Norton v. Town of Islip et al
Filing
63
MEMORANDUM & ORDER: For the reasons set forth in the attached opinion, the Court GRANTS the Town Defendants' Motion for Judgment on the Pleadings 48 and the County's Motion to Dismiss 54 . Lacking independent subject matter jurisdictio n over the case, the Court DISMISSES Plaintiff's Motion for Summary Judgment 49 without review. The Court respectfully directs the Clerk to enter judgment accordingly and close the case. Ordered by Judge Pamela K. Chen on 3/31/2015. (Chiang, May)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
HOWARD J. NORTON,
Plaintiff,
-against12 CV 4463 (PKC)
TOWN OF ISLIP, COUNTY OF SUFFOLK,
ALICIA S. O’CONNOR, ERIN SIDARAS,
PATRICIA A. WAITE, MICHAEL P.
WALSH, DANIEL C. ECKERT, and JASON
MISTRETTA, all individually and in their
official capacities,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION & ORDER
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 1 and the County have moved to dismiss the Second Amended
Complaint.
Norton has cross-moved for summary judgment on his claim seeking the
invalidation of the Town’s Rental Permit law.
1
The “Town Defendants” collectively refers to the Town of Islip and the Individual Town
Defendants.
1
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 Amendment search), Count 5 (procedural due
process), Count 6 (Monell liability against the Town based on malicious prosecution and
malicious abuse of process), Count 8 (Monell liability against the County based on malicious
prosecution and malicious abuse of process), Count 12 (attorneys’ fees), and Count 13
(malicious prosecution).
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.
I.
BACKGROUND
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
2
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.
A.
Parties
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, ¶¶ 78).
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). 2
B.
Plaintiff’s Prior and Ongoing Litigation Against The Town
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
2
The complaint at times refers to Assistant Town Attorney Maeghan O’Keefe (SAC, ¶
185), but she is not a named defendant in this action.
3
non-conformity with its last-issued certificate of occupancy. (SAC, ¶ 13). During the pendency
of that criminal action, Norton commenced Norton I in 1998, alleging that the Town and certain
Town officials deprived him of his right to a non-conforming use of the property without due
process. (SAC, ¶¶ 14–17). The parties then agreed to adjourn the criminal action pending the
resolution of Norton I. (SAC, ¶ 17). In January 2003, the Honorable Nicholas G. Garaufis
found a violation of Norton’s right to procedural due process and awarded declaratory relief
recognizing the non-conforming use of the property. (SAC, ¶¶ 20–21). A week after entry of
judgment against the Town, the Town filed a notice of appeal. (SAC, ¶¶ 22–23). Norton sought
dismissal of the criminal action, but the Town opposed his motion. (SAC, ¶¶ 25–26). The State
Court ultimately dismissed the criminal action on April 23, 2003. (SAC, ¶ 27). On October 9,
2003, the Second Circuit affirmed Norton I. (SAC, ¶ 28). The Town sought certiorari from the
Supreme Court but was denied on June 14, 2004. (SAC, ¶¶ 28–30). On October 5, 2004, Judge
Garaufis awarded Norton a fee award of $299,471.98 against the Town. (SAC, ¶ 31).
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). 3 Sidaras
remained on Norton II, however, because Norton’s bid to disqualify her failed. (SAC, ¶¶ 36–
40). On March 27, 2009, Judge Garaufis granted defendants’ motion for summary judgment in
3
Sidaras was not a named defendant in Norton II.
4
part and denied it in part. (SAC, ¶ 42). The Town appealed to the Second Circuit, and on May
25, 2010, the Second Circuit reversed the district court’s decision denying federal qualified
immunity to certain individual defendants and remanding the state law, Monell liability, and
declaratory judgment claims to the district court. (SAC, ¶ 49). A review of the docket sheet in
Norton II shows that discovery is ongoing. 4
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).
C.
