstances, a police officer’s circumstances, In some defense may of facts supporting a awareness investigate exculpatory offerings by theinvestigate exculpatory party be arrestee will be successfully prosecuted. reasonable degree of certainty the fabricating facts, all should have supported his i have supported facts, all should fabricating cause. probable or eliminate mollify evid not ignore exculpatory may arresting officers ac questionable for someone’s establish justification of defenses. of justification, or verify the existence claims Trans. Auth. he is not required to explorebelieving there is probable cause, and eliminate every theoretical an a of innocence before making plausible claim 268 F.3d 65, 70 (2d Cir. 2001); (“Once officers possess facts sufficient to estab allowed those suspectedto sit as prosecutor, judge or jury. Their function is to apprehend of guilt wrongdoing, and not to finally determine v. Bennett 2003) (arresting officer, though having to (W.D.N.Y. guilt or innocence or as a jury and determine instances, “[a]n arresting officer advised of In most [or an eye witness] and who has signed a compla backgrounds of Aretakis and Wells, and Durivage and and Wells, of Aretakis backgrounds crime, has probable cause to effect an arrest abse crime,

RFT , 758 Curley , 887 F.2d , 316 F.3d at , 316 F.3d , 268 F.3d at 70 , 63 F.3d at 119; at “the fact that an United States v. Fama 15 Krause v. Bennett Jocks v. Tavernier Jocks v. But even doubts about a victim’s doubts about a But even , 268 F.3d at 70). Lastly, Aretakis e may have been for the officers to have e may

istently made clear th istently made Curley v. Vill. of Suffern Curley v. Vill. of . at 70 (citing claiming that he is a minion of the Catholic Church Catholic the of that he is a minion claiming , 268 F.3d 65, 70 (2d Cir. 2001). Id Singer v. Fulton County Sheriff ce officers generally find themselves when they find themselves ce officers generally facts alleged cause . . . does not negate probable felon. These suppositions alone do not cast doubt on Mr. and Mr. on These suppositions alone do not cast doubt felon. -21- vage’s motivation, motivation is not a consideration motivation vage’s motivation, , 63 F.3d at 119. , 63 F.3d , 460 F.3d at 396 (quoting arrestee’s protestation of innocence generally does not arrestee’s protestation of innocence Curley v. Vill. of Suffern different stories from an alleged victim and the arrestee. and the an alleged victim from different stories See Curley v. Vill. of Suffern Panetta v. Crowley , 286 Fed. Appx. at 744 (officer’s motivation is not relevant). , 286 Fed. Appx. at 744 (officer’s motivation , 268 F.3d at 70. “Although a better procedur , 268 F.3d at 70. “Although a better Singer v. Fulton County Sheriff v. Fulton County Singer Here, Aretakis tries to undermine Wells’s credibility by Here, Aretakis tries to undermine Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 21 of 68 of 21 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 15 This case is an example of the quagmire poli of the quagmire This case is an example are presented with different versions of the events. But probable cause has been found where a But probable cause has been different versions of the events. are presented with confronted with police officer was v. Vill. of Suffern the arresting officer does not have to events moreinvestigate plaintiff’s versions of completely, that an investigation does it matter . . . [n]or prove plaintiff’s wrong before arresting him version the basis for the arrest.” have cast doubt upon might be consistent with the innocent explanation may an . . . and an officer’s failure to investigate vitiate probable cause.” veracity.” veracity.” veracity will not completely derail the presence of probable cause. probable cause. of the presence derail will not completely veracity Second Circuit has cons 362, 371-72 (2d Cir. 1989). The F.2d 845, 838 (2d Cir. 1985) & citing 138 (false information will not dissipate probable cause); will not dissipate probable 138 (false information doubt on the basis of arrest). if the investigation casts (does not matter in this of Durivage’s motivation investigation and questions his levels a battery of impeachment Even if there is a question of Duri every move. of probable cause. in a court’s objective assessment Maliha v. Faluotico who seeks to harm Aretakis and that Wells is a convicted who seeks to harm Mrs. Wells’sthe events. version of

RFT se. Cholakis avers that t in the Second degree, , 82 F.3d 563, 569 (2d Cir. 1996). , 82 F.3d 563, 569 continued to request prosecution of continued to request prosecution for either offense. An examination of the for either offense. An examination Am. Compl. at ¶ 46. But, it appears that both Compl. Am. ror could believe that Durivage lacked probable ror could believe etakis with the crimes of harassment and petty harassment of etakis with the crimes those facts available to Durivage immediately available to those facts the charge of Harassmen the charge of on of Wells’s briefcase, although he did not admit on of Wells’s see nature of the Harassment in the Second Degree in the Second nature of the Harassment akis delivered it to the Town of North Greenbush akis delivered it to the Town of North ement of physical contact or even more was neither of physical contact or even more ement nd another eye witness that Aretakis harassed him nd another eye witness -22- ith Aretakis who relatively admitted being involved relatively admitted ith Aretakis who ng the matter of probable cau ng the matter Harassment in the Second Degree. Here, Durivage in Harassment degree required physical of the as a required element contact Lowth v. Town of Cheetowaga Lowth v. Town of nd trieval of the briefcase, Wells trieval of the briefcase, Wells violence, the accused must have a weapon that could carry out the have a weapon that could carry violence, the accused must harassment in the 2 harassment Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 22 of 68 of 22 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Aretakis argues that there was no probable cause Aretakis argues that there was no We now turn to whether probable cause existed on September 16, 2005, and we must look we must 16, 2005, and existed on September probable cause now turn to whether We aggravated “ Aretakis charging Ar and signed the Informations and the written depositions by Mr. and in the Informations as set forth offenses these of elements position. Regarding belie Aretakis’s Mrs. Wells that the necessary el Aretakis and Cholakis claim thus deprivi present nor pled in the Information Aretakis and Cholakis the very misapprehend police station. Even after the re larceny. offense, or if only a threat of added); threat.” Cholakis Aff. at ¶ 17 (emphasis and stole his briefcase. Durivage had spoken w and stole his briefcase. have had possessi and may in an affray with Wells possession property. However, Aretakis’s especially stealing Wells’s any crime, that he committed when Aret of that briefcase was later confirmed had sworn statements from the alleged victim a the alleged victim from had sworn statements at the totality of the circumstances and consider and of the circumstances at the totality a reasonable ju whether determine As such, we must for Petty Larceny and cause to arrest Aretakis before and at the time of the arrest. time before and at the

RFT § 240.26(1)

L

. Warlock Enter. 48 A.D.3d 946, EN , 159 A.D.2d 990 P

., Ex. C-4. In essence, ny, in violation of New ny, in violation of . N.Y. Id (reciting the statute for the In re Shane EE, People v. Henry 1994) (assuming that the threat to 1994) (assuming the intent to harass, annoy ated Harassment in the Second Degree. The in the Second Degree. ated Harassment tim to feel threatened and alarmed . . . threatened and alarmed to feel tim strikes, shoves, kicks or otherwise subjects such strikes, shoves, kicks and Informations are Harassment in the Second are Harassment and Informations -23- § 240.26(1), and Petty Larce § 240.26(1), and rm fall within the scope of the statute); fall within rm 76 N.Y.2d 736 (N.Y. Ct. App. 1990) (harassment covers (harassment 76 N.Y.2d 736 (N.Y. Ct. App. 1990) , 96 N.Y.2d 770, 772 (N.Y. Ct. App. 2001). What Aretakis has 2001). What , 96 N.Y.2d 770, 772 (N.Y. Ct. App. attempts or threatens to do the same attempts or threatens day of September, 2005], with day of September, th app. denied , 75 N.Y.2d 47, 54 (N.Y. Ct. App. 1989); , 75 N.Y.2d 47, 54 (N.Y. Ct. App. , 124 F. Supp. 2d 36, 41 (N.D.N.Y. 2000) , 124 F. Supp. 2d 36, 41 (N.D.N.Y. ., 204 A.D.2d 438 (N.Y. App. Div. 2d Dep’t ., 204 A.D.2d 438 (N.Y. App. Div. Dep’t) People v. Bartkow th People v. Dietze Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 23 of 68 of 23 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case The Harassment in the Second Degree Information states in part: in the Second Degree Information The Harassment Said Defendant [on the 6 or alarm another person, did threaten another person namely Robert D. Wells by another person, did threaten another D. Wells Robert or alarm person namely “ You’re an asshole, to the victim vehicle window stating reaching inside the victims going to kick your ass” causing the vic I am and shook [the driver’s side window] in a violent manner”. First, Aggrav not charged with Aretakis was Center Assoc

either physical contact or the threat of physical contact). Dkt. No. 52, Ex. C-2. reiterate sworn statements those exact allegations. Mr. and Mrs. Wells’ conveniently failed to consider is that a genuine threat of physical harm falls within the scope of the that a genuine threat of physical harm conveniently failed to consider is statute. actual charges listed in both theactual charges listed warrant of arrest of New York Penal Law Degree, in violation harassment § 155.25. A person commits York Penal Law the in the second degree when, with he another person, or alarm intent to harass, annoy, contact, or other person to physical added); (emphasis a threat can suffice); aggravated harassment, 2008) (even for 947-48 (N.Y. App. Div. 3d Dep’t Nacarato v. Scarselli physical ha proposition that genuine threats of v. City charge. kill was genuine, it constituted harassment in the second degree); kill was genuine, it constituted harassment (N.Y. App. Div. 4

RFT . Id People v. ssessing the briefcase for no cle, attempted to grab his car cle, attempted , 52 N.Y.2d 309, 318 (N.Y. Ct. , 439 F.3d 149 (a case concerning , 439 F.3d 149 threatened to “kick his ass.” It is clear that to “kick his ass.” threatened posits that Durivage knew that there was no posits that Durivage knew that there sed dominion and control over the property for sed dominion People v. Olivo tty larceny. Petty larceny is committed when a tty larceny. Petty larceny is committed It is his view that po had probable cause to issue a warrant based upon had probable cause exercise dominion and control wholly inconsistent exercise dominion tent with the owner’s continued rights. tent with the owner’s continued -24- ndering of the events corroborates her husband. sed upon both the sworn Information and the written and sworn Information sed upon both the No. 52, Ex. C-3. Wells’s written deposition stated No. 52, Ex. C-3. Wells’s See Jaegly v. Couch § 155.25. The crime unauthorized of larceny consists of an

her things, reached into his vehi reached into her things, , 86 N.Y.2d 248, 252 (N.Y. Ct. App. 1995) (the accused only L h of the taking is not relevant, just the virtual permanent control the virtual permanent h of the taking is not relevant, just

. EN P

People v. Jensen , 69 N.Y.2d 103, 118 (N.Y. Ct. App. 1986); , 69 N.Y.2d 103, 118 (N.Y. Ct. App. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 24 of 68 of 24 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case In our case, the Criminal Information, sworn to by Wells, states that Aretakis removed sworn to by Wells, Information, In our case, the Criminal Regarding the Petty Larceny charge, Aretakis Regarding the Petty Larceny charge, Jennings is to this crime App. 1981) (all that is needed for with the owner’s rights). The lengt over the property. larceny). case of facie a prima and still met ten minutes had the property for Wells’ a calculator, cell phone charger, the car, which contained legal documents, from briefcase clients, and other items. Dkt. checks from re thing, and Mrs. Wells’s practically the same taking, however temporary, where the accused exerci taking, however temporary, a period of time, wholly inconsis in a manner keys, was screaming, yelling, and calling him names, and and names, and calling him yelling, screaming, keys, was an have given Aretakis may even though of this crime, the elements complaint meets Wells’s Ba for his conduct. explanation or disclaimer Durivage and the Town Justice depositions, both in the Second Degree. Harassment was found). degree where probable cause in the second harassment ¶ 47. at Compl. intent to steal the property. Am. Wells avers that Aretakis, among ot among Aretakis, avers that Wells person steals property. N.Y. more than twenty-four hours does not constitute pe more

RFT . at 250-51. Id rrest is whether the officer has , 250 F. Supp. 2d 242 (a rape victim who , 250 F. Supp. 2d 242 (a rape victim not critical in determining if Durivage had not critical in determining the investigator knew at the time of the arrest. the investigator knew at the time facts and circumstances that are sufficient to facts and circumstances some inconsistencies as to all of the witnesses’ inconsistencies as to all of some se with the burden of proof beyond a reasonable se with the burden nd, in the totality of the circumstances, provided of the circumstances, nd, in the totality quested; and, thus, did not have an intent to steal. did not have an intent to steal. quested; and, thus, d not undermine the existence of probable cause at d not undermine it dropped to the ground; his mother retrieved it for ground; his mother it dropped to the reasonably trustworthy and supported the presence -25- story, again, both the Information and the depositions the Information story, again, both at the defendant has committed a crime. a crime. has committed at the defendant Donovan v. Briggs field’s sworn statement states that Aretakis brought the briefcase Aretakis brought states that sworn statement field’s nt element of probablent element cause to a , 286 Fed. Appx. at 743. We find, as a matter of law, the written of as a matter find, , 286 Fed. Appx. at 743. We , 361 F.3d 737, 746 (2d Cir. 2004) (knowing the victim’s criminal history is criminal (knowing the victim’s , 361 F.3d 737, 746 (2d Cir. 2004) Maliha v. Faluotico Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 25 of 68 of 25 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case We repeat that whether Aretakis was innocent is We to the police station on September 7, 2005. In arguing that there was a lack of probable was a lack of arguing that there 7, 2005. In September station on to the police cause, Aretakis conflates for probable cau the standard as re the police department he returned it to him; knew Aretakis’s side of the Even if Durivage of petty larceny facie charge establish a prima a arrest. probable cause for the warrant of Even the the participants will not vitiate discrepanciesprobable cause to arrest him. amongst Wells’s credibilityprobable cause. Whether record, the alleged by his criminal was undermined and Durivage, on the part of ill motives presence of on what probable cause determine accounts, we must See Escalera v. Lunn not enough to destroy probable cause); fabricating the charge di subsequently admitted the arrest). The salie of the time of knowledge or reasonably trustworthy information reasonable caution th warrant a person of account of the contemporaneous Durivage was entitled to rely upon Mr. and Mrs. Wells’s altercation. depositions and Durivage’s investigation were at Ex. C-4. Moreover, Officer Little Moreover, Officer at Ex. C-4. doubt. He argues that he did not take it but that doubt. He argues

RFT Jocks v. Russell v. , 37 N.Y.2d , 118 F.3d 938, . at 946. Id .Y. 2000) (probable cause .Y. 2000) Murphy v. Lynn Broughton v. State the common law action of false the common (internal quotation marks , 37 N.Y.2d at 457 ). , 118 F.3d at 947 (quoting inalplaintiff; (2) proceeding against restriction on travel and mobility] that go hand restriction on travel and mobility] like false arrest, when considered in the context like false arrest, when considered ces can only lead us to conclude that probable only lead us to conclude ces can l malice as a motivation for defendant’s as a motivation l malice Amendment [] relevance.’” (citations omitted)). relevance.’” (citations omitted)). [] Amendment , 101 F.3d at 852 ); -26- Broughton v. State ious prosecution under § 1983, a plaintiff would have ious prosecution under § 1983, a , 84 F. Supp. 2d 322, 327 (N.D.N 2d 322, 327 , 84 F. Supp. see also Murphy v. Lynn osecution are kindred actions. osecution are kindred Weyant v. Okst , 1993 WL 489684, at *5 (N.D.N.Y. Nov. 24, 1993) (citations 489684, at *5 (N.D.N.Y. , 1993 WL , 118 F.3d 938, 947 (2d Cir. 1997) th as as well Amendment claims, 3. Malicious Prosecution , 316 F.3d at 136; Murphy v. Lynn Snow v. Vill. of Chatham Snow v. , 316 F.3d at 134 (citing Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 26 of 68 of 26 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case False arrest and malicious pr malicious False arrest and omitted). Additionally, there must be a post-arraignment seizure for a § 1983 be a post-arraignment Additionally, there must omitted). of attending criminal however, the requirements prosecution claim; malicious proceedings and obeying the conditions of bail suffice on that score. (1) the initiation or continuation of a crim favor; (3) lack of probable cause for of the proceeding in plaintiff'’s termination the proceeding; and (4) actua commencing actions. , 68 F.3d 33, 36 (2d Cir. 1995) & citing cause existed. cause existed. an essential of law). Therefore, because matter as a is lacking, be determined element may and Fourteen Aretakis’s Fourth be established. arrest, cannot now of probable cause. The totality of the circumstan totality of cause. The of probable at 456. As previously stated, malicious prosecution, at 456. As previously stated, malicious Fourthof a § 1983 action, has, for all purposes, constitutional relevance. Amendment Tavernier 945 (2d Cir. 1997) (“‘Deprivation of liberty [such as 945 (2d Cir. 1997) (“‘Deprivation prosecutions’ have ‘Fourth in hand with criminal Whether prosecution are the same. based for malicious upon federal or state law, the elements Gauthier v. Town of Bethlehem for malic To state a cause of action omitted). to establish Jocks v. Tavernier Smith is the perversion of proper legal procedures and, thus, some prosecution The essence of malicious

