Warburton v. County of Ulster et al
Filing
18
DECISION AND ORDER granting # 7 County Defendants' Motion to Dismiss certain of Plaintiff's claims against them for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6)is GRANTED; and the following claims are DISMISSED: (1) Plaint iff's Takings Clause claim against the County Defendants pursuant to the Fifth Amendment ("Claim Three"); (2) Plaintiff's Monell claims against the County Defendants ("Claim Four"); and (3) Plaintiff's failure-to-tr ain-and-supervise claim against Defendant Van Blarcum ("Claim Six"). It is further ORDERED that Plaintiff SHOW CAUSE in writing, on or before OCTOBER 9, 2018, why the Court should not sua sponte dismiss her action without prejudice with re gard to the unserved Defendants pursuant to Fed. R. Civ. P. 4(m) and 41(b), and Local Rule 41.2(a) of the Local Rules of Practice for this Court, for failing to timely serve Defendants Abram Markiewitz, Oscar Lopez, Robert Shamro, Robert Leonardo, De nnis Doyle, Andres Arestin, Richard Jacobs and Phillip Mattraction with her Amended Complaint, and for failing to name and serve the John Doe Defendants. It is further ORDERED that the County Defendants are directed to file an answer to Plaintiff 9;s Amended Complaint within FOURTEEN DAYS of the date of this Decision & Order pursuant to Fed.R.Civ.P. Rule 12(a)(4)(a), and this case is referred back to Magistrate Judge Hummel for a Rule 16 conference and the setting of pretrial scheduling deadlines. The Clerk of the Court is directed to add Brian Schug as a Defendant. Signed by Chief Judge Glenn T. Suddaby on 9/24/18. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JENNIFER WARBURTON,
Plaintiff,
v.
1:17-CV-1219
(GTS/CFH)
COUNTY OF ULSTER; PAUL
VAN BLARCUM, Sheriff, County
of Ulster; JOHN DOES I-IV; ABRAM
MARKIEWITZ; OSCAR LOPEZ;
ROBERT SHAMRO; ROBERT
LEONARDO; DENNIS DOYLE;
ANDRES ARESTIN; RICHARD
JACOBS; PHILLIP MATTRACTION;
and BRIAN SCHUG,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
SUSSMAN & ASSOCIATES
Counsel for Plaintiff
1 Railroad Avenue
Goshen, New York 10924
MICHAEL H. SUSSMAN, ESQ.
MCCABE & MACK LLP
Counsel for Defendants County of Ulster
and Paul Van Blarcum
63 Washington Street
Poughkeepsie, New York 12602-0509
DAVID L. POSNER, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Jennifer Warburton
("Plaintiff") against the County of Ulster, Paul Van Blarcum, John Does I-IV, Abram
Markiewitz, Oscar Lopez, Robert Shamro, Robert Leonardo, Dennis Doyle, Andres Arestin,
Richard Jacobs, Phillip Mattracion, and Brian Schug (“Defendants”),1 is the motion by
Defendants County of Ulster and Paul Van Blarcum (“County Defendants”) to dismiss certain of
Plaintiff’s claims against them for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
(Dkt. No. 7.) For the reasons set forth below, the County Defendants’ motion is granted.
I.
RELEVANT BACKGROUND
A.
Procedural History
Plaintiff commenced this action against the County of Ulster, John Does I-IV, and Paul
Van Blarcum on November 6, 2017, by filing a Complaint in this Court. (Dkt. No. 1.) On
November 14, 2017, Plaintiff filed affidavits of service for the Summons, Complaint, and Civil
Case Management Plan indicating that service was complete on the County Defendants. (Dkts.
No. 4, 5.) The County Defendants filed this motion to dismiss on December 15, 2017. (Dkt. No.
7.) Plaintiff filed a response in opposition on January 9, 2018. (Dkt. No. 8.) The County
Defendants filed a reply memorandum of law in further support of their pending motion to
dismiss on January 11, 2018. (Dkt. No. 9.)
On April 13, 2018, pursuant to a stipulation between Plaintiff and the County
Defendants, Plaintiff filed an Amended Complaint against Defendants. (Dkt. No. 12.) By Order
dated April 16, 2018, the Court directed the County Defendants to advise the Court in writing by
April 27, 2018, as to which portions, if any, of their motion to dismiss still apply to the Amended
Complaint. (Dkt. No. 13.) The County Defendants filed a letter-brief on April 25, 2018,
1
The Amended Complaint asserts a cause of action against Brian Schug as a
Defendant. (Dkt. No. 12, at ¶¶ 44-57.) However, neither the caption of the Amended
Complaint, nor the caption of the Court’s docket sheet lists Mr. Schug as a Defendant. As a
result, the Clerk of the Court is directed to add Brian Schug as a Defendant.
