Pflaum v. Town of Stuyvesant et al
DECISION AND ORDER granting # 59 Defendants' Motion for Summary Judgment. Signed by Chief Judge Glenn T. Suddaby on 3/2/16. (lmw)(Copy served upon pro se plaintiff via regular and certified mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILLIAM PFLAUM, Individually and as a
Citizen, Resident and Taxpayer of Town of
TOWN OF STUYVESANT, Columbia Cty.,
N.Y.; and VALERIE BERTRAM, Individually
and as Supervisor of Town of Stuyvesant,
Plaintiff, Pro Se1
3 Rybka Road
Stuyvesant Falls, NY 12174
BURKE, SCOLAMIERO, MORTATI &
Attorneys for Defendants
9 Washington Square, Suite 201
P.O. Box 15085
Albany, NY 12212-5085
BRYAN D. RICHMOND, ESQ.
THOMAS J. MORTATI, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by William Pflaum (“Plaintiff”)
against the Town of Stuyvesant (“Town”) and Valerie Bertram, Town Supervisor (“Bertram”)
(collectively, “Defendants”), is Defendants’ motion for summary judgment pursuant to Fed. R.
Civ. P. 56. (Dkt. No. 59.) For the reasons set forth below, Defendants’ motion is granted.
Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel
when preparing his response to Defendant’s motion for summary judgment. Accordingly, no need exists
to construe Plaintiff’s response with the special solicitude ordinarily afforded to pro se litigants.
As a result of the Court’s prior decisions (Dkt. Nos. 17, 26), Plaintiff’s sole remaining
claim in this action is his First Amendment retaliation claim. More specifically, as articulated in
his Complaint (which was drafted by Plaintiff, pro se, and therefore must be construed with
special solicitude), that claim alleges three separate ways he was retaliated against for publicly
criticizing Town officials.2 First, Plaintiff alleges that, in retaliation for filing charges of ethical
violations against Defendant Bertram, she (a) “collaborated with and supported” the Town’s Fire
Chief to deny and/or threaten to deny fire protection to Plaintiff, (b) “supported and encouraged”
various Town employees to “illegal[ly] revo[ke] . . . Plaintiff’s permit to operate his business,”
and (c) “supported and encouraged” the Town Assessor’s “campaign to intimidate Plaintiff by
linking [his] political speech [with his] real estate assessment.” (Dkt. No. 1, ¶¶ 20-23, 116 [Pl.’s
Second, Plaintiff alleges that, in retaliation for writing columns on his Internet blog
regarding corruption among the Town’s public officials, the Town filed false criminal charges
against him. (Id., ¶ 116.)
Third, and finally, Plaintiff alleges that, in retaliation for criticizing Bertram, the Town
Assessor, and the Town, the Town Assessor used his authority to raise taxes in order to
intimidate Plaintiff into silence. (Id., ¶¶ 23, 39, 47, 116.)
The Court notes that, while it did not previously (i.e., in its prior decisions) liberally
construe Plaintiff’s retaliation claim as arising under three separate theories, it does so now. The Court
further notes that it has the power to address these two additional theories for each of two alternative
reasons: (1) because Defendants moved for dismissal of Plaintiff’s retaliation claim in its entirety,
Plaintiff has had sufficient notice and an opportunity to be heard with respect to the two theories in
question; and (2) in any event, even if Plaintiff cannot be said to have had such notice and an opportunity
to be heard, he filed his Complaint pro se and the Court finds the two theories to be so lacking in arguable
merit as to be frivolous, see Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.
2000) (recognizing that district court has power to sua sponte dismiss pro se complaint based on
frivolousness notwithstanding fact that plaintiff has paid statutory filing fee).
Defendants’ Motion for Summary Judgment
In their motion for summary judgment, Defendants request the dismissal of Plaintiff’s
Complaint in its entirety. (Dkt. No. 59.) In support of their motion, Defendants make the
following four arguments. First, Defendants argue that there was no adverse action against
Plaintiff in that there was no actual chilling of Plaintiff’s First Amendment speech or any other
damages. (Dkt. No. 61, at 3-8 [Defs.’ Mem. of Law].)
Second, Defendants argue that, in any event, any such adverse action was not motivated
or substantially caused by Plaintiff’s First Amendment speech. (Id. at 5-6.)