RFT See , 574 F. Conway v. individual Defendants. individual Defendants. )). Aretakis has attributed nged, it would be a matter nged, it would be Hickland v. Endee , 672 F.2d 1014, 1018 (2d Cir. , 126 A.D.2d 135, 137 (N.Y. App. of fact exists on the element of malice and of malice of fact exists on the element d from the allegations, it is clear that malice d from lice as to all of the lice as to all of of a cause of action sounding in malicious of action sounding of a cause roof of one will not automatically result in an one will not automatically of roof Even if it were challe hort on alleging a litany of motives, spite, hatred, rdingly, that such an element has been proven. has been an element rdingly, that such -27- iminal prosecution, including the Town Justice who iminal and the Special Prosecutor. Aretakis expounds upon and the Special Prosecutor. Aretakis Russo v. State of New York sine qua non sine qua Arnold v. Town of Wilton nd Durivage ( the arresting and investigating officer), Nugent (the nd Durivage ( the arresting and investigating , 42 N.Y.2d 13, 16 (N.Y. Ct. App. 1977 , 42 N.Y.2d 13, 16 (N.Y. Ct. App. , 37 N.Y.2d at 457. , 37 N.Y.2d , 101 F.3d at 853-54 (acquittal is a favorable termination); (acquittal is a favorable termination); , 101 F.3d at 853-54 , 750 F.2d 205, 214-15 (2d Cir. 1984). , 750 F.2d 205, 214-15 (2d Cir. 1984). , 118 F.3d at 948-52 (thorough discussion on what constitutes a favorable (thorough discussion on , 118 F.3d at 948-52 Weyant v. Okst Broughton v. State Broughton Martin v. City of Albany Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 27 of 68 of 27 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Putting aside for the moment whether an issue Putting moment aside for the Malice is an indispensable element of malicious prosecution. of malicious Malice is an indispensable element Aretakis was acquitted of both charges and it is unchallenged that he has established a both charges and it is unchallenged of Aretakis was acquitted Although the existence also be inferre of malice may and “p and probable cause are independent elements, inference of the other in every case.” Div. 3d Dep’t 1987). malevolence, and corruption that may constitute ma constitute and corruption that may malevolence, malice to everyone involved in his arrest and cr malice presiding as trial judge from recused himself a a history of friction between him and the entire Town of North (the Complainants), Wells Special Prosecutor), Mr. and Mrs. has not run s Greenbush police force. Aretakis Murphy v. Lynn Vill. of Mt. Kisco (citing Supp. 770, 778 (N.D.N.Y. 1983) 1982) & sort of prior judicial proceeding is the judicial proceeding sort of prior termination); prosecution. prosecution. prosecution. of his criminal favorable disposition of law for this Court, which we would find acco of law for this Court,

RFT , , 331 F.3d We have already We is a case that turns on 16 Part II.C.2), and in the Colon Colon v. City of New York Colon v. City of New , 488 F. Supp. 2d 172, 183 see supra , 37 N.Y.2d at 459. Under these , 331 F.3d at 72). , 136 F. Supp. 2d 71, 80 (N.D.N.Y. Savino v. City of New York Savino v. City of that “failure to make a further inquiry when a that “failure to make

. (citations omitted). . (citations omitted). Id because of the failure to establish the lack of of a criminal may be consistent with probable cause if the if cause probable with be consistent may of a criminal with false arrest, the existence of probable cause with false arrest, critical for Colon is that City of New York did not appeal on becomes Aretakis’s Waterloo on this cause of on this Waterloo Aretakis’s on becomes lack of probable cause.” 60 N.Y.2d 78, 82 (N.Y. Ct. App. Ct. (N.Y. lack of probable cause.” 60 N.Y.2d 78, 82 tence of probable cause is an absolute defense to tence of probable cause is an absolute cession that the arrest was made without probable cession that the arrest was made cause.” rse to the following: “[a] party may act with probable cause act with probable party may rse to the following: “[a] for a successful malicious prosecution claim. prosecution claim. for a successful malicious cause of action. Under this development, though cause of action. Under this development, ption of probable cause). Moreover, as we have found above, found have ption of probable cause). Moreover, as we see also Jennis v. Rood Broughton v. State -28- for the proposition Raymond v. Bunch tating that “the absence of probable cause is an essential tating that “the absence ble cause to arrest Aretakis ( , 439 F.3d 137 (2d Cir. 2006) (citing , 439 F.3d 137 (2d Savino v. City of New York fait d’complit , aim for malicious prosecution. prosecution. malicious for aim inter alia Colon v. City of New York , 250 F. Supp. 2d at 260. Much like dominoes, a failure to prove one element of a failure to prove one element dominoes, , 250 F. Supp. 2d at 260. Much like McClellan v. Smith Aretakis cites Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 28 of 68 of 28 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 16 . at 84 (noted to show that Colon did not rebut the presum determined that Defendants had proba determined is the analysis that finding final Donovan v. Briggs would create a question of fact in this case malice moot. is now probable cause, such an element regardless a valid arrest and a subsequent prosecution will not be rendered unlawful circumstances, a cause of action is the death knell for the entire a cause of action is the death knell action as well. The linchpin of Defendants’ challenge is Aretakis’s inability to prove the lack of challenge is Aretakis’s Defendants’ linchpin of action as well. The probable cause. (N.Y. Ct. App. 1983) (s 60 N.Y.2d 78, 82 As prosecution”). for malicious of a claim element a cl to defense is a complete omitted); 63, 72 (2d Cir. 2003) (citations accepting that three of the four elements have been adequately pled, a failure to show a lack of a lack show to a failure pled, adequately been have elements four the of three that accepting of the prosecuti the inception cause from probable 2001) (“[A]s with claims for false arrest, the exis 2001) (“[A]s with claims a cause prosecution.”); of action for malicious (N.D.N.Y. 2007) (citing, Id reasonable person would have done so may be evidence of reasonable person would have done so may is out of context because it is a conve quote 1983). But, the of fact as to the identity for a mistake even though mistaken, in good faith.” party acted reasonably under the circumstances identity whereas this case does not. However, what is more charge but neither was there a “con the false imprisonment probable cause is reviewed under the totality of the circumstances.

RFT Jocks Accordingly, 17 fraud. “Nor do variation ence. There is nothing , 60 N.Y.2d at 84. ., 124 F.3d 123, 130 (2d Cir. 1997). ., 124 F.3d 123, 130 (2d Cir. 1997). tion that Wells fabricated the evidence of the of the evidence fabricated Wells tion that proof or falsified evid proof or falsified . Rather, they appear to indicate only the witnesses’ lsefabricated and yet used it to prosecute and nvestigation does not constitute . ailed. Prevailing at trial does not connote in any ailed. Prevailing at trial does not nd Nugent knew that Wells’s version of the events nd Nugent knew that Wells’s Id ths in his testimony. Am. Compl. at ¶ 66; Aretakis Compl. Am. ths in his testimony. ecutor manufactured or fabricated evidence, thus ecutor manufactured -29- at ¶¶ 89-112. The Amended Complaint promulgates Complaint at ¶¶ 89-112. The Amended ions of the September 5, 2005 incident, which were 5, ions of the September Colon v. City of New York actured evidence cannot provide probable cause. actured evidence cannot provide Ricciuti v. N.Y.C. Trans. Auth ious prosecution and the corollary Fourth Amendment violation shall Fourth Amendment ious prosecution and the corollary , 316 F.3d at 138-39; Certainly i the failure to engage in a comprehensive Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 29 of 68 of 29 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 17 Aretakis’s first cause of action pleads intentional infliction of emotional distress against the emotional of action pleads intentional infliction cause of Aretakis’s first D. Intentional Infliction of Emotional Distress We are still required to address Aretakis’s asser to address are still required We Defendants, jointly and severally. Am. Compl. Compl. Defendants, jointly and severally. Am. dissipating the presence is required. of probable cause for the arrest. Much more the Plaintiff was and is a that Defendants’ intentional and outrageous conduct “was done because way that the investigating officer and the pros v. Tavernier But what we have here are two different vers version prev presented to the jury, and Aretakis’s of malic we find that the claims be dismissed. of the potential existence of malicious motives. motives. malicious existence of the potential of crimes of which Durivage and Nugent knew was of which Durivage and Nugent crimes fa untru that Durivage fabricated and told and him, that Durivage a presented to support the allegation or manuf agree that fabricated was a lie. We Aff. at ¶ 29. Other than these conclusory statements, nothing has been offered to establish that nothing has been offered to establish than these conclusory statements, Aff. at ¶ 29. Other is there anything presented evidence or even lied. Nor Durivage fabricated Aretakis’s to support deliberately manufactured postulation that Durivage differing perception of the incidents they observed.” in witnesses’ prove perjury [or suborning perjury] testimony

RFT , 107 . at ¶ 106. , 252 A.D.2d Id mplaints). “Liability mplaints). , 81 N.Y.2d at 122 (citing Roach v. Stern Nevin v. Citibank, N.A. pp. 1983). And, the alleged intentional infliction of emotional , 81 N.Y.2d 115, 121 (N.Y. Ct. App. d outrageous conduct includes filing d outrageous conduct to filter out trivial co outrageous in character, and so extreme in extreme outrageous in character, and so aintiff and lack any reasonable justification.” fficials in the Town and County infficials in the Town which the cause, or disregard of a substantial probability of cause, or disregard of a substantial -30- bout sexual abuse by clergy and abuse by clergy bout sexual stood up and has working for and with victims of abuse.” with victims working for and Howell v. New York Post Co., Inc. y disfavored under New York law, y disfavored under New York law, ., 58 N.Y.2d 293, 303 (N.Y. Ct. A . at ¶ 92. Some of the allege . at ¶ 92. Some ibed specific conduct as compared to other common law actions, to other common ibed specific conduct as compared ., 81 N.Y.2d at 122 (citation omitted); ., 81 N.Y.2d at 122 (citation omitted); Id Howell v. New York Post Co., Inc. , 762 F.2d 212, 220 (1985). Further, since Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 30 of 68 of 30 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case There are four elements to the cause of action for intentional infliction of emotional distress: emotional of intentional infliction action for to the cause of elements There are four person who advocated for, and complained a and complained advocated for, person who supported victims of clergy sexual abuse and has also made legitimate and accurate of legitimate criticisms made abuse and has also clergy sexual of victims supported officials, including elected o police and elected and reside.” Defendants work false and fabricated charges, suborning and committing perjury, retaliation, and “punishing the perjury, retaliation, charges, suborning and committing and fabricated false predators and or for Plaintiff for exposing and outrageous conduct; (ii) intent to “(i) extreme and injury; and (iv) distress; (iii) a causal connection between the conduct causing, severe emotional distress.” severe emotional 1993). This cause of action is highl conduct must be “intentionally directed at the pl conduct must Martin v. Citibank, N.A. distress does not have any proscr of last resort. Thus, it is often “[p]recluded where the offending it should be invoked as a matter F. Supp. 2d 333, 345 (S.D.N.Y. 2000), and proving it is strict, “rigorous and difficult to satisfy,” F. Supp. 2d 333, 345 (S.D.N.Y. Howell v. New York Post Co., Inc 1998) (the purpose is 488, 491 (N.Y. App. Div. 2d Dep’t Murphy v. Am. Home Prod. Corp degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly degree, as to go beyond all possible intolerable in a civilized community.” has been found only where the conduct has been so has been found only where the

RFT Murphy v. Am. Home Prods. onduct, without alleging more, be able to argue intentional infliction McIntyre v. Manhattan Ford, Lincoln- was appointed Special District Attorney, the “distinction between privileged and the “distinction between . at 125 (citing Id support a charge of intentional infliction of support a charge otional distress is implicit in [New York] cases otional distress is implicit McIntyre v. Manhattan Ford, Lincoln-Mercury, v. Manhattan Ford, McIntyre when Defendants acted within their legal rights. when Defendants acted within their . at 125-26. Because we have found the presence . at 125-26. Because we have found that Aretakis has neither stated nor proven a cause akis has pled other causes of action which provide akis has pled other Id ecution were privileged, thus, defeating a cause of ecution were privileged, thus, defeating r areas of law, Aretakis should be precluded from r areas of law, Aretakis gations in the complaint and even more conclusory even more and gations in the complaint -31- Dep’t 1998) (citations omitted). Dep’t 1998) st , false arrest, malicious prosecution, constitutional violations). violations). constitutional prosecution, malicious arrest, false , § 701, by New York State Justice James Canfield and continued § 701, by New York State Justice James i.e. , 81 N.Y.2d at 125. Privileged c , 81 N.Y.2d at 125. Privileged ., 256 A.D.2d at 270. Besides, a party should not ., 256 A.D.2d at 270. Besides, a party Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 31 of 68 of 31 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case As we noted above, on October 13, 2005, Nugent Aretakis that would does not provide facts E. Special Prosecutor Nugent and Absolute Immunity ., 58 N.Y.2d at 303, for the proposition that the at 303, for ., 58 N.Y.2d ., 256 A.D.2d 269, 270 (N.Y. App. Div. 1 App. Div. 269, 270 (N.Y. ., 256 A.D.2d pursuant to New York County Law Mercury, Inc especially as an “end run around a failed [] claim,” Howell York Post., Inc. v. New this theory. cannot be the basis of liability under pleading intentional infliction of emotional distress. emotional of pleading intentional infliction and his pros of probable cause, Aretakis’s arrest distress. emotional of intentional infliction action for Inc alle he offers mere distress. Instead, emotional Further, Aret in his opposing papers. statements distress ( for recovery of emotional Consequently, since is an overlap in othe there Corp conduct is embraced by a traditional tort remedy.” tort remedy.” by a traditional is embraced conduct nonprivileged conduct as it relates to infliction of em nonprivileged conduct as it relates Hence, we find and explicit in the Restatement”). distress. of action for intentional infliction of emotional

