LAWRENCE E. KAHN, District Judge.
The instant case involves an ongoing property dispute and ensuing hostility between neighbors on Hiawatha Lake in Lewis County, New York. See generally Dkt. Nos. 1 ("Complaint"), 4 ("Amended Complaint"). Presently before the Court are a pair of Motions for summary judgment brought by two sets of Defendants — Defendants Lewis County, Brett Croneiser, Ryan Lehman, Leanne Moser, and Caleb Petzoldt (collectively, "the Lewis County Defendants") filed their Motion for summary judgment on April 26, 2012, and Defendants Russell Falter and Kathy Wilson filed their Motion for summary judgment on May 29, 2012. Dkt. Nos. 39 ("Lewis Motion"), 43 ("Falter and Wilson Motion"). For the reasons that follow, both Motions are granted in part and denied in part.
Plaintiffs Mark Hogan ("Mr. Hogan") and Elizabeth M. Hogan ("Mrs. Hogan") (collectively, "Plaintiffs") originally filed their Complaint in this case on July 1, 2011. Compl. Three months later, on October 5, 2011, they filed an Amended Complaint. Am. Compl. The two Motions for summary judgment followed in the spring of 2012. Falter and Wilson Mot.; Lewis Mot. On June 18, 2012, Plaintiffs filed a Memorandum of law in opposition to the Lewis Motion, and the Lewis Defendants, in turn, filed a Reply on June 25, 2012. Dkt. Nos. 48 ("Response to Lewis"), 61 ("Lewis Reply"). On June 18, 2012, Plaintiffs also filed a Memorandum of law in opposition to the Falter and Wilson Motion, and Defendants Falter and Wilson, in turn, filed their Reply on June 25, 2012. Dkt. Nos. 53 ("Response to Falter and Wilson"), 59 ("Falter and Wilson Reply").
Plaintiffs subsequently sought leave to supplement their Amended Complaint. Dkt. No. 71. On August 23, 2012, the Honorable Andrew T. Baxter, United States Magistrate Judge, granted this request. Dkt. No. 85. Plaintiffs filed their Supplemental Complaint, which is now the operative pleading in this matter, on September 5, 2012. Dkt. No. 87 ("Supplemental Complaint"). Later in September 2012, both the Lewis County Defendants and Defendants Falter and Wilson informed the Court that they did not intend to supplement their Motions for summary judgment in response to the alterations made in Plaintiffs' Supplemental Complaint. Dkt. Nos. 99, 103. The Court notes that Plaintiffs' Appeal of a discovery-related decision by Judge Baxter is also pending before the Court. Dkt. No. 114. Because the Court concludes that the dispute is not relevant to or necessary to the disposition of the instant Motions, the Court will address this Appeal in a separate order, and it remains pending before the Court.
The factual history underlying this case is extensive and convoluted. Given the lengthy litigation history, the Court presumes the parties' familiarity with these facts. Nevertheless, in the interests of clarity, the Court recites those facts necessary to the contextualization and resolution of the instant Motions.
Plaintiffs have owned real property at Hiawatha Lake in the Town of Greig in Lewis County, New York since roughly 1992. Plaintiffs' Statement of Material Facts in Opposition to the Lewis Motion (Dkt. No. 50) ("Pl.'s S.M.F. — Lewis") ¶ 1. In October 2006, some of Plaintiffs' neighbors ("the West family" or "the Wests")
On May 15, 2010, Defendant Croneiser, Deputy Sheriff with the Lewis County Sheriff's Department was dispatched to a trespass/larceny call at 7689 Hiawatha Lake Road in the Town of Greig. Lewis
On May 29, 2010, Mr. Hogan was arrested for petit larceny. Lewis S.M.F. ¶ 14; Pl.'s S.M.F. — Lewis ¶ 14. The Lewis County Defendants also offer a signed "Property Receipt" from May 30, 2010, which purports to demonstrate that Mr. Hogan returned the sawhorses and steel cables.
Plaintiffs generally contend in their Further Statement of Material Facts and in their other submissions that this arrest was exemplary of a broader pattern of concerted harassment on the part of the Lewis County Defendants and their neighbors that included a refusal to accept criminal complaints from Plaintiffs against their neighbors. See generally Pl.'s S.M.F. — Lewis; Dkt. No. 49. On July 5, 2010, Defendant Croneiser accepted a trespass complaint from Mr. Hogan, but Plaintiffs claim that they were later told that the District Attorney's Office had declared an "open season" on the Hogans and that officers had been instructed to refuse to accept the Hogans' complaints. See generally Pl.'s S.M.F. — Lewis; Dkt. No. 49. Plaintiffs further allege that some of this mistreatment stems from the fact that Plaintiffs have, on occasion, hosted D.O., an African American minor and friend of the family on their property. Pl.'s S.M.F. — Lewis ¶ 11.