Third, in the alternative, Defendants argue that Bertram was not personally involved in
any deprivation of fire protection services to Plaintiff. (Id. at 5, 8-10.)
Fourth, and finally, Defendants argue that Bertram is entitled to qualified immunity. (Id.)
Plaintiff’s Opposition Memorandum of Law
Generally construed, Plaintiff makes five arguments in opposition to Defendants’ motion.
First, Plaintiff argues that he engaged in protected speech by creating an Internet blog on which
he publicly criticized Town officials and exposed their illegal activities. (Dkt. No. 65, at 3 [Pl.’s
Opp’n Mem. of Law].)
Second, Plaintiff argues that Town officials took adverse action against him by issuing
noise violations against him with respect to loud dog barking on his property, retaining special
prosecutors to pursue civil suits and criminal charges against him, encouraging harassment and
extra-judicial threats against him, and treating him differently from other residents. (Id. at 4-5.)
As a result, Plaintiff argues that he suffered a chilling effect on his blogging as well as monetary
damages due to the expense required to oppose the Town’s retaliatory activities. (Id. at 6-8.)
Third, Plaintiff argues that the timing of these adverse actions, i.e., that they began after
he created his blog, establishes the causal connection between his protected speech and the
adverse actions. (Id. at 5.)
Fourth, Plaintiff argues that Bertram is not entitled to qualified immunity because it was
not objectively reasonable to believe that her actions did not violate Plaintiff’s First Amendment
rights. (Id. at 5-6.) According to Plaintiff, these actions consisted of (1) threatening to fire the
Town’s Dog Control Officer if he did not serve Plaintiff with a criminal charge related to dog
barking, and (2) retaining special prosecutors to pursue this charge against Plaintiff without first
obtaining the Town’s approval. (Id. at 9.)
Fifth, Plaintiff argues that municipal liability extends to the Town because of the actions
of Bertram, the Town’s supervisor, and her position as a policymaker. (Id. at 8-9.)
Finally, the Court notes that Plaintiff spends considerable time in his opposition papers
arguing the merits of issues not raised by Defendants in their motion. For example, Plaintiff
discusses the Town’s denial of his FOIL requests, the Town’s failure to respond appropriately to
alleged vandalism of his property, and the sufficiency of the evidence that led to the issuance of
noise violations related to dog barking. (See generally id., at 3-4, 6-9; Dkt. No. 67, ¶¶ 4, 14, 25,
27, 36, 56-107 [Pl.’s Decl.].)
Defendants’ Reply Memorandum of Law
In reply to Plaintiff’s opposition memorandum of law, Defendants make two arguments.
First, Defendants argue that, because Plaintiff has not complied with Local Rule 7.1(a)(3) in his
response to their statement of material facts, their statement of material facts should be deemed
admitted. (Dkt. No. 74, at 2-6 [Defs.’ Reply Mem. of Law].)
Second, Defendants argue that the record is devoid of any admissible evidence that
Bertram was personally involved in an alleged deprivation of fire protection services with regard
to Plaintiff’s residence. (Id. at 6-7.) Furthermore, Defendants argue that Plaintiff cannot
demonstrate that any adverse action was taken because he was never actually deprived of fire
protection services and his subjective belief that the fire department may not respond to a fire at
his residence is insufficient to create a genuine dispute of fact. (Id. at 7-8.)
Statement of Material Facts
Plaintiff’s Failure to Comply with N.D.N.Y. Local Rule 7.1
Before reciting the material facts of this case, the Court must address Plaintiff’s response
to Defendant’s Rule 7.1 Statement of Material Facts. Local Rule 7.1(a)(3) of the Local Rules of
Practice for this Court requires a party moving for summary judgment to submit a statement of
material facts supported by specific citations to the record where those facts are established.
N.D.N.Y. L.R. 7.1(a)(3). The non-moving party’s subsequent response must mirror the moving
party’s statement of material facts by (1) admitting and/or denying each of the moving party’s
factual assertions in matching numbered paragraphs and (2) supporting any denials with specific
citations to the record where the factual issues arise. Id. Importantly, “[t]he Court shall deem
admitted any properly supported facts set forth in the [moving party’s] Statement of Material
Facts that the [non-moving] party does not specifically controvert.” Id.
This Court’s “Local Rule requirements are not empty formalities.” Bombard v. Gen.
