DENIS R. HURLEY, District Judge.
Plaintiff Jeffrey Bartels ("Plaintiff" or "Bartels") commenced this action pursuant to 42 U.S.C. § 1983 against defendants Dennis P. Guariglia ("Guariglia") and Maureen Dillner ("Dillner") (collectively "Defendants") asserting claims for "Malicious Prosecution" and "Depravation of Other Federal Right." (Complaint at unnumbered pages 4 & 5.)
The following facts are taken from parties' 56.1 Statements and are undisputed unless otherwise noted:
At all times relevant herein, Dillner has been employed by the Village of Lloyd Harbor (the "Village"). On or about April 6, 2013, Plaintiff was driving through Fiddler's Green,
Plaintiff has left numerous messages on the Village Highway Department's voicemail, some of which are reproduced below based upon a transcript of the messages produced by Plaintiff during this litigation.
On April 10, 2013 at 7:39am Plaintiff left the following message:
(Id. ¶4.)
On April 12, 2013 at 6:21 am Bartels left the following message directed at Dillner and her family:
(Id. ¶ 5.) Four minutes another message was left:
(Id. ¶ 6.) And at 6:30am Bartels left another "taunting" message directed at Dillner and her family:
(Id. ¶ 7.) At 7:43am Bartels left the following message directed at Dillner:
(Id. ¶ 8.) At 8:26am he left the following message, the fifth of the day:
(Id. ¶ 9.)
On April 18, 2013, at 4:03am, Bartels left the following message addressed to Dillner in which, among other things, he called her and her husband "a bunch of sick, demented, motherfuckers:"
(Id. ¶ 10.) He then left the following message at 7:45 am:
(Id. ¶ 11.)
Dillner contacted the Village Police Department to make a complaint about Bartels. Guariglia was on duty and took Dillner's complaint. Dillner told Guariglia that she was upset and disturbed by Plaintiff's numerous voicemail messages. Guariglia took a criminal complaint from Dillner and prepared a police report. (Id. ¶¶12-15.)
The Village police then forwarded the complaint and the voicemail recordings to the Suffolk County District Attorney's office for a determination as to whether the voicemail messages were a prosecutable offense. The District Attorney's office decided to prosecute Plaintiff for violating N.Y. Penal Law § 240.30(1), and notified the Village police department of that decision. Thereupon Guariglia and Sergeant Migliore issued a criminal citation to Plaintiff notifying him of the charges against him and the dates he was required to appear in court. (Id. ¶¶ 17-18.)
Bartels was arraigned on May 7, 2013 before the Honorable Jennifer A. Henry. At the arraignment, the prosecution moved for and was granted a temporary order of protection pursuant to CPLR 530.13 in favor of Dillner. It is Plaintiff's contention that Dillner "actively campaigned to have such an order of protection." Pursuant to that order and over his attorney's objection, Bartels was directed to surrender his firearms to a deputy sheriff or local police precinct. (Id. ¶¶ 19-21.)
Thereafter, Bartels moved for an order dismissing the charges against him pursuant to N.Y. CPL §§ 170.30 and 170.35 on the grounds that Penal Law § 240.30(1) was unconstitutional because the speech at issue was entitled to protection under the First Amendment. The prosecution filed papers in opposition to the motion. In an order dated November 1, 2013, the motion was denied by Judge Henry. Among other things, that order stated: "The defendant is not being prosecuted for engaging in constitutionally protected speech, but for his allegedly harassing conduct by leaving numerous voice messages directed at the complainant, heard by her at the time set forth in the information, which are alleged to have been harassing, threatening, and demeaning in nature, placing her in fear for her own safety and that of her family." After the issuance of the November 1, 2013 Order, by application dated March 11, 2014, the prosecution withdrew its opposition to Bartel's motion, leading to the dismissal of the criminal charges against him. (Id. ¶¶22-25; Ex. J to Pitcoff Declar.)
