Ruggiero v. City of Cortland, New York et al

Filing 66

MEMORANDUM-DECISION & ORDER: It is Ordered that the County Defendants' # 51 Motion to Dismiss is GRANTED; The City Defendants' # 54 Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Plaintiff's claims against the County def endants are DISMISSED WITH PREJUDICE. The Clerk of the Court shall terminate the County defendants as parties to this action. Plaintiff's conspiracy, false arrest, malicious prosecution, denial of medical treatment, and state law constitutional claims against the City defendants are DISMISSED WITH PREJUDICE. Plaintiff's First Amendment retaliation and Fourteenth Amendment Equal Protection claims against the City defendants are DISMISSED WITHOUT PREJUDICE; finally it is Ordered that Pla intiff may file an amended complaint as to the First Amendment retaliation and Fourteenth Amendment Equal Protection claims against the City defendants in accordance With the instructions set forth above within thirty (30) days from the date of this MemorandumDecision & Order. Signed by Judge David N. Hurd on 11/14/2018. (Copy served upon the pro se plaintiff via regular mail) (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------GERALD RUGGIERO,
Plaintiff,
-vCITY OF CORTLAND,
NEW YORK, COUNTY OF
CORTLAND, NEW YORK,
BRIAN TOBIN, individually
and in his official capacity
as Mayor, RICHARD VAN
DONSEL, individually and in
his official capacity as
Corporation Counsel, DAVID
BRIGGS, individually and
in his official capacity as Tax
Assessor, ROBERT RHEA,
individually and in his official
capacity as Zoning Officer,
MACK COOK, individually his
official capacity as Director of
Administration and Finance,
WILLIAM KNICKERBOCKER,
individually his official capacity
as Director of Code Enforcement,
CHARLES GLOVER, individually
his official capacity as Fire Chief,
MARY KAY HICKEY, individually
and in her official capacity as
Chairperson of the Zoning Board
of Appeals Chairperson, JIM
REENERS, individually and in
his official capacity as a member
of the Planning Commission,
TROY BECKWITH, individually
and in his official capacity as
member of the Planning
Commission, KATHRYN
SILLIMAN, individually and in
her official capacity as Alderman,
KEN DYE, individually

5:17-CV-790

and in his official capacity as
Alderman, THOMAS MICHALES,
individually and in his official
capacity as Alderman, JOHN
BENNETT, JR., individually and in
his official capacity as Alderman,
MARK SUBEN, individually and
in his official capacity as Cortland
County District Attorney, F. MICHAEL
CATALANO, individually and in his
official capacity as Chief of Police,
PAUL SANDY, individually and in
his official capacity as Deputy Chief
of Police, BRIAN MYERS,
individually and in his official capacity
as Police Officer, KENNETH BUSH,
individually and in his official capacity
as Investigating Police Officer,
JOHN DOE(S), and JANE DOE(S),
Defendants.
----------------------------------APPEARANCES:

OF COUNSEL:

GERALD RUGGIERO
Plaintiff, Pro Se
764 Sleepy Hollow Road
Cortland, NY 13045
OFFICE OF FRANK W. MILLER
Attorneys for Defendants City of
Cortland, New York, Brian Tobin,
Richard Van Donsel, David Briggs,
Robert Rhea, Mack Cook, William
Knickerbocker, Charles Glover,
Mary Kay Hickey, Jim Reeners,
Troy Beckwith, Kathryn Silliman,
Ken Dye, Thomas Michales, John
Bennett, Jr., Mark Suben, F. Michael
Catalano, Paul Sandy, Brian Myers,
and Kenneth Bush
6575 Kirkville Road
East Syracuse, NY 13057

FRANK W. MILLER, ESQ.
CHARLES C. SPAGNOLI, ESQ.

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BARTH, SULLIVAN LAW FIRM
Attorneys for Defendant County
of Cortland, New York
224 Harrison Street
Syracuse, NY 13202

DAVID H. WALSH, IV, ESQ.

CORTLAND COUNTY
ATTORNEY'S OFFICE
Attorneys for Defendant County
of Cortland, New York
60 Central Avenue, Suite 312
Cortland, NY 13045

KAREN L. HOWE, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On July 19, 2017, pro se plaintiff Gerald Ruggiero ("Ruggiero" or "plaintiff") initiated
this civil rights action against defendants County of Cortland, New York (the "County"),
Cortland County District Attorney Mark Suben ("District Attorney Suben"), the City of
Cortland, New York (the "City"), Mayor Brian Tobin ("Mayor Tobin" or "Tobin"), Corporation
Counsel Richard Van Donsel ("Attorney Van Donsel"), Tax Assessor David Briggs ("Tax
Assessor Briggs"), Zoning Officer Robert Rhea ("Zoning Officer Rhea"), Director of
Administration and Finance Mack Cook ("Director Cook"), Director of Code Enforcement
William Knickerbocker ("Director Knickerbocker"), Fire Chief Charles Glover ("Fire Chief
Glover" or "Glover"), Zoning Board of Appeals Chairperson Mary Kay Hickey ("Chairperson
Hickey"), Planning Commission Member Jim Reeners ("Commission Member Reeners"),
Planning Commission Member Troy Beckwith ("Commission Member Beckwith"), Alderman
Kathryn Silliman ("Alderman Silliman"), Alderman Ken Dye ("Alderman Dye"), Alderman
Thomas Michales ("Alderman Michales"), Alderman John Bennett, Jr. ("Alderman Bennett"),
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Chief of Police F. Michael Catalano ("Police Chief Catalano"), Deputy Chief of Police Paul
Sandy ("Deputy Chief Sandy"), Police Officer Brian Myers ("Officer Myers"), Police Officer
Kenneth Bush ("Officer Bush"), and John and Jane Does (collectively the "Does").
Ruggiero's operative complaint1 sets forth eight causes of action pursuant to 42
U.S.C. §§ 1983 and 1985 as well as the New York State Constitution. The County and
District Attorney Suben (collectively the "County defendants") have moved under Federal
Rule of Civil Procedure ("Rule") 12(c) for a judgment on the pleadings dismissing plaintiff's
operative complaint insofar as it asserts one or more claims against them. The City, Mayor
Tobin, Attorney Van Donsel, Tax Assessor Briggs, Zoning Officer Rhea, Director Cook,
Director Knickerbocker, Fire Chief Glover, Chairperson Hickey, Commission Member
Reeners, Commission Member Beckwith, Alderman Silliman, Alderman Dye, Alderman
Michales, Alderman Bennett, Police Chief Catalano, Deputy Chief Sandy, Officer Myers, and
Officer Bush (collectively the "City defendants") have also filed a Rule 12(c) motion
requesting complete dismissal of the various claims asserted against them.
Ruggiero opposes both motions, which have been fully briefed and will be considered
on the basis of the submissions without oral argument.
II. BACKGROUND2
Since the early 1990s, Ruggiero has invested in rental properties in and around the
City. Am. Compl. ¶ 34. In 2009, the City passed Rental Housing Law § 102 ("Section
102"). Id. ¶ 41. According to plaintiff, Section 102 was intended to "provide the City with

1

Plaintiff amended his complaint on August 29, 2017. Dkt. No. 32.

2

The following factual allegations are assumed true for purposes of resolving defendants' motions to