Issuance of First Set of Appearance Tickets and First Prosecution
The present action arises from the Town’s issuance of appearance tickets and accusatory
instruments with respect to Norton’s Claywood Property. On February 3, 2010, the Claywood
Property suffered a fire in its garage. (SAC, ¶ 99). Eckert, an investigator with the Town, went
to the Claywood Property the same day to conduct an investigation. (SAC, ¶ 100).
Norton
alleges that the Town’s practice is to have the Fire Marshal’s office deploy investigators to
4
Norton II was re-assigned to the undersigned on April 18, 2013.
5
investigate violations of the Rental Permit Code and that Eckert went there “based on the belief
that the Claywood Property was being used as a rental.” (SAC, ¶¶ 100–01).
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.)
6
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 Claywood
Property, but issued the appearance tickets and accusatory instruments to Norton only. (SAC, ¶¶
110, 120, 125).
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
7
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).
D.
Service of Second Set of Appearance Tickets and Second Prosecution
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
8
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 basis of improper service. (SAC, ¶¶ 175, 179).
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
9
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
10
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 Accusatory
2. (SAC, ¶¶ 215–217). The State Court found that both instruments were jurisdictionally
defective for failure to contain “the necessary nonhearsay evidentiary allegations” tending to
support the charges. (SAC, ¶¶ 216–17). The State Court also found that Storage Accusatory 2
failed to allege that Norton stored the unregistered motor vehicle on the property and noted that
the Town ordinance did not contain any language permitting the Town to charge Norton with
“allowing and maintaining outdoor storage.” (SAC, ¶ 217). The Town did not appeal the
dismissal of the second set of accusatory instruments. (SAC, ¶ 219).
E.
Procedural History
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.
11
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.
II.
STANDARD OF REVIEW
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 (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 (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, 566 U.S. at 679).
12
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 frame his pleading. Martin, 692 F. Supp. 2d at 289 (citing Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002)). The Court may also take judicial notice of public documents
in deciding a motion to dismiss.
Martin, 692 F. Supp. 2d at 287 (citing Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).
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 (Plaintiff’s 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. 5
5
Defendants have included in their motion papers a color copy of a photograph submitted
to the State Court regarding the unregistered vehicle on Norton’s property. (Town Defs. Reply
Memo at ECF 15). Because the color version of this photo is not part of the public record and is
13
III.
DISCUSSION
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,
(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).
not relied upon by Norton in framing his complaint (see Dkt. 59, Letter from Norton dated Feb.
4, 2015), the Court does not consider the color photo of the vehicle. The Court, however, has
considered the black-and-white version of the photo, which was part of the State Court record
that Norton incorporated into his complaint.
14
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 of Plaintiff’s rights, and that
the Town’s Rental Code is invalid. (See SAC, Counts 9, 10, 11).
The Court begins by analyzing Norton’s claims under Section 1983.
A.
Voluntary Dismissal of Claims Against Defendant Waite (Count 2)
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).
B.
First Amendment Retaliation Under 42 U.S.C. § 1983 (Count 1)
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
15
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).
1. Defendants Sidaras and Walsh Are Immune
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,
--- F. Supp. 3d ---, 2014 WL 4700250 (E.D.N.Y. Sept. 18, 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
16
defendants, which witnesses to call, and what other evidence to present.” Giraldo 694 F.3d at
165. Immunity does not, however, protect “those acts a prosecutor performs in administration or
investigation not undertaken in preparation for judicial proceedings.” Hill v. City of New York,
45 F.3d 653, 661 (2d Cir. 1995); see also Hickey v. City of New York, No. 01–CV–6506, 2002
WL 1974058, at *4 (S.D.N.Y. Aug. 26, 2002) (“the presence or absence of absolute immunity
turns on what the prosecutor is alleged to have done”). When it may not be gleaned from the
complaint whether the conduct at issue was done in an advocacy or investigatory role, “‘the
availability of absolute immunity from claims based on such conduct cannot be decided as a
matter of law on a motion to dismiss.’” Norton, 33 F. Supp. 3d at 230 (citing Hill, 45 F.3d at
663)).