RFT , 147 F.3d 91, Spear v. Town of West Spear v. Town of , 509 U.S. 259, 273-74, dvocate for the State, are Smith v. Garretto , 72 N.Y.2d 212, 217 n.1 (N.Y. , 72 N.Y.2d 212, e intimately associated with the e intimately , 238 F.3d 145, 150 (2d Cir. 2001) aration for its presentation at trial or before aration for . Nugent denies seeking the appointment, but even. Nugent denies seeking the appointment, if after the Rensselaer County District Attorney recused Rensselaer County District the after tor in preparing for the initiation of judicial the initiation of tor in preparing for ust include the professional evaluation of the ust include the professional se of his role as an a le in the criminal process is initiated. The law process le in the criminal solute immunity is conferred upon prosecutors is conferred upon solute immunity Buckley v. Fitzsimmons Court “has identified ‘evaluating evidence and dvocacy functions are protected). The Supreme dvocacy functions are protected). a recommendation for an arrest on the qualified a recommendation -32- 42 U.S.C. § 1983 are entitled to absolute immunity 42 U.S.C. § 1983 are entitled to Parkinson v. Cozzolino Arteaga v. State of New York Arteaga v. State of prosecutorial duties that ar As a Special Prosecutor, Nugent asserts that he is entitled to that he is entitled Nugent asserts Prosecutor, As a Special 18 , 954 F.2d 63, 66 (2d Cir. 1991) (citations omitted) (extending absolute immunity to (2d Cir., 954 F.2d 63, 66 (extending absolute immunity (citations omitted) 1991) Aretakis raises that Nugent sought this appointment appointment this sought Aretakis raises that Nugent Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 32 of 68 of 32 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 18 Absolute immunity is limited to a “class of officials and functions.” and functions.” officials to a “class of is limited Absolute immunity 94 (2d Cir. 1998) (commenting that the Supreme that the Supreme 94 (2d Cir. 1998) (commenting the line, leaving ‘searching for side of on the absolute immunity interviewing witnesses’ as falling leadthe clues and corroboration’ that might to (internal quotation marks and citations omitted) (a and citations omitted) (internal quotation marks occur in the cour proceedings or for trial, and which absolute immunity.” entitled to the protections of acts undertaken “m & 280 (1993) (noting that those by the police and appropriate prep evidence assembled has been made”); a grand jury after a decision to seek an indictment as such until Aretakis’s acquittal. until Aretakis’s as such absolute immunity for his conduct in prosecuting Aretakis. in prosecuting for his conduct immunity absolute by a prosecu has stated that “acts undertaken Court Hartford a municipality); of executive branch As a generalCt. App. 1988). legal proposition, ab regarding the prosecutor’s ro when a civil complaint sued under is well-settled in that “prosecutors arising out for damages claims from process.” judicial phase of the criminal he did, such is not material to any discussion in this matter. he did, such is not material herself and Carmelo LaQuidera withdrew from his appointment LaQuidera withdrew from herself and Carmelo

RFT Kalina Oliva v. , 356 F.3d Buckley v. , _U.S._, 2009 WL 160430 , 45 F.3d 653, 661 (2d , 45 F.3d , 356 F.3d 495, 502 (2d Blouin v. Spitzer , 474 U.S. 193, 201 (1985) is not entitled to absolute immunity and absolute immunity is not entitled to Van de Kamp v. Goldstein , 484 U.S. 219, 229 (1988)). Thus, “[i]n , 484 U.S. 219, 229 (1988)). Thus, flows not from rank or title or location within flows not from s within his official capacity, is immune from s within his official capacity, is immune Hill v. City of New York Hill v. City Courts then must examine the “nature of the examine Courts then must r performs the investigative functions normally the investigative r performs

trial]; for example, evaluating and organizing example, for trial]; rs when performing traditional functions applied rs when performing Cleavinger v. Saxner bsolutely] immune for conduct in preparing for conduct in preparing for immune bsolutely] story and the public policy supporting a prosecutor’s absolute unity attaches whenever the questioned conduct bears on the on bears unity attaches whenever the questioned conduct -33- ourth or Fourteenth Amendment violations. ourth or Fourteenth Amendment jury”). Qualified immunity, on the other hand, will immunity, jury”). Qualified responsibilities of the individual official.” responsibilities of the individual Bernard v. County of Suffolk an investigative or administrative capacity. or administrative an investigative s, even remotely, to his quasi-judicial role. s, even remotely, r absolute immunity will attach. r absolute immunity

19 Forrester v. White , 509 U.S. at 273)); , 509 U.S. , 238 F.3d at 150. Buckley Parkinson

, 509 U.S. at 273-74 (holding that a prosecutor , 509 U.S. at 273-74 see also , 522 U.S. 118, 125 (1997) (“The policy considerations that justified the common-law The United States Supreme Court recently handed down The United States Supreme Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 33 of 68 of 33 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case The sum of it all is that a prosecutor, who act The sum 19 , 839 F.2d 37, 39 (2d Cir. 1988) (quoting , 839 F.2d 37, 39 (2d Cir. 1988) immunity, but reinforcing the principle that absolute imm reinforcing the principle but immunity, (U.S. Jan. 26, 2009), wherein they discussed not only the hi prosecutor’s exercise of legal knowledge and relate v. Fletcher to prosecuto decisions affording absolute immunity suits for malicious prosecution as well as any F prosecution suits for malicious Cir. 1995) (statingCir. 1995) “is also [a that the official immunity side” (quoting side” (quoting immunity [initiating a prosecution or presenting a case for or presenting a case for a prosecution [initiating at trial or to a grand evidence for presentation attach if the prosecutor is instead acting in the prosecutor is instead attach if Fitzsimmons “[w]hen a prosecuto immunity can receive qualified by a detective or police performed officer”); Cir. 2004); whethe in assessing performed” function 348, 357 (2d Cir. 2004) (quoting 348, 357 (2d Cir. 2004) (quoting Court follows the Supreme are covered by an extension of the immunity, which persons determining absolute immunity a functional approach, under which but from thethe Government, nature of the omitted)). (internal quotation marks Heller

RFT , 424 20 . , 424 F.3d 231, 238 under state law). The under state law). Imbler v. Pachtman Imbler v. seriatim e and investigatory, Aretakis has d Complaint, Nugent is concerned that Aretakis may Complaint, d e dispositive nature of absolute immunity in e dispositive nature of absolute immunity Durivage perjured himself. What is most What Durivage perjured himself. very clear that the v. Pachtman, in Imbler ed false testimony and suborned perjury. As a ed false testimony Shmuell v. City of New York Shmuell v. City of Nugent Mem. of Law Nugent Mem. at p. 8. We agree with Nugent that nd feathers these officials with these serious nd feathers these officials with that may shock but have no evidentiary intrinsic that may d to absolute immunity, denials notwithstanding. d to absolute immunity, t prosecution claims brought t prosecution claims mmunity would disserve the broader public would mmunity -34- and fearless performance of the prosecutor’s and fearless performance , 473 U.S. 159 (1985). onetary damages would be precluded by the Eleventh Amendment Eleventh the would be precluded by onetary damages e conduct of the same functions.”); functions.”); of the same e conduct of Nugent’s acts as administrativ Kentucky v. Graham enjoy at common law); law); enjoy at common , 424 U.S. at 427-28. Although we did not discern this with Aretakis’s Amende Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 34 of 68 of 34 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 20 does leave the genuinely wronged defendantdoes leave the against a without civil redress prosecutorBut the of liberty. him or dishonest action deprives whose malicious a prosecutor’s i alternative of qualifying interest. It would prevent the vigorous Aretakis emphatically states that Nugent us Aretakis emphatically duty that is essential to the proper functioning of the criminal justice system. functioning of the criminal duty that is essential to the proper an end run around th to perform In an attempt (2d Cir. 2005) (absolute immunity protects agains immunity (2d Cir. 2005) (absolute immunity it pellucidly clear that absolute Court made Supreme will discuss them allegations against Nugent. We leveled a plethora of allegation, Aretakis alleges that companion Officer Aretakis tarsperplexing is that, even though a Imbler v. Pachtman Nugent suborned perjury. was perjured or how what testimony allegations, he does not identify he has presentedWhat is a litany of conclusions this point Court made The United States Supreme U.S. 409, 427-28, 432 (1976) (confirming that a that prosecutor (confirming 427-28, 432 (1976) U.S. 409, absolute immunity the same receives he would under § 1983 that not all if this case by casting some Of course,meaning. Nugent and Durivage deny these conclusory allegations as specious. But it is clear that both Nugent and Durivage are entitle equally to statutory claims based on th based statutory claims equally to have sued him in his official capacity as well. Dkt. No. 53-13, have sued him of the United States Constitution. if he was sued in his official capacity, a recovery of m

RFT , 424 U.S. at 431 n.34); , 424 U.S. at 431 .Y. Apr. 30, 2007) (citing by the time he assumedby the time his to interviewing these witnesses Imbler v. Pachtman And, in this respect, Wells, who also has been And, in this respect, Wells, absolute immunity despite the allegations of his of despite the allegations absolute immunity io, the law of absolute immunity favors Nugent. io, the law of absolute immunity ssistant district attorney continued to prosecute a ssistant district attorney r trial. He avers that lute immunity, but he may be entitled to qualified but he may lute immunity, ed by the North Greenbush Police Department. Dkt. ed by the North Greenbush Police Department. -35- , 2007 WL 1288027, at *2 (N.D.N , 2007 WL , 509 U.S. at 273. Nugent admits , 509 U.S. at 273. Nugent admits fficer, is immune from liability under § 1983 for testifying falsely from fficer, is immune , 102 A.D.2d 925, 926 (N.Y. App. Div. 3d Dep’t 1984) (absolute 926 (N.Y. App. Div. 3d Dep’t , 102 A.D.2d 925, , 424 F.3d at 237 (quoting , 424 F.3d at 237 , 460 U.S. 325, 330-32 (1983)). , 460 U.S. at 330-32 (providing the history of witness immunity that was well the history of witness immunity , 460 U.S. at 330-32 (providing Buckley v. Fitzsimmons Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 35 of 68 of 35 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Linder v. New York State Police Similarly, when he Nugent acted in an investigatory manner Aretakis argues that interviewed Once again the United States Supreme Court instructs us that Once again the United States Supreme knowing use of perjured testimony and the perjured testimony knowing use of information.” deliberate withholding of exculpatory New York Shmuell v. City of of Colonie Johnson v. Town alleged that the a exists even when it is immunity of forgery). had not committed despite his personal knowledge that the plaintiff the crime matter o Additionally, Durivage, a police at trial. Briscoe v. LaHue for his testimony. is cloaked by absolute immunity testimony, accused of rendering perjurious Brisco v. LaHue as an acted Nugent If Mulino, and Mr. and Mrs. Wells. to the incident, Dave eye witnesses investigator, he would not be cloaked with abso immunity. but that he did so in preparation fo he proclaims had been investigat prosecutorial role the matter No. 53-7, Nugent Aff. at ¶¶ 7-9. Under this scenar prosecutor was absolutely immune from civil suits even where a civil complaint, much as Aretakis much a civil complaint, suits even where civil from immune was absolutely prosecutor 409. In 424 U.S. testimony. used false that the prosecutor fact, it is here, has a claim has done is also entitled to prosecutor law that “[a] seminal law). established in English common

RFT (continued...) His wife further posits have offered him a plea have offered him ] responded that defense be found within the second cause of action, albeit denies withholding plea negotiations from denies withholding plea negotiations Because of the nature of the charges and his Because of the nature of the charges emplation of dismissal. of dismissal. emplation ins that Nugent should the initiation of judicial proceedings or of judicial proceedings the initiation is opines that Nugent violated Aretakis’s due is opines that Nugent violated Aretakis’s ecution and the prior to trial, [he] had eliminated [Nugent], and Nia Cholakis, Mr. Aretakis’s then his role as an advocate for the State,his role as an advocate are smissal as a disposition as a disposition [D]uring of the case. . . . smissal conduct that Nugent should have offered Aretakis conduct that Nugent should have further discussion regarding a negotiated plea after discussion further upon opinions posited by his wife who served as upon opinions posited -36- entation of a witness’ testimony was entitled of a witness’ testimony entation gotiated disposition. [Nugent lly pronounces asa prosecutor’s ecumenical catechism lly pronounces asa prosecutor’s ecumenical is’s postulations, Nugent asseverates that an adjournment in contemplation of dismissal. of in She then stated: “Now dismissal. contemplation an adjournment , 424 U.S. at 272-73 (citations, alterations, and quotation marks omitted). marks (citations, alterations, and quotation , 424 U.S. at 272-73 Part II.F. Cholakis Aff. at ¶ 15. Nugent Cholakis Aff. at ¶ 15. Nugent 21 See infra but even if he did, it would be of little moment under these facts. under Engaging in plea of little moment but even if he did, it would be 22 A cause of action claiming a due process violation can A cause of action claiming Contrary to both Aretakis’s and Cholak Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 36 of 68 of 36 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case [a]s a matter of fact, during the pendency of the pros [a]s a matter prospect of an adjournment in contemplation of di in contemplation prospect of an adjournment in counsel had previously indicated that the defendant would only accept an adjournment Whereupon, defense counsel stated of dismissal. contemplation that had said was that what she defendant would only consider a pre-trial telephone conference between the Judge, attorney, the Judge raised the possibility of a ne 21 22 Next, Aretakis states, relying primarily relying primarily Next, Aretakis states, entitled to the protections of absolute immunity. Those acts must include the Those acts must immunity. absolute of entitled to the protections professional police and appropriate by the assembled evaluation of the evidence its presentation at trial[.] preparation for to absolute immunity because it was fairly within the prosecutor’s function as an as function prosecutor’s the within fairly it was because immunity absolute to have not retreated, . . . . We advocate however, acts principle that the from in preparing for by a prosecutor undertaken occur in the course of for trial, and which an out-of court effort to control the pres court effort to control an out-of that conference. my client wants his day in court.” There was no was There client wants his day in court.” my barely stated. that in all of her years as a judge and as a lawyer she has never seen a matter such as this prosecuted as a lawyer she has never seen a matter that in all of her years as a judge and additiona to the fullest extent of the law, and prosecutorial as to what would constitute proper such a plea Failing to due so, Cholak agreement. process rights. disposition that encompassed an adjournment in cont an adjournment disposition that encompassed Aretakis, town justice that Nugent matters, and criminal a legal expert on these types of holds herself as a plea negotiation. violated his rights by not offering credentials, Aretakis compla crime-free impeccably Buckley v. Fitzsimmons

RFT , Taylor v. Kavanagh ons, “regardless of any , 81 F.3d at 1210. But, , 81 F.3d at 1210. Cholakis Aff. at ¶¶ 15, 16, & 19- on-making merits the protection of the merits on-making See , 52 F.3d 1139 (2d Cir. 1995) (finding , 52 F.3d 1139 (2d , Aretakis Dep. However, absolute Doe v. Phillips , _U.S._, 2009 WL 160430 (U.S. Jan. 26, , _U.S._, 2009 WL clear that whether the prosecutor acts within covered by absolute immunity). Such a legal immunity). covered by absolute , 356 F.3d 495, 502 (2d Cir. 2004). , 356 F.3d 495, 502 (2d Cir. 2004). his quasi-judicial functi prosecutor’s role, he has a safe harbor within the nvolved in both an out-of court and within-court nvolved in both an out-of court and Cholakis refuted Nugent’s sworn statement. ecutor. Accordingly, when a prosecutor acts or a prosecutor Accordingly, when ecutor. on “because the negotiation of a plea bargain is an on “because the negotiation ppears that Aretakis, by pleading a conspiracy, is see generally -37- r attempting to earn a conviction against a high profile r attempting , 81 F.3d 1204, 1210 (2d Cir. 1996) (citing , 81 F.3d 1204, 1210 Pinaud v. County of Suffolk Pinaud v. County tion as a judicial officer.” tion as a judicial Van de Kamp v. Goldstein ng with the Catholic Church. ext of plea bargaining, his decisi bargaining, his ext of plea Bernard v. County of Suffolk Doe v. Phillips (...continued) Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 37 of 68 of 37 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case When given the opportunity, neither Aretakis nor There is also an allusion that Nugent was i There is also an allusion that Nugent 22 immunity shields a prosecutor in the performance of shields a prosecutor in the performance immunity political motivation.” 24; Aretakis Aff. at ¶¶ 31, 32, 36, & 60-62; 24; Aretakis Aff. at ¶¶ 31, 32, Since there is a conspiracy cause of his constitutional rights. conspiracy to deprive Aretakis of it a Complaint, action pled within the Amended around the absolute Circuit, resting upon But, the Second to maneuver attempting immunity. evidently Court precedents, once again, made Supreme as long as it a part of his or outside the courtroom, confines of absolute immunity. declines to act within the cont to act within the declines absolute immunity. (2d Cir. 1981)); 640 F.2d 450, 453 is action regarding plea agreements that prosecutor’s motivati the matter in effect no privilege remains jurisdic act within a prosecutor’s for political Aretakis contends that Nugent sought to prosecute him speaking of ill motivations, or to gain a feather in his cap fo advancement, lawyer, or, to burnish his standi bargaining is a discretionarybargaining function of a pros Dkt. No. 53-7, Nugent Aff. at ¶ 13.

