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Case 7:13-cv-04067-CS Document 32 Filed 03/05/14 Page 1 of 2

March 5, 2014

Hon. Cathy Seibel
The Hon. Charles L. Brieant Jr.
Federal Building and United States Courthouse
300 Quarropas St.
White Plains, NY 10601-4150

Re: Barboza v. D’Agata, 13 CV 4067 (CS)

Dear Judge Seibel:

On behalf of the plaintiff, we are responding to the pre-motion letter filed yesterday by
defendant Robert Zangla, an Assistant Sullivan County District Attorney, (“ADA Zangla”) ahead
of the March 7, 2014 conference requesting permission to file a motion for summary judgment
and a motion to dismiss on behalf of ADA Zangla based on his assertion of absolute
prosecutorial immunity. Notwithstanding ADA Zangla’s request, plaintiff’s position remains
that which he articulated in his February 27, 2014 letter (ECF 29) – namely, that the Court allow
plaintiff to proceed with a brief period of discovery pertaining to his claims of liability against
defendant the Village of Liberty and entertain all dispositive motions, including ADA Zangla’s
proposed motion for summary judgment, at the end of that discovery period.

ADA Zangla’s position that he does not need discovery before moving for summary
judgment supports plaintiff’s proposal insofar as it demonstrates that motions to dismiss are
unnecessary. Although plaintiff is prepared to move for summary judgment against all the
individual defendants immediately, including ADA Zangla as well as arresting officers Steven
D’Agata and Melvin Gorr, and intends to cross-move against those individual defendants if they
are permitted to file summary judgment motions at this stage, we believe it would be most
efficient for this Court to review all summary judgment motions at the end of discovery, at which
point plaintiff expects to be in a position to move for summary judgment against all defendants
including the Village of Liberty.

Furthermore, ADA Zangla’s proposed motions based on absolute immunity will be
unsuccessful for reasons articulated in plaintiff’s February 27, 2014 letter responding to the pre-
motion letter filed by the remaining defendants (ECF 29) and in the February 6, 2014 amended
letter requesting permission to amend the complaint (ECF 20). ADA Zangla is not entitled to
absolute immunity for his participation in plaintiff’s warrantless arrest. See Burns v. Reed, 500
U.S. 478, 496 (1991) (denying absolute immunity where the prosecutor advised the police on
legality of conduct in the investigative stage of proceedings); Simon v. City of New York, 727
F.3d 167, 172 (2d Cir. 2013) (holding that prosecutorial immunity does not extend to detention,


Case 7:13-cv-04067-CS Document 32 Filed 03/05/14 Page 2 of 2

as "[i]nvestigation, arrest, and detention have historically and by precedent been regarded as the
work of police”); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990) (holding that prosecutor is
not absolutely immune from suit where the plaintiff alleged the prosecutor “directed” the
plaintiff’s warrantless arrest).

For these reasons, we request that the Court not allow defendant Zangla to file his
proposed motions at this stage, but allow plaintiff to proceed with a period of discovery
pertaining to his claims of liability against defendant the Village of Liberty before entertaining
all motions.

Respectfully submitted,


Mariko Hirose


Adam Rodd, Esq.;
Samuel Yasgur, Esq.