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). 6
6
During oral argument, Norton also argued that Town Attorneys in Islip have “dual”
functions between advocating on behalf of the People and providing legal advice to Town
investigators. Norton argued that Town Attorneys may only receive immunity when they are
advocating on behalf of the People, i.e., bringing actions in Court, citing Hill v. City of New
York as support for this proposition. While Hill does state that a district attorney functioning
17
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. 7 Indeed, the reissued Rental Appearance 2 and Storage Appearance 2 and their associated accusatory
instruments were not issued pursuant to a new investigation, but based on Eckert’s previous
investigation of the Claywood Property. (SAC, ¶¶ 170, 174). Here, then, the re-issuance and
“outside his or her role as an advocate for the People” does not have immunity, it goes on to
clarify the type of functions that do not enjoy immunity: “acts a prosecutor performs in
administration or investigation not undertaken in preparation for judicial proceedings.” Id. at
661 (emphasis added). Norton’s invocation of Hill to exempt the provision of legal advice to
Town investigators from immunity ignores the well-established principle that Town Attorneys
may receive immunity for actions undertaken in preparation for judicial proceedings. See
Giraldo 694 F.3d at 165. Thus, the Town Attorneys are not shielded from immunity simply
because they advised Eckert on the issuance of the appearance tickets; the Court must consider
whether such advice was “in preparation for judicial proceedings.” Indeed, the Second Circuit
has upheld immunity for a prosecutor who “directed others to issue summonses . . . because the
issuance of summonses is part of the prosecutorial function . . .” Santulli v. Russello, 519 F.
App’x 706, 711 (2d Cir. 2013)
7
During oral argument, Norton also argued that it was reasonable to infer a retaliatory
motive on Defendants’ part from their withdrawal of the first set of accusatory instruments and
their filing of the second set. But Norton’s speculation of a retaliatory motive is insufficient to
defeat a claim of absolute immunity; indeed, the very concept of immunity is that the Court does
not inquire into the motivations that may be at play. See Shmueli v. City of New York, 424 F.3d
231, 237 (2d Cir. 2005) (“Once the court determines that the challenged prosecution was not
clearly beyond the prosecutor’s jurisdiction, the prosecutor is shielded from liability . . .
regardless of any allegations that his actions were undertaken with an improper state of mind or
improper motive.”).
18
service of the second appearance tickets and accusatory instruments are more properly
considered “preparatory steps that a prosecutor takes to be an effective advocate of a case
already assembled,” not “investigative steps taken to gather evidence.” Smith v. Garretto, 147
F.3d 91, 94 (2d Cir. 1998) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)) (emphasis
added). 8
Defendants Sidaras and Walsh are thus dismissed from Count 1 on the basis of absolute
immunity.
2. Plaintiff Fails to Plausibly State A Claim Against Mistretta and Eckert
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).
8
Plaintiff also argues that Sidaras and Walsh are ineligible for absolute immunity because
they acted as “complaining witnesses” when advising and instructing Eckert to issue the
appearance tickets against Plaintiff. (Pl. Opp. Memo at ECF 53). However, advice and
instruction regarding the issuance of an appearance ticket is nowhere near the functions of a
complaining witness, which typically include sworn statements or testimony about facts. See
Flagler v. Trainor, 663 F.3d 543, 548 (2d Cir. 2011) (citing Kalina v. Fletcher, 522 U.S. 118
(1997). And Plaintiff’s complaint does not allege that Sidaras and Walsh gave any testimony or
affirmations supporting Rental Appearance 2 or Storage Appearance 2. Thus, Plaintiff cannot
invoke the complaining witness exception to defeat absolute immunity.
