PAMELA K. CHEN, District Judge.
Plaintiff Howard J. Norton brings this action against Defendants the Town of Islip ("the Town"); the County of Suffolk ("the County"); and Town of Islip attorneys Alicia S. O'Connor, Erin Sidaras, Patricia Waite, and Michael Walsh, and Town of Islip investigators Daniel C. Eckert and Mistretta (collectively, the "Individual Town Defendants"). The thirteen-count Second Amended Complaint alleges several theories of liability against the defendants stemming from the Town of Islip's issuance of appearance tickets to Norton in 2010 and subsequent attempts to prosecute Norton for violations of the Town's Rental Permit and Prohibited Storage laws. The Town Defendants
For the reasons set forth below, the Court dismisses Norton's claims pled under 42 U.S.C. § 1983 (First Amendment retaliation, malicious prosecution, Fourth Amendment violation, due process violation, and related Monell liability against the Town and County). Thus, the following counts are dismissed: Count 1 (First Amendment retaliation), Count 2 (malicious abuse of process), Count 4 (Fourth
The Court also dismisses Norton's claims pled under the federal Declaratory Judgment Act because they cannot independently support subject matter jurisdiction. Count 9 (pattern/practices of the Town), Count 10 (pattern/practices of the County) and Count 11 (invalidation of the Town Rental Code) are thus dismissed from the complaint.
Having disposed of Norton's claims pled under federal law, the Court declines to exercise supplemental jurisdiction over the remaining state law claims in the complaint. The Court thus dismisses, without prejudice, the following claims for lack of independent subject matter jurisdiction: Count 3 (malicious prosecution under New York law) and Count 7 (respondeat superior liability against the Town for malicious prosecution). The Court also dismisses Norton's cross-motion for summary judgment on Count 11.
The following facts are drawn from the allegations in Norton's Second Amended Complaint ("the complaint" or "SAC"), which are assumed to be true in deciding the Defendants' Motion for Judgment on the Pleadings. See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001). All reasonable inferences are drawn in favor of Norton as the non-moving party. Id.
Norton resides in Lynbrook, New York and owns residential property in the Town of Islip. (SAC, ¶ 4). From October 2009 through June 2012, he owned a 25% interest in the property located at 204 Claywood Drive in the Town of Islip ("the Claywood Property"). (SAC, ¶¶ 4, 96). The remaining 75% interest in the Claywood Property was severally owned by his brothers. (SAC, ¶ 98).
The Town of Islip is located in Suffolk County, New York. During the time relevant to this action, the Town employed Alicia O'Connor as the Town Attorney for the Office of the Town of the Town of Islip ("Town Attorney's Office"). (SAC, ¶ 7). Also employed by the Town Attorney's Office were Erin Sidaras, Deputy Town Attorney; Patricia Waite, Assistant Town Attorney; and Michael Walsh, Assistant Town Attorney. (SAC, ¶¶ 8-10). Norton alleges that Sidaras and O'Connor were the policymakers in the Town Attorney's Office. (SAC, ¶¶ 7-8).
During the time relevant to this action, the Town's Division of Code Enforcement employed Daniel Eckert as an investigator and Jason Mistretta as senior investigator. (SAC, ¶¶ 11-12).
The present action is Norton's third against the Town of Islip in the Eastern District of New York and his fourth total. The first action, No. 98-CV-6745 ("Norton I") arose out of a 1997 accusatory instrument filed against Norton for the alleged use of a one-family dwelling in non-conformity with its last-issued certificate of occupancy. (SAC, ¶ 13). During the pendency of that criminal action, Norton commenced
On July 21, 2004, Norton commenced a second action, No. 04-CV-3079 ("Norton II") in the Eastern District of New York against the Town, certain individual officers of the Town and the County for malicious prosecution and abuse of process under state and federal law arising out of the Town's criminal prosecution of Norton during Norton I. (SAC, ¶ 32). Norton moved to disqualify Sidaras or any other Town Attorney from representing the Town in Norton II, arguing a conflict of interest in having any Town Attorney represent the Town when Norton had named the Town Attorney and Deputy Town Attorney as defendants. (SAC, ¶ 33).
Prior to filing Norton II, Norton filed three separate record demands with the Town pursuant to New York's Freedom of Information Law ("FOIL"). (SAC, ¶ 55). A long-running dispute over the requested records and the Town's production ensued. (SAC, ¶¶ 56-94). During the course of the proceeding, Norton filed a motion for civil contempt against the Town and individual defendants, including Sidaras, and sanctions against the Town. (SAC, ¶ 86). On July 26, 2007, the Suffolk County Supreme Court denied the motion for contempt and for sanctions, and ordered the Town to produce redacted records. (SAC, ¶ 89). Both sides appealed. (SAC, ¶ 90). On February 9, 2010, the Appellate Division, Second Department reversed the lower court's 2007 decision and remitted the case to determine whether the Town had violated a 2006 order to produce and also to re-examine Norton's motion for civil contempt and sanctions. (SAC, ¶ 91).
The present action arises from the Town's issuance of appearance tickets and accusatory instruments with respect to Norton's Claywood Property. On February
Eckert entered the property and conducted a search of the interior of the house, garage and curtilage. (SAC, ¶¶ 102, 104, 106). Norton alleges the search was unauthorized because Norton did not consent and Eckert had no warrant. (SAC, ¶¶ 102, 106). While at the property, Eckert spoke with Ralph Voehl and Joseph Atkins and asked them to execute an affidavit of tenancy regarding the Claywood Property. (SAC, ¶ 109). Voehl explained the terms of his lease to Eckert, but declined to execute an affidavit. (SAC, ¶¶ 109, 122).