2
indicating that their motion was not impacted by Plaintiff’s Amended Complaint and there is no
change to the County Defendants’ arguments. (Dkt. No. 15.) By Order dated April 30, 2018, the
Court sua sponte granted Plaintiff one week to file a supplement to her original opposition
memorandum of law if she desired, in light of the County Defendants’ letter-brief on April 25,
2018. (Dkt. No. 17.) To date, Plaintiff has not supplemented her response. (See generally Dkt.)
In addition, by Order dated April 16, 2018, the Court directed Plaintiff to show cause in
writing on or before April 27, 2018, why the Court should not sua sponte dismiss her action
without prejudice with regard to the unserved Defendants pursuant to Fed. R. Civ. P. 4(m) and
41(b), and Local Rule 41.2(a) of the Local Rules of Practice for this Court, for failing to timely
serve those Defendants (specifically, Abram Markiewitz, Oscar Lopez, Robert Shamro, Robert
Leonardo, Dennis Doyle, Andres Arestin, Richard Jacobs, and Phillip Mattraction). (Dkt. No.
14.) On April 27, 2018, Plaintiff responded to the Court’s Order by arguing that the Court
should not dismiss the action against the unserved Defendants because Plaintiff was acting in
good faith in working to obtain the names of John Does I-IV and amend her Complaint on April
13, 2018. (Dkt. No. 16.) To date, Plaintiff has not filed any affidavits of services against the
unserved Defendants, nor have any unserved Defendants appeared in the action. (See generally
Docket Sheet.)
B.
Plaintiff’s Claims
Generally, liberally construed, Plaintiff's Amended Complaint alleges as follows.
Plaintiff is the owner of 8 Warren Street, Ellenville, New York (the “Property”). (See
generally Dkt. No. 12 [Pl.’s Am. Compl.].) The Property is an apartment building with four
apartments and some shared common areas maintained by Plaintiff. (Id.) As of January 11,
3
2017, Plaintiff and her husband maintained Apartment 2 at the Property, for their own use and
occupancy, and leased on a yearly basis the other three apartments, designated as Apartments 1,
3, and 4. (Id.)
On or about January 11, 2017 at 5:30 A.M., Defendants Markiewitz, Lopez, Shamro,
Leonardo, Doyle, and Arestin of the Ulster County Sheriff’s Department, conducted a “raid” at
the Property. (Id.) Defendants Jacobs and Matricion (a police officer and chief, respectively,
with the Village of Ellenville Police Department) also participated in the raid at the Property.
(Id.)
Plaintiff was not present for the raid, had no prior notice of the raid, and did not give
Defendants or their agents permission to enter the common space of the building, which she
controlled, or Apartment 2. (Id.) During the raid, and without any reasonable basis or authority
to do so, Defendants entered Apartment 2. (Id.) During the raid, Defendants either directly
caused or permitted to be caused unnecessary physical damage to the door and door frame of
Apartment 2, such that the door was kicked in and the door frame molding was cracked. (Id.)
While executing a search warrant at the Property, Defendants caused extensive and
unnecessary physical damage, leading to the condemnation and boarding up of the Property by
the building inspector for the Village of Ellenville. (Id.) The physical damage to the Property
including Apartment 2, the common space, and the other apartments in the Property, was not
required or justified by any legitimate law enforcement purpose or exigency. (Id.) Due to the
damage caused by Defendants during the raid, the Village of Ellenville boarded every window
and door of the Property and vacated the premises. (Id.)
4
When Plaintiff re-entered the Property on January 14, 2017, she saw that much of the
interior had been destroyed, all apartment entry doors were kicked in, there were holes in the
walls and ceilings of several of the apartment units, kitchen cabinet doors were off the hinges,
and furniture and clothes were strewn about. (Id.)
Plaintiff has already spent $3,500.00 to clear out and remove debris that Defendants left
at the Property. (Id.) Repair of the other damage at the Property is beyond Plaintiff’s financial
ability to pay, rendering the Property a drain on her finances. (Id.) Defendants’ actions
constructively took Plaintiff’s property and rendered it economically useless to her. (Id.)
