10-434-pr
Green v. County of Monroe


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day
of June, two thousand eleven.

Present:
            JOHN M. WALKER, JR.,
            PETER W. HALL,
            DENNY CHIN,
                              Circuit Judges.
__________________________________________

DAVID R. GREEN,

                            Plaintiff-Appellant,

                   v.                                                   No. 10-434-pr

COUNTY OF MONROE, PATRICK
M. O’FLYNN, Individually and in his official
capacity as Sheriff for the County of Monroe,
MICHAEL C. GREEN, Individually and in his
official capacity as District Attorney for the
County of Monroe, ROBIN UNWIN, Individually
and in her official capacity as Assistant District
Attorney for the County of Monroe, TONI GREEN,
a/k/a Toni Herring,1

                            Defendants-Appellees.

__________________________________________


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             The Clerk of the Court is directed to amend the official caption consistent with the
above.
FOR PLAINTIFF-APPELLANT:                               David R. Green, pro se, Hilton, New York.

FOR DEFENDANTS-APPELLEES:                              William K. Taylor, Monroe County
                                                       Attorney (Brian E. Marianetti, on the brief),
                                                       Rochester, New York.

          Appeal from a judgment and order of the United States District Court for the Western

District of New York (Arcara, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment and order of the district court are AFFIRMED in part and

VACATED AND REMANDED in part.

          Plaintiff-Appellant David R. Green, proceeding pro se, appeals the district court’s

judgment sua sponte dismissing his 42 U.S.C. § 1983 complaint as well as the court’s post-

judgment order denying Green’s motion for reconsideration and leave to amend. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          When a district court sua sponte dismisses a complaint pursuant to 28 U.S.C. § 1915A,

we review that determination de novo, bearing in mind that “when the plaintiff proceeds pro se,

as in this case, a court is obliged to construe his pleadings liberally.” McEachin v. McGuinnis,

357 F.3d 197, 200 (2d Cir. 2004). A complaint must plead “enough facts to state a claim to

relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and

although all allegations contained in the complaint are assumed to be true, this tenet “is

inapplicable to legal conclusions,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A claim will

have “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. Following

an independent review of the record, we conclude that the district court properly dismissed all of

Appellant’s claims except those against Assistant District Attorney Robin Unwin and

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Appellant’s ex-wife, Toni Green (née Herring).

       As a preliminary matter, we “have frequently reiterated that ‘[s]ua sponte dismissal of

pro se prisoner petitions which contain non-frivolous claims without requiring service upon

respondents or granting leave to amend is disfavored by this Court.’” McEachin, 357 F.3d at

200 (quoting Moorish Sci. Temple of Am., Inc. v. Smith, 693 F.2d 987, 990 (2d Cir. 1982))

(alteration in McEachin). Here, the district court sua sponte dismissed Appellant’s complaint

without affording him leave to amend. While we agree with the court that many of Appellant’s

claims in his original complaint were implausible, we think that the better course of action would

have been for the court to allow Appellant to file an amended complaint so that he would have

had the opportunity to plead additional allegations to support his claims. In fact, the record

shows that Appellant did timely move for leave to amend after the district court dismissed his

original complaint, and that he attached to his motion a proposed amended complaint. It does

not appear, however, that the district court considered Appellant’s motion, nor does it appear that

the court reviewed the substance of Appellant’s proposed amended complaint. Based on our

own review of that complaint, we conclude that the district court’s dismissal of Appellant’s

claims against Unwin and Toni Green was error.

       The district court first dismissed Appellant’s claims against Unwin on the basis that she

was absolutely immune from suit because she was acting in her role as a prosecutor during the

relevant events. Although it is well settled that a prosecutor is entitled to absolute immunity for

acts undertaken pursuant to her traditional function as an advocate in the prosecutorial process,

see Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996), a prosecutor is entitled only to qualified

immunity where she “performs the investigative functions normally performed by a detective or

police officer,” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Appellant alleged in his

proposed amended complaint that Unwin performed a number of investigative functions,

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including personally selecting the officers who investigated Toni Green’s complaints, and

conducting her own investigation of Green’s accusation that Appellant stole a check out of her

mailbox. Accepting these allegations as true, Unwin is not entitled to absolute immunity

because these alleged acts were not undertaken pursuant to her prosecutorial duties.

Additionally, we conclude that based on these and other allegations set forth in the proposed

amended complaint, Appellant stated plausible claims for relief against Unwin and Toni Green.

He alleged, inter alia, that Unwin and Green acted in concert to manipulate evidence which was

later used to prosecute him, and that they misrepresented the scope of the underlying protection

order. These allegations are sufficient to survive dismissal under 28 U.S.C. § 1915A. We

emphasize, however, that we express no opinion as to the ultimate merit of Appellant’s claims

against Unwin and Green, since that issue is not relevant to the present appeal. See McEachin,

357 F.3d at 201 (“The issue at this stage ‘is not whether a plaintiff is likely to prevail ultimately,

but whether the claimant is entitled to offer evidence to support the claims.’” (quoting Chance v.

Armstrong, 143 F.3d 698, 701 (2d Cir. 1998))).

        Accordingly, we VACATE AND REMAND the district court’s judgment and order with

respect to the dismissal of Appellant’s claims against Unwin and Toni Green. We AFFIRM the

judgment and order in all other respects for substantially the same reasons as identified by the

district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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