19
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 owners of the Claywood Property (SAC, ¶¶ 171, 178). From these thin factual allegations,
Norton claims that Mistretta is liable for First Amendment retaliation because Mistretta allegedly
“advised and instructed” Eckert to issue the second set of appearance of tickets, “knew or
recklessly disregarded” the jurisdictional insufficiency of the accusatory instruments, and may
have desired to create a “chilling effect on Plaintiff’s exercise of his First Amendment
constitutional rights.”
(SAC, ¶¶ 232–34).
Such conclusory allegations hardly establish
Mistretta’s personal involvement in Norton’s claimed injury. Even if these allegations somehow
could be construed to allege Mistretta’s personal involvement, the claim against Mistretta would
still not fail for not plausibly alleging causation. Norton does not allege that Mistretta was aware
of Norton’s litigation history with the Town, and his assertion that Mistretta sought to create a
“chilling effect” on Norton’s First Amendment rights is tentative at best. (SAC, ¶ 234 (“Sidaras
(and/or Eckert, Walsh and Mistretta) desired their conduct to have a chilling effect”) (emphasis
added)). Norton has not plausibly alleged that Mistretta’s actions were caused by a retaliatory
intent. Thus, the Court dismisses Mistretta from Count 1.
20
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.
3. Appearance Tickets Supported By Probable Cause
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.
21
Aug. 3, 2012) (dismissing plaintiff’s 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 or reasonably
trustworthy information to justify a person of reasonable caution in believing that an offense has
been or is being committed by the person to be arrested.”). 9
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).
9
Norton argued that the heightened probable cause standard applicable in malicious
prosecution cases would also apply to his First Amendment retaliation claim. (Pl. Opp. Memo at
ECF 15) (arguing that because there was no custodial arrest, “the relevant inquiry is whether
there was probable cause to believe that each of the criminal actions against Plaintiff could
succeed.”). Courts in the Second Circuit, however, have applied the usual, non-heightened
probable cause standard, i.e., without regard to the likelihood of success, when evaluating First
Amendment retaliation claims. See, e.g., Espinoza v. City of New York, No. 11-cv-2108, 2012
WL 4761565, at *5 (S.D.N.Y. Aug. 3, 2012) (analyzing whether defendants had “probable cause
to issue summonses to plaintiff”); Porat v. Lincoln Towers Community Ass’n, No. 04-cv-3199,
2005 WL 646093, at *6 (S.D.N.Y. Mar. 21, 2005) (“Where the facts of a case show a good faith
basis to make an arrest – or as here, where there is probable cause to issue an appearance ticket
for trespass . . .”).
22
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. 10 Taken together, the circumstances show that
Eckert had probable cause to issue Rental Ticket 1 against Norton.
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
10
Norton argues that Rental Accusatory 1 and 2 cannot be supported by probable cause
because Eckert’s inclusion of Ralph Voehl’s statement “could have been based on hearsay within
hearsay.” (Pl. Opp. Memo at ECF 23). In making this argument, Norton proceeds under the
wrong probable cause standard applicable to his First Amendment retaliation claim. (See id. at
ECF 15 (seeking to apply the malicious prosecution standard for probable cause across Norton’s
claims)). The Court may take hearsay statements into account when conducting a traditional
probable cause analysis. See, e.g., United States v. Parcel of Prop., 337 F.3d 225, 236 (2d Cir.
2003) (“there is clear authority in our circuit allowing the use of hearsay to establish probable
cause.”). As Norton’s purported tenant who just lost his dwelling place, Ralph Voehl had little
motive to lie to Eckert about the terms of his lease. The Court finds Voehl’s statement to be
sufficiently trustworthy to be considered for the purpose of establishing probable cause.
23
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. 11
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 statue 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
11
As Defendants argued at the hearing, Plaintiff’s “3:10 pm” argument is, indeed, a red
herring. The accusatory instrument’s inclusion of date and time serves to provide Norton with
fair notice of when Eckert issued Rental Ticket 1, rather than define the beginning and end of his
behavior that allegedly violated the Town Code.