dismiss.
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better information and tools to enforce laws limiting the number of unrelated persons per
dwelling unit, and [to] stop[ ] the excess paving of green space to accommodate the excess
tenants." Id. Plaintiff alleges that Tobin, then a City alderman, "conspired to steer the
direction of the development of the rental permit law [Section 102] for the economic benefit of
[Chris] Calabro against the legislative intent of the local zoning ordinances" and the City's
comprehensive zoning plan. Id. ¶ 42. As plaintiff explains, Chris Calabro ("Calabro") was,
and remains at all times relevant here, Mayor Tobin's "friend and political donor." Id. ¶ 39.
On July 19, 2011, former City Corporation Counsel Patrick Perfetti ("Attorney Perfetti")
wrote an e-mail admonishing then-mayoral candidate Tobin for arguing "that some citizens
should get special treatment." Am. Compl. ¶ 38. According to Ruggiero, Tobin's argument
explicitly "condone[d] the breaking of City laws by some landlords." Id.
On August 15, 2011, then-candidate Tobin, in apparent disregard of Attorney Perfetti's
advice, e-mailed the City's aldermen stating "Chris Calabro was not breaking the laws and
therefore was entitled to special treatment." Am. Compl. ¶ 39. Candidate Tobin's e-mail
further indicated "he was proud to have the financial support of his friend and donor and
would stand by and support him." Id.
On August 12, 2011, Glover, then the Director of Code Enforcement, "admitted that
the City of Cortland selectively enforces the zoning laws through the use of improperly issued
[zoning permits], specifically to Calabro." Am. Compl. ¶ 40. At that time, Glover placed the
blame for this practice "on the lawyers and politicians." Id. According to plaintiff's complaint,
Glover's statements were captured "in a tape recorded and transcribed conversation." Id.
On January 1, 2012, Tobin became Mayor. Am. Compl. ¶ 43. According to the
amended complaint, Mayor Tobin's administration has "intentionally enforced the zoning and
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code enforcement laws differently for his donor [Calabro] and for others connected to the
City. Id.
At some point, Ruggiero "was placed on the agenda" of the November 18, 2013
Zoning Board of Appeals ("ZBA") meeting to "discuss fraudulently issued [zoning permits] by
the City." Am. Compl. ¶ 45. However, plaintiff alleges Attorney Van Donsel conspired with
Chairperson Hickey to remove plaintiff from the proceeding. Id. ¶ 46. According to the
amended complaint, Attorney Van Donsel asked Chairperson Hickey "to not communicate
the reasons for the removal to the other ZBA members or to allow any discussion." Id.
On March 7, 2014, during an Article 78 proceeding brought by Ruggiero, Attorney Van
Donsel "intentionally and with malice misrepresented the zoning ordinances and case law in
an effort to mislead the Chenango County State Supreme Court." Am. Compl. ¶ 47.
Thereafter, Ruggiero requested to meet with the City's "Ethics Board" to "discuss the
corruption and the selective enforcement of the zoning laws and illegal tax assessments in
the City" as well as the "unlawful and discriminatory acts by the Defendants." Am.
Compl. ¶ 48. Plaintiff alleges Mayor Tobin's administration "never set up" the Ethics Board,
which is itself a "violation of the City Charter." Id. Plaintiff further alleges the issue was
"hurriedly" placed on the Common Council's May 20, 2014 agenda. Id.
On May 20, 2014, the Common Council appointed Attorney Van Donsel as well as
former alderman Clay Benedict ("Benedict") to the ethics committee to fill two of the three
vacant positions. Am. Compl. ¶ 49. Four days later, plaintiff e-mailed Mayor Tobin
requesting a meeting with the Ethics Board, the aldermen, and/or Mayor Tobin "to discuss
the selective enforcement of the zoning laws." Id. ¶ 50. Mayor Tobin responded by advising
plaintiff to "share whatever documentation you have with the City Corporation Counsel so he
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can make a determination about its validity and the appropriate actions, if
needed." Id. According to the amended complaint, "filter[ing]" complaints through Attorney
Van Donsel violated the City Charter and plaintiff's constitutional rights. Id.
On May 27, 2014, Calabro received approval from the City Planning Commission "to
add a drywell to the backyard and raise a rear roof on his property at 89 Tompkins
Street." Am. Compl. ¶ 52. According to the amended complaint, the Planning Commission's
approval "ignored the necessity of variances in violation of their duty in §300-135(B)(1)." The
complaint further alleges that this work and other, related improvements made by Calabro at
the Tompkins Street property were performed "all without necessary permits and
variances." Id.
On November 12, 2014, at 12:00 p.m., Zoning Officer Rhea told Ruggiero "that the
zoning laws are not enforced equally, and [p]laintiff is a fool if he thinks they should be." Am.
Compl. ¶ 53. According to plaintiff's complaint, Zoning Officer Rhea then "made the decision
that a variance was not required for [Calabro's Tompkins Street] property." Id. ¶ 54. Plaintiff
appealed the decision to the ZBA, which put the matter on the December 8, 2014
agenda. Id. ¶ 55.
Thereafter, in an e-mail sent on December 3, 2014, Zoning Officer Rhea, Attorney
Van Donsel, Director Cook, and Chairperson Hickey "unsuccessfully conspired in ex parte
communication to rule against" Ruggiero. Am. Compl. ¶ 55. Plaintiff further alleges that
Attorney Van Donsel "attempted to remove" plaintiff from the proceeding in a communication
with Chairperson Hickey. Id. ¶ 56.
On December 8, 2014, Ruggiero presented his case at the ZBA hearing. Am.
Compl. ¶ 57. The ZBA then "closed the hearing for deliberations, requested documents from
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both sides, and tabled the appeal until the January 12, 2015 meeting." Id.
On December 24, 2014, pursuant to a request made by the ZBA at the last meeting,
Ruggiero submitted to the aldermen, the ZBA members, and City officials "substantial
evidence proving discriminatory enforcement of the zoning laws for political reasons." Am.
Compl. ¶ 58. After reviewing the evidence, the aldermen "recommended an independent
committee to review the evidence" at the upcoming meeting of the Common Council. Id.
The complaint alleges the aldermen never formed any such committee. Id. ¶ 59.
On December 29, 2014, Zoning Officer Rhea conspired with Attorney Van Donsel to
remove Ruggiero from the ZBA's January 12, 2015 agenda. Am. Compl. ¶ 60. After Zoning
Officer Rhea told plaintiff he had been removed from the agenda, plaintiff "immediately
appealed and the matter was placed back on the agenda." Id
On January 12, 2015, between 9:05 a.m. and 9:26 a.m., Attorney Van Donsel and
Chairperson Hickey exchanged a series of e-mails in which they conspired to remove
Ruggiero from the ZBA's agenda. Am. Compl. ¶ 61. According to the amended complaint,
the pair planned to use police to remove plaintiff. Id. During the meeting, ZBA member
David Funk ("ZBA Member Funk") refused Attorney Van Donsel's request to dismiss
plaintiff's case for running afoul of the relevant statute of limitations. Id. ¶ 62. The ZBA again
tabled their deliberations and asked for more information from the City. Id.
On or about January 19, 2015, Alderman Linda Ferguson ("Alderman Ferguson")
contacted Ruggiero to tell him that "City officials were manufacturing a harassment case to
silence him regarding the selective enforcement of the zoning laws." Am. Compl. ¶ 63.
Among other things, Alderman Ferguson told plaintiff "she was aware of evidence that
contradicted this manufactured case." Id.
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On January 20, 2015, Ruggiero met with Police Chief Catalano "to discuss the
corruption in the City" and the "manufacturing of a false harassment charge." Am.
Compl. ¶ 64. The amended complaint alleges that Director Cook, "in a tape recorded
conversation," agreed with plaintiff about the "discriminatory enforcement of the zoning and
code enforcement laws and illegal tax assessments." Id. ¶ 65. Plaintiff e-mailed the
aldermen to alert them to these recorded admissions. Id.
On February 9, 2015, the ZBA "made clear" that "no evidence exists" to establish that
Calabro's Tompkins Street project did not need a variance. Am. Compl. ¶ 66. At this
meeting, ZBA Member Christine Place ("ZBA Member Place") "admitted on the record" that
ZBA members were aware of selective enforcement of the zoning regulations by unnamed
City officials. Id. ¶ 67. ZBA Member Place also "admitted awareness" of "unequal tax
assessments favoring connected landlords." Id.
On March 2, 2015, "in a taped and transcribed conversation," Zoning Officer Rhea told
Ruggiero the City was "creating a Certificate of Compliance to take care of the defects in the
statute of limitations argument that were adjudicated at the last ZBA meeting." Am.
Compl. ¶ 68.
On March 4, 2015, Zoning Officer Rhea told Ruggiero that "the grandfather date for
occupancy restrictions can be different for each landlord, agreed that Calabro needed a
variance, and that the City can enforce zoning laws different against landlords in similar
situations." Am. Compl. ¶ 69. Plaintiff documented this discussion in an e-mail. Id.
On March 9, 2015, at a fourth ZBA meeting, ZBA Member Place "produced a
Certificate of Compliance that was "allegedly found on that day" by the property owner
Calabro." Am. Compl. ¶ 71 (emphasis in original). However, ZBA Member Funk expressed
-9-

