Warburton v. County of Ulster et al
Filing
60
DECISION AND ORDER granting # 41 Defendant Schug's Motion to Dismiss. Plaintiff's Due Process Clause claim against Defendant Schug pursuant to the Fourteenth Amendment is dismissed. Signed by Chief Judge Glenn T. Suddaby on 7/1/19. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JENNIFER WARBURTON,
Plaintiff,
v.
1:17-CV-1219
(GTS/CFH)
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,
Abram Markiewitz, Oscar Lopez, Robert
Shamro, Robert Leonardo, Dennis Doyle,
Andres Arestin
63 Washington Street
Poughkeepsie, New York 12602-0509
DAVID L. POSNER, ESQ.
DRAKE LOEB PLLC
Counsel for Defendant Richard Jacobs
and Phillip Mattraction
555 Hudson Valley Avenue, Suite 100
New Windsor, New York 12553
ADAM RODD, ESQ.
COOK, NETTER, CLOONAN, KURTZ
& MURPHY, P.C.
Counsel for Defendant Brian Schug
85 Main Street
Kingston, New York 12401
MICHAEL T. COOK, 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”), is a motion by Defendant
Schug to dismiss Plaintiff’s claim against him for failure to state a claim pursuant to Fed. R. Civ.
P. 12(b)(6). (Dkt. No. 41.) For the reasons set forth below, Defendant Schug’s motion is
granted.
I.
RELEVANT BACKGROUND
A.
Procedural History
On September 24, 2018, the Court issued a Decision and Order that outlined the
procedural history to date and dismissed Claim Three against Defendants County of Ulster and
Van Blarcum, Claim Four against Defendant County of Ulster, and Claim Six against Defendant
Van Blarcum. (Dkt. No. 18.)
On October 22, 2018, Plaintiff filed an affidavit of service reflecting that the Summons
and Complaint had been served on Defendant Schug on October 17, 2018. (Dkt. No. 29.)
On October 30, 3018, Plaintiff and Defendants County of Ulster and Van Blarcum filed a
partial stipulation of discontinuance (the “Stipulation”). (Dkt. No. 30.) The Stipulation
2
dismissed Claim One against Defendants County of Ulster and Van Blarcum, Claim Two against
Defendants County of Ulster and Van Blarcum, and Claim Five against Defendant Blarcum.
(Id.)
B.
Plaintiff’s Claims
The Court summarized Plaintiff’s Claims in its Decision and Order dated September 24,
2018. (Dkt. No. 18.) However, generally, liberally construed, Plaintiff's Amended Complaint
alleges as follows with regard to Defendant Schug.
Plaintiff is the owner of 8 Warren Street, Ellenville, New York (the “Property”). (See
generally Dkt. No. 12 [Pl.’s Am. Compl.].) Defendant Schug, the building inspector for the
Village of Ellenville, ordered that the Property be vacated and boarded due to the extensive
damage caused by the other Defendants. (Id.) Plaintiff sought to make repairs to the Property
but Defendant Schug refused to permit her to do so unless she agreed to convert the Property
from a four-family residence to a single-family residence. (Id.) Plaintiff did not agree to
converting the Property to a single-family residence. (Id.) As a result, Defendant Schug
condemned the Property and wrote and served on Plaintiff five “baseless violation notices” that
were dated January 11, 2017. (Id.)
Plaintiff hired counsel to defend her against the violation notices. (Id.) On the advice of
her defense counsel, Plaintiff pleaded guilty to four of the violations and paid a fine in the
amount of $300. (Id.) Defendant Schug knew that these violations were baseless and proceeded
against Plaintiff as a means of punishing her for refusing to convert the Property to a singlefamily residence. (Id.)
3
Sometime later, while continuing to exclude Plaintiff from the Property, Defendant
Schug allowed the bank, which held the first mortgage on the Property, to enter and repair the
Property as a four-family residence, with the understanding that Plaintiff’s interest in the
Property would be foreclosed. (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”);1 (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”);2
(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”);3 (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”);4 (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
1
Claim One was dismissed against Defendants County of Ulster and Van Blarcum,
pursuant to the Stipulation. See, supra Part I.A. of this Decision and Order.
2
Claim Two was dismissed against Defendants County of Ulster and Van Blarcum,
pursuant to the Stipulation. See, supra Part I.A. of this Decision and Order.
3
Claim Three was dismissed against Defendants County of Ulster and Van
Blarcum, pursuant to the Court’s Decision and Order dated September 24, 2018. See, supra Part
I.A. of this Decision and Order.
4
Claim Four was dismissed pursuant to the Court’s Decision and Order dated
September 24, 2018. See, supra Part I.A. of this Decision and Order.
