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Average Customer Reviews
Now you can keep your refrigerator organized instead of just wishing you could.
With 24 cubic feet to work with, you get lots of great space. From post-workout
protein shakes to after-school snacks, LG's Door-in-Door® design keeps all your
favorites at your fingertips while reducing cold air loss to help keep foods,
fresher longer —all with the push of a button. Smart Cooling technology is designed
to help keep all your food fresher, longer. You don't have to sacrifice space,
either, thanks to the Slim SpacePlus® Ice System you get more shelf space.
Refrigerator Door:
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Warranty Information:
(based on 30 reviews)
Ratings Distribution
5 Stars
4 Stars
3 Stars
2 Stars
1 Stars
of respondents would recommend this to a friend.
Best Uses
Most Liked Positive Review
Wonderful fridge!
This refrigerator is extremely quiet and seems to keep vegetables fresher longer than any fridge we have ever owned. The ice maker is small but makes ice quickly and the fact that it is...Read complete review
This refrigerator is extremely quiet and seems to keep vegetables fresher longer than any fridge we have ever owned. The ice maker is small but makes ice quickly and the fact that it is small, it does not take up a lot of space in the fridge. I guess there is always a chance of getting a "lemon" in any product but this one for us is a "peach"!
Most Liked Negative Review
Bad door and drawers design; spits water
Would be a perfect refrigerator, if not some major door design issues: Doors will not close completely when gently pushed, they will bounce back, leaving a small gap. The door-in-door needs to...Read complete review
Would be a perfect refrigerator, if not some major door design issues: Doors will not close completely when gently pushed, they will bounce back, leaving a small gap. The door-in-door needs to be slammed really hard to get closed. The door sensors are useless and will not alert when doors are not closed completely. The right drawer cannot be open without opening both doors. The lower drawer will not come all the way out unless both doors are wide (more than 90 degrees) open. Also it literally spits water, so that it goes all over the cup and out...
Reviewed by 30 customers
Displaying reviews 1-10
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Uneven doors
By rands
from Maple Shade, NJ, United States
Comments about LG 24 Cu. Ft. Stainless Steel French Door Bottom Freezer Refrigerator:
One big complaint, one small complaint. Big- the doors are uneven. Meaning, one hangs out further than the other. Such an eyesore, I can't look at the fridge and not be bothered by it. The small- you have to open both doors to be able to open the fruit and vegetable drawers.
Bottom Line No, I would not recommend this to a friend
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Great fridge - So much room & great features
By Heidi
from Chicago
Great fridge. Wonderful capacity in the fridge and freezer. I wish the icemaker held more ice, but Its not a big deal to empty it into freezer compartment and have it make more when we know we will need additional. it is enough for daily uses. I love the lock feature on the ice and water dispenser for the littles. Fridge door and freezer drawer seals are great. Abt installers made sure it was just right before leaving.
Service and delivery comments:
Installers knew the product and knew to tweak slightly the doors for a perfect seal. Works great!
Bottom Line Yes, I would recommend this to a friend
By AngMQM
from Las Vegas, NV, United States
We love the Fridge, it is a great design having the freezer in the bottom and the 2 doors above open wide to access all the refrig. Tons of room!
Nice looking, very quiet
By Mikep767
from New York, NY, United States
Fridge is nice to look at and extremely quiet but the low profile ice maker makes the worlds smallest ice cubes...the melt in seconds. Wish I would have known before I bought the fridge, it would have been a deal breaker.
Looks nice and modern
By tsoychik
from Undisclosed
We bought this a month ago to replace old fridge. It looks pretty cool and pretty spacious inside.
Great fridge! Icemaker is garbage.
By KimberD
from Houston, TX, United States
I've owned this fridge for 15 months and the icemaker has stopped working. Very disappointed in this product.
Good design but mechanical problems
By TGInc
from Washington, DC, United States
Door in door is great as is general layout of fridge but 2 months in and already having to call for repair services due to problems with door around ice machine. Purchased an LG suite of 4 appliances - 1 had to be completely replaced, 2 require repair. Would not recommend LG products.
By PWB206
from Seattle, WA, United States
I bought this as a part of a new kitchen suite for my new home. Very sleek and beautiful, could not be happier with the entire purchase. Only downfall is the water dispenser, as it is not very user friendly. 99.9% of my guests place the glass under the ice dispenser and press the water button only to have the water shoot out on their hand and on the floor. It is nothing like the typical water dispenser on every other fridge out there.
Nice features but tricky to use.
By gogoeagle
from Stafford, VA, United States
Bought this refrigerator about a month ago as part of a kitchen suite of appliances. We were initially drawn to the door in door feature that allows you to access drinks and other items without having to open the refrigerator door. Unit was easy to install and looks great. The closure mechanism on the door in door feature is a bit weak and requires a lot of pressure to latch. We have had the door alarm go off every day since we bought it to let us know the door was not completely closed.
By Sergey
from Portland, OR, United States
Delivery is subject to reasonable access to the area without damaging the purchaser's property or the product, or jeopardizing the safety of the delivery personnel.
Fill out the form below to request Better Price for this product.
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What a great way to start our family time! Traveled for 15 hrs to get to this place. The kids had a blast. I would've given it 5 stars but for the less snow in the park. Only snow... read more
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What a great way to start our family time! Traveled for 15 hrs to get to this place. The kids had a blast. I would've given it 5 stars but for the less snow in the park. Only snow... read more
We visit Ruidoso once a year and even some of our children are now teenagers they still enjoy quite a lot going to this park. Fun for all the family !!!
What a great way to start our family time! Traveled for 15 hrs to get to this place. The kids had a blast. I would've given it 5 stars but for the less snow in the park. Only snow from a snow machine. But it's all good. We tried individual tubing as well as a group. They accept credit cards... More
Thank you for your recent review, First let me say that we are sorry that our snow was less than pristine. After suffering through five weeks of above normal temperatures, 20 to 30 and even 40 degrees above normal and high winds blowing at sustained speeds of 25 to35 mph with gusts to 70 mph it was impossible to operate... More
This place was recommended to us by my sister in law who comes here every winter so we decided to give it a shot. We have a 2 yr old and 5 yr old and they both had a blast. Our 2 yr old wasn't able to go beyond the Kidz Korral but he had great fun nonetheless. My 5... More
Kids had a great time tubing. Kids are 6 and 10 and had a blast. They have different levels of difficulty from those great for little kids to fast for the bigger kids/adults. They also had zip lining which my 6 year old loved.
We have a 2-year-old son who loves to tube at Winter Park. The inclusion of a kids-only area is a huge plus for us, as my wife and I have no intention on tubing if we're alone with our son. It's a huge plus that we only have to pay for our son ($10) if we're only utilizing the kiddie... More
Winter Park has outstanding customer service! We visited today with our 2 year old and 19year old kids and had an absolute blast. There are tube slides for the toddlers and he even met the height requirements for some of the bigger tube runs. We came later in the day so lines were non existent and had our fill of... More
We arrived just as they were opening on MLK day, and we're pleasantly surprised by the lack of lines. My 3 yr old had the time of his life! Along with the Kidz Korral, he was big enough to ride 2 of the intermediate runs. I would definitely recommend this to pretty much anyone... couples, singles, families w/ kids. Just... More
We loved this Place, we drove 12 hrs to spend the weekend in Ruidoso, on the weekends its very crowded and you need to be patient to get in the hills and get ready !
My review says I visited in 2015, but I actually visited in December 2014. (It didn't offer the option) We are planning to return sometime in the next few weeks. We decided for our anniversary last year we would spend an evening snow tubing and enjoying some winter fun. Ruidoso Winter Park was a fantastic choice. They maintained the hills... More
I haven't had this much fun in a long time! The tubing hills are perfect! Thrilling but not to scary. Very family friendly. You are able to rent ski pants, parkas and boots at a really reasonable price. There are food vendors set set up in a row all of which were wonderful and well priced. The pizza was amazing!... More
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Is there a place for my wife to hang out while my kids spend the time tubing or does she need to stay in the car?

