Hafez v. City of Schenectady et al
Filing
24
DECISION AND ORDER granting # 11 Defendants' Motion for judgment on the pleadings. Plaintiff's complaint is dismissed such that Plaintiff's federal claims are dismissed with prejudice and his state law claims are dismissed without pr ejudice to refilling in State Court pursuant to the governing limitation period(s) and any applicability of the doctrine of res judicata. Signed by Chief Judge Glenn T. Suddaby on 3/27/18. (lmw) (Copy served upon Pro Se plaintiff via regular and certified mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
MOHAMED A. HAFEZ,
Plaintiff,
v.
1:17-CV-0219
(GTS/TWD)
CITY OF SCHENECTADY; GARY R. McCARTHY,
in his Individual Capacity; and DOMENIC
VISCARIELLO, in his Individual Capacity,
Defendants.
______________________________________________
APPEARANCES:
OF COUNSEL:
MOHAMED A. HAFEZ
Plaintiff, Pro Se
2101 Chrisler Ave.
Schenectady, NY 12303
LEMIRE, JOHNSON & HIGGINS, LLC
Counsel for Defendants
P.O Box 2485
2534 Route 9
Malta, NY, 12020
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Mohamed A. Hafez
(“Plaintiff”) against the City of Schenectady (“City”), Mayor Gary R. McCarthy, and City
Supervisor Domenic Viscariello (“Defendants”) pursuant to 42 U.S.C. § 1983 and the First,
Fourth, and Fourteenth Amendments of the United States Constitution, is Defendants’ motion for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 11.) For the reasons set
forth below, Defendants’ motion is granted and Plaintiff’s Complaint is dismissed.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Complaint
Generally, liberally construed, Plaintiff’s Complaint asserts six claims. (Dkt. No. 1 [Pl.’s
Compl.].) First, Plaintiff’s Complaint claims that Defendants violated his right to speak freely
and petition the government for the redress of grievances under the First Amendment by taking
adverse action against him (through failing to obtain either warrants or consent to inspect
Plaintiff’s rental units, refusing to conduct inspections, denying Plaintiff rental certificates, and
initiating a criminal proceeding against him for not having a rental certificate for one of his
rental units) in response to his engaging in protected speech (through refusing to give the
Building Inspectors consent to inspect his rental units without a warrant, and filing a lawsuit
challenging code enforcement practices against the City and Defendant Viscariello). (Id. at ¶¶
12-13, 19-20.)
Second, Plaintiff’s Complaint claims that Defendants violated his right to be free from
unreasonable searches and seizures under the Fourth Amendment by requiring him to (1) submit
to a demand for an inspection of the property owner’s “proprietary business records” (including
information about tenants, their rental leases, the property owner’s insurance, the property owner
himself or herself, and the property owner’s business) by the City’s code enforcement office
without an opportunity for pre-compliance judicial review of the demand, and (2) consent to
inspections of his rental units by Building Inspectors without a warrant. (Id. at ¶¶ 5-11, 21-22.)
Third, Plaintiff’s Complaint claims that Defendants violated his right to equal protection
of the laws under the Fourteenth Amendment by granting rental certificates to “similarly situated
landlords that own rental properties of the same type and class code, that have registered, applied
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for rental certificates and paid the same inspection fees . . . and have consented to warrantless
inspections of their properties.” (Id. at ¶¶ 14, 23-24.)
Fourth, Plaintiff’s Complaint claims that Defendants violated his right of substantive due
process under the Fourteenth Amendment by enacting and/or enforcing City of Schenectady
Code § 210-5 (a/k/a the “Schenectady Rental Ordinance” or “the Ordinance”), which does not
provide clear procedures for the granting of rental certificates when consent to inspect is not
granted and a warrant is not obtained, and which encourages arbitrary and discriminatory
enforcement. (Id. at ¶¶ 25-26.)
Fifth, Plaintiff’s Complaint claims that Defendants were unjustly enriched in violation of
New York State common law by collecting and inequitably retaining inspection and rentalapplication fees from Plaintiff without performing any inspections of his rental units or granting
him any rental certificates. (Id. at ¶¶ 10-11, 27-28.)
Sixth, and last, Plaintiff’s Complaint claims that Defendants intentionally inflicted
emotional stress upon Plaintiff in violation of New York State common law by the
aforementioned retaliation and harassment. (Id. at ¶¶ 29-30.)
Familiarity with the particular nature of these claims, and the factual allegations
supporting them, is assumed in this Decision and Order, which is intended primarily for review
by the parties. (See generally Dkt. No. 1.)
B.
Parties’ Briefing on Defendants’ Motion for Judgment on the Pleadings
1.
Defendants’ Memorandum of Law
Generally, Defendants move to dismiss Plaintiff’s Complaint for five reasons. (Dkt. No.
11, Attach. 7, at 22-28 [Defs.’ Mem. of Law].) First, Defendants argue that Plaintiff’s litigation
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is foreclosed by principles of res judicata as a result of his previous federal court litigation
against the City and McCarthy. (Id. at 22.)
Second, Defendants argue that Plaintiff’s equal protection claim must be dismissed
because he does not identify in the Complaint any similarly situated comparators. (Id. at 23.)
Defendants argue that the other landlords he alleges are similarly situated in fact are not
similarly situated because (as Plaintiff acknowledges) those landlords had consented to
inspection of their rental properties, while Plaintiff had refused consent to inspect his properties.
(Id.)
Third, Defendants argue that Plaintiff’s constitutional claims must be dismissed because
he has not alleged any state action taken by Defendants other than that he was subjected to
enforcement proceedings for failing to comply with the Ordinance. (Id. at 23-24.) Defendants
argue that Plaintiff’s First and Fourth Amendment claims should be dismissed on the alternative
ground that, as recognized in previous cases of this Court, the Ordinance is constitutional. (Id. at
24.) Defendants also argue that any substantive due process claim in Plaintiff’s Complaint must
be dismissed on the alternative ground that he has not alleged facts plausibly suggesting that
Defendants’ actions shocked the conscience or otherwise met the high standard for such a claim.
(Id. at 24-25.)
Fourth, Defendants argue that Plaintiff’s claims against the City must be dismissed based
on principles of municipal liability because Plaintiff has not alleged facts plausibly suggesting
that those claims involved an official policy, practice, or custom. (Id. at 25.)
Fifth, Defendants argue that Plaintiff’s claims against McCarthy and Viscariello must be
dismissed based on both lack of personal involvement and qualified immunity because Plaintiff
has not alleged facts plausibly suggesting that McCarthy and Viscariello were personally
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involved in the alleged violations or participated in any acts that were unconstitutional, caused
him an injury, or violated clearly established law. (Id. at 25-28.)
2.
Plaintiff’s Opposition Memorandum of Law
Generally, Plaintiff makes nine arguments in opposition to Defendants’ motion. (Dkt.
No. 15, Attach.1, at 14-25 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that Defendants’
motion to dismiss is untimely under Fed. R. Civ. P. 12(b)(6) because Defendants have already
filed their Answer, and that, alternatively, the motion must be denied if considered under Fed. R.
Civ. P. 12(c) because there are factual issues that must be decided by a jury. (Id. at 1-2.)
Second, in opposition to Defendants’ first argument, Plaintiff argues that res judicata
does not apply here because (a) the events at issue in this litigation post-date those at issue in
Hafez I, (b) the law governing Fourth Amendment challenges to records inspections changed
after the decision in Hafez I (through issuance of City of Los Angeles, Calif. v. Patel, 135 S.Ct.
2443 [2015]), (c) the “challenges” made in this action are different than those made in Hafez I,
and (d) Hafez I did not include McCarthy as a defendant. (Id. at 14-16.)
Third, in opposition to Defendants’ second argument, Plaintiff argues that he has
sufficiently identified similarly situated persons for the purposes of his equal protection claim
because (a) he is comparing his properties to “similarly situated properties . . . owned by similar
landlords” who “were granted rental certificates for their units,” and (b) he is proceeding under a
“class of one” theory. (Id. at 16-19.) Plaintiff notes that he had listed those similar properties in
“Table III” and highlighted a specific landlord that was listed on that Table as an example of a
similarly situated person. (Id. at 16-17.)
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Fourth, in opposition to Defendants’ third argument, Plaintiff argues that he has alleged a
state action in his Complaint, citing specifically to the allegation that he was required to defend
himself in criminal court as a result of his not having a rental certificate. (Id. at 19.)