On February 3, 2010, Eckert issued an appearance ticket to Norton for "allow[ing] and maintain[ing] the rental of the [Claywood Property] without a permit from the Town of Islip." (Town Def. Ex. D-1 at 1 ("Rental Appearance 1"); SAC, ¶ 110). After several attempts of service at the Claywood Property, Eckert mailed Rental Appearance 1 to Norton's brother in Syosset with a copy to the Claywood Property. (SAC, ¶¶ 112-16). Eckert also called the Town's Housing Bureau to see if Norton had a rental permit. (SAC, ¶ 114).
On February 17, 2010, Eckert signed an accusatory instrument for the violation alleged in Rental Appearance 1. (Town Def. Ex. D-1 at 2 ("Rental Accusatory 1"); SAC, ¶ 122). Rental Accusatory 1 charged Norton with a violation of Town Code Section 64-650, lack of a rental occupancy permit. (Rental Accusatory 1). The instrument stated that "the entire dwelling is rented by Ralph Voehl . . . and his family" and that Voehl had rented the property since approximately July 2006 and paid $1525 per month in rent. (Id.). Rental Accusatory 1 also noted that the alleged violation is punishable by a fine of between $750 and $2,500, imprisonment of 15 days or less, or both a fine and imprisonment. (Id.)
Eckert returned to the Claywood Property on February 18 and 22. (SAC, ¶ 117). On February 22, 2010, Eckert issued Norton an appearance ticket for allegedly "allow[ing] and maintain[ing] the storage of an unregistered GMC pickup truck in the driveway" of the Claywood Property, in violation of Town Code 68-420. (Town Def. Ex. D-1 at 3 ("Storage Appearance 1"); SAC, ¶ 118). Eckert mailed Storage Appearance 1 to Norton's brother in Syosset. (SAC, ¶ 121).
On March 2, 2010, Eckert signed an accusatory instrument for the violation alleged in Storage Appearance 1. (Town Def. Ex. D-1 at 4 ("Storage Accusatory 1"); SAC, ¶ 123). Storage Accusatory 1 charged Norton with a violation of Town Code Section 68-420, prohibited storage. (Storage Accusatory 1). Town Code Section 68-420 prohibits the outdoor storage of unregistered vehicles unless certain exceptions are met. (Id.). Storage Accusatory 1 stated that Eckert observed "the unregistered GMC pick up truck . . . in the driveway on 2/5/2010, 2/8/2010 and 2/22/2010." (Id.) It noted that the Claywood Property was in a Residence B Zoning District and outdoor storage was prohibited in such a district. (Id.) Storage Accusatory 1 provided that the alleged violation is punishable by a fine of $2000 or less, imprisonment of 15 days or less, or both fine and imprisonment." (Id.).
Norton alleges that Eckert knew that Norton was one of three owners of the
Eckert submitted the first set of accusatory instruments (consisting of Rental Accusatory 1 and Storage Accusatory 1), as well as an affidavit attesting to service of Rental Appearance 1, to the Town Attorney's Office. (SAC, ¶¶ 126-27). The first set of accusatory instruments and the affidavit or service were subsequently filed with the State Court. (SAC, ¶ 129). Norton alleges that the Town filed these accusatory instruments with the State Court though they were facially insufficient, taking advantage of the State Court's systemic failure to review accusatory instruments for facial insufficiency. (SAC, ¶¶ 130-34).
The State Court initially scheduled separate arraignment hearings on Rental Accusatory 1 and Storage Accusatory 1 in April and May 2010. (SAC, ¶¶ 135, 143). Norton did not appear at either of the initial hearings, nor did he appear at the adjourned hearings in June 2010. (SAC, ¶¶ 135, 143 146, 153). Norton claims that he did not receive the State Court's notices of the adjournment, but admits that his attorney was at least aware of the pending matters; his attorney sent letters to the State Court to contest its jurisdiction and spoke about the matter with Deputy Town Attorney Sidaras. (SAC, ¶¶ 142, 144-45, 146-48, 150).
On July 6, 2010, Assistant Town Attorney Waite filed two arrest warrant applications against Norton based on his failure to appear. (SAC, ¶¶ 155, 158). Walsh later requested to withdraw the pending warrant applications. (SAC, ¶ 159). Three arraignment hearings were held in September 2010, but Norton did not appear at any of them, continuing to claim that he did not receive notice. (SAC, ¶¶ 160-65). On September 15, 2010, Assistant Town Attorney Walsh made an oral application to dismiss Rental Accusatory 1 and Storage Accusatory 1, which the State Court granted. (SAC, ¶¶ 165-66).
On September 16, 2010, Eckert conferenced Norton's criminal matters with Sidaras, Walsh, and Town Senior Investigator Mistretta. (SAC, ¶ 168). Sidaras, Walsh and Mistretta instructed Eckert to write new appearance tickets based on the same code violations alleged in Rental Appearance 1 and Storage Appearance 1, and serve them on Norton at his home in Lynbrook, New York. (SAC, ¶ 169). Eckert did so on December 8, 2010. (SAC, ¶ 170; Town Def. Ex. D-1 at 5 ("Rental Appearance 2"); Town Def. Ex. D-1 at 7 ("Storage Appearance 2")). Sidaras instructed Eckert as to acceptable methods of service. (SAC, ¶ 172).
On September 29, Eckert issued accusatory instruments pursuant to the second set of appearance tickets. (SAC, ¶ 173; Town Def. Ex. D-1 at 6 ("Rental Accusatory 2"); Town Def. Ex. D-1 at 8 ("Storage Accusatory 2")). He also signed an affidavit attesting to his service of the second set of appearance tickets. (SAC, ¶ 174). The affidavit and the second set of accusatory instruments against Norton were then submitted to the Town Attorney's Office and subsequently filed with the State Court. (SAC, ¶¶ 176-77).