on the record his belief that the document was not real because Calabro had "told him a few
months earlier that he was never given a Certificate of Compliance." Id.
On April 4, 2015, Alderman Dye conspired with other unnamed defendants to retaliate
against Ruggiero by e-mailing District Attorney Suben to request that plaintiff be prosecuted
for harassment. Am. Compl. ¶ 70. The amended complaint alleges that Alderman Dye's
e-mail suggested District Attorney Suben was "an outside source" that "would shield the
involvement of the City Defendants." Id.
On April 7, 2015, at a "videotaped public meeting held in City Hall," Mayor Tobin and
Zoning Officer Rhea violated Ruggiero's "personal space" in front of approximately fifty
people. Am. Compl. ¶ 76.
On April 28, 2015, Chairperson Hickey e-mailed Attorney Van Donsel describing a
"conspiracy"—how Calabro "reneged on a side agreement to remove excess parking at 89
Tompkins Street for the agreement to end [Ruggiero's] appeal." Am. Compl. ¶ 77. The
amended complaint alleges that Chairperson Hickey's e-mail indicated the City's actions
proved that it selectively enforced the zoning laws and that "several ZBA members would be
angry enough to quit." Id.
On June 12, 2015, Ruggiero called Zoning Officer Rhea to discuss a new zoning
violation at Calabro's Tompkins Street property. Am. Compl. ¶ 78. In response, Zoning
Officer Rhea requested an in-person meeting with plaintiff. Id. A few minutes into this
meeting, plaintiff "confronted" Zoning Officer Rhea with the "taped conversations" he had
recorded of their previous interactions. Id. According to plaintiff, Zoning Officer Rhea started
a "physical confrontation." Id. Plaintiff left the meeting and reported the incident to Attorney
Van Donsel and other City officials. Id.
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On July 9, 2015, Ruggiero was diagnosed with shingles and put on "several strong
medications." Am. Compl. ¶ 79. Two days later, on plaintiff's twenty-third wedding
anniversary, Officer Myers arrested plaintiff for second degree harassment based on the
earlier June 12 confrontation with Zoning Officer Rhea. Id. ¶ 80. Officer Myers placed
plaintiff in the back of a City police car. Id. ¶ 81.
Ruggiero, an asthmatic, could not breathe for the "roughly 5 minute car ride" and
asked Officer Myers for assistance, which was denied. Am. Compl. ¶ 81. Unknown police
officers also denied plaintiff access to his pain medication until "several hours later." Id.
After the arraignment, plaintiff's wife told him that "the arrest was the final straw" and that
"she wanted a divorce." Id. ¶ 82. Plaintiff alleges Director Cook, Mayor Tobin, Deputy Chief
Sandy, and Attorney Van Donsel conspired to have him arrested. Id. ¶¶ 83-91.
On August 10, 2015, District Attorney Suben offered to dismiss the criminal charge
against Ruggiero if he would agree not to sue for false arrest and malicious
prosecution. Am. Compl. ¶ 92. Plaintiff declined. Id. Thereafter, District Attorney Suben
told plaintiff he knew that City officials selectively enforced the zoning laws. Id. ¶¶ 93-96.
On May 16, 2016, Assistant District Attorney ("ADA") Robert DeMarco reviewed
Ruggiero's case and agreed to dismiss the charges. Am. Compl. ¶¶ 99-101. At unspecified
points in 2015 and 2016, City officials, including Zoning Officer Rhea and Director
Knickerbocker, continued to unfairly enforce the zoning laws against plaintiff. Id. ¶¶ 102-107.
Ruggiero further alleges that Tax Assessor Briggs is Calabro's neighbor and
"consistently assess[es] his properties substantially lower than fair market value" even
though plaintiff has "been given assessments of 125% of purchase price without any rational
basis." Am. Compl. ¶ 110.
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III. LEGAL STANDARDS
A. Judgment on the Pleadings
"The standard for granting a [Rule 12(c)] motion . . . is 'identical' to that of a 12(b)(6)
motion to dismiss." N.Y. by Schneiderman v. Utica City Sch. Dist., 177 F. Supp. 3d 739, 746
(N.D.N.Y. 2016) (quoting Ginsburg v. City of Ithaca, 839 F. Supp. 2d 537, 540 (N.D.N.Y.
2012)).
"To survive a Rule 12(b)(6) motion to dismiss, the '[f]actual allegations must be
enough to raise a right to relief above the speculative level.'" Ginsburg, 839 F. Supp. 2d at
540 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Although a complaint
need only contain 'a short and plain statement of the claim showing that the pleader is
entitled to relief' (FED. R. CIV. P. 8(A)(2)), more than mere conclusions are required." Id.
"Indeed, '[w]hile legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.'" Ginsburg, 839 F. Supp. 2d at 540 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). "Dismissal is appropriate only where plaintiff
has failed to provide some basis for the allegations that support the elements of his
claims." Id.; see also Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim
to relief that is plausible on its face").
"When ruling on a motion to dismiss, the court must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in the
non-movant's favor." Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 344 (N.D.N.Y. 2014)
(Baxter, M.J.). In making this determination, a court generally confines itself to the "facts
stated on the face of the complaint, . . . documents appended to the complaint or
incorporated in the complaint by reference, and . . . matters of which judicial notice may be
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taken." Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs.,
L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
However, in some cases, "a document not expressly incorporated by reference in the
complaint is nevertheless 'integral' to the complaint and, accordingly, a fair object of
consideration on a motion to dismiss." Goel, 820 F.3d at 559. Importantly, though, a
document is only "integral" to the complaint "where it relies heavily upon its terms and
effect." Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
In other words, mere notice or possession of the document is not enough; rather, the
plaintiff must have relied on the terms and effect of the document in drafting the
complaint. See Goel, 820 F.3d at 559; see also Nicosia v . Amazon.com, Inc., 834 F.3d 220,
231 (2d Cir. 2016) (observing that this exception is typically invoked where the
unincorporated material is a "contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls, but which for some reason—usually because
the document, read in its entirety, would undermine the legitimacy of the plaintiff's
claim—was not attached to the complaint").
B. 42 U.S.C. § 1983
"The purpose of § 1983 is to deter state actors from using the badge of their authority
to deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). However, "[s]ection 1983
itself creates no substantive rights; it provides only a procedure for redress for the deprivation
of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). Thus,
a § 1983 claim requires a plaintiff to show (1) the deprivation of a right, privilege, or immunity
secured by the Constitution and its laws by (2) a person acting under the color of state
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law. 42 U.S.C. § 1983.
C. Municipal Liability Under § 1983
"Before a municipality can be held liable under § 1983, it must be shown to have been
'the moving force of the constitutional violation.'" Carmichael v. City of N.Y., 34 F. Supp. 3d
252, 262-63 (E.D.N.Y. 2014) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91
(1978)); see also Cash v. Cty. of Erie, 654 F.3d 324, 341-42 (2d Cir. 2011) (equating "moving
force" with "proximate cause").
"In order to prevail on a claim against a municipality under section 1983 based on acts
of a public official, a plaintiff is required to prove: (1) actions taken under color of law;
(2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; 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) (citation omitted).
"The fifth element reflects the notion that 'a municipality may not be held liable
under § 1983 solely because it employs a tortfeasor.'" Cowan v. City of Mt. Vernon, 95 F.
Supp. 3d 624, 643 (S.D.N.Y. 2015) (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397,
403 (1997)). Importantly, this element "can only be satisfied where a plaintiff proves that a
'municipal policy of some nature caused a constitutional tort.'" Roe, 542 F.3d at 36 (citation
omitted). However, a "municipal policy may be pronounced or tacit and reflected in either
action or inaction." Cash, 654 F.3d at 334; see also Kern v. City of Rochester, 93 F.3d 38,
44 (2d Cir. 1996) ("The policy or custom need not be memorialized in a specific rule or
regulation.").
D. Supervisory Liability Under § 1983
Section 1983 does not provide for the kind of respondeat superior tort liability
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commonly pursued in other contexts. See, e.g., Elek v. Inc. Vill. of Monroe, 815 F. Supp. 2d
901, 806 (S.D.N.Y. 2011) ("Supervisory liability in a § 1983 action depends on a showing of
some personal responsibility, and cannot rest on respondeat superior.").
"The personal involvement of a supervisory defendant may be shown by evidence
that: (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 continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference to the rights of [others] by failing to act on
information indicating that unconstitutional acts were occurring." Odom v. Matteo, 772 F.
Supp. 2d 377, 403 (D. Conn. 2011) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)); see also Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (noting that the
continued vitality of all five Colon factors remains an open question post-Iqbal).
E. 42 U.S.C. § 1985
"42 U.S.C. § 1985 was enacted as part of the Civil Rights Act of 1861, 'which is
commonly referred to as the Ku Klux Klan Act.'" Empire Merchants, LLC v. Reliable Churchill
LLP, 2017 WL 7512900, at *8 (E.D.N.Y. Jan. 30, 2017) (quoting Keating v. Carey, 706 F.3d
377, 389 (2d Cir. 1983)). "One of the protections provided by the statute to '[t]hose harassed
and threatened by rampant vigilantism, notably blacks and black supporters in the
South . . . , [was] a remedy to vindicate their civil rights' by assuring that those '[g]roups
threatened by the wave of racial/political violence . . . [had] access to the courts.'" Id. "To
that end, the Act 'proscribed conspiracies that interf ere with . . . the administration of justice
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in federal courts.'" Id. (quoting Kush v. Rutledge, 460 U.S. 719, 724 (1983)).
IV. DISCUSSION
At the outset, a few things bear mention. First, even though it is not at all apparent
from the logically organized and clearly written nature of his submissions, Ruggiero is
proceeding without the benefit of a lawyer, a state of affairs that entitles him to a certain
measure of latitude here.
As the Second Circuit has repeatedly explained, "[a] document filed pro se is 'to be
liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.'" Ahlers v. Rabinowitz, 684
F.3d 53, 60 (2d Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). "This is
particularly so when the pro se plaintiff alleges that h[is] civil rights have been violated." Id.
(quoting Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)). 3
Second, and relatedly, Ruggiero has included in his opposition memoranda certain
additional factual allegations that attempt to explain in greater detail the overall narrative
thread running through his amended complaint. Pl.'s City Opp'n, Dkt. No. 55-2 at 3-6; Pl.'s
County Opp'n, Dkt. No. 55-3 at 3-7. 4
Although in reply both sets of defendants urge the Court to ignore these additional
facts, they will be considered here as providing useful context for determining Ruggiero's
claims in light of the pending motions. See, e.g., Boguslavsky v. Kaplan, 159 F.3d 715, 719