The Court notes that Plaintiffs object broadly to many of the Lewis County Defendants' proffered facts as inadmissible. While the Court remains uncertain precisely what elements of each fact (or its purported evidentiary basis) are objected to and on what grounds, the Court narrowly addresses the evidentiary issues raised. Plaintiffs object to, inter alia, the: (1) larceny/trespass complaints; (2) sworn statements by Defendants Rose and VanDewater; (3) photographs of Mr. Hogan taking part in the alleged larceny; (4) property receipt; and (5) arrest report. While there might be a sustainable hearsay objections if the statements, comments, and photographs were offered for the truth of the matter asserted (i.e., that there was a larceny or trespass), the Court finds nothing objectionable about them as
Defendants Falter and Wilson jointly own several lots around Hiawatha Lake and reside year round on an adjoining landlocked lot. Dkt. Nos. 43-11 ("Falter and Wilson's Statement of Material Facts") ("Falter and Wilson's S.M.F.") ¶ 1, 54 ("Plaintiffs' Statement of Material Facts in Opposition to Defendants Falter and Wilson's Motion") ("Pl's. S.M.F. — Falter and Wilson") ¶ 1. One of the lots owned by the Hogans abuts property owned by Defendants Falter and Wilson. Falter and Wilson's S.M.F. ¶ 7; Pl's. S.M.F. — Falter and Wilson ¶ 7. In 2008, Mr. Hogan brought suit in state court against a number of his neighbors including, inter alia, Defendants Falter and Wilson. Falter and Wilson's S.M.F. ¶ 5; Pl's. S.M.F. — Falter and Wilson ¶ 5.
Defendants Falter and Wilson assert that they have no easements or interests in the Hogans' property. Falter and Wilson's S.M.F. ¶¶ 11, 13. They also claim that they have not interfered with the Hogans' property rights. See generally id. Plaintiffs, on the other hand, contend that Defendants Falter and Wilson have taken part in an unceasing campaign of harassment against them and have repeatedly blocked the Hogans access to their property by blocking a right-of-way over Defendant VanDewater's property. See generally Pl's. S.M.F. — Falter and Wilson. Plaintiffs further allege that some of this mistreatment stems from the fact that Plaintiffs have, on occasion, hosted D.O., an African American minor and friend of the family on their property and that Defendants Falter and Wilson and their friends have directed racial slurs at D.O. See generally id.
Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment if "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). Although "[f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, "summary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir.1991).
The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving
At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). A court's duty in reviewing a motion for summary judgment is "carefully limited" to finding genuine disputes of fact, "not to deciding them." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).
A review of the lengthy docket and the parties' accounts of the facts serves as strong support for Robert Frost's admonition that "[g]ood fences make good neighbors."
The Lewis County Defendants' Motion deals with three sets of claims by Plaintiffs: (1) claims under 42 U.S.C. § 1983; (2) claims under 42 U.S.C. §§ 1981 and 1982 and the New York Civil Rights Law; and (3) Mrs. Hogan's loss-of-consortium claim. See generally Lewis. Mot.
As a general matter, "[t]o state a claim under Section 1983, a plaintiff must show: `(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation, [and]; (4) damages.'" Rahman v. Fisher, 607 F.Supp.2d 580, 584 (S.D.N.Y.2009) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008)).
"To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that `the defendant intentionally confined him without his consent and without justification.'" Escalera v. Lunn,
The doctrine of qualified immunity protects government officials acting in their capacity from liability for civil damages as long as their conduct does not "violate clearly-established rights of which an objectively reasonable official would have known." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999); see also Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir.2000). However, a defendant may still be protected by qualified immunity if she violated an individual's constitutional rights, but "it was objectively reasonable [for her] to believe that [her] acts did not violate these clearly established rights." Amore v. Novarro, 624 F.3d 522, 530 (2d Cir.2010) (quoting Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.2010)) (internal quotation marks omitted); see also Messer-schmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1245, 182 L.Ed.2d 47 (2012). As a matter of law, an officer is entitled to qualified immunity if
Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987) (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C.Cir.1986)). The party invoking qualified immunity bears the burden of offering proof that it was objectively reasonable for her to believe that her actions did not violate a clearly established right and that she is entitled to qualified immunity. See Young v. Selsky, 41 F.3d 47, 54 (2d Cir.1994).