24
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,
February 18 and February 22). (SAC, ¶¶ 100–04, 112, 115, 117). On February 22, 2010, Eckert
issued Storage Ticket 1 for the prohibited storage of an unregistered pickup truck in the driveway
of the Claywood Property. (SAC, ¶ 118). The associated accusatory instrument stated that
Eckert personally observed the unregistered vehicle in the driveway on 2/5/2010, 2/18/2010 and
2/22/2010. (SAC, ¶¶ 123–24).
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
25
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. 12 Unlike
the deficient violations cited by Norton in his brief, such an observation does not depend on
expertise or particularized findings. Cf. People v. Dreyden, 15 N.Y.3d 100, 104 (N.Y. 2010)
(requiring arresting officer to “explain briefly, with reference to his training and experience, how
he or she formed the belief that the object observed in defendant’s possession was a gravity
knife” as defined by the statue); People v. Dumas, 68 N.Y.2d 729, 731, 497 N.E.2d 686, 686–67
(N.Y. 1986) (noting lack of allegation that police officer was an expert in identifying marijuana
or that defendant represented it as such, to support charge that defendant sold marijuana); People
v. South, 29 Misc. 3d 92, 96 (N.Y. App. Term 2010) (noting failure to set forth defendant’s blood
alcohol content to support charge that she was intoxicated). 13 Probable cause, therefore, existed
12
Notably, Norton does not allege in his complaint that Eckert’s observation was incorrect
or that the truck had a visible registration sticker or was registered.
13
During oral argument, Defendants argued that property owners are strictly liable for
unregistered vehicles on their property. This, however, overstates the nature of a property
owner’s liability. As Norton points out in his letter (Dkt. 59), while liability may attach to the
owner of the premises for storing an unregistered vehicle on the property, the New York courts
have limited that liability to instances where the owner “had a right of entry” to the premises,
either through the lease or in a statute. See People v. Scott, 26 N.Y.2d 286, 289 (N.Y. 1970).
Norton does not allege that he reserved such a right of entry to the premises.
26
to issue Storage Ticket 1, which defeats Norton’s retaliation claim as to the issuance and service
of that appearance ticket. Furthermore, because the facts supporting probable cause for Storage
Ticket 1 are the same as for Storage Ticket 2, there can be no retaliation claim based on that
appearance ticket either.
Having dismissed all Defendants from Count 1, the Court dismisses Norton’s claim for
First Amendment retaliation in its entirety.
C.
Malicious Prosecution Under Section 1983 (Count 13)
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
Defendants also argued that under People v. Sikorsky, they are entitled to the presumption that a
vehicle that lacks a registration sticker is unregistered. (Town Def. Reply Memo at ECF 16)
(citing People v. Sikorsky, 759 N.Y.S.2d 836, 838 (N.Y. App. Term 2002)). Yet Defendants
again overstate the law – the presumption is not simply based on the lack of sticker:
If a vehicle does not have affixed a validating sticker which indicates the plate number,
the vehicle identification number and the expiration date of the registration, the failure to
produce the certificate of registration, or a photostatic copy of such certificate, shall be
presumptive evidence of operating a motor vehicle or trailer which is not registered as
required by this article. N.Y. Veh. & Traf. Law § 401.
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.
27
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).
1. Absolute Immunity for Walsh and O’Connor; Limited Immunity for
Sidaras
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). 14
Thus, these conclusory allegations do not bring Sidaras, Walsh, or
O’Connor’s conduct to the “investigative” side of the line, at least with respect to the issued
accusatory instruments.
14
Indeed, the complaint alleges that Eckert went to the Claywood Property as a result of
practices of the Town’s Fire Marshal’s office, which is not a party to this suit. (SAC, ¶ 101).