Motors Corp., 238 F. Supp. 2d 464, 467 (N.D.N.Y. 2002) (Munson, J.) (stating that “[t]he courts
of the Northern District have adhered to a strict application of Local Rule 7.1[a]’s
requirement on summary judgment motions”); accord, Cross v. Potter, 09-CV-1293, 2013 WL
1149525, at *3 (N.D.N.Y. Mar. 19, 2013) (McAvoy, J.). Indeed, the underlying purpose of this
rule “is to assist the court in framing the issues and determining whether there exist any triable
issues of fact that would preclude the entry of summary judgment.” Youngblood v. Glasser, 10CV-1430, 2012 WL 4051846, at *4 (N.D.N.Y. Aug. 22, 2012) (Peebles, M.J.); see also N.Y.
Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir.
2005) (noting that “Rules governing summary judgment practice are essential tools for district
courts, permitting them to efficiently decide summary judgment motions by relieving them of the
onerous task of ‘hunt[ing] through voluminous records without guidance from the parties’”)
(quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 74 [2d Cir. 2001]).
In the present case, Plaintiff has failed to respond appropriately to Defendants’ Rule 7.1
Statement of Material Facts. Specifically, Plaintiff has failed to admit and/or deny each of
Defendants’ factual assertions in matching numbered paragraphs. Indeed, Defendants’ Rule 7.1
Statement contains 71 paragraphs of factual assertions, while Plaintiff’s 7.1 Response contains
only 11 paragraphs. (Compare Dkt. No. 62 [Defs.’ Rule 7.1 Statement] with Dkt. No. 66 [Pl.’s
Rule 7.1 Response].) Moreover, many of Plaintiff’s responses are conclusory in nature and/or
contain legal arguments. The Court notes that, when he responded to Defendants’ motion,
Plaintiff was represented by counsel. Accordingly, the Court will accept the factual assertions in
Defendants’ 7.1 Statement as true to the extent that the evidence in the record supports these
facts. See Davis v. Cumberland Farms, Inc., 10-CV-0480, 2013 WL 375477, at *4 (N.D.N.Y.
Jan. 29, 2013) (Scullin, J.) (accepting the defendant’s statement of material facts as true where
plaintiff neither admitted nor denied defendant’s factual assertions); Aktas v. JMC Dev. Co., Inc.,
877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D’Agostino, J.) (accepting the third-party defendants’
statement of material facts as true because the defendant/third-party plaintiff failed to respond to
it in accordance with Local Rule 7.1[a]).
Undisputed Material Facts
For purposes of this motion, the undisputed material facts are as follows. Gerald Ennis
has served as the Zoning Enforcement Officer for the Town of Stuyvesant continuously since
2003. (Dkt. No. 62, ¶ 43 [Defs.’ Rule 7.1 Statement].) In this capacity, Mr. Ennis issued
Plaintiff a Class 2 Home Occupation Permit in August, 2009. (Id., ¶ 44.) Under this permit,
“[n]o unusual appearances, noise, vibration, smoke, dust, odors, heat, glare or electrical
disturbances that exceed those normally produced by a resident shall be permitted.” (Id., ¶ 45.)
Following the issuance of this permit, Mr. Ennis received numerous noise complaints from
Plaintiff’s neighbors in regard to increasingly loud barking from dogs on Plaintiff’s property.
(Id., ¶¶ 46-47.) Following an investigation into these complaints, Mr. Ennis concluded that
Plaintiff’s “home dog kennel which housed up to 50 dogs at a time was producing noise levels
that exceeded those normally produced by a resident and, accordingly, [Plaintiff] was in
violation of his Permit.” (Id., ¶ 48.)
On December 7, 2009, Mr. Ennis issued Plaintiff a notice of violation, which informed
Plaintiff that the Town had received several complaints about the noise coming from his property
and directed Plaintiff to remedy the violation by December 23, 2009. (Id., ¶ 49.) Subsequently,
Plaintiff contacted Mr. Ennis and requested that his phone number be given to those who had
complained with instructions that they contact Plaintiff directly when there are noise issues so he
can rectify any problems. (Id., ¶ 50.) However, after a few months had passed, Plaintiff stopped
answering his neighbors’ phone calls; and, as a result, his neighbors made new complaints to Mr.