3

However, "all normal rules of pleading are not absolutely suspended" when a plaintiff is proceeding
pro se. Jackson v. Onondaga Cty., 549 F. Supp. 2d 204, 214 (N.D.N.Y. 2008) (McAvoy, J.) (internal
quotation marks and footnote omitted). Even a pro se plaintiff must plead sufficient factual allegations to
suggest an entitlement to relief. See id. Simply put, Rule 8 "demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citations omitted).
4

Pagination corresponds with CM/ECF.
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(2d Cir. 1998) ("[C]ourts may look to submissions beyond the complaint to determine what
claims are presented by an uncounseled party.").
Third, Ruggiero's amended complaint recounts incidents that occurred as far back in
time as late 2009 and even beyond. However, "[f]or a § 1983 claim arising in New York, the
statute of limitations is three years." Fierro v. N.Y.C. Dep't of Educ., 994 F. Supp. 2d 581,
85-86 (citations omitted). Plaintiff filed his initial civil rights complaint in this action on July 19,
2017. Accordingly, the applicable statute of limitations bars consideration of the incidents
that occurred before July 19, 2014.5
Fourth and finally, in order to be held liable for one or more of Ruggiero's civil rights
claims, each defendant must have been personally involved in each alleged constitutional
violation. See, e.g., Odom, 772 F. Supp. 2d at 403 ("It is well-settled in this Circuit that
personal involvement of defendants in alleged constitutional deprivations is a prerequisite to
an award of damages under § 1983.").
Although Ruggiero's operative pleading and his opposition submissions are
well-formatted and well-organized, at certain points he resorts to attributing misconduct to
"defendants" in conclusory or generalized terms. However, because he is pro se, reasonable
attempts will be made to connect the alleged misconduct at issue to the particular defendant
or defendants responsible.
A. Conspiracy Claims
With those matters settled, analysis begins with the conspiracy claims because they
5

"A motion to dismiss is often not the appropriate stage to raise affirmative defenses like the statute
of limitations." Ortiz v. City of New York, 755 F. Supp. 2d 399, 401 (E.D.N.Y. 2010). However, "as long as
the affirmative defense is based on the facts alleged in the complaint, it may be raised on a motion to
dismiss." Id. Accordingly, a 12(b)(6) dismissal for untimeliness is warranted where the "complaint shows
clearly that a claim is not timely." Id. (citation omitted).
- 17 -

touch on conduct attributed to both sets of defendants. As Ruggiero explains, he alleges
three different § 1985(3) conspiracies: a conspiracy to falsely arrest him; a conspiracy to
retaliate against him for the exercise of his First Amendment rights; and a conspiracy to deny
him his Fourteenth Amendment rights of due process and equal protection. Pl.'s City Opp'n
at 9. Plaintiff indicates that he also alleges a conspiracy under § 1985(2), a portion of the
civil rights statute designed to protect the rights of parties and witnesses to federal
proceedings. Id.
"To state a cause of action under § 1985(3), a plaintiff must allege (1) a conspiracy
(2) for the purpose of depriving a person or class of persons of the equal protection of the
laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of
the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right
or privilege of a citizen of the United States." Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999) (citations omitted).
"A conspiracy 'need not be shown by proof of an explicit agreement but can be
established by showing that the parties have a tacit understanding to carry out the prohibited
conduct.'" Thomas, 165 F.3d at 146 (quoting Mian v. Donaldson, Lufkin & Jenrette Secs.
Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)). Importantly, however, a "plaintiff must allege each
of these elements with 'at least some degree of particularity.'" Anghel v. N.Y. State Dep't of
Health, 947 F. Supp. 2d 284, 303 (E.D.N.Y. 2013) (quoting Powell v. Workmen's Comp. Bd.,
327 F.2d 131, 137 (2d Cir. 1964)).
Finally, "[a]lthough no allegation of state action is needed to state a claim under 42
U.S.C. § 1985, the complaint must allege that the plaintiff is a member of a protected class or
that he was injured as a result of racial or other class-based" discrimination. Anghel, 947 F.
- 18 -

Supp. 2d at 303; see also Thomas, 165 F.3d at 146 ("Furthermore, the conspiracy must also
be motivated by some racial or perhaps otherwise class-based, invidious discriminatory
animus behind the conspirators' action.").
Ruggiero argues that City officials enforce the zoning laws in a way that favors
"connected landlords," Pl.'s City Opp'n at 11, and contends that Alderm an Dye called for the
"involvement" of District Attorney Suben when plaintiff challenged these practices, Pl.'s
County Opp'n at 13.
But even assuming Ruggiero has satisfied the other elements of a § 1985 conspiracy,
he has failed to plausibly allege that any of this conspiratorial misconduct stems from the
kind of "racial or other class-based" animus required by controlling federal law. See, e.g.,
Pravda v. City of Albany, N.Y., 956 F. Supp. 174, 180 (N.D.N.Y. 1997) (Scullin, J.) ("It is well
settled that a plaintiff attempting to establish a claim under 42 U.S.C. § 1985(2), clause 2, or
§ 1985(3) must demonstrate that the Defendant under consideration acted with class-based
invidiously discriminatory animus.").6 Accordingly, plaintiff's various conspiracy claims must
be dismissed.
Thus, the following individual claims remain for consideration: (1) a § 1983 claim for
false arrest (2) a § 1983 claim for malicious prosecution; (3) a § 1983 claim for denial of
medical treatment; (4) a § 1983 claim for retaliation based on protected speech; (5) a § 1983
claim for selective enforcement; (6) a § 1983 claim for municipal liability based on the City's
failure to train or supervise its agents in proper zoning practices; and (7) a claim for violation

6

Ruggiero's § 1985(2) claim also fails, since he was neither a party nor a witness to a pending
matter in federal court at the time he brought this civil rights action. See, e.g., Empire Merchants, LLC, 2017
WL 7512900, at *11.
- 19 -

of rights secured by the state constitution. 7
B. County Defendants
The County defendants assert that only the first and second causes of action in
Ruggiero's amended complaint (that is, the § 1983 claims for false arrest and malicious
prosecution) are directed at the County and District Attorney Suben. According to these
defendants, those causes of action must be dismissed because of various immunity
principles and a failure by plaintiff to plead certain necessary elements of those claims.
In opposition, Ruggiero concedes that not all of his causes of action apply to the
County defendants. Pl.'s County Opp'n at 7. As plaintiff explains, the third cause of action
(alleging a denial of medical treatment) does not apply to the County defendants at
all. Id. Plaintiff also agrees that the sixth and seventh causes of action (based on selective
or improper zoning) are directed at the City and its various officials, not the two County
defendants sued in this action. Id. However, plaintiff insists that District Attorney Suben can
be liable for the "equal protect[ion]" causes of action because his actions were part of a
"continuing violation." Id
In reply, the County defendants point out that Ruggiero has failed, in both his
amended complaint and in his additional opposition submissions, to muster facts sufficient to
plausibly support any argument that these additional claims should be considered against
them. Defs.' Reply, Dkt. No. 56, 6.