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CREATIVE NETWORK - Review
Arts Alive Wales
Wednesday, November 30, 2016 from 10:00 AM to 5:00 PM (GMT)
Event Details
A day of focused, one-to-one professional review sessions with Arts Alive's Creative Director, Rebecca Spooner to provide constructive feedback and support practitioners of all disciplines with arts funding, project development, promotion and event organising.
Wednesday 30th November
Arts Alive Wales studio, Crickhowell
Only 6 places are available. 45 minute time slots.
10:00 – 10:45am
11:00 – 11:45am
12:00- 12:45pm
02:00 – 2:45pm
03:00 – 3:45pm
04:00 – 4:45pm
£15 / £10 for Creative Network members and students
Scroll down to book a place or tel: 01873 811579 / email: email@example.com
Rebecca Spooner has worked in management roles in the arts in Wales for over ten years and is experienced in arts fundraising, organising and promoting exhbitions, residencies, public talks and workshops, mentoring, arts participation and project management. Rebecca was an exhibiting artist for ten years, specialising in film and photography installation.
When & Where
Arts Alive Wales
The Old School, Brecon Road
NP8 1DG Crickhowell
United Kingdom
Wednesday, November 30, 2016 from 10:00 AM to 5:00 PM (GMT)
Add to my calendar
Arts Alive Wales
Phone:01873 811579


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Entertainment › Celebrities › Horatio Sanz
Horatio Sanz (born June 4, 1969) is a Chilean-born American actor and comedian best known as a cast member on Saturday Night Live from 1998-2006.
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Dimtech S.A. is a company specializing in the engineering design, construction and installation of systems related to air filtration of not only particle (dust) but also gaseous (odour) pollutants. In addition, company activities include air-conditioning and ventilation, Indoor Air Quality and the construction of Cleanrooms. Simultaneously, DIMTECH S.A. is a supplier of ...
based in Keratsini, GREECE.
EPP's humble beginning started at Rajkot, Gujarat in 1986 from the sheer determination and hard work of two bright and enterprising young men. Both, Jayraj Shah and Siddharth Shah joined hands in making their dream of a successful global company a reality. Today EPP an ISO 9001:2008 certified manufacturing facility is one of the leading global players in the rapidly ...
based in Rajkot, INDIA.
SKIMOIL INC. is a specialty design/custom manufacturer-builder, and distributor of marine and industrial pollution control equipment and systems. We specialize in all types of industrial oil skimmers and oil water separators. With just a few exceptions almost everything we do touches on oil somehow.
based in Carrboro, NORTH CAROLINA (USA).
De Nora Water Technologies provides a range of trusted disinfection and filtration technologies and aftersales support services for water and wastewater treatment in the energy, marine and municipal markets worldwide. With more than 50 years' experience in water treatment, the company has developed, delivered and installed thousands of installations worldwide across a ...
based in Colmar, PENNSYLVANIA (USA).
HD Fowler Company is the oldest and largest independent, family-owned distributor of waterworks, irrigation, pumps and wastewater treatment equipment in the Pacific Northwest, and one of the largest in America.
based in Bellevue, WASHINGTON (USA).
From inception, the company`s goal has been to design and manufacture the highest quality instrumentation and water sampling products available to the oceanographic community. In January 1992, General Oceanics Inc. created the G.O. Environmental Division. The goal of G.O. Environmental is to develop products for the air and water environmental industry. Agressive research ...
based in Miami, FLORIDA (USA).
Clarke Energy is a multinational specialist in the engineering, installation and maintenance of gas-fuelled power plants. Our facilities deliver fuel efficiency and help reduce carbon emissions. Applications include combined heat and power (CHP) with natural gas, biogas, landfill gas and coal gas. We are a the largest authorised distributor and service provider for GE's ...
based in Liverpool, UNITED KINGDOM.
Sureclean is an established international service contractor providing specialist and innovative solutions to the Oil & Gas, Petrochemical, Renewable, Utilities, Civil Engineering and Construction sectors. Specialising in high pressure and ultra high pressure water jetting and its associated applications, Sureclean have developed a portfolio of services in support of our ...
based in Alness, UNITED KINGDOM.
Instrumatic a/s is a Danish company specialized in the development and manufacturing of emission monitoring equipment, designed especially for harsh environments. Instrumatic is known for is high quality products, and recognized by the product brands OXYTRON and OXYDAN.
based in Ry, DENMARK.
Argus-Hazco offers an extensive line of industrial health, safety and environmental monitoring equipment, supplies and services. North American coverage is supported by eight offices in the United States and Canada to ensure that your job has the equipment and supplies you need when and where you need them. Our technicians, our sales reps and top management can speak with ...
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A.G.O. manufactures geophysics and oceanographics equipment including portable, manual, electric winches, slip ring units, rotary joints, wire counters payout systems, oceanographic instruments, and geophysics survey tools. We represent 3H Manufacturing, General Oceanics, Nobska, Hangzhou Prosper Electric Company, Horizon Fuel Cells, YC Synergy,and Palcan Electrolyzers
based in Victoria, BRITISH COLUMBIA (CANADA).
Based in Gloucestershire and Devon, working nationally and internationally, we specialise in the supply, technical support, service and repair of gas and dust analysers for indoor and outdoor air quality monitoring, noise monitors and weather stations. We have an extensive range of equipment and are able to make these available by way of sale, hire purchase, contract ...
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TDM, Technical Design & Marketing Service provides complete solutions for specific areas of the environmental market. That is, we do not offer every product for every industry but the applications we do address we do so completely, often offering multiple solutions for your application as well as all the products you require for that application. Though we are proud to ...
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Houm is a Norwegian company that sells meteorological instruments. We offer products from Gill Instruments Ltd and Observer Instruments BV. Market focus: the Norwegian and Swedish markets
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Branch Environmental supplies custom built pollution control equipment for industry. Our air pollution control equipment can clean up acids, organics, aerosols and mist to meet any emission control standards. Our equipment is also used for water treatment, including removal of volatile organics, ammonia and other gases.
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David F. Sullivan & Associates, Inc., manufacturers` representatives covering the six (6) New England states for water and wastewater treatment plants serving the industry for over a quarter of a century. Our principals cover most applications from the headworks building through dewatering and odor control. In the potable water market, we have tried and true treatment ...
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based in Dana Point, CALIFORNIA (USA).
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As the Crown Nominations Commission meets to decide on the next Archbishop of Canterbury, Kevin Bocquet profiles those in the running with bookmaker Paddy Power and also asks what kind of Archbishop would different parts of the church like to see.
Roger McGough talks about the National Day of Poetry and how faith and religion has inspired his work.
Anglicans in Sydney are about to vote on a new marriage liturgy in which wives agree to submit to their husbands. The order of service is already being used in some parishes there and has strong support from Archbishop Peter Jensen. Phil Mercer reports from Sydney.
The Pope's Butler Paolo Gabriele's went on trial in Rome yesterday. David Willey tells Edward the implications of the case for the Vatican.
Thousands of marchers in Belfast yesterday celebrated the centenary of the Ulster Covenant. William Crawley tells Edward about the religious fervour behind it that almost led to civil war.
Where does Yoga come from and why is it considered not to be Christian? Edward meets Yoga teacher Jane
Will Ross reports from Nigeria in the aftermath of last week's suicide bomber at St. John's Roman Catholic Cathedral in Bauchi.
Is the concept of free speech a universal value? Edward explores this with Iranian Journalist Hazir Teimourian and Jameel Yusha'u from the University of Northumberland.


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July 23, 2009
ERIC LANDON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,v.COUNTY OF ORANGE, THE ORANGE COUNTY MEMORANDUM DECISION DEPARTMENT OF PROBATION, VICTORIA CASEY, AND ORDER ANN E. PUTNAM, VINCENT MORGIEWICZ, AND KROLL LABORATORY SPECIALISTS, INC., DEFENDANTS.