Fifth, in opposition to Defendants’ third argument, Plaintiff argues that his Fourth
Amendment claims cannot be dismissed based on previous rulings that the Ordinance is
constitutional because he is challenging the Ordinance as applied. (Id. at 20.) He also argues
that there is a question of fact as to whether Defendants acted with an improper intent because he
paid his inspection fees but there is no evidence that the City made any attempt to obtain a
warrant to inspect his rental properties. (Id.)
Sixth, in opposition to Defendants’ third argument, Plaintiff argues that he has alleged a
sufficient substantive due process claim. (Id. at 20-21.) Specifically, Plaintiff argues that he has
a property interest in the rental certificates because he has been granted them in the past, and that
there are no legitimate reasons why the City failed to obtain warrants, inspect his properties, and
grant him rental certificates. (Id.)
Seventh, in opposition to Defendants’ fourth argument, Plaintiff argues that municipal
liability principles do not bar his claim against the City because McCarthy (as Mayor) was the
final decision-maker for the process authorizing inspection of his business records, and
Viscariello (as Supervisor) was in charge of enforcing the Ordinance and failed to supervise his
subordinates related to inspections of business records, obtaining inspection warrants, and
granting rental certificates. (Id. at 24.)
Eighth, in opposition to Defendants’ fifth argument, Plaintiff argues that both McCarthy
and Viscariello were personally involved because McCarthy signed the Ordinance into law and
Viscariello enforced it. (Id. at 23.)
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Ninth, in opposition to Defendants’ fifth argument, Plaintiff argues that McCarthy and
Viscariello are not entitled to qualified immunity because the right to be free from warrantless
searches, retaliation, and arbitrary prosecution are all well established. (Id. at 24-25.) Plaintiff
argues that, because he was granted rental certificates in the past, failure to grant the certificates
now due to his refusal to allow warrantless inspections is fatal to Defendants’ claims of
entitlement to qualified immunity. (Id.)
In addition, in an affidavit, Plaintiff requests leave to file an Amended Complaint doing
two things: (1) curing the pleading defects in his Complaint; and (2) adding Jeffrey Briere and
Krystine Smith as defendants. (Dkt. No. 15, at ¶ 32 [Pl.’s Aff.]; Dkt. No. 15, Attach. 1, at 19
[Pl.’s Opp’n Mem. of Law].)
3.
Defendants’ Reply Memorandum of Law
Generally, Defendants make six arguments in reply to Plaintiff’s arguments. (Dkt. No.
18, at 5-9 [Defs.’ Reply Mem. of Law].) First, Defendants argue that res judicata applies to this
case because (a) the issues presented in this action are the same as those presented in Hafez I,
and (b) that the Supreme Court case cited by Plaintiff (City of Los Angeles, Calif. v. Patel, 135
S.Ct. 2443 [2015]) is not applicable here. (Id. at 5-6.)
Second, Defendants argue that Plaintiff has not identified similarly situated comparators
to sustain a plausible equal protection claim because, as they pointed out in their memorandum
of law (and Plaintiff has ignored) the other property owners he references cannot be similarly
situated to Plaintiff because, unlike him, they consented to inspection of their properties. (Id. at
6-7.)
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Third, Defendants argue that Plaintiff’s other constitutional claims must be dismissed as
a matter of law because his opposition papers have not cured the defects in these claims. (Id. at
7-8.)
Fourth, Defendants argue that Plaintiff’s First Amendment, Fourth Amendment, and
equal protection claims against the City must be dismissed because his opposition papers have
not identified a policy, practice, or custom sufficient to impose municipal liability. (Id. at 8.)
Fifth, Defendants argue that Plaintiff’s claims against McCarthy and Viscariello must be
dismissed based on lack of personal involvement because his opposition papers have not alleged
facts plausibly suggesting personal involvement. (Id. at 8-9.)
Sixth, Defendants argue that Plaintiff’s claims against Defendants McCarthy and
Viscariello must be dismissed because Plaintiff’s opposition papers have not overcome the
doctrine of qualified immunity. (Id.)
II.
GENERAL LEGAL STANDARDS
A.
Legal Standard Governing a Motion for Judgment on the Pleadings Under
Fed. R. Civ. P. 12(c)
“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical
to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting cases). It has long been understood
that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R.
Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the "sufficiency
of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the
claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008)
(McAvoy, J.) (adopting Report-Recommendation on de novo review).
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Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp.2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp.2d at
212 n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp.2d at 212 n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.
9
Supp.2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
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show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.1
1
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
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B.
Legal Standard Governing Claims Under 42 U.S.C. § 1983
In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege “(1) that
some person has deprived him of a federal right, and (2) that the person who has deprived him of
that right acted under color of state . . . law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)
(quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920 [1980] [internal quotations
omitted]). “Section 1983 is not itself a source of substantive rights[,] but merely provides a
method for vindicating federal rights elsewhere conferred[.]” Patterson v. County of Oneida,
375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct.
2689 [1979]).
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Kregler v. City of New York, 821 F. Supp.
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant’s motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
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2d 651, 655-656 (S.D.N.Y. 2011) (quoting Wright v. Smith, 21 F.3d 496, 501 [2d Cir.1994]
[internal quotation marks omitted]). A plaintiff may allege the personal involvement of a
defendant who occupies a supervisory position by alleging that the defendant did one or more of
the following things: “(1) directly participated in the infraction; (2) failed to remedy the wrong
after learning of the violation; (3) created a policy or custom under which unconstitutional
practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in
managing subordinates who caused the unlawful condition or event; or (5) exhibited ‘gross
negligence’ or ‘deliberate indifference’ to the constitutional rights of [the plaintiff] by having
actual or constructive notice of the unconstitutional practices and failing to act.” Kregler, 821 F.
Supp. 2d at 655-56 (citing Colon v. Coughlin, 58 F.3d 865, 873 [2d Cir.1995]; Wright, 21 F.3d at
501).
A municipality may only be liable on a § 1983 claim “if the deprivation of the plaintiff’s
rights under federal law is caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018 [1978]). In the absence of such a
custom or policy, a municipality may not be held liable on a § 1983 claim for the actions of its
employees under a theory of vicarious liability. See Jones, 691 F.3d at 80 (citing Monell, 436
U.S. at 691, 98 S. Ct. 2018). Thus, isolated acts of municipal employees are typically not
sufficient to establish municipal liability. However, acts done “pursuant to municipal policy, or
[that] were sufficiently widespread and persistent to support a finding that they constituted a
custom, policy, or usage of which supervisory authorities must have been aware” would justify
liability of the municipality. Jones, 691 F.3d at 81. Further, “a municipal custom, policy, or
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usage would be inferred from evidence of deliberate indifference of supervisory officials to such
abuses. ” Id.
C.
Legal Standard Governing a Motion to Amend a Pleading
A motion for leave to amend a complaint is governed by Fed. R. Civ. P. 15, which states
that leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2);
Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir.
1993). Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend a complaint should be freely given
in the absence of any apparent or declared reason to not grant leave to amend, such as undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, or futility of the amendment. See Foman, 371 U.S. at 182; S.S.
Silberblatt, Inc. v. E. Harlem Pilot Block–Bldg. 1 Hous., 608 F.2d 28, 42 (2d Cir. 1979); Meyer
v. First Franklin Loan Servs, Inc., 08-CV-1332, 2010 WL 277090, at *1 (N.D.N.Y. Jan. 19,
2010) (Suddaby, J.); Jones v. McMahon, 98-CV-0374, 2007 WL 2027910, at *10 (N.D.N.Y. July
11, 2007) (Lowe, M.J.). “An amendment to a pleading is futile if the proposed claim could not
withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Annunziato v. Collecto,
Inc., 293 F.R.D. 329, 333 (E.D.N.Y. 2013) (citing Lucente v. Int'l Bus. Machs. Corp., 310 F.3d
243, 258 [2d Cir. 2002]).
III.
ANALYSIS
A.
