Hudson v. Town of Pine Plains-Justice Christie Acker et al
Filing
104
MEMORANDUM AND OPINION re: 100 MOTION to Dismiss . filed by Miano, J. Margendahl. For the foregoing reasons, Defendants' Motion To Dismiss Plaintiff's claims for false arrest against Miano and Mergendahl and for Miano's involvement in the seizure of Plaintiff's rifles is granted with prejudice. The Clerk of the Court is respectfully directed to terminate the pending Motion. (See Dkt. No. 100.) (Signed by Judge Kenneth M. Karas on 11/14/2015) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT HUDSON,
Plaintiff,
-v-
No. 12-CV-5548 (KMK)
COUNTY OF DUTCHESS, NEW YORK
STATE POLICE OFFICER MIANO, and
NEW YORK STATE POLICE OFFICER J.
MERGENDAHL,
OPINION & ORDER
Defendants.
Appearances:
Robert Hudson
Stanfordville, N.Y.
Pro Se Plaintiff
David Lewis Posner, Esq.
McCabe & Mack LLP
Poughkeepsie, N.Y.
Counsel for Defendant County of Dutchess
Daniel A. Schulze, Esq.
Office of the Attorney General of the State of New York
New York, N.Y.
Counsel for Defendants Miano and Mergendahl
KENNETH M. KARAS, District Judge:
Robert Hudson (“Plaintiff”), proceeding pro se, brings claims against the County of
Dutchess, New York State Trooper Miano (“Miano”) and New York State Trooper Mergendahl
(“Mergendahl”) under 42 U.S.C. § 1983, alleging that Miano and Mergendahl (collectively
“Defendants”) violated his constitutional rights for their involvement in arresting him and
bringing charges against him and the subsequent confiscation of his rifles. Mergendahl and
Miano now move to dismiss certain claims asserted against them. For the following reasons,
Defendants’ Motion To Dismiss is granted.
I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Fourth Amended Complaint (“FAC”), and
attached exhibits, and are presumed to be true for the purpose of this Motion To Dismiss.
Plaintiff’s allegations have been summarized in detail in the Court’s previous Opinions in this
case, and therefore the Court will only address the factual allegations relevant to the instant
Motion. Plaintiff’s claims relate to charges brought against him for allegedly trespassing onto
land belonging to his neighbors, the Varneys, and for harassing the Varneys. (See, e.g., FAC 4, 9
(Dkt. No. 94).)
On June 24, 2010, Sebastian Varney (“Varney”) went to the Town of Pine Plains
Criminal Court and swore a deposition, under penalty of perjury. (Pl.’s Exs., at 36.)1 That
deposition stated, in relevant part:
These events occurred on my farm – 258 Hicks Hill Rd. at about 6:10 PM. A blue
and white SUV drove down my private driveway towards my home. As the car
approached it swerved around my dog nearly hitting it and continued towards my
[unintelligible.] As I watched the car approach my dog I waved my arms and
shouted to avoid the dog. I walked towards the still moving vehicle to identify the
driver and saw it to be Mr. Robert Hudson. As his car passed closely by me he said
“What’s up young Varney” and continued down the road past me and across our
property. This event was extremely unnerving and caused me to be concerned for
my personal well being. . . . The property is clearly posted and Robert Hudson has
1
Plaintiff did not number the exhibits that he attached to his FAC. Instead, Plaintiff
included an index that provides the pages at which each document appears, and numbered the
documents on the bottom right. The Court will follow this convention, and refer to Plaintiff’s
exhibits as a single consecutively paginated document. There is another set of numbers on the
bottom middle of the exhibits, which numbers the Court will disregard.
2
no permission to access or enter our land. He has been repeatedly advised by us
and the property manager [unintelligible].
(Id.) In his deposition, Varney also requested an order of protection. (See id.)
Later that day, and apparently in reliance on Varney’s deposition, Miano signed two
informations charging Varney with crimes under New York law. First, Miano signed an
information accusing Plaintiff of criminal trespass in the third degree, in violation of New York
Penal Law § 140.10.2 (See id. at 37.) Specifically, the criminal trespass information that Miano
signed stated that, on June 24, 2010, Plaintiff “did drive his [vehicle] on the property of
Sebastian Varney . . . in the Town of Pine Plains. [Plaintiff] was notified several times not to
enter or drive on said property. The property is clearly posted and fenced in.” (Id.) On the same
day and in connection with the same events, Miano signed a second information accusing
Plaintiff of harassment in the second degree, in violation of New York Penal Law § 240.26.3
(See id. at 38.) Specifically, the criminal harassment information that Miano signed stated that,
on June 24, 2010, Plaintiff “did drive his vehicle . . . on the property of . . . Varney and while
doing so did yell out the window, ‘What’s up young Varney.’ [Plaintiff] also swer[]ved at
[Varney’s] dog trying to strike the dog with his vehicle. [Plaintiff] was notified several times to
stay off the property and the property is well marked and fenced in.” (Id.)