Before the Court are (1) the Motion to Dismiss of Defendants County of Orange ("County"), the Orange County Department of Probation ("Probation Department"), Victoria Casey, Ann E. Putnam, and Vincent Morgiewicz (collectively, the "County Defendants"),*fn1 filed on January 5, 2009 (Doc. 7); and (2) the Motion to Dismiss of Defendant Kroll Laboratory Specialists, Inc. ("Kroll"), filed on January 30, 2009 (Doc. 15).
I. Background
The following facts alleged in the First Amended Complaint are accepted as true for the purposes of the instant motions.
A. The Parties
On November 26, 2008, Plaintiff Eric Landon brought an action pursuant to 42 U.S.C. § 1983 ("Section 1983") on behalf of himself and all others similarly situated, against Defendants County, Probation Department, Casey, Putnam, Morgiewicz, and Kroll. (Am. Compl. ¶¶ 5-9, 11.) At all times relevant to this action, Casey was the Director of the Probation Department; Putnam was a Probation Officer employed by the Probation Department; and Morgiewicz was a Probation Supervisor employed by the Probation Department. (Id. ¶¶ 7-9.) Kroll is a corporation which at all times relevant to this action held a New York State Department of Health Laboratory Permit for comprehensive Forensic Toxicology and, pursuant to contracts with the County, performed substance abuse testing services, which entailed analyzing oral fluid samples provided by probationers and reporting the presence or absence of illegal substances. (Id. ¶¶ 11, 14.)
B. Facts
On January 28, 2002, Plaintiff Eric Landon was convicted in the County Court, County of Orange, New York, of forgery in the second degree, a class D felony under the New York State Penal Law Section 170.10. (Id. ¶ 12.) He was sentenced to a five-year term of probation. (Id.) One of the conditions of his probation was that he submit to random and periodic drug testing upon the direction of his probation officer. (Id. ¶ 13.) On December 17, 2007, Putnam ordered Plaintiff to submit an oral fluid sample to determine whether he was in compliance with his probation. (Id. ¶ 15.) Plaintiff submitted an oral sample, which was taken using a device manufactured by Orasure Technologies, Inc. ("Orasure") and purchased by the Probation Department and/or the County from Kroll. (Id. ¶ 16.) Putnam did not require, and Plaintiff did not give, a simultaneous urine sample. (Id. ¶ 17.) On the same day the oral sample was taken, December 17, 2007, Plaintiff independently obtained a blood test to protect himself from a possible false positive result from the oral sample. This blood test came back negative for any illicit substances. (Id. ¶ 19.)
Plaintiff's oral sample was sent by the Probation Department to Kroll to determine whether or not it contained illicit substances. (Id. ¶ 18.) Upon an initial screening, Kroll determined that the amount of THC*fn2 in the oral sample exceeded Kroll's screen cutoff level of 1.0 ng/ml. (Id. ¶ 21.) On December 20, 2007, after having only screen-tested the oral sample, and without confirming it through any other testing (id. ¶ 24), Kroll informed the Probation Department that Plaintiff's oral sample tested positive for THC (id. ¶ 28). Plaintiff contends that this conduct contravened the New York State Department of Health Laboratory Standards, which governs holders of Forensic Testing Laboratory Permits and requires the oral sample to be subjected to further confirmatory testing before being reported as positive. (Id. ¶ 25.)
At the time the oral sample was screened by Kroll, Orasure's recommended screen test cutoff level for THC was 3.0 ng/ml, and the proposed screen test cutoff level of the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration ("SAMHSA") was 4.0 ng/ml. (Id. ¶¶ 22-23.) In 2004, SAMHSA proposed revisions to its mandatory guidelines for federal workplace drug testing, which stated that a urine specimen must be collected at the same time an oral fluid sample is taken. (Id. ¶ 26.) Plaintiff alleges these proposed revisions were the industry-wide standard for forensic drug testing and that Kroll had actual and/or constructive notice of them at the time he was tested in December 2007. (Id. ¶ 27.)
Plaintiff asserts that Defendant Kroll's written report to the Probation Department was issued "unlawfully, negligently, and as part of a policy of deliberate indifference to [P]laintiff's Fourteenth Amendment right to due process of law" for the following reasons: (1) Kroll's screen test cutoff level of 1 ng/ml was lower than Orasure's recommended level of 3 ng/ml; (2) Kroll's cutoff level was lower than SAMHSA's proposed level of 4 ng/ml; (3) no simultaneous urine sample was taken; (4)Kroll's testing did not comply with relevant New York State standards requiring confirmation testing before reporting a positive result;and (5) Kroll had knowledge of the potential for false positives when using an oral sample alone, and failed to disclose this information to the Probation Department. (Id. ¶ 29.) Plaintiff alleges that Kroll's conduct was performed systematically and in accordance with its ongoing procedures, policies, and practices. (Id. ¶ 30.) Further, Plaintiff contends that Kroll's actions were carried out jointly and in concert with Defendants Casey, County of Orange, and the Probation Department. (Id. ¶ 49.)
After receiving Kroll's written report regarding the oral sample, the Probation Department filed a violation of probation ("VOP") petition with the Orange County Court. The petition, which was signed by Putnam and Morgiewicz, sought to revoke Plaintiff's probationary sentence and have him re-sentenced to a period of incarceration. (Id. ¶ 31.) The petition charged Plaintiff with violating two conditions of his probationary sentence by using marijuana and by falsely reporting to his officer that he had not used drugs. (Id. ¶ 32.)
On January 2, 2008, one day before Plaintiff's probationary period was to expire, he was arraigned before the Orange County Court on the VOP petition. (Id. ¶ 34.) At this time, he provided the court and the Probation Department with the results of his independently obtained blood test. He also submitted to a urine test on this date, which came back negative for THC. (Id. ¶¶ 34-35.) Despite this evidence, the Probation Department chose to continue the VOP proceedings. (Id. ¶ 36.) Plaintiff subsequently appeared before the Orange County Court four more times in 2008: on January 22, February 15, March 12, and March 20. (Id. ¶¶ 37-40.) On March 20, 2008, despite the County Defendants' insistence that the VOP proceedings continue, the Orange Country District Attorney elected not to go forward with the revocation hearing and the Probation Department withdrew the VOP petition. (Id. ¶ 40.) Thus, Plaintiff alleges that the proceedings terminated in his favor on the merits. (Id.)
Plaintiff contends that Putnam and Morgiewicz lacked probable cause to file the VOP petition and, therefore, owed Plaintiff a duty not to file it. (Id. ¶ 33.) Plaintiff further alleges that the conduct of Putnam, Morgiewicz, and Casey was "arbitrary, capricious, and irrational and was carried out with malice and as part of a policy or practice of deliberate indifference to [his] welfare, property and liberty interests and Fourteenth Amendment right to due process of law." (Id. ¶ 45.) According to Plaintiff, the acts of Putnam and Morgiewicz were the result of inadequate training by Casey, the County, and the Probation Department. (Id. ¶ 46.) Finally, Plaintiff asserts that, as a result of Defendants' conduct, he suffered a "loss of freedom" because he had to serve an extended probationary term, as well as emotional and psychological harm, humiliation, and monetary loss.*fn3 (Id. ¶ 42.)
The County Defendants filed a Motion to Dismiss on January 5, 2009, arguing that Plaintiff failed to allege the elements of a malicious prosecution claim pursuant to Section 1983; the County Defendants are entitled to immunity; and Plaintiff does not sufficiently allege that the County failed to train or was acting pursuant to a custom, policy or practice. (Doc. 7.) Defendant Kroll filed a Motion to Dismiss on January 30, 2009, on the basis that Kroll is not a state actor and Plaintiff failed to allege a deprivation of his constitutional rights. (Doc. 15.) Plaintiff filed an Opposition to Defendants' Motions to Dismiss on January 16, 2009. (Doc. 10.)