RFT . We had a short . We Id ed on behalf of Nugent , 821 F.2d 133, 139 (2d Cir. , 821 F.2d . at p. 4. Since the trial was Id Dkt. No. 68-4, Ex. A, Judge Toomey See er effect than an allegation that it was done in er effect than an Aretakis assails Nugent for an “extraordinary Aretakis assails on his behalf.” Aretakis Aff. at ¶¶ 33-34. But on his behalf.” Aretakis Aff. at ¶¶ Dorman v. Higgins Dorman al any scrutiny of his motives, an allegation that an allegation of his motives, al any scrutiny s not deny his lawyer act criminal case commenced on that Thursday and case commenced criminal ith Attorney Roche’s son, but had only infrequent ith Attorney Roche’s son, but had che’s call, the two exchanged pleasantries and then che’s call, the two exchanged pleasantries che, Esq., had called him at home on Saturday, June at home che, Esq., had called him -38- e . . . . I offered nothing further. nothing further. e . . . . I offered h defeats a claim of absolute immunity.”). h defeats a claim Aretakis Aff. at ¶ 33. Aretakis boldly submits that Nugent had 33. Aretakis boldly submits Aretakis Aff. at ¶ , 52 F.3d at 1148; , 52 F.3d Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 38 of 68 of 38 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Lastly, which is extraordinary in and of itself, extraordinary in and of Lastly, which is On June 7, 2006, while the criminal trial was pending, the Trial Judge, the Honorable Paul trial was pending, the Trial Judge, On June 7, 2006, while the criminal Pinaud v. County of Suffolk Pinaud v. . Apparently, Judge Toomey went to school w . Apparently, Judge Toomey rd contact with Attorney Roche. Upon returning Ro contact with Attorney Roche. Upon Roche said that he had meaning a client who had a case pending before the Town of Sand Lake, earlier that week. “Mr. Roche wascommenced which possibly had Judge Toomey, concerned whether he was, if he was going to an area that I could go into.” that Aretakis’s told Roche public, Judge Toomey the People rested its case. This telephone call appeared to have been rather abbreviated: “Mr. the cas about further asked nothing Roche 2009); bad faith or with malice, neither of whic neither malice, bad faith or with 1987) (“[S]ince absolute immunity spares the offici spares immunity absolute 1987) (“[S]ince pursuant to a conspiracy has no great an act was done and illegality.” act of malfeasance a fair have the Judge deny him to and attempt Robert Roche, call the Trial Judge his private counsel, trial. than this provocative allegation with nothing more at ¶ 35. Supporting Compl. Am. that “Nugent doe convoluted logic, Aretakis posits and Nugent does not address this illegal act enacted and Nugent does not address this infer. telling than what Aretakis may the record is more Trial R., dated June 7, 2006. Ro placed on the record that Robert G. Toomey, 3

RFT . at p. 8. Id Judge Toomey Id. ¶ 3. As it appears, on . at p. 9. Id rd, Aretakis identifiedrd, Aretakis Mr. as Roche . at p. 6. The call raised some concerns raised some . at p. 6. The call Id ffidavit, does Aretakis demonstrate any proof ffidavit, does Aretakis demonstrate rt of his statement to the court, Aretakis stated rt of his statement of this unsubstantiated reliance, this complaint ith a Summons with Notice, regarding a former ith a Summons ristian Brothers Academy, and that was the end and that Academy, ristian Brothers ff., dated June 12, 2008, at ask Mr. Roche to make any telephone call on his any telephone ask Mr. Roche to make ugent’s insurance carrier, who hired Roche’s law ugent’s insurance carrier, who hired was notified of the appointment nearly a week after was notified of the appointment -39- s knowledge, Attorney Roche was not at the time his not at the time s knowledge, Attorney Roche was Mr. Roche make any negative connotation about me Mr. Roche make spoke with Scott Bush, Roche’s law partner, who was ]ou disclosed that, and I appreciate that.” ]ou disclosed that, and I appreciate th the benefit of the doubt, once again, Nugent would be he Court [had] fully disclosed things.” he Court [had] fully . at p. 7. Then Judge Toomey invited Aretakis to make any to make invited Aretakis Toomey . at p. 7. Then Judge Id . at ¶¶ 9-12. Id . After the Judge spoke, on the reco Judge spoke, . After the Id Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 39 of 68 of 39 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Neither in his Amended Complaint nor his A Complaint Neither in his Amended In his defense, Nugent says that he did not In his defense, Nugent says that he assigned to represent Nugent. fail. Yet, if we were tomust give Aretakis that Nugent actually asked Roche to make thatthat Nugent actually asked Roche to make telephoneupon a naked, call. Instead, he relies that Nugent did and, because unreliable assumption of that conversation.” of that conversation.” area.” involved in this clergy sexual abuse adversary “my conversation about his son, my classmate from Ch from classmate my about his son, conversation for everyone but Aretakis realized that “t for everyone but reiterated, “[Roche] never asked me to go beyond that. I never offered to go beyond that, and that offered to go beyond that, and to go beyond that. I never never asked me reiterated, “[Roche] conversation[.]” was the end of the “Did Later, on the record, Aretakis inquired, served Nugent w May 31, 2006, Aretakis personally was faxed to N client of Nugent. The Summons Nugent to represent Nugent on this matter. firm 12 telephone call and, on June the infamous argument, motion or statement that he liked. As a pa or statement motion argument, [and]that “the Court acted appropriately [y To which the Court replied, “[n]one whatsoever.” or towards me?” attorney. Dkt. No. 68-4, Timothy Nugent, Esq., A attorney. Dkt. No. 68-4, Timothy behalf to Judge Toomey, and, to the best of hi behalf to Judge Toomey,

RFT . at ¶ 114. Id , 424 U.S. at 427- ss against a prosecutor ss against of action, we are treated , 821 F.2d at 139 (ruling that , 821 F.2d at 139 Imbler v. Pachtman . The cause of action begins with all of the action begins with all of . The cause of without civil redre without ailable to such an aggrieved party is the filing ailable to such an ich caused this Court tremendous difficulty to ich caused this Court tremendous licious bad faith to injure a person, then claim of the Civil Rights Act of 1964 based on his of the Civil Rights Act of 1964 ity. As we may remind the parties, absolute the parties, remind we may ity. As t right to equal protection was violated: “If an al capacity, defeats absolute immunity). Further absolute immunity). al capacity, defeats Dorman v. Higgins one well defined cause nd that Aretakis also complains that Defendants’ also complains nd that Aretakis -40- and in violation of 42 U.S.C. § 1983.” nd complaints. Because of the number of purported Because of the number nd complaints. at ¶¶ 117-18. Continuing still, there appears to be an Id. tion deprives him of liberty. tion deprives him Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 40 of 68 of 40 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case This is a peculiarly pled cause of action, wh This is a peculiarly pled cause of F. Second Cause of Action But reading further into this cause action, we fi into this cause action, we reading further But due process. actions clearly denied him religion, his work and his outspoken criticisms consideration such as religion or to individual is selectively treated based on an impermissible punish in the exercise of constitutional rights or ma decipher. Am. Compl. at ¶¶ 113-35. Rather than Compl. decipher. Am. togetherto a lumped series of allegations a to serve as a believe that the Second Cause of Action was meant violations listed, we are lead to violations law and constitutional common cornucopia of and liable for “violation of Plaintiff’s First Amendment Defendants being jointly and severally and Title VII Constitutional rights of free speech allegation that Aretakis’s Fourteenth Amendmen immunity may leave a genuinely wronged defendant a genuinely wronged leave may immunity shielded from civil liability by absolute immun by absolute civil liability from shielded whose malicious or dishonest ac whose malicious 28 (further noting that the only remedy that may be av that may noting that the only remedy 28 (further charges against an errant prosecutor); of criminal while done in his offici or malice, neither bad faith compromising Aretakis’s position on this event is the simple notion that Aretakis was neither notion that position on this event is the simple Aretakis’s compromising trial. his acquittal after in light of prejudiced nor damaged

RFT employment We are confounded as to We 23 employer. With that essential With employer. on is “based on the Plaintiff’s class on the Plaintiff’s on is “based . at ¶¶ 126-28. tion, it is pled that Nugent and Durivage tion, it is pled that Id II of the Civil Rights Act of 1964. 42 U.S.C. II of the Civil Rights Act of 1964. a) (other unlawful employment practices)). a) (other unlawful employment abuse and . . . a Catholic . . . [and] not being , 548 U.S. 53, 56 (2006) (citing 42 U.S.C. § , 548 U.S. 53, 56 (2006) (citing against Catholic priests and the Plaintiff is not against Catholic mination against an employee or job applicant. against an employee mination lls, Nugent, Durivage, the Catholic Church, the Church’s ¶¶ 77, 104, 112, & 126-28; Aretakis Aff. at pp. 9-11 & 31. scrimination based on race, color, religion, sex, or scrimination hould be addressed first. We will begin with Title first. We hould be addressed -41- ork of this litigation, a Title VII action has not been properly at any of the Defendants was his “Defendants acted jointly and severally,” we may reasonably infer that the “Defendants acted jointly and severally,” we may . at ¶ 120. Allegedly, the discriminati Allegedly, the . at ¶ 120. Santa Fe Ry. Co. v. White

Id 1. Title VII of the Civil Rights Act of 1964 1. Title VII of the Civil Rights Act at ¶¶ in this cause of ac 133-34. Later Id. Although there is no specifically delineated cause of action for conspiracy, the Amended Although there is no specifically delineated cause of action for conspiracy, the does Complaint Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 41 of 68 of 41 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 23 For unknown reasons, Aretakis cites to Title V For unknown reasons, Aretakis cites § 2000e. Even the Defendants are befuddled as to whether this is§ 2000e. Even the Defendants are considered a separate cause of in the context of this case. something reference actually means action or even how this statutory of of the law for the purpose of identifying his claims Possibly, Aretakis cites to this provision unlawful as Title VII forbids inasmuch actions. Such a citation is misplaced retaliatory di such as employment practices by an employer, based upon discri national origin and/or retaliation Northern and Burlington VII. of being an advocate of victims of childhood sexual of childhood sexual victims an advocate of of being attorney opposing and filing actions because he is an Catholic.” constitutional rights. his of him conspired to deprive of action takes priority or s which of these causes 2000e-2(a) (unlawful employment practices) and 3( Here, Aretakis has pled no facts th within the missing framewelement for this violation exists.” this violation for periodically mention that a conspiracy existed between We periodically mention at Compl. attorney, and the Town of North Greenbush. Am. If we also include the prefatory prose, include a cause of action for conspiracy. intended to Complaint Amended

RFT eventually , the plaintiff alleged, Procedurally, he was Albright licious prosecution also amount to a violation licious prosecution also amount claim has been correctly pled in this case. Are has been correctly pled claim ted a denial of due process as Aretakis’s wife of his liberty interest to be free from criminal from his liberty interest to be free of for guidance. In tion 1 of the Fourteenth Amendment states that Amendment tion 1 of the Fourteenth

he was denied Due Process under the Fourteenth he was denied Due received full due process. sted and had to endure a trial creates the denial of sted and had to endure or property, without due process of law. Yet, we or property, without s under the Fourteenth Amendment. In this respect s under the Fourteenth Amendment. -42- deprived him of substantive due process under the of deprived him Asking this question rhetorically belies the viability Asking this question rhetorically ss section of the community, allowed to present proof allowed to present ss section of the community, red is presented in the Amended Complaint and all of Complaint red is presented in the Amended presumably this claim is yet another vain grasp at the proposition that is yet another vain grasp at the proposition this claim presumably , 510 U.S. 266 (1994), 2. Due Process Pursuant to the Fourteenth Amendment to the Fourteenth Pursuant 2. Due Process . Obviously, his procedural due process rights were fully exploited. Albright v. Oliver Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 42 of 68 of 42 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Next we address Aretakis’s complaint that Aretakis’s complaint Next we address of false arrest and ma Maybe Aretakis’s claims Amendment of the United States Constitution. Sec of the United States Constitution. Amendment deprive a person of life, liberty, a state shall not as to how a due process determining are bedeviled in that the fact that Aretakis was arre we to presume process? either procedural or substantive due In this context, of the claim. constituNugent’s failure to offer a plea disposition rest assu proffers. If there is fact that we can it is that Aretakis submissions, the other motion given an opportunity to file of the charges against him, represented by counsel, given notice appropriate by cross examining had an opportunity to challenge the proof against him motions, of a fair cro witnesses before a jury comprised a jury deliberated and importantly, case, and, most in support of his version of the acquitted him of his substantive or procedural due process right we turn to arrest, that the defendant in addition to false Fourteenth was deprived – that is, he Amendment pled.

RFT Part II.C. rt of substantive due substantive rt of 1997) (“[D]eprivations See supra and chilling [his] First and chilling [his] , even though the courts found no the courts , even though s an infringement of his First Amendment s an infringement nded Complaint, Aretakis states that the Aretakis states nded Complaint, Albright endure a criminal prosecution, those pretrial endure a criminal that a constitutional to that a constitutional ourt noted that it is the Fourth Amendment and is the Fourth Amendment ourt noted that it he effect of abridging he effect of process rights were subsumed into the Fourth process rights were subsumed strategy to silence and chill his speech and that already determined that there was no Fourth already determined nth causes of action. Am. Compl. at ¶¶ 114, 116, Compl. nth causes of action. Am. , 118 F.3d 938, 945 (2d Cir. , 118 F.3d 938, 945 -43- . at 269 (citation and internal. at 269 (citation Rather than omitted). quotation marks Id see also Murphy v. Lynn see also Murphy 3. First Amendment Rights 3. First Amendment . at 271-72; Id Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 43 of 68 of 43 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Speaking of anomalistic pleading, Aretakis plead pleading, Aretakis Speaking of anomalistic Accepting that Aretakis was arrested and had to Accepting that Aretakis was arrested they essentially joined forces with the Catholic Church to abridge his rights under the First they essentially joined forces with the Catholic Church to abridge “t His arrest and prosecution had Amendment. Right of free speech in both the second and seve 132, & 183-87. As an iteration throughout the Ame Defendants were aware of the Catholic Church’s prosecution exceptprosecution Except in probable cause. upon not substantive due process which is the applicable constitutional right affronted in these types of constitutional right affronted process which is the applicable not substantive due matters. probable cause, the Supreme Court would not hold would not hold Court cause, the Supreme probable other or some by incarceration, loss of employment, unless “accompanied process was present palpable consequence.” C of due process, the Supreme expand the concept of liberty that go hand in hand with criminal prosecutions have Fourth Amendment relevance.”) have Fourth Amendment prosecutions criminal of liberty that go hand in hand with and citations omitted)). (internal quotation marks deprivations of liberty and other substantive due suffered All other listed injuries, quite frankly, are damages of a by the deprivation Amendment. right. However,Fourth Amendment we have any substantive due violation in light of the presence of probable cause, accordingly Amendment have also been resolved. Amendment process rights under the Fourteenth

