17-3235
Ogunkoya v. Drake
In the
United States Court of Appeals
For the Second Circuit
August Term, 2018
Argued: September 27, 2018
Decided: January 9, 2019
Docket No. 17‐3235‐cv
SEUN OGUNKOYA,
Plaintiff‐Appellee,
v.
MARK MONAGHAN, JAMES EGAN, COUNTY OF MONROE,
Defendants‐Appellants,
SANDRA DOORLEY, ALBERT DRAKE III, INVESTIGATOR, DARIUSZ ZYSK,
INVESTIGATOR, PETER SCHRAGE, TROOPER, MARK EIFERT, INVESTIGATOR, JOHN DOE,
RICHARD ROE,
Defendants.
The Clerk of Court is respectfully requested to amend the official caption as set forth above.
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Appeal from the United States District Court
for the Eastern District of New York
No. 15‐CV‐06119, Matsumoto, Judge.
Before: HALL, LYNCH, and CARNEY, Circuit Judges.
This appeal arises out of Plaintiff‐Appellee Seun Ogunkoya’s § 1983 lawsuit alleging
constitutional violations during his warrantless arrest and subsequent prosecution. He
was acquitted of all charges. Two Monroe County Assistant District Attorneys appeal
the District Court’s denial of their Rule 12(b)(6) motion to dismiss on the ground that they
have absolute immunity for the violations alleged. We hold that the Assistant District
Attorneys have absolute immunity from suit and thus reverse the decision of the District
Court with respect to claims against these prosecutors in their individual capacities.
Monroe County also appeals the District Court’s denial of its Rule 12(b)(6) motion
arguing that municipal liability is not warranted because the county prosecutors were
state, not county, actors. Because the elements of the claim against the county are not
inextricably intertwined with the question of absolute immunity, we are without
appellate jurisdiction to hear the county’s interlocutory appeal.
REVERSED IN PART; DISMISSED IN PART; AND REMANDED.
MATTHEW D. BROWN, for Michael E. Davis, County
Attorney, Monroe County, New York, for Defendants‐
Appellants.
DANIEL M. WHITE, Milbank, Tweed, Hadley & McCloy,
LLP, New York, NY (Alexandra Wang, Max Kelly,
Milbank, Tweed, Hadley & McCloy, LLP, New York,
New York, on the brief) for Plaintiff‐Appellee.
PETER W. HALL, Circuit Judge:
This appeal principally concerns whether two Monroe County Assistant District
Attorneys, James Egan and Mark Monaghan (“the ADAs”), are absolutely immune from
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civil suit for interfering in the timing of Plaintiff‐Appellee Seun Ogunkoya’s
arraignments in several town courts as the ADAs were preparing to present the charges
to a grand jury. Ogunkoya alleged that the ADAs, along with other state and county
defendants, violated his Fourth and Fourteenth Amendment rights by failing to timely
arraign him on four of six identity fraud and larceny charges. Because the ADAs were
performing a traditional prosecutorial function when they determined that they would
initiate Ogunkoya’s prosecution via grand jury indictment and thus delay his
arraignment on separate individual charges, we reverse the District Court’s denial of
absolute immunity.
Regarding Monroe County’s effort to appeal the denial of its motion to dismiss,
because the claims against the county are not inextricably intertwined with the question
of the ADAs’ immunity, we are without jurisdiction to consider the County’s appeal at
this time.
I.
Absolute immunity protects a prosecutor “not only from liability but also from
suit.” Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005). “Hence, an
interlocutory order rejecting the defense [of absolute immunity] is immediately
appealable under the collateral order doctrine.” Id.
“When a district court denies immunity on a Rule 12(b)(6) motion to dismiss, ‘we
review the district court’s denial de novo, accepting as true the material facts alleged in
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the complaint and drawing all reasonable inferences in plaintiffs’ favor.’” Warney v.
Monroe Cty., 587 F.3d 113, 120 (2d Cir. 2009) (quoting Johnson v. Newburgh Enlarged Sch.
Dist., 239 F.3d 246, 250 (2d Cir. 2001)).
II.
The facts as alleged in Ogunkoya’s complaint are as follows. The investigation
leading to his arrest began when Home Depot reported several gift card purchases
suspected to be fraudulent to the New York State Police (“NYSP”). The gift cards, totaling
$28,000, were all acquired on April 26, 2014, at Home Depot stores in three Monroe
County towns—Greece, Henrietta, and Irondequoit. NYSP Investigator Mark Eifert
opened a criminal investigation and learned that Ogunkoya used his personal credit card
for small purchases in the Greece and Henrietta stores around the same time as the gift
cards were purchased. Eifert also reviewed Home Depot’s surveillance tapes. Those
tapes show someone other than Ogunkoya purchasing the gift cards. On January 20,
2015, Eifert prepared six felony complaints charging Ogunkoya with one count of identity
theft and one count of grand larceny in each of the three towns.