II. Discussion
A. Standard of Review
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era,... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft, 129 S.Ct. at 1950.
In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 1950. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'shown' -- 'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).
B. Section 1983
Section 1983 provides in pertinent part that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured...." 42 U.S.C. § 1983. To state a claim for relief pursuant to Section 1983, a plaintiff must establish (1) the deprivation of a right secured by the Constitution or laws of United States, and (2) that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
1. Deprivation of a Constitutional Right
Although Plaintiff alleges that Defendants acted with "deliberate indifference to [his] welfare, property, and liberty interests and Fourteenth Amendment right to due process of law" (Am. Compl.¶¶ 45, 50), he contends in his Opposition that the First Amended Complaint states a claim for malicious prosecution pursuant to Section 1983 (Opp'n 1-3). In Albright v. Oliver, 510 U.S. 266, 268 (1994), the Supreme Court held that the Fourteenth Amendment right to substantive due process does not support a federal claim for malicious prosecution. The Second Circuit later held, however, that Albright does not bar the assertion of a federal claim for malicious prosecution under the Fourth Amendment. See Singer v. Fulton, 63 F.3d 110, 114 (2d Cir. 1995). The Fourth Amendment right implicated by a malicious prosecution claim is the right to be "free of unreasonable seizure of the person," which the Singer Court described as "the right to be free of unreasonable or unwarranted restraints on personal liberty." Id. at 16.
Although Plaintiff does not explicitly allege a violation of his Fourth Amendment rights, viewing the First Amended Complaint in the light most favorable to him, I find that his allegations amount to a claim that Defendants' conduct resulted in an "unreasonable or unwarranted restraint[] on [his] personal liberty." Id. Thus, I will review the First Amended Complaint to determine whether it states a claim for malicious prosecution pursuant to the Fourth Amendment.*fn4
A malicious prosecution claim brought under Section 1983 is governed by state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). Given that "public policy favors bringing criminals to justice" and allowing accusers "room for benign misjudgments," the "law... places a heavy burden on malicious prosecution plaintiffs." Smith-Hunter v. Harvey, 734 N.E.2d 750, 752 (N.Y. 2000). To state a claim for malicious prosecution, state law requires that Plaintiff allege: (1) commencement of a criminal proceeding against him, (2) termination of that proceeding in his favor, (3) absence of probable cause for the initiation or continuation of the proceeding, and (4) malice. See Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). In addition, Plaintiff must "show some deprivation of liberty consistent with the concept of 'seizure'.... to ensure that [he] has suffered a harm of constitutional proportions." Singer, 63 F.3d at 116; accord Rutigliano v. City of New York, No. 08-CV-0531, 2009 U.S. App. LEXIS 9559, at *7 (2d Cir. May 1, 2009) ("To sustain a § 1983 malicious prosecution claim, the state law elements must be met, and there must also be a showing of a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights." (internal quotation marks omitted)).
a. Fourth Amendment Seizure
To state a federal malicious prosecution claim, Plaintiff must allege an unreasonable seizure by a state actor in violation of the Fourth Amendment. Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.1997); Singer, 63 F.3d at 116 ("A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must... show some deprivation of liberty consistent with the concept of 'seizure.'"). "The Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person -- i.e., the right to be free of unreasonable or unwarranted restraints on personal liberty." Rohman v. N.Y. City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000). In addition,"since the gist of a claim for malicious prosecution is abuse of the judicial process, a plaintiff pursuing such a claim under § 1983 must [also] show that the seizure resulted from the initiation or pendency of judicial proceedings." Murphy, 118 F.3dat 944. Unreasonable seizures protected against by the Fourth Amendment are not limited to physical detention. Id. at 945. Rather, the imposition of restrictive conditions of release may constitute a seizure within the meaning of the Fourth Amendment. Id. at 946. For example, requiring one's appearance in court and curtailing one's constitutional right to travel as conditions of release may constitute Fourth Amendment seizures. See Rohman, 215 F.3d at 216; Murphy, 118 F.3d at 946.
Here, as a result of the County Defendants' initiation of the VOP proceeding against Plaintiff, Plaintiff's presence was required in court five times. In addition, Plaintiff's period of supervision, which had been scheduled to expire on January 3, 2008, was extended until March 20, 2008. (Am. Compl. ¶ 42.) The terms of his probation prohibited Plaintiff from, among many other things, traveling outside of Orange County for longer than a week without permission.*fn5
(Kim Aff. Ex. C.) Viewing the First Amended Complaint in the light most favorable to the Plaintiff, these restrictions and his continuation under supervision, at least at the pleading stage, constitute restraints on personal liberty or "seizures" within the meaning of the Fourth Amendment.*fn6 See Rothman, 215 F.3d at 216 (five court appearances before charges were dropped and requirement that plaintiff remain in state as condition of post-arraignment release were sufficient restraints of liberty to constitute Fourth Amendment seizures); Murphy, 118 F.3d at 946 (eight court appearances and restricting plaintiff's right to travel outside of New York State as condition of pretrial release were Fourth Amendment seizures); Dorman v. Castro, 214 F. Supp. 2d 299, 308 (E.D.N.Y. 2002) (issuance of appearance ticket and requirement to appear in court, even without restrictions placed on interstate travel, constituted Fourth Amendment seizure).
b. Commencement or Continuation of a Criminal Proceeding
To state a claim for malicious prosecution, Plaintiff must establish that a criminal proceeding was commenced or continued against him. Rutigliano, 2009 U.S. App. LEXIS 9559, at *6; Posr, 944 F.2d at 100. New York Criminal Procedure Law defines a criminal proceeding as "any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation." N.Y. Crim. Proc. Law § 1.20(18). A VOP proceeding occurs in criminal court and is related to a completed criminal action and, therefore, appears to fit squarely within the definition of a criminal proceeding as defined by New York State law. See id. § 410.70(5) (hearing on violation is held before a criminal court, which at the conclusion of the hearing, "may revoke, continue or modify the sentence of probation or conditional discharge"); Darvin M. v. Jacobs, 509 N.E.2d 336, 337 (N.Y. 1987) (probation revocation proceeding is criminal proceeding brought after completed criminal actionwithin meaning of N.Y. Crim. Pro. Law § 1.20(18)); People v. Whitehead, 638 N.Y.S.2d 856, 857 (Sup. Ct. 1994)(same). Although the Court has found no authority addressing the specific issue in the context of a malicious prosecution claim, a number of courts considering the issue in other contexts have held that a probation revocation proceeding is a criminal proceeding. See, e.g., Darvin M., 509 N.E.2d at 337 (probation revocation proceeding was criminal proceeding, not criminal action, for purposes of determining whether probation department attorneys properly appeared as counsel); People v. Recor, 619 N.Y.S.2d 186, 187 (App. Div. 1994) (violation of probation giving rise to revocation proceeding is criminal proceeding); Whitehead, 638 N.Y.S.2d at 857 (probation revocation proceeding is criminal proceeding pursuant to N.Y. Crim. Pro. Law § 1.20(18)).*fn7 Thus, viewing the First Amended Complaint in the light most favorable to Plaintiff, I find that he has adequately alleged that a criminal proceeding was commenced and continued against him.
Plaintiff must also allege that each of the Defendants was responsible for commencing and/or continuing the criminal proceeding against him.*fn8 See Rothstein v. Carriere, 373 F.3d 275, 293-94 (2d Cir. 2004). Plaintiff has done so with respect to the County Defendants. Specifically, he asserts that the Probation Department filed with the County a VOP petition, which was signed by Defendants Putnam and Morgeiwicz, and that these Defendants and Casey later insisted upon continuing the VOP action despite Plaintiff's presentation of purportedly exculpatory evidence. (Am. Compl. ¶¶ 31, 36-40.) Plaintiff has not, however, pleaded this element with respect to Defendant Kroll. "[R]eporting a crime to law enforcement and giving testimony does not constitute the 'initiation' of a criminal prosecution." Rothstein, 373 F.3d at 293. Nor does "'merely respond[ing] to requests for information.'" Baba-Ali v. City of New York, 979 F. Supp. 268, 276 (S.D.N.Y. 1997) (quoting Whittaker v. Duke, 473 F.Supp. 908, 909 (S.D.N.Y. 1979)). Plaintiff must allege more -- specifically, that Kroll "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Rothstein, 373 F.3d at 294 (internal citations and quotation marks omitted) ("mere fact that a witness provided false information to the government does not warrant a conclusion that the witness initiated the prosecution where the rest of the evidence suggests otherwise").