RFT . Id Gill , 153 Mozzochi v. , inter alia status, there are varying compare with Morrison v. Connell v. Signoracci has an interest protected by has an interest protected .; Id , 63 F.3d 110, 120 (2d Cir. 1995). ee does not have to show actual chill); nts with effective assistance of counsel.” of counsel.” effective assistance nts with , 268 F.3d at 73 (citing, lsely for nine month[s] actually chilled [his] free [his] actually chilled month[s] nine lsely for obable cause, an inquiry into Defendants’ motive obable cause, an inquiry into Defendants’ motivated or substantially caused by his exercise or motivated Further, as a private citizen, Aretakis would have onetheless, because we have already found that onetheless, because we have already sexual abuse cases [he] was handling duringsexual abuse cases this -44- ting that, based upon party’s he was arrested for harassment and petty larceny, not he was arrested for harassment a plaintiff must prove (1) he prove a plaintiff must e arrest and prosecution of him were caused or motivated by his were caused or motivated e arrest and prosecution of him , 268 F.3d 65, 73 (2d Cir. 2001) (citing , 268 F.3d 65, 73 (2d Cir. 2001) Curley v. Vill. of Suffern Singer v. Fulton County Sheriff , 389 F.3d 379 (2d Cir. 2004) (no , 429 F.3d 48 (2d Cir. 2005) (a public employ Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 44 of 68 of 44 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case To prevail on a free speech claim, To prevail on a free citizens American right, as all free agree that Aretakis has a protected First Amendment We , 959 F.2d 1174, 1179-80 (2d Cir. 1992). Curley v. Vill. of Suffern v. Pidlypchak Amendment freedom of speech and providing his clie speech and providing of freedom Amendment “need not be undertaken.” Borden rights were actually chilled. to establish that his First Amendment Johnson Aretakis was arrested and prosecuted based upon pr at ¶ 132. In opposition to the Summary Judgment Motions, Aretakis further states that “[b]eing states that further Aretakis Motions, Judgment to the Summary In opposition at ¶ 132. and prosecuted fa manner, profile arrested in a high as was [his] during this time any speeches make for [his] clients. [He] did not speech and advocacy lowered the profile of clergy and [he] custom, Aff. at ¶ 19. Aretakis time.” actions were (2) defendants' the First Amendment; First Amendment his actions effectively chilled the exercise of that right; and (3) defendants’ of right. Aretakis has failed to allege sufficient particularityF.3d 74, 79 (2d Cir. 1998)). Here, to support each of these elements. enjoy, but he cannot show that th show that exercise of that right. The records rights. N for exercising his First Amendment

RFT he has failed to state a ituation as the plaintiff his equal protection rights under , 408 U.S. 1, 13-14 (1972). At best, Aretakis , 408 U.S. 1, 13-14 reed to selectively enforce and seek to ong to or have assisted the Church, and nds himself in the same s in the same nds himself ndment violation and thus ndment the Second Circuit noted that, notwithstanding the the Second Circuit noted that, notwithstanding he made a token effort in his campaign. But, in token effort in his campaign. a he made antagonist and critic against the Catholic nts’ conduct actually chilled him from speaking on from chilled him nts’ conduct actually being an advocate of victims of childhoodbeing an advocate of victims sexual how an actual chill, there must be proof of a change of proof be must chill, there how an actual potential jury pool. Aretakis Aff. at ¶¶ 19-20. This potential jury pool. -45- speaking while the criminal prosecution was pending prosecution criminal speaking while the , the plaintiff was running for office. He claimed that He claimed , the plaintiff was running for office. his Laird v. Tatum action, Aretakis claims that action, Aretakis claims , 268 F.3d at 73, because a subjective chill cannot serve as a cannot serve a subjective chill at 73, because , 268 F.3d . at ¶¶ 133-34. In his Memorandum of Law, Aretakis further . at ¶¶ 133-34. In his Memorandum Id Curley . In 4. Equal Protection of the Law Curley v. Vill. of Suffern of Vill. v. Curley Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 45 of 68 of 45 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Also within the Second cause of [P]ursuant to a conspiracy, Defendants ag prosecute Plaintiff because he was an because he was prosecute Plaintiff Church as well as public officials who bel of clergy sexual abuse. . . . It is because he was the leader and attorney for victims Curley v. Vill. of Suffern extrapolates on his contention: in behavior, in behavior, objective harm, a specific substitute for deterred from temporally asserts that he was want to raise his profile to a because he did not that Defenda support the claim is insufficient to pleased. In actually, Aretakis fi any issue that he he was selectively treated differently on as inasmuch were violated the Fourteenth Amendment at ¶ 120. He continues by contending that Compl. considerations of religion. Am. impermissible because of his “class of he was discriminated abuse and not being Catholic.” line of first amendment standards). In order to s In order standards). amendment first line of arrest demoralized him toarrest demoralized such an extent that in chilled, recognizing that he had not been actually office. 268 F.3d at 73. In the final analysis, Aretakis cannot arrest, he still chose to run for public for a First Ame prove two of the salient elements cause of action.

RFT , , 397 U.S. 471, LeClair v. Sanders t inequitable treatment. t inequitable treatment. s to support that he was Dandridge v. Williams , 863 F.2d 205, 216 (2d Cir. 1988) (quoting , 863 F.2d 205, 216 on of a coincidence. He is unable to show that Nor are there any fact He cannot establish that he was prosecuted cerned with classes and groups)). To establish cerned with classes and groups)). , compared with others similarly situated, was with others similarly , compared on against an attorney with a spotless an attorney with on against the exercise of constitutional rights, or malicious the exercise of constitutional rights, ., 473 U.S. 432, 439 (1985)). As a general rule, the ., 473 U.S. 432, 439 Although Aretakis may have pled the magic words, have pled the magic Although Aretakis may nd fundamental rights agains rights nd fundamental -46- Defendant discriminated against him because he was against him Defendant discriminated , 394 F.3d 82, 86 (2d Cir. 2005). The mere failure to The mere , 394 F.3d 82, 86 (2d Cir. 2005). for finding a denial of equal protection. for finding a denial of equal protection. Brady v. Town of Colchester Brady v. Town of Bizzarro v. Miranda Bizzarro , 627 F.2d 606, 611 (2d Cir. 1980) (citing , 627 F.2d 606, 611 Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 46 of 68 of 46 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case criminal record to have occurred. record to have criminal that all clause “is essentially a direction The equal protection situated persons similarly not a coincidence for a frivolous for a not a coincidence prosecuti What we have here is a failure of proof. we have What Dkt. No. 62-6, Aretakis Mem. of Law at p. 28. Mem. 62-6, Aretakis Dkt. No. alike.” should be treated LeClair v. Saunders con is primarily 487 (1970) (equal protection clause show that must selective prosecution, a plaintiff he consideration on an impermissible was based selective treatment selectively treated and that such or punish such as race, religion, intent to inhibit intent to injure him. City of Cleburne v. Cleburne Living Center, Inc City of Cleburne clause protects suspect classes a equal protection basis prosecute other offenders is not a 627 F.2d at 608. there is nothing in the record to show that any there is nothing in the record to show advocates, may or petty larceny because they were others have not been prosecuted for harassment have been critics of the Church, or non-Catholics. because he exercised any of his constitutional rights. an advocate on behalf of victims of clergy sexual abuse, a critic of the Catholic Church, or the Catholic clergy sexual abuse, a critic of of victims of an advocate on behalf personally non-Catholic. He is proceeding on the noti selectively treated based upon impermissible consideration or malice. Actually this claim defies Actually this claim consideration or malice. selectively treated based upon impermissible

RFT a theory of , 48 F.3d 674 (2d Cir. 1995) note 23. , 189 F.3d 460 (2d Cir. 1999) , 189 F.3d 460 (2d d the presence of See supra jointly as a maladroit effort to plead a conspiracy. effort to plead a conspiracy. a maladroit as jointly ause is very difficult and a rather rare occurrence. fendants conspired their (1) to conceal exists. The facts are insufficient to support an exists. The facts e cases cited by Aretakis did not find selective treatment. e juror would conclude that Aretakis could prove e juror would conclude ges (¶127). Extrapolating further on the claim of on the claim ges (¶127). Extrapolating further e treatment has a rather limited history and a thin roster of has a rather limited e treatment rinkled throughout the Amended Complaint. Am. Complaint. rinkled throughout the Amended Amendment right was not because of the presence not because of the right was Amendment onal rights and conduct a cover-up (¶ 126), and (4) onal rights and conduct a cover-up -47- ngly few cases” and “equal protection does not require that all that require ngly few cases” and “equal protection does not rd, how can Aretakis’s Fourteenth Amendment right Amendment Aretakis’s Fourteenth rd, how can see also Zahra v. Town of Southold of Town see also Zahra v. onspiracy to violate Aretakis’s constitutional rights is not onspiracy to violate Aretakis’s constitutional We have already mentione have already We , 863 F.2d 205, 216 (2d Cir. 1988). 25 , 627 F.2d 606, 608 (2d Cir. 1980) (selective enforcement or treatment is a “murky treatment or enforcement , 627 F.2d 606, 608 (2d Cir. 1980) (selective Garden City Ctr. Assoc. v. Inc. Vill. of Garden City Garden City Ctr.

24 5. Conspiracy LeClair v. Sanders

; Brady v. Town of Colchester See We also construe multiple iterations that Defendants acted We multiple also construe Proving selective treatment under the equal protection cl Proving selective treatment note 23. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 47 of 68 of 47 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case The Amended Complaint states that the De Complaint The Amended 25 24 A cause of action pleading a c A cause of See supra misconduct (¶ 104), (2) to have Aretakis investigated on false charges and made false claim against claim false to have Aretakis investigated on false charges and made (¶ 104), (2) misconduct of his constituti (3) to deprive him (¶ 112), him and suborn perjury and fabricated char to submit a conspiracy, Aretakis argues that the Defendants and possibly others like the police and the conspiracy so this would be a good moment to discuss it now. moment conspiracy so this would be a good deposited within a single cause of action but sp deposited within a single cause of to equal protection be violated when his Fourth when his protection be violated to equal had a legal basis to and Nugent of probable cause? basis to arrest him Durivage had a legal for selective treatment thus no basis prosecute him, on any basis and no reasonabl intent to discriminate these allegations. (unpublished opinion). 104, 112, 126, & 127. at ¶¶ Compl. legal logic. Under the facts as found in the reco as found in the Under the facts legal logic. (claim denied) (claim We note that the actual findings by the Second Circuit in thos in Circuit WeSecond note that the actual findings by the In fact, the Circuit noted that the legal theory of selectiv precedents. corner of equal protection law in which there are surprisi of corner genus be eradicated or none at all”); evils of the same

RFT , 731 , 985 F.2d 94, Taylor v. Hansen concert to inflict an concert to inflict ghts. Aretakis Mem. of Mem. ghts. Aretakis Spear v. [Town of West Dwares v. City of New York show: (1) an agreement between two or more show: (1) an agreement sis begins with his arch nemesis the Catholic Church. sis begins with his arch nemesis e entity; (2) to act in (2) to entity; e se and expansive allegations are insufficient, se and expansive allegations are us, or ulterior motive against [him].” Aretakis against [him].” us, or ulterior motive a conspiracy to deprive the plaintiff of his that the private entity acted in concert te him and violate his ri te him s of the conspiracy - the Catholic Church and Attorney Catholic Church has been filing fallacious complaints and Catholic Church has been filing fallacious complaints following the Church’s direction WellsChurch’s created a scene with the following tilize the criminal courts to “gain an advantage or courts to “gain an advantage tilize the criminal on a section 1983 conspiracy theory, the the Church had its agent, Attorney Michael Costello, to hire that Durivage and Nugent utilized Wells’s criminal Nugent utilized Wells’s that Durivage and -48- and Defendant Town, Durivage, Nugent, and possibly the Town the possibly and and Defendant Town, Durivage, Nugent, , 507 U.S. 163, 164 (1993). Dkt. No. 53, AretakisDkt. No. Dep. Aretakis In this claim, supporting his rights and maliciously Ironically and peculiarly absent as prosecute him. , 200 F.3d 65, 72 (2d Cir. 1999) (citations omitted); omitted); , 200 F.3d 65, 72 (2d Cir. 1999) (citations 26 overruled on other grounds by Leatherman v. Tarrantoverruled on other grounds by County Narcotics see generally see generally , 954 F.2d [63], 68 [2d Cir. 2002]. Put differently, a private actor acts Aretakis contends that the alleged conspiracy’s gene Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 48 of 68 of 48 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case with the state actor to commit an unconstitutional act. an unconstitutional with the state actor to commit To state a claim against a private entity To state a claim demonstrating allege facts must complaint Hartford] 26 “To prove a § 1983 conspiracy, a plaintiff must conspiracy, a plaintiff must “To prove a § 1983 Intelligence and Coordination Unit unconstitutional injury; causing damages.” and (3) an overt act done in furtherance of that goal Pangburn v. Culbertson containing Complaints F. Supp. 72, 78 (N.D.N.Y. 1990). or general only conclusory, vague, have engaged in allegations that the defendants “Diffu dismissed. constitutional rights are properly instances of misconduct.” by specific unless amplified 100 (2d Cir.1993), state actors or between a state actor and a privat state actors or between a state Law at pp. 24-27; Law at pp. own bias, anim “to advance or pursue their complaint of Law at p. 26. Mem. Catholic Church, conspired to maliciously prosecu to maliciously Church, conspired Catholic contends that the Catholic Church attempted to u Catholic Church attempted contends that the and actions against him in their civil injure” him Wells, a process server, with the purpose of setting him up; him Wells,setting a process server, with the purpose of charges against him; the intent of filing bogus criminal Presented in a linear fashion, Aretakis postulates that the in this instant scenario, for years; him against allegations Justice, joined the cabal, to violate Defendants in this lawsuit are the purported chief architect Michael Costello.

RFT . at p. Id San Filippo v. ndlin ruled in that fashion. ndlin ruled in that state actor, and, standing in order to prove a § 1983 in order to prove (internal quotation marks (internal quotation ould he act under the color , 383 U.S. 787, 794, 86 , 383 U.S. , 398 U.S. 144, 152, 90 S.Ct. , 398 U.S. , 731 F. Supp. at 75-76 (witness who , 731 F. Supp. at 75-76 (witness st be acting under the color of state law. st be acting under the color of state ., 737 F.2d 246, 254 (2d Cir. 1984) (citing ., 737 F.2d 246, 254 (2d Cir. 1984) Scheindlin before being transferred to this District, conclusory allegation that a private allegation that conclusory theory. Dkt. No. 50-4, Wells Mem. of Law at p. 3-4. of Law theory. Dkt. No. 50-4, Wells Mem. requires us to address Wells’s argument that argument Wells’s requires us to address riad of independently stated constitutional is a willful participant in joint activity participant in is a willful Inc , part that the “[c]lerk of the court is therefore directed to respect to federal claims and that the Amended Complaint the Amended and that respect to federal claims Supplemental to this finding we note that Wells, to this finding we Supplemental under color of state law and either “collaborated under color of state Wells’s position that Judge Schei a conspiracy, private actors can be implicated into a conspiracy, private actors can be implicated , by the law of the case doctrine. However, we are unable to the case doctrine. of , by the law New York and to outstanding motions close this case and all -49- not a public official nor c or does not suffice to state a § 1983 claim proposition Wells is not a proposition Wells United States v. Price United States liable under § 1983. Dkt. No. 50-4, Wells Mem. of Mem. Wells liable under § 1983. Dkt. No. 50-4, ting briefing schedules are hereby stayed pending approval or Dkt. No. 33, Order, dated Dec. 7, 2007 at pp. 1-2. Wells would be the state common law causes of Wellsaction. would be the state common Taylor v. Hansen , 63 F.3d at 119 ( indicating that , 63 F.3d at 119 ( , 954 F.2d at 68. Adickes v. S.H. Kress & Co. Adickes Spear , 292 F.3d 307, 324 (2d Cir. 2002) , 292 F.3d 307, , 460 U.S. 325 (1983)); In order to bring a § 1983 action a person mu In order to bring a § 1983 action 27 Singer v. Fulton County Sheriff Singer v. Fulton Wells further argues that when this was matter with Judge Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 49 of 68 of 49 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 27 1598, 26 L.Ed.2d 142 (1970) (quoting L.Ed.2d 142 (1970) 1598, 26 under color of state law when the private actor of state law when under color with the State or its agents. State or its agents. with the S.Ct. 1152, 16 L.Ed.2d 267 (1966)). A merely (1966)). A merely 16 L.Ed.2d 267 S.Ct. 1152, with a state act entity acted in concert entity. against the private The above recitation of the law on conspiracy The above recitation We can definitely state, on these facts, Wells is these facts, Wells can definitely state, on We of state law in causing an arrest and a prosecution. of state law in causing an arrest and based upon his trial testimony. damages from as a witness, has absolute immunity Co. of New York United States v. United States Trust Briscoe v. LaHue the above However, as we have learned from immune). is absolutely perjured his testimony discourse of what is necessary to plead and prove Ciambriello v. County of Nassau Ciambriello v. County violations. omitted); omitted); person acted be a showing that action, there must right”). a constitutional of the plaintiff a private person . . . to deprive or conspired with cannot be he is not a state actor and therefore agree that as a general legal Law at p. 3. We liability on the my from him immune alone, may 4. Where this is true, we would be bound, in some respect 4. Where this is true, we would be bound, in some case docket or the record before us, the either from confirm, the good Judge had ruled that Wells was not a state actor with to exclude Wellsshould be further as a party under that amended that could be pled against Therefore, the only claims Rather Judge Scheindlin’s Order transferring the case states in to the Northern District of transfer this case immediately in the Southern District of New York. . . . [A]ll exis by the Northern District of New York.” modification