2
Section 140.10 provides in relevant part that “[a] person is guilty of criminal trespass in
the third degree when he knowingly enters or remains unlawfully in a building or upon real
property . . . which is fenced or otherwise enclosed in a manner designed to exclude intruders.”
N.Y. Penal Law § 140.10.
3
Section 240.26 provides in relevant part that “[a] person is guilty of harassment in the
second degree when, with intent to harass, annoy[,] or alarm another person . . . he or she
engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such
other person and which serve no legitimate purpose.” N.Y. Penal Law § 240.26.
3
Also on June 24, 2010, as a result of the foregoing events, Town of Pine Plains Justice
Christi J. Acker (“Justice Acker”) signed a temporary order of protection, ordering Plaintiff to
stay away from Varney’s home and business; to refrain from communications or any other
contact with Varney; to refrain from various forms of harassment against Varney; to refrain from
intentionally injuring or killing Varney’s dog without justification; and, most importantly for the
purposes of Plaintiff’s FAC, to “[s]urrender any and all handguns, pistols, revolvers, rifles,
shotguns and other firearms [that Plaintiff] owned or possessed” to the Dutchess County
Sheriff’s Office by 1:00 PM on June 25, 2010, and to not acquire further guns or firearms. (Pl.’s
Exs., at 39.) Justice Acker originally specified that the order was to remain in effect until
December 24, 2010. (See id.) The order was extended on December 15, 2010, and was
ultimately canceled on May 9, 2011. (See id. at 13, 59.)
As noted above, the order of protection required Plaintiff’s rifles to be turned over to the
Dutchess County Sheriff’s Department. (FAC 3.) However, Plaintiff alleges that the Sheriff’s
Department “would not take Plaintiff’s rifles,” and instead the New York State Police took the
rifles from Plaintiff at the Sheriff’s Department. (Id.) The Court notes that Plaintiff does not
specify which New York State Police Officer or Officers took the rifles at the Sheriff’s
Department, but merely refers to a June 25, 2010 receipt from the New York State Police for one
Springfield and one Remington rifle. (See id. (citing Pl.’s Exs., at 40); see also Pl.’s Exs., at 40.)
The receipt was signed by a New York State Trooper with the surname “Doncitek.” (Pl.’s Exs,
at 40.)
By October 18, 2010, criminal proceedings had commenced against Plaintiff in
connection with the two charging instruments that Miano signed. (See Pl.’s Exs., at 52.) On that
date, Justice Acker granted the prosecutor’s request for an adjournment, as well as his
4
“application for a reduction of the misdemeanor Criminal Trespass 3rd to a violation of
Trespass,” and informed Plaintiff that “the matter [could] only proceed as a Bench Trial,” which
was scheduled to begin on October 27, 2010. (Id.) However, before those criminal proceedings
reached a resolution, another incident involving Plaintiff and Varney occurred.
On January 28, 2011, Varney swore to a second deposition, again under penalty of
perjury, in which he stated that, on that date, he “witnessed a vehicle” cross onto his property and
“proceed through the back portion of [his] property,” and that “the operator” had been “shouting
as he drove.” (See id. at 54.) Varney “believe[d] without doubt [that] the operator [was]
[Plaintiff,] as [Plaintiff] [had] exhibited this course of action on numerous occasions.” (Id.)
Varney stated that he had “an order of protection in place,” and “would like to have [Plaintiff]
arrested.” (Id.)
On the same day that Varney swore to this deposition, apparently on the basis of the
allegations contained therein, Mergendahl signed an information accusing Plaintiff of a criminal
trespass violation under New York Penal Law § 140.05.4 (See id. at 55.) Specifically, the
criminal trespass information that Mergendahl signed alleged that, on January 28, 2011, Plaintiff
“did intentionally, knowingly[,] and unlawfully drive his ATV onto . . . Varney’s property . . . .”
(Id.) On the same day, Mergendahl also signed an information accusing Plaintiff of criminal
contempt in the second degree, in violation of New York Penal Law § 215.50. (See id. at 56.)5
4
Section 140.05 provides that “[a] person is guilty of trespass when he knowingly enters
or remains unlawfully in or upon premises.” N.Y. Penal Law § 140.05.
5
Section 215.50 provides in relevant part that
[a] person is guilty of criminal contempt in the second degree when
he . . . [i]ntentional[ly] fail[s] to obey any mandate, process or notice, issued
pursuant to articles sixteen, seventeen, eighteen, or eighteen-a of the judiciary law,
or to rules adopted pursuant to any such statute or to any special statute establishing
5
Specifically, the criminal contempt information that Mergendahl signed alleged that, on January
28, 2011, Plaintiff “did intentionally, knowingly[,] and unlawfully trespass onto . . . the residence
of . . . Varney,” and that “[a]n active order of protection issued by the Town of Pine Plains Court
refrain[ed] [Plaintiff] from being near the home of . . . Varney.” (Id.)