Plaintiff contends only that Kroll informed the Probation Department by written report of the results of the screen test with "knowledge of the potential for false positive readings for THC when using oral fluid without a simultaneous urine sample and failed to disclose same to the Probation Department." (Am. Compl. ¶¶ 28-29.) Viewing these allegations in the light most favorable to Plaintiff, I find that Plaintiff has not alleged that Kroll played an active role in the prosecution or otherwise encouraged the County Defendants to act. Kroll merely reported apparently truthful information to the County Defendants at their request. Plaintiff does not claim that Kroll made the decision or in any way pressed the County Defendants to initiate or continue the VOP proceeding. Moreover, Plaintiff's allegation that Kroll did not disclose to the County Defendants that there was a potential for a false positive does not render plausible the contention that Kroll initiated the VOP proceeding. Even knowingly providing false information does not necessarily suffice for initiation. See Rothstein, 373 F.3d at 294. Here, Plaintiff alleges only that Kroll omitted information about the possibility of a false positive, which is far short of knowing the information it provided was false. Because Kroll could have omitted information about the possibility of false positives while still believing that it was providing truthful information, and in light of the absence of any allegations regarding Kroll's active participation or interest in the VOP proceeding against Plaintiff, Plaintiff has not stated a plausible claim for malicious prosecution against Kroll.
c. Termination of the Criminal Proceeding in Plaintiff's Favor
Plaintiff must next allege that the criminal proceeding terminated in his favor -- i.e., that there was "a final termination that [wa]s not inconsistent with innocence." Id. at 286; accord Russell, 68 F.3dat 36 (when proceeding does not end in acquittal, plaintiff must show that final decision was indicative of innocence). "As a general rule, under the common law any final termination of a criminal proceeding in favor of the accused, such that the proceeding cannot be brought again, qualifies as a favorable termination for purposes of a malicious prosecution action." Smith-Hunter, 734 N.E.2d at 753 (holding that dismissal on statutory speedy trial grounds was a "favorable termination" of criminal action). The state's abandonment of a prosecution under circumstances not inconsistent with the plaintiff's innocence may constitute a favorable termination. See Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002) ("state's effective abandonment of a prosecution, which resulted in a dismissal for violation of the accused's speedy trial rights, without an adjudication of his guilt or innocence, constituted a favorable termination"); Garrett v. Port Auth., No. 04-CV-7368, 2006 U.S. Dist. LEXIS 55548, *14-15 (S.D.N.Y. Aug. 7, 2006) (although circumstances in which act of withdrawal or abandonment by prosecutor may be used to prove favorable termination have been narrowed, it may, in certain circumstances, still be considered favorable termination); Lawson v. N.Y. Billiards Corp., 331 F. Supp. 2d 121, 131 (E.D.N.Y. 2004) ("A formal abandonment of the proceedings by the public prosecutor constitutes favorable termination." (internal quotation marks omitted)); Smith-Hunter, 734 N.E.2d at 754 ("[D]ismissal without prejudice qualifies as a final, favorable termination if the dismissal represents the formal abandonment of the proceedings by the public prosecutor." (internal quotation marks omitted)); Verboys v. Town of Ramapo, 785 N.Y.S.2d 496, 497 (App. Div. 2004) (criminal proceeding, which was dismissed without prejudice, terminated in plaintiff's favor where record demonstrated that prosecution elected not to proceed with charges because allegations were not supported by evidence). Here, Plaintiff contends that the Orange County District Attorney voluntarily refused to go forward with the revocation hearing and, as a result, the Probation Department withdrew the petition. (Am. Compl. ¶ 40.) He further alleges that his extended period of probation ended on the same day. (Id. ¶ 42.) Thus, it appears Plaintiff has adequately alleged that the VOP proceeding was terminated in his favor because he contends that the District Attorney voluntarily abandoned the prosecution under circumstances not inconsistent with his innocence -- i.e., Plaintiff's presentation of purportedly exculpatory evidence -- and in circumstances under which the petition could not be re-filed because Plaintiff's probationary period was over. See Posr v. Court Officer Shield #207, 180 F.3d 409, 418 (2d Cir. 1999) (termination carries no implications about legitimacy of prosecution where possibility remains open that government will pursue same charges against same defendant). Nevertheless, because I am permitting Plaintiff to amend the First Amended Complaint to address other issues (see Parts II.B.1.d, II.B.1.e below), Plaintiff is directed to specify, in any second amended complaint he files, what reasons were given by the District Attorney for deciding not to go forward with the VOP hearing and whether, under state law, it could be re-prosecuted.
d. Probable Cause
Plaintiff must plead facts sufficient to establish a lack of probable cause for the County Defendants' initiation and/or continuation of the VOP proceeding. See Posr, 944 F.2dat 100. "Probable cause... exists where the facts and circumstances are sufficient to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." See Rothstein, 373 F.3d at 292 (internal quotation marks omitted). In the malicious prosecution context, "probable cause has [also] been defined as 'the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of." Ferlito v. City of Oswego, No. 03-CV-96, 2006 U.S. Dist. LEXIS 54561, at *33-34 (N.D.N.Y Aug. 4, 2006) (quoting Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994)).
The facts as alleged in the First Amended Complaint show that there was probable cause to file the VOP petition and initiate the VOP proceeding against Plaintiff. Plaintiff's December 17, 2007 oral fluid sample tested positive for marijuana (Am. Compl. ¶ 21), the use of which was unquestionably a violation of the terms of Plaintiff's probation (id. ¶ 13; Kim Aff. Ex. C). Moreover, Plaintiff contends that Kroll "failed to disclose" to the County Defendants the potential for false positive readings for THC with oral fluid samples. (Am. Compl. ¶ 29.) Thus, Plaintiff admits that the County Defendants were not aware of this risk and had no reason to doubt the accuracy of the results of the December 17, 2007 oral fluid test.*fn9 Accordingly, Plaintiff's malicious prosecution claim against the County Defendants is dismissed to the extent that it is based on the filing of the VOP petition and initiation of the VOP proceeding.
I must next assess whether the County Defendants lacked probable cause to continue the VOP proceeding after Plaintiff presented purportedly exculpatory evidence. On January 2, 2008, at his arraignment before the Orange County Court, Plaintiff presented to the County Defendants the results of his independent blood test, which indicated that he tested negative for THC on December 17, 2007.*fn10 (Id. ¶ 34.) Despite this information, Plaintiff contends that the County Defendants improperly insisted upon continuing the proceedings until March 20, 2008, when the VOP petition was finally withdrawn. (Id. ¶¶ 36-40.)
The continuation of a criminal proceeding without probable cause may also amount to malicious prosecution. "'Under New York law, even when probable cause is present at the time of arrest, evidence could later surface which would eliminate that probable cause. In order for probable cause to dissipate, the groundless nature of the charge must be made apparent by the discovery of some intervening fact.'" Kinzer v. Jackson, 316 F.3d 139, 144 (2d Cir. 2003) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)). In addition, the "failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause." Lowth, 82 F.3d at 571 (internal quotation marks omitted).