Norton alleges that Eckert issued the second set of appearance tickets and accusatory instruments against him despite Eckert, Sidaras, Walsh and Mistretta all knowing that he was one of several owners of the Claywood Property. (SAC, ¶¶ 170, 178). He also claims that he did not receive the second set of appearance tickets in the mail, and his attorney again contested the State Court's jurisdiction on the
The first arraignment pursuant to the second set of accusatory instruments was held on December 8, 2010. (SAC, ¶ 180). Norton did not appear, and the hearing was adjourned to a later date. (SAC, ¶¶ 180-81). Norton's attorney contested the adjourned date, reiterating the service defects previously raised to the Court. (SAC, ¶ 183). Sidaras then called Norton's attorney, stating that she would be seeking arrest warrants at the next hearing. (SAC, ¶ 184). Waite signed and filed two arrest warrant applications against Norton on December 29, 2010. (SAC, ¶ 188).
Norton's attorney contested the arrest warrant applications on the grounds that the accusatory instruments were facially insufficient, but noted that Norton would appear at a hearing if properly served by a summons. (SAC, ¶ 191). Norton did not appear at the first warrant application hearings on January 12, 2011. (SAC, ¶ 192). Though Waite withdrew the arrest warrant applications, she signed and filed two new arrest warrant applications on January 24, 2010—the third overall set of arrest warrant applications in this matter. (SAC, ¶¶ 194, 196). Norton's attorney continued to contest the arrest warrant applications. (SAC, ¶¶ 199-201).
On February 2, 2011, the State Court held a hearing on the third set of warrant applications. Norton's attorney appeared, but was not authorized to appear for arraignment on behalf of Norton. (SAC, ¶¶ 202, 205). Sidaras appeared, noting that she and Norton's attorney had a relationship from "other pending matters" concerning Norton, and argued that the arrest warrant applications could proceed. (SAC, ¶ 206). Norton's attorney contested the facial sufficiency of Rental Accusatory 2 and Storage Accusatory 2. (SAC, ¶ 207). The State Court found the second set of accusatory instruments to be legally sufficient and granted the arrest warrant applications. (SAC, ¶ 208).
Later that day, after failing to appear at over 10 hearings, Norton finally appeared in State Court. (SAC, ¶ 209). On February 2, 2011, Norton was arraigned on Rental Accusatory 2 and Storage Accusatory 2, pleading not guilty to both instruments. (SAC, ¶ 209). On April 18, 2011, Norton made timely motions to dismiss the second set of accusatory instruments based on jurisdictional defects and other grounds. (SAC, ¶ 210).
Norton alleges that he suffered pre-arraignment restraints on his liberty in the following ways: his retention of a lawyer to contest the second set of accusatory instruments, his walk through a metal detector upon entry at the State Court, and his "submission to a warrantless search of his person and effects" to gain entry to the State Court. (SAC, ¶¶ 222, 224). Norton alleges that he suffered post-arraignment restraints on his liberty in the following ways: appearance at the State Court for his arraignment on February 2, 2011; further appearances at the State Court following his arraignment (no dates given); and a requirement under state law that he "render himself at all times amenable to the orders and processes of the State Court." (SAC, ¶¶ 221, 223).
While Norton's motions to dismiss were pending, Eckert returned to the Claywood Property on May 4, 2011, with his vehicle parked in the driveway. (SAC, ¶ 211). Norton alleges that Sidaras instructed Eckert to conduct an investigation into a prior violation on the Claywood Property. (SAC, ¶ 212). The next day, Eckert attempted to have Ralph Voehl execute another affidavit of tenancy, based on Sidaras's instruction to Eckert. (SAC, ¶ 212). Voehl refused. (SAC, ¶ 212).
On June 9, 2011, the State Court dismissed Rental Accusatory 2 and Storage
Norton filed notices of claim against the Town and the County arising out of the investigation and prosecution of the alleged rental and storage violations. (SAC, ¶ 227). He caused the notices of claim to be served on the Town and County on August 16, 2011. (SAC, ¶ 228). Norton filed this action, No. 12-CV-4463 ("Norton III") on September 6, 2012. (Dkt. 1). The Defendants do not contest the timeliness of Norton III.
The Town Defendants have moved for judgment on the pleadings pursuant to FRCP 12(c). The County has moved to dismiss pursuant to FRCP 12(b)(6). Norton has opposed both motions and cross-moved for summary judgment on his claim seeking the invalidation of the Town's Rental Permit Law.
The Court heard oral argument on the pending motions on January 30, 2015.
With respect to the Town Defendants' Motion for Judgment on the Pleadings and the County's motion to dismiss, the Court reviews Norton's Second Amended Complaint under the well-established Iqbal/Twombly standard. See Martin v. County of Nassau, 692 F.Supp.2d 282, 288 (E.D.N.Y.2010) ("`The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.'") (quoting Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006)). The Court thus considers whether Norton's Seconded Amended Complaint contains enough allegations of fact to state a plausible claim for relief. Martin, 692 F.Supp.2d at 288 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although the Court "`must accept as true all of the allegations contained in a complaint,' that `tenet' `is inapplicable to legal conclusions,' and `[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 668, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Furthermore, "`only a complaint that states a plausible claim for relief survives a motion to dismiss,' and `[d]etermining whether a complaint states a plausible claim for relief will. . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Harris, 572 F.3d at 72 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937).
The Town Defendants attached a number of exhibits to their motion for judgment on the pleadings and requested the Court's consideration of these materials. Generally, on a motion to dismiss or for judgment on the pleadings, the Court is constrained to the "four corners" of the complaint. Gorfinkel v. Vayntrub, No. 11-CV-5802, 2014 WL 4175914, at *3 (E.D.N.Y. Aug. 20, 2014) (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.1998)). The Court may consider documents outside of the complaint, however, if the plaintiff relied on them to
In deciding the parties' motions, the Court has considered the following exhibits, which Norton referenced and relied upon in his Second Amended Complaint: Town Defendants' Exhibit C (Plaintiffs Notice of Claim), Exhibit D-1 (Rental Appearances 1-2, Storage Ticket 1-2), Exhibit D-2 (Affidavits of Service), Exhibit D-3 (Court Notices), Exhibit D-4 (Arrest Warrants), Exhibit D-5 (Transcript of 2/2/2011 Hearing), Exhibit E (Orders Dismissing Rental Ticket 2 and Storage Ticket 2). Exhibit D-6 contains the 500-page motion record for Norton's two dismissal motions before Suffolk County State Court.