Summary judgment, pursuant to Rule 56, is appropriate only where the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a court must view all facts "in the light most favorable" to the non-movant, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014), and "resolve all ambiguities and draw all permissible factual inferences in favor of the [non-movant]," Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). Thus, "[s]ummary judgment is appropriate [only] where the record taken as a whole could not lead a rational trier of fact to find for the [non-movant]." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal quotation marks omitted).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts demonstrating that there is a genuine dispute of material fact to be tried. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The non-movant must present more than a "scintilla of evidence," Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87), and "may not rely on conclusory allegations or unsubstantiated speculation," Id. (quoting FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010).
The district court considering a summary judgment motion must also be "mindful . . . of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the "evidentiary burdens that the respective parties will bear at trial guide district courts in their determination[s] of summary judgment motions," Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the [non-movant] will bear the burden of proof on an issue at trial, the moving party may satisfy its burden by pointing to an absence of evidence to support an essential element of the [non-movant's] case." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014) (quoting Brady, 863 F.2d at 210-11) (internal quotation marks omitted). Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish his claim, the burden shifts to the non-movant to offer "persuasive evidence that his claim is not `implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). "[A] complete failure of proof concerning an essential element of the [non-movant's] case necessarily renders all other facts immaterial." Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
As briefly noted above, the complaint contains two causes of action. The first is entitled "malicious prosecution" and is asserted against both Dillner and Guariglia. The second cause of action is asserted solely against Dillner and asserts that she violated Bartel's Second and Fifth Amendment rights by "seeking and obtaining an Order of Protection that required Plaintiff to surrender all of his otherwise legally owned rifles and shotguns during the pendency of the criminal matter . . . [and] without a legitimate basis." (Comp. ¶ 21
Defendants maintain they are entitled to summary judgment on the first cause of action based on qualified immunity. With respect to the second cause of action, they argue that it is barred by the Rooker-Feldman Doctrine, there was no violation of Bartels' Second Amendment rights and Dillner is entitled to qualified immunity. Finally, they argue there can be no 1983 claims against Dillner as she was not acting under color of law.
In response, Bartels argue that his right to be free from prosecution was clearly established at the time of prosecution and his Second Amendment claim is valid. He further asserts that Dillner is a state actor because she acted together with or obtained significant aid from state officials and because her conduct is otherwise chargeable to the state.
"[T]he merits of a claim for malicious prosecution under [Section 1983] are governed by state law." Dufort v. City of New York, 874 F.3d 388, 350 (2d Cir. 2017). Under New York, to prevail on a claim for malicious prosecution, a plaintiff must show "the commencement or continuation of a criminal proceeding against [him]; the termination of that proceeding in [his] favor; that there was no probable cause for the proceeding; and that the proceeding was instituted with malice." Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (internal quotation marks omitted); accord Posr v. Court Officer Shield #207, 180 F.3d 417 (2d Cir. 1999).
Bartels claims for malicious prosecution fails as a matter of law. As Judge Amon of this Court recently explained:
King v. City of New York, 2018 WL 4568798, at *4 (E.D.N.Y. Sept. 24, 2018); accord Myers v. County of Nassau, 825 F.Supp.2d 359, 367 (E.D.N.Y. 2011) ("In view of the fact that it is ultimately the District Attorney's decision as to whether or not to proceed with a case, the prosecutor's decision to go forward with prosecution will generally cut off the liability of the arresting officers for a claim of malicious prosecution. However, an arresting officer may nonetheless be liable pursuant to a malicious prosecution theory if it can be shown that the officer has knowingly created false information that creates the basis for the prosecution.") (internal citations omitted); cf. Mara v. Rilling, 921 F.3d 48, 77 n.19 (2d Cir. 2019) ("Insofar as [plaintiff's] malicious prosecution claim appears to challenge the maintenance of an action against him after evidence implicating another person came to light, that decision was the prosecutor's rather than defendants and, thus, cannot be maintained against them) (citing Wilson v. City of New York, 480 F. App'x 592, 595 (2d Cir. 2012) (summary order) (holding that "decision to continue prosecution after the new evidence came to light was made by the assistant district attorney and the court, not by" officers, and thus, no reasonable jury could find officers liable)).