This does not mean, however, that a criminal defendant's mere presentation of contradictory evidence dissipates probable cause. The prosecution must have a reasonable time to investigate and evaluate that evidence. In the instant case, for example, the Defendants would be permitted to assess the authenticity of the report Plaintiff presented, the reputation of the independent lab, the reliability of the methods it used, whether it was in fact Plaintiff who gave the blood sample it tested, and any other issues relevant to the weight to be given to Plaintiff's evidence. They would also be permitted to revisit Kroll's procedures to determine whether its results were reliable. Only if Defendants unreasonably failed to take such steps or pursued the VOP proceeding after its baselessness was apparent would a malicious prosecution claim stand.
The First Amended Complaint, however, presents no information on these issues. It states merely that the VOP proceeding was adjourned four times. It does not state what reasons were proffered for the adjournments or what occurred between the adjourned dates. If those ten weeks were reasonably spent investigating the issues, there was no absence of probable cause.
If, on the other hand, Defendants did nothing during those ten weeks to determine if Plaintiff's evidence undermined their own, they may be liable. To state a valid claim in these circumstances, Plaintiff must allege that Defendants were not exercising reasonable diligence during that time, or that it became apparent during that time that his result was reliable and theirs was not. At this stage, Plaintiff has not alleged that, during the period between January 2, 2008, and March 20, 2008, Defendants unreasonably failed to investigate or learned that their VOP charge was groundless, and thus the malicious prosecution claim is insufficient.
Plaintiff may, however, provided that he has a good faith basis for doing so, amend his First Amended Complaint to include factual allegations which show that Defendants lacked probable cause to continue the VOP proceeding against him after January 2, 2008. See Fed. R. Civ. P. 15(a)(2) ("The [C]court should freely give leave [to amend] when justice so requires.").
Specifically, Plaintiff should plead facts regarding the reasons proffered by Defendants for the four adjournments and, to the extent he knows, what actions, if any, Defendants took to investigate Plaintiff's purportedly exculpatory evidence and the results of the December 17, 2007 oral sample.
e. Malice
Finally, Plaintiff must allege that the County Defendants acted with malice in continuing the VOP proceeding against him. See Posr, 944 F.2d at 100. "Under New York law, malice does not have to be actual spite or hatred, but means only that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served." Lowth, 82 F.3d at 573 (internal quotation marks omitted); accord Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411, 423 (S.D.N.Y. 2002). "There must be a showing of some deliberate act punctuated with awareness of conscious falsity to establish malice." Korthas v. City of Auburn, No. 04-CV-537, 2006 U.S. Dist. LEXIS 38745, at *15 (N.D.N.Y June 9, 2006). Although actual malice and lack of probable cause are independent elements of a malicious prosecution claim, they do relate to one another. See Rounseville, 13 F.3d at 631. "In most cases, the lack of probable cause -- while not dispositive -- tends to show that the accuser did not believe in the guilt of the accused, and malice may be inferred from the lack of probable cause." Lowth, 82 F.3d at 573 (internal quotation marks omitted). Plaintiff has not alleged improper motive such as deliberate extension of the VOP proceedings after Defendants knew or should have known the charges were baseless. But he may attempt to include proper allegations of malice in his second amended complaint, if he can do so in good faith.
2. Color of State Law
To state a claim for relief pursuant to Section 1983, Plaintiff must also allege that each of the Defendants was acting under color of state law in taking the complained-of actions. "According to the Supreme Court, 'a person acts under color of state law only when exercising power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122-123 (2d Cir. 2004)(quoting Polk County v. Dodson, 454 U.S. 312, 317-18 (1981)). "State employment is generally sufficient to render the defendant a state actor." Id.
a. Casey
Plaintiff alleges that Defendant Casey, as the Director of Probation, was the official responsible for implementing the Probation Department's policies, practices and procedures, and for training all of the Department's officers and supervisors. (Am. Compl. ¶ 7.) Plaintiff also avers that Casey was the final policymaker for the Probation Department and the County, and that all of the complained-of conduct occurred under her supervision and direction and was the result of her failure to properly train Defendants with respect to drug screening. (Id. ¶¶ 10, 44, 46.) Moreover, Plaintiff contends that Casey insisted on continuing the VOP proceeding on five separate occasions despite Plaintiff's presentation of allegedly exculpatory information. (Id. ¶¶ 36-40.) Plaintiff has thus sufficiently alleged that Casey was acting under color of state law when she took the complained-of actions because she was acting in her official capacity as Probation Director. See Patterson v. County of Oneida, 375 F.3d 206, 230 (2d Cir. 2004) ("[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." (quoting West v. Atkins, 487 U.S. 42, 49-50 (1988)).
b. Putnam and Morgiewicz
Plaintiff alleges that Putnam, who was Plaintiff's Probation Officer, and Morgiewicz, who was a Probation Supervisor, signed the VOP petition and insisted that the VOP proceeding continue on five separate occasions despite Plaintiff's presentation of allegedly exculpatory information. (Am. Compl. ¶¶ 8-9, 31, 36-40.) Because Plaintiff alleges that these Defendants took the complained-of actions while acting in their official capacities, he has adequately alleged that they were acting under color of state law. See Patterson, 375 F.3d at 230.
c. The County
To state a Section 1983 claim against a municipality, the plaintiff must allege that the deprivation of his or her constitutional right was caused by a custom or policy of the municipality, as municipal liability may not simply be based on a theory of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). A policy, custom, or practice of the municipal entity may be inferred where "the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Patterson, 375 F.3d at 226 (internal quotation marks omitted). In addition, a municipality may be held liable for the acts of a municipal official who possessed final policymaking authority with respect to the challenged conduct. See Jeffes v. Barnes, 208 F.3d 49, 57-58 (2d Cir. 2000).
Plaintiff asserts that Defendants' actions were taken pursuant to a policy or practice of deliberate indifference to Plaintiff's welfare, property and liberty interests, and that the County failed to adequately train Defendants in the proper manner of drug screening. (Am. Compl. ¶¶ 45-46.) Although these allegations are conclusory, there are (just barely) sufficient facts alleged in the First Amended Complaint from which the Court can infer such a policy or custom and failure to train. See Davis v. County of Nassau, 355 F. Supp. 2d 668, 678 (E.D.N.Y. 2005) ("[M]ere assertions that a municipality has a custom or policy of violating constitutional rights are insufficient to state a Section 1983 claim in the absence of allegations of fact tending to support, at least circumstantially, such an inference." (internal quotation marks omitted)). Plaintiff alleges that Putnam took the December 17, 2007 oral sample without taking a simultaneous urine sample (Am. Compl. ¶¶ 17, 33), and that the County "contracted [with] Kroll to analyze oral fluid samples" to determine whether probations were in compliance with the terms of their probations (id. ¶ 14). On the basis of these facts, Plaintiff has pleaded that the County had a policy or custom of taking oral fluid samples without taking a simultaneous urine sample and that such practice was in contravention of numerous guidelines. Accepting those allegations as true, he has sufficiently alleged that the County failed to train members of the Probation Department in proper drug screening procedures. Moreover, having alleged that Casey was a final policymaker and responsible for the purportedly wrongful continuation of the proceedings against Plaintiff, Plaintiff has pleaded sufficient facts to state a claim for malicious prosecution against the County. See Jeffes, 208 F.3d at 57 (municipality may be held liable where deprivation of constitutional right was caused by official who had final policymaking authority and whose actions, therefore, represented municipality's official policy). Accordingly, Plaintiff has adequately pleaded the County's responsibility for the complained-of actions.