Though the complaint merely refers to Norton's filing of the Notice of Motion (SAC, ¶ 210), and does not quote from the motion papers or the motion record, the Court takes judicial notice of Exhibit D-6 because they contain public court records. The Court also takes judicial notice of Exhibit F, which contains relevant excerpts of the Town Code.
Norton brings a total of thirteen counts against the Town, County, and named individual defendants. He asserts federal jurisdiction based on his claims under 42 U.S.C. § 1983 ("Section 1983") and related declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. (SAC, ¶ 2). However, because the Declaratory Judgment Act does not independently support federal jurisdiction, this Court's subject matter jurisdiction over the Defendants' motions is essentially based on Plaintiff's Section 1983 claims. See Chevron Corp. v. Naranjo, 667 F.3d 232, 244-45 (2d Cir.2012) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950)).
Norton asserts that the individual Town Defendants, Town and County are liable under Section 1983 for First Amendment retaliation, abuse of process and malicious prosecution based on their issuance of the second set of accusatory instruments and their criminal prosecution of Norton. (See SAC, Counts 1, 2, 6, 8, and 13). On the same basis, Norton also asserts state law claims for malicious prosecution against the individual Town Defendants and Town. (See SAC, Counts 3 and 7).
Norton brings additional claims under Section 1983 against the Town for violations of his Fourth Amendment reasonable expectation of privacy in the Claywood Property and right to procedural due process. (See SAC, Counts 4, 5). He also seeks attorneys' fees under Section 1983. (See SAC, Count 12).
Finally, Norton seeks declaratory relief against the Town and County pursuant to the federal Declaratory Judgment Act. He seeks declarations that the Town's actions against him resulted from ongoing Town practices that violate his rights under the federal and New York State Constitutions, that the County is also liable for the violation
The Court begins by analyzing Norton's claims under Section 1983.
Pursuant to Norton's voluntary dismissal of his claims against Defendant Waite (see Pl. Opp. Memo at ECF 2), Count Two (abuse of process under 42 U.S.C. § 1983) is dismissed from Norton's Second Amended Complaint in its entirety. The dismissal of this claim also limits the basis of Norton's Monell claims against the Town and County (Counts 6 and 8, respectively) to malicious prosecution under Section 1983 only.
The Court also dismisses Waite from Count 3 (New York State malicious prosecution) and Count 13 (federal malicious prosecution).
Count 1 seeks monetary damages against Defendants Sidaras, Walsh, Mistretta and Eckert for their alleged retaliation against Norton due to his exercise of his First Amendment rights. (SAC, ¶¶ 230-36). Norton alleges that they worked in concert to issue Rental Appearance 2 and Storage Appearance 2, ignoring the judicial insufficiency of the appearance tickets, because they sought to retaliate against Norton for his prior and ongoing litigation against the Town. (Id.). Sidaras, Walsh, Mistretta and Eckert assert various defenses, including absolute immunity for Sidaras and Walsh, probable cause supporting the appearance tickets, lack of causation alleged, lack of allegations of Mistretta's personal involvement, and qualified immunity for all four defendants. (Town Def. Memo at ECF 6-15).
Because district courts "are encouraged to determine the availability of an absolute immunity defense at the earliest appropriate stage," the Court first considers whether any of the named Town Defendants are absolutely immune from liability on this claim. See Norton v. Town of Brookhaven, 33 F.Supp.3d 215, 229 (E.D.N.Y.2014), reconsidered on other grounds, 47 F.Supp.3d 152 (E.D.N.Y.2014) (citations omitted). The defendants claiming immunity bear the burden of showing that the particular claimed immunity applies. Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir.2012). Here, Sidaras and Walsh claim absolute immunity based on activities performed in their prosecutorial capacities. (Town Def. Memo at ECF 14).
Courts take a functional approach when evaluating a state prosecuting attorney's ability to invoke absolute immunity. Warney v. Monroe County, 587 F.3d 113, 121 (2d Cir.2009) (identifying prosecutorial immunity "not by the identity of the actor but by reference to the `function' performed"); Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir.1993) (noting immunity attaches to the "function performed, not on the office itself"). To establish immunity, the ultimate question is whether the prosecutors "have carried their burden of establishing that they were functioning as `advocates' when they engaged in the challenged conduct." Warney, 587 F.3d at 121 (citing Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.1996)). Prosecutorial functions shielded by absolute immunity include conduct "preliminary to the initiation of a prosecution," such as "whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present." Giraldo,
The Town Defendants argue that Sidaras and Walsh are immune from suit for First Amendment retaliation based on Norton's allegation that they instructed and advised Eckert to issue and serve new appearance tickets and accusatory instruments. (Town Def. Memo at ECF 14; Town Defs. Reply Memo at ECF 27). They also argue that such conduct does not qualify as administrative or investigative conduct ineligible for immunity because it was connected with an existing prosecution, or preliminary to initiating a new prosecution against Norton. (Town Defs. Reply Memo at ECF 24). Norton, however, argues that "instructing and advising the issuance and service" of appearance and accusatory tickets are not intimately associated with the judicial phase of the criminal process; instead, he claims the issuance of appearance tickets are a police function. (Pl. Opp. Memo at ECF 48, 52).