It is well settled that an individual has a clearly established right to not be arrested or prosecuted without probable cause. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991). "An arresting officer is entitled to qualified immunity from a claim for unlawful arrest if `either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'" Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 80 (2d Cir.1994) (quoting Golino, 950 F.2d at 870; citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "Thus, the analytically distinct test for qualified immunity is more favorable to the officers than the one for probable cause; `arguable probable cause' will suffice to confer qualified immunity for the arrest." Escalera, 361 F.3d at 743.
In this case, the Lewis County Defendants argue that Plaintiffs' false arrest claims are barred because: (1) Defendants Lehman and Croneiser had probable cause to arrest Mr. Hogan; and (2) even if they did not have probable cause to arrest Mr. Hogan, they still had arguable probable cause to arrest him and are therefore
Probable cause for Mr. Hogan's arrest, contend the Lewis County Defendants, stemmed from complaints received against Mr. Hogan and surveillance photographs taken by Defendant Rose that showed Mr. Hogan stealing Defendant Rose's sawhorses and steel cable. Lewis Mot. at 8-9. "An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime, has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995). Further, "[t]he veracity of citizen complain[an]ts who are the victims of the very crime they report to the police is assumed." Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F.Supp. 351, 355 (S.D.N.Y.1992) (citing Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)), aff'd, 993 F.2d 1534 (2d Cir.1993); see also Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir.1997) (quoting Miloslavsky with approval).
Despite Plaintiffs' arguments to the contrary, the Court does not find that any genuine issues of material fact persist "as to the pertinent events and the knowledge of the officers" that would preclude a grant of summary judgment on the issue of probable cause. Weyant, 101 F.3d at 852 (citations omitted). The Court notes Plaintiffs' general contentions that the complaining parties and — perhaps — the police department itself had an axe to grind with Plaintiffs. Plaintiffs refer to a "malicious campaign of harassment" by Defendants Rose and VanDewater, allege that the ill-meaning neighbors conspired with local law enforcement, and claim that "there was no legitimate basis to arrest" Mr. Hogan. Pl.'s S.M.F. ¶¶ 3-6. Further, because Defendants Lehman and Croneiser should have known that Plaintiff had a right-of-way, Plaintiffs argue, it was objectively unreasonable for them to conclude that Mr. Hogan was doing anything other than lawfully accessing his right-of-way when he took the cables and sawhorses. However, the officers had received complaints and been shown pictures of Mr. Hogan's alleged criminal activity. The Court notes Plaintiffs' evidentiary objections, but, as discussed supra, the Court concludes that it may consider the fact that Defendants Lehman and Croneiser had received complaints and were shown pictures.
Based on the information known to Defendants Lehman and Croneiser at the time of Mr. Hogan's arrest, the Court concludes that Defendants Lehman and Croneiser possessed probable cause to arrest. While the Court notes Plaintiffs' concerns about the motives of the complaining witnesses or possible preconceived notions on the parts of the arresting officers, these concerns are insufficient to trump the photographs, sworn complaints, and actual physical evidence demonstrating
Therefore, the Court grants the Lewis County Defendants' Motion for summary judgment as to the false arrest claims.
An abuse-of-process claim can give rise to liability under § 1983. Savino v. City of New York, 331 F.3d 63, 766-67 (2d Cir.2003). "In New York, a malicious abuse-of-process claim lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994); see also PSI Metals, Inc. v. Firemen's Ins. Co. of Newark, N.J., 839 F.2d 42, 43 (2d Cir.1988); Zarro v. Spitzer, No. 06-CV-1166, 2009 WL 3165761, at *6 (N.D.N.Y. Sept. 25, 2009). "[T]he gist of abuse of process is the improper use of process after it is regularly issued." Cook, 41 F.3d at 80 (quotation marks omitted). "In New York, such wrongful purposes have included economic harm, extortion, blackmail, and retribution." Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *7 (N.D.N.Y. Oct. 25, 2011) (quotation marks omitted).