Whether the Doctrine of Res Judicata Bars Plaintiff’s Claims
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 7, at 22 [Defs.’ Mem. of
14
Law]; Dkt. No. 18, at 5-6 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
“Res judicata bars re-litigation if ‘(1) the previous action involved an adjudication on the
merits; (2) the previous action involved the [same parties] or those in privity with them; [and] (3)
the claims asserted in the subsequent action were, or could have been, raised in the prior
action.’” Soules v. Connecticut Dept. of Emergency Servs. and Pub. Prot., 882 F.3d 52, 55 (2d
Cir. 2018) (quoting Monahan v. N.Y.C. Dept. of Corr., 214 F.3d 275, 285 [2d Cir. 2000]);
Lachaab v. State Univ. of New York (SUNY) Bd. of Tr., 16-CV-1019, 2017 WL 4350565, at *2
(N.D.N.Y. Aug. 4, 2017) (Mordue, J.). “‘[A] party cannot avoid the res judicata effect of [a
prior] judgment by bringing suit against a new defendant that is in privity with the original
defendant.’” Lachaab, 2017 WL 4350565, at *2. Notably, “‘the principle of privity bars
relitigation of the same cause of action against a new defendant known by a plaintiff at the time
of the first suit where the new defendant has a sufficiently close relationship to the original
defendant to justify preclusion.’” Id. at *3 (citing Cent. Hudson Gas & Elec. Corp. v. Empresa
Naviera Santa, S.A., 56 F.3d 359, 367-68 [2d Cir. 1995]). “‘[R]es judicata may . . . be asserted
by a party that is in privity with a party to an earlier action’ where ‘the interests of the defendant
were adequately represented in the earlier action.’” Randall v. Amica Mutual Ins. Co., 17-CV0013, 2017 WL 6408937, at *5 (N.D.N.Y. Sept. 22, 2017) (Sannes, J.) (quoting Akhenaten v.
Najee, LLC, 544 F. Supp. 2d 320, 328 [S.D.N.Y. 2008]). When determining whether the claims
were or could have been raised in the prior action, a court must consider whether the current
lawsuit concerns “‘the same claim–or nucleus of operative facts–as the first suit,’ applying three
considerations: ‘(1) whether the underlying facts are related in time, space, origin, or motivation;
15
(2) whether the underlying facts form a convenient trial unit; and (3) whether their treatment as a
unit conforms to the parties’ expectations.’” Soules, 882 F.3d at 55 (quoting Channer v. Dept. of
Homeland Sec., 527 F.3d 275, 280 [2d Cir. 2008]). “Where all requirements are met, res
judicata can act as a bar to virtually any sort of claim, including constitutional challenges to the
facial validity of municipal regulations.” Monahan, 214 F.3d at 290.
In Hafez v. City of Schenectady, 894 F. Supp. 2d 207 (N.D.N.Y. 2012) (D’Agostino, J.)
(“Hafez I”), the Court noted that Plaintiff alleged claims of “retaliation in violation of his First
Amendment rights, unlawful search and seizure in violation of his Fourth Amendment rights,
selective enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment,
and a state-law cause of action for intentional infliction of emotional distress,” as well as that the
Ordinance was unconstitutionally vague and that the requirement to obtain a rental certificate
had been unfairly enforced against him for multiple reasons including retaliation for prior tax
grievances and his “newcomer” status. Hafez I, 894 F. Supp. 2d at 209. When reciting the facts
of that case, the Court noted that Plaintiff had been sent a letter by one of the defendants in
which it was indicated that rental certificates had been denied for some of plaintiff’s rental units
“because Plaintiff prevented an inspection of the building’s basement.” Id. at 212. The Court
granted summary judgment for the defendants and made the following findings: (1) the
Ordinance was not unconstitutionally vague; (2) the inspection requirement did not violate the
Fourth Amendment because it required the City to obtain a warrant if the landlord refused
consent to inspect the property, thereby disallowing non-consensual warrantless inspections; (3)
while Plaintiff had engaged in protected speech for the purposes of his First Amendment
retaliation claim, he failed to show that the defendants’ conduct was motivated by Plaintiff’s
16
exercise of his rights, there was no evidence to show that the inspectors enforcing the Ordinance
against him even had knowledge of his protected speech, and the evidence was inadequate to
show a causal connection between Plaintiff’s protected speech and the defendants’ conduct; (4)
Plaintiff had not shown the existence of similarly situated comparators to sustain an equal
protection claim; and (5) exercise of supplemental jurisdiction over Plaintiff’s state law claims
was not warranted based on the dismissal of his federal claims. Id. at 213-30. Because Hafez I
therefore involved conduct and allegations very similar to those involved in Plaintiff’s current
lawsuit, the Court must determine whether res judicata is applicable.
As to the first element, it is clear that Hafez I involved a adjudication on the merits. See
Smith v. City of New York, 130 F. Supp. 3d 819, 828 (S.D.N.Y. 2015) (“Clearly, summary
judgment is an adjudication on the merits for res judicata purposes.”).
As to the second element, Plaintiff argues that the doctrine of res judicata does not apply
because, although the City and Viscariello were defendants in Hafez I, McCarthy was not.
However, sufficient reason exists to find that McCarthy was in sufficient privity with the
defendants in Hafez I. For the sake of brevity, the Court will not linger on the fact that, during
the pendency of Hafez I (which concluded in April 2012 when U.S. District Judge Mae A
D’Agostino issued a judgment on the defendants’ motion for summary judgment), Plaintiff could
have named McCarthy as a defendant, because (1) Plaintiff’s factual allegations against the City
and Viscariello in Hafez I and against McCarthy in this action all stem from official actions
taken on behalf of the City (despite Plaintiff’s claims to have sued the individual defendants in
their personal capacities), (2) at the time that Plaintiff filed his Complaint in Hafez I, he knew of
17
McCarthy (mentioning McCarthy in his capacity as City Council President in 2010),2 and (3)
McCarthy served as Mayor of Schenectady during at least a portion of the pendency of Hafez I.3
More important is the fact that Brian U. Stratton (against whom all of the legal claims in the
Hafez I complaint were asserted) was in privity with McCarthy. According to Plaintiff, Stratton
was the Mayor of Schenectady at the time Plaintiff filed the Hafez I complaint in May of 2010.
Hafez v. City of Schenectady, 10-CV-0541, Complaint, at ¶ 3 (N.D.N.Y. filed May 5, 2010).
Although Plaintiff claims to have sued Stratton in his personal capacity, that claim is undermined
by Plaintiff’s factual allegations against Stratton in his role as Mayor. Id. at ¶¶ 3, 7, 27-30, 36,
39-43. Moreover, at their core, the actions allegedly taken by Stratton in his role as Mayor do
not differ materially from the actions allegedly taken by McCarthy in his role as Mayor: both
regard the enforcement of a City code section that Plaintiff does not like. (Compare id. with Dkt.
No. 1, at ¶¶ 3, 7, 10-14, 16-18, 20, 22, 24, 28, 30 [Compl.] and Dkt. No. 15, at ¶¶ 6, 8-15, 18
2
Hafez v. City of Schenectady, 10-CV-0541, Complaint, at ¶ 23 (N.D.N.Y. filed
May 5, 2010).
3
(Dkt No. 15, at ¶ 11 [Pl.’s Aff.] [noting that he wrote a letter to oppose
McCarthy’s re-election in the 2015 mayoral race].) See also, e.g., Mayor’s Office, City of
Schenectady, New York, https://www.cityofschenectady.com/210/Mayors-Office (“Gary R.
McCarthy has served as Mayor since April 2011 . . . .”) (last visited Mar. 12, 2018); In re
Collins, 540 B.R. 54, 61 n.5 (E.D.N.Y. 2015) (taking judicial notice of information contained on
the New York State Department of Education’s website, noting that such information was
publically available); In re Bayer Corp. Combination Aspirin Prods. Mktg. and Sales Practices
Litig., 701 F. Supp. 2d 356, 367 (E.D.N.Y. 2010) (noting that, at the motion to dismiss stage,
“the court may take judicial notice of facts ‘not subject to reasonable dispute’ because such facts
are ‘generally known’ or ‘capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned,’” and that “[c]ourts routinely take judicial
notice of extrinsic facts that may be independently, and reliably, verified”); Piccolo v. New York
City Campaign Fin. Bd., 05-CV-7040, 2007 WL 2844939, at *2 & n.2 (S.D.N.Y. Sept. 28, 2007)
(noting that a court can rely on “matters of public record” when considering a motion to dismiss
and stating specifically that the court took judicial notice of facts such as election dates and
results).
18
[Pl.’s Aff.].) Finally, there are no factual allegations in any of the pleadings (or Plaintiff’s
opposition affidavit) that plausibly suggest that Mayor Stratton would not have adequately
represented the interests of his successor, Mayor McCarthy. See also Hafez I, 894 F. Supp. 2d at
209. For all of these reasons, the Court finds that McCarthy, while not named as a defendant in
Hafez I, was in sufficient privity with the Hafez I defendants.