Given the facts alleged in the Second Amended Complaint, the Court finds that Defendants Sidaras and Walsh's instruction and advice regarding the issuance and service of appearance tickets and accusatory instruments on Norton was preliminary to the Town's initiation of a new prosecution. Therefore, any claims premised on these actions are immune from suit. As Norton recognizes, an appearance ticket is a preliminary step to the filing of an accusatory instrument and the issuance of a court summons. (Pl. Opp. Memo at ECF 48). As such, the Town's issuances of new appearance tickets and accusatory instruments were necessary preliminary steps for the Town to initiate its second prosecution of Norton.
Defendants Sidaras and Walsh are thus dismissed from Count 1 on the basis of absolute immunity.
To properly plead a claim for First Amendment retaliation under 42 U.S.C. § 1983, Norton must adequately allege: (1) that he has a right protected by the First Amendment; (2) that Defendants' actions were motivated or substantially caused by his exercise of that right; and (3) that Defendants' actions caused him some injury. See Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir.2013). Furthermore, because this claim arises under Section 1983, Norton must plausibly allege that each of the remaining defendants was personally involved in the retaliation against him. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010) ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (citation omitted).
There is no dispute regarding Norton's First Amendment right to sue the Town, so the first element is established here. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.2002) ("The rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment."). The Town Defendants contest the sufficiency of Count 1 with respect to the other elements necessary to allege First Amendment retaliation.
Count 1 fails against Mistretta because it does not plausibly state a claim. The sum total of factual allegations against Mistretta are that he was present at a meeting on Norton's criminal matters with other Town Defendants (SAC, ¶ 168), and that he knew that Norton was one of three
Count 1 also fails against Eckert because it does not plausibly allege that Eckert's actions were "motivated or substantially caused by" Norton's prior and ongoing litigation against the Town. Norton's complaint admits that Eckert was sent to the Claywood Property "based upon the belief that the Claywood Property was being used as a rental," not because Eckert was seeking to find a violation to pin against Norton in retaliation for Norton's litigation. (See SAC, ¶ 100). Norton does not aver that Eckert participated in, or was even aware of, Norton's litigation against the Town before he went to the Claywood Property on February 3, 2010. Furthermore, Norton later contends that Eckert only issued the second set of appearance and accusatory instruments at the direction of attorneys Sidaras and Walsh (SAC, ¶¶ 169, 172-73), not because of Norton's litigation. Norton's conclusory allegation of a retaliatory motive by Eckert is not supported by the factual allegations in his complaint. Having failed to satisfy Iqbal/Twombly, Count 1 is dismissed with respect to Eckert.
Even if Norton had stated a plausible claim against Mistretta and Eckert, the Court would still dismiss Norton's First Amendment retaliation claim because the appearance tickets against Norton were supported by probable cause.
Probable cause is an absolute defense to a "First Amendment claim that is premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive." Fabrikant v. French, 691 F.3d 193, 215 (2d Cir.2012). Where there is probable cause to arrest a plaintiff or issue a summons, the Court need not make an inquiry into the defendants' motives for doing so. See id. at 215 (granting summary judgment to defendants on plaintiff's claim for First Amendment retaliation because defendants had probable cause to arrest plaintiff for animal cruelty); Espinoza v. City of New York, No. 11-CV-2108, 2012 WL 4761565, at *5 (S.D.N.Y. Aug. 3, 2012) (dismissing plaintiffs claim for First Amendment retaliation because police had probable cause to ticket plaintiff). The Court assesses probable cause under the "totality of the circumstances." See Stansbury v. Wertman, 721 F.3d 84, 92-93 (2d Cir.2013); United States v. Gagnon, 373 F.3d 230, 236 (2d Cir.2004) ("Probable cause exists if a law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge
Here, the Town Defendants argue that Norton's claim for First Amendment retaliation must be dismissed because the Town had probable cause to issue Rental Tickets 1-2 and Storage Tickets 1-2. Norton counters that there was a lack of probable cause to charge him with Rental Tickets 1-2 and Storage Tickets 1-2. (Pl. Opp. Memo at ECF 16). The Court examines Norton's allegations regarding the lack of probable cause associated with each type of ticket below.
Rental Tickets. Because the rental violation tickets are all tied to the violation observed by Eckert on February 3, 2010, the Court first examines the probable cause supporting Rental Ticket 1. The Second Amended Complaint avers that on that day, Eckert went to the Claywood Property. (SAC, ¶ 102). The garage of the property had suffered a fire that day. (Id. at ¶ 99). Eckert sought to have Ralph Voehl and Joseph Atkins execute affidavits of tenancy, but they declined. (Id. at ¶ 109). Eckert issued Rental Ticket 1, charging Norton with letting the property without a rental occupancy permit and stating that "Ralph Voehl stated that he has rented the entire house from the owner of record Howard J. Norton since approximately July 2006 and pays $1525.00 a month in rent." (Id. at ¶¶ 110, 122).
Even considering these allegations in the light most favorable to Norton, the Court finds that the Town Defendants had probable cause to issue Rental Tickets 1-2. The totality of the circumstances includes Eckert's personal observations of the premises and a conversation with the long-time tenants of the Claywood Property, while at the property. Though the tenants would not execute affidavits regarding their tenancy, they provided information about the terms of their lease and the identity of their landlord.