Based upon the foregoing allegations, the Amended Complaint asserts the following
seven claims: (1) a claim that all Defendants except Brian Schug violated Plaintiff’s due process
rights pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983 (“Claim One”); (2) a claim
that all Defendants except Brian Schug violated Plaintiff’s right to be free from unreasonable
searches and seizures pursuant to the Fourth Amendment and 42 U.S.C. § 1983 (“Claim Two”);
(3) a claim that all Defendants except Brian Schug intentionally engaged in an unauthorized
taking prohibited by the Fifth Amendment and 42 U.S.C. § 1983 (“Claim Three”); (4) a claim
that the County Defendants violated Plaintiff’s rights by failing to provide proper training and
supervision for their agents pursuant to the Fourth Amendment and 42 U.S.C. § 1983 (“Claim
Four”); (5) a claim that all Defendants except Richard Jacobs, Phillip Mattracion, and Brian
Schug negligently or recklessly caused undue and unnecessary damage to Plaintiff’s Property
pursuant to New York common law (“Claim Five”); (6) a claim that Defendant Van Blarcum
violated Plaintiff’s rights by failing to provide proper training and supervision to members of the
Ulster County Sheriff’s Department (“Claim Six”); and (7) a claim that Defendant Brian Schug,
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violated Plaintiff’s right to due process pursuant to the Fourteenth Amendment and 42 U.S.C. §
1983 (“Claim Seven”). (See generally Dkt. No. 12 [Pl.’s Am. Compl.].)
C.
Parties’ Briefing on the County Defendants’ Motion to Dismiss
1.
The County Defendants’ Memorandum of Law-in-Chief
Generally, in support of their motion to dismiss, the County Defendants asserts the
following two arguments: (1) the Amended Complaint fails to state a claim for a Fifth
Amendment “taking” because (a) the Takings Clause of the Fifth Amendment prohibits
government takings of “private property . . . for public use, without just compensation” and thus
has no applicability to circumstances in which the County Defendants were exercising authority
granted to them under the police power through a search warrant, and (b) Plaintiff did not plead
that she unsuccessfully utilized procedures offered by New York State to seek redress for her
claimed losses; and (2) the Amended Complaint fails to state a claim against the County of
Ulster and Defendant Van Blarcum in his official capacity for failure to train and supervise
because the Amended Complaint fails to allege “deliberate indifference” to the rights of persons
with whom the alleged untrained employees would come into contact, nor does it allege any
facts plausibly suggesting any failure to train and supervise by Defendant Van Blarcum. (See
generally Dkt. No. 7, Attach. 3 [Cnty. Defs.’ Mem. of Law].)
2.
Plaintiff’s Opposition Memorandum of Law
Generally, in Plaintiff's opposition to the County Defendants’ motion, Plaintiff asserts the
following two arguments: (1) the Fifth Amendment Takings Clause claim is viable and should
not be dismissed because (a) the Amended Complaint properly alleges that the search warrant
did not authorize entry to Plaintiff’s apartment nor did it authorize the wanton destruction to the
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building that Defendants committed, (b) the Amended Complaint alleges that Defendants
intentionally acted to destroy the possibility of habitation in Plaintiff’s residence, causing a
constructive taking, and (c) Plaintiff is not aware of any state remedial provision that is available
to compensate her for the damages sought here and the County Defendants do not cite to one;
and (2) the Monell claim should not be dismissed because (a) the Amended Complaint alleges a
municipal policy, practice, or custom sufficient to predicate municipal liability, (b) the Amended
Complaint alleges a causal relationship between the municipality’s failure to train, supervise, and
discipline officers who engage in improper searches and seizures, and (c) the Amended
Complaint sufficiently pleads deliberate indifference by the Defendant Van Blarcum to repeated
instances of violations establishing a direct causal link between municipal policy or custom and
the constitutional deprivation. (See generally Dkt. No. 8 [Pl.’s Opp’n Mem. of Law].)
3.
The County Defendants’ Reply Memorandum of Law
Generally in their reply, the County Defendants assert the following three arguments: (1)
because Plaintiff does not address the argument that the official capacity suit against Defendant
Van Blarcum is solely a suit against Defendant County, dismissal of the claim against him is
proper; (2) the Fifth Amendment Takings Clause claim should be dismissed because (a) the
Amended Complaint does not allege that the Property was taken for “public use” and thus no
claim under the Fifth Amendment has been stated, and (b) Plaintiff has not alleged that she tried
to get compensation under the Eminent Domain Procedure Law or in an action at law for
damages in state supreme court and thus she cannot demonstrate that she has been denied
compensation; and (3) the Amended Complaint fails to state a claim under Monell against Ulster
County because there are only bare assertions of such a claim’s elements, which are insufficient.
(See generally Dkt. No. 9 [Cnty. Defs.’ Reply Mem. of Law].)
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II.
RELEVANT LEGAL STANDARDS
A.