RFT , , 500 , 999 F.2d Adickes v. S.H. unconstitutional Burns v. Reed , 200 F.3d at 72 ([A] Dory v. Ryan As to Special Prosecutor , 737 F.2d at 256 (noting that at 256 (noting , 737 F.2d Ciambriello v. County of Nassau v. County of Ciambriello a conspiracy lawsuit “will stand only protects a prosecutor who knowingly , 63 F.3d at 119 (citing , 517 F.3d 140, 145 (2d Cir. 2008). So, , 517 F.3d 140, 145 (2d Cir. 2008). Pangburn v. Culberston of a § 1983 action: the violation of a federal oof to support a conspiracy, there are severaloof to support a , 268 F.3d at 72 (could not establish false arrest like Wells, is immune from damages for giving damages from is immune like Wells, claim of a conspiracy. of a conspiracy. claim nds to “eliciting false and defamatory testimony nds to “eliciting false and defamatory ven false testimony or made a false charge is not a false or made ven false testimony probable cause, we have found that there was no probable cause, we have found that If there is no underlying constitutional violation, If there is no underlying constitutional ithin a judicial proceeding, all Defendantsithin a judicial proceeding, all are -50- Rolon v. Henneman sine qua non y withheld exculpatory information. y withheld exculpatory information. ts and the proof has been met. met. proof has been ts and the , an agreement . . . to act in concert to inflict an . . . to act in concert to inflict , an agreement Part II.E. Moreover, immunity Part II.E. Moreover, immunity Curley v. Vill. of Suffern Singer v. Fulton County Sheriff inter alia inter see supra San Filippo v. United States Trust Co. of New York Trust Co. of v. United States San Filippo , 398 U.S. 144, 150 (1970) for the proposition that Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 50 of 68 of 50 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case In our case, to the paucity of pr in addition 292 F.3d 307; 292 F.3d have gi a defendant who may without a conspiracy, color of state law). acting under the Aretakis’s that countermine legal principles seminal liability. from immunity already found that he has absolute Nugent, we have exte immunity U.S. 478, 490 (1991) (further finding from witnesses”); witnesses”); from there can be no § 1983 cause of action for conspiracy. used perjured testimony or deliberatel used perjured testimony Officer Durivage, 679, 682 (2d Cir. 1993). Further, at Aretakis’s trial. perjured testimony unfolded w on this account, if the conspiracy the presence of protected. In addition, because of First there is neither a violation. Furthermore, prosecution, nor constitutional false arrest, malicious violation in this case. nor Fourteenth Amendment conspiracy requires, injury.”) (emphasis added); injury.”) (emphasis Kress & Co. insofar as the plaintiff can prove the a federal conspiracy if the elemen conspiracy if the a federal or use of excessive force);

RFT ., ., Inc Inc

, Taylor Id. Law, some of which Law, some to include extra-judicial Fed. Appx. 742 (2d Cir. 2008). Fed. Appx. 742 suits against prosecutors and San Filippo , alleged that defendants falsified documents, ith the prosecutor, and to dismiss on pre-trial ith the prosecutor, and to dismiss de the purview of his official duties. In this rative for courts to examine with great care any courts to examine rative for y must be carefully scrutinized to weed out y must piracy claim, and if true, absolute immunity may true, absolute immunity and if piracy claim, probable cause, the plaintiff’s claims against his wife, an probable cause, the plaintiff’s claims rther found that Nugent always acted within his rther found that Nugent always of court agreement between Wells, Durivage, and Wells, between of court agreement d, there is an allegation floating around the edges d, there is an allegation ffidavit and Memorandum of ffidavit and Memorandum nd gave false testimony. 286 nd gave false testimony. -51- , 460 U.S. 325, did not extend absolute immunity to not extend absolute immunity , 460 U.S. 325, did esses and prosecutor to give false immunity); immunity); esses and prosecutor to give false Maliha v Faluotico Maliha San Filippo v. United States Trust Co. of New York, San Filippo v. United San Filippo v. United States Trust Co. of New York San Filippo v. United States Trust because plaintiff’s arrest was constitutional. , 999 F.2d at 683 (warning that “§1983 , 999 F.2d at 683 (warning that “§1983 Briscoe v. LaHue Dory v. Ryan , 731 F. Supp. at 76-77 (extending the reasoning of , 731 F. Supp. at 76-77 (extending Analogous to our facts, the plaintiff in Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 51 of 68 of 51 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case We have also been instructed that “it is impe have also been instructed that “it is We 28 Even though there isEven though constitutional no stated various reasons case for the violation in this 28 737 F.2d at 256; witnesses alleging conspiracies to commit perjur Here we have only conclusory and general allegations within the Amended claims”). meritless that theseComplaint parties engaged in a conspiracy to violate Aretakis’s rights. Even with the and expansive allegations in his A promiscuous v. Hansen Yet,conspiracy between police officers). wefu has been seriously limited. of conspiracy respect, the claim those that are clearly baseless.” motions cover extra-judicial conspiracies between witn cover extra-judicial conspiracies never acted outsi quasi-judicial capacity, that is, he conspired w suit charging that prosecution witnesses 737 F.2d at 255 (stating that 737 F.2d at 255 above, we note that, though it is not clearly state above, we note that, that there was an out Complaint the Amended of Under this cons falsely. to testify Wells Nugent for or Nugent. Durivage, not exonerate Wells, right”). exaggerated the evidence, made slanderous statements, a slanderous statements, exaggerated the evidence, made The Second Circuit nonetheless ruled that since there was alleged co-conspirator, were properly dismissed

RFT r failure to supervise.” also those involved in s without reviewing probable . at ¶ 140 (emphasis added). As to the . at ¶ 140 (emphasis Id Failure to Train, and Policy and Practice Failure to Train, . at ¶ 138. However, Aretakis makes an makes . at ¶ 138. However, Aretakis lack clarity as to who should be the target of lack clarity as to who should be the Id action, failure to train and supervise, are fairly action, failure to . . Defendant Nugent is also liable for ntiff unfairly and selectively enforcing e ends of justice are such that a criminal plify with specific instances of conspiratorial specific instances plify with nts “were negligent in thei ndants, without specifically identifyingndants, without whom Rensselaer County, though the latter has not been Rensselaer County, though the latter -52- cating “governmental officials and cating “governmental tor, and authorizing arrest ” without identifying to whom this is referencing,” without identifying to whom as well as the named Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 52 of 68 of 52 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case G. Municipal Liability - Failure to Supervise, G. Municipal Liability and fourth causes of respect, the third In some Aretakis hyperlinks the named Defendants and others to an all-encompassing theory of Aretakis hyperlinks the named Defendants and others to an all-encompassing a policyDefendant Rensselaer County is liable because it maintains of not supervising a Special Prosecu of the case, and whether th cause, the merits suspect should be arrested and prosecuted . maintaining Defendant North Greenbush have long standing such a policy. The and practice of treating Plai policy, custom, at ¶ 152. Although, as pled, these causes of action at ¶ 152. Although, as pled, these misconduct. The allegations are unsubstantiated and thus insufficient under either a Rule 12(b)(6) either a Rule insufficient under and thus are unsubstantiated The allegations misconduct. judgment. for summary a motion or motion third at ¶¶ 138-150 & 151-59. In the Compl. together. Am. so we will address them synonymous, Aretakis pleads that Defe cause of action, a failed to properly train police officers “on how to deal with (“Defendants and all of them), falsely charged.”situation wherein a person was isam has failed to Aretakis addled speculation, Defendants, for failure to properly train their officers. astoundingly curious allegation by impli astoundingly curious allegation by political activity, fourth cause of action, Aretakis claims that Defenda that cause of action, Aretakis claims fourth Id. these allegations, are directed that the crux of these causes of actions we can reasonably presume at the Town of North Greenbush and possibly in this action. named fashion: liability in a rather peculiar and novel municipal

RFT ting him unfairly, but also ting him . at p. 19. Lastly, albeit not set forth in . at p. 19. Lastly, albeit not set forth Id five years where they have either threatened nt or an individual with an adversarial history Nugent, Aretakis notes as background that Nugent “had ly subjecting him to traffic stops. Aretakis Aff. ly subjecting him ring of personal contacts with Town of North of February 2007 . . . has wielded power and of February 2007 ities are greatly protected, a police officer who nd its priests . . . because Bishop Hubbard [who] nd its priests . . . as to political activities of (local) police officers. ng the Plaintiff and trea ng the Plaintiff and nd Michael Costello, his private counsel for over nd Michael Costello, d to investigate threats made against him, and that against him, d to investigate threats made -53- iminal law or enforcement of same is tainted. of same law or enforcement iminal 29 30 For Aretakis, the motivation is political: For Aretakis, the motivation Presumably, with respect to Rensselaer County and Presumably, Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 53 of 68 of 53 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case to that officer may credibly argue that the cr to that officer may In a country where free speech and political activ arrests an individual perceived to be a political oppone Concerns of this case also involve a public policy 30 29 law against him[.] him[.] law against no immediate supervisor.” Aretakis Mem. of Law at p. 10. supervisor.” Aretakis Mem. no immediate working with and protecting the Albany Diocese a protecting the Albany Diocese working with and [a process server Robert Wells influence over his pursue false charges[.]” two decades] . . . to instigate and policy of repeated there was a continuing pattern and at ¶¶ 38-54. Aretakis Mem. of Law at p. 9. of Law Mem. Aretakis although not specificallyFurther, alleges that the Aretakis Complaint, Amended described in the had a policy of not only harassi Defendants “have has been the Bishop of Albany for 30 years as over the past Greenbush officials and police officers against threats, or faile failed to protect him him, the Amended Complaint, Aretakis provides a st Aretakis Complaint, the Amended Aretakis Aff. at ¶ 61.

RFT ., 79 , 49 F. Supp. , 2008 WL 857525, , 2008 WL , 139 B.R. 120, 124- , 1997 WL 292112, at , 1997 WL The Court notes, which The Court notes, until the last minute will until the last minute 31 each party to tailor its discovery Beckman v. United States Postal Serv Beckman v. United States Postal ition that a plaintiff’s attempt to amend his to amend ition that a plaintiff’s attempt eed plead every legal theory not correctly . This citation must be a mistake be insofar as this section a mistake . This citation must See Devinsky v. Kingsford See Devinsky v. ilure to assert a claim ilure to assert a claim dure Law § 570.54 in support of Rensselaer County being dure d Defendant and, moreover, cannot conceptually be moreover, d Defendant and, -54- McAllister v. New York City Police Dep’t , that opposition papers are not the proper vehicle to papers are not the proper vehicle , that opposition In re Private Capital Partners, Inc. the extent plaintiff attempts to assert new claims in his to assert new claims attempts the extent plaintiff may be applicable to this litigation. may Harvey v. New York City Police Dep’t Harvey v. New York City Police set forth facts that will allow is black letter law that a party may not raise new claims for the not raise new claims that a party may is black letter law 1. Rensselaer County and Nugent County and 1. Rensselaer Oddly, Aretakis cites New York Criminal Proce Oddly, Aretakis cites New York Criminal Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 54 of 68 of 54 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 31 The charges against Rensselaer County and Nugent are fundamentally flawed for several flawed fundamentally and Nugent are County against Rensselaer The charges liable for failing to supervise and train Special Prosecutor Nugent of law pertains to extraditions, which is not relevant to our litigation. to prepare an appropriate defense. Because a fa Because to prepare an appropriate defense. F. Supp. 2d 394, 407-08 (S.D.N.Y. 2000)); F. Supp. 2d 394, 407-08 (S.D.N.Y. cases for the propos 25 (Bankr. S.D.N.Y. 1992) (citing new causes of action in his opposition papers to by instituting defendants’ dispositive complaint the Federal Rules of to circumvent to an attempt is in direct contravention of and amounted motion Rule 15(a)); Civil Procedure, namely (“To *2 n.2 (S.D.N.Y. June 3, 1997) opposition papers to defendants’ to raise new . . . the Court finds that ‘it is inappropriate motion, and accordingly judgment’ for the first time in opposition to summary inclaims submissions (citation omitted); disregards such claims.”) n a complaint 2d 688, 691 (S.D.N.Y. 1999). While “a plaintiff must supporting a claim, so named under any theory of law that under any theory of law so named reasons. First, Rensselaer County is not a name reasons. First, Rensselaer is applicable of Aretakis’s claims to several new defendants. action or add of instill new causes 31, 2008) (“It at *5 (S.D.N.Y. Mar. (quoting judgment.”) in opposition to summary first time

RFT , Bush v. Fordham Third, a prosecutor is 32 , 853 F.2d 73, 77 (2d Cir. Goldberg v. Town of Rocky Hill liability). , 1998 WL 960303, at *4 (E.D.N.Y. Dec. l quotation marks and citations omitted). and citations omitted). l quotation marks Monell Baez v. Hennessy not to become the district attorney. Second, the district not to become onsistently ruled that it is inappropriate to raise inappropriate to ruled that it is onsistently e a causal link between the deprivation of a constitutional attorney in New York State, acting in a quasi- attorney in New York State, acting in the law enforcement activities of the district activities of the in the law enforcement t, as a matter of fact, Nugent was not employed t, as a matter ., 436 U.S. 658 (1978). A municipality may only be liable be only may municipality 436 U.S. 658 (1978). A ., an employee of Rensselaer County, which is a of Rensselaer County, which an employee Rensselaer County may be liable for failure to may Rensselaer County ng his discretion to prosecute and the manner in ng his discretion to prosecute and the manner under these circumstances, Rensselaer County is Rensselaer under these circumstances, and assistant district attorneys may be employees and assistant district attorneys may nt fact for our discussion. He was appointed by a nt fact for our discussion. He was -55- rict attorney, but rather as an independent contractor rict attorney, but rather as an independent Gibson v. City of New York , 157 F.3d 66, 77 (2d Cir. 1998) (This is a narrow exception , 157 F.3d 66, 77 (2d Cir. 1998) (This fairly said to represent official policy. , 436 U.S. at 691). tion results from an official policy or custom either of the municipality’s law either of the municipality’s official policy or custom an tion results from Myers v. County of Orange Monell v. Dep’t of Soc. Servs. . c.f See Monell v. New York City Dep’t of Social Servs

Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 55 of 68 of 55 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 32 None of the named Defendants are employees Defendants is an Rensselaer County. Durivage of None of the named , 452 F. Supp. 2d 394, 406 (S.D.N.Y. 2006) (interna , 452 F. Supp. 2d 973 F.2d demonstrat 70, 72 (2d Cir. 1992). The plaintiff must policy or custom. right and a specific municipal 9, 1998) (citing New York Supreme Court Justice to serve in the limited role of special prosecutor and for the role of to serve in the limited Court Justice New York Supreme case, of handling Aretakis’s criminal purpose limited “[w]hen prosecuting a criminal a district matter, not the county.” judicial capacity, represents the State employee of the Town of North Greenbush, and, of the Town employee Town. Nor is Nugent over the not a policy maker of whether in terms element peculiarly defining supervise, train, a policy. Firs or in promulgating assistant dist as either the district attorney or an attorney, a salie standing in for a recused district role a prominent 1988) (noting that the state plays attorney); independent” when exercisi entitled to act “freely Univ. to the legal understanding that a district attorney of the county, possibly subjecting the county to potential inevitably prejudice the defendant, courts . . . have c courts prejudice the defendant, inevitably new claims for the first time in submissions in opposition to summary judgment.” judgment.” opposition to summary in in submissions for the first time new claims for a constitutional violation if the viola be may those whose edicts or acts or of makers

RFT , Baez v. liability Monell , that “a district Walker v. City of New Walker v. City of ). However, this same rule ). However, this same strict attorney, who implemented York, 974 F.2d 293, the plaintiff Zachary v. County of Onondaga Zachary v. County of exculpatory evidence to the defense). Baez v. Hennsessy supervises nor dictates a policy over a nor dictates supervises , and the manner in which he prosecuted the in which he prosecuted , and the manner Baez v. Hennessy rict attorney. Where a district attorney acts as a district rict attorney. Where criminal complaints, the Circuit found that the complaints, criminal his office with regards to supervising and training district policy maker. attorney acts as a county tioning and covering up wrongdoing could subject tioning and covering up wrongdoing county. Similarly, where a district attorney office county. Similarly, -56- how a prosecutor may conduct a prosecution and, thus, may how a prosecutor om the line of cases that indeed imposed imposed the line of cases that indeed om Walker v. City of New rformance of that particularrformance duty. and perjury issues. Therein, the Second Circuit found that 33 nst the county inasmuch as the di nst the county inasmuch Brady , 926 F.2d 142, 156 (2d Cir. 1991); , 926 F.2d 142, 156 , 974 F.2d 142 (finding that a county district attorney’s long practice of , 974 F.2d 142 (finding that a county , 373 U.S. 83 (1963) (ruling on the disclosure , 853 F.2d at 77. Therefore, a county neither a county at 77. Therefore, , 853 F.2d Brady v. Maryland

Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 56 of 68 of 56 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 33 Nugent’s special role, his decision to prosecute Nugent’s special role, his decision , 974 F.2d 293, 301 (2d Cir. 1992) (noting its ruling in 301 (2d Cir. 1992) (noting its ruling , 974 F.2d 293, plaintiff had stated a cause of action against the had an unconstitutional policy of not allowing cross plaintiff had stated a claim agai plaintiff had stated a claim Hennsessy 7, 1999) (citing 14041, at *2 (N.D.N.Y. Jan. 1999 WL and policy maker. not apply if the prosecutor also serves as a manager may fr case against Aretakis are distinguishable of the dist actions upon the county for the managerial In the county to liability under § 1983). how he prosecutes a case,how he to act otherwise.” them can require “[n]o county policy and cannot be liable for the prosecutor’s pe cannot be liable of the district attorney’s office, the a manager Gentile v. County of Suffolk and sanc ignoring evidence of police misconduct district attorney or special prosecutor as to district attorney York in liability”); attorney’s misconduct not give rise to municipal prosecuting an individual could of SuffolkGentile v. County of challenged the district attorney’s management assistant district attorneys on

RFT Orange, Myers v. County of Myers v. Hence, Aretakis has failed to plead or has failed Aretakis Hence, , 853 F.2d 73, and the recent Supreme Court the recent Supreme , 853 F.2d 73, and , _ U.S. _, 2009 WL 160430, at *7-9. Under , _ U.S. _, 2009 WL 143. Further, Aretakis claims that Defendants, 143. Further, Aretakis claims thority over either the County or the Town of indifference to the excessive use of force by its looking at the third and fourth causes of action, ecision to prosecute him and how he prosecuted and how he him ecision to prosecute awed and inappropriate policy of handling and claims, pertaining to supervision and training, n regarding the conduct of a trial, legal knowledge, n regarding the conduct plea negotiations, the supervisory prosecutorsplea negotiations, are ext of meaning the Town, “failed to properly train the Town, “failed to ext of meaning -57- Monell Baez v. Hennessy , _ U.S. _, 2009 WL 160430 (U.S. Jan. 26, 2009). When there (U.S. Jan. 26, 2009). When 160430 , _ U.S. _, 2009 WL anyone in this litigation. Van de Kamp v. Goldstein 2. Town of North Greenbush Van de Kamp v. Goldstein Van de Kamp v. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 57 of 68 of 57 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case We must now turn to the alleged must We Here, Aretakis solely challenges Nugent’s d Here, Aretakis solely absolutely immune as well. absolutely immune decision, a failure to supervise and trai alleging are claims or the such as exercised of related discretion, for Rensselaer case, there wouldany liberal interpretation of our be no policy implementations au policymaking County. Morever, Nugent had no in which they testify. investigates and the manner department North Greenbush as to how the police possessed or that Nugent acted factual basis to support the claim There is not, nor can there be, a role over any managerial within either Rensselaer County or Nugent. against claim prove a failure to train and supervise against the Town of North Greenbush. Once again, Aretakis states that the Defendants, in the cont 157 F.3d 76-77. 157 F.3d by thus these facts are controlled him, on how to deal with a situation wherein a person was being police officers and law enforcement falsely charged,” and, in addition, “employed a fl and enforced the policy, was an official policy maker for the county. for the county. maker was an official policy the policy, and enforced conducting investigations.” Am Compl. at ¶¶ 138 & Compl. conducting investigations.” Am the Town, evinced “deliberate once again, meaning

RFT . Finally, it must Id Monell v. Dep’t of Dwares v. City of New See City of Los Angeles v. c.f. Washington v. City of New , 475 U.S. 469, 480 (1986), for the , 475 U.S. 469, 480 (1986), for , 974 F.2d at 297. First, the municipality’s , 974 F.2d at 297. [his or] her employees will confront a given [his or] her employees te, let alone prove that any inadequacy was a was a failure to train municipal employees does employees was a failure to train municipal sion of the municipal policy maker). Evidence policy maker). sion of the municipal , 13 F.3d 545, 549 (2d Cir. 1994). To show that , 13 F.3d 545, 549 ill not, on its own, be enough to prove that the of difficult decision that training or supervision licy caused the plaintiff’s injury. A single incident licy caused the plaintiff’s injury. -58- d only actors below the policymaking level, generally d only actors below the policymaking , 489 U.S. 378, 390 n.10 (1989)). Second, either the , 489 U.S. 378, 390 n.10 (1989)). employees mishandling the situation.” mishandling employees the existence of a custom or policy.” a custom the existence of (overruled on other grounds); . at 298. Pitchell v. Callan Id , 436 U.S. 658, 691 (1978), lies against a municipality only where (1978), lies against a municipality , 436 U.S. 658, 691 Pembaur v. City of Cincinnati Walker v. City of New York Walker v. City of Canton v. Harris . at ¶ 158 (fourth cause of action). (fourth cause of . at ¶ 158 Id . (quoting Id Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 58 of 68 of 58 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case It is well-settled that a claim of negligent training or supervision under training or supervision of negligent that a claim It is well-settled Furthermore, “the simple recitation that there “the simple Furthermore, , 475 U.S. 796, 799 (1986); , 475 U.S. 796, 799 , 985 F.2d 94, 100 (2d Cir. 1993) , 974 F.2d at 296 (citing Soc. Servs. of City of New York Soc. Servs. of City its officers. of a constitutional violation by one of there is a finding Heller has violated or supervise employees, through its failure to train § 1983, three a municipality, be met. must requirements certainty’ that policy a moral know “‘to maker must situation.” with the sort employee present the situation must or there is “a history of would ameliorate a cause the deprivation of frequently will that the “wrong choice by the city employee be shown citizen’s constitutional rights.” York York proposition that a single challenged act was the deci of an unconstitutional action by a police officer w the officertraining program received was inadequa police officers.” police officers.” not suffice to allege that a municipal custom or po custom not suffice to allege that a municipal especially if it involve alleged in a complaint, of to raise an inference will not suffice

RFT , , Carnegie , 489 U.S. at Pawlicki v. City , 973 F.2d 70, 72 (2d , 1998 WL 960303, at , 1998 WL , 72 F.3d 1040, 1049 (2d fic deficiency in any training , 2000 WL 151906, at *4-5 Canton v. Harris Velasquez v. City of New York , 465 F.3d 65, 81 (2d Cir. 2006) 65, 81 (2d Cir. , 465 F.3d , 436 U.S. at 691). Plaintiff must, see also Jenkins v. City of New York e indifference means that the city made e indifference means onal violation if the violation results from onal violation if ess the training inadequacy is closely related to ess the training inadequacy is closely l link between the deprivation of a constitutional lity’s law makers or of those whose edicts or acts or of lity’s law makers Gibson v. City of New York Vann v. City of New York that ‘are followed by no meaningful attempt on the attempt by no meaningful that ‘are followed -59- Goldberg v. Town of Rocky Hill rence to a member of the public’s rights); the public’s rights); of a member rence to , 1996 WL 705785, at *2. Plaintiff must show that he 705785, at *2. Plaintiff must , 1996 WL Green v. City of New York Green v. oyees from among various alternatives.” among oyees from a plaintiff must identify speci a plaintiff must e or forestall further incidents.’” further e or forestall Monell v. Dep’t of Soc. Servs. Azzam v. The Travelers Ins. Co. , 465 F.3d at 81 (citation omitted); , 465 F.3d at 81 (citation omitted); Pawlicki v. City of Ithaca , 1996 WL 705785, at *2 (N.D.N.Y. Dec. 5, 1996) (citing 705785, at *2 (N.D.N.Y. , 1996 WL , 811 F. Supp. 907, 911 (S.D.N.Y. 1993). “Deliberat , 811 F. Supp. 907, Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 59 of 68 of 59 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case A municipality may only be liable for a constituti only be liable for may A municipality of Ithaca a failure to supervise: from be inferred indifference may 389). “Such deliberate proof of from violations constitutional of repeated complaints to investigat the municipality part of 1997) (quoting 960 F. Supp. 776, 783 (S.D.N.Y. Cir. 1995)). However, liability will not attach unl injury. the ultimate a ‘deliberate choice’ not to train its empl a ‘deliberate choice’ constitutional injury. a suffered (N.D.N.Y. Jan. 28, 2000). Furthermore, such deficiency “actually caused the constitutional deprivation.” and supervision in such a way that Green v. City of New York v. Miller 478 F.3d 76, 95 (2d Cir. 2007). the municipa either of policy or custom an official policy. said to represent official be fairly may a causa demonstrate Cir. 1992). The plaintiff must policy or custom. right and a specific municipal *4 (E.D.N.Y. Dec. 9, 1998) (citing (there must be a showing of deliberate indiffe a showing of be (there must result of a city’s deliberate indifference. a city’s deliberate result of

RFT , 268 F.3d at Amato v. City of , 783 F.2d 319, 328 (2d, 783 F.2d 319, Cir. e insufficient to statee insufficient a claim Curley v. Vill. of Suffern , 478 F.3d at 95. This principle further , 475 U.S. 796, 799 (1986)). Here, we have , 475 U.S. 796, 799 (1986)). Here, quate training or supervision when the officers quate training or was a victim of acts undertaken pursuant to pursuant of acts undertaken was a victim a ely because a few of its graduates deviate from on against the municipality will be mooted since will be mooted on against the municipality training. Something more is required because a more training. Something Amended Complaint nor his Opposition papers a nor his Complaint Amended Aretakis’s constitutional rights and thus most of thus most Aretakis’s constitutional rights and claim. ble where some constitutional violation actually constitutional violation ble where some -60- , 810 F.2d 358, 363 (2d Cir. 1987). Further, a plaintiff , 810 F.2d 358, 363 Monell Fiacco v. City of Rensselaer Fiacco v. City of policy. Conclusory allegations ar Conclusory allegations policy. claim that, based upon an improper municipal policy practice and municipal that, based upon an improper claim Barr v. Abrams Jenkins v. City of New York de facto de facto Monell City of Los Angelos v. Heller claim against the Town has been eviscerated. claim , 480 U.S. 922 (1987). , 480 U.S. 922 (1987). , 170 F.3d 311, 320 (2d Cir. 1999) (cited in , 170 F.3d 311, 320 (2d Cir. 1999) . (citing Id Monell Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 60 of 68 of 60 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Yet, there is one First, a municipality cannot be liable for inade cannot First, a municipality Second, Aretakis has stated neither in his Second, Aretakis has stated neither cert denied complicates Aretakis’s effort to assert a Aretakis’s complicates for summary survive a motion also may tenuously hangs by a bare thread. This claim custom, training program is not rendered inadequate “mer is not rendered inadequate training program what they were taught.” practice equivalent to a practice statutes. under the civil rights the evidence of custom policy, from or practice solely by inference municipal cannot establish occurrence in question. of the incident 1986, constitutional rights. an arrest did not violate the plaintiff’s involved in making Saratoga Springs violated any of that Durivage has not determined Aretakis’s specific deficiency in the Town’s police officer’s however, assert that he support a claim facts that occurred.” 71. “[I]f a plaintiff fails to show that a constitutional violation occurred in the suit against the 71. “[I]f a plaintiff fails to show cause of acti individual official, the corresponding negligent training is only actiona a claim of

RFT , 2007 , 608 F. , 357 F.3d in the third and fourth in the third ontinuing nature of the violations ontinuing nature Bissinger v. City of New York Rodrigues v. Vill. of Larchmont e intent to inhibit or punish the exercise of e intent to inhibit or punish the Freedom Holdings Inc., v. Spitzer facts and pleading additional causes of action osecutions. Aretakis Aff. at ¶¶ 38-55. Such a osecutions. Aretakis Aff. at ¶¶ 38-55. ith periodic traffic stops, and selectively and ith periodic traffic stops, and selectively e officers who have threatened or targeted the e officers who have is not found squarely with is not found should not be countenanced. However, there is of an alleged pattern of police misconduct based misconduct pattern of police of an alleged d Complaint’s factual allegation section, Aretakis factual allegation section, d Complaint’s rce and other officials committed against him from against him rce and other officials committed olated Aretakis’s Fourteenth Amendment right to olated Aretakis’s Fourteenth Amendment specific detail, Aretakis lists a number of offenses lists a number specific detail, Aretakis -61- , 206 F. Supp. 2d 394, 400 (W.D.N.Y. 2002) (citing, , 206 F. Supp. 2d 394, 400 (W.D.N.Y. charges,” naming specifically Sergeant Christopher charges,” naming Cir. 1983) & th e Amended Complaint and those expounded upon facts and those expounded upon Complaint e Amended just a few examples of the c just a few examples , 724 F.2d 89 (8 Yaman, v. D’Angelo McGee v. Hester , Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 61 of 68 of 61 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case As we have cautioned above, stating further causes action but on the periphery. In the Amende causes action but failing to investigate death threats made from 2003 until February 7, 2007, ranging against him, w him harassing and his family, threatening him alleges “Defendants also have utilized other polic alleges “Defendants of the initials the time Plaintiff at and after police fo in his Opposition papers that the Town’s with pr occasions on multiple unfairly targeting him upon custom and practice. The locus of this claim locus of this claim and practice. The upon custom Michael Merola as Marsh and Officer 73-77. Then, in at ¶¶ Compl. of his rights. Am. vi the municipality action can be pled if cause of with him equal protection by selectively harassing th intent to injure. or bad faith constitutional rights or malicious so intrusive become proposition that police surveillance may 1985) for the Supp. 464, 474 (S.D.N.Y. as to violate a plaintiff’s clearly established rights). in an affidavit in opposition to dispositive motions a frail nexus between those allegations in th judgment at this stage and may require discovery require discovery and may at this stage judgment WL 2826756, at *9 (S.D.N.Y. Sept. 24, 2007) (citing 2826756, at *9 (S.D.N.Y. Sept. 24, WL 205, 234 (2d Cir. 2004)); inter alia