In their briefing on summary judgment, neither the Lewis County Defendants nor Plaintiffs dwell on the elements of an abuse-of-process claim or argue as to the presence of malicious intent
A government actor may be shielded from liability for civil damages if her "conduct did not violate plaintiff's clearly established rights, or if it would have been objectively reasonable for the official to believe that [her] conduct did not violate plaintiff's rights." Mandell v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir.2003). "When a defendant invokes qualified immunity to support a motion for summary judgment, courts engage in a two-part inquiry: whether the facts shown `make out a violation of a constitutional right,' and `whether the right at issue was clearly established at the time of defendant's alleged misconduct.'" Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.2010) (quoting and citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
In their Motion, the Lewis County Defendants raise no arguments relating to the first prong of the qualified immunity inquiry — the violation of a constitutional right — and instead focus exclusively on refuting that any such right was "clearly established" at the time of Defendants Lehman's and Croneiser's alleged misconduct. Lewis Mot. at 13. "[T]here is no question that the right to be free from malicious abuse of process was clearly established as a general proposition long before the alleged abuse of process in the instant case." Mangino v. Inc. Vill. of Patchogue, 814 F.Supp.2d 242, 249 (E.D.N.Y.2011) (citation omitted). However, this does not end the Court's inquiry. "[T]he right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the law." Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, at 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Courts should consider: "(1) whether the right in question was defined with `reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that
The law in the Second Circuit on whether probable cause serves as a complete defense to an abuse-of-process charge remains unsettled. See Mangino, 814 F.Supp.2d at 250-52 (collecting cases and discussing differing opinions among the district courts). However, "[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy." Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Based on this rationale, and presented with a factually analogous situation, the court in Mangino granted summary judgment for an officer defendant on the basis of qualified immunity. 814 F.Supp.2d at 252 ("[G]iven the lack of clarity in this Circuit on whether the existence of probable cause for the issuance of the tickets would be a complete defense to an abuse of process claim ... defendant Nudo is entitled to qualified immunity. Based upon language in both Second Circuit and district court cases suggesting that probable cause is a defense, although the right to be free from abuse of process was clearly established as a general proposition, it would not be clear to a reasonable officer that his conduct was unlawful."); see also Cornell v. Kapral, No. 5:09-CV-0387, 2011 WL 94063, at *13 (N.D.N.Y. Jan. 11, 2011)
The Court finds the reasoning of the Mangino Court to be persuasive and applicable here, and therefore concludes that — because they had probable cause to arrest — Defendants Lehman and Croneiser are entitled to qualified immunity on the abuse-of-process claim.
Plaintiffs state claims against the Lewis County Defendants for failure to train and supervise properly Defendants Lehman and Croneiser, leading to the false arrest of Mr. Hogan and the ensuing abuse of process. See Suppl. Compl. ¶¶ 83-93. "[T]o prevail on a claim against a municipality under Section 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008). Because the Court grants the Lewis County Defendants' Motion for summary judgment against the individual Lewis County Defendants on the § 1983 false arrest and
Plaintiffs allege that the Lewis County Defendants also unlawfully conspired to inflict constitutional injuries against Plaintiffs. Specifically, Plaintiffs allege that the Lewis County Defendants conspired to deprive Plaintiffs of their First Amendment rights and their Fourteenth Amendment right to equal protection under the law. Resp. to Lewis at 13-16. In order to make out a conspiracy claim under § 1983, "a plaintiff must demonstrate (1) an agreement between two or more state actors or a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Graham v. City of Albany, No. 1:08-CV-892, 2009 WL 4263510, at *12 (N.D.N.Y. Nov. 23, 2009) (citing Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir.2002)); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) ("[A] plaintiff alleging a § 1983 conspiracy claim must prove an actual violation of constitutional rights.").
Plaintiffs' conspiracy claims relating to First Amendment violations rely on the argument that individuals have a First Amendment right to file criminal complaints, but the Lewis County Defendants have failed to pursue the criminal complaints filed by Plaintiffs against their neighbors. Suppl. Compl. ¶ 32. Undoubtedly, Plaintiffs are correct when they state that they have a First Amendment right to file complaints with the government. Jackson v. N.Y. State, 381 F.Supp.2d 80, 89 (N.D.N.Y.2005) ("It is axiomatic `that filing a criminal complaint with law enforcement officials constitutes an exercise of the First Amendment right' to petition government for the redress of grievances." (quoting Lott v. Andrews Ctr., 259 F.Supp.2d 564, 568 (E.D.Tex.2003)); see also Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.1994) ("The rights to complain to public officials and to seek administrative and judicial relief are protected by the First Amendment."). However, Plaintiffs err in identifying as authority for their claims cases involving official retaliation against individuals who had exercised this constitutional right. In this case, Plaintiffs have never alleged that the Lewis County Defendants retaliated against them for exercising their constitutional rights.
Therefore, the Court grants the Lewis County Defendants' Motion for summary judgement as it relates to the conspiracy claim arising from First Amendment violations.
Plaintiffs' claim of conspiracy to violate their Fourteenth Amendment rights is similarly predicated on the Louis County Defendants' alleged conspiracy to disregard his criminal complaints. Resp. to Lewis at 14-16. Plaintiffs articulate a theory of selective enforcement, arguing that they were similarly situated to their neighbors against whom they had filed criminal complaints, but that the Lewis County Defendants pursued only the criminal complaints against Mr. Hogan. Id.
The equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." Brady v. Town of Colchester, 863 F.2d 205, 216 (2d Cir.1988) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). Generally, the Equal Protection Clause protects "suspect classes and fundamental interests against inequitable treatment, but other types of inequities and classifications may be justified by a showing of mere rationality." LeClair v. Saunders, 627 F.2d 606, 611 (2d Cir.1980) (citing Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). However, an equal protection claim may be brought "by a `class of one' where a plaintiff alleges that she has been `intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 362-63 (2d Cir.2002) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). A "class of one" claim "focuses on whether the official's conduct was rationally related to the accomplishment of the work of their agency." Bizzarro v. Miranda, 394 F.3d 82, 88-89 (2d Cir.2005). However, "class of one" does not "empower federal courts to review government actions for correctness." Id. at 88. Further, "[t]he mere failure to prosecute other offenders is not a basis for finding a denial of equal protection." Aretakis v. Durivage, No. 07-CV-1273, 2009 WL 249781, at *22 (N.D.N.Y. Feb. 3, 2009) (citing LeClair, 627 F.2d at 608).
A Plaintiff may bring an equal protection claim based on a selective enforcement theory by demonstrating that "(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." LeClair, 627 F.2d at 609-10. The discrimination must be intentional or purposeful. Id. at 609 (citations omitted).
"To establish either claim, [a plaintiff] must show both that [she was] treated differently than other persons who were similarly situated and that such differential treatment was either without rational basis (a "class of one" claim) or was motivated by an intent to discriminate on an impermissible basis (a selective enforcement claim)."
While the Court notes that Plaintiffs have alleged animus on the part of local law enforcement and have provided statements that purport to confirm this, Plaintiffs' selective enforcement claim ultimately suffers from a paucity of factual support. Nevertheless, establishing a selective enforcement or selective treatment claim under the Equal Protection Clause is certainly a daunting task. Id. at *22 n. 24. In this case, the challenge presented to Plaintiffs in making out this legally and factually complex claim presents an almost insurmountable bar, given that all of the parties' briefing on this issue predated discovery. While the Court notes that the legal basis for a § 1983 conspiracy claim arising under the Equal Protection Clause is somewhat tenuous based on the present pleadings, the Court is not inclined to risk granting summary judgment prematurely based on a potentially factually-nuanced claim that has not been allowed the benefits of discovery. It is simply too early at this stage for the Court to conclude that "no reasonable jury could find that the persons to whom ... [P]laintiff[s] compare[] [themselves] are similarly situated." Clubside, Inc., 468 F.3d at 159. Therefore, the Court denies the Lewis County Defendants' Motion for summary judgment on this claim.
In denying summary judgment on this claim, the Court also concludes that at this point it may not conclude that Defendants Moser and Petzoldt are entitled to absolute immunity. Prosecutors are protected by an absolute immunity when performing certain of their responsibilities, but only qualified immunity when performing other tasks. See, e.g., Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (holding that a prosecutor was protected by absolute immunity for preparing and arguing a warrant application, but not for providing legal advice to investigating police officers). Thus, "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate of the State, are entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). However, "absolute immunity may not apply when a prosecutor is ... instead engaged in other tasks, say, investigative or administrative tasks." Van de Kamp v. Goldstein, 555 U.S. 335, 341, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009) (citing Imbler v. Pachtman, 424 U.S. 409, 431 n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).
In this case, while failing to prosecute criminal complaints might have entitled Defendants Moser and Petzoldt to absolute immunity,
Plaintiffs contend that "Defendants have violated rights guaranteed ... under 42 U.S.C. §§ 1981 and 1982 and § 40-c of the N.Y. Civil Rights Law in that Plaintiff D.O. was subjected to discrimination because of race and Plaintiffs were also otherwise discriminated against in their association and enjoyment of property because of race." Suppl. Compl. ¶ 117. In their Motion, the Lewis County Defendants argue, inter alia, that: (1) Plaintiff D.O. is the only Plaintiff who is a racial minority and therefore the only Plaintiff who might state a claim under these statutes, but Plaintiffs have failed to allege that he sought to "make and enforce a contract" or had his property rights interfered with; (2) the Lewis County Defendants had no interaction with Plaintiff D.O.; (3) all § 1981 claims should be barred because "Section 1983 provides the exclusive remedy for violations of the rights guaranteed under § 1981 in a claim against a state actor";
In their Response, Plaintiffs address only the first two arguments and contend that: (1) white plaintiffs may still state §§ 1981 and 1982 claims; and (2) "[b]y refusing Plaintiff Hogan's complaint on behalf of Plaintiff D.O. and taking no action to prevent Defendant VanDewater from further action against Plaintiff D.O.," the
As a preliminary matter, the Court notes that Plaintiffs are correct in asserting that a white plaintiff may assert a claim under § 1981. "It is well-settled that a claim of discrimination based on an interracial relationship or association is cognizable under Section 1981." Rosenblatt v. Bivona & Cohen, P.C., 946 F.Supp. 298, 300 (S.D.N.Y.1996) (citations omitted) (stating that such a claim is cognizable by a white plaintiff based on his interracial association). However, the Lewis County Defendants are similarly correct in asserting that § 1983, not § 1981, is the appropriate vehicle to pursue claims against state actors. "[T]he express `action at law' provided by § 1983 for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor."