After a bench trial, Justice Acker found Plaintiff guilty of the trespass charge, but not
guilty of the harassment charge, both relating to the June 24, 2010 incident. (See Pl.’s Exs., at
53.) Following this verdict, on May 9, 2011, Justice Acker cancelled and recalled the protective
order that she issued on June 24, 2010, and that she extended on December 15, 2010. (See id. at
13, 59.) Then, on July 19, 2011, a jury acquitted Plaintiff of the charges stemming from the
trespass and contempt charges that Mergendahl initiated in January 2011. (See id. at 58; FAC 3–
4 (“Trooper Mergendahl’s criminal charges against Plaintiff . . . were thrown out by a Jury after
a trial by Jury took place.”).)
On February 14, 2012, Plaintiff wrote a letter to the New York State Police requesting the
return of his rifles. (Pl.’s Exs., at 72.) Plaintiff emphasized that “[a]ll [c]riminal charges [against
him had] been dismissed,” cited the Second Amendment to the United States Constitution, and
quoted from Razzano v. County of Nassau, 765 F. Supp. 2d 176 (E.D.N.Y. 2011), a case in
which the court found that “persons whose longarms are seized by Nassau County are entitled to
a prompt post-deprivation hearing,” and because the plaintiff in that case had “not [been] offered
[that] type of hearing, Nassau County [had] violated [the plaintiff’s] Fourteenth Amendment due
commissioners of jurors and prescribing their duties or who refuses to be sworn as
provided therein.
N.Y. Penal Law § 215.50.
6
process rights.” (See Pl.’s Exs., at 72.) See also Razzano, 765 F. Supp. 2d at 190–91.
Specifically, Plaintiff paraphrased the following passage from Razzano:
[T]he right to bear arms is enshrined in the Second Amendment of the United States
Constitution, and although this right is by no means unlimited, ownership of guns
by individuals legally entitled to those guns is a basic right. A prompt due process
hearing is likely to limit the unfair curtailment of this right.
Razzano, 765 F. Supp. 2d at 190.
On February 17, 2012, Captain Jankowiak wrote to Plaintiff that he had “forwarded
[Plaintiff’s] letter to [Captain Brown],” who would “ensure [that] a supervisory member of his
command review[] [the] matter and advise[] [Plaintiff] of the final determination.” (Pl.’s Exs.,
at 74.) Plaintiff alleges that on April 22, 2011, he brought an Article 78 proceeding to have his
rifles returned to him. (FAC 3; see also Pl.’s Exs., at 111–17.) Although it is not entirely clear,
it appears that Plaintiff alleges that his rifles still have not been returned to him. (FAC 9
(“Plaintiff’s rifles were not returned though upon multiple occasions [P]laintiff requested the
return of his rifles from the state police.”); see also Pl.’s Exs., at 13 (Third Am. Compl. (alleging
that there “was never a post deprivation of Plaintiffs rifle [sic], hearing before the trials, and
Plaintiff’s rifles have never been returned”).)
Finally, the Court notes that the details of Plaintiff’s arrests are somewhat unclear. In the
FAC, Plaintiff alleges that “[b]oth Trooper Miano and Trooper Mergendahl came over the
Varney road to Hudson’s [p]roperty with shotgun[s] drawn to arrest” him, but does not allege
when this occurred or whether he was actually arrested at that time. (FAC 2.) Plaintiff’s only
other factual allegation in the FAC related to an arrest is his bare assertion that “Mergendahl
made a false arrest.” (Id. at 4.) By the Court’s reading, Plaintiff appears to be addressing an
arrest made on March 2, 2011 by Mergendahl and his partner, related to the second set of
criminal charges. (See Pl.’s Exs., at 64; see also id. at 57 (bail agreement signed by Plaintiff on
7
March 3, 2011).) The records attached to Plaintiff’s FAC show that Plaintiff was arrested on
June 24, 2010 on Miano’s trespass and criminal harassment charges, (Pl.’s Exs., at 53, 59), and
that he was arrested on January 28, 2011 on Mergendahl’s criminal trespass and contempt
charges, (Pl.’s Exs., at 58). However, it is not clear who arrested Plaintiff on those dates and it is
not clear whether Plaintiff seeks to assert claims based on those arrests.
B. Procedural Background
Plaintiff filed a Complaint on July 18, 2012, naming Justice Acker, the Town of Pine
Plains, Dutchess County, the Dutchess County Treasurer, Miano, Mergendahl, the Attorney
General of New York, the Department of State of New York State, Premier Court Reporters, and
Schmieder and Miester, Inc. as Defendants. (See Dkt. No. 1.) On August 31, 2012, Plaintiff
filed an Amended Complaint. (See Dkt. No. 14.)