A month later, acting on Eifert’s knowledge and belief, but without an arrest
warrant, the NYSP arrested Ogunkoya in his Brooklyn apartment. Over the course of the
day, NYSP officers drove Ogunkoya to Monroe County, where he was brought for
arraignment before the Henrietta Town Court around 10 P.M. The NYSP filed all six
felony complaints with the Henrietta court, but the judge refused on jurisdictional
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grounds to arraign Ogunkoya on the four complaints based on conduct alleged to have
occurred in Greece and Irondequoit. The judge instructed the NYSP to have Ogunkoya
arraigned on the remaining complaints during the next business day, Monday, February
23, 2015.
Ogunkoya was never arraigned in Greece or Irondequoit. Instead, a bail hearing
was held that Monday in Monroe County Court. At the hearing, Ogunkoya, who was
planning to sit for the bar exam in New York City the following day, asked to be arraigned
on the four remaining complaints “in time for a new bail application to be made on all
the charges.” J. App. 11. Considering Ogunkoya a “flight risk,” the ADAs argued for a
$100,000 cash/$300,000 bond bail “based on the combined allegations of the six felony
complaints.” Id. The judge set Ogunkoya’s bail at $100,000 cash/$300,000 bond. As
alleged by Ogunkoya, “[t]his amount of bail is unusually high considering the amount of
the alleged thefts [] and local custom.” Id.
Ogunkoya’s family then sought to arrange for bail, but the bail bondsman
“expressed reluctance at posting a bond” because of Ogunkoya’s four outstanding
criminal complaints on which he had not yet been arraigned. J. App. 12. Ogunkoya’s
counsel wrote to ADA Egan and again requested that Ogunkoya be arraigned on the four
outstanding complaints so that he could secure bail. Egan responded by email:
There is no need to ever arraign him on the charges in the local court. He
was arrested on the Henrietta charges and received his prompt arraignment
on them as required by the CPL. The purpose of CPL 140.20 is to ensure a
person who is arrested gets a prompt arraignment and doesn’t have to sit
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in jail waiting for bail to be set. The other charges are essentially “sealed”
charges since he has never been arrested or arraigned on them. In any
event, they were all referred to the grand jury and they will be presented
together. This is done frequently in cases involving charges in multiple
jurisdictions.
Id.
Ogunkoya’s counsel continued to press for arraignment, seeking a writ on the
ground that “Ogunkoya was prepared to post a $300,000 bond but that the bail bondsman
refused to post the bond solely because of the unarraigned charges.” J. App. 13. On
March 20th—28 days after his arrest—Ogunkoya was released after a Monroe County
Court judge signed his bond documents. On or about May 15, 2015, a Monroe County
grand jury indicted Ogunkoya on three counts of identity theft, one count from each
town. At trial, the jury acquitted Ogunkoya on all charges.
After his acquittal Ogunkoya, pro se, filed a § 1983 lawsuit naming the NYSP
officers involved in his arrest, Monroe County DA Sandra Doorley,1 Monroe County
ADAs Monaghan and Egan, and Monroe County itself. Ogunkoya amended his
complaint twice, with pro bono counsel filing the second amended complaint. Both the
NYSP and Monroe County defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6)
1 Monroe County District Attorney Sandra Doorley was incorrectly sued in her individual
capacity as Susan Doorley. Although the briefs list Doorley as an appellant, the District Court
adopted the magistrate judge’s recommendation that all claims against her be dismissed.
Accordingly, nothing remains pending against her at this time, and she has no stake in the
instant appeal.
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arguing that Ogungoya’s complaint failed to state a claim and that the prosecutors had
absolute immunity. The fully briefed motions were referred to the magistrate judge.
The magistrate judge’s Report and Recommendation (“R&R”) construed the
second amended complaint to plead the following claims against all the individual NYSP
and Monroe County defendants: false arrest and false imprisonment, malicious
prosecution, failure to arraign, and related claims for failure to intervene with respect to
each of the preceding claims. The R&R also construed Ogunkoya’s complaint to assert a
Monell municipal liability claim against Monroe County, alleging an unconstitutional
practice or custom and failure to train its officers. The magistrate judge recommended
that all claims against the NYSP defendants proceed except the claims alleging malicious
prosecution, failure to intervene in plaintiff’s prosecution, and failure to intervene in
plaintiff’s arraignment on the part of the arresting officers in Brooklyn.