28
Norton does allege that Sidaras directed Eckert to go to the Claywood Property on May 4,
2011 to conduct an investigation into a prior violation on the property. (SAC, ¶ 211). Because
this alleged conduct would open a new investigation into the Claywood Property and was not
connected to the existing case, it constitutes an “investigative” function. See Smith v. Garreto,
147 F.3d 91, 94 (2d Cir. 1998). Thus, Sidaras cannot claim absolute immunity for her alleged
instruction to Eckert to investigate the Claywood Property on May 4, 2011.
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)). 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
29
functions”) (citing Imbler, 424 U.S. at 430); 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. 15
2. Norton’s Surviving Allegations Against Sidaras, Mistretta and Eckert Do
Not Plausibly State A Claim for Malicious Prosecution Under Section
1983 (Count 13)
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 New
York law, Norton must adequately allege: (1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice as a motivation for
defendant's actions. Id. at 161 (citing Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997)). To
15
Because the Court dismisses Norton’s Section 1983 claim for malicious prosecution for
failing to state a claim, the Court need not, and declines to, address whether Sidaras is entitled to
qualified immunity.
30
state a claim under Section 1983, Norton must also allege conduct by these Defendants that
resulted in a constitutionally cognizable, post-arraignment deprivation of liberty implicating his
Fourth Amendment rights. See Bernshtein v. City of New York, 496 F. App’x 140, 142 (2d Cir.
2012) (citing Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); Kinzer v.
Jackson, 316 F.3d 139, 143 (2d Cir. 2003) (citing Singer v. Fulton County Sheriff, 63 F.3d 110,
116–17 (2d Cir. 1995)).
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 plaintiff’s 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
31
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. 16 Norton made his first appearance in the State Court on February 2,
2011. (SAC, ¶¶ 196, 202, 209). Norton then alleges that after his arraignment, “he was required
to return to the State Court before both charges against him were ultimately dismissed.” (SAC, ¶
221). But no dates of appearance following his arraignment are alleged, and Norton does not
allege that he was ever detained in any way or ordered by the court not to travel. 17 Norton
instead appears to rely on the fees he expended on a lawyer to fight the charges against him, both
pre- and post-arraignment, but it is clear that fees for an attorney do not “seize” an individual
under the Fourth Amendment. 18
16
Though the Second Amended Complaint lists a number of arraignment hearings
continued on the second set of accusatory instruments and the issuance of arrest warrants, Norton
did not appear at these hearings, and the warrants filed in July 2010 and January 2011 were
withdrawn. (SAC, ¶¶ 135, 146, 155, 159, 161, 163, 180, 185, 188, 194). Norton cannot
plausibly claim that he was seized by pre-arraignment hearings where he did not even appear.
17
At oral argument, Norton suggested that the Town Defendants constructively arrested
him through the issuance of the appearance tickets and accusatory instruments, and his eventual
appearance in Court. However, a “brief encounter with the authorities” or the issuance of an
appearance ticket does not constitute constructive arrest. See Guendel v. Suffolk County, No. 06cv-0513, Memorandum & Order at *7 (Dkt. 45) (E.D.N.Y. Mar. 5, 2008).
18
To the extent that Plaintiff alleges a deprivation of liberty based on his submission to a
“warrantless search of his person and effects” to enter the State Court (SAC, ¶ 224), Plaintiff’s
allegations again fall short. It is well-established that this type of administrative search is
constitutional under the Fourth Amendment. See, e.g., Dickerson v. Napolitano, 604 F.3d 732,
32
Because Norton’s surviving allegations for malicious prosecution under Section 1983 do
not establish a cognizable deprivation of liberty, Count 13 is dismissed. 19
D.
Monell Liability Against the Town (Count 6)
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, (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 F. App’x 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.
751 (2d Cir. 2010) (listing cases upholding screenings of citizens upon entry to government
buildings); Roundtree v. City of New York, 778 F. Supp. 614, 620 n.1 (E.D.N.Y. 1991) (stating
“pat down” search at courthouse was “clearly constitutional as an administrative search to ensure
the security of the courthouse”).
19
The Town Defendants have asserted other bases for dismissing Norton’s Section 1983
malicious prosecution claim, but the Court need not, and does not, reach the merits of those
defenses here.