On September 12, 2012, the Court issued an Order directing Plaintiff to amend his
Complaint. (See Order To Amend (Dkt. No. 12).) The Court “liberally construe[d] the
Complaint as alleging constitutional violations, under 42 U.S.C. § 1983, arising out of the
seizure of [Plaintiff’s] rifles, his arrest, and prosecution.” (Id. at 3.) In regard to Plaintiff’s claim
that “his rifles were seized from him, and [that] he [had] been unable to recover them in violation
of the Second and Fourteenth Amendments,” the Court noted that Plaintiff had not “provide[d]
sufficient facts regarding his claims regarding the firearms,” and directed Plaintiff to “amend his
Complaint to explain whether he had the requisite license or permit to possess the weapons,
whether there was any process to recover them, and if there was a process, how it was deficient.”
(Id. at 4–5.) The Court also advised that, “[t]o the extent Plaintiff [was] alleging that the
protective order that allegedly required surrender of the weapons . . . independently violated his
Second Amendment rights, he [was] directed to clarify those allegations.” (Id. at 5.)
8
The Court also put Plaintiff on notice that, if he did not remedy certain other deficiencies
that the Court identified in its Order, his claims against Justice Acker would be dismissed on the
grounds of judicial immunity; that his claims against the Town of Pine Plains, Dutchess County,
and the Dutchess County Treasurer would be dismissed in light of Monell v. Department of
Social Services, 436 U.S. 658 (1978), for failure to allege constitutional violations committed
pursuant to an official policy, custom, or practice; that his claims against the Attorney General of
New York and the Department of State of New York State would be dismissed on the basis of
the immunity from claims for damages in federal court that the Eleventh Amendment to the
United States Constitution provides to states and their agencies, as well as on the basis that a
state and its agencies are not “persons” within the meaning of 42 U.S.C. § 1983, and therefore
may not be sued under the statute; that his claims against Premier Court Reporters and
Schmieder and Miester, Inc., would be dismissed because a litigant claiming that his due process
rights have been violated must allege that the challenged conduct is attributable to the
government, and Plaintiff had not alleged the existence of state action with respect to those
Defendants; and that, insofar as Plaintiff was attempting to challenge his conviction on the basis
of double jeopardy or the right to trial by jury, or on the basis that his criminal proceedings were
otherwise unfair, he was required to first exhaust such claims through the state-court appeals
process. (Order To Amend 5–6, 7–8.)
As to the claims that the Court construed Plaintiff’s Complaint to be asserting against
Miano and Mergendahl, the Court found that, to the extent that Plaintiff was asserting a claim
against them based on their alleged violation of the Fourth Amendment in connection with their
alleged entries onto his property, Plaintiff was not required to “allege more at [that] point.” (Id.
at 6.) However, the Court also stated that, “to the extent Plaintiff [was] asserting a false arrest
9
claim [against them], he should know that he” was not permitted to “bring any claims that would
implicate the validity of his conviction or sentence unless he [had] shown that his state court
conviction [had] been reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” (Id. at 7 (internal quotation marks omitted).) In
support of this proposition, the Court cited to Heck v. Humphrey, 512 U.S. 477, 486–87 (1994),
as well as Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir. 2010), a Second Circuit decision
interpreting Heck. (See Order To Amend 7.)
On October 10, 2012, Plaintiff filed a Second Amended Complaint, in which he named
three private law firms—Gambeski and Frum, McCabe and Mack, and Gellert and Klein P.C.—
as additional Defendants. (See Dkt. No. 23.) On November 1, 2012, the Court issued an Order
in which it considered whether Plaintiff’s Second Amended Complaint adequately addressed the
deficiencies that it identified in its September 12, 2012 Order, and whether the addition of the
three law-firm Defendants presented any new problems. (See Dkt. No. 27.) The Court found
that Plaintiff had not addressed those deficiencies as to Justice Acker, the Town of Pine Plains,
the Dutchess County Treasurer, the Attorney General of New York, the Department of State of
New York State, Premier Court Reporters, and Schmieder and Miester, Inc., and accordingly
dismissed all claims that Plaintiff was attempting to assert against those Defendants. (See id. at
6.) The Court also dismissed the claims that Plaintiff was attempting to assert against the three
law-firm Defendants, as Plaintiff had “not made any allegations whatsoever against [them],
much less described how their conduct [was] attributable to the government.” (See id. at 4.)
However, in relation to Plaintiff’s claims regarding the seizure of his rifles, the Court
found that he had “provide[d] additional details regarding [their] seizure . . . , the licensing and
10
permit requirements in Dutchess County, and his attempts to recover[] the weapons,” and that as
a result, “Plaintiff’s claims regarding the seizure of his rifles [could] proceed,” without prejudice
to Defendants’ right to file dispositive motions at a later date. (Id. at 5.) The Court also found
that Plaintiff’s claims regarding Miano’s and Mergendahl’s alleged violation of the Fourth
Amendment in connection with their alleged entries onto his property could also proceed, again
without prejudice to Defendants’ right to file dispositive motions at a later date. (See id.)