RFT Aretakis Aff. , 206 F. Supp. 2d See generally Yaman v. D’Angelo , 632 F.2d 185, 192 (2d Cir. 1980) (quoted , 632 F.2d 185, 192 (2d Cir. 1980) s Complaint in this respect, we will permit s Complaint the Complaint is not a license to overreach and the Complaint attempt d faith intent to injure a person. What remains d faith intent to injure a person. What re clearly state a policy of selective treatment 34 e of limitations. For example, the claimed series the claimed For example, e of limitations. ear statute of limitations for § 1983 actions. Even for § 1983 ear statute of limitations will not be allowed. Any amendments to the Complaint are to the Complaint allowed. Any amendments be not will limitations. “The crucial time for accrual purposes for “The crucial time limitations. was treated differently from other similarly situated similarly other was treated differently from -62- is suffering a wrong for which damages may be may is suffering a wrong for which damages “interlocking events,” they would not postpone nor they would not postpone “interlocking events,” , 608 F. Supp. at 476 n.11); ith this Memorandum-Decision and Order, in order for Aretakis to properly state ith this Memorandum-Decision sconduct allegedly commenced in 1999. commenced sconduct allegedly Singleton v. City of New York It must be understood that this permission to amend to amend be understood that this permission It must Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 62 of 68 of 62 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 34 Although Aretakis makes numerous claims under this custom and practice theory, many of theory, many and practice under this custom claims numerous Aretakis makes Although that such second prong of a selectiveAretakis has at least pleaded the claim: treatment hi to amend Even though Aretakis has not moved custom and practice cause of action based upon selective treatment. custom Rodgrigues v. Vill. of Larmont Monell at ¶¶ 38-55. As we well know, there is a three y at ¶¶ 38-55. As eventsif this series of was characterized as the statute of in order to bypass extend the time aware that he is when the plaintiff becomes recovered in a civil action.” in those claims cannot be pled because of the statut cannot be pled because of the those claims officials’ mi of police and other barred. are time 1999 to June 5, 2004, lists from at 400. So those events that Aretakis or ba on a malicious have been based may treatment facts that he hazy is whether Aretakis can plead and to a custom pursuant individuals and their alleged misconduct by whether he was damaged practice. to mo his Complaint an opportunity to amend him North Greenbush. by the Town of directed at him in Aretakis’s Affidavit that may survive the dispositive Motions. the dispositive survive may that Affidavit in Aretakis’s to plead other causes of actions or add other parties. That to be narrowly construed, consistent w a

RFT , Arteaga , 19 A.D.3d 1061, , 93 F.3d 86, 92 (2d , 72 N.Y.2d 280, 285 , 228 A.D.2d 902, 903-04 action in New York for negligent Salim v. Proulx I N.Y.3d 507 (N.Y. Ct. App. 2004) is has failed to state a cause of action approach to all of the causes of action pled Hernandez v. State t training in investigative procedure is akin to t training in investigative procedure lv. denied, factual allegations in that respect. Nonetheless, Santiago v. City of Rochester Santiago v. City Gisondi v. Town of Harrison , ith absolute immunity from both negligence and from ith absolute immunity whether Aretakis meant to plead a negligent cause to plead a negligent whether Aretakis meant m injury. Am. Compl. at ¶¶ 175-82. Initially, we Compl. injury. Am. m , 298 A.D.2d 791, 793 (N.Y. App. Div. 3d Dep’t , 298 A.D.2d 791, 793 (N.Y. App. on, which, again, are not actionable in New York. on, which, again, are not actionable -63- ce he was acting in his quasi-judicial role. inter alia Dep’t 2003), st Galatowitsch v. New York City Gay & Lesbian Anti-Violence Project Galatowitsch v. New York City Gay , 49 F. Supp. 2d 615, 625 n.6 (citing , 49 F. Supp. 2d 615, Dep’t 2005) (“There is no cause of Dep’t 2005) (“There is no cause Federal Credit Union th Coakley v. Jaffee Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 63 of 68 of 63 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case In typical fashion, Aretakis has taken a shotgun H. Sixth Cause of Action - Durivage’s and Nugent’s Negligence - Durivage’s Cause of Action H. Sixth differentand Nugent, for both Durivage alleges that of action, Aretakis this cause Within , 72 N.Y.2d 212, 217 n.1 (N.Y. Ct. App. 1988). Aretak , 1 A.D.3d 137 (N.Y. App. Div. 1 investigation of a crime.”); a crime.”); investigation of Inc. v. State sounding in negligence against Durivage and Nugent. uncertain remain against these Defendants. We because there are no specific of action against Wells (no cause of action for negligently being prosecuted); (no cause of action for negligently (N.Y. App. Div. 3d Dep’t 1996) (citing, negligen for a claim (N.Y. Ct. App. 1998)). Further, negligent investigation or prosecuti for a claim Russ v. State Employees distress sin emotional of intentional infliction 2002). As a last point, is protected w Nugent reasons of course, were negligent and caused hi reasons of course, note that alleging rights were that a person’s constitutional does not support a claim negligence deprived. alleging negligent does not recognize an action New York Cir. 1996)). More importantly, negligent prosecution of a crime. investigation or 1062 (N.Y. App. Div. 4

RFT , 338 F.3d , 490 U.S. 386, 392 , 343 F.3d 35, 49-50 misplaced within the misplaced does not owe Aretakis any does not the proposition that because e facts, state a cause of action e facts, state Trammell v. Keane at “Eighth Amendment’s protection at “Eighth Amendment’s Graham v. Connor Benjamin v. Fraser rs and it is completely lies that his Eighth were Rights Amendment of these facts, Wells facts, Wells of these Amendment has been interjected into this case has been interjected Amendment This approach is indicative of the scatter-gun indicative of This approach is has not been adjudged guilty of any crime,” pre- has not been adjudged guilty of any crime,” tion. Nowhere within the four corners of the tion. Nowhere tion of an Eighth Amendment claim. The only claim. an Eighth Amendment tion of r–neither cruelly and unusually nor otherwise.”); Law, which we have already illustrated, is totally Law, which we have already illustrated, incarceration, only the unnecessary and wanton incarceration, only the unnecessary punishment forbidden by the Eighth Amendment.” forbidden by punishment -64- , 441 U.S. 520, 535-36 (1979)) for rson is confined after conviction. rson is confined after conviction. ysis, that Aretakis cannot, under thes Aretakis cannot, ysis, that An Eighth Amendment complaint of cruel and inhuman treatment of cruel and inhuman complaint An Eighth Amendment , 430 U.S. 651, 670 (1977 )); , 194 F.3d 37, 47 (2d Cir. 1999) (noting th Bell v. Wolfish Ingraham v. Wright Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 64 of 68 of 64 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case I. Sundry of Other Legal Issues I. Sundry of Other of Law, Aretakis imp In his Memorandum infliction of pain constitutes cruel and unusual infliction of pain constitutes cruel duty of care. pp. 9 & 10. Law at of Mem. violated. Aretakis pursued in stating causes of ac approach he has any recita will a reader find Complaint Amended of is his Memorandum repository for such a claim in which the Eighth The suspect manner improper. constitutional matte belies Aretakis’s understanding of case. of this factual framework is generally applicable when a pe 155, 162 (2d Cir. 2003) (“After [post conviction] (quoting (2d Cir. 2003) (citing to pretrial detention a person “lawfully committed not be punished in any manne trial detainees “may United States v. Walsh doe not apply until after conviction and sentence”) (quoting we can state, without further anal without further we can state, for negligence against Wells. Within the parameters Within against Wells. negligence for

RFT 36 N.Y.C.P.L.R. § 215. However, , 143 F.3d 765, 770 See, e.g., Hughes v. law, no legal action may be law, may no legal action to argue that the cause of action for intentional etakis was acquitted and never incarcerated. acquitted and etakis was meant to assert a cruel and inhuman claim by raising claim to assert meant a cruel and inhuman arded reasonable attorney fees pursuant to 42 arded reasonable attorney fees pursuant itations. Nonetheless, there is no need for us to analyze one of them. By failing to include intentional By failing one of them. ” We review a grant or denial of section review a grant or denial ” We Claim, this claim is time barred. Accordingly, barred. is time claim this Claim, e that would be the Town of North Greenbush, e that would be the his opponent’s attorney’s fees unless a year statute of limitations. year statute of limitations. emotional distress claim would fall because of would fall distress claim emotional summarized the law as to whethersummarized a successful d to prevailing plaintiffs who obtain some d to prevailing plaintiffs who obtain ued. Did it accrue when Aretakis was arrested on September oncluded on June 9, 2006? Without knowing when this action oncluded on June 9, 2006?this when Withoutknowing -65- 2006, Aretakis filed an eleven page Notice of Claim. Claim. an eleven page Notice of 2006, Aretakis filed LeBlanc-Sternberg v. Fletcher any action to enforce Section 1983, a district court, any action to enforce the claim would be fatally flawed as well. the claim Part II.D. Under New York Part II.D. Under a notice of claim pursuant to New York General Municipal Law to New York General Municipal pursuant a notice of claim supra

See about September 6, about September No such event occurred here because Ar event occurred No such , 449 U.S. 5, 15-16, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam). curiam). , 449 U.S. 5, 15-16, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per 35 Defendant Town of North Greenbush and Durivage wish Without specifics, we can only surmise that WithoutAretakis surmise specifics, we can only Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 65 of 68 of 65 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case 36 35 (2d Cir. 1998). Fees are regularly awarde (2d Cir. 1998). Fees are regularly prevailing of relief but not to significant measure defendants. Rowe Instead, “a plaintiff should not be assessed Our final issue is whether Nugent may be aw may Our final issue is whether Nugent 1988 fees for abuse of discretion. As an aside, the intentional infliction of infliction of the intentional As an aside, Under 42 U.S.C. § 1988(b), in “in its discretion, may other than the United States, a allow the prevailing party, the costs. reasonable attorney’s fee as part of the Eighth Amendment in his Memorandum of Law. We certainly hope that he did not mean to argue due process under not mean did he that hope Wecertainly of Law. in his Memorandum the Eighth Amendment For if he did, this constitutional amendment. Dkt. No. 52, Ex. D. Within that Notice of Claim, a multiplicity of claims were asserted, but of claims a multiplicity that Notice of Claim, D. Within Dkt. No. 52, Ex. was not distress emotional of intentional infliction distress within the Notice of emotional of infliction of action cannot survive against the Town. that is another reason why this cause U.S.C. § 1988. The Second Circuit has fairly U.S.C. § 1988. The Second Circuit commenced against a municipality, and, in our cas against a municipality, commenced service of timely unless there is a On or §§ 50-e to 50-I. recover his attorney fees: defendant in a § 1983 may n.6 (1989)). another legal deficiency. another legal deficiency. infliction of emotional distress is further weakened by the one the distress is further weakened by emotional of infliction when this cause of action accr we are not able to determine 16, 2005, or did the violation continue until his trial was c further. this matter may have accrued, we are unable to calculate the statute of lim may

RFT was to Id. raison d’etre Christiansburg Garment Christiansburg Ed.2d 648 (1978). A prevailing Ed.2d 648 is entitled to reasonable attorney fees. He is entitled to reasonable attorney fees. find that It is this burden. Nugent has met reasonable attorney fees from Aretakis is to fees from reasonable attorney theless cleaved to the spurious supposition that the case, but the Court made this rule of law this rule of the case, but the Court made ey’s on-the-record denial that Attorney Roche bly contorted the boundaries of Nugent’s actions bly contorted the boundaries of Nugent’s unreasonable, groundless, or thatunreasonable, groundless, the plaintiff unreasonable, or groundless, or or groundless, unreasonable, that the s quasi-judicial capacity is entitled to absolute s quasi-judicial capacity is entitled ithin an administrative or investigatory function. or ithin an administrative be experienced lawyers, made unfounded, even be experienced lawyers, made -66- conduct and proposed that Nugent’s conduct and proposed that Nugent’s onference. In order to frame a set of circumstances outside the a set of circumstances onference. In order to frame 460 F.3d 388, 399 (2d Cir. 2006). 460 F.3d 388, 399 , 434 U.S. 412, 422, 98 S.Ct. 694, 54 L. 412, 422, 98 S.Ct. , 434 U.S. Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 66 of 68 of 66 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case plaintiff continued to litigate after it clearly became so.” became after it clearly continued to litigate plaintiff Co. v. EEOC fees, be entitled to attorneys’ to by a plaintiff faith not show bad need defendant basis” for the award. provides “an even stronger though such a showing court finds that his claim was frivolous, that his claim court finds Nugent’s task in support of his application for Nugent’s task in Under these circumstances, we find that Nugent we find Under these circumstances, Panetta v. Crowley, Panetta v. Crowley, show that the action, as to him was frivolous, as to him show that the action, obviously so. We after it became continued to litigate acting within hi law that a prosecutor seminal apparent Not only is this from factsimmunity. of C evidently clear during the Rule 16 Aretakis unreasona contours of absolute immunity, fall w so that they may in prosecuting this matter to both claim Both Aretakis and Cholakis, who scurrilous, accusations about Nugent’s any foundation Without and to injure him. against him uphold the Catholic Church’s conspiracy of Judge Toom whatsoever, especially in the face he none about Aretakis, any negative comments made Aretakis. Not one iota of Roche was assigned the telephone task by Nugent in order to prejudice coincidence. only a mere fact was alleged to support this specious argument, detailed application for attorney fees and costs. a more is directed to submit

RFT and he is pp. 60-62. . All causes of granted See supra denied in part and of North Greenbush’s Motion to Dismiss of North Greenbush’s claim based upon the alleged municipal based upon the alleged claim days of the filing date of this Order; and it Aretakis in that the Town failed to investigate Aretakis in that the Town failed Nugent is frivolous and groundless. Nugent is Monell e Plaintiff and his family, targeted and harassed e Plaintiff and his family, Greenbush are dismissed except the cause of action Greenbush are dismissed -67- onable attorney fees and costs pursuant to 42 U.S.C. granted in part III. CONCLUSION on multiple occasions with prosecution. occasions with on multiple rth Greenbush alleging a , that Robert Wells’s Motion to Dismiss,, that Robert Wells’s Dkt. No. 50, is , that Robert Durivage’s and the Town , that Robert Durivage’s consistent Complaint serve and file a Second Amended , that John Aretakis may and is the prevailing party as to his dispositive motion Nugent , that Timothy , that Timothy Nugent’s Dkt. No. Judgment, Motion and/or Summary to Dismiss and he is dismissed from this action; and it is further from and he is dismissed Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 67 of 68 of 67 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case Based upon the foregoing, it is hereby the foregoing, Based upon ORDERED ORDERED ORDERED ORDERED ORDERED granted dismissed from this action; and it is further this from dismissed 53, is No. 52, is Dkt. Judgment, and/or Summary of North action against Durivage and the Town against the Town of No of selective treatment of policy, practice, and custom against the Plaintiff, threatened th threats made Plaintiff, and unfairly targeted him action; this from therefore Durivage is dismissed are only asserted against the Town and Such claims and it is further and Order, within ten with this Memorandum-Decision is further we find that Aretakis’s as to Complaint Amended directed to serve and file an application for reas § 1988, within twenty days of the filing date of this Order.

RFT -68- . Case 1:07-cv-01273-RFT Document 69 Filed 02/03/09 Page 68 of 68 of 68 Page 02/03/09 Filed 69 Document 1:07-cv-01273-RFT Case IT IS SO ORDERED IT IS SO February 3, 2009 February New York Albany,

RFT