C. Immunity
The individual County Defendants allege that they are entitled to absolute immunity because their actions were "prosecutorial in nature" or, in the alternative, that they are entitled to qualified immunity because it was objectively reasonable for them to believe that their actions did not violate a constitutionally protected right. (Mem. of Law on Behalf of County Defs. 16-17.) "[E]xecutive officials receive qualified immunity, whereby government officials performing discretionary functions... are shielded from liability... insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Scotto v. Almenas, 143 F.3d 105, 110 (2d Cir. 1998) (internal quotation marks omitted) (alterations in original). "A limited number of officials are entitled to absolute immunity from § 1983 damages liability for their official acts," if those acts are judicial or prosecutorial in nature. Id. at 110-11. "Courts take a functional approach when determining whether an official receives qualified or absolute immunity; the level of immunity flows not from rank or title or location within the Government, but from the nature of the [official's] responsibilities." Id. at 110 (internal quotation marks omitted) (alterations in original); accord Stewart v. Lattanzi, 832 F.2d 12, 13 (2d Cir. 1987). "Parole officers... receive absolute immunity for their actions in initiating parole revocation proceedings and in presenting the case for revocation to hearing officers, because such acts are prosecutorial in nature." Scotto, 143 F.3d at 112. But where the officer serves more as an investigator than a prosecutor, absolute immunity does not lie. See id. at 112-13 (parole officer who issued violation report to supervisor and did not have discretionary authority to initiate parole revocation proceedings was not entitled to absolute immunity); Taylor v. Sullivan, 980 F. Supp. 697, 707-08 (S.D.N.Y. 1997), aff'd on other grounds, No. 97-2831, 1998 U.S. App. LEXIS 27980 (2d Cir. Oct. 27, 1998) (parole officers not responsible for initiating parole revocation proceedings or presenting case for revocation are not entitled to absolute immunity because their actions are not prosecutorial).
I cannot tell on the present record what authority or responsibility each individual County Defendant had with respect to the decision to continue the VOP proceeding against Plaintiff after January 2, 2008. It seems unlikely that it was purely prosecutorial, given that a prosecutor from the Orange County District Attorney's Office was involved. In any event, given that the nature of Defendants' actions (including what actions they took after January 2, 2008, and when, if ever, the baselessness of the VOP action became apparent) must be examined before a decision regarding immunity is made, the Court cannot say as a matter of law at this stage whether the individual County Defendants are entitled to either absolute or qualified immunity. See King v. Simpson, 189 F.3d 284, 287-88 (2d Cir. 1999) (dismissal on either qualified or absolute immunity grounds premature on motion to dismiss; additional development of record required); Scotto, 143 F.3d at 113 (remanding to district court for further factual development of limited record, which did not permit decision regarding defendant's entitlement to immunity); Stewart, 832 F.2d at 13 (remanding for factual inquiry regarding whether duties of defendants were judicial or prosecutorial entitling them to absolute immunity, or administrative entitling them to qualified immunity). Thus, assuming a second amended complaint is filed, the individual County Defendants may re-assert their absolute and/or qualified immunity defenses again at the appropriate time if warranted.
In sum, Kroll's Motion to Dismiss is granted in its entirety with prejudice. Granting Plaintiff leave to file a second amended complaint against Kroll would be futile because the deficiency in Plaintiff's First Amended Complaint with respect to Kroll -- that Kroll did not commence or continue a criminal proceeding against Plaintiff -- "is substantive; better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (repleading not permitted where futile because complaint liberally read did not suggest that claim was inadequately or inartfully pleaded; rather, deficiency was substantive). The County Defendants' Motion to Dismiss is also granted in its entirety without prejudice, except as to the Probation Department, the Motion of which is granted with prejudice. Plaintiff may file a second amended complaint against the County Defendants, if there is a good faith basis to do so, that: (1) specifies the reasons stated by the District Attorney for not pursuing the VOP proceeding and whether, under state law, that proceeding could be re-filed; (2) includes facts sufficient to render plausible Plaintiff's claim that there was no probable cause to continue the VOP proceeding against him after January 2, 2008, and that the County Defendants continued the proceeding with malice.
III. Conclusion
For the foregoing reasons, the County Defendants' Motion to Dismiss is GRANTED without prejudice, except as to the Probation Department, the Motion of which is granted with prejudice. Defendant Kroll's Motion to Dismiss is GRANTED with prejudice. The Clerk of Court is respectfully directed to terminate the pending motions (Docs. 7, 15) and enter judgment for Defendant Kroll. If a second amended complaint is not filed by August 13, 2009, the Clerk of Court is respectfully directed to enter judgment for the remaining Defendants. If a second amended complaint is filed by August 13, 2009, Plaintiff and the County Defendants are directed to appear at a case management conference on September 11, 2009, at 9:15 a.m.
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October 17, 2006
TIMOTHY J. DEEBS, WILLIAM DRAKE, PLAINTIFFS,v.ALSTOM TRANSPORTATION, INC., DEFENDANT.
This is an appeal by defendant, Alstom Transportation, Inc. ("Alstom"), from an order of United States Magistrate Judge Marian W. Payson, entered September 6, 2006, granting plaintiffs' motion to amend the complaint.
As is the practice here, this Court referred all pretrial proceedings to Magistrate Judge Payson pursuant to 28 U.S.C. § 636(b). Pursuant to that referral, Magistrate Judge Payson met with counsel for the parties in a Rule 16 conference and entered an order regarding prosecution of the case. Included in that order was a requirement that motions to amend pleadings should be filed before July 7, 2006.
The gist of this motion, which has been fully briefed, argued before Magistrate Judge Payson and now appealed to the District court, involves a 7-day delay in filing a motion to amend. Magistrate Judge Payson's scheduling order required such a motion to be filed by July 7 and, in Alstom's view, because that motion was not filed until 7 days later, Magistrate Judge Payson's order allowing the amendment was clearly erroneous and contrary to law. I disagree, and see no basis whatsoever to reverse or modify Magistrate Judge Payson's order allowing the amendment.
Magistrate Judge Payson entered the order requiring a deadline for filing motions to amend the complaint. Surely, Magistrate Judge Payson has discretion to modify her own order to provide for efficient management of this civil proceeding. Of course, the standard is not whether the Judge abused her discretion, but whether her decision was "clearly erroneous and contrary to law." At this early stage of the litigation the amendment is a reasonable one and, in fact, I believe it would be clearly erroneous for Magistrate Judge Payson to have failed to grant the requested relief.
It is not uncommon for retaliation claims to accrue somewhat later than the original discriminatory acts, and it is not uncommon for such claims to be joined together in a single proceeding.
I suppose that plaintiffs had the option of commencing a second, new action alleging the retaliation claim which most likely either sua sponte, or on application, would have been consolidated for both discovery and trial with the instant action.
Defendant's objection to and appeal from United States Magistrate Judge Marian W. Payson's Order of September 6, 2006, (Dkt. #16), is in all respects denied. Magistrate Judge Payson's Order is affirmed.