But the Court also noted that its previous Order had explained that Plaintiff was not
permitted to bring a claim that would implicate the validity of his conviction or sentence, unless
he had shown that his state court conviction had been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus. (See id.) Because
Plaintiff had “not address[ed] this point in his Amended Complaint,” the Court held that, “[t]o
the extent that the Amended Complaint [could] be construed to allege a false arrest claim”
against Defendants Miano and Mergendahl, “that claim [was] . . . dismissed.” (Id.) Lastly, the
Court found that, although Plaintiff had sought to maintain his claims against Dutchess County
in his Amended Complaint, he had still failed to “allege any injury resulting from a policy,
custom, or practice” as required by Monell, and that, if Plaintiff failed to allege such injury in a
subsequent version of his Complaint, “Dutchess County [would] be dismissed as a Defendant.”
(Id. at 6.)
On November 28, 2012, Plaintiff filed a Re-Amended Second Amended Complaint. (See
Dkt. No. 44.) Plaintiff then filed a Third Amended Complaint on March 22, 2013, naming only
Dutchess County, Miano, and Mergendahl as Defendants. (See Dkt. No. 58.) Dutchess County
moved to dismiss, (Dkt. No. 70), and Miano and Mergendahl moved to dismiss some, but not all,
11
of the claims asserted against them, (Dkt. Nos. 77, 78). The Court dismissed Plaintiff’s claims
against Dutchess County related to allegedly improper conduct by the assistant district attorney
(“ADA”) who prosecuted Plaintiff in his trespass and harassment bench trial, holding that the
ADA was not a policymaker for Monell purposes. (Opinion and Order (“Sept. 29, 2014
Opinion”) 19–21 (Dkt. No. 89).) The Court also dismissed as time barred Plaintiff’s claims
against Dutchess County related to the Dutchess County clerk’s alleged refusal to accept a
petition for registration of title that Plaintiff submitted in 1981. (Id. at 21–22.) Next, the Court
dismissed Plaintiff’s claims against Dutchess County related to its allegedly inadequate response
to a FOIL request because there was no violation of a federal constitutional or statutory right and
Plaintiff did not pursue any Article 78 process to address this alleged deficiency. (Id. at 23–24.)6
Finally, the Court noted that Plaintiff attempted to assert a claim against Dutchess County for its
alleged failure to hold a hearing in connection with the confiscation of Plaintiff’s rifles, but
because Dutchess County did not move to dismiss this claim, the Court declined to assess its
merits. (Id. at 25–27.)
With respect to Plaintiff’s claims against Miano and Mergendahl, the Court held that,
even construing Plaintiff’s Third Amended Complaint liberally, it could not be understood to be
asserting false arrest claims. (Id. at 27.) However, reasoning that its previous dismissal of
Plaintiff’s false arrest claims was based on an incorrect interpretation of Second Circuit law, out
of an abundance of caution, the Court provided Plaintiff with one final opportunity to amend his
Complaint to adequately allege any false arrest claims he believes he may have against
Mergendahl and Miano. (Id. at 30–32.) With respect to Plaintiff’s rifle-related claims against
6
Plaintiff’s request was made pursuant to New York State’s Freedom of Information
Law, N.Y. Pub. Off. Law § 84 et seq.
12
Mergendahl and Miano the Court construed the Third Amended Complaint as alleging that
Miano’s wrongful signing of the informations set in motion a chain of events that eventually
resulted in the confiscation of Plaintiff’s rifles, and that Miano is therefore responsible for such
deprivation, and because Defendants did not address this argument, the Court declined to address
it on its own. (Id. at 35–36.) However the Court noted that the rifle-related claim Plaintiff
appeared to be asserting applied only to Miano, and therefore dismissed with prejudice any riflerelated claims against Mergendahl. (Id. at 36–37.)
Plaintiff filed the FAC on December 24, 2014. (Dkt. No. 94.) Pursuant to a schedule set
by the Court, (Dkt. No. 99), Mergendahl and Miano filed their Motion To Dismiss and
accompanying papers on February 20, 2015, (Dkt. Nos. 100, 101); Plaintiff filed his opposition
on March 20, 2015, (Dkt. No. 102); and Defendants filed their Reply on April 20, 2015, (Dkt.
No. 103). The Court notes that Miano and Mergendahl only moved to dismiss Plaintiff’s false
arrest and rifle-related claims, and that Dutchess County did not move to dismiss the remaining
rifle-related claim Plaintiff asserted against the County.
II. Discussion
A. Standard of Review
Defendants move to dismiss Plaintiff’s FAC under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations,
internal quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
13
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (internal quotation marks and alterations
omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the
line from conceivable to plausible, the[] complaint must be dismissed,” id; see also Iqbal, 556
U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where 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.’” (second alteration in original) (citation omitted) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see
also Dixon v. United States, No. 13-CV-2193, 2014 WL 23427, at *1 (S.D.N.Y. Jan. 2, 2014)
(report and recommendation) (“For the purpose of this motion to dismiss, we assume that the
facts alleged in [the plaintiff’s] complaint are true.”). Further, “[f]or the purpose of resolving [a]
motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the plaintiff.”
Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v.
14
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule
12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Disc.
Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also
Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20,
2013) (same).