4
pursuant to New York common law (“Claim Five”);5 (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”);6 and (7) a claim that Defendant Brian Schug,
violated Plaintiff’s right to due process pursuant to the Fourteenth Amendment and 42 U.S.C. §
1983 (“Claim Seven”).7 (See generally Dkt. No. 12 [Pl.’s Am. Compl.].)
C.
Parties’ Briefing on Defendant Schug’s Motion to Dismiss
1.
Defendant Schug’s Memorandum of Law-in-Chief
Generally, in support of his motion to dismiss, Defendant Schug asserts the following
three arguments: (1) Plaintiff’s sole claim against him implicates the validity of her guilty pleas
and, pursuant to the Heck doctrine, cannot be brought unless her guilty pleas are vacated; (2) in
any event, the Amended Complaint does not allege facts that plausibly suggest a procedural due
process violation by Defendant Schug because she alleges that she hired an attorney, entered
pleas of not guilty, then entered pleas of guilty, and was afforded an opportunity to be heard; and
(3) similarly, the Amended Complaint does not allege facts that plausibly suggest a substantive
due process violation by Defendant Schug because merely initiating a housing code violation
5
Claim Five was dismissed against Defendant Van Blarcum, pursuant to the
Stipulation. See, supra Part I.A. of this Decision and Order.
6
Claim Six was dismissed pursuant to the Court’s Decision and Order dated
September 24, 2018. See, supra Part I.A. of this Decision and Order.
7
More specifically, the Amended Complaint alleges that Defendant Schug violated
the Due Process Clause of the Fourteenth Amendment, “which required Schug to treat plaintiff
fairly, with investigative and court proceedings conducted in manner consistent with the rights
established to protect citizens, including the right to an investigation that is free from bias, the
right to a speedy trial, the right to avoid self-incrimination, the right to effective assistance of
counsel, the right to review and confront the evidence and testimony against him / her [sic], and
the right to demand that the state prove any charges beyond a reasonable doubt.” (Dkt. No. 12,
at 11.)
5
proceeding that he knew or should have known to lack probable cause, without any allegation of
animus, does not rise to the level of “outrageously arbitrary.” (See generally Dkt. No. 41,
Attach. 2 [Def. Schug’s Mem. of Law].)
2.
Plaintiff’s Opposition Memorandum of Law
Generally, in Plaintiff's opposition to Defendant Schug’s motion, she asserts the
following three arguments: (1) the Heck doctrine does not preclude Plaintiff’s claim against
Defendant Schug because she is not challenging her underlying plea and seeks no relief that
implicates the validity of her plea, but instead she is alleging that Defendant Schug with “no
legal right” excluded her from the Property and conditioned her ability to repair the Property on
her agreement to convert the Property from a four-family residence to a single-family residence;
(2) the Amended Complaint adequately alleges that Defendant Schug violated Plaintiff’s
procedural due process rights because it alleged that she was not afforded any pre-deprivation
process before Defendant Schug excluded her from the Property and conditioned her ability to
repair the Property on her agreement to convert the Property from a four-family residence to a
single-family residence; and (3) the Amended Complaint adequately alleges that Defendant
Schug violated Plaintiff’s substantive due process rights because it alleged that he improperly
changed the classification of the Property without re-zoning or any other regularized process.
(See generally Dkt. No. 44 [Pl.’s Opp’n Mem. of Law].)
3.
Defendant Schug’s Reply Memorandum of Law
Generally in his reply, Defendant Schug asserts the following two arguments: (1) the
allegations contained in the Amended Complaint implicate the validity of Plaintiff’s state court
convictions because it alleges that Defendant Schug retaliated against Plaintiff for her refusal to
6
convert the Property to a single-family residence, by issuing the “baseless” housing code
violations and subsequently denying her access to the Property; and (2) Plaintiff fails to allege
facts that plausibly suggest a due process violation because, had she successfully challenged the
housing code violations, she would have also resolved the issue of whether she was entitled
access to the Property, but Plaintiff opted to plead guilty to the violations and thus forgo the
opportunity to present evidence and confront the allegations against her. (See generally Dkt. No.
45 [Def. Schug’s Reply Mem. of Law].)
II.
LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO
STATE A 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).
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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).8
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
8
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.).
8
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
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.
9
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).
III.
ANALYSIS
After carefully considering the matter, the Court grants Defendant Schug’s motion to
dismiss Plaintiff’s Due Process Clause claim pursuant to the Fourteenth Amendment (Claim
Seven) for the reasons stated in Defendant Schug’s memoranda of law. (Dkt. No. 41, Attach. 2
[Def. Schug’s Mem. of Law]; Dkt. No. 45 [Def. Schug’s Reply Mem. of Law].) To those
reasons, the Court would only add two points.