33
E.
Monell Liability Against the County (Count 7)
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.
F.
Monell Liability Against the Town Based on Fourth Amendment Violation
(Count 4)
Count 4 of the Second Amended Complaint asserts that the Town is liable for violating
Norton’s Fourth Amendment rights because Eckert trespassed on his property pursuant to Town
practices. The Town Defendants first seek to dismiss the claim on standing grounds, asserting
that Norton lacks standing because he was leasing the Claywood Property to tenants and thus did
not possess a reasonable expectation of privacy in the premises. (Town Def. Memo at ECF 28–
29). Norton alleges that as a property owner, he never relinquished his right to prohibit Town
Enforcement Office personnel from entering onto the Claywood Property without a warrant,
absent exigent circumstances not present here. (Pl. Opp. Memo at ECF 61). Though this is a
close question, the Court finds that Norton has plausibly pled his standing to assert a Fourth
Amendment claim. As stated earlier, on a motion for judgment on the pleadings the Court must
construe the allegations in Norton’s favor as the non-moving party. (See Section II, supra.)
Here, the Second Amended Complaint does not refer to Norton as a landlord or otherwise allege
that he relinquished his expectation of privacy to the property, and it alleges that Eckert searched
the property without Norton’s consent. (SAC, ¶¶ 103–04). Therefore, Norton has plausibly
alleged standing to assert a Fourth Amendment claim. 20
20
In their memorandum accompanying their motion for judgment on the pleadings, the
Town Defendants refer to an affidavit executed by Norton’s alleged tenant regarding consent to
Eckert’s search. (Town Def. Memo at ECF 28 n.7). Because Norton has not relied on that
34
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. 21 A claim premised on an official policy or custom cannot be sustained on one alleged
violation. See Berry v. Village of Millbrook, 815 F. Supp. 2d 711, 717 (S.D.N.Y. 2011) (“a
custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by
a mere employee of the [municipality].”) (quoting Newton v. City of New York, 566 F. Supp. 2d
256, 271 (S.D.N.Y. 2008)); Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 514 (S.D.N.Y.
2008) aff’d sub nom., Jean-Laurent v. Wilkerson, 461 F. App’x 18 (2d Cir. 2012) (dismissing
plaintiff’s Fourth Amendment claim for municipality liability due to plaintiff’s failure to present
“evidentiary support for the existence of such a municipal policy, custom or practice”).
Norton’s Fourth Amendment claim against the Town is thus dismissed.
affidavit to frame his complaint, the Court’s consideration of that affidavit for purposes of this
motion is not proper. See Section II, supra.
21
Norton’s claim asserts another instance of trespass on May 4, 2011 (SAC, ¶ 260), but a
review of the Second Amended Complaint shows that the allegations supporting this assertion
are limited to Eckert parking his car in the driveway of the Claywood Property. (SAC, ¶ 211).
Assuming Norton does have a reasonable expectation of privacy with respect to the Claywood
Property, a parked car in the driveway does not plausibly allege a violation of that expectation.
Schwasnick v. Fields, No. 08–CV–4759, 2010 WL 2679935, at *4 (E.D.N.Y. June 30, 2010)
(“For example, there is no expectation of privacy along a front walkway and driveway.”).
35
G.
Procedural Due Process Violation (Count 5)
Count 5 alleges that the Town violated Norton’s right to procedural due process by
basing its prosecution on a facially insufficient accusatory instrument. (SAC, ¶¶ 263–85). A
procedural due process violation occurs “when the government deprives a person of a protected
life, liberty, or property interest without first providing notice and an opportunity to be heard.”
B.D. v. DeBuono, 130 F. Supp. 2d 401, 432–33 (S.D.N.Y. 2000). To determine whether a
Section 1983 due process claim is plausibly alleged, the Court evaluates the sufficiency of the
allegations with respect to the liberty or property interest alleged and the process due before
deprivation of that interest. See Reed v. Medford Fire Dep’t, Inc., 806 F. Supp. 2d 594, 609–10
(E.D.N.Y. 2011) (citing Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002)).