Because Plaintiff proceeds pro se, the Court must “construe[] [his] [complaint] liberally
and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am.,
723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted. However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, No. 12-CV-6666, 2013 WL
5863561, at *2 (S.D.N.Y. Oct. 31, 2013) (internal quotation marks omitted); see also Caidor v.
Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to
inform themselves regarding procedural rules and to comply with them.” (italics and internal
quotation marks removed)).
B. Analysis
Defendants construe the FAC as alleging a false arrest claim against Miano and
Mergendahl as well as a claim against Miano regarding the confiscation and continued
possession of Plaintiff’s guns, (see Mem. of Law in Supp. of Defs. Mergendahl and Miano’s
Mot. To Dismiss Claims in Pl.’s Fourth Am. Compl. (“Defs.’ Mem.”) 1 (Dkt. No. 101)), and
move to dismiss.
15
1. False Arrest Claim
Previously, in moving to dismiss Plaintiff’s Third Amended Complaint, Defendants
construed the Complaint as raising a false arrest claim. (See Sept. 29, 2014 Opinion 27.) The
Court noted in its previous Opinion that, even construing Plaintiff’s Third Amended Complaint
liberally and interpreting it to raise the strongest arguments it suggested, Plaintiff had not alleged
a false arrest claim against Miano or Mergendahl. (Id.) The Court, however, “out of an
abundance of caution” allowed Plaintiff “one final opportunity” to amend his Complaint to
sufficiently allege any false arrest claims he sought to bring against Defendants. (Id. at 32.)
Defendants again construe Plaintiff’s Fourth Amended Complaint as alleging false arrest claims
against Miano and Mergendahl. It is still not clear to the Court that Plaintiff even intends to raise
a false arrest claim, at least against Miano. However, to the extent that Plaintiff brings a false
arrest claim, Defendants’ Motion To Dismiss that claim is granted.
a. Applicable Law
“A § 1983 claim for false arrest or false imprisonment” is “based on an individual’s
Fourth Amendment right to be free from unreasonable seizures.” Weaver v. City of New York,
No. 13-CV-20, 2014 WL 950041, at *4 (E.D.N.Y. Mar. 11, 2014); see also Crews v. County of
Nassau, 996 F. Supp. 2d 186, 203 (E.D.N.Y. 2014) (“Under New York Law, the tort of false
arrest is synonymous with that of false imprisonment, and courts use that tort to analyze an
alleged Fourth Amendment violation in the Section 1983 context.” (internal quotation marks
omitted)). To establish a defendant’s individual liability under § 1983, a plaintiff must show “(a)
that the defendant is a person acting under the color of state law, and (b) that the defendant
caused the plaintiff to be deprived of a federal right.” Back v. Hastings on Hudson Union Free
Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (internal quotation marks omitted). Further, “to
16
prevail on a claim of false arrest a plaintiff must 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.” Jocks v. Tavernier, 316
F.3d 128, 134–35 (2d Cir. 2003) (internal quotation marks omitted); see also Wiltshire v.
Wanderman, No. 13-CV-9169, 2015 WL 4164808, at *2 (S.D.N.Y. July 10, 2015) (same).
“Probable cause ‘is a complete defense to an action for false arrest’ brought under New
York law or § 1983.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)); see also Conte v. County of Nassau, No. 06CV-4746, 2010 WL 3924677, at *12 (E.D.N.Y. Sept. 30, 2010) (same). “Probable cause to
arrest exists when the officers have . . . reasonably trustworthy information as to [] facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief that an
offense has been . . . committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d
344, 368 (2d Cir. 2007). To determine whether probable cause existed for an arrest, a court
“assess[es] whether the facts known by the arresting officer at the time of the arrest objectively
provided probable cause to arrest.” Ackerson, 702 F.3d at 19 (internal quotation marks omitted).
Where, as here, “there is more than one officer cooperating in the investigation, the knowledge
of each officer is presumed to be shared by all.” Abdul-Rahman v. City of New York, No. 10CV-2778, 2012 WL 1077762, at *5 (E.D.N.Y. Mar. 30, 2012). Moreover, “probable cause does
not require an awareness of a particular crime, but only that some crime may have been
committed.” Ackerson, 702 F.3d at 20 (internal quotation marks omitted). Therefore, “it is not
relevant whether probable cause existed with respect to each individual charge, or, indeed, any
charge actually invoked by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d
149, 154 (2d Cir. 2006). “Stated differently, when faced with a claim for false arrest, [the courts]
17
focus on the validity of the arrest, and not on the validity of each charge.” Id. (emphasis in
original). “The burden of establishing the absence of probable cause rests on the plaintiff,” and
“[t]he question of whether or not probable cause existed may be determinable as a matter of law
if there is no dispute as to the pertinent events and the knowledge of the officers.” Sethi v.