7

There is some confusion about how plaintiff's causes of action actually line up with legally
cognizable theories of relief. For instance, the section of plaintiff's complaint entitled "first and second cause
of action" actually involves three legally distinct kinds of claims: a § 1985 conspiracy claim, a § 1983 false
arrest claim, and a § 1983 malicious prosecution claim. Am. Compl. ¶¶ 112-14. Although this decision
makes every attempt to analyze the viability of plaintiff's claims using the parties' preferred nomenclature,
appropriate clarification has been made where necessary.
- 20 -

Upon review, the County defendants are correct about this threshold
dispute. Ruggiero's amended complaint and the additional factual allegations included in his
opposition submission recount a series of interactions with District Attorney Suben, ADA
DeMarco, and ADA Wojnowicz arising from his arrest by Officer Myers for second degree
harassment after the June 12 confrontation with Zoning Officer Rhea.
Ruggiero's interactions with these prosecutors are best understood to be attem pts to
plead false arrest and malicious prosecution claims rather than any equal protection-based
theory of relief, especially since plaintiff has explicitly admitted that he is not pursuing any
discriminatory zoning theory against these particular defendants.8 Accordingly, only the
viability of the § 1983 false arrest and § 1983 malicious prosecution claims will be considered
against these defendants. Turning to those claims, the County defendants argue District
Attorney Suben enjoys absolute immunity for actions taken in his capacity as an advocate for
the state.
"Prosecutors are generally immune from liability under 42 U.S.C. § 1983 for conduct in
furtherance of prosecutorial functions that are intimately associated with initiating or
presenting the State's case." Flagler v. Trainor, 663 F.3d 543, 546 (2d Cir. 2011). This
immunity "protects the proper functioning of the prosecutor's office by insulating the exercise
of prosecutorial discretion." Id. Notably, "[p]rosecutorial immunity from § 1983 liability is
broadly defined, covering virtually all acts, regardless of motivation, associated with [the
prosecutor's] function as an advocate." Opuku v. Cty. of Suffolk, 123 F. Supp. 3d 404, 416

8

In fact, plaintiff's reference to a "continuing violation" sounds like a good-faith mistake: that
language frequently crops up in the context of Title VII and § 1983 claims based on discrimination, but is
ordinarily inapplicable to the kind of constitutional claims alleged here. See, e.g., Gonzalez v. Hasty, 802
F.3d 212, 219-22 (2d Cir. 2015) (discussing the origins of the "continuing violation" doctrine and explaining
how it can apply to certain § 1983 claims).
- 21 -

(E.D.N.Y. 2015) (internal quotation marks and citation omitted).
However, "[p]rosecutors are absolutely immune from suit only when acting as
advocates and when their conduct involves the exercise of discretion." Flagler, 663 F.3d at
547. "Thus, the Supreme Court has found prosecutors absolutely immune from suit for
alleged misconduct during a probable cause hearing, initiating a prosecution, and in
presenting the State's case." Id. (footnotes omitted). "On the other hand, the Court has
withheld absolutely immunity for conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining witness." Id.
Importantly, the Second Circuit has emphasized that a prosecutor can enjoy this kind
of absolute immunity even when the so-called "duties" at issue include such things as false
statements made during judicial proceedings, the knowing use of false testimony,
deliberately withholding exculpatory evidence, engaging in malicious prosecution, or even
attempting to intimidate an individual into accepting a guilty plea. D'Alessandro v. City of
N.Y., 713 F. App'x 1, 5 (2d Cir. 2017) (summary order).
Ruggiero alleges he first contacted District Attorney Suben at the end of December
2014 seeking to "start a white-collar proceeding" against several City officials. Pl.'s County
Opp'n at 3. Although District Attorney Suben promised plaintiff that a "new lawyer that
specializes in white collar crime" would contact him in a few weeks, "[t]hat call never
occurred. Id.
Next, in January of 2015, Ruggiero alleges Alderman Ferguson alerted him to the fact
that "City officials were manufacturing a harassment case to silence him regarding the
selective enforcement of the zoning laws." Am. Compl. ¶ 63; Pl.'s Opp'n at 3. Plaintiff
alleges that in March or April Alderman Dye conspired with other unnamed City defendants
- 22 -

to retaliate against plaintiff by e-mailing District Attorney Suben to request that plaintiff be
prosecuted for harassment. Am. Compl. ¶ 70; Pl.'s Opp'n at 3.
Then, on June 12, 2015, Ruggiero called Zoning Officer Rhea to discuss a new zoning
violation at Calabro's Tompkins Street property. Am. Compl. ¶ 78. In response, Zoning
Officer Rhea requested an in-person meeting with plaintiff. Id. A few minutes into this
meeting, plaintiff "confronted" Zoning Officer Rhea with the "taped conversations" he had
recorded of their previous interactions. Id. According to plaintiff, Zoning Officer Rhea started
a "physical confrontation." Id. Plaintiff left the meeting and reported the incident to Attorney
Van Donsel and other City officials. Id.
This incident ultimately resulted in the harassment charge. In particular, on July 11
Officer Myers arrested Ruggiero for second degree harassment. Am. Compl. ¶¶ 79-81.
Plaintiff alleges Director Cook, Mayor Tobin, Deputy Chief Sandy, and Attorney Van Donsel
conspired to have him arrested on this charge. Id. ¶¶ 83-91.
On August 7, 2015, Ruggiero went before "Judge Burns," who asked him whether he
had discussed plea arrangements with the prosecutor. Pl.'s County Opp'n at 4. At that time,
plaintiff stated he was absolutely innocent and would accept nothing short of an "absolute
dismissal with an apology." Id. Plaintiff alleges that ADA Wojnowicz could not find plaintiff's
file and ultimately declined his "only plea offer." Id. Plaintiff alleges that ADA Wojnowicz and
District Attorney Suben then telephoned plaintiff to discuss his case. Id. According to
plaintiff, these prosecutors told plaintiff that although they could not dismiss the case, they
would offer him an "ACD," presumably a short-hand reference to an "adjournment in
contemplation of dismissal." Id.
At that time, Ruggiero alleges he told District Attorney Suben that he believed the
- 23 -

prosecutor had conspired with Alderman Dye to have plaintiff arrested. Pl.'s County Opp'n at
4. According to plaintiff, District Attorney Suben "immediately changed his mind about an
outright dismissal" and instead offered to dismiss the charges in exchange for a release of
liability. Id. Plaintiff asked for the weekend to think it over. Id.
On August 10, 2015, Ruggiero made a counteroffer that included a liability release for
only the County defendants. Pl.'s County Opp'n at 4-5. District Attorney Suben
declined. Am. Compl. ¶ 92. Thereafter, plaintiff met with District Attorney Suben to "share
convincing evidence" that he was innocent. Pl.'s Opp'n at 5. Plaintiff alleges that District
Attorney Suben agreed and "offered the dismissal/release again." Id.
On May 13, 2016, Ruggiero told newly assigned ADA DeMarco that certain favorable
case law existed. Pl.'s Opp'n at 5. After reviewing the case, ADA DeMarco agreed to
dismiss the charges. Id.; Am. Compl. ¶¶ 99-101.
As this recitation of events makes clear, none of Ruggiero's allegations, whether
considered singly or in combination with one another, place District Attorney Suben's conduct
outside the relatively broad scope of his absolute prosecutorial immunity. To the contrary,
the facts alleged by plaintiff involve (mis)conduct related to the initiation, investigation,
presentation, and eventual resolution of the criminal charges against him.
To the extent Ruggiero suggests District Attorney Suben acted outside the scope of
this immunity by "working together" with City officials to have him arrested, at best plaintiff
has alleged facts showing that City officials turned over to District Attorney Suben evidence
of what they perceived to be (whether in good faith or not) plaintiff's unlawful or unfair
mistreatment of City officials. Byrne v. City of N.Y., 736 F. App'x 263, 265 (2d Cir. 2018)
(summary order) ("The decision whether to bring charges—and even the decision to bring
- 24 -

charges in the absence of adequate evidence—falls squarely within a prosecutor's role as
advocate and, therefore, is protected by absolute immunity."). The same is true of plaintiff's
exchanges with ADA DeMarco, which appear to revolve around whether and how the
charges against plaintiff could be resolved.
In sum, the facts alleged by Ruggiero fail to place District Attorney Suben's conduct
outside the scope of prosecutorial immunity and therefore plaintiff's claims against him must
be dismissed. See, e.g., Pinaud v. Cty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir. 1995)
(applying doctrine even though plaintiff "plausibly allege[d] disgraceful behavior by district
attorneys").
And without an underlying constitutional violation, there can be no § 1983 liability
against the County itself. See, e.g., Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006)
("Because the district court properly found no underlying constitutional violation, its decision
not to address the municipal defendants' liability under Monell was entirely
correct."). Accordingly, the County defendants' motion for judgment on the pleadings must
be granted and all claims against those defendants must be dismissed.
C. City Defendants
Ruggiero asserts the following claims against the City defendants: (1) a § 1983 claim
for false arrest (2) a § 1983 claim for malicious prosecution; (3) a § 1983 claim for denial of
medical treatment; (4) a § 1983 claim for retaliation based on protected speech; (5) a § 1983
claim for selective enforcement of the zoning laws; (6) a § 1983 municipal liability claim
based on the City's failure to train its enforcement officials in proper zoning practices; and
(7) a claim for violation of rights secured by the state constitution.