There is no question that the Lewis County Defendants are state actors. See Roddini, 2003 WL 435981, at *5 ("State employment has generally been deemed sufficient to render the defendant a `state actor,'" as long at the acts were within the scope of employment). Therefore, Plaintiffs' claims against the Lewis County Defendants under § 1981 are barred by the exclusive remedial provision of § 1983, and the Court grants the Lewis County Defendants' Motion for summary judgement as to these claims.
Section 1982 provides that, "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982. Plaintiffs' claim under § 1982 is somewhat vaguely drawn, and no party has provided substantial briefing on the legal basis for this claim. Nevertheless, in light of the summary judgment standard, the Court has drawn all reasonable inferences in Plaintiffs' favor. Reeves, 530 U.S. at 150, 120 S.Ct. 2097.
As in the context of their § 1981 claim, Plaintiffs have not made any allegations relating to interference with their rights to contract or exchange property. Rather, Plaintiffs' claims revolve around the issue of filing criminal complaints, discussed supra in the context of the § 1983 conspiracy claims. See Part IV.A.1.d. Plaintiffs argue that the harassment of D.O. and the Hogans based on D.O.'s
While Plaintiffs also seem to assert a claim on behalf of D.O. arising from this same refusal to accept criminal complaints and prevent the individual Defendants from harassing D.O., the Court is unable to identify any relationship between these alleged misfeasances and the property-based civil rights explicitly protected by § 1982. The alleged bigoted harassment of a child is deplorable and may give rise to other claims, but the facts alleged here are ill suited to a cause of action under § 1982 against law enforcement personnel. Therefore, the Court grants the Lewis County Defendants' Motion for summary judgment as to the claims under § 1982.
"Section 40-d of the New York Civil Rights Law provides a private right of action to any person who suffers a violation of section 40-c, but further provides, `[a]t or before the commencement of any action under this section, notice thereof shall be served upon the attorney general.'" Sundaram v. Brookhaven Nat'l Labs., 424 F.Supp.2d 545, 571 (E.D.N.Y. 2006) (quoting N.Y. CIV. RIGHTS LAW § 40-d). Further, "New York courts have consistently held that notice to the attorney general is an essential prerequisite to actions for violations of section 40-c." Id. (citing Shepard v. Frontier Commc'ns Servs., Inc., 92 F.Supp.2d 279, 287 (S.D.N.Y.2000); Harvey v. NYRAC, Inc., 813 F.Supp. 206, 212 (E.D.N.Y.1993); Giaimo & Vreeburg v. Smith, 192 A.D.2d 41, 599 N.Y.S.2d 841, 844 (1993); Silver v. Equitable Life Assur. Soc'y. of U.S., 168 A.D.2d 367, 563 N.Y.S.2d 78, 80 (1990)).
In this case, Plaintiffs have failed to contend that they served notice upon the attorney general, and a review of the docket reveals no record of any such service. See generally Dkt. While the Court is mindful of the broad purposes of civil rights statutes in curtailing discrimination and is therefore wary of allowing a technical error to preclude a party's attempt to vindicate a perceived injustice,
The Court notes that only a single claim — the § 1983 conspiracy claim for selective enforcement — remains against the Lewis County Defendants. The Court further notes that "[a] loss of consortium claim is a derivative action that depends on the viability of the primary cause of action" or "the underlying injury." Reed v. Medford Fire Dep't, Inc., 806 F.Supp.2d 594, 606 (E.D.N.Y.2011). However, this remaining cause of action under § 1983 does not support a loss-of-consortium claim. See, e.g., Hinds v. City of N.Y., 768 F.Supp.2d 512, 516 (S.D.N.Y. 2010); Dixon v. City of N.Y., No. 03-CV-343, 2008 WL 4453201, at *21 (E.D.N.Y. Sept. 30, 2008); O'Gorman v. Holland, No. 97-CV-842, 2000 WL 134514, at *3 (S.D.N.Y. Feb. 3, 2000). Therefore, the Court grants the Lewis County Defendants' Motion for summary judgment on the loss of consortium claim.