Nassau County, No. 11-CV-6380, 2014 WL 2526620, at *4 (E.D.N.Y. June 3, 2014) (internal
quotation marks omitted); see also Nickey v. City of New York, No. 11-CV-3207, 2013 WL
5447510, at *5 (E.D.N.Y. Sept. 27, 2013) (“[W]hen the facts material to a probable cause
determination are undisputed, the matter is a question of law properly decided by the [c]ourt.”).
Apart from considering the plausibility of Plaintiff’s false arrest claim, the Court
considers whether Defendants are entitled, as they urge, to qualified immunity. (See Defs.’
Mem. 4–6.) “The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (citations and internal quotation marks omitted). Qualified immunity
“‘gives government officials breathing room to make reasonable but mistaken judgments’ by
‘protect[ing] all but the plainly incompetent or those who knowingly violate the law.’” City &
Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (alteration in original) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731 (2011)). Because qualified immunity is “an affirmative
defense [that] . . . reflects an immunity from suit rather than a mere defense to liability[,] . . . it is
appropriate to decide the issue of qualified immunity, when raised, at an early stage of the
litigation, such as when deciding a pre-answer motion to dismiss.” Betts v. Shearman, No. 12CV-3195, 2013 WL 311124, at *4 (S.D.N.Y. Jan. 24, 2013), aff’d, 751 F.3d 78 (2d Cir. 2014)
(emphasis and internal quotation marks omitted).
18
In determining whether a right is clearly established, “th[e] inquiry turns on the objective
legal reasonableness of the action, assessed in light of the legal rules that were clearly established
at the time it was taken.” Pearson, 555 U.S. at 244 (internal quotation marks omitted). “In the
Second Circuit, ‘a right is clearly established if (1) the law is defined with reasonable clarity, (2)
the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant
would have understood from the existing law that his conduct was unlawful.’” Schubert v. City
of Rye, 775 F. Supp. 2d 689, 702 (S.D.N.Y. 2011) (quoting Luna v. Pico, 356 F.3d 481, 490 (2d
Cir. 2004)). “In the case of allegations to which probable cause is a complete defense, such as
false arrest or imprisonment, the Second Circuit has defined the standard of qualified immunity
as one of ‘arguable probable cause.’” Betts, 2013 WL 311124, at *4 (footnote omitted) (quoting
Cerrone v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001)). “Arguable probable cause exists when
a reasonable police officer in the same circumstances and possessing the same knowledge as the
officer in question could have reasonably believed that probable cause existed in the light of well
established law.” Cerrone, 246 F.3d at 202–03 (emphasis in original) (internal quotation marks
omitted). In other words, an officer is entitled to qualified immunity if (1) “it was objectively
reasonable for the officer to believe that probable cause existed,” or (2) “officers of reasonable
competence could disagree on whether the probable cause test was met.” See Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir. 1991); see also Betts, 2013 WL 311124, at *4 (same).
b. Analysis
Defendants do not contest that Plaintiff has adequately alleged the first three elements of
a claim for false arrest, but rather contend that Plaintiff cannot satisfy the fourth element that
“the confinement was not otherwise privileged,” Ackerson, 702 F.3d at 19 (internal quotation
marks omitted), because there was probable cause to arrest Plaintiff and, in any event, Miano and
19
Mergendahl are entitled to qualified immunity, (Defs.’ Mem. 2–6). In opposition, Plaintiff
argues that he had not committed a crime because he had taken possession due to adverse
possession and that Varney’s sworn statement did not support the charges brought. (See
generally Pl.’s Answer to Defs.’ Notice of Mot. and Mot. and Mem. of Law (Dkt. No. 102).)
Although the FAC states that “[b]oth Trooper Miano and Trooper Mergendahl came over
the Varney road to Hudson’s [p]roperty with shotgun[s] drawn to arrest [P]laintiff . . .”, (FAC 2),
Plaintiff does not actually allege that they arrested him at that time. Indeed, nowhere in the FAC
does Plaintiff allege that Miano arrested him. However, even if the FAC were to be read to
include a false arrest claim against either or both Defendants, this claim fails because Defendants
had, at the very least, arguable probable cause to arrest Plaintiff following each of Varney’s
depositions.7
On June 24, 2010, Varney signed a sworn statement indicating that Hudson drove his
blue and white SUV down Varney’s private driveway toward Varney’s home, that as Hudson’s
car approached, Varney waved his arms and shouted for Hudson to avoid Varney’s dog, and that
the car “swerved around [Varney’s] dog nearly hitting it.” (Pl.’s Exs., at 36.) Varney walked
toward the moving vehicle to identify the driver, and saw it was Hudson. (Id.) Varney further
swore that the “event was extremely unnerving and caused [him] to be concerned for [his]
personal well being.” Furthermore, according to Varney, the “property [was] clearly posted,”
Hudson had no permission to access or enter the land, and Hudson had been repeatedly advised
of this. (Id.) On January 28, 2011, Varney swore to a second deposition, in which he stated that
he “witnessed a vehicle” cross onto his property and “proceed through the back portion of [his]
7
Although it appears that any false arrest claim Plaintiff brings relates to his March arrest
related to the second set of charges brought by Mergendahl, because it is somewhat unclear, the
Court will assess probable cause to arrest following each of Varney’s depositions.