Norton's attempts to refute probable cause on Rental Ticket 1 are strained, at best. Norton argues that at the instant Eckert wrote Rental Ticket 1, it was unreasonable to treat the Claywood Property as a home or residence because the fire had rendered the property uninhabitable. (Pl. Opp. Memo at ECF 16-17). Norton goes on to assert that "even if it may be inferred that Plaintiff rented the dwelling previously, the factual allegations do not support that he was in violation at the time he was charged [3:10 pm], and Eckert could not have cause to believe so." (Pl. Opp. Memo at ECF 18). In other words, Norton's argument is that because the property was uninhabitable at the exact moment that Eckert wrote his ticket and Voehl was unable to live in the house at that exact moment, Eckert lacked probable cause to issue Rental Ticket 1. Norton's argument insists on a formalism that defies common sense, as well as the totality of the circumstances test for probable cause. As the Town Defendants point out, Norton's tenant rented the property on a monthly basis (Town Def. Reply Memo at ECF 12-13); the Second Amended Complaint does not aver that Voehl's tenancy was cancelled by the fire. Norton's contrary argument borders on being specious, and the Court rejects it.
Norton also argues that Rental Ticket 1 was not supported by probable cause because it charged him for a crime that did not yet exist. This argument is also easily dismissed. The factual portion of Rental Ticket 1 states that that Norton "did allow and maintain the rental of the above dwelling." (Ex. D-2 at 1). There is no dispute that the Town's Rental Permit Law made it unlawful to rent a dwelling without a permit. (Id. quoting Town Code § 68-650A). Norton zeroes in on Eckert's use of the term "allow," which he alleges was not yet added to the statute at the time of his violation. (Pl. Opp. Memo at ECF 18). But Eckert's inclusion of the term "allow" appears in the factual portion of the ticket, and its absence from the code is clear from the code provision quoted in the accusatory instrument. (Compare Ex. D-2 at 1 with Ex. D-2 at 2). Thus, Eckert's use of the term "allow" to describe the facts tending to support the charge against Norton does not defeat probable cause on its own.
Having found that Eckert had probable cause to issue Rental Ticket 1, it follows that the Town Defendants had probable cause to issue Rental Ticket 2, as the basis for Rental Ticket 2 remains the same as Rental Ticket 1. Indeed, the probable cause supporting Rental Ticket 2 is even stronger than that supporting Rental Ticket 1, because the Second Amended Complaint alleges that Eckert later called the Housing Bureau to see if Norton had a rental permit. (SAC, ¶ 114). Thus, Norton cannot maintain a claim for First Amendment retaliation on the basis of Rental Tickets 1 or 2. See Porat, 2005 WL 646093 at *6 (finding the facts as pled "establish the existence of probable cause for [the defendant-officer] to conclude that plaintiff had committed the violation of trespassing," requiring dismissal of his First Amendment retaliation claim).
Storage Tickets. Because Storage Ticket 1 and Storage Ticket 2 pertain to the same set of facts, the Court begins with Storage Ticket 1. The Second Amended Complaint avers that Eckert visited the Claywood property on multiple occasions (February 3, February 4, February 5,
The totality of the circumstances supports a finding of probable cause with respect to Storage Ticket 1. Eckert personally observed the unregistered vehicle on three separate occasions on the Claywood Property over a period of 17 days. Though Norton objects to Eckert's failure to specify that the vehicle lacked a registration sticker, it is reasonable to infer that the vehicle lacked a sticker based on Eckert's statement that "the unregistered GMC pick up truck was observed in the driveway on 2/5/2010, 2/18/2010, 2/2/2010." (Ex. D-1 at 4).
Norton argues that "observation does not explain how there was probable cause to believe the GMC truck was unregistered." (Pl. Opp. Memo at ECF 19). Norton points out that Eckert failed to note the truck lacked a registration sticker. (Id.). Here, Norton again insists on a formalism that defies common sense. It is commonly understood that a vehicle is unregistered when it lacks a visible registration sticker. By stating that he "observed" the unregistered vehicle, Eckert gave notice that he did not see a visible registration sticker on the truck.
Having dismissed all Defendants from Count 1, the Court dismisses Norton's claim for First Amendment retaliation in its entirety.
Count 13 seeks monetary damages against Sidaras, Walsh, O'Connor, Mistretta, and Eckert for their prosecution of Norton based on the second set of accusatory instruments. (SAC, ¶¶ 324-25). Norton's Section 1983 claim for malicious prosecution is based on the state law tort of malicious prosecution, which Norton separately alleges in Count 3. (SAC, ¶¶ 244-52). Norton alleges that the named Defendants prosecuted him "with a malicious intent to retaliate against [Norton] for his litigations against the Town and other Town [officials]. (SAC, ¶ 248). The Town Defendants assert a variety of defenses, including absolute and qualified immunity, probable cause, lack of allegations of personal involvement, lack of a cognizable deprivation of liberty, and lack of a favorable termination of the prosecution. (Town Defs. Memo at ECF 21-27).
The Court again begins with the Town Defendants' defense of absolute immunity, and examines whether Sidaras, Walsh, and O'Connor are immune from suit for malicious prosecution. Thus, the Court considers whether the three attorneys are alleged to have been performing prosecutorial duties or investigative functions. See Section III.B.1, supra.
Norton's malicious prosecution counts allege that Sidaras, Walsh and O'Connor "initiated and/or continued the investigations of Plaintiff and/or ordered or helped others to perform unlawful acts." (SAC, ¶ 244; see also SAC, ¶ 247). However, Norton has not alleged facts supporting the notion that Sidaras, Walsh and O'Connor played a role in the investigation of Rental Tickets 1-2 or Storage Tickets 1-2, which Eckert conducted in February 2011 during his visits to the Claywood Property. Nor does the Second Amended Complaint allege that Eckert's visits to the Claywood Property in February 2011 were at their direction or advice. (SAC, ¶¶ 99-118).