First, the Court agrees with Defendant Schug’s argument that the allegations regarding
Claim Seven necessarily implicate Plaintiff’s underlying conviction and thus cannot be
recovered absent a showing that her conviction was reversed. Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). If Plaintiff was successful in defending the allegedly “baseless” housing
violations with which Defendant Schug charged her, she would have resolved the issue of
whether she was entitled access to the Property to make the repairs.
Moreover, to the extent that Plaintiff bases her due process claim on a failure to
investigate, it is subject to dismissal because “allegations of a failure to investigate do not create
10
an independent due process claim, but instead are properly regarded as part of plaintiff’s false
arrest and malicious prosecution claims.” Blake v. Race, 487 F. Supp. 2d 187, 212 n.18
(E.D.N.Y. 2007); see also Schweitzer v. Brunstein, 16-CV-1172, 2016 WL 4203482, at *2
(E.D.N.Y. Aug. 9, 2016) (noting that there is no constitutional right to an adequate
investigation”).
The Court also notes that Plaintiff does not have a constitutional right to cure any defects
before being issued a housing code violation. Mazzone v. Town of Southampton, 293 F. Supp. 3d
38, 48-49 (E.D.N.Y. 2017). It is a discretionary decision on the Town’s part whether to issue an
appearance ticket where violations are found to have existed rather than providing Plaintiff with
an opportunity to cure. Mazzone, 293 F. Supp. 3d at 49. As a result, the fact that Defendant
Schug allegedly issued Plaintiff “baseless” tickets (to which Plaintiff pleaded guilty), without
first providing her an opportunity to fix the housing code violations, is not a constitutional
violation. Id.
Second, in the alternative, the Court agrees with Defendant Schug’s argument that the
Amended Complaint failed to allege facts that plausibly suggest a due process violation.
“Substantive due process protects against government action that is arbitrary, conscienceshocking, or oppressive in a constitutional sense, but not against government action that is
incorrect or ill advised.” Cunney v. Bd. of Trustees of the Vill. of Grand View, New York, 660
F.3d 612, 626 (2d Cir. 2011) (quoting Kaluczky v. City of White Plains, 57 F.3d 202, 211 [2d
Cir. 1995]). “In order to shock the conscience and trigger a violation of substantive due process,
official conduct must be outrageous and egregious under the circumstances; it must be truly
‘brutal and offensive to human dignity.’” Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007)
(quoting Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 [2d Cir. 2002]).
11
Plaintiff has not alleged any facts that plausibly suggest government action that is
“outrageously arbitrary,” particularly in the absence of any evidence of direct animus towards
her. Dellutri v. Vill. of Elmsford, 895 F. Supp. 2d 555, 574 (S.D.N.Y. 2012) (collecting cases).
“Procedural ‘[d]ue process requires only that the state afford a party threatened with a
deprivation of property a process involving pre-deprivation notice and access to a tribunal in
which the merits of the deprivation may be fairly challenged.’” Dellutri, 895 F. Supp. 2d at 574
(quoting Chase Grp. Alliance LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 151-52 [2d
Cir. 2010]). However, “[w]here a deprivation at the hands of a government actor is ‘random and
unauthorized,’” Norton v. Town of Brookhaven, 33 F. Supp. 3d 215, 238 (E.D.N.Y. 2014), as
opposed to “the more structured environment of established state procedures” Hellenic Am.
Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citing
Hudson v. Palmer, 468 U.S. 517, 532 [1984]), it is “impossible for the government to provide a
pre-deprivation hearing, [and] due process requires only a post-deprivation proceeding.” Norton,
33 F. Supp. 3d at 238.
As set forth above, if Plaintiff had challenged the allegedly “baseless” violations instead
of pleading guilty to them, she would have had the opportunity to present evidence, crossexamine witnesses, and be heard. In addition, if Plaintiff had been successful in her defense, she
would have resolved the issue of her access to the Property.
For each of these alternative reasons, Defendant Schug’s motion to dismiss the Due
Process Clause claim pursuant to the Fourteenth Amendment (Claim Seven) is granted.
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ACCORDINGLY, it is
ORDERED that Defendant Schug’s motion to dismiss (Dkt. No. 41) is GRANTED; and
it is further
ORDERED that Plaintiff’s Due Process Clause claim against Defendant Schug pursuant
to the Fourteenth Amendment (“Claim Seven”) is DISMISSED:
ORDERED that the Clerk of the Court shall TERMINATE Brian Schug as a Defendant
from this case.
Dated: July 1, 2019
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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