Homere et al v. Incorporated Village of Hempstead et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS - In light of the foregoing, the Court adopts the analysis and recommendations contained in the well-reasoned and thorough R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that defendants' motion s to dismiss (Dkt. Nos. 43 46 ) are granted, and the claims are dismissed with prejudice. IT IS FURTHER ORDERED that plaintiffs' motion to amend, (Dkt. No. 55 ) is denied. SO Ordered by Judge Joseph F. Bianco on 3/28/2019. (Tirado, Chelsea)

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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LONG ISLAND OFFICE

MAR 28 2019

DARLENE F. HOMERE and
GERALD JEAN-BAPTISTE,
Plaintiffs,

ORDER
-against-

l 7-CV-3173 (JFB) (AKT)

INCORPORATED VILLAGE OF HEMPSTEAD,
STEPHANIE VALDER, and MR. LEVY,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On May 25, 2017,pro se plaintiffs Darlene F. Homere and Gerald Jean-Baptiste
(collectively "plaintiffs"), filed the complaint in this action against defendants Incorporated
Village of Hempstead ("the Village"), Stephanie Valder ("Valder") and Mr. Levy (collectively
"defendants"). (Compl., Dkt. No. 1.) Plaintiffs filed an amended complaint on July 7, 2017.
(Dkt. No. 18.) On March 22, 2018, this Court adopted Magistrate Judge Tomlinson's report and
recommendation, dismissing the first amended complaint. (Dkt. No. 38.) On May 18, 2018,
plaintiffs filed their second amended complaint ("SAC"), alleging that the defendants perpetrated
a plot to deprive them of residential property. (Dkt. No. 42.) The Village moved to dismiss the
SAC on June 4, 2018. (Dkt. No. 43.) On July 6, 2018, Valder moved to dismiss the SAC. (Dkt.
No. 46.) By Order dated October 10, 2018, the Court referred defendants' motions to
Magistrate Judge Tomlinson for a report and recommendation. (Dkt. No. 54.) On November 16,
2018, plaintiffs filed a motion to amend, requesting to add Jeffrey Falk as a defendant. (Dkt. No.

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55.) This motion was also referred to Magistrate Judge Tomlinson for a report and
recommendation on November 20, 2018. (Dkt No. 56.)
On March 4, 2019, Magistrate Judge Tomlinson issued a Report and Recommendation
(the "R&R"). (Dkt. No. 59.) The R&R recommended that the Court grant defendants' motion to
dismiss, and that plaintiffs SAC be dismissed with prejudice, and plaintiffs motion to further
amend be denied. (Id. at 3.) On March 19, 2019, plaintiffs filed a motion for extension of time
to file objections to the R&R. (Dkt. No. 61.) The Court partially granted this motion, extending
the time to object to March 28, 2019. (Dkt. No. 62.) Plaintiffs filed their objections to the R&R
on March 26, 2019. (Dkt. No. 63.) The Court has fully considered the parties' submissions. For
the reasons set forth below, the Court adopts the well-reasoned and thorough R&R in its entirety.
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 *l (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

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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 instructions.").
Plaintiff's Objections

Plaintiffs objected to the R&R primarily on two grounds: (1) Judge Tomlinson did not
analyze the prose plaintiffs' claims under a sufficiently liberal standard for a prose litigant
(Obj. at 2); and (2) the R&R erred because the allegations in the SAC are factually sufficient (id.
at 6-7). Plaintiffs also object to the R&R's recommendation that the motion to amend be
denied. Specifically, plaintiffs assert that the SAC is sufficient to support their claims against
defendant Falk. (Id. at 8.)
Analysis

Having conducted a review of the full record and the applicable law, and having
conducted a de novo review of the entire R&R, the Court adopts the analysis and
recommendations contained in the R&R in their entirety.
In particular, the Court finds that the R&R applied the proper legal standard to plaintiffs'
claims against the Village. First, the Court agrees with the R&R that, construing the allegations
to raise the strongest arguments that they suggest, the plaintiffs have failed to plead sufficient
facts to plausible assert municipal liability against the Village under Section 1983. (R&R at 24.)
Although plaintiffs alleged a broad scheme, they failed to allege that any of the conduct was part
of an "officially endorsed policy or practice of the Village." (Id. at 24.) Moreover, the Court
agrees with the R&R's finding that the allegations "remain inherently conclusory and speculative
in nature." (Id. at 26.)

Second, the Court finds that the R&R applied the proper legal standard

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to the underlying causes of action (i.e., after construing plaintiffs' claims to be for: (1) malicious
prosecution; (2) malicious abuse of process; (3) violations of double jeopardy; (4) violations of
substantive due process; (5) conspiracy; and (6) fraud.) Moreover, analyzing the claims under
the applicable standard, the Court agrees that plaintiffs have not "allege[d] facts sufficient to
plead [these] underlying causes of action. (Id. at 28.) For example, the malicious prosecution
and malicious abuse of process claims fail because plaintiffs were, in fact, "found liable for
building code violations" (id. at 30), 1 and the SAC fails to plausibly allege the second and third
elements of an abuse of process claim (i.e., (ii) an intent to do harm without excuse of
justification; and (iii) in order to obtain a collateral objective that is outside the legitimate ends of
the process.) (Id. at 31.) The fact that multiple building code violations existed undercuts the
"plausibility of a motivation completely collateral to enforcement of the building code." (Id. at
32) (citing Hoffman v. Town ofSouthhampton, 893 F. Supp. 2d 438,448 (E.D.N.Y. 2012) aff'd
sub nom. Peter L. Hoffman, Lotte, LLC v. Town ofSouthampton, 523 Fed. App'x 770 (2d Cir.