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text: Artabotoy*.] FLOIIA INDICA. 127 tatum, rotundatum. Ovula in sutura ventral! indefinite, biserialia.� Arbores, foliis glabris htcidis, floiabus termwaUbw et opjpositifoliisi solita^ riis velfasciculatis. This very remarkable genus is clearly but briefly defined by Major Champion in the Hookerian Herbarium. The flowers are intermediate between those of Xylopica and those of Guatteriea. The torus is that of Xylopia, but the petals are flatter than in 'ffabzeHa, and very like those of some species of Artalohys. The stamens are more like those of Gttattene(et and the single ovary with many ovules is very anomalous in the. Order. It will be interesting to determine on the living plant the position of the solitary carpel with respect to the floral envelopes; our specimens are not sufficiently numerous to enable u* to ascertain this point. One species only is known, which appears to be a native both of Ceylon and the Malayan coast. 1. C. Zeylanicus (Champion, niss. in Herb. Hook.); foliis ob- longo-lanceolatis, pcdunculis 1-3 fere pollicaribus, pctalis lineari-ob- longis. HAB. In Zcylania, alt. 1-3000 pcdura, Walker! Gardner! ad Han- tani, Kandy, ct Karawellc Gallc, Champion!; et in Tenasscrim ad Mcrgui, Griffith! (No. 1032; specimen fructigcrum, sed quantum e speeimine suppetentc judicandum a plaiita Zeylanica nullo modo dis- tinguendum). Arbor. RawnU lacvinsculi, atro-fusci, adulti glabri, juniorcs aureo-pubescentcs, Ibfia C-10 poll, longa, 3-3 lata, pctiolo ^--pollicari, utrinquc glaberrima, acuminata, basi ncuta, coriacca, ncrvis obliquis, incnrvis, vcnulis crcbrc reticulatis. Sepala in cjTathum truncatum �� poll, altum ^ poll. diam. coalita, dentibus 5 rotundatis obtusis remotis, fusco-scricea. Fctala, 2J- poll, longa, fusco-sericea^ obtusa, -|�f poll. lata. Ovarium obscure costatum, glabrum. Fntctus (ex spec. Griilithiauo, in Iferb. Wight) late ovalis, utrinquc obtusissimus, sesqnipolliccm loiigus, plus quam pollicem latus, subtorulosus, glaber, arornatieus. Scinmu. biserialia, 8-10. Testa-lscviB. Albumen ntminatam. U. ARTABOTRYS, R. Br. Sepala 3, basi cohrorentia. Petala 6, sest. biseriatim valvata, basi concava, et circa gcnitalia constricta, sursum patentia, forma vnria, Stamina indefinita, oblonga vcl cuncata, connective supeme truncate piano. Anther a dorsales, lofculis remotis. Torus piano-con vexus, Ovaria indefinita vcl subdcfinita (5-30), ovalia vel oblonga, stylis ova- libus vcl lincari-oblongis plerumque reflexis terminata. Ovula 2, 'e basi erecta, collatcralia. Carpella forma varia. Semina 1-2, magna.^� Prutices sarmentosl vel scandentes, foliis luoidis, floribus interdum sua- veolentibus solitarii$ vel fasciculatis, pedunculis lignotis uncinatim re- trofractis. � This genus, which was first characterized by Mr. Brown in the * Botanical Register,' is readily known by its peculiar habit, and by its floral characters. The uttcinate woody peduncles have no parallel in the Order, tlie position of the genus in the family is somewhat doubtful, but, on the whole, its nearest afllmties appear to be with the tribe in which we bave placed it. The concave base of the petals resembles that of Xylopia and Uabzelia, but they arc all similar in shape, and the upper part is usually quite ftut. In one species, however, it is cylindrical or clavate, and in ano- ther triquetrous,�a circumstance which has been overlooked in the preparation of the analytical table of the genera. Aftabotrys is for the most part an Asiatic �cnus, one


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July 10, 2012
MAURICE ANTONIO WOODS, INMATE # M14902, PLAINTIFF,v.SHANE A. WALTERS, PAUL D. SCHNEPPER, AND BILLINGTON, DEFENDANTS.
Plaintiff Maurice Antonio Woods, an inmate in the Pontiac Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on an incident that occurred while Plaintiff was incarcerated at Lawrence Correctional Center ("Lawrence"). Plaintiff is serving a four-year sentence for aggravated robbery. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
Liberally construed, the complaint alleges the following. On April 18, 2011, Defendants Walters (Lieutenant), Billington (C/O), and Schnepper (C/O) walked Plaintiff "butt naked" across the gallery at Lawrence. Defendant Walters yanked Plaintiff's arms through the chuck hole and told Defendants Billington and Schnepper to stand blocking the two cells across from Plaintiff's. Defendant Walters proceeded to remove Plaintiff's handcuffs, and told him, "You reap what you sow, Woods" (Doc. 1, p. 5). Plaintiff responded, "Fuck you pussy ass bitch" (Doc. 1, p. 5). Defendant Walters then yanked Plaintiff's arm up and pulled it across the top of the "chuck hole" (the open slot in the cell door used to pass food to inmates). When Defendant Walters saw all the blood, Defendants Billington and Schnepper pushed his arms back into the chuck hole. Plaintiff claims that all of this occurred because Defendant Walters was mad that Plaintiff continued to ask for a social worker while he was on suicide watch. The April 18, 2011, assault occurred after Plaintiff spoke to a social worker.
After the incident, Plaintiff rubbed his hand across all the blood on the floor and rubbed it on the wall, in hopes that Internal Affairs would take pictures. He also called for C/O Fear who was sitting at the gallery desk. Major Lynch came and saw the blood so he called Nurse Dowty. Nurse Dowty said that Plaintiff needed to see a medical doctor right away, so Major Lynch and Defendant Schnepper walked him to health care with Lieutenant Stafford (Internal Affairs) and another correctional officer.
The doctor said he wouldn't put in stitches. Internal Affairs took some pictures. When Plaintiff asked Lieutenant Stafford if there was going to be an investigation, he answered in the negative because Defendant Walters said Plaintiff did it. Even though Plaintiff refuted this, Lieutenant Stafford said they believed Defendant Walters and that the investigation was over.
Plaintiff requests several forms of relief, including $15,000 in compensatory damages and court costs.
Excessive Force
Plaintiff asserts that Defendant Walters used excessive force against him when he yanked, pulled, and pushed his arms through and across the chuck hole. Plaintiff claims that Defendant Walters assaulted him because he was mad that Plaintiff continued to ask to see a social worker.
The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under § 1983. See Wilkins v. Gaddy, 130 S. Ct. 1175 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred, and that "it was carried out 'maliciously and sadistically' rather than as part of 'a good-faith effort to maintain or restore discipline.'" Wilkins, 130 S. Ct. at 1180 (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). An inmate seeking damages for the use of excessive force need not establish serious bodily injury to make a claim, but not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. (the question is whether force was de minimis, not whether the injury suffered was de minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Whether the force used by Defendant Walters in this instance was de minimis or was an attempt to cause real harm is not yet capable of being determined. It is also not clear whether the assault was carried out maliciously and sadistically rather than in a good faith effort to maintain or restore discipline. For these reasons, the claim that Defendant Walters unconstitutionally used excessive force against Plaintiff cannot be dismissed at this time.
Plaintiff also asserts that Defendants Schnepper and Billington merely stood by and watched Defendant Walters assault him on April 18, 2011, and that these defendants are equally as liable for his injuries due to their failure to intervene. The Seventh Circuit has examined this issue as it pertains to police officers who fail to intervene when a fellow officer exceeds his authority, stating:
We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed. So, too, the same responsibility must exist as to nonsupervisory officers who are present at the scene of such summary punishment, for to hold otherwise would be to insulate nonsupervisory officers from liability for reasonably foreseeable consequences of the neglect of their duty to enforce the laws and preserve the peace.
Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); see also Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (collected cases); Archie v. City of Racine, 826 F.2d 480, 491 (7th Cir. 1987).
Accordingly, Plaintiff's claim for failure to intervene against Defendants Schnepper and Billington shall receive further review.
Pending Motions
Plaintiff requests the Court to issue an order requiring the institution where he is housed to allow him to make five phone calls to his family to aid in his search for counsel to represent him in this case (Doc. 9). Federal courts must exercise equitable restraint when asked to take over the administration of a prison, something that is best left to correctional officials and their staff. See Sandin v. Conner, 515 U.S. 472, 482-83 (1995). Accordingly, Plaintiff's motion for Court ordered phone calls to seek counsel is DENIED, without prejudice.
IT IS HEREBY ORDERED that the Clerk of Court shall prepare for Defendants WALTERS, SCHNEPPER, and BILLINGTON (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and Order to each Defendant's place of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that Defendant, and the Court will require that Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant's current work address, or, if not known, the Defendant's last-known address. This information shall be used only for sending the forms as directed above or for formally effecting service. Any documentation of the address shall be retained only by the Clerk. Address information shall not be maintained in the court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is entered), a copy of every pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate stating the date on which a true and correct copy of the document was served on Defendants or counsel. Any paper received by a district judge or magistrate judge that has not been filed with the Clerk or that fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Donald G. Wilkerson for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for leave to commence this civil action without being required to prepay fees and costs or give security for the same, the applicant and his or her attorney were deemed to have entered into a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1)."
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court and each opposing party informed of any change in his address; the Court will not independently investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer or other change in address occurs. Failure to comply with this order will cause a delay in the transmission of court documents and may result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
G. PATRICK MURPHY United States District Judge
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