Ennis. (Id., ¶ 51.) After receiving these complaints and personally observing the loud noise
emanating from Plaintiff’s property, Mr. Ennis issued a second notice of violation to Plaintiff on
April 26, 2010. (Id., ¶¶ 52-53.) In response, Plaintiff advised Mr. Ennis that he would erect a
sound barrier to remedy the issue. (Id., ¶ 54.)
According to Mr. Ennis, he waited “some time” for Plaintiff to erect, or apply for a
permit to construct, a sound barrier but neither action was taken. (Id., ¶¶ 55-56.) After
continuing to receive noise complaints, Mr. Ennis issued a third notice of violation to Plaintiff on
August 9, 2010. (Id., ¶ 56.) On the same day, Mr. Ennis met with Bertram and the Town
Attorney to discuss the noise issue on Plaintiff’s property. (Id., ¶ 57.) The Town Attorney
advised Bertram that Mr. Ennis had the authority to revoke Plaintiff’s home occupation permit if
he determined that Plaintiff was in violation of the permit’s conditions. (Id., ¶ 37.) As a result,
Bertram advised Mr. Ennis that he may revoke Plaintiff’s permit if he determined that the
permit’s conditions had been violated. (Id., ¶ 38.) Later that same day (August 9, 2010), Mr.
Ennis made the decision to revoke Plaintiff’s permit and notified Plaintiff of that fact. (Id., ¶¶
39, 59.) Neither Plaintiff’s statements concerning various issues in the Town nor his postings on
various Internet sites had any bearing on the decision to revoke Plaintiff’s permit. (Id., ¶¶ 40,
Plaintiff testified at his deposition that the basis for his claim that he was deprived of fire
protection services is that, “in 2011, or perhaps late 2010,” a local fire department chief, Steve
Montie, posted an online statement that Plaintiff should move out of town. (Id., ¶ 14.) Plaintiff
testified that the post was made in response to one of his earlier posts on a local town Internet
forum; in Plaintiff’s post, he had complained of alleged ethical violations committed by Bertram.
(Id., ¶¶ 15-16.) The alleged post by Mr. Montie states in its entirety as follows:
How much more of this are you going to do ? ? ? ? You are
wasting more tax payer dollars than its worth. Man up correct
your problems and move on, or better yet move out.
(Id., ¶ 19.) The author of this post is not identified by name but only by the email address
firstname.lastname@example.org; and, as indicated above, the post is signed only as “S.” (Id., ¶ 18.)
Plaintiff testified that the statements in the alleged post amounted to a threatened denial
of fire department services because “the fire chief told me I should move out of town, which
makes me wonder if there was a fire at my house would he come.” (Id., ¶ 20.) However,
Plaintiff testified that no one has ever told him that the fire department would not respond if
there was a fire at his house. (Id., ¶ 22.) In addition, Plaintiff testified that there are two distinct
fire departments in the Town, Stuyvesant Company 1 and Stuyvesant Company 2, which divide
their responses to emergency calls in the Town geographically. (Id., ¶ 23.) Steve Montie is the
Chief of Stuyvesant Company 1 and a different chief controls Company 2. (Id., ¶ 25.) Plaintiff’s
property is located in the geographic area covered by Company 2. (Id., ¶ 24.) According to
Bertram, she did not “in any way direct any fire department to deprive or threaten to deprive
[Plaintiff] of fire services.” (Id., ¶ 33.)
Finally, Plaintiff testified that there was “never” a time that he did not publicize or speak
out against some issues based upon any actions by the Town and the alleged efforts to silence
him did not work. (Id., ¶ 26.) In fact, following the alleged actions by the Town, Plaintiff did
more blogging and increased his “political activities against the Town.” (Id., ¶ 27.) With
respect to his business, Plaintiff testified that, despite losing his business permit in August, 2010,
he continued to operate his business uninterrupted without a permit as he had before it was
issued in 2009. (Id., ¶ 29.) Accordingly, there was no interruption to Plaintiff’s business as a
result of his home business permit being revoked. (Id., ¶¶ 28, 30.)
STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). As a result, “[c]onclusory allegations, conjecture and
speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d
396, 400 (2d Cir. 1998) (citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the Supreme
Court has famously explained, “[the non-moving party] must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). As for the materiality requirement, a dispute
of fact is “material” if it “might affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248. “Factual disputes that are irrelevant or unnecessary will not be
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movign party. Anderson, 477 U.S. at
255. In addition, “[the moving party] bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of the . . . [record] which it
believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett,
477 U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c), (e). However, when the moving
party has met this initial burden of establishing the absence of any genuine issue of material fact,
the nonmoving party must come forward with specific facts showing a genuine dispute of
material fact for trial. Fed. R. Civ. P. 56(c), (e). Where the non-movant fails to deny the factual
assertions contained in the movant’s Rule 7.1 Statement of Material Facts in matching numbered
paragraphs supported by a citation to admissible record evidence (as required by Local Rule
7.1[a] of the Court’s Local Rules of Practice), the court may not rely solely on the movant’s
Rule 7.1 Statement; rather, the court must be satisfied that the citations to evidence in the record
support the movant’s assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143, n.5 (2d Cir.
2003) (holding that not verifying in the record the assertions in the motion for summary
judgment “would derogate the truth-finding functions of the judicial process by substituting
convenience for facts”).
Whether Plaintiff Suffered an Adverse Action
After carefully considering the matter, the Court answers this question in the negative for
the reasons set forth in Defendants’ memorandum of law and reply memorandum of law. (Dkt.
No. 61, at 3-8 [Defs.’ Mem. of Law]; Dkt. No. 74, at 6-8 [Defs.’ Reply Mem. of Law].) To those
reasons, the Court adds the following two points.
As this Court noted in its prior decisions, in order to state a claim for retaliation under the
First Amendment, “a plaintiff must prove (1) his conduct was protected by the First Amendment,
(2) the defendants’ actions were motivated or substantially caused by the exercise of that right,
and (3) defendants’ actions effectively ‘chilled’ the exercise of plaintiff’s First Amendment
right.” Pflaum, 937 F. Supp. 2d at 303 (citing Dillon v. Morano, 497 F.3d 247, 251 [2d Cir.
2007]). “In cases ‘involving criticism of public officials by private citizens,’ the Second Circuit
has generally ‘impose[d] an actual chill requirement for First Amendment retaliation claims[,]’
i.e., a requirement that the plaintiff allege and ultimately prove an ‘actual chill’ of his First
Amendment rights.” Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 221 (N.D.N.Y. 2012)
(D’Agostino, J.) (quoting Gill v. Pidlypchak, 389 F.3d 379, 381 [2d Cir. 2004]). “To establish
this element, it is not enough for the plaintiff simply to show that he changed his behavior in
some way; he must show that the defendant intended to, and did, prevent or deter him from
exercising his rights under the First Amendment.” Hafez, 894 F. Supp. 2d at 221. “However,
‘where the retaliation is alleged to have caused an injury separate from any chilling effect, such
as a job loss or demotion, an allegation as to a chilling effect is not necessary to state a claim.’”
Id. (quoting Puckett v. City of Glen Cove, 631 F. Supp. 2d 226, 239 [E.D.N.Y. 2009]); see also
Brink v. Muscente, 11-CV-4306, 2013 WL 5366371, at *7 (S.D.N.Y. Sept. 25, 2013) (noting
that, in private citizen cases, “various forms of concrete harm have been substituted for the
‘actual chilling’ requirement”).
First, it is clear from Plaintiff’s deposition testimony that there was no actual chilling of
his protected speech as a result of Defendants’ actions. As discussed above, Plaintiff admitted
that he increased his political activities and continued to publicize his opinions against the Town
in the face of its alleged efforts to silence him. “Where a party can show no change in his
behavior, he has quite plainly shown no chilling of his First Amendment right to free speech.”
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Singer v. Fulton Cty. Sheriff,
63 F.3d 110, 120 (2d Cir. 1995) (finding no chilling effect where, after an arrest, the plaintiff
continued to publish his newspaper through which he criticized the village government); Spear v.
Town of W. Hartford, 954 F.2d 63, 67 (2d Cir. 1992) (finding no chilling effect where, after the
filing of a lawsuit, the plaintiff continued to write criticizing editorials in the same manner as
before the lawsuit).
Second, to the extent that Plaintiff argues that he perceived the online post regarding the
loss of fire protection as a real threat, he is still required to show that his perception was
objectively reasonable, i.e., “that the defendant[s’] actions had some actual, non-speculative
chilling effect.” Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002); see also Laird v.