2013)). As to the Double Jeopardy claim, the R&R correctly notes that, with a single reference
to "double jeopardy" and the fact that the Double Jeopardy Clause protects only against the
imposition of multiple criminal punishments for the same offense, plaintiffs failed to plead
sufficient facts to plausibly allege such a claim. (R&R at 32.) Regarding the substantive due
process claim, the Court agrees with the R&R that plaintiffs do not allege facts "so outrageous,
so egregious that it may fairly be said to shock the contemporary conscience." Lombardi v.
Whitman, 485 F.3d 73, 81 (2d Cir. 2007); (R&R at 34). With the conspiracy claim, the Court

agrees with the R&R that plaintiffs' allegations, again, are "entirely speculative and conclusory"

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The Court notes that this is in reference to plaintiffs' claimed "second round" of prosecution and also agrees with
the R&R that a claim of malicious prosecution for the "first round" of prosecution fails as the factual allegations are
beyond the statute oflimitations. (R&R at 31.)

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- including a critical lack of detail regarding time and place. (Id. at 35.) Finally, as to the
remaining state law claim for fraud, the Court agrees with the R&R that plaintiffs' claim must
fail due to the fact that they did not file a compliant notice of claim with the Village under N. Y.
Gen. Mun. Law. §§ 50--e and 50-i. (Id. at 40.)
Turning to the claims against Valder and Mr. Levy, the Court also agrees with R&R that
such claims are "conclusory and speculative" and, as such, plaintiffs fail to allege facts specific
enough to survive dismissal. (Id. at 42, 44-45.)
In short, after a de novo review of the entire R&R, the Court concludes that Magistrate
Judge Tomlinson correctly found that plaintiffs' current allegations do not state plausible claims,
and must be dismissed.
Finally, the Court concludes that the R&R applied the proper legal standard to plaintiffs'
motion to amend to add an additional defendant, and the Court agrees that plaintiffs' proposed
amendment would be futile because adding Jeffrey Falk as a defendant would not cure the
underlying speculative and conclusory nature of the complaint. (Id. at 48.) Moreover, the
"absence of any allegations" relating to Jeffery Falk further support a finding of futility. (Id.) In
addition, with respect to the other defects identified by the R&R as to the current claims,
plaintiffs have been afforded multiple opportunities to plead their claims and have failed to
satisfy the most basic pleading requirements. Accordingly, in its discretion, the Court concludes
that granting leave to amend the current claims also would be futile.
In reaching these conclusions, the Court has fully considered plaintiffs objections and
determines that they do not point to any defects in the analysis or recommendations of the R&R.
Specifically, plaintiffs merely restate the conclusory and generalized arguments made in their
SAC. For example, plaintiffs state that "Judge Tomlinson erred in concluding that 'it is not

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plausible that the Village conspired with third parties to prosecute [p]laintiffs for manufactured
violations of the Building Code"' because "[w]hen in fact this is what occurred." (Obj. at 7.)
Large portions of plaintiffs' objections are merely repeating portions of the SAC to support the
argument that they "have provided evidence" to "satisfy the prerequisites." (Obj. at 3-5.)2
Critically, plaintiffs do not persuasively identify any defects of Magistrate Judge Tomlinson's
legal analysis or application. Although plaintiffs state that all the statements in the SAC are
"based on logic, common sense and the documentary evidence" (id. at 9), plaintiffs provide no
additional specific allegations to support their claims. The Court is unable to construe the
objections in any way that undermines the well-reasoned and thorough analysis of the R&R.
These arguments, which merely recharacterize the allegations in the SAC, were thoroughly and
correctly reviewed by Magistrate Judge Tomlinson. As a result, the Court agrees with the R&R
and dismisses plaintiffs claims with prejudice. 3
In light of the foregoing, the Court adopts the analysis and recommendations contained in
the well-reasoned and thorough R&R in their entirety. Accordingly,

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See also Obj. at 10 ("The next three pages are inserted from the SAC.")
The Court also notes that Magistrate Judge Tomlinson went to significant lengths to read plaintiffs' pleadings as
liberally as possible due to their prose status. (See R&R at 4.) Magistrate Judge Tomlinson additionally analyzed
plaintiffs' factual allegations in order to determine what particular claims plaintiffs were actually asserting. (See e.g.,
id. at 20.)

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IT IS HEREBY ORDERED that defendants' motions to dismiss (Dkt. Nos. 43, 46) are
granted, and the claims are dismissed with prejudice. IT IS FURTHER ORDERED that
plaintiffs' motion to amend (Dkt. No. 55) is denied.

\
s/ Joseph F. Bianco
Jf)SEPtt'F. BIANCO
--{/mITED STATES DISTRICT JUDGE
Dated:

March 28, 2019
Central Islip, NY

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