In their Motion, Defendants Falter and Wilson argue that: (1) Plaintiffs' claim against them for interference with an easement fail as a matter of law because no easement existed between the parties; (2) Plaintiff's claim for intentional infliction of emotional distress ("IIED") is deficient as a matter of law; (3) Plaintiffs' claim for private nuisance must be dismissed as a matter of law because Defendants Falter and Wilson did not interfere with Plaintiffs' property; and (4) Plaintiffs' claims for negligence and/or gross negligence must fail as a matter of law because Defendants Falter and Wilson owed no duty to Plaintiffs. See generally Falter and Wilson Mot. Plaintiffs respond that questions of material fact persist on each of these issues, making summary judgment inappropriate. See generally Resp. to Falter and Wilson. Plaintiffs further contend that: (1) even if the Court were to grant Defendants Falter and Wilson's Motion, Defendants Falter and Wilson could still not be dismissed because Plaintiffs' claims under the New York Civil Rights Law and §§ 1981 and 1982 remain; and (2) Plaintiffs should not be sanctioned.
In their Motion, Defendants Falter and Wilson argue that their land was not encumbered with any easement that Plaintiffs had a right to use and that for an action for interference with an easement in New York to survive, there must be an "established covenant or agreement between the parties." Falter and Wilson Mot. at 10 (citing N.Y. REAL PROP. ACTS. LAW § 2001). They further argue that Plaintiffs' possession of an easement over another neighbor's property is "irrelevant to" Defendants Falter and Wilson. Falter and Wilson Mot. at 10. Plaintiffs respond that: (1) they have an easement over Defendant VanDewater's property; (2) Defendants Falter and Wilson have interfered with this easement; and (3) "[t]here is very little case law regarding this issue, but the case law that does exist agrees that dominant tenement holders have a cause of action against third parties which interfere with the dominant tenement's right to an easement." Resp. to Falter and Wilson at 4.
Defendants Falter and Wilson reply — with no citation to authority other than a general reference to the New York Real Property Actions and Proceedings Law — that: (1) an action for interference with an easement requires an established covenant or agreement between the parties; and (2) Defendants Falter and Wilson's alleged interference with Plaintiffs' easement were trivial and insufficient to support a claim. See Falter and Wilson Reply ¶¶ 11-15.
Because the Court is unable to identify any New York State cause of action for damages against a third party for interference with easement that might be applicable to the facts of this case, the Court grants Defendants Falter and Wilson's Motion for summary judgment as to this claim.
In order to state a claim for IIED in New York, a plaintiff must show: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). The standard for stating a valid claim is "rigorous, and difficult to satisfy" because the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993) (internal quotation marks and citation omitted). Further, IIED is a "highly disfavored claim[] under New York law." Williams v. City of Mount Vernon, 428 F.Supp.2d 146, 160 (S.D.N.Y.2006) (internal quotation marks and citation omitted); see also Seltzer v. Bayer, 272 A.D.2d 263, 709 N.Y.S.2d 21, 23 (2000) ("This threshold of outrageousness is so difficult to reach that, of the intentional infliction of emotional distress claims considered by the Court of Appeals, every one has failed because the alleged conduct was not sufficiently outrageous." (citation and internal quotation marks omitted)).
Nevertheless, "[c]ourts have held that continuous and coercive harassment can establish an IIED cause of action." Neufeld v. Neufeld, 910 F.Supp. 977, 984 (S.D.N.Y.1996) (citing Alexander v. Unification Church of America, 634 F.2d 673, 678-79 (2d Cir.1980) (filing of harassing lawsuits, constant surveillance, patrolling of plaintiffs' homes); Green v. Fischbein Olivieri Rozenholc & Badillo, 119 A.D.2d 345, 507 N.Y.S.2d 148 (1986) (baseless eviction proceedings against plaintiff-tenant by landlord, disruption in services, deterioration of living conditions, interference with mails, verbal abuse of plaintiff and his guests). But see Gay v. Carlson, 60 F.3d 83, 89 (2d Cir.1995) (finding that the plaintiff had not established an IIED claim
In arguing that Plaintiffs' IIED claims fail as a matter of law, Defendants Falter and Wilson argue, inter alia, that: (1) Plaintiffs have not alleged conduct that is sufficiently outrageous; and (2) Plaintiffs have not provided medical evidence and therefore will not be able to allege harm beyond hurt feelings.