20
property,” and that “the operator” had been “shouting as he drove.” (Pl.’s Exs., at 54.) Varney
swore that he “believe[d] without doubt [that] the operator [was] [Plaintiff,] as [Plaintiff] [had]
exhibited this course of action on numerous occasions.” (Id.) At the time, there was an active
order of protection in place, requiring Plaintiff to stay away from Varney’s home and business.
(Id. at 39.)8
“An arresting officer advised of a crime by a person who claims to be the victim, and
who has signed a complaint or information charging someone with the crime, has probable cause
to effect an arrest absent circumstances that raise doubts as to the victim’s veracity.” Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995); see also Curley v. Vill. of Suffern, 268 F.3d
65, 70 (2d Cir. 2001) (“When information is received from a putative victim or an eyewitness,
probable cause exists, unless the circumstances raise doubt as to the person’s
veracity . . . .” (citation omitted)); Williams v. City of New York, No. 14-CV-5123, 2015 WL
4461716, at *4 (S.D.N.Y. July 21, 2015) (“A police officer may have probable cause to arrest
and charge a suspect based on information provided by a single victim or witness, unless
circumstances raise doubts as to the person’s veracity.” (internal quotation marks omitted));
Blythe v. City of New York, 963 F. Supp. 2d 158, 182 (E.D.N.Y. 2013) (noting that
“[i]nformation provided by an identified citizen accusing another individual of committing a
specific crime is sufficient to provide the police with probable cause to arrest,” and therefore
8
Because Varney’s sworn statements were attached to the FAC, the Court may consider
them in deciding the Motion. See, e.g., Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y.
Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014), cert. denied, 135 S. Ct. 677 (2014) (“In
ruling on a 12(b)(6) motion, . . . a court may consider the complaint as well as any written
instrument attached to the complaint as an exhibit or any statements or documents incorporated
in it by reference.” (alterations and internal quotation marks omitted)); Masciotta v. Clarkstown
Cent. Sch. Dist., —F. Supp. 3d—, 2015 WL 5730629, at *5 (S.D.N.Y. Sept. 30, 2015) (same).
21
granting the defendants’ motion for summary judgment because “an identified
individual . . . called 911 and reported” the plaintiff’s alleged wrongdoing). Indeed, “the veracity
of citizen complainants who are the victims of the very crime they report to the police is
assumed.” Conte, 2010 WL 3924677, at *13 (alterations and internal quotation marks omitted).
Moreover, the victim’s credibility is further bolstered, as happened here, when the statements to
the police are sworn on penalty of perjury. (See Pl.’s Exs., at 36, 54 (Varney’s Depositions)
(stating that “[i]n a written instrument, any person who knowingly makes a false statement which
such person does not believe to be true has committed a crime under the laws of the state of New
York punishable as a Class A misdemeanor,” and “[a]ffirm[ing] [the statement] under penalty of
perjury”)). See also Panetta v. Crowley, 460 F.3d 388, 397 (2d Cir. 2006) (“[The affidavit and
statement produced by witnesses] both contain acknowledgments that any false statements made
to [the state trooper] subjected the authors to criminal penalties. This exposure to criminal
penalties is an additional factor supporting the reasonableness of [the trooper’s] reliance on [the
witnesses’] complaints.”); United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996)
(holding, in assessing probable cause, that “the [informant’s] allegations are significantly more
reliable . . . because the [informant] testified under threat of the criminal sanction for perjury”);
Weiner v. McKeefery, 90 F. Supp. 3d 17, 30 (E.D.N.Y. 2015) (“The Second Circuit has
recognized that when a sworn statement contains an acknowledgment that any false statement
made to police would subject the author to criminal penalties, that statement serves as an
additional indici[um] of reliability.”).
Here, the purported victim, Varney, provided sworn information that, in both occasions,
Plaintiff knowingly entered Varney’s property without permission. In the first deposition,
Varney described how he saw Hudson as he drove past him. (Pl.’s Exs., at 36.) In the second
22
deposition, Varney did not assert that he saw Hudson himself as he drove by. (See id. at 54.)
However, the Court concludes that Varney’s deposition included adequate details to allow
officers of reasonable caution to conclude that there was probable cause to arrest. In particular,
Varney stated that “without doubt” the driver of the vehicle on Varney’s property was Plaintiff,
and he provided enough details of identifying conduct—that the person was driving, the path
which the operator drove, and the fact that the operator was shouting as he drove—to warrant
reasonable officers to trust Varney’s conclusion that he was sure that this was Hudson because
Hudson had engaged in this course of conduct on numerous occasions. (Id.) Moreover, Plaintiff
alleges no facts that would suggest that there was any reason whatsoever for the officers to doubt
Varney’s credibility, reliability, or truthfulness.
With respect to Plaintiff’s assertion that he had a defense to the charges—that he had
adversely possessed a portion of Varney’s land—