- 25 -

1. False Arrest
The City defendants contend the § 1983 false arrest claim must be dismissed
because Ruggiero was arrested pursuant to a lawful warrant issued by the Honorable
Elizabeth Burns.9 Plaintiff responds that the arresting officer failed to conduct any
investigation into Zoning Officer Rhea's story before pursuing plaintiff's arrest.
"A § 1983 claim for false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including arrest without probable cause, is
substantially the same as a claim for false arrest under New York law." Simpson v. Town of
Warwick Police Dep't, 159 F. Supp. 3d 419, 434 (S.D.N.Y. 2016) (citation omitted).
"Under New York law, an action for false arrest requires the plaintiff to show that
(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged." Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017) (citation
omitted).
Ruggiero's false arrest claim must be dismissed. Plaintiff alleges Zoning Officer Rhea
lied to or misled the police about plaintiff's conduct during the June 12 encounter and, as a
result, Officer Myers arrested him on July 11. Plaintiff further alleges Director Cook, Mayor
Tobin, Deputy Chief Sandy, and Attorney Van Donsel conspired to achieve this result.
But "[t]he validity of an arrest does not depend on an ultimate finding of guilt or
innocence." Simpson, 159 F. Supp. 3d at 434. And in this case, Rug giero was arrested
pursuant to a warrant issued by Judge Burns. Soberanis v. City of N.Y., 244 F. Supp. 3d

9

Even mindful of the procedural posture, the warrant and accompanying court decision supplied as
exhibits are suitable for judicial notice. Dkt. No. 54-1.
- 26 -

395, 400 (S.D.N.Y. 2017) (dismissing false arrest claim because arrest warrant "vitiates any
claim of false arrest"); Phillips v. DeAngelis, 571 F. Supp. 2d 347, 353 (N.D.N.Y. 2008) ("No
cause of action for false arrest will lie where the arrest was effected pursuant to an arrest
warrant.").
Even in the absence of a warrant, Ruggiero's factual allegations would be insufficient
to demonstrate that Officer Myers acted constitutionally unreasonably in seeking plaintiff's
arrest on the basis of Zoning Officer Rhea's alleged falsehood. Marom v. Town of
Greenburgh, 722 F. App'x 32, 35 (2d Cir. 2018) (summary order) (explaining that arresting
officers are not required to investigate exculpatory defenses offered by the person being
arrested). Accordingly, plaintiff's § 1983 claim for false arrest will be dismissed.
2. Malicious Prosecution
Next, the City defendants argue Ruggiero's § 1983 malicious prosecution claim must
be dismissed because Cortland City Court Judge Lawrence Knickerbocker initially denied
plaintiff's motion to dismiss the criminal charge against him. According to defendants, the
fact that ADA DeMarco later decided to exercise his prosecutorial discretion to voluntarily
dismiss the charge does not indicate that the proceeding terminated "favorably" to plaintiff as
required by the law governing this kind of claim. Plaintiff responds that the City defendants
improperly decided to continue the prosecution af ter his arrest.
"To prevail on a claim of malicious prosecution, a plaintiff must establish: (1) the
initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause,
and (4) malice." Hulett, 253 F. Supp. 3d at 496. "In addition, a § 1983 malicious prosecution
claim requires that 'there must be a seizure or other perversion of proper legal procedures
implicating the claimant's personal liberty and privacy interests under the Fourth
- 27 -

Amendment.'" Id. (quoting Washington v. Cty. of Rockland, 373 F.3d 310, 316 (2d Cir.
2004)).
Just recently, the Second Circuit issued a decision clarifying a frequently litigated
aspect of § 1983 malicious prosecution claims brought in New York federal courts: the
favorable termination element. Lanning v. City of Glens Falls, –F.3d–, 2018 WL 5810258 (2d
Cir. Nov. 7, 2018). In Lanning, the Second Circuit clarified that the prosecutor's failure to
proceed to a trial on the merits of the charge or charges does not necessarily imply a lack of
reasonable grounds for prosecution. Id. at *6 (affirming dismissal of malicious prosecution
claim because the termination of charges in plaintiff's case was "consistent with dismissal on
any number of procedural or jurisdictional grounds, all of which fail to affirmatively indicate
innocence").
Upon review of Ruggiero's submissions in light of Lanning, he has failed to plausibly
allege that the circumstances under which the charges were dismissed by the Court
affirmatively indicated his innocence. Accordingly, plaintiff's § 1983 malicious prosecution
claim must be dismissed.
3. Denial of Medical Treatment
The City defendants argue the § 1983 claim for denial of medical treatment must be
dismissed because Ruggiero concedes in his complaint that he received medical treatment
within "several hours" of his arraignment on July 11. Plaintiff responds that Officer Myers
was deliberately indifferent to plaintiff's serious need for asthma and shingles medication
during the time he was in the police car. As plaintiff explains, "another officer rushed" to help
plaintiff when he "finally arriv[ed] to the station." Pl.'s City Opp'n at 16.
As an initial matter, Ruggiero correctly points out that it is the Fourteenth Amendment,
- 28 -

not the Eighth, that protects him under these circumstances. See, e.g., V.W. v. Conway, 236
F. Supp. 3d 554, 582 (N.D.N.Y. 2017) (explaining that "the State does not acquire the power
to punish with which the Eighth Amendment is concerned until after it has secured a formal
adjudication of guilty in accordance with due process of law"). A pre-trial detainee like
plaintiff may assert a § 1983 deliberate indifference claim under the Fourteenth Amendment
by satisfying a slightly modified version of the two-pronged test for an Eighth Amendment
violation. Hulett, 253 F. Supp. 3d at 489.
First, a plaintiff must allege a deprivation that is objectively "sufficiently serious"; that
is, it must be a "condition of urgency, one that may produce death, degeneration, or extreme
pain." Simpson, 159 F. Supp. 3d at 443. Second, a plaintif f must allege the defendant
"knew, or should have known," that his conduct "posed an excessive risk to health or
safety." Hulett, 253 F. Supp. 3d at 489. This formulation of the second prong is more lenient
than the Eighth Amendment version, which requires a plaintiff to demonstrate the defendant
"kn[ew] of and disregard[ed] an excessive risk to [ ] health and safety." Id.
Ruggiero's deliberate indifference claim is a much closer call than his false arrest or
malicious prosecution arguments, especially given plaintiff's status as a pro se litigant. This
is because the dangerous airway restriction caused by an asthma attack is a serious event
that in rare cases can even prove fatal. Gersbacher v. City of N.Y., 134 F. Supp. 3d 711,
724 (S.D.N.Y. 2015). Importantly, however, just being asthmatic is not a serious medication
condition of constitutional significance. Id.
The distinction matters here. Ruggiero does not allege he was undergoing an asthma
attack at the time of his arrest. Rather, plaintiff alleges that the hot temperatures in the back
seat of the patrol car may have brought one on at some point during the trip to the police
- 29 -

station. Pl.'s City Opp'n at 16. However, as the City defendants point out, plaintiff alleges
that he was only denied medication during the "roughly 5 minute car ride" to the station. Am.
Compl. ¶ 81.
Given the short duration of the trip to the police station, Ruggiero's request for
assistance from the officer driving the patrol car (even in light of an allegation of a rapidly
worsening situation in the back seat) does not give rise to a plausible § 1983 claim that would
survive application of the doctrine of qualified immunity. Gersbacher, 134 F. Supp. 3d at
724-25 (recognizing that a delay in treatment does not necessarily reflect deliberate
indifference); cf. Davis v. McCready, 283 F. Supp. 3d 108, 120 (S.D.N.Y. 2017) ("In
evaluating whether a delay in treatment is sufficiently serious, the actual medical
consequences that flow from the alleged denial of care will be highly relevant."). Accordingly,
plaintiff's medical treatment claim will also be dismissed.10
4. First Amendment Retaliation
The City defendants argue Ruggiero's retaliation claim must be dismissed because
plaintiff was arrested pursuant to a warrant. Plaintiff responds that, in addition to that arrest,
he was "taken out of the ZBA meeting" when he was trying to speak. Pl.'s City Opp'n at 17.
"The rights to complain to public officials and to seek administrative and judicial relief
are protected by the First Amendment." Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d
Cir. 1994). "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