With respect to the ADAs, the magistrate judge recommended that the false arrest,
malicious prosecution, and related failure to intervene claims be dismissed. The
magistrate judge recommended that the failure to arraign and related failure to intervene
claims proceed against the ADAs. In so doing, the magistrate judge ruled that the ADAs
were not entitled to absolute immunity for their roles in the events underlying
Ogunkoya’s failure to arraign claims.
In addition, the magistrate judge recommended that all claims against DA Doorley
be dismissed because she lacked personal involvement or had absolute immunity.
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Finally, the magistrate judge recommended that the municipal liability claim against
Monroe County also proceed because Ogunkoya had plausibly pled a Monell violation
requiring the resolution of factual questions.
The district judge adopted the R&R. This appeal followed.
III.
Absolute immunity bars § 1983 suits against prosecutors for their role “in initiating
a prosecution and in presenting the State’s case.” Imbler v. Pachtman, 424 U.S. 409, 431
(1976). Instead of relying on strict categories of actions with respect to which absolute
immunity attaches, the relevant question is “whether there is pending or in preparation
a court proceeding in which the prosecutor acts as an advocate.” Warney, 587 F.3d at 123.
Ultimately, we ask “whether a reasonable prosecutor would view the acts challenged by
the complaint as reasonably within the functions of a prosecutor.” Giraldo v. Kessler, 694
F.3d 161, 166 (2d Cir. 2012).
The ADAs’ decision to prosecute Ogunkoya and proceed by grand jury indictment
rather than proceed on separate criminal complaints is a prosecutorial exercise of
discretion entitled to absolute immunity. See Burns v. Reed, 500 U.S. 478, 486 (1991)
(quoting Imbler, 424 U.S. at 430–31) (holding that “[p]rosecutors are absolutely immune
. . . for their conduct in ‘initiating a prosecution’”). What we must decide is whether the
ADAs are entitled to absolute immunity when they directed the NYSP not to have
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Ogunkoya arraigned in the Greece and Irondequoit town courts and informed those
courts that Ogunkoya would not be arraigned.
In our view, the Supreme Court’s pronouncement in Imbler squarely addresses the
conduct of the ADAs at issue here. 424 U.S. at 430–31. The Court noted:
We recognize that the duties of the prosecutor in his role as advocate for the
State involve actions preliminary to the initiation of a prosecution and
actions apart from the courtroom. A prosecuting attorney is required
constantly, in the course of his duty as such, to make decisions on a wide
variety of sensitive issues. These include questions of whether to present a
case to a grand jury, whether to file an information, [and] whether and
when to prosecute. . . .
Id. at 431 n.33.
The District Court erred in denying the ADAs absolute immunity. The District
Court found that “’a reasonable prosecutor’ would conclude that the Greece and
Irondequoit arraignments were a police, not a prosecutorial, responsibility.” J. App. 113.
We disagree. It is true that, in New York, the responsibility for presenting a detained
person before a court for evaluation of the legality of his or her detention is generally a
police responsibility. See N.Y. Crim. Proc. Law § 140.20(1) (McKinney) (“Upon arresting
a person without a warrant, a police officer . . . must . . . without unnecessary delay bring
the arrested person or cause him to be brought before a local criminal court and file
therewith an appropriate accusatory instrument charging him with the offense or
offenses in question.”) (emphasis added). When a police officer arrests a person without
a warrant, the officer is constitutionally obliged to present the arrestee before a judicial
9
officer for a determination of probable cause. See Gerstein v. Pugh, 420 U.S. 103, 113‐14
(1975). That is necessarily an obligation imposed on the officer, who has custody of the
arrested person, to prevent an extended unauthorized detention. However, whether a
prosecutor is performing a police function or acting as an advocate on behalf of the state
with regard to a detained individual “depends in part on whether one looks at the
prosecutors’ discrete actions, or at their role and function in an ongoing proceeding.”
Warney, 587 F.3d at 123. We take the second approach, determining the prosecutor’s
immunity “chiefly on whether there is pending or in preparation a court proceeding in
which the prosecutor acts as an advocate.” Id. Viewed in the context of Ogunkoya’s
pending indictment and prosecution on multiple charges, a reasonable prosecutor would
conclude that the ADAs’ function in controlling Ogunkoya’s arraignments on multiple
different charges that would later be subsumed in a single charging document was part
of a prosecutor’s role as the gatekeeper of “whether and when to prosecute.” Imbler, 424
U.S. at 431 n.33.