Tatum, 408 U.S. 1, 13-14 (1972) (holding that “[a]llegations of a subjective ‘chill’ are not an
adequate substitute for a claim of specific present objective harm or a threat of specific future
harm”). Plaintiff’s subjective belief that the online post constituted a real threat, without more, is
insufficient to demonstrate an actual chilling effect on his First Amendment rights. Indeed, as
discussed above in Point I.E.2. of this Decision and Order, Plaintiff admitted that no one had told
him that the fire department would not respond if there was a fire at his house. Moreover, a
different fire chief than the one who allegedly authored the online post is responsible for
responding to fire calls in the location of Plaintiff’s residence.
Whether There Was a Causal Connection Between Plaintiff’s Speech and
Any Adverse Action
After carefully considering the matter, the Court answers this question in the negative for
the reasons set forth below.
To establish the second element of his First Amendment retaliation claim, “plaintiff must
provide specific proof of defendants’ improper motivation with either circumstantial or direct
evidence.” Media All., Inc. v. Mirch, 09-CV-0659, 2011 WL 3328532, at *5 (N.D.N.Y. Aug. 2,
2011) (D’Agostino, J.) (citing Curley, 285 F.3d at 73). “Circumstantial evidence includes close
temporal proximity between plaintiff’s speech and the alleged retaliatory act.” Mirch, 2011 WL
3328532, at *5.
“Regardless of the presence of retaliatory motive, however, a defendant may be entitled
to summary judgment if he can show dual motivation, i.e., that even without the improper
motivation the alleged retaliatory action would have occurred.” Scott v. Coughlin, 344 F.3d 282,
287-88 (2d Cir. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 ). “Plaintiff has the initial burden of showing that an improper motive played a
substantial part in defendant’s action. The burden then shifts to defendant to show it would have
taken exactly the same action absent the improper motive.” Scott, 344 F.3d at 288.
Revocation of Plaintiff’s Business Permit
In denying Defendants’ underlying motion to dismiss Plaintiff’s First Amendment claim,
this Court held that Plaintiff had sufficiently alleged a concrete harm through the loss of his
business permit, and consequently, the loss of business income, as a result of Defendants’
alleged retaliatory actions. Pflaum, 937 F. Supp. 2d at 308. Having carefully reviewed the
record, the Court finds that Plaintiff has failed to create a genuine dispute of material fact
regarding Defendants’ alleged improper motive. Specifically, with respect to the revocation of
his business permit, the undisputed facts establish that the Town received complaints regarding
the noise emanating from Plaintiff’s property. Plaintiff was given two3 noise violations over the
course of approximately one year and ample opportunity to rectify the problem. (Dkt. No. 67,
Attach. 5.) Because the noise problem and complaints continued, Mr. Ennis revoked Plaintiff’s
permit.4 Even if Plaintiff were able to establish that an improper motive played a part in this
decision, it is clear to the Court that, under these circumstances, the revocation would have still
occurred. Indeed, Plaintiff challenged the decision to revoke his permit in appeals made to the
Town’s Zoning Board of Appeals and in two actions filed in New York State Supreme Court.
(Dkt. No. 67, Attachs. 1 & 2.) Although Plaintiff was successful in his state court actions, those
decisions were based, in part, upon the Town’s failure to follow proper procedure, rather than the
merits of the Town’s decision. (Id.)
Plaintiff has also failed to demonstrate an improper motive with respect to his claim that
he received false criminal charges in retaliation for comments on his website about corruption
among public officials. Plaintiff relies on the temporal proximity of these charges with a
meeting he had with Bertram and his filing of an Article 78 petition in New York State Supreme
As discussed above, Plaintiff was actually given three noise violations. However,
because his permit was revoked on the same day that he received the third violation, the Court will
disregard the third violation for purposes of this analysis.
The Court notes that Plaintiff spends considerable time in his opposition papers disputing
the sufficiency of the evidence and procedures that were followed that led to the issuance of noise
violations. (See generally Dkt. No. 67, ¶¶ 56-95 [Pl.’s Decl.].) However, this Court is not the proper
forum for that dispute. Furthermore, to the extent that the New York Supreme Court observed that there
appeared “to have been a disproportionate amount of time and money spent on [the noise violation]
notice,” and that the records did not “reveal a real issue with dog-barking,” those observations are not
binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.) Setting aside the fact that the observations
constitute dicta, Defendants have submitted admissible record evidence demonstrating that Mr. Ennis
acted upon complaints made to him by residents of the Town, which Plaintiff has failed to properly
Court. More specifically, Plaintiff argues that he began an Internet blog on or about January 1,
2011, and in that blog reported on what he perceived to be the illegal activities of Town officials.
(Dkt. No. 67, ¶ 15 [Pl.’s Decl.].)
For example, on January 1, 2011, Plaintiff wrote about the alleged inflation of billable
time by the Town Attorney that was spent on work paid for by the Town. (Id. at 65:8-11.)
Around the same time, Plaintiff met with Bertram to discuss his discovery of specific instances
of corruption by public officials, including the alleged inflation of billable work by the Town
Attorney. (Dkt. No. 59, Attach. 7, at 62:13-15; 64:9-15 [Pl.’s Dep. Tr.].) On January 15, 2011, a
few days after this meeting occurred, Plaintiff was issued a criminal summons for the offense of
“habitual loud barking,” in violation of N.Y. Local Law § 1. (Id. at 61:19-22; Dkt. No. 68,
Attach. 7 [Criminal Summons]; Dkt. No. 67, ¶ 15 [Pl.’s Decl.].) Plaintiff testified at his
deposition that the Town Attorney went to great lengths to research the Local Law that he was
charged under and assisted one of Plaintiff’s neighbors in drafting an affidavit upon which the
criminal summons was based. (Dkt. No. 59, Attach. 7, at 65:17-21 [Pl.’s Dep. Tr.]; Dkt. No. 67,
¶ 107 [Pl.’s Decl.].) Plaintiff argues that he is the first Town resident to be charged under this
section of the Local Law. (Dkt. No. 67, ¶¶ 100, 106 [Pl.’s Decl.].) Finally, Plaintiff argues that
Bertram retained outside counsel to pursue this charge against him, which was later dismissed.
(Dkt. No. 67, ¶¶ 5, 19, 21 [Pl.’s Decl.]; Dkt. No. 59, Attach. 7, at 57:16-18 [Pl.’s Dep. Tr.].)
Thereafter, in October 2011, Plaintiff filed an Article 78 petition in New York State
Supreme Court challenging the Town’s denial of Plaintiff’s FOIL requests. (Dkt. No. 59,
Attach. 7, at 67:7-12 [Pl.’s Dep. Tr.].) Plaintiff sought disclosure of the information in the FOIL
requests to substantiate his belief that Town officials were engaging in illegal activities. (Dkt.
No. 67, ¶¶ 43-44 [Pl.’s Decl.].) One week after commencing that action, Plaintiff received a
second criminal summons for the same offense related to loud dog barking. (Dkt. No. 68,
Attach. 7 [Appearance Ticket]; Dkt. No. 59, Attach. 7, at 56:16-19; 67:7-12 [Pl.’s Dep. Tr.].)
Plaintiff testified that he had “almost no dogs” on his property in October 2011. (Dkt. No. 59,
Attach. 7, at 67:8-10 [Pl.’s Dep. Tr.].) According to Plaintiff, that charge was neither dismissed
nor withdrawn, but “vanished.” (Id., at 57:19-58:9.)
While Plaintiff’s allegations may plausibly suggest that an improper motive played a role
in the charges brought against him, Defendants have submitted admissible record evidence that
establishes otherwise. (Dkt. No. 59, Attach. 17.) Specifically, the criminal information in
question is signed by one of Plaintiff’s neighbors, Frederick Platt, and states, in part, that “my
complaint is that the dogs at Glencadia Dog Camp exhibit ongoing habitual barking/howling at
any given time of day or night. This has been an issue since the Fall of 2009.” (Id.)
Furthermore, an affidavit filed by Wes Powell, the Town’s Dog Control Officer, states that he
received repeated complaints from Mr. Platt throughout 2010, culminating in the noise complaint
that served as the basis for the criminal charge. (Dkt. No. 59, Attach. 16, ¶¶ 3-5 [Powell Aff.].)
Mr. Powell states that the complaint was written by Mr. Platt in his presence and that no Town
official directed Mr. Powell to serve Plaintiff with the criminal summons. (Id., ¶¶ 7-10.)