As to the third element, Plaintiff argues that res judicata does not apply to this litigation
because all of the instances of failure to inspect and denials of rental certificates that he alleges
as the basis of his claims occurred after the end of his previous litigation. However, the fact that
acts occurred after the termination of the previous litigation does not necessarily preclude
application of res judicata. See Monahan, 214 F.3d at 289 (noting that the assertion of new
incidents arising from application of the challenged policy is insufficient to bar application of res
judicata because the relevant inquiry is whether the incidents are part of the same transaction or
connected series of transactions, applying “a flexible, common-sense construction that
recognizes the reality of the situation”); Woods v. Dunlop Tire Corp. 972 F.2d 36, 39 (2d Cir.
1992) (finding that, even though some of the acts alleged in the second suit occurred up to a year
after the dismissal of the first action, it was readily apparent that they were all part of the same
cause of action and arose from a single core of operative facts).
As noted above, Plaintiff’s claims in Hafez I, while based on somewhat different factual
allegations than those in the current litigation, constituted challenges to, inter alia, the inspection
requirement and the City’s denial of rental certificates for Plaintiff’s properties. Moreover, the
incidents forming the basis of the Complaint in the current action appear to be a continuation of
one of the alleged wrongdoings in Hafez I, namely, the City’s refusal to grant him rental
19
certificates due to his declining to give consent to inspect portions of his rental units.
Consequently, even if the claims in this action were not decided in Hafez I, Plaintiff could have
reasonably asserted them in Hafez I.
Plaintiff argues that he has raised a new claim (i.e., one not raised in Hafez I) in the form
of his constitutional challenge to the provision in the Ordinance requiring him to provide certain
business records to the City as part of his landlord registration (Section 210-5), alleging that this
provision is unconstitutional when considering the Supreme Court’s decision in City of Los
Angeles, Calif. v. Patel, 135 S.Ct. 2443 (2015). (Dkt. No. 15, Attach. 1, at 14-15 [Pl.’s Opp’n
Mem. of Law].) However, Plaintiff does not allege that Section 210-5 was enacted after Hafez I
such that he would not have been subject to the same registration requirements at the time of the
events underlying that previous action. Rather, in Hafez I, District Judge D’Agostino noted that
the City Council enacted Section 210 in October 9, 2007. Hafez I, 894 F. Supp. 2d at 209.
Given that Sections 210-4 and 210-5 require the owner/landlord of a rental property to file the
registration statement (with the relevant information from Plaintiff’s records) before offering any
unit for rent or renting any unit, it is not reasonable to believe that Plaintiff was unaware of the
registration requirement (and any consequent problems) at the time of Hafez I; after all, the
claims in Hafez I all related to Plaintiff’s conduct as a landlord, including for buildings he was
currently renting to tenants. Id. at 211-12. There is therefore no discernable reason why
Plaintiff would not have been able to assert this claim in Hafez I.4
4
To the extent that Plaintiff argues that this was not a viable argument until the
Supreme Court’s 2015 decision in Patel, the Court is not convinced. As the Supreme Court
notes in Patel, the Court had never held that facial challenges could not be brought under an
“otherwise enforceable provision of the Constitution,” even if it had not specifically and
affirmatively held previously that facial challenges were permissible under the Fourth
20
Based on the above, the Court finds that Plaintiff’s Complaint in the current action is
barred by res judicata as a result of Hafez I. However, the Court notes that, even were it to find
that res judicata was inapplicable, it would still grant Defendants’ motion to dismiss for the
reasons that follow.
B.
Whether the Ordinance Is Unconstitutionally Vague
After carefully considering the matter, the Court answers this question in the negative for
the following reasons.
“‘As one of the most fundamental protections of the Due Process Clause, the void-forvagueness doctrine requires that laws be crafted with sufficient clarity to give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit
standards for those who apply them.’” VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186
(2d Cir. 2010). A statute is impermissibly vague if it either (a) “fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” or (b)
“authorizes or even encourages arbitrary and discriminatory enforcement.” VIP of Berlin, 593
F.3d at 186 (quoting Hill v. Colorado, 530 U.S. 703, 732 [2000]). “‘The degree of vagueness
tolerated in a statute varies with its type: economic regulations are subject to a relaxed vagueness
test, laws with criminal penalties to a stricter one, and laws that might infringe constitutional
rights to the strictest of all.’” VIP of Berlin, 593 F.3d at 186.
Amendment. Patel, 135 S.Ct. at 2449. The Supreme Court also cited multiple examples of
cases where it had considered facial challenges to warrantless searches under the Fourth
Amendment, all of which pre-date Hafez I. Id. at 2450. Therefore, even if Patel provides a
closer factual situation to Plaintiff’s claim (a proposition that will be discussed in a subsequent
part of this Decision and Order), there was significant authority to signal to Plaintiff that he
could have raised a facial challenge to the registration requirement in the Ordinance at the time
of Hafez I.
21
Here, Plaintiff argues that the Ordinance is unconstitutionally vague because “it provides
no clear procedures to follow to grant rental certificates when consent to inspect is not granted
and a warrant is not obtained, and it encourages arbitrary and discriminatory enforcement.”
(Dkt. No. 1, at ¶ 26 [Pl.’s Compl.].) Section 210-8(A) indicates that, in order to rent a property,
a landlord must have a valid rental certificate from the City; to obtain a rental certificate, the
landlord must file a written application and undergo an inspection by the Building Inspector to
determine whether the rental property is free of violations of the enumerated health and safety
standards. Schenectady City Code § 210-8(A). Section 210-9(B) of the Ordinance states that,
at the request of the Building Inspector, the Corporation Counsel is
authorized to make application to the City Court of the City of
Schenectady or any other court of competent jurisdiction for the issuance
of a search warrant to be executed by a police officer in order to conduct
an inspection of any premises believed to be subject to this chapter. The
Building Inspector may seek a search warrant whenever the owner,
managing agent or occupant fails to allow inspections of any dwelling
unit contained in the rental property where there is a reasonable cause to
believe that there is a violation of this chapter, or . . . of any code of the
City of Schenectady or any applicable fire code.
Schenectady City Code § 210-9(B).
The Ordinance as a whole clearly states what conduct is prohibited: renting a property
without an approved landlord registration and a valid rental certificate. Schenectady City Code
§§ 210-5, 210-8(A). The pertinent question is therefore whether the Ordinance authorizes or
encourages arbitrary or discriminatory enforcement. The Court finds that it does not.
Plaintiff appears to take issue with the fact that the Ordinance does not set a time limit in
which the City must seek or obtain a warrant to conduct an inspection of rental properties after
an owner/landlord has refused consent to inspect. However, Plaintiff’s attempt to read a
mandatory duty to conduct an inspection into the Ordinance is unavailing. Notably, the language
22
of Section 210-9(B) suggests that the decision to seek a warrant is discretionary, not mandatory.
See Schenectady City Code § 210-9(B) (“The Building Inspector may seek a warrant . . .” ); see
also Rastelli v. Warden, Metropolitan Corr. Ctr., 782 F.2d 17, 23 (2d Cir. 1986) (“The use of a
permissive verb –‘may review’ instead of ‘shall review’–suggests a discretionary rather than
mandatory review process.”); Agunbiade v. U.S., 893 F. Supp. 160, 163 (E.D.N.Y. 1995)
(finding that a statute stating that the “‘Attorney General and the [FBI] may investigate’ . . .
‘provides a discretionary rather than mandatory authority to the Attorney General to investigate
crimes.’”) (emphasis in original); Spillane v. Shalala, 92-CV-0461, 1993 WL 276793, at *3 (D.
Conn. June 7, 1993) (“The use of the non-mandatory term ‘may’ demonstrates Congress’ intent
to grant the Secretary complete discretion to decide. . . .”). The discretionary nature of the
language in Section 210-9(B) undermines Plaintiff’s argument that the City was required to seek
and obtain a warrant once he refused consent to inspect his rental properties, as well as his
implicit argument that this section is vague because it does not include a specified time period in
which the City must obtain a warrant; a specified time period would be inconsistent with a
discretionary duty.