The analysis this Court undertook in Warney is helpful to our analysis here. In
Warney, we recognized that prosecutors who are alleged to have not timely disclosed
exculpatory DNA evidence obtained during habeas proceedings are entitled to absolute
immunity. Id. at 115–21, 125. We concluded that classifying the steps that the prosecutors
took—testing and delaying disclosure of DNA evidence, and identifying the real killer—
was impossible “with[out] reference to context.” Id. at 123. Inculpatory results would
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aid advocacy; exculpatory results could give rise to an administrative burden to effect
disclosure; results inculpating another would support initiation of a new investigation.
We held that regardless of the test results, all the steps that the Warney prosecutors took
“were integral to and subsumed in the advocacy functions being performed in connection
with Warney’s post‐conviction initiatives.” Id.
Our decision in Warney follows the Supreme Court’s instruction in Van de Kamp v.
Goldstein, 555 U.S. 335, 344 (2009), that absolute immunity covers administrative acts
“directly connected with the conduct of a trial.” The Court explained:
[U]nlike with other claims related to administrative decisions, an
individual prosecutor’s error in the plaintiff’s specific criminal trial
constitutes an essential element of the plaintiff’s claim. The administrative
obligations at issue here are thus unlike administrative duties concerning,
for example, workplace hiring, payroll administration, the maintenance of
physical facilities, and the like. Moreover, the types of activities on which
Goldstein’s claims focus necessarily require legal knowledge and the
exercise of related discretion, e.g., in determining what information should
be included in the training or the supervision or the information‐system
management. And in that sense also Goldstein’s claims are unlike claims
of, say, unlawful discrimination in hiring employees. Given these features
of the case before us, we believe absolute immunity must follow.
Id. In Warney, “[j]ust as the administrative act in Goldstein was integral to an advocacy
function,” the potentially administrative or investigative acts “were also integral to the
overarching advocacy function.” 587 F.3d at 124.
Here, the ADAs’ direction that Ogunkoya not be arraigned in Greece and
Irondequoit cannot be understood without reference to their decision to proceed by
grand jury indictment on the three sets of charges together. Viewed as a set of discrete
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acts, the ADAs’ interference in Ogunkoya’s arraignments in Greece and Irondequoit
ostensibly hampered a police administrative function—presentation of the defendant as
the last stage of the police’s investigation and arrest. See, e.g., Simon v. City of New York,
727 F.3d 167, 172 (2d Cir. 2013) (“Investigation, arrest, and detention have historically and
by precedent been regarded as the work of police, not prosecutors.”). But that is not the
lens through which to examine the prosecutor’s actions. Rather, we view what occurred
as the ADAs directing the NYSP on how to proceed with respect to a court proceeding
pending or in preparation “in which the prosecutor [is acting] as an advocate.” Warney,
587 F.3d at 123.
The decision to initiate prosecution, what charges to bring, and how to perfect and
consolidate those charges is a quintessential prosecutorial function. See Imbler, 424 U.S.
at 431; Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993) (“A prosecutor
. . . has absolute immunity in connection with the decision whether or not to commence
a prosecution.”). The ADAs were not only participating in Ogunkoya’s arraignment on
the Henrietta charges but preparing to prosecute him on what they were informed were
multiple charges in two other towns as well. Exercising their “related discretion,” the
ADAs decided to initiate prosecution of Ogunkoya in the two other towns, and ultimately
to pursue all three sets of charges, by grand jury indictment rather than have three
separate criminal actions proceed under the six felony complaints. Goldstein, 555 U.S. at
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344. The ADAs directed that Ogunkoya’s arraignment in Greece and Henrietta not occur
in order to control how the state’s criminal case would proceed.
So, while the District Court was correct that in New York state arraignment is
generally a police function, its analysis failed to consider that a court proceeding was in
preparation, Warney, 587 F.3d at 123, and that the ADAs’ participation in the act of
scheduling arraignments on the multiple charges that were to be consolidated in a single
indictment was “directly connected with the conduct of a trial” and “require[d] legal
knowledge and the exercise of related discretion.” Goldstein, 555 U.S. at 344. As the ADA
explained in his email to Ogunkoya’s counsel, Ogunkoya had already been arraigned on
the Henrietta charges and was being detained on that basis. Further arraignments on the
Greece and Irondequoit charges were not necessary for him to continue to be held
pursuant to the Henrietta arraignment and on terms set by the Henrietta court.2 As their
2 Ogunkoya complains about ADA Egan’s argument to the Henrietta court that bail on the
Henrietta charge should be set at a rate that reflected the pendency of the Greece and
Irondequoit felony complaints, on which he had not been arraigned, in addition to the Henrietta
complaints. He further asserts that the bail bondsman did not want to post bail “because of the
possibility that as soon as he was released [he] would be arrested on the four counts on which
he had not [been] arraigned.” J. App. 13. He cites documents not in the record assertedly
showing that he “was arrested on the Greece charges as well as the Henrietta charges.” On this
basis, he argues that the ADAs and the other New York state defendants violated his
constitutional rights by failing to “intervene and prevent his extended detention.” J. App. 17.