Conversely, Plaintiff has not submitted any admissible record evidence supporting his
claim that the Town Attorney (who is not a party) played any role in the charge being filed
against him or that he is the only resident to have ever been charged under this section of the
Local Law. Similarly, Plaintiff’s contention that the Town pressured Mr. Platt to file a
complaint against him (Dkt. No. 67, ¶ 7[Pl.’s Decl.]) is unsubstantiated. While the timing of the
charge may appear suspicious, the Town cannot control when its residents decide to file a
complaint and, in light of the record evidence demonstrating that there was a preexisting noise
problem on Plaintiff’s property, the complaint is unsurprising. Moreover, the fact that Plaintiff
believes the Town shored up its criminal charge against him is of little, if any, materiality.
Finally, because the second charge seemingly “vanished,” no documentation or evidence (other
than the appearance ticket itself) has been submitted with respect to that charge. In any event,
because the charge was never prosecuted, Plaintiff has failed to support his claim that he suffered
any harm. Accordingly, the Court finds that Plaintiff has failed to meet his burden in
demonstrating an improper motive with respect to this charge.
Town Assessor Gleason
Plaintiff claims that Town Assessor Howard Gleason (also not a party) threatened to raise
his property taxes for engaging in political activities when Mr. Gleason hand delivered a letter to
Plaintiff before a public meeting. (Dkt. No. 69, Attach. 18, at 3 [Letter from Pl. to Gleason];
Dkt. No. 67, ¶ 29 [Pl.’s Decl.].) The only evidence submitted with respect to this claim is not the
original letter from Mr. Gleason to Plaintiff but letter correspondence from Plaintiff to Mr.
Gleason. (Dkt. No. 69, Attach. 18, at 3 [Letter from Pl. to Gleason].) Plaintiff’s letter to Mr.
Gleason, dated October 5, 2010, states that Plaintiff interpreted Mr. Gleason’s attempt to speak
with him about tax filings before a town hall meeting as threatening in nature due to the “timing
and manner of the interaction.” (Id.) This is because Plaintiff “had announced [his] intention to
call for a referendum frequently and in many forums prior to appearing for the meeting.” (Id.)
Furthermore, Plaintiff requested that, in order to “avoid the impression that you coordinate your
tax-related activities with other people in government in order to intimidate free speech, please
do not present important information to me in such an information [sic] and unverifiable way.”
However, Mr. Gleason’s response to Plaintiff’s letter suggests that their interaction was
not meant as a threat to raise Plaintiff’s taxes or “was in any way politically motivated.” (Dkt.
No. 69, Attach. 18, at 4 [Letter from Pl. to Gleason].) More specifically, Mr. Gleason explains
that he needed to re-assess Plaintiff’s property in light of the fact that Plaintiff was now running
a kennel (business) on his property and decided to hand deliver his letter knowing that Plaintiff
would be present for the town hall meeting. (Id.) Moreover, Mr. Gleason reassured Plaintiff that
politics do not dictate how he performs his job and promised that all future communication will
be transmitted through mail rather than in-person. (Id.)
Plaintiff has failed to submit any additional evidence with respect to his tax assessment,
that his taxes were improperly raised or that Mr. Gleason acted with a retaliatory animus.5
Similarly, no evidence has been submitted to substantiate Plaintiff’s claim that Bertram
encouraged Mr. Gleason to use his authority as Town Assessor to intimidate Plaintiff. In sum,
Plaintiff has wholly failed to satisfy his burden demonstrating that he suffered harm as a result of
any action taken by Mr. Gleason and that Mr. Gleason acted with an improper motive.
For all of these reasons, the Court finds that Plaintiff has failed to create a genuine
dispute of material fact with respect to his First Amendment claim. Because the Court has
For example, with regard to this lack of additional evidence regarding retaliatory animus,
Plaintiff has failed to adduce admissible record evidence establishing that, even assuming Mr. Gleason
knew of Plaintiff’s intent to engage in protected speech, the so-called “manner of the interaction” by Mr.
Gleason (i.e., the hand delivery of the letter) was in fact unusual for Mr. Gleason given the date of the
letter and the date of the public meeting. Moreover, Plaintiff has failed to adduce admissible record
evidence that the so-called “timing . . . of the interaction” is significant, given his rather constant exercise
of his First Amendment rights during the time in question.
reached this conclusion, it need not, and does not, consider the merits of Defendant Bertram’s
alternative qualified immunity argument.
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 59) is
GRANTED. The Clerk of the Court is directed to enter judgment in favor of the Defendants
and close this case.
Dated: March 2, 2016
Syracuse, New York
Hon. Glenn T. Suddaby
Chief, U.S. District Judge
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