Legal Standard Governing Motions to Dismiss for Failure to State Claim
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).
Because such dismissals are often based on the first ground, a few words regarding that
ground are 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
8
212, n.17 (citing Supreme Court cases) (emphasis added).2
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. 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
2
Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.);
Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v.
Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
9
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
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
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“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
B.
Legal Standards Governing Plaintiff’s Claims
Because the parties to this action have demonstrated, in their memoranda of law, an
accurate understanding of the relevant points of law contained in the legal standards governing
Plaintiff’s claims in this action, the Court will not recite, in their entirety, those legal standards in
this Decision and Order, which is intended primarily for the review of the parties. (See generally
Dkt. No. 7, Attach. 3 [Cnty. Defs.’ Mem. of Law]; Dkt. No. 8 [Pl.’s Opp’n Mem. of Law]; Dkt.
No. 9 [Cnty. Defs.’ Reply Mem. of Law].)
III.
ANALYSIS
A.
Whether Plaintiff’s Third Claim Must Be Dismissed as Against the County
Defendants
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in the County Defendants’ memoranda of law. (Dkt. No. 7, Attach. 3
[Cnty. Defs.’ Mem. of Law]; Dkt. No. 9 [Cnty. Defs.’ Reply Mem. of Law].) To those reasons,
the Court would only add two points.
First, the Court agrees with the County Defendants’ argument that the Fifth Amendment
Takings Clause is not applicable in the situation presented here. “[P]olice power encompasses
the government’s ability to seize and retain property to be used as evidence in a criminal
prosecution.” Amerisource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008) (citing
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 309-10 [1967]).
In Bennis v. Michigan, the Supreme Court determined that forfeiture of an innocent wife
and co-owner’s interest in a vehicle that was used in connection with a crime was not a taking of
11
private property for public use in violation of the Takings Clause. Bennis v. Michigan, 516 U.S.
442, 453 (1996). The Court further held that police power does not implicate the power of
eminent domain. Bennis, 516 U.S. at 453.
In Seay v. United States, the government seized computer equipment and machinery
while investigating the unlicensed manufacture of designs protected by copyright. Seay v.
United States, 61 Fed. Cl. 32, 35 ( Fed. Cl. 2004). There, the seized property was damaged when
the plumbing ruptured at the government’s storage facility. Seay, 61 Fed. Cl. at 35. The Court
of Federal Claims held that it was not a taking if “[t]he government ultimately returned the
belongings, although damaged, and, therefore, the government never ‘took’ the plaintiff’s
belongings . . . . There is no taking associated with the retention of property that is ultimately
returned.” Id.
In Amerisource Corp. v. United States, drugs were seized from a wholesale
pharmaceutical distributor as evidence in criminal investigation. Amerisource Corp., 525 F.3d at
1153. The government held the drugs until they expired and never introduced the drugs as
evidence in the criminal proceedings. Id. The Federal Circuit held that “[p]roperty seized and
retained pursuant to the police power is not taken for a ‘public use’ in the context of the Takings
Clause.” Id.3
The Amended Complaint does not allege that the Property was taken; instead it alleges
only that Defendants damaged the Property. (See generally Dkt. No. 12.) Further, to the extent
that the Property was taken, it was not taken for a public purpose but rather pursuant to the
3
See also United States v. One 1979 Cadillac Coupe De Ville, 833 F.2d 994 (Fed
Cir. 1987) (holding that a claimant is not entitled to a monetary award for the amount by which
his vehicle decreased in value while in government custody).
12
police power. Therefore, the County Defendants’ alleged actions were not a violation of the
Takings Clause of the Fifth Amendment.
Second, the Court agrees with the County Defendants that, even if Plaintiff sustained a
taking pursuant to the Fifth Amendment, she “has not suffered a violation of the Just
Compensation Clause until she has unsuccessfully attempted to obtain just compensation
through the procedures provided by the State.” Village Pond, Inc. v. Town of Darien, 56 F.3d
375 (2d Cir. 1995). This is true and relief must be attempted under a state compensation
procedure, even where the state law “remains unsure and undeveloped.” Southview Assoc., Ltd.
v. Bongartz, 980 F.2d 84, 99 (2d Cir. 1992) (holding that a takings claim was unripe where the
plaintiff had not attempted to obtain compensation under the Vermont State Constitution’s taking
clause, even though no court ever had interpreted that clause to require compensation for a
regulatory taking); see also Austin v. City and County of Honolulu, 840 F.2d 678, 680-81 (9th
Cir. 1988) (“To establish that the state failed to offer just compensation, a landowner must seek
and be denied compensation through state procedures.”). In any event, New York State’s
procedures available to a property owner claiming a taking have been held to be constitutionally
adequate. New Holland Village Condo v. DeStaso Enters., 139 F. Supp. 2d 499, 504 (S.D.N.Y.