However, the fact that the Ordinance leaves it to the discretion of the City to determine
whether to seek a warrant does not mean that it authorizes or encourages arbitrary or
discriminatory enforcement. In addition to the discretionary language, Section 210-9(B) further
states that the Building Inspector can seek a warrant once the owner/landlord has refused consent
to inspect only where “there is a reasonable cause to believe that there is a violation” of the City
ordinances or fire codes. Schenectady City Code § 210-9(B). Therefore, by the plain language
of the Ordinance, the City cannot seek a warrant in every case simply because an owner/landlord
23
refused consent, but rather it must have “reasonable cause” to believe there is some sort of
violation occurring in the rental property. This condition prevents arbitrary or discriminatory
enforcement by requiring the City to show reasonable cause when requesting a warrant, a
constitutional safeguard that protects owners/landlords from unreasonable searches of their
properties. See Milner v. Duncklee, 460 F. Supp. 2d 360, 368 (D. Conn. 2006) (“‘It is axiomatic
that the physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed’ . . . [and] [t]he warrant requirement is the main safeguard against that
evil[;] [t]he primary purpose of the warrant requirement is to take the task of finding probable
cause out of the hands of interested officers and put the task in the hands of a detached, neutral
judge or magistrate.”) (citing Welsh v. Wisconson, 466 U.S. 740, 748 [1984]). Given this
limiting condition on the circumstances in which the Building Inspector may seek a warrant and
the discretionary nature of the duty to seek a warrant, Plaintiff has not alleged that the Ordinance
is unconstitutionally vague.5 Cf. Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972)
5
In a recent Summary Order, the Second Circuit noted that a plaintiff argued that a
similar ordinance was unconstitutional because “a warrant could not be obtained where the
Town did not have reasonable cause to suspect a Code violation, thus forcing law-abiding
property owners to consent to warrantless searches in order to rent their properties”; the Second
Circuit rejected this argument based on other conditions in the ordinance not applicable to the
Ordinance in this case. Mamakos v. Town of Huntington, 17-2318 (Mar. 19, 2018) (summary
order). However, Plaintiff has not alleged facts plausibly suggesting (or even argued) that his is
a case where reasonable suspicion did not exist. Rather, the violations outlined in Hafez I related
to Plaintiff’s conduct that violated the Ordinance. Moreover, the evidence submitted with his
opposition affidavit in this action shows that he had been renting an apartment in 2015 for which
he did not have a valid rental certificate. As a result, the Court finds that reasonable cause
appears to have existed to believe that violations of the Ordinance were occurring in Plaintiff’s
properties. (Dkt. No. 15, at 22-24.) In addition, although an individual cannot obtain a rental
certificate without an inspection (either based on consent or a warrant), the Ordinance provides
the option to apply for a temporary rental certificate, which does not require an inspection.
Schenectady City Code § 210-8(B). The availability of the temporary rental certificate
sufficiently mitigates any concerns that the Ordinance would force Plaintiff to choose between
submitting to warrantless inspections and being completely unable to rent his properties.
24
(finding that an ordinance permitted and encouraged arbitrary and discriminatory enforcement
because there were “no standards governing the exercise of discretion granted by the ordinance”)
(emphasis added). Plaintiff also has not alleged facts to plausibly suggest that the Defendants
otherwise applied the discretionary nature of the warrant standard in an arbitrary or
discriminatory nature.
Plaintiff’s additional concern appears to be that the City has kept his inspection fee but
has not sought a warrant to conduct the inspections nor actually conducted the inspections.
However, Plaintiff has not alleged any facts plausibly suggesting that he has petitioned the City
to have his inspection fee returned and that it had been refused. Even construing the Complaint
liberally, the Court finds that Plaintiff has not plausibly alleged facts sufficient to show that the
Ordinance is unconstitutionally vague as applied.6
C.
Whether Monelle Bars Plaintiff’s Claims Against the City
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons in Defendants’ memoranda of law. (Dkt. No. 11, Attach 7, at 25 [Defs.’ Mem. of
Law]; Dkt. No. 18, at 8 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
A municipality may be liable under 42 U.S.C. § 1983 “if the governmental body itself
‘subjects’ a person to a deprivation or ‘causes’ a person ‘to be subjected’ to such deprivation.”
Connick v. Thompson, 563 U.S. 51, 60 (2011). However, municipalities can only be held liable
6
Notably, Plaintiff has expressly challenged the inspection requirement of the
Ordinance as applied; he did not assert a facial challenge. (Dkt. No. 1, at 3 [Pl.’s Compl.] [“The
Ordinance Inspection Provision [i]s Unconstitutional [a]s Applied”]; Dkt. No. 15, Attach. 1, at
20 [Pl.’s Opp’n Mem. of Law] [noting that his Fourth Amendment challenge related to the
failure of the City to obtain warrants to inspect his properties is an “as applied challenge”].)
25
for their own acts; they cannot be held vicariously liable for the actions of their employees under
Section 1983. Connick, 563 U.S. at 60. To establish municipal liability based on acts of a public
official under Section 1983, Plaintiff must show that (1) the actions were taken under the color
of law, (2) there was a deprivation of a constitutional or statutory right, (3) causation, (4)
damage, and (5) that an official policy of the municipality caused the constitutional injury. Roe
v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell, 436 U.S. at 690-91).
“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the
force of law.” Connick, 563 U.S. at 60.
Plaintiff alleges that the City violated his constitutional rights in the following ways: (1)
requiring him to produce business records in violation of his right to privacy and freedom from
warrantless searches under the Fourth Amendment; (2) refusing to grant him rental certificates in
retaliation for asserting his rights under the First and Fourth Amendments; and (3) treating him
differently from similarly situated landlords in violation of the Fourteenth Amendment. (Dkt.
No. 1, at ¶¶ 7-8, 11-14 [Pl.’s Compl.].) Defendants argue that Plaintiff has not alleged (and
cannot demonstrate) how his rights were violated pursuant to an official policy, practice, or
custom. (Dkt. No. 11, Attach. 7, at 25 [Defs.’ Mem. of Law].) In response, Plaintiff argues only
that the City is liable for “any unconstitutional acts committed by the two individual defendants
[McCarthy and Viscariello] that caused . . . injury.” (Dkt. No. 15, Attach. 1, at 22-23 [Pl.’s
Opp’n Mem. of Law].) He elaborates in the affidavit submitted with his opposition
memorandum of law, in which he alleges (conclusorily) that Viscariello’s actions (which were
approved, carried out, and acquiesced to by McCarthy) amounted to official policies and
practices that represent municipal decisions. (Dkt. No. 15, at ¶ 29 [Pl.’s Aff.].)
26
Plaintiff’s argument is unpersuasive because, as already noted, a municipality cannot be
held vicariously liable for the actions of its employees. Connick, 563 U.S. at 60. Additionally,
as Defendants argue, even when construed liberally, the Complaint (along with Plaintiff’s
opposition memorandum of law and affidavit) does not plead facts plausibly suggesting that an
official policy, practice, or custom existed as a result of any actions taken by Viscariello or
McCarthy, much less that any such policy, practice, or custom caused Plaintiff’s alleged injury.
The Court therefore finds that Plaintiff’s claims against the City must be dismissed.
D.
Whether a Lack of Personal Involvement or the Doctrine of Qualified
Immunity Bars Plaintiff’s Claims Against McCarthy and Viscariello
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 7, at 25-28 [Defs.’
Mem. of Law]; Dkt. No. 18, at 8-9 [Defs.’ Reply Mem. of Law].) To those reasons, the Court
adds the following analysis.
a.
Personal Involvement
“To establish a [S]ection 1983 claim, ‘a plaintiff must establish a given defendant’s
personal involvement in the claimed violation in order to hold that defendant liable in his
individual capacity.’” Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016). A plaintiff can
establish personal involvement by showing any one of the following five circumstances: (1) “the
defendant participated directly in the alleged constitutional violation”; (2) “the defendant, after
being informed of the violation through a report or appeal, failed to remedy the wrong”; (3) “the
defendant created a policy or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom”; (4) “the defendant was grossly negligent in
supervising subordinated who committed wrongful acts”; or (5) “the defendant exhibited
27
deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating
that unconstitutional acts were occurring.” Warren, 823 F.3d at 136 (quoting Colon v. Coughlin,
58 F.3d 865, 873 [2d Cir. 1995]). Direct participation has been defined as “‘intentional
participation in the conduct constituting a violation of the victim’s rights by one who knew of the
facts rendering it illegal.’” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016).