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). 22 Norton claims that the appearance tickets and accusatory instruments failed to comply
with New York’s requirement that “every element of the offense charged . . . be supported by
non-hearsay allegations of such information and/or any supporting deposition.” N.Y.C.P.L.R. §
100.15(3); see also N.Y.C.P.L.R. § 100.40. Norton thus alleges a liberty interest based on state
law.
“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
22
Norton’s Opposition appears to assert a deprivation of this liberty interest based on
required court appearances and the expenses of attorneys’ fees. (Pl. Opp. Memo at ECF 64).
However, as discussed above in Section III.E, such allegations do not adequately plead a
constitutionally cognizable deprivation of liberty and so cannot be construed to support his claim
for procedural due process. See Section III.E, supra.
36
(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 F. App’x 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 F. App’x 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).
Thus, Norton’s claim for procedural due process must fail. His alleged liberty interest,
i.e., freedom from prosecution based on a facially insufficient or jurisdictionally defective
instrument, is not cognizable under the federal Due Process Clause because it only seeks the
37
Town’s compliance with state procedures, specifically, N.Y.C.P.L.R. §§ 100.15(3) and 100.40.
See Holcomb, 337 F.3d at 224. Norton does not allege a separate, constitutionally cognizable
substantive liberty or property interest that could potentially sustain his claim. He has not met
his burden to show that his claim is premised on a protected liberty interest and thus his claim
must fail.
Count 5 is, therefore, dismissed.
H.
Attorneys’ Fees Under Section 1983 (Count 12)
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).
I.
Declaratory Judgment (Counts 9, 10, and 11)
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; Davis v. United
States, 499 F.3d 590, 594 (6th Cir. 2007)); Goldberg v. Cablevision Sys. Corp., 281 F. Supp. 2d
38
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, 23 the Court dismisses Counts 9, 10
and 11 without prejudice. See Goldberg, 281 F. Supp. 2d at 604 (dismissing remaining claim
for declaratory relief after dismissal of other federal claims because court lacked subject matter
jurisdiction).
J.
Remaining State Law Claims (Counts 3 and 7)
Having dismissed all claims pled under federal law, the Court declines to exercise
supplemental jurisdiction over the remaining state law claims. 24 Where, as here, any federal
“claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon
University v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also Oneida Indian Nation of New York v.
Madison Cnty., 665 F.3d 408, 437 (2d Cir. 2011) (“we have repeatedly said that ‘if a plaintiff's
federal claims are dismissed before trial, ‘the state law claims should be dismissed as well.’”)
(quoting Brzak v. United Nations, 597 F.3d 107, 113–14 (2d Cir. 2010)); 28 U.S.C. § 1367(c)(3)
(“district courts may decline to exercise supplemental jurisdiction over a claim if the district
court has dismissed all claims over which it has original jurisdiction”). For those reasons, the
Court declines to exercise supplemental jurisdiction over Counts 3 and 7 of the Second Amended
23
Norton cannot avail himself of diversity jurisdiction because he resides in New York and
is of the same citizenship as all Defendants. (SAC, ¶ 4).
24
The remaining state law claims are Count 3, which asserts a malicious prosecution claim
under New York law (SAC, ¶¶ 244-52), and Count 7, which asserts respondeat superior liability
based on Count 3 (SAC, ¶¶ 288-89).
39
Complaint and dismisses them without prejudice to being brought in State court. See Oneida
Indian Nation of New York, 665 F.3d at 444.
IV.
CONCLUSION
The Court therefore GRANTS the Town Defendants’ motion for judgment on the
pleadings and the County Defendant’s motion to dismiss with respect to Plaintiff’s 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. Plaintiff’s 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:
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 31, 2015
Brooklyn, New York
40
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