Norton does allege that Sidaras directed Eckert to go to the Claywood Property on May 4, 2011 to conduct an
Whether Sidaras can claim absolute immunity for her alleged instruction to Eckert to obtain a complaint and/or affidavit by Ralph Voehl on May 5, 2011 is a closer question. (SAC, ¶ 212). The Supreme Court "has identified `evaluating evidence and interviewing witnesses' as falling on the absolute immunity side of the line, leaving `searching for the clues and corroboration' that might lead to a recommendation for an arrest on the qualified immunity side." Smith, 147 F.3d at 94 (quoting Buckley, 509 U.S. at 273, 113 S.Ct. 2606). The complaint and/or affidavit sought from Ralph Voehl arguably constitutes "corroboration" of the existing prosecution, as it occurred shortly before the Town filed its opposition to Norton's motion to dismiss Rental Accusatory 2 and Storage Accusatory 2. Because Norton is the non-moving party here, the Court views the alleged facts in his favor and determines that Sidaras also cannot claim absolute immunity with respect to her instruction to Eckert to obtain a complaint and/or affidavit from Ralph Voehl on May 5, 2011.
Norton's malicious prosecution claims are also based on Sidaras, Walsh and O'Connor allegedly "instituting and continuing the Rental Accusatory 2 and Storage Accusatory 2 criminal prosecutions." (SAC, ¶ 246). Defendants correctly argue that such conduct is absolutely immune from suit, as these are clear prosecutorial functions. See Shmueli, 424 F.3d at 236-37 (noting the initiation and pursuit of a criminal prosecution are "quintessential prosecutorial functions") (citing Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)); Ying Jing Gan, 996 F.2d at 531 (noting prosecutor's decision to initiate a prosecution and performance of litigation-related duties "are given the shield of absolute immunity"). Nor is there any plausible, well-pled contention that in pursuing the prosecution of Norton, Sidaras, Walsh and O'Connor were somehow acting beyond their jurisdiction. See Shmueli, 424 F.3d at 237; Karris v. Varulo, No. 14-CV-1077, 2014 WL 1414483, at *4 (E.D.N.Y. Apr. 10, 2014) (granting absolute immunity to prosecutor-defendants where plaintiff did not allege the prosecutors undertook their actions "in the complete absence of all jurisdiction").
Thus, O'Connor and Walsh enjoy absolute immunity from Norton's federal claim for malicious prosecution and are dismissed from Count 13. Sidaras enjoys absolute immunity, except with respect to her instructions to Eckert on May 4, 2011 and May 5, 2011.
To plausibly allege a claim under Section 1983 for malicious prosecution, a plaintiff must allege the four elements of a malicious prosecution claim under New York law and a deprivation of a Fourth Amendment liberty interest. See Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir.2010) (citing cases). To state a claim for malicious prosecution under
Because the essence of a malicious prosecution claim is "abuse of the judicial process, a plaintiff pursuing such a claim under Section 1983 must show that the seizure resulted from the initiation or pendency of judicial proceedings." Murphy, 118 F.3d at 944. Courts have found a cognizable, post-arraignment deprivation of liberty where the individual was detained, id., or upon the placement of restrictions on the individual's ability to travel, id. at 946 (finding that the order that plaintiff not leave the state of New York, coupled with the requirement that he attend court appointments, constituted a seizure). In Parkash v. Town of Southeast, No. 10-CV-8098, 2011 WL 5142669 (S.D.N.Y. Sept. 30, 2011), for example, the court held that having to appear in court, in itself, is insufficient to establish a Fourth Amendment seizure for purposes of a malicious prosecution claim. Id. at *5-6 (finding plaintiffs 15 court appearances insufficient to establish a deprivation of liberty where plaintiff was not also restricted in his ability to travel); see Mangino v. Inc. Vill. of Patchogue, 739 F.Supp.2d 205, 227-28 (E.D.N.Y.2010) reconsidered on other grounds, 814 F.Supp.2d 242 (E.D.N.Y.2011) (finding multiple court appearances pursuant to separate summonses did not establish a Fourth Amendment seizure where plaintiffs were neither arrested, detained or restricted with respect to travel). Failure to adequately allege a post-arraignment deprivation of liberty results in the dismissal of a Section 1983 malicious prosecution claim. See Parkash, 2011 WL 5142669 at *10 (dismissing Section 1983 malicious prosecution claim based on plaintiffs' failure to establish sufficient deprivation of liberty).
Here, Norton has failed to allege that Eckert, Sidaras and Mistretta deprived him of a cognizable liberty interest following his arraignment. Norton's allegations regarding the deprivations of liberty he suffered as a result of the Town's prosecution fall far short of the threshold required to establish a seizure under the Fourth Amendment. Court appearances are all that Norton relies upon, as he does not allege that he was detained, arrested, or restricted in his travel by the State Court.
Because Norton's surviving allegations for malicious prosecution under Section 1983 do not establish a cognizable deprivation of liberty, Count 13 is dismissed.
Count 6 of Norton's complaint alleges Monell liability against the Town based on Norton's Section 1983 claim for malicious prosecution and malicious abuse of process. To state a claim for municipal liability under Monell, a plaintiff must plausibly allege "(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Torraco v. Port Authority of New York and New Jersey, 615 F.3d 129, 140 (2d Cir.2010) (citing Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.2007)); see also Lamont v. City of New York, No. 12-CV-2478, 2014 WL 4829328, at *7 (E.D.N.Y. Sept. 29, 2014) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Because both of the claims underlying Count 6 have been dismissed, Norton cannot maintain his claim for Monell liability against the Town. See Bernshtein, 496 Fed.Appx. at 144 ("To the extent that Bernshtein cannot establish Brockmann violated her constitutional rights (through false arrest, malicious prosecution, or excessive detention), the City of New York likewise is not liable on the Monell claims asserting those violations."). Count 6 is thus dismissed.
Count 7 of the complaint alleges Monell liability against the County based on Norton's Section 1983 claim for malicious prosecution and malicious abuse of process. For the same reasons that Count 6 is dismissed from the complaint, the Court also dismisses Count 7.
