Hassan v. Town of Brookhaven

Filing 100

ORDER granting DE 92 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, Defendant's motion for summary judgment is granted, and this matter is closed. Ordered by Magistrate Judge Steven I. Locke on 3/3/2020. c/m to Pro Se Plaintiff. (Georgescu, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN HASSAN,
Plaintiff,
-against-

MEMORANDUM AND
ORDER
13-cv-4544 (JMA)(SIL)

TOWN OF BROOKHAVEN
Defendant.
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STEVEN I. LOCKE, United States Magistrate Judge:
Pro se Plaintiff John Hassan (“Plaintiff” or “Hassan”) commenced this action
on August 12, 2013 against Defendant Town of Brookhaven (“Defendant” or the
“Town”), alleging constitutional violations by the Town and its agents.1 Presently
before the Court is Defendant’s motion for summary judgment pursuant to Federal
Rules of Civil Procedure (“Fed. R. Civ. P.”) 56. See Notice of Motion for Summary
Judgment by Town of Brookhaven, DE [92]. For the reasons set forth below, the
motion is granted.2

Plaintiff initially commenced the action by filing an Order to Show Cause seeking a
temporary restraining order and injunctive relief. See Docket Entry (“DE”) [1]. The Honorable Sandra
J. Feuerstein declined to sign the Order to Show Cause, but by Order dated September 13, 2013,
construed it to be a Complaint. See DE [11]. Thereafter, on September 23, 2013, Hassan filed an
Amended Complaint. See DE [12]. On October 24, 2017, Plaintiff filed a Second Amended Complaint,
see DE [83], which is now the operative pleading.
2 This motion is before the Court for decision on consent of the parties. See DE [97].
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I. BACKGROUND3
The following facts are taken from the pleadings, affidavits, exhibits and
Defendant’s Local Civil Rule 56.1(a) statement.4 Unless otherwise noted, these facts
are not in dispute.
This lawsuit arises from the Town’s prosecution of Hassan, pursuant to Section
45-4 of the Sanitary Code of the Town of Brookhaven (the “Anti-Littering Law”),
which provides, in relevant part:
Any person owning, occupying or in control of private property shall maintain
such property, including the sidewalk in front thereof, free of litter. In the
event that the owner, occupant or person in control of private property located
within the Town shall fail to remove litter located on such property, the Town
shall have the authority, as provided for herein, to enter upon such property,
to remove the litter so located, to assess the cost and expense of such action
against the property and to establish a lien in the manner provided herein
below.
Local Rule 56.1 Statement (“Def. 56.1”), DE [92-1], ¶ 3. According to Plaintiff, an
unidentified resident complained to Defendant about the condition of his property
located in Center Moriches, New York (the “Property”).

See Second Amended

Complaint (“SAC”), DE [83], 3.5 As a result, agents of the Town inspected the
Property and issued notices, dated July 30, 2013 and August 9, 2013, advising Hassan
that the Property was “in an unsanitary condition” due to the presence of litter,
including “plastic bags, food wrappers, totes, buckets, plywood, [and a] cooler[.]” See
Def. 56.1, ¶¶ 5-6; Exhibit A (“Ex. A”), DE [92-4]; Exhibit B (“Ex. B”), DE [92-5]. These
As the parties’ familiarity with the underlying facts and extensive procedural history is
presumed, the Court sets forth only background material that is directly relevant to the instant
motion.
4 Plaintiff has not submitted a Local Civil Rule 56.1(a) statement.
5 The Second Amended Complaint does not enumerate paragraphs or pages. Accordingly,
citations are to the pages by the order in which they appear.
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notices further informed Plaintiff that if he did not remove the litter, so as to comply
with the Town’s Anti-Littering Law, Defendant would enter the Property and “assess
the cost of such removal against the [P]roperty.” See Def. 56.1, ¶ 6; Ex. B.
Shortly thereafter, Hassan filed the instant lawsuit alleging that the Town’s
agents had trespassed on the Property and that the Anti-Littering Law was
unconstitutional. See Proposed Order to Show Cause, DE [1]. While the instant
lawsuit was underway, Plaintiff was found guilty of violating the Anti-Littering Law
after a bench trial held on September 19, 2014 in Brookhaven Community Court. See
Def. 56.1, ¶ 10; Affirmation (“Def. Affirmation”), DE [92-2], ¶ 10; see also Exhibit C
(“Ex. C”), DE [92-6].
Four years after initiating this lawsuit, on leave of the Court and with
Defendant’s consent, Hassan filed a Second Amended Complaint to include
allegations that the Town had denied him access to the local Meals on Wheels
program. See SAC, 4-5. Defendant now moves for summary judgment on all counts
of Plaintiff’s Second Amended Complaint.
Plaintiff alleges that:

(1) the Anti-Littering Law, which “restrict[s] and

declare[s] what possessions a resident may have on his property[,] is malicious,
selective and prejudiced”; (2) the Town violated his Fourth Amendment rights by
unlawfully spying on him and photographing his “possessions and activities within
the boundaries of [his] privacy” and attempting to seize his possessions; (3) the July
30, 2013 and August 9, 2013 notices from Defendant advising Hassan that he was in
violation of the Anti-Littering Law were defamatory; and (4) the Town’s practice of

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inspecting the homes of applicants for its local Meals on Wheels program constitutes
an illegal search in violation of the Fourth Amendment. See SAC, 2-5; see also DE
[98] (letter from Hassan summarizing claims).6
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Fed. R. Civ. P. 56, a “court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears
the “difficult” burden of establishing that there are no genuine issues of material fact
such that summary judgment is appropriate. See Jeffreys v. City of New York, 426
F.3d 549, 554 (2d Cir. 2005). In deciding a motion for summary judgment, the court
“is not to weigh the evidence but is instead required to view the evidence in the light
most favorable to the party opposing summary judgment, to draw all reasonable
inferences in favor of that party, and to eschew credibility assessments.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986) (holding that a

The Court notes that Plaintiff also mentions throughout his filings that the Town
“threaten[ed] to use lethal force against [him],” but does not explain what he means by this or what
cause of action he seeks to assert. See SAC, 2; DE [98]. Based on a review of Hassan’s submissions,
the Court determines that by alleging that Defendant used “lethal force,” Plaintiff is referring simply
to the Town’s enforcement of the Anti-Littering Law against him and is therefore not alleging a
separate cause of action. See, e.g., SAC, 4 (“A couple weeks later[,] a man came to my door and gave
me a summons to Town Court and he pointed to and mentioned my . . . property and possessions that
were the objects of the summons. I wrote a letter to the Town Court that the matters in the summons
were in U.S. District Court jurisdiction, but my letter was returned with the statement that they did
not accept it until I appeared in court. And I received more than 1 letter that threatened me with
lethal force.”); Petitioner’s Opposition to Respondent’s Motion for Summary Judgment (“Pl. Opp.”), DE
[91], ¶ 7 (“The [Town] District Court threatened me with lethal force and arrest if I did not appear as
ordered.”); DE [98] (“Threatening to use lethal force against me even though I had brought my response
against [the] Town in U.S. District Court.”).
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motion for summary judgment should be denied if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party”).
Once the movant has met its initial burden, the party opposing summary
judgment “must do more than simply show that there is some metaphysical doubt as
to the material facts . . . . [T]he nonmoving party must come forward with specific
facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356 (1986) (internal
quotation marks and citation omitted); see also Maxton v. Underwriter Labs., Inc., 4
F. Supp. 3d 534, 542 (E.D.N.Y. 2014) (“An issue of fact is considered ‘genuine’ when
a reasonable finder of fact could render a verdict in favor of the non-moving party.”)
(citation omitted). In determining whether summary judgment is warranted, “the
court’s responsibility is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried, while resolving ambiguities and drawing
reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 11 (2d Cir. 1986) (citation omitted); see also Jeffreys, 426 F.3d at 553
(“Assessments of credibility and choices between conflicting versions of the events are
matters for the jury, not for the court on summary judgment.”) (internal quotation
marks and citation omitted).
B. Pro Se Pleadings
It is well-established that pleadings filed by pro se plaintiffs, such as Hassan,
are held “to less stringent standards than formal pleadings drafted by lawyers.”
Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980); see also Erickson v. Pardus,

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551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (“A document filed pro se is to be liberally
construed . . . and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”) (internal quotation
marks and citations omitted). The Second Circuit has held that a court reviewing a
pro se complaint must “construe the complaint broadly, and interpret it to raise the
strongest arguments that it suggests.” Weixel v. Bd. of Educ. of the City of New York,
287 F.3d 138, 145-46 (2d Cir. 2002) (internal alterations omitted); see also Colorado
Capital v. Owens, 227 F.R.D. 181, 193 (E.D.N.Y. 2005) (holding that a court must
“make reasonable allowances so that a pro se plaintiff does not forfeit rights by virtue
of her or his lack of legal training”) (internal quotation marks and citations omitted).
Further, courts must afford pro se plaintiffs “special solicitude” before granting
motions for summary judgment. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010)
(citation omitted). However, the court “need not argue a pro se litigant’s case nor
create a case for the pro se which does not exist.” Ogunmokun v. Am. Educ. Servs.,
No. 12-cv-4403, 2014 WL 4724707, at *3 (E.D.N.Y. Sept. 23, 2014) (internal quotation
marks and citation omitted).
III. DISCUSSION
The Town moves for summary judgment against Hassan on all counts of his
Second Amended Complaint.

In reviewing Defendant’s motion for summary

judgment, the Court relies on those facts not in dispute and gives Plaintiff the benefit
of the doubt when his assertions conflict with those of the Town. See In re Corcoran,
246 B.R. 152, 156 (E.D.N.Y. 2000) (citing Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.

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1996)). Further, in light of Hassan’s pro se status, the Court considers not only his
opposition to Defendant’s motion for summary judgment, see DEs [91], [95], but also
considers two submissions which are not labeled as opposition, but which Plaintiff
filed after the Town had filed its motion for summary judgment, see DEs [98]-[99].
See Santiago v. C.O. Campisi Shield No. 4592, 91 F. Supp. 2d 665, 671 (S.D.N.Y.
2000) (noting that “the Second Circuit has repeatedly ordered the district courts to
bend the procedural rules for the benefit of pro se litigants”); see also Bradley v.
Coughlin, 671 F.2d 686, 690 (2d Cir. 1982) (cautioning courts against elevating “form
over substance” in pro se cases).
A. Count I: Selective Enforcement
Plaintiff first alleges that the Town’s Anti-Littering Law is “malicious,
selective and prejudiced[.]” See SAC, 2. The Court treats this cause of action as one
for unlawful selective enforcement. To prevail on a claim of selective enforcement of
the law in violation of the Equal Protection Clause, a plaintiff must prove that: (1)
“compared to others similarly situated, [he] was selectively treated”; and (2) “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.” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.
2000) (citations omitted).
According to Hassan, the Town improperly classified his possessions as litter
simply because they are not objectively valuable.

See Pl. Opp., ¶ 16 (“Because

somebody discards something that they are not proud to own, [it] cannot be

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considered litter if it is useful and valuable to me.”). He argues that his “possessions
are as useful and valuable to [him] as the $1,000 bar carts and outdoor rotisseries,
boats, cars, trucks, lawn tractors and . . . swimming pool implements and accessories
[and that he is] entitled to live as well as [he is] mentally, physically and financially
able.” See Response in Opposition (“Pl. Second Opp.”), DE [95], 2.7 The Court
understands Plaintiff’s argument to mean that the Anti-Littering Law was enforced
against him, while it was not enforced against residents who have more valuable
items on their properties than he does, such as boats and cars. Hassan does not,
however, offer any evidence that he was treated differently than others who are
similarly situated or that such treatment was based on impermissible considerations,
such as his race or religion. By contrast, Defendant’s counsel affirms, by way of
example—and Plaintiff does not deny—that approximately 30 out of 300 tickets
issued each week to residents of the Town over the course of a recent two-year period
were for violations of Section 45-4(d) of the Anti-Littering Law, the same provision of
the law that Plaintiff violated. See Def. Affirmation, ¶ 23. Thus, Defendant proffers
competent evidence that the Anti-Littering Law was not selectively enforced against
Hassan.
Accordingly, Plaintiff fails to raise a genuine dispute as to whether the Town
selectively enforced its Anti-Littering Law against him, and Defendant’s motion as to
Hassan’s first cause of action is granted.

Because the pages of Plaintiff’s second opposition are not numbered, the Court cites to pages
by the order in which they appear.
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B. Count II: Unlawful Search and Seizure
The Fourth Amendment protects individuals against unreasonable searches
and seizures. See U.S. Const. amend. IV. A search occurs when the Government
either physically intrudes upon an individual or the individual’s possessions or
otherwise invades an area “in which the individual has a reasonable expectation of
privacy.” Glover v. City of New York, No. 15-cv-4899, 2018 WL 4906253, at *28
(E.D.N.Y. Oct. 9, 2018) (citation omitted). A seizure occurs when the Government
interferes in some meaningful way with the individual’s possession of property. Id.
at *31 (citation omitted).
Initially, Plaintiff alleges that the Town—through its agent, Samantha
Guarino (“Guarino”)—unlawfully entered the Property to take photographs.
According to Hassan, the photographs Guarino took “could not possibly [have] been
all taken from the public street . . . [and] she must have gone around many large trees
and bushes and photographed areas of privacy and solitude which . . . could not
possibly be exposed from the street.” Pl. Opp., ¶ 13. He further alleges that he once
heard two men, one of whom he is “certain” was an employee of the Town, talking in
front of his mailbox, shortly after an unknown person or persons had “inserted a
plastic bag” into his mailbox. Id. at ¶¶ 3-5; see also SAC, 3.
Hassan fails, however, to provide any information that raises a genuine
dispute as to whether Guarino or any other agents of the Town entered the Property.
With respect to Guarino, Plaintiff submits a Google street-view photograph of the
Property and argues that it looks different than the photographs that Guarino took

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of the Property and therefore demonstrates that her photographs could have only
been taken by unlawful entry onto the Property. See Pl. Opp., ¶ 14. This grainy
black-and-white photograph, however, does not create a genuine dispute, especially
when paired with Hassan’s concession during his deposition that he never saw
Guarino on the Property. See Exhibit K (“Ex. K”), DE [92-14], 25-26. Moreover,
Defendant submits Guarino’s sworn testimony from the September 19, 2014 bench
trial, where she denied ever entering the Property and explained that the
photographs of the Property were taken from the street. See Def. Affirmation, ¶ 17;
Exhibit D (“Ex. D”), DE [92-7]. While Plaintiff asserts that he is “certain” that
Guarino committed “deliberate perjury without a doubt,” see Def. Second Opp., 2, he
offers no evidence to elevate his claim from speculation to a genuine dispute of fact.
With respect to his allegation that two men, including an agent of the Town, entered
the Property, Hassan offers no evidence whatsoever. Accordingly, the Court finds
that there is no genuine dispute of fact as to whether Guarino or other agents of the
Town unlawfully entered the Property.
Next, Plaintiff alleges that Defendant attempted to seize his possessions. At
his deposition, however, he conceded that the Town had not taken anything. See Ex.
K, 26. Accordingly, there is no genuine dispute as to whether Defendant interfered
in some meaningful way with Hassan’s possessions in violation of the Fourth
Amendment.

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Because Plaintiff fails to submit any evidence that an unlawful search or
seizure occurred, the Court grants Defendant’s motion for summary judgment on
Count Two of the Second Amended Complaint.
C. Count III: Defamation
Next, Hassan alleges that the July 30, 2013 and August 9, 2013 notices
regarding his violation of the Anti-Littering Law were defamatory because they “had
been posted on the street edge of [the] Property facing the public street to notify the
public[.]” See SAC, 3. To state a claim for defamation, a plaintiff must allege: (1) a
false statement about him; (2) publication to a third party; (3) fault on the part of the
statement’s publisher; and (4) special harm or “defamation per se.” Mestecky v. New
York City Dep’t of Educ., 791 F. App’x 236, 239 (2d Cir. 2019) (internal quotation
marks and citation omitted); see also Cortes v. Twenty-First Century Fox Am., Inc.,
285 F. Supp. 3d 629, 641 (S.D.N.Y.), aff’d sub nom., 751 F. App’x 69 (2d Cir. 2018)
(citations omitted).
Initially, Plaintiff fails to allege that the notices contained false statements.
The notices stated that Hassan was violating the Anti-Littering Law by having litter
scattered on the Property, see Ex. A; Ex. B, and Plaintiff was indeed found guilty of
violating the Anti-Littering Law at a bench trial held on September 19, 2014 in
Brookhaven Community Court. See Def. 56.1, ¶ 10; Def. Affirmation, ¶ 10. Truth
provides “an absolute, unqualified defense” to defamation claims. Cortes, 285 F.
Supp. 3d at 642 (internal quotation marks and citation omitted).

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Accordingly,

because Hassan has failed to raise a genuine dispute as to the veracity of the
statements contained in the notices, his defamation claim fails as a matter of law.
Plaintiff’s claim further fails because he does not allege special harm or
defamation per se. Special harm consists of the loss of something of pecuniary value
flowing “directly from the injury to reputation caused by the defamation.” Cain v.
Atelier Esthetique Inst. of Esthetics Inc., 733 F. App’x 8, 11 (2d Cir. 2018), cert. denied,
139 S. Ct. 1199 (2019), reh’g denied, 139 S. Ct. 1598 (2019) (internal quotation marks
and citation omitted). Defamation per se exists where the alleged statements: (1)
charge the plaintiff with a serious crime; (2) injure plaintiff’s business or profession;
(3) charge plaintiff with a “loathsome disease”; or (4) “impute[] unchastity to a
woman.” Jordan v. Tucker, Albin & Assocs., Inc., No. 13-cv-6863, 2017 WL 2223918,
at *10 (E.D.N.Y. May 19, 2017) (quoting Zherka v. Amicone, 634 F.3d 642, 645 n.6 (2d
Cir. 2011)). Here, Hassan fails to allege that the notices resulted in any harm to his
reputation, much less that he lost something of economic value, nor does he allege
that the notices contained statements within one of the four categories that give rise
to defamation per se.
Accordingly, as Plaintiff fails to allege two of the elements required for a
defamation claim under New York law, Defendant’s motion for summary judgment
on Count Three of the Second Amended Complaint is granted.
D. Count IV: Unlawful Search Through Meals on Wheels Program
Finally, Hassan alleges that he was unlawfully denied access to the local Meals
on Wheels program. See SAC, 4-5. According to Plaintiff, Defendant would only allow

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him to participate in the Meals on Wheels program if he allowed agents of the Town
to conduct a home inspection, which he refused to do because he believed the home
inspection was intended to “forcibly remove seniors from their homes” and “foster[]
excuses to appoint politically connected guardians and real estate brokers to take
possession of homes and finances and send residents to politically connected nursing
homes and feed the political corruption well known in [the] Town[.]” Id. at 5. In
support of its motion for summary judgment, Defendant’s counsel affirms that all
residents who participate in Meals on Wheels must have their homes inspected for
their own safety and that the Town was not attempting to seize the Property. See
Def. Affirmation, ¶ 24. Hassan offers no contradictory evidence, beyond his own
speculation, and thus, the Town’s motion with respect to Plaintiff’s fourth cause of
action is granted.
IV. CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment is
granted, and this matter is closed.

Dated:

Central Islip, New York
March 3, 2020
SO ORDERED
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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