2001), aff’d, 29 F. App’x 760 (2d Cir. 2002); DeBari v. Town of Middletown, 9 F. Supp. 2d 156,
162-63 (N.D.N.Y. 1998) (McAvoy, C.J.). Furthermore, the Amended Complaint does not allege
that Plaintiff pursued state remedies for her claimed losses. (See generally Dkt. No. 12.)
For all of these reasons, County Defendants’ motion to dismiss the Fifth Amendment
Takings Clause claim is granted, and Claim Three is dismissed as against the County
Defendants.
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B.
Whether Plaintiff’s Fourth and Sixth Claims Must Be Dismissed as Against
the County Defendants
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in the County Defendants’ memoranda of law. (Dkt. No. 7, Attach. 3
[Cnty. Defs.’ Mem. of Law]; Dkt. No. 9 [Cnty. Defs.’ Reply Mem. of Law].) To those reasons,
the Court would only add two points.
First, as the County Defendants argue in their reply memorandum of law, Plaintiff does
not address the County Defendants’ argument that the official capacity suit against Defendant
Van Blarcum is solely a suit against the County, warranting a dismissal of the claims against
Defendant Van Blarcum. (Dkt. No. 9, at 2.) The only time Plaintiff addresses the capacity in
which Defendant Van Blarcum is sued is in footnote 3 of Plaintiff’s opposition memorandum of
law, where Plaintiff states that “[t]he Sheriff is sued in his individual capacity . . . .” (Dkt. No. 8,
at 11, n.3.) However, Plaintiff’s assertion is unpersuasive. The Amended Complaint specifically
alleges, “Defendant Paul Van Blarcum is the Sheriff of the County of Ulster and is sued in his
official capacity as the final policy-maker for the County of Ulster with regard to the conduct of
his agents, as set forth herein.” (Dkt. No. 12, at ¶ 3.) The Court finds that County Defendants
met this modest burden of establishing entitlement to dismissal of the fourth and sixth claims
against Defendant Van Blarcum.4
4
In this District, a movant’s burden with regard to an unopposed motion is
lightened such that, in order to succeed, the movant need only show its entitlement to the relief
requested in its motion, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1 n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases).
14
Second, the Court agrees with the County Defendants’ arguments that the Amended
Complaint contains no factual allegations to support Plaintiff’s fourth and sixth claims other than
bare, conclusory assertions of the elements. The Amended Complaint contains no allegation of
similar misconduct by members of the Ulster County Sheriff’s Department, which could provide
factual support of a claim that there was a pattern of poor training and supervision such that the
County Defendants can be said to have acted with deliberate indifference or even ordinary
negligence. (See generally Dkt. No. 12.)
For these reasons, Claims Four and Six are dismissed.
ACCORDINGLY, it is
ORDERED that the County Defendants’ motion to dismiss (Dkt. No. 7, Attach. 3) is
GRANTED; and it is further
ORDERED that the following claims are DISMISSED:
(1) Plaintiff’s Takings Clause claim against the County Defendants pursuant to the Fifth
Amendment (“Claim Three”);
(2) Plaintiff’s Monell claims against the County Defendants (“Claim Four”); and
(3) Plaintiff’s failure-to-train-and-supervise claim against Defendant Van Blarcum
(“Claim Six”); and it is further
ORDERED that Plaintiff is directed to again SHOW CAUSE in writing, on or before
OCTOBER 9, 2018, why the Court should not sua sponte dismiss her action without prejudice
with regard to the unserved Defendants pursuant to Fed. R. Civ. P. 4(m) and 41(b), and Local
Rule 41.2(a) of the Local Rules of Practice for this Court, for failing to timely serve Defendants
Abram Markiewitz, Oscar Lopez, Robert Shamro, Robert Leonardo, Dennis Doyle, Andres
15
Arestin, Richard Jacobs and Phillip Mattraction with her Amended Complaint, and for failing to
name and serve the John Doe Defendants; and it is further
ORDERED that the County Defendants file an answer to Plaintiff’s Amended Complaint
within FOURTEEN DAYS of the date of this Decision & Order pursuant to Fed.R.Civ.P. Rule
12(a)(4)(a), and this case is referred back to Magistrate Judge Hummel for a Rule 16 conference
and the setting of pretrial scheduling deadlines; and it is further
ORDERED that the Clerk of the Court is directed to add Brian Schug as a Defendant.
Dated:
September 24, 2018
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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