Count 4 of the Second Amended Complaint asserts that the Town is liable for violating Norton's Fourth Amendment
Nonetheless, the Court finds that Norton's Fourth Amendment claim must be dismissed for failure to satisfy the Iqbal/Twombly pleading standard. This claim is based on a Monell theory of liability against the Town. Norton alleges that Eckert's search of the Claywood Property was pursuant to the Town's practices and resulted from the Town's failure to train him. (SAC, ¶¶ 257-61). Here, though, Norton has alleged only one instance of trespass, i.e., Eckert's search of the Claywood property, including the interiors of the house and garage, on February 3, 2010.
Norton's Fourth Amendment claim against the Town is thus dismissed.
Count 5 alleges that the Town violated Norton's right to procedural due process by basing its prosecution on a
The liberty interest that Norton appears to allege is freedom from prosecution from the state based on jurisdictionally defective or facially insufficient informations. (SAC, ¶¶ 263, 285).
"To establish a liberty interest based on state law, the plaintiff must show that the alleged `governmental action . . . deprived [him] of a right previously held under state law.'" Chance v. Reed, 538 F.Supp.2d 500, 508 (D.Conn.2008) (quoting Paul v. Davis, 424 U.S. 693, 708, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). Though state laws may, in some circumstances, create constitutionally protected entitlements to substantive liberty interests, "state statutes do not create federally protected due process entitlements to specific state-mandated procedures." Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir.2003) (citing cases).
The Second Circuit has shied away from "elevating a state-mandated procedure to the status of a constitutionally protected liberty" interest pursuant to claims under Section 1983, because doing so "would make process an end in itself rather than a requirement whose constitutional purpose is to protect a substantive interest in which the individual has a claim of entitlement." Holcomb, 337 F.3d at 224 (quoting Sealed v. Sealed, 332 F.3d 51, 57 n. 5 (2d Cir.2003) (citations omitted)) (emphasis added). Courts have routinely rejected claims for procedural due process where the alleged liberty interest was premised only on the government actor's compliance with its own procedures, and not also attendant upon a separately articulable substantive right. See Brown v. Graham, 470 Fed.Appx. 11, 13 (2d Cir. 2012) (rejecting procedural due process claim premised on liberty interest in "state's compliance with its own prison grievance procedure"); Austin v. Fischer, 453 Fed.Appx. 80, 83 (2d Cir.2011) (affirming district court's finding that plaintiff's allegations "that defendants violated state regulations during his disciplinary hearing do not give rise to a § 1983 due process claim."); Romeo v. Aid to the Developmentally Disabled, Inc., No. 11-CV-6340, 2013 WL 1209098, at *6 (E.D.N.Y. Mar. 22, 2013) (dismissing procedural due process claim for failure to articulate a cognizable liberty or property interest).
Count 5 is, therefore, dismissed.
Having dismissed all of Norton's claims under Section 1983, the Court also dismisses Norton's claim for attorneys' fees under Section 1983. (SAC, ¶ 323).
The dismissal of all counts brought under Section 1983 leaves Norton's remaining federal law counts as claims under the federal Declaratory Judgment Act, 28 U.S.C. § 2201. Count 9 seeks a declaration pursuant to the federal Declaratory Judgment Act that the Town's alleged conduct was the result of established Town practices that violated, and continue to violate, Norton's constitutional rights (SAC, ¶¶ 299-301). Count 10 seeks a declaration against the County on the same basis as Count 9 (SAC, ¶¶ 302-04). Count 11 seeks a declaration that the Town's Rental Code is invalid, that the Town Enforcement Office is without jurisdiction or authority to enforce the Town's zoning ordinance, and that prior and future actions initiated by the Town Enforcement Office are null and void (SAC, ¶¶ 305-22).
The federal Declaratory Judgment Act is "procedural only" and so counts pled under the Act do not independently support subject matter jurisdiction under the federal question doctrine. See Chevron Corp., 667 F.3d at 244-45 (citing Skelly Oil, 339 U.S. at 671, 70 S.Ct. 876; Davis v. United States, 499 F.3d 590, 594 (6th Cir.2007)); Goldberg v. Cablevision Sys. Corp., 281 F.Supp.2d 595, 604 (E.D.N.Y.2003) ("Because the [Declaratory Judgment] Act does not confer subject matter jurisdiction, the plaintiff must have an independent basis for jurisdiction."). Therefore, Norton cannot rely on Counts 9, 10, and 11 to satisfy federal question jurisdiction. Given the absence of any alternate basis for subject matter jurisdiction,
Having dismissed all claims pled under federal law, the Court declines to exercise supplemental jurisdiction over the remaining state law claims.
The Court therefore GRANTS the Town Defendants' motion for judgment on the pleadings and the County Defendant's motion to dismiss with respect to Plaintiffs claims under 42 U.S.C. § 1983. Counts 1, 4, 5, 6, 8, 12 and 13 are thus DISMISSED with prejudice. Count 2 is voluntarily withdrawn by Plaintiff and is dismissed without prejudice.
Lacking independent subject matter jurisdiction over the remaining claims in the complaint, the Court dismisses Counts 9, 10, and 11 without prejudice. Plaintiffs cross-motion for summary judgment is also dismissed. Finally, the Court declines to exercise supplemental jurisdiction over Counts 3 and 7. The Court directs the Clerk of the Court to enter judgment accordingly and terminate this case.
SO ORDERED.
In any event, neither strict liability nor the presumption of non-registration is necessary to establish probable cause for the issuance of Storage Tickets 1 and 2 as to Norton. Although, as the Court raised during oral argument, the issuance of Rental Ticket 1 could be viewed as weakening probable cause to believe that Norton, as opposed to his tenants, was storing the unregistered vehicle on the Claywood Property, the mere possibility that others may have been responsible for the vehicle does not extinguish probable cause as to Norton. Given Norton's undisputed ownership of the property, there was probable cause to believe that he and possibly others were responsible for the unregistered vehicle being on the property.