In the Complaint, Plaintiff alleged that McCarthy approves City policies and practices
and votes on and signs ordinances into law. (Dkt. No. 1, at ¶ 3 [Pl.’s Compl.].) Plaintiff alleged
that Viscariello is “in charge of enforcing the rental property ordinance and rental unit
inspections.” (Id.) Plaintiff also broadly alleged a failure to train and supervise employees. (Id.
at ¶ 18.) In the affidavit submitted with his opposition memorandum of law,7 Plaintiff further
alleged that McCarthy “approved changes to the [Ordinance] with the knowledge that the City
did not have enough code officers to inspect the approximately 16,000 rental units in
Schenectady,” “failed to regularly train Code Enforcement personnel on how to avoid potential
violations of the constitutional rights of landlords and tenants,” “approved changes to the City
Code that officially modified the function of the Housing Standard Review Board . . . to just
serve as a liaison and not have the power to hear appeals or rule on [Ordinance] violations,
denying landlords due process to be heard before a neutral board,” and “aggressively pushed for
7
In an effort to afford Plaintiff with the special solicitude due to pro se litigants,
the Court has considered the statements in this affidavit in conjunction with the Complaint when
determining the sufficiency of Plaintiff’s allegations. See Cusamano v. Sobek, 604 F. Supp. 2d
416, 462 n.79, 492 (N.D.N.Y. 2009) (Suddaby, J, and Lowe, M.J.) (noting that “special
solicitude permits a pro se plaintiff to effectively amend the allegations in his complaint while
responding to a motion to dismiss for failure to state a claim.”); see also Donhauser v. Goord.
314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.) (“[I]n cases where a pro se plaintiff is
faced with a motion to dismiss, it is appropriate for the court to consider materials outside the
complaint to the extent they ‘are consistent with the allegations in the complaint.’”).
28
forcing [the] landlords’ registration process by which any landlord must first register with the
code department, complete the Landlord Registration Statement for [a] Rental Certificate, and
produce his/her business records for inspection and copying before he is allowed to rent his
properties.” (Dkt. No. 15, at ¶¶ 13-15, 18 [Pl.’s Aff.].) Plaintiff alleges that Viscariello is
“responsible for the [Ordinance] enforcement process, rental unit inspections and for the conduct
and actions of subordinate code officers and code staff,” supervised the staff who failed to grant
rental certificates, failed to apply for inspection warrants or seek consent of the tenants to inspect
the rental properties, accepted inspection fees without performing inspections and collected
landlord business records, “failed to train and supervise code officers and staff that they should
inform landlords of their rights to refuse to consent to the production of their business records
during the registration process . . . and failed to supervise his staff that conducted non-consensual
inspections of [Plaintiff’s] business records,” “failed to train and supervise code officers and
staff that they should inform landlords . . . of [their] constitutional rights to refuse to consent to
warrantless inspection,” and “failed to implement any procedure for granting [Plaintiff] any
temporary rental certificates . . . until inspection warrants are obtained.” (Id. at ¶¶ 20-27.)
Plaintiff’s allegations do not plausibly suggest that either McCarthy or Viscariello
directly participated in either the denial of rental certificates or the collection of the information
required by the landlord registration process; nor does he plead facts plausibly suggesting that
McCarthy and Viscariello were aware of any constitutional violations occurring against Plaintiff
as a result of the rental certificate or landlord registration process or that they failed to remedy
those violations or acted with deliberate indifference to Plaintiff’s rights.
29
The allegations also do not plausibly suggest that McCarthy or Viscariello created or
allowed a policy under which unconstitutional practices occurred. Plaintiff’s allegations that
McCarthy approved changes to the Ordinance that resulted in an inability of building inspectors
to timely inspect properties, altered the function of the Housing Standards Board, and supported
more aggressive enforcement of the landlord registration requirement do not suggest that
McCarthy created or allowed a policy under which unconstitutional practices occurred, nor do
Plaintiff’s vague allegations that Viscariello was “responsible” for enforcing the Ordinance
suggest that Viscariello allowed unconstitutional practices to occur. Notably, Plaintiff does not
include any factual allegations plausibly suggesting that these “policies” resulted in
unconstitutional practices.
Similarly, Plaintiff’s allegations that McCarthy and Viscariello failed to supervise or
train subordinates do not plausibly suggest personal involvement because he does not also allege
facts plausibly suggesting that McCarthy or Viscariello were grossly negligent in the alleged
failure. The Second Circuit defines “gross neligence” as “a higher degree of culpability than
mere negligence[;] [i]t is the kind of conduct where the defendant has reason to know of facts
creating a high degree of risk of . . . harm to another and deliberately acts or fails to act in
conscious disregard or indifference to that risk.” Respardo v. Carlone, 770 F.3d 97, 116 (2d Cir.
2014). The Second Circuit additionally has found that the standard for gross negligence is
satisfied when “the plaintiff establishes that the defendant-supervisor was aware of the
subordinate’s prior substantial misconduct but failed to take appropriate action to prevent future
similar misconduct before the plaintiff was eventually injured.” Respardo, 770 F.3d at 117. In
particular, Plaintiff’s allegations that McCarthy failed to train subordinates on how to avoid
30
potential constitutional rights violations and that Viscariello supervised staff and failed to train
subordinates to inform landlords of their constitutional rights do not plausibly suggest that either
McCarthy or Viscariello were aware of any misconduct on the part of subordinates, much less
that they deliberately failed to act on that knowledge.
Lastly, regarding Plaintiff’s argument that Viscariello failed to implement a procedure for
granting Plaintiff temporary rental certificates until inspections could be performed, Plaintiff
does not allege that he ever attempted to obtain any such temporary rental certificates after
refusing to consent to inspections. Plaintiff’s attempt to put the burden on Defendants is
contrary to the plain text of the Ordinance, which states that “[a]n owner may apply for a
temporary rental certificate whenever a Building Inspector is unable to inspect the unit within
five working days of receipt of an application for a rental certificate.” Schenectady City Code §
210-8(B)(1). Notably, there is no duty imposed on the City to provide temporary rental
certificates in the absence of an application for a temporary rental certificate from the
owner/landlord. Because Plaintiff has not alleged that he applied for any temporary rental
certificates, he cannot use the failure to grant him temporary rental certificates as a basis for his
claims against Defendants.
For all the above reasons, Plaintiff has not provided factual allegations to plausibly
suggest that McCarthy and Viscariello were personally involved in the alleged constitutional
violations and therefore cannot show that all the requirements of his claims against these
defendants can be met. Plaintiff’s constitutional claims against McCarthy and Viscariello
therefore must be dismissed.
31
b.
Qualified Immunity
Alternatively, the Court finds that, based on Plaintiff’s own factual allegations, McCarthy
and Viscariello would be protected from liability as a matter of law by the doctrine of qualified
immunity. “‘The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Almighty Supreme Born
Allah v. Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Messerschmidt v. Millender, 565 U.S.
535, 546 [2012]). “‘A [g]overnment official’s conduct violates clearly established law when, at
the time of the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.’” Milling,
876 F.3d at 59 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 [2011]). “Thus, qualified
immunity ‘protects all but the plainly incompetent or those who knowingly violate the law.’”
Milling, 876 F.3d at 59.
Plaintiff premises his opposition to Defendants’ argument of qualified immunity on the
fact that the rights to be free from warrantless searches, retaliation for assertion of rights, and
arrest or prosecution without probable cause are all established constitutional rights. (Dkt. No.
15, Attach. 1, at 24 [Pl.’s Opp’n Mem. of Law].) While Plaintiff is correct that these are all wellestablished constitutional rights, such fact alone does not preclude a finding that Defendants are
entitled to qualified immunity. Rather, the relevant consideration is whether any reasonable
official would have understood that Defendants’ specific conduct violated these broad rights.
The Court is not persuaded.
32
Regarding the right to be free from warrantless searches, Plaintiff has not alleged that
Defendants (personally or through use of subordinates) have conducted any improper
warrantless search of any of his rental properties. To the extent that Plaintiff premises his
argument on the alleged inspection of his business records, there is no reason to believe that,
even if the actions of McCarthy, Viscariello, and code enforcement staff violated a wellestablished right to be free from unreasonable searches under the Fourth Amendment, a
reasonable officer would have been aware that such conduct was unconstitutional. Plaintiff
argues that Defendants should have been aware of the unconstitutional nature of the disclosures
outlined in the registration requirement based on the Supreme Court’s 2015 decision in Patel,
135 S.Ct. 2443. (Dkt. No. 15, Attach. 1, at 7-11, 24-25 [Pl.’s Opp’n Mem. of Law].) In Patel,
the Supreme Court found a statute that required hotel owners to make available records
containing specific information about guests to the police on demand or be subject to
misdemeanor criminal charges was facially unconstitutional because it did not afford the hotel
operators any opportunity for precompliance review. Patel, 135 S.Ct. at 2447.
However, the registration requirement in the Ordinance differs from the statute in Patel.
