New York DA Liable For Misconduct in Sentosa Case

By JOSEPH G. LARIOSA

(© 2011 Journal Group Link International)

CHICAGO (jGLi) – When District Attorney Thomas J. Spota III of Suffolk County, New York initiated police investigation after the Suffolk police declined to go after the Filipino nurses, who resigned their jobs to protest their working conditions exactly five years ago on April 7, Spota was liable for violating the Filipino nurses’ 14^th Amendment right from being arrested.

This was the ruling handed down by United States District Court Judge Joseph F. Bianco of the Eastern District of New York on March 31 in a copy of a decision made available April 6 by the nurses’ lawyer, Felix Q. Vinluan, to this reporter.

In granting “in part” and denying “in part” the motions of the County defendants, including prosecutors, to dismiss, Judge Bianco ruled that "County defendants are entitled to absolute immunity for conduct taken in their role as advocates after they filed the case before the Grand Jury."

But individual County defendants lose this absolute immunity when they commit misconduct during investigation of the plaintiffs. And the Court cannot determine at the motion to dismiss stage, given the allegations in the Amended Complaint, whether the individual County defendants are entitled to qualified immunity for their actions in the investigation phase.

Bianco also found that plaintiffs have sufficiently pled “Section 1983” of 42 U.S.C. for claims against the individual County defendants for alleged Due Process violations in the investigative stage and municipal liability against County of Suffolk.

As to defendants Bent Philipson, Francis Luyun, Berish Rubenstein, Sentosa Care, Prompt Nursing Employment Agency, and Avalon Gardens Rehabilitation and Health Care Center, plaintiffs have sufficiently alleged that defendants were acting under color of state law and are liable for malicious prosecution and false arrest under both Sec. 1983 and state law and conspiracy claim under Sec. 1983.

All the defendants, except Susan O’Connor and Nancy Fitzgerald of Avalon Gardens, are liable for Sec. 1983 conspiracy claim.

The ten Filipino nurses – Juliet Anilao, Harriet Avila, Mark de la Cruz, Claudine Gamaio, Elmer Jacinto, Jennifer Lampa, Rizza Maulion, James Millena, Theresa Ramos and Ranier Sichon – and their lawyer, Felix Q. Vinluan named defendants Spota, the office of the District Attorney of Suffolk County; Spota’s Assistant District Attorney Leonardo Lato, and County of Suffolk, collectively called County Defendants, as well as Sentosa Care, Avalon Gardens, Prompt, Luyun, Philipson, Rubenstein, O’Connor and Fitzgerald, collectively called Sentosa defendants, for violating their constitutional rights based on Sec. 1983.

SUFFOLK POLICE SAYS “NO CRIME COMMITTED”

In the memorandum and order, Judge Bianco said about three weeks after the resignations of the nurses, O’Connor called Suffolk Police Department to file a complaint. “Upon information and belief, the Police Department refused to take action, as in their stated opinion, no crime had been committed.”

When police took no action on the Sentosa defendants’ complaints about the plaintiffs, the Sentosa defendants approached Spota, the District Attorney.

Spota decided to have his staff investigate and assigned his assistant, Lato, Chief of Insurance Crimes Bureau, for the purpose of gathering evidence and securing an indictment.

The “politically powerful” Sentosa defendants and their attorneys met with Spota and “pressured” Spota to file an indictment “that he would not otherwise have filed” if they were not as powerful, according to the order.

It was at the instance of Philipson that “Spota took the unusual step of indicting an attorney (Vinluan) for giving advice to his clients" and “to punish the plaintiffs for their part in resigning and to discourage other nurses from resigning.”

O’Connor and Fitzgerald filed a complaint against the nurses with the New York State Education Department that licenses nurses and governs their conducts. In September 2006, the Education Department emailed Vinluan, saying the nurses have been fully exonerated of any wrongdoing. It said the nurses had not committed abandonment and had not engaged in unprofessional or immoral conduct in connection with their resignations.

When Lato interviewed Vinluan, Lato assured Vinluan that he was not a target of investigation. Vinluan provided Lato with “significant exculpatory information,” including the Education Department’s decision, order of Justice Stephen Bucaria of the New York State Supreme Court, denying the motion for a preliminary injunction against plaintiffs, and information regarding the fact that none of the nurse plaintiffs had ceased working during a shift.

WITHHELD EXCULPATORY EVIDENCE

Plaintiffs claim “nonetheless, Lato, with consent and at the urging of Spota, presented the case to a Grand Jury. Plaintiffs further claim that Lato and other unidentified investigators from the DA’s Office interviewed the nurse plaintiffs and similarly informed them that they were not targets of a criminal investigation.

Plaintiffs claimed that had they known they were targets, they “would have chosen other courses of conduct, including not participating in the interviews, or demanding to testify before the Grand Jury.”

Plaintiffs alleged wrongdoing in presentation of evidence to, and the procuring of the indictment from, the Grand Jury. Among these when Lato “deliberately used lurid photographs of children on ventilators to inflame the passions of the grand jurors and to procure a constitutionally invalid indictment for the benefit of the Sentosa defendants.”

And that Vinluan “advised the defendant Nurses to resign” “to obtain alternative employment for the nurses” that were baseless and founded upon the false testimony of Philipson and other Sentosa defendants.

And that one or more of the nurses had walked off during a shift, that shifts were inadequately covered, and that patients, including the children on ventilators were endangered, allegations which plaintiffs said were false.

And that Lato did not present to the Grand Jury the Education Department report exonerating the nurses “that would have been fatal to the indictment.”

A year after the Grand Jury presentation, the Grand Jury returned an indictment against the Nurses charging the Nurses with endangering the welfare of a child, endangering the welfare of a physically disabled person, conspiring to do the same, and solicitation (for allegedly requesting and attempting to cause the nurse to resign). The Plaintiffs were arrested as a result of their indictment.

Oscar Michelen, Vinluan’s lawyer, was quoted by New York’s Newsday as saying that he would soon set up a lengthy session to question Spota under oath. “We will be able to show that those charges should never have been brought.”

Howard Fensterman, an attorney for SentosaCare, says his clients would prevail later. While Emily Constant, chief assistant district attorney, said the charges against Spota and Lato would be dismissed later. (lariosa_jos@sbcglobal.net)