By: Daily Record Staff//January 28, 2011
By: Daily Record Staff//January 28, 2011//
U.S. District Court, Western District of New York
Nieves v. County of Monroe
Background: Plaintiff, Pablo Nieves and his wife commenced this action against the County of Monroe, the City of Rochester, New York, Rochester Police Investigator Catherine Lucci, the Monroe County Office of Child Protective Services and two of its investigators, Brice Meade and Elizabeth Opp. Nieves alleges a civil rights violation, pursuant to 42 U.S.C. §1983 and alleges malicious prosecution by the defendantrelative to his felony indictment for three counts of rape. The county, Child Protective Services, Meade and Opp now move to dismiss the complaint.
Nieves’ daughter, Evelyn, made certain statements to a probation officer in Reading, Pa., accusing Nieves of several instances of child abuse and molestation over the course of several years. Because some of the activities had occurred in Monroe County, the matter was referred to Monroe County Child Protective Services and both defendant Meade and Opp became involved. A written statement was taken from Evelyn Nieves, the alleged victim, and the matter was eventually referred to the Monroe County District Attorney’s Office. That office determined that the complaint should be submitted to the Monroe County Grand Jury, but that Nieves not be arrested until the matter had been presented to the Grand Jury.
It does not appear that either investigators Meade or Opp testified before the Monroe County Grand Jury or provided any information to that body. Nieves’ lengthy complaint does not allege anything to the contrary. It appears that the evidence submitted to the grand jury consisted of Evelyn Nieves’ statements to the Reading Police Department, and statements made to Rochester Police Department Investigator Lucci. Nieves was aware of the charges and, along with his counsel, met with investigators. It does not appear that Nieves testified before the Monroe County Grand Jury.
On Sept. 25, 2006, Nieves was indicted and charged with three counts of rape of his minor daughter. The case was tried by a jury, and on May 18, 2007, Nieves was acquitted of all charges. This action followed.
Ruling: Because the court finds that the plaintiff has failed to adequately plead a federal malicious prosecution cause of action against any of the defendants, and because it believes the two child protective services investigators are entitled to qualified immunity, their motion to dismiss the complaint is granted, and the complaint as against them is dismissed. As to the plaintiffs’ Monell claim, the plaintiff has not plausibly alleged that the county engaged in any custom, pattern or policy in violation of his constitutional rights. The only claims pleaded against the county are based on activities of Investigator Opp and Meade, which must be dismissed. To the extent that the plaintiff alleges claims again the
Monroe County Department of Social Services, the defendants correctly contended that the department is not a separate entity from the county or subject to a separate lawsuit.
Jeffrey Wicks of Jeffrey Wicks PLLC for the plaintiffs, James L. Gelormini, Monroe County Attorney, for the County defendants and Igor Shukoff for the City of Rochester defendants