Taking Defendants Falter and Wilson's second argument first, the Court concludes that Plaintiffs are correct in protesting that this Motion was brought prior to discovery, rendering a debate over the lack or quality of medical evidence premature. Defendants Falter and Wilson elected to file a Motion for summary judgment prior to discovery, which precludes them from obtaining summary judgment (at least at this point) based on lack of expert testimony. While not yet supported by facts on the record, Plaintiff has referred to damages caused by Defendants Falter and Wilson's allegedly outrageous conduct.
The Court does, however, find Defendants Falter and Wilson's first argument — that the alleged conduct was neither extreme nor outrageous as a matter of law — convincing. While the Court is mindful that an ongoing pattern of harassing actions that might not individually be extreme and outrageous may reach the IIED threshold when considered holistically, see Neufeld, 910 F.Supp. at 984, the Court concludes that Plaintiffs allegations against Defendants Falter and Wilson are still deficient as a matter of law.
In so holding, the Court relies largely on Plaintiffs' identification of specific parties and the specific acts that they allegedly committed. Drawing all reasonable inferences in favor of Plaintiffs and noting the early stage at which the instant Motion was brought, the Court concludes that the facts alleged against Defendants Falter and Wilson — as opposed to Defendant VanDewater or Defendants generally —
Plaintiffs allege that Defendants Falter and Wilson: (1) verbally harassed them on many occasions; (2) shot off fireworks too close to Plaintiffs' cabin during the summer months of 2007-2011; (3) chased Plaintiffs on multiple occasions in cars, honking and veering dangerously close to them; (4) interfered with Plaintiffs' right-of-way over Defendant VanDewater's land; (5) made false complaints against Plaintiffs to the Lewis County Defendants; (6) "participated in and/or condoned" other actions taken by Defendants VanDewater and Rose; and that Defendant Falter "participated in the unlawful imprisonment of [Mr. Hogan] and [his] children, which is the subject of a New York state action currently being litigated."
The conduct alleged on the part of Defendants Falter and Wilson was certainly unneighborly but even if it had been tortious, or even criminal,
Where the Court concludes that many of Plaintiffs' stated causes of action (e.g., the IIED claim, the §§ 1981 and 1982 claims) are ill suited to the facts alleged,
While Defendants Falter and Wilson correctly state that "[l]andowners in an organized community must tolerate some damage, annoyance, and inconvenience from each other,"
It is hornbook law that a plaintiff asserting a negligence claim must prove that "(1) the defendant owed the plaintiff a cognizable duty of care as a matter of law; (2) the defendant breached that duty; and (3) plaintiff suffered damage as a proximate result of that breach." Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir.1998). "The existence of a common-law duty in a negligence case is a threshold question of law for the court." Morgan Stanley & Co. Inc. v. JP Morgan Chase Bank, N.A., 645 F.Supp.2d 248, 255 (S.D.N.Y.2009) (citing Hayes v. Riverbend Housing Co., Inc., 40 A.D.3d 500, 836 N.Y.S.2d 589, 590 (2007)); see also Williams v. Utica College of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) ("Under New York law, the question of the existence of a duty is a question of law that is to be answered by the Court of Appeals in a broad, categorical fashion" (internal quotation marks omitted)).
In this case, Defendants Falter and Wilson argue that they owed no such duty to Plaintiffs. Falter and Wilson Mot. at 17-18. Plaintiffs counter that Defendants Falter and Wilson owe a duty to Plaintiffs as adjoining landowners. Accordingly, they claim, "[t]he only question that is relevant is whether Defendants Falter and Wilson have breached their duty to the Plaintiffs, and whether that breach is the proximate cause of harm to the Plaintiffs." Resp. to Falter and Wilson at 11. Further, Plaintiffs claim that factual issues persist that should bar summary judgment on this claim.
The Court finds Plaintiffs arguments wholly unavailing and grants Defendants Falter and Wilson's Motion for summary judgment as to the negligence and gross
In their Response, Plaintiffs correctly observe that there are claims remaining against Defendants Falter and Wilson beyond those addressed in the summary judgment Motion. Resp. to Falter and Wilson at 12. In their Reply, the Defendants Falter and Wilson argue that "[t]hese causes of action were not addressed in defendants' initial moving papers because they required no response." Falter and Wilson Reply ¶ 31. Their argument, at its essence, is that these claims are incredibly weak and there was no reason for Defendants Falter and Wilson to think that these claims had been brought against them; therefore, they did not need to move for summary judgment specifically as to these claims. However, the Fourteenth, Fifteenth, and Sixteenth causes of action in Plaintiffs' Supplemental Complaint are asserted generally against "Defendants."
Accordingly, it is hereby:
