Homere et al v. Incorporated Village of Hempstead et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS : For the foregoing reasons and the reasons set forth in the R&R, IT IS HEREBY ORDERED that the Court adopts the thorough and well-reasoned R&R in its entirety. Accordingly, the firstamended complaint is dism issed. The Court grants plaintiffs leave to submit a second amended complaint, which must be filed within 45 days from the date of this Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauper is status is denied for the purpose of any appeal.. Ordered by Judge Joseph F. Bianco on 3/22/2018. (Bollbach, Jean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DARLENE F. HOMERE and
GERALD JEAN BAPTISTE,

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

*

MAR 2Z2018

*

LONG ISLAND OFFICE

Plaintiffs,
ORDER
17-CV-3173 (JFB) (AKT)

-againstINCORPORATED VILLAGE OF HEMPSTEAD and
STEPHANIE VALDER,
Defendant.

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JOSEPH F. BIANCO, District Judge:

Prose plaintiffs Darlene F. Homere and Gerald Jean Baptiste ("plaintiffs") bring this action
against the Incorporated Village of Hempstead ("the Village") and Stephanie Valder ("Valder"
and, with the Village, "defendants"). Plaintiffs allege that, from 2008 through 2017, the Village
conspired with Valder and other individuals to harass plaintiffs and to deprive plaintiffs of
residential property. The first amended complaint 1 appears to assert claims against the Village for
(1) malicious prosecution; (2) malicious abuse of process; (3) double jeopardy; (4) violations of
substantive due process; (5) conspiracy; and (6) fraud. 2 With respect to Valder, the complaint
appears to assert claims for conspiracy and fraud. On August 14, 2017, the Village moved to
dismiss the complaint. (ECF No. 22.) Shortly thereafter, on August 18, 2017, Valder moved to

1 Plaintiffs filed the original complaint in this action on May 25, 2017. (ECF No. I.) After defendants requested a
pre-motion conference in anticipation of moving to dismiss the complaint, and the Court set a briefing schedule,
plaintiffs moved to amend the complaint. (ECF Nos. 11-13.) Plaintiffs then filed an amended complaint on July 7,
2017, before defendants had submitted any opposition to the motion to amend or the Court had acted on the motion.
(ECF No. 18.) On July 18, 2017, the Court granted plaintiffs' motion to amend nunc pro tune. (ECF No. 21.)
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As Magistrate Judge Tomlinson correctly noted, although the complaint fails to invoke 18 U.S.C. § 1983, that statute
provides the authority to bring these claims against the Village. The Court, like Magistrate Judge Tomlinson, will
therefore review the complaint and R&R as though plaintiffs had invoked Section 1983.

dismiss the complaint as well. (ECF No. 23.) On October 18, 2017, the Court referred the motions
to the Magistrate Judge Tomlinson. (ECF No. 28.)
Presently before the Court is a Report and Recommendation ("R&R") from Magistrate
Judge Tomlinson advising the Court to dismiss the complaint. (ECF No. 30.) For the reasons
explained below, after a de novo review, the Court adopts the thorough and well-reasoned R&R in
its entirety. However, the Court will grant plaintiffs leave to amend the complaint.

I. Standard of Review
A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.

See Deluca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI
Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). When "a party submits a timely objection

to a report and recommendation, the district judge will review the parts of the report and
recommendation to which the party objected under a de novo standard of review." Jeffries v.
Verizon, 10-CV-2686 (JFB) (AKT), 2012 WL 4344188, at *1 (E.D.N.Y: Sept. 21, 2012); see also

28 U.S.C. § 636(b)(l)(C) ("A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with

instru~tions.").

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II. Analysis
Having reviewed the full record and the applicable law, and having reviewed the R&R de

novo, the Court adopts the thorough and well-reasoned R&R in its entirety. As an initial matter,
Magistrate Judge Tomlinson properly disregarded the materials attached to plaintiffs' oppositions
to defendants' motions to dismiss, (R&R 10), and the Court likewise declines to consider those
materials. To the extent those materials contain facts pertinent to successfully alleging claims
against defendants, plaintiffs should incorporate those facts in their second amended complaint. 3

A. The Claims against the Village
As a threshold matter, Magistrate Judge Tomlinson correctly explained that, in order to
state aclaim against the Village, a municipal corporation, plaintiffs must allege (1) the existence
of a municipal policy, practice, or custom (2) that caused the deprivation of their constitutional
rights. (R&R 14-15.) Magistrate Judge Tomlinson concluded that plaintiffs have failed to allege
either element. (R&R 16-20.) Plaintiffs object, and point to their allegations that "[t]he three main
movers (Judge Brantley, Village Attorney DiSalvo, and Special Prosecutor Feinberg) of the
Village of Hempstead have collaborated in what is stated in the Plaintiff's complaint." (Pis.' Obj.
8.)

However, as correctly explained by Magistrate Judge Tomlinson, (R&R 16-20), such

conclusory allegations are insufficient for this Court to conclude that it is plausible that a municipal
policy, practice, or custom existed. Further, plaintiffs' objections fail to point to any factual
allegations to support a plausible claim that the Village deprived them of their constitutional rights.
Accordingly, the Court concludes that plaintiffs have failed to plausibly allege that the Village had

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Magistrate Judge Tomlinson also conducted a thorough analysis as to whether Younger abstention is appropriate
here, and concluded that, because "the Court cannot determine with certainty from the Amended Complaint or motion
papers whether an enforcement action remains pending against Plaintiffs in the Village Court" and because abstention
is a "narrow exception to the generally broad duty on the part of federal courts to exercise jurisdiction," abstention
was not warranted. (R&R 10-14.) The Court agrees.

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a policy, practice, or custom that resulted in the deprivation of their constitutional rights, and
dismisses the claims against the Village on that ground.
Magistrate Judge Tomlinson also determined that plaintiffs' claims suffer from additional
pleading deficiencies. With respect to the malicious prosecution and abuse of process claims,
Magistrate Judge Tomlinson concluded that the complaint failed to allege a lack of probable cause
(for the malicious prosecution claim) or an excuse or justification (for the abuse of process claim).
(R&R 20-21.) In objecting, plaintiffs point to an allegation that states, "Without probable cause we were subjected to years of harassment by the Court." (Pis.' Obj. 11.) However, simply
including the phrase "without probable cause" is insufficient, and plaintiffs cannot point to any
factual allegations to support a plausible claim that there was a lack of probable cause or a lack of
an excuse or justification. With respect to the malicious prosecution claim, Magistrate Judge
Tomlinson further concluded that the complaint does not allege that the prosecution ended
favorably to plaintiffs. In response, plaintiffs point to allegations that the charges against them
were dismissed in April 2014. (Pis.' Obj. 10.) However, as plaintiffs point out in their objections
(id), the complaint also includes allegations that a trial on the charges against them "took place

and ended on April 11, 2016 and as of today no decision has been received." Accordingly, the
Court agrees with Magistrate Judge Tomlinson that the complaint fails to plausibly allege that the
prosecution against plaintiffs ended favorably to plaintiffs.
With respect to plaintiffs' claims for double jeopardy violations, Magistrate Judge
Tomlinson concluded that plaintiffs "have failed to plead facts that plausibly support the theory
that they have been either acquitted or convicted of criminal charges in ·the Village Court, that they
have been

prose~uted

a second time following any conviction or acquittal, or that they have

suffered multiple punishments for the same offense:" (R&R 22-23.) The Court agrees. Plaintiffs'

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objections again fail to point to any factual allegations in the complaint that ·sufficiently allege
double jeopardy violations.
As for the. conspiracy claim against the Village, Magistrate Judge Tomlinson concluded
that the claim should be dismissed because the supporting allegations are "entirely speculative and
conclusory." (R&R 25.) The Court again agrees. Plaintiffs have failed to plausibly allege that
there was any agreement between the Village and a private party to act in concert to inflict
constitutional injury on plaintiffs. In their objections, plaintiffs point to the exact allegations that
Magistrate Judge Tomlinson correctly found insufficient to establish a Section 1983 conspiracy
claim. Accordingly, the conspiracy claim against the Village is dismissed.
Plaintiffs also appear to assert violations of their substantive due process rights. Magistrate
Judge Tomlinson concluded that plaintiffs have failed to state a claim for substantive due pr~cess
violations because the allegations, even taken as true, do not allege conduct that shocks the
conscience. The Court agrees. Plaintiffs' objections are purely rhetorical, and fail to point to any
allegations in the complaint. Accordingly, the Court dismisses the claims asserting violations of
plaintiffs' substantive due process rights.
Finally, Magistrate Judge Tomlinson recommends that, to the extent plaintiffs assert state
law claims against the Village, those claims should be dismissed for failure to serve a notice of
claim. Plaintiffs' objections simply state that "Judge Tomlinson is wrong about Plaintiffs['] failure
to file a Notice of Claim," but fail to establish that plaintiffs in fact served a notice of claim on the
Village. Accordingly, to the extent plaintiffs attempt to allege state law claims against defendants,
those claims are dismissed for failure to serve a notice of claim.

B. Claims against Valder
As noted above, plaintiffs appear to assert claims for conspiracy and fraud against Valder.
With respect to the conspiracy claim, Magistrate Judge Tomlinson correctly concluded that

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plaintiffs have failed to allege that Valder conspired with the Village to inflict constitutional
injuries on the plaintiffs. (R&R 27-28.) The Court agrees. In objecting, plaintiffs reassert
arguments considered and correctly rejected by Magistrate Judge Tomlinson. In any event, the
allegations upon which plaintiffs rely-for example, that Valder was the only stenographer
assigned to their case (Pis.' Obj. 19-20)-fail to plausibly allege that Valder conspired with the
Village to deprive plaintiffs of constitutional rights. Accordingly, the Court dismisses plaintiffs'
conspiracy claim against Valder.
Finally, Magistrate Judge Tomlinson concluded that "[p]laintiffs have failed to allege facts
sufficient to plausibly show any of the elements of common law fraud." (R&R 28-29.) The Court
agrees. Plaintiffs' objections to ~his conclusion are largely irrelevant, and fail to point to any
allegations supporting a claim for fraud against Valder. (Pis.' Obj. 20.) Accordingly, the Court
dismisses the claim for fraud against Valder.
III. Leave to Amend
Although plaintiffs have not requested leave to amend, the Court has considered whether
plaintiffs should be given an opportunity to re-plead. Under Rule l 5(a) of the Federal Rules of
Civil Procedure, the "court should freely give leave [to amend] when justice so requires." ·Fed. R.
Civ. P. 15(a). The Second Circuit has emphasized that district courts should not dismiss prose
complaints "without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." E.g., Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). In light of
plaintiffs' pro se status, and because the Court is unable to determine at this juncture that

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amendment would necessarily be futile, the Court grants plaintiffs leave to amend. 4

IV. Conclusion
For the foregoing reasons and the reasons set forth in the R&R, IT IS HEREBY ORDERED
that the Court adopts the thorough and well-reasoned R&R in its entirety. Accordingly, the first
amended complaint is dismissed. The Court grants plaintiffs leave to submit a second amended
complaint, which must be filed within 45 days from the date of this Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

t~at

any appeal from this Order

would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

-

S<
HF. ANCO
ED STATES DISTRICT JUDGE
Dated:

March 22, 2018
Central Islip, NY

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Although plaintiffs have already amended the complaint, the first amended complaint was filed prior to any decision
by the Court identifying the pleading defects. Thus, in its discretion, the Court concludes that, now having notice of
the pleading defects from the Court, plaintiffs should be given one more opportunity to address the defects.

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