10

Plaintiff further alleges that he was denied access to his pain medication for shingles until several
hours after arraignment, but he does not identify the officer or officers responsible for that further deprivation.
- 30 -

adverse action and the protected speech." Morris v. N.Y. State Police, 268 F. Supp. 3d 342,
360-61 (N.D.N.Y. 2017).
The City defendants are correct that the current state of Second Circuit law precludes
Ruggiero from arguing that his July 11 arrest (based on a warrant issued after his June 12
encounter with Zoning Officer Rhea) violates his First Amendment rights. Galarza v. Monti,
327 F. Supp. 3d 594, 603-04 & n.4 (S.D.N.Y. 2018) ("The existence of probable cause
defeats a First Amendment claim premised on the allegation that defendants arrested a
plaintiff based on a retaliatory motive."); see also Higginbotham v. Sylvester, –F. App'x–,
2018 WL 3559116, at *2 (2d Cir. July 25, 2018) (affirming dismissal of retaliatory arrest claim
where plaintiff failed to demonstrate that his protected activity was "but-for" cause of arrest).
Ruggiero also asserts in his opposition submission that he was "taken out of the ZBA
meeting" in retaliation for attempting to speak on the record. Pl.'s City Opp'n at 16-17.
However, a review of plaintiff's operative pleading does not necessarily confirm when, how,
or under what circumstances that took place. Plaintiff repeatedly asserts that he was
removed from the ZBA's agenda, Am. Compl. ¶¶ 45-46, 60, 61, but it is unclear when and
how (and if so, for what stated reason) plaintiff was ever actually removed from one or more
ZBA meetings.
Ruggiero does go on to allege that on April 7, 2015, Mayor Tobin and Zoning Officer
Rhea violated his "personal space" at a "public meeting" in front of approximately fifty people,
language that suggests he may have been physically removed or otherwise escorted from
that meeting at that time. Am. Compl. ¶ 76. Again, though, the facts as pleaded are
insufficient to draw that conclusion, since a "violation of personal space" might also mean
anything from an unwanted touching to an attempt to intimidate someone by, say, looming
- 31 -

over them or standing too close to them.
Most of these hypothetical examples are not constitutionally problematic. Zherka v.
Amicone, 634 F.3d 642, 645-46 (2d Cir. 2011) (observing that First Amendment retaliation
claims must be based on an "actual chill" in speech or a "concrete harm" such as "loss of
business or other tangible injury"). However, certain kinds of disputes between private
citizens and municipal officials can give rise to viable First Amendment claims. See, e.g.,
Gagliardi, 18 F.3d at 195 (reversing dismissal of free speech claim where plaintiffs alleged
municipal officials deliberately chose to stop enforcing local laws in direct response to
plaintiffs' protected speech).
Ruggiero's First Amendment retaliation claim, as presently pleaded, will be
dismissed. However, for reasons discussed at the end of this decision, plaintiff will be
permitted an opportunity to replead this claim by providing more specific details about his
interactions with City officials during and after ZBA meetings.
5. Equal Protection
The City defendants contend Ruggiero's Equal Protection claim must be dismissed
because he has failed to plausibly allege differential treatment. Plaintiff responds that City
officials have given certain landlords favorable treatment for years while treating him unfairly.
The Equal Protection Clause of the Fourteenth Amendment provides that no State
shall "deny to any persons within its jurisdiction the equal protection of the laws." U.S. Const.
amend. XIV, § 1. This constitutional provision is "essentially a direction that all persons
similarly situated be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
432, 439 (1985). "There are a number of common methods for pleading an equal protection
claim." Kisembo v. N.Y.S. Office of Children & Family Servs., 285 F. Supp. 3d 509, 523
- 32 -

(N.D.N.Y. 2018).
First, "[a] plaintiff could point to a law or policy that 'expressly classifies persons on the
basis of race.'" Floyd v. City of New York, 959 F. Supp. 2d 540, 570 (S.D.N.Y.
2013) (quoting Brown v. City of Oneida, 221 F.3d 329, 337 (2d Cir. 1999)). Second, " a
plaintiff could identify a facially neutral law or policy that has been applied in an intentionally
discriminatory manner." Brown, 221 F.3d at 337 (citing Yick Wo v. Hopkins, 118 U.S. 356,
373-74 (1886)). Third, "[a] plaintiff could also allege that a facially neutral statute or policy
has an adverse effect and that it was motivated by discriminatory animus." Floyd, 959 F.
Supp. 2d at 570 (citation omitted).
With respect to these first three theories, a plaintiff "generally need not plead or show
the disparate treatment of similarly situated individuals." Pyke v. Cuomo, 258 F.3d 107,
108-09 (2d Cir. 2001); see also Doe, 462 F. Supp. 2d at 546 (observ ing that courts have
dispensed with the "similarly situated group" requirement in cases where the "differential
treatment of the target group could otherwise be clearly demonstrated").
Ruggiero is not a member of an inherently suspect or vulnerable class and therefore
these first three theories of relief are inapplicable to his claims. Instead, plaintiff explains that
he is seeking relief as a "class of one" based on the doctrine of "selective enforcement," a
statement that actually conflates two distinct kinds of additional Equal Protection claims. Pl.'s
City Opp'n at 17.
For instance, pursuant to Village of Willowbrook v. Olech, 528 U.S. 562 (2000), a
plaintiff may assert a so-called "class of one" claim. Doe, 462 F. Supp. 2d at
558. Alternatively, pursuant to Le Clair v. Saunders, 627 F.2d 606 (2d Cir. 1980) a plaintif f
may assert a "selective enforcement" claim. Savino v. Town of Southeast, 983 F. Supp. 2d
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293, 301 (S.D.N.Y. 2013). "Both types of claims require a showing of similarly situated
individuals or groups who were treated differently." Mosdos Chofetz Chaim, Inc. v. Vill. of
Wesley Hills, 815 F. Supp. 2d 679, 693 (S.D.N.Y. 2011).11 Importantly, however, so-called
"class of one" claims require "a different, more demanding standard of similarity." Id. at
696-97.
Thus, to properly allege an Equal Protection violation under a "class of one" theory,
"the plaintiff must allege that (i) no rational person could regard the circumstances of the
plaintiff to differ from those of a comparator to a degree that would justify the differential
treatment on the basis of a legitimate governmental policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of mistake." Panzella v. City of Newburgh, 231 F. Supp. 3d 1,
7 (S.D.N.Y. 2017) (quoting Fahs Constr. Grp., Inc. v. Gray, 724 F.3d 289, 292 (2d Cir.
2013)).
"In other words, 'a plaintiff asserting a 'class of one' equal protection claim must allege
that the intentional disparate treatment alleged to state the first element of the claim was
wholly arbitrary or irrational.'" Panzella, 231 F. Supp. 3d at 7 (quoting Vaher v. Town of
Orangetown, 916 F. Supp. 2d 404, 433 (S.D.N.Y. 2013)). "Plaintiffs proceeding under this
theory 'must show an extremely high degree of similarity between themselves and the person
to whom they compare themselves.'" Id. (quoting Ruston v. Town Bd. for Town of
Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)).
To plead a "selective enforcement" claim, a plaintiff must allege facts showing