Although the sequence of events is regrettable, these facts do not alter our analysis regarding
the prosecutors’ entitlement to absolute immunity in light of their exercise of prosecutorial
functions in determining to arraign Ogunkoya only on the Henrietta charge, and to await a
grand jury’s indictment on the charges pertaining to events in all three towns.
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role with respect to the arraignments was prosecutorial, the ADAs are thus entitled to
absolute immunity.
Nor does our decision in Simon, on which the District Court relied, mandate a
different result. 727 F.3d 167. In Simon, we held that a prosecutor who used a material
witness warrant to detain a witness for questioning, instead of allowing officers to fulfill
the warrant by bringing the witness before the court, was not entitled to absolute
immunity. Id. at 169–70. We reasoned that arrest and detention are historically police
functions and that New York law explicitly entrusts the execution of material witness
warrants to police officers. Id. at 172–73.
Simon was not detained for a trial, but merely held in the course of a criminal
investigation, for which no judicial proceedings were scheduled. Simon, 727 F.3d at 169,
174. The prosecutor’s acts were not “subsumed [with]in the advocacy function” related
to a pending court proceeding in the nature of a criminal prosecution. Warney, 587 F.3d
at 123. We noted as much at the time. Simon, 727 F.3d at 174 (explaining, “[t]hat Simon
might eventually have been called to testify in a judicial proceeding does not make her
detention a prosecutorial function”) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 275–76
(1993)). It was clear, given the context and timing of the Simon prosecutor’s acts in
question, that the prosecutor was involved in an investigation, not in advocacy related to
the initiation and prosecution of criminal charges. Id. Indeed, as we pointed out there,
the prosecutor in Simon was “actively avoiding the court‐ordered material witness
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hearing”; his acts ensured that the plaintiff “had no way of contesting her detention.” Id.
at 173. In this case, in contrast, it is immaterial that the ADAs may have interfered with
a police function because the overarching reason for their directing the arraignments in
town courts to not occur was not related to Ogunkoya’s warrantless arrest, but rather
constituted an exercise of their prosecutorial discretion in preparing a case for indictment
and deciding when, where, and how to prosecute. The separation of the two functions is
highlighted further by the observation that once his bond documents for the Henrietta
charge alone were signed, he was released, despite his still not having been arraigned on
the Greece and Irondequoit charges. For these reasons, we hold that the ADAs have
absolute immunity and the claims against them must be dismissed.
IV.
Monroe County appeals from the District Court’s denial of its motion to dismiss
Ogunkoya’s Monell municipal liability and failure‐to‐train claims. Although the order
denying absolute immunity is “immediately appealable under the collateral order
doctrine,” Shmueli, 424 F.3d at 236, pendent appellate jurisdiction is only appropriate
where an issue is “inextricably intertwined” with the other issues on appeal giving rise
to the appellate court’s jurisdiction or is necessary to ensure “meaningful review” of those
issues. Warney, 587 F.3d at 126 (internal quotation marks omitted). Our decision here is
guided, if not mandated, by the previous decision of this Court in Warney. There we held:
Unlike the order denying immunity, the order denying Monroe County’s
motion to dismiss is not immediately appealable pursuant to the collateral
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order doctrine. . . . The elements of a Monell claim, and the extent to which
prosecutors in New York are agents of the state (as opposed to a county)
are not inextricably intertwined with the question of absolute immunity.
We therefore decline to exercise pendent appellate jurisdiction over these
issues at this time.
Id.; cf. Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (holding that an arresting
officer’s liability is irrelevant to liability of municipality). For these same reasons we hold
that the County’s appeal is premature and one over which we lack appellate jurisdiction.
V.
For the foregoing reasons, the order of the District Court insofar as it denied
absolute immunity to the ADAs is reversed, and this case is remanded for further
proceedings consistent with this opinion.3 The appeal filed by Monroe County is
dismissed.
3 Ogunkoya’s lawsuit against the remaining defendants will proceed in the District Court. We
express no views as to the merits of those claims.
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