While the statute in Patel imposed criminal penalties on hotel owners who failed to make records
available to police, there is nothing in the Ordinance that would subject a prospective landlord to
criminal or other penalties for simply refusing to provide the required information with his
landlord registration form. Rather, the only relevant way in which the landlord could be subject
to criminal penalties related to the registration requirement is if he chose to attempt to rent his
property without a proper registration. See Schenectady City Code § 210-4(B) (“It shall be
unlawful for any owner to offer for rent, or to rent any unit, or to allow any rental unit to be
33
occupied without having first registered pursuant to this chapter.”). Additionally, unlike the
statute in Patel, the Ordinance does not allow for inspection of Plaintiff’s records on demand;
rather, Plaintiff is required only to present the specified information when submitting the
landlord registration statement (as well as any updates necessary to keep the information current
and accurate), which results in a far lesser intrusion than would occur if Plaintiff were in fact
required to submit his actual records for inspection at any time at the discretion of the code
enforcement office. Further, while the statute in Patel required the hotel owners to produce the
actual records to police for inspection, nothing in the Ordinance suggests that Plaintiff, as a
landlord, is required to provide his actual records along with a landlord registration statement.
Rather, Section 210-5 indicates only that the landlord must provide certain information on the
required form; the only record that a landlord is required to physically provide is a copy of the
current declaration page of any insurance he is required to disclose, which the Ordinance states
can be “considered proprietary and shall not be disclosed to the public” without affording the
landlord the opportunity to object if the landlord requests such proprietary status. Schenectady
City Code § 210-5(A)(1). Therefore, Section 210-5 does not allow for the indiscriminate
inspection of Plaintiff’s records that was present in Patel. Because the Ordinance does not give
the City or code enforcement officers any authority to inspect Plaintiff’s business records, but
rather merely requires him to provide certain basic information, the Court finds that Patel would
not have provided warning to McCarthy or Viscariello as to whether the disclosure requirement
in the Ordinance violates clearly established law.
Regarding the right to be free from retaliation for asserting his right to refuse consent to
inspect his rental units, there is nothing to suggest that any reasonable person would have
34
understood that failure to obtain an inspection warrant after Plaintiff’s refusal of consent would
be a violation of Plaintiff’s First Amendment rights. As discussed in above Part III.B of this
Decision and Order, the Ordinance provides the City with a discretionary ability to seek a
warrant to inspect a rental property, and then only if there is reasonable cause to believe that
there are violations occurring in the rental property. Schenectady City Code § 210-9(B).
Plaintiff has not alleged any facts plausibly suggesting that building inspectors failed to seek a
warrant based on retaliatory animus for Plaintiff’s refusal to grant consent, much less that
Viscariello or McCarthy were aware of or approved of any such retaliatory animus.
Regarding the right to be free from arrest or prosecution without probable cause, Plaintiff
has failed to allege facts plausibly suggesting that he was arrested or prosecuted without
probable cause. In the Complaint, Plaintiff alleges that Defendants initiated a criminal
proceeding against him “for not having a rental certificate for one of his rental units.” (Dkt. No.
1, at ¶ 16 [Compl.].) Plaintiff reiterates in his affidavit that he was issued an appearance ticket
for, and charged with, renting without a rental certificate in violation of Section 210-6 of the
Ordinance. (Dkt. No. 15, at ¶¶ 30-31 [Pl.’s Aff.].) Because Plaintiff acknowledges that he did,
in fact, not have rental certificates for at least some of his properties and does not allege that the
appearance ticket and charge was in relation to a rental property for which he did have a valid
rental certificate, he has not alleged facts to plausibly suggest that this criminal proceeding (even
if later dismissed) was not supported by probable cause when brought. He has therefore not
suggested that Defendants have violated a well-established right, much less that any such
violation met the requisite standard for unreasonableness.
35
Based on the above, Plaintiff has not alleged facts plausibly showing both that
Defendants violated his constitutional rights and that any reasonable official would have been
aware that Defendants’ conduct violated Plaintiff’s rights. Consequently, even if the Complaint
contains sufficient factual allegations to plausibly state constitutional claims against McCarthy
and Viscariello (a finding that this Court declines to make), those Defendants would be insulated
from liability by the doctrine of qualified immunity.
E.
Whether Plaintiff’s Factual Allegations Plausibly Suggest His Constitutional
Claims Against Defendants
Because the Court has already determined that Plaintiff’s Complaint must be dismissed
based on res judicata, or, alternatively, principles of municipal liability, lack of personal
involvement, and qualified immunity, the Court need not, and does not, discuss Plaintiff’s
substantive constitutional claims in any detail in this Decision and Order other than to note that it
accepts all of Defendants’ arguments on this issue as an alternative ground for dismissal.
F.
Whether Plaintiff Should Be Granted Leave to Amend
After carefully considering the matter, the Court answers this question in the negative for
the following reasons.
“Courts should generally not deny leave to amend a pro se complaint unless amendment
would be futile.” Morales v. Weiss, 596 F. App’x 36, 37 (2d Cir. 2014) (citing Cuoco v.
Moritsugu, 222 F.3d 99, 112 [2d Cir. 2000]). The Second Circuit noted in Cresci v. Mohawk
Valley Cmty. Coll., 693 F. App’x 21 (2d Cir. 2017), that it was improper to deny the plaintiff
leave to amend his complaint in the same order in which it granted the defendants’ motion to
dismiss because such action essentially required the plaintiff to amend his complaint before he
was notified of the deficiencies in his original complaint. Cresci, 693 F. App’x at 25. However,
36
the case that Cresci relied on, Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797
F.3d 160 (2d Cir. 2015), specifically noted that “[o]ur opinion today, of course, leaves unaltered
the grounds on which denial of leave to amend has long been held proper, such as undue delay,
bad faith, dilatory motive, and futility.” Loreley, 797 F.3d at 190; see also F5 Capital v. Pappas,
856 F.3d 61, 89 (2d Cir. 2017) (upholding the District Court’s finding that amendment would be
futile in a situation where the plaintiff requested leave to amend in its opposition to the motion to
dismiss in the event that the complaint was found to be insufficient because the plaintiff offered
no clue how the defects identified could be cured through an amendment). Therefore, the Court
is not required grant Plaintiff leave to amend, even though he expressly requested the
opportunity to amend should the Court find the Complaint deficient, if amendment would be
futile. “[W]hen a cross-motion for leave to file an amended complaint is made in response to a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), leave to amend will be denied as futile only if
the proposed new claim cannot withstand a 12(b)(6) motion to dismiss for failure to state a
claim.” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); accord F5 Capital,
856 F.3d at 89; Bridgeforth v. U.S. Navy Recruitment Office, 11-CV-0431, 2011 WL 5881778, at
*2 (N.D.N.Y. Nov. 23, 2011) (McAvoy, J.) (collecting cases); see also Panther Partners Inc. v.
Ikanos Commc’ns, Inc., 347 F. App’x 617, 622 (2d Cir. 2009) (“Granting leave to amend is futile
if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts
to support the claim.”).
The Court concludes that allowing Plaintiff the opportunity to amend the Complaint
would be futile. Specifically, the Court does not see any indication that Plaintiff could cure the
defects in the Complaint so as to not only preclude the application of res judicata, but also to
37
overcome the factual insufficiencies related to municipal liability as to the City and personal
involvement as to McCarthy and Visceriello. In making its findings, the Court has granted
Plaintiff the special solicitude owed to a pro se litigant8 and considered the allegations in his
affidavit and opposition memorandum of law in an effort to fill some of the gaps in the factual
allegations of the Complaint; however, even those additional factual allegations do not suggest
that Plaintiff can state plausible claims against the Defendants.
Plaintiff also requested the opportunity to amend to add two defendants, Jeffrey Briere
and Krystine Smith. (Dkt. No. 15, at ¶¶ 30-32 [Pl.’s Aff.].) Plaintiff alleges that Briere and
Smith retaliated against him in violation of his First Amendment right to refuse to give consent
to inspect his rental properties in the following ways: (1) Briere issued him an appearance ticket
for a violation of Section 210-6 after he informed the code enforcement office that he was not
consenting to a warrantless inspection on one of his properties; and (2) in court, Smith charged
him with the misdemeanor of renting without a rental certificate. (Dkt. No. 15, at ¶¶ 30-31 [Pl.’s
Aff.]; Dkt. No. 15, Attach. 1, at 19 [Pl.’s Opp’n Mem. of Law].) “A plaintiff asserting a First
Amendment retaliation claim must establish that: ‘(1) his speech or conduct was protected by the
First Amendment; (2) the defendant took an adverse action against him; and (3) there was a
causal connection between this adverse action and the protected speech.’” Matthews v. City of
New York, 779 F.3d 167, 172 (2d Cir. 2015).