11

Courts appear to remain split on whether a less stringent standard should apply to selective
enforcement claims. Panzella, 231 F. Supp. 3d at 6-8 (surveying the state of the law).
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that: "(1) 'he, compared with others similarly situated, was selectively treated, and (2) the
selective treatment was motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, or to punish or inhibit the exercise of
constitutional rights, or by a malicious or bad faith intent to injure the plaintiff.'" Panzella, 231
F. Supp. 3d at 7 (quoting Vaher, 916 F. Supp. 2d at 433)).
In a selective enforcement case, a plaintiff must show that "plaintiff and comparators
were 'similarly situated in all material respects,' or that 'a prudent person, looking objectively
at the incidents would think them roughly equivalent.'" Missere v. Gross, 826 F. Supp. 2d
542, 561 (S.D.N.Y. 2011); see also Bishop v. Best Buy, Co. Inc., 2010 WL 4159566, at *11
(S.D.N.Y. Oct. 13, 2010) ("Well-pled facts showing that the plaintiff has been treated
differently from others similarly situated, remains an essential component of such a claim.").
Ruggiero devotes a great deal of time chronicling his ongoing dispute with the City
over Calabro's violations of the zoning laws, and a review of the parties' submissions suggest
plaintiff may have also pursued various state law remedies against Calabro or the City (or
possibly both) in an attempt to force more uniform compliance.
However, "[c]ourts, including the Second Circuit, have repeatedly cautioned about the
danger of ordinary disputes between a citizen and a municipality—whether it be about land
use, licenses, inspections, or some other regulatory or investigative function of local
governments—being transformed into federal lawsuits" through an overly expansive reading
of the Equal Protection clause. Avraham v. Lakeshore Yacht & Country Club, Inc., 2016 WL
6585589, at *14 (N.D.N.Y. Nov. 7, 2016).
So when a plaintiff seeks to pursue a constitutional claim for relief on the basis of such
a violation or violations, our case law emphasizes a distinction of particular importance
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here: a citizen actually suffering less favorable treatment than similarly situated citizens is
entitled to pursue a § 1983 claim while a citizen attempting to use a federal civil rights action
to force municipal officials to stop permitting a fellow citizen to violate the zoning law is
not. See, e.g., Missere v. Gross, 826 F. Supp. 2d 542, 564 (S.D.N.Y. 2011) ("[Plaintiff]
cannot make out an Equal Protection claim, either on a selective enforcement or class-of-one
theory, based merely on favorable treatment of another, because that does not establish that
he also suffered any differential treatment.").
A close review of Ruggiero's submissions confirm that permitting him to pursue an
Equal Protection claim based on his current factual allegations would stretch this distinction
past its breaking point. Plaintiff alleges that he first challenged Zoning Officer Rhea's
decision not to require a certain variance at Calabro's Tompkins Street property in November
of 2014. Am. Compl. ¶ 54. Plaintiff further alleges that although City officials attempted to
prevent it, he was heard on that exact issue during the December 8, 2014 ZBA
meeting. Id. ¶¶ 55-57. According to plaintiff, at that time the ZBA requested additional
information and tabled his challenge to its next meeting on January 12, 2015. Id. In the
meantime, plaintiff alleges that City officials ignored his request to convene an independent
committee to review alleged violations of the law. Id. ¶¶ 58-59.
Ruggiero then claims that he was briefly removed from, and then restored to, the
ZBA's January 12 meeting agenda. Am. Compl. ¶¶ 60. Plaintiff's operative pleading
confirms that he was heard further at that meeting, and that ZBA Member Funk actually
refused Attorney Van Donsel's request to dismiss plaintiff's case for running afoul of the
relevant statute of limitations. Id. ¶ 62. Plaintiff alleges the ZBA again tabled their
deliberations and asked for more information from the City. Id.
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On February 9, 2015, the ZBA "made clear" that "no evidence exists" to establish that
Calabro's Tompkins Street project did not need a variance. Am. Compl. ¶ 66. At this
meeting, ZBA Member Place "admitted on the record" that ZBA members were aware of
selective enforcement of the zoning regulations by unnamed City officials. Id. ¶ 67. ZBA
Member Place also "admitted awareness" of "unequal tax assessments favoring connected
landlords." Id.
In March of 2015, Zoning Officer Rhea told Ruggiero that he was taking some kind of
action to solve Calabro's variance problem. Am. Compl. ¶¶ 68-69. Then, at the next ZBA
meeting on March 9, ZBA Member Place "produced a Certificate of Compliance" for
Calabro's property that ZBA Member Funk believed to be a forgery. Id. ¶ 71. In April, at a
"videotaped public meeting held in City Hall," Mayor Tobin and Zoning Officer Rhea violated
Ruggiero's "personal space" in front of approximately fifty people. Id. ¶ 76.
Later, when Ruggiero called Zoning Officer Rhea to discuss a new zoning violation at
Calabro's Tompkins Street property, Zoning Officer Rhea requested the fateful in-person
meeting that would later result in plaintiff's July 11 arrest. Am. Compl. ¶ 78. Finally, plaintiff
alleges that at unspecified points in 2015 and 2016, City officials, including Zoning Officer
Rhea and Director Knickerbocker, continued to unf airly enforce the zoning laws against
plaintiff. Id. ¶¶ 102-107.
Even mindful of his pro se status, Ruggiero has failed to allege a plausible § 1983
Equal Protection claim. Hi Pockets, Inc. v. Music Conservatory of Westchester, Inc., 192 F.
Supp. 2d 143, 158 (S.D.N.Y. 2002) ("Failure to proceed against others who are comparably
situated is not by itself a basis for finding a denial of equal protection."). And as before,
without an underlying constitutional violation there can be no § 1983 liability against the City
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itself. Segal, 459 F.3d at 219.
Again though, for reasons discussed at the end of this decision, Ruggiero will be
permitted an opportunity to replead an Equal Protection claim by providing more specific
details about his specific interactions with specific City officials, and explaining in concrete
detail how he himself might have been treated less favorably than one or more sufficiently
similarly situated comparators.
6. New York State Constitution
The eighth cause of action in Ruggiero's operative complaint asserts a claim for
deprivation of rights under the New York State Constitution. Am. Compl. ¶¶ 127-29. Upon
review, this claim will be dismissed.
"Under New York law, a state constitutional-tort claim will not lie when state tort law
provides an alternative means of redress." Alwan v. City of N.Y., 311 F. Supp. 3d 570, 588
(E.D.N.Y. 2018). Nearly all of the various federal claims identified by Ruggiero—including
those for false arrest, malicious prosecution, and retaliation—have state law analogs that
render a constitutional claim duplicative. Id.
Equally important, "plaintiffs asserting claims for New York State constitutional torts
must comply with the notice of claim provision," a requirement imposed by New York law and
strictly construed. Pflaum v. Town of Stuyvesant, 937 F. Supp. 2d 289, 303 (N.D.N.Y. 2013)
(Suddaby, J.). Ruggiero has not alleged that he filed a notice of claim, timely or otherwise, in
support of this particular cause of action. Accordingly, plaintiff's state constitutional claim
must be dismissed.
D. Leave to Amend
As a final matter, Ruggiero has requested leave to amend his complaint in the event
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the Court finds deficiencies in one or more of his claims. That request will be granted in part.
Generally speaking, "[a] pro se complaint should not be dismissed without the Court
granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014) (citation omitted). However, if the problems with a complaint are "substantive" rather
than the result of an "inadequately or inartfully pleaded" complaint, an opportunity to re-plead
would be "futile" and "should be denied." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).
In this case, Ruggiero's filings suggest he may have a plausible First Amendment
retaliation claim and/or Fourteenth Amendment Equal Protection claim against one or more
of the City defendants. See, e.g., Graham v. Macy's, Inc., 2016 WL 354897 at *10 (S.D.N.Y.
Jan. 28, 2016) (observing that pro se litigant had been permitted opportunity to amend, at
least in part, because her motion papers contained new allegations that "begin to—although
they do not fully—remedy the deficiencies in her Complaint"). Accordingly, he will be given
leave to replead the factual circumstances surrounding those claims. However, amendment
of plaintiff's other claims would be futile and therefore he will not be permitted to replead
them.
Any amended pleading filed by Ruggiero must be a complete pleading. In other
words, it will supersede and replace his prior pleading in all respects. Plaintiff is advised that
he cannot incorporate by reference any portion of his prior filings. And although plaintiff may
attach documents to his pleading if he wishes, he is advised that he should plead within the
numbered paragraphs of the complaint itself each fact or facts upon which he seeks to
pursue a claim. Plaintiff is further advised that, to the extent practicable, he should plead
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with specificity the time, place, and description of each event or events on which he seeks to
base a First Amendment or Equal Protection claim. Finally, although plaintiff has named
eighteen different City officials and an unspecified number of Does, he should take care to
identify the specific actor or actors responsible for each alleged instance of misconduct and
describe how they were each "personally involved" in the constitutional violation.
V. CONCLUSION
Ruggiero's conspiracy, false arrest, malicious prosecution, denial of medical
treatment, and state law constitutional claims must be dismissed with prejudice. However,
plaintiff's retaliation and equal protection claims will be conditionally dismissed without
prejudice to afford him an opportunity to replead.
Therefore, it is
ORDERED that
1. The County defendants' motion to dismiss is GRANTED;
2. The City defendants' motion to dismiss is GRANTED in part and DENIED in part;
3. Plaintiff's claims against the County defendants are DISMISSED WITH
PREJUDICE;
4. The Clerk of the Court shall terminate the County defendants as parties to this
action;
5. Plaintiff's conspiracy, false arrest, malicious prosecution, denial of medical
treatment, and state law constitutional claims against the City defendants are DISMISSED
WITH PREJUDICE;
6. Plaintiff's First Amendment retaliation and Fourteenth Amendment Equal
Protection claims against the City defendants are DISMISSED WITHOUT PREJUDICE; and
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7. Plaintiff may file an amended complaint as to the First Amendment retaliation and
Fourteenth Amendment Equal Protection claims against the City defendants in accordance
with the instructions set forth above within thirty (30) days from the date of this
Memorandum–Decision & Order.
IT IS SO ORDERED.

Dated: November 14, 2018
Utica, New York.

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