Applying the foregoing principles to the case at bar, requires dismissal of the first cause of action as against both Defendants. Plaintiff does not dispute that Guariglia took Dillner's complaint, prepared a police report, forward the complaint and voicemail recordings to the Suffolk County District Attorney's office in order for that office to determine if the voicemail messages were a prosecutable offense and that the District Attorney's office then commenced a prosecution against Bartels for violating Penal Law § 240.30(1). There is nothing to support the proposition that Guariglia or Dillner created false information and in fact a copy of the voicemail messages was provided to the District Attorney's office. Nor is there anything to support that either Defendant "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." To the extent Plaintiff relies on the deposition testimony of Chief Flynn in support of an argument that Dillner "actively sought the order of protection against Plaintiff" (see Pl.'s 56.1 Resp. at p. 1), that reliance is misplaced.
According to Plaintiff, while Dillner testified at her deposition that she did not actively seek an order of protection, her testimony "was controverted by the testimony of retired Police Chief Flynn. . . ." (Id., citing Flynn Dep. at 55-56.) The referenced deposition testimony is as follows:
(Ex. 1 to Maloney Declar. (Flynn Dep. at 55:4-56:9).) It is evident from the cited testimony that Flynn has no personal knowledge of any participation in the criminal proceeding by Dillner, other than her original complaint to the police, and certainly no personal knowledge that she sought the order of protection. Moreover, the cited testimony is insufficient to establish any admission by Dillner as to her participation after she filed a complaint with the police. As such it is inadmissible and provides no support for the malicious prosecution claim.
The Court now turns to Defendants' argument that they are entitled to summary judgment on the basis of qualified immunity.
"Qualified immunity is an affirmative defense that shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2003) (internal quotation marks and citation omitted). Rights are "clearly established" where "existing law . . . place[s] the constitutionality of the officer's conduct `beyond debate.'" Dist. of Columbia v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). "In determining whether a right was so clearly established, the Supreme Court has emphasized that the `dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Barboza v. D'Agata, 676 F. App'x 9, 12 (2d Cir. 2017) (summary order) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). While a plaintiff need not identify "a case directly on point" to demonstrate that an asserted federal right was clearly established at the time a defendant acted, the Supreme Court has instructed time and again that "existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix v. Luna, 136 S.Ct. 305, 551 (2015) (per curiam) (emphasis added) (citation omitted); see also, e.g., City of Escondido v. Emmons, 139 S.Ct. 500, 504 (2019); District of Columbia v. Wesby, 138 S.Ct. 577, 589-90 (2018) ("The rule must be settled law, ... which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority." (internal quotation marks and citations omitted)); White v. Pauly, 137 S.Ct. 548, 551-52 (2017) (per curiam) ("[G]eneral statements of the law are not inherently incapable of giving fair and clear warning to officers, . . . but in the light of pre-existing law the unlawfulness must be apparent. . . ." (internal quotation marks omitted)). To that end, the Supreme Court has described qualified immunity as a "demanding" doctrine protecting "all but the plainly incompetent or those who knowingly violate the law." Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); accord Johnson v. Perry, 859 F.3d 156, 170 (2d Cir. 2017) (Qualified immunity protects officers when "their decision was reasonable, even if mistaken"; that, in turn, "protect[s] all but the plainly incompetent or those who knowingly violate the law.") (internal quotation marks omitted).
In deciding whether qualified immunity applies, courts conduct a two-step analysis: "First, do the facts show that the officer's conduct violated plaintiff's constitutional rights? Second, if there was a constitutional violation, was the right clearly established at the time of the officer's actions?" Barboza, 676 F. App'x. at 12 (2d Cir. 2017); see Winfield v. Trottier, 710 F.3d 49 (2d Cir. 2013) (when deciding the issue of qualified immunity, "courts ask whether the facts shown [1] make out a violation of a constitutional right, and [2] whether the right at issue was clearly established at the time of defendant's alleged misconduct.") (internal quotation marks omitted). Courts, however, "may, in [their] own discretion, refrain from determining whether a constitutional right has been violated and instead move directly to the question of qualified immunity. . . ." Costello v. City of Burlington, 632 F.3d 41, 51-52 (2d Cir. 2011) (Pooler, J., concurring).
Bartels maintains that in view of People v. Mangano, 100 N.Y.2d 569 (2003) he had a clearly established right to engage in the speech at issue despite Penal Law 240.30(1). In Mangano, the New York Court of Appeals held that that provision could not be applied to the defendant's leaving message with a municipal parking bureau that ""rained invective on two village employees, wished them and their families ill health, and complained of their job performance, as well as tickets that she had received," as they were "made in the context of complaining about government actions, on a telephone answering machine set up for the purpose . . . of receiving complaints from the public." Id. at 570-71.
In Barboza v. D'Agata, 676 F. App'x 9 (Jan 18, 2017), the Second Circuit distinguished Mangano, and held that in the case before it, the defendants were entitled to qualified immunity. First it noted that "Mangano did not hold § 240.30(1) violative of the First Amendment in all respects. To the contrary, Mangano only distinguished—but did not overrule—People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 (1995), in which the Court of Appeals upheld a conviction for telephone harassment under § 240.30(2), concluding that liability arose from defendant's `harassing conduct, not from any expression entitled to constitutional protection,' id. at 536." 676 F. App'x at 13. The Circuit then proceeded to state:
676 F. App'x at 13-14.
The reasoning in Barboza applies with equal force here. The offensive messages directed to Dillner were not left on a device set up for the purpose of receiving complaints from the public and many of Bartel's messages that were directed to Dillner had nothing to do with the operation of the Village but were directed to her as a resident of Fiddlers Green and/or because of action allegedly committed by her husband. Moreover, § 240.30(1) was not declared unconstitutional on its face by the New York Court of Appeals until after the prosecution agreed to dismissal of the charges against Bartels. Accordingly, this Court cannot conclude that no reasonable person could have believed that Bartels could be arrested for violation of Penal Law ¶240.30(1) without violating the First Amendment.
The Second Cause of actions asserts violations of Plaintiff's Second and Fifth Amendment rights solely against Dillner.
Turning first to the claim for alleged violation of his Second Amendment rights, Dillner is entitled to summary judgment dismissing for the same reasons that required dismissal of the claim for malicious prosecution. There is an absence of admissible evidence to support any claim that she actively sought the order of protection. Moreover, as the transcript of the hearing held on May 7, 2013 in People v. Bartels demonstrates, Judge Henry issued the order of protection with a provision to surrender any and all handguns, pistols, revolvers and shotguns over the objection of defense counsel (see Ex. H to Pitcoff Declar. at 4-17) and there is nothing in that record to indicate that Dillner was or even sought to be heard on the matter. The issuance of the judicial order by Judge Henry was an intervening act which bars any liability on Dillner's part for the alleged Second Amendment violation. See cases cited at page 12 supra.
Two other observations are in order. First, given Plaintiff's concession regarding the unsettled nature of the Second Amendment's right to bear arms (see Pl.'s Mem at 4-5), qualified immunity is also applicable to this claim. Second, to the extent that Plaintiff is asserting that he was deprived of property without due process, the claim is rejected. Bartels asserts a violation of the Fifth Amendment and Fifth Amendment due process claims may only be asserted against federal actors. See, e.g., Dusenbery v. United States, 534 U.S. 161, 167 (2002); Ambrose v. City of New York, 623 F.Supp.2d 454, 466-67 (S.D.N.Y. 2009). Moreover, Plaintiff was given an opportunity to be heard on whether an order directing the surrender of his various firearms would be issued. See generally Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001) (Ordinarily, due process "requires that a state or local government afford persons `some kind of hearing' prior to depriving them of a significant liberty or property interest.") He also had the ability to pursue an appeal of that order under New York law. As such due process was satisfied.
Defendants' motion for summary judgment is granted. The Clerk of Court is directed to enter judgment accordingly and to close this case.