Plaintiff’s statements do not show that he could plausibly allege a claim of First
Amendment retaliation against either Briere or Smith. Notably, in the documents that Plaintiff
8
The Court has done so despite its strong suspicion that Plaintiff’s papers (which
are properly formatted and filled with Blue Book legal citations) were authored (or at least
assisted) by an attorney.
38
submitted along with his affidavit is the appearance notice and an Information signed by Briere.9
(Dkt. No. 15, at 21-14.) In the Information, Briere notes that Plaintiff violated Section 210-6 of
the Ordinance (related to permitting occupancy of a rental unit without a current valid rental
certificate or temporary rental certificate) because an inspection on December 7, 2015, revealed
that the rental unit in question was being occupied by a person other than Plaintiff (the owner)
despite that fact that no rental certificate had been issued for that property, and no application for
a rental certificate had ever been filed for that property. (Id. at 21-23.) Plaintiff was given 48
hours to abate the violation by obtaining a rental certificate but failed to do so; follow-up
inspections on January 13, 2016, and February, 9, 2016,10 revealed that Plaintiff had not
complied with the order to abate the violation and he was issued an appearance ticket for this
violation on February 9, 2016. (Id. at 21, 23.) In his affidavit and opposition memorandum,
Plaintiff alleges that he applied for a rental certificate for the applicable property on December
10, 2015, which is three days after the December 7, 2105, inspection by Briere that revealed
9
The Court finds that it may consider these documents due to the specific nature of
the pleadings in this case. Notably, Plaintiff’s First Amendment retaliation claims against Briere
and Smith are asserted for the first time in his opposition memorandum of law and attached
affidavit in conjunction with Plaintiff’s request that, should his Complaint be found deficient, he
should be granted leave to amend and add Briere and Smith as defendants to pursue these claims.
(Dkt. No. 15, at , ¶¶ 30-32 [Pl.’s Aff.]; Dkt. No. 15, Attach. 1, at 19 [Pl.’s Opp’n Mem. of Law].)
Therefore, to the extent that the Court is treating Plaintiff’s newly raised claims as a proposed
Amended Complaint for the purposes of determining whether that amendment would be futile,
the Court may consider documents attached to the opposition memorandum and affidavit as they
relate to Plaintiff’s First Amendment retaliation claims against Briere and Smith. See L-7
Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (“On a 12(c) motion, the court
considers, ‘the complaint, the answer, any written documents attached to them, and any matter of
which the court can take judicial notice for the factual background of the case.’”).
10
Of note, Plaintiff does not allege that any of these “inspections” violated the
Fourth Amendment.
39
Plaintiff’s violation of Section 210-6. Therefore, Plaintiff’s own proposed factual allegations
plausibly suggest that the action that initiated Plaintiff’s criminal charge was not his refusal to
consent to an inspection in conjunction with a rental certificate application (his alleged protected
speech), but rather the identification of his violation of the Ordinance. Additionally, Plaintiff
alleges that he informed the code enforcement office of his refusal to consent to a warrantless
inspection in conjunction with his application on December 10, 2015, after which he was issued
an appearance ticket. (Dkt. No. 15, Attach. 1, at 19 [Pl.’s Opp’n Mem. of Law].) However, the
temporal proximity is not as close as Plaintiff’s vague characterization makes it appear. Rather,
Plaintiff refused consent on December 10, 2015, and was not issued an appearance ticket until
February 9, 2016, approximately two months later. While two months is not necessarily too long
a time to preclude inference of a causal connection between Plaintiff’s speech (assuming it is
protected speech) and the appearance ticket, “‘[a]n intervening event between the protected
activity and the adverse . . . action may defeat the inference of causation where temporal
proximity might otherwise suffice to raise the inference.’” Rumsey v. Northeast Health, Inc., 89
F. Supp. 3d 316, 336 (N.D.N.Y. 2015) (Sannes, J.) (quoting Joseph v. Marco Polo Network, Inc.,
09-CV-1597, 2010 WL 4513298, at *18 [S.D.N.Y. 2010]; citing Gubitosi v. Kapica, 154 F.3d
30, 33 [2d Cir. 1998]).
Here, following the initial discovery of Plaintiff’s violation of Section 210-6 and his
subsequent rental certificate application and refusal to consent to a warrantless inspection,
Plaintiff was afforded with two months to come into compliance with Section 210-6 before the
appearance ticket was issued, a period that is well beyond the 48 hours he was initially given to
obtain a rental certificate. Plaintiff could have complied with the Ordinance and avoided an
40
appearance ticket and criminal proceedings by either (a) allowing an inspection to obtain a rental
certificate, or (b) ceasing to allow a tenant to live in the property; he did neither. Plaintiff also
could have complied with Section 210-6 by applying for a temporary rental certificate. Notably,
Section 210-8(b) notes that, to obtain a 60-day temporary rental certificate, the owner must
submit an application for a temporary rental certificate along with “a sworn affidavit of the
owner that the rental unit substantially complies with the standards set forth in this section.”
Schenectady City Code § 210-8(B). What Section 210-8(B) does not require is an inspection.
Id. Plaintiff therefore could have sought and obtained a temporary rental certificate without
requiring him to consent to a warrantless inspection; yet he does not allege or give any indication
that he made any effort to do so. Plaintiff’s failure to take any of the actions available to him
(particularly seeking a temporary rental certificate, which required him to neither consent to a
warrantless inspection nor evict his tenant) is an intervening event that severs the causal
connection between his speech and the issuance of the appearance ticket (even setting aside the
fact that the code enforcement office had identified the violation and notified Plaintiff of that
violation before Plaintiff’s speech ever occurred). In addition, even if Plaintiff were able to
allege facts plausibly suggesting a prima facie case of retaliation (a finding the Court declines to
make), Briere’s Information sufficiently demonstrates that Plaintiff would have received a notice
of appearance and been subject to a criminal charge “regardless of the protected speech.” Shub
v. Westchester Cmty. Coll., 556 F. Supp. 2d 227, 251 (S.D.N.Y. 2008) (“Once a plaintiff
satisfies the three elements necessary to establish a First Amendment claim, the defendant may
avoid liability if it can ‘demonstrate by a preponderance of the evidence that is would have taken
the same adverse action regardless of the protected speech.”). Plaintiff therefore cannot state a
41
plausible claim for First Amendment retaliation against Briere or Smith based on the appearance
ticket and subsequent criminal charge. It therefore would be futile to allow him the opportunity
to amend the Complaint to add Briere and Smith as defendants based on the asserted First
Amendment retaliation claims.
For all of these reasons, the Court denies Plaintiff’s request to amend his Complaint,
despite his pro se status, because amendment would not cure the identified defects and would
therefore be futile.
G.
Whether the Court Should Exercise Supplemental Jurisdiction Over
Plaintiff’s State Law Claims
Because the Court finds that Plaintiff’s federal law claims should be dismissed, the Court
must also determine whether to exercise supplemental jurisdiction over Plaintiff’s remaining
state law claims against the City, McCarthy, and Viscariello. After carefully considering the
matter (including the factors of judicial economy, convenience, fairness and comity), the Court
finds that these state law claims would more appropriately be litigated in state court; the Court
therefore declines to exercise supplemental jurisdiction over these state law claims even if they
are not barred by the doctrine of res judicata (a question the Court need not, and does not, reach).
See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009) (“A district court’s
decision whether to exercise [supplemental] jurisdiction after dismissing every claim over which
it had original jurisdiction is purely discretionary.”); TPTCC NY, Inc. v. Radiation Therapy
Servs., Inc., 453 F. App’x 105, 107 (2d Cir. 2011) (stating that, “[i]n deciding whether to
exercise supplemental jurisdiction, a federal court should consider and weigh ‘the values of
judicial economy, convenience, fairness, and comity,’” and that “‘in the usual case in which all
federal-law claims are eliminated before trial,’ the balance of factors will weigh in favor of
42
declining to exercise supplemental jurisdiction”) (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 & n.7 [1988]).
ACCORDINGLY, it is
ORDERED that Defendants’ motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED such that Plaintiff’s
federal claims are DISMISSED with prejudice and his state law claims are DISMISSED
without prejudice to refiling in State Court pursuant to the governing limitations period(s) and
any applicability of the doctrine of res judicata.
Dated: March 27, 2018
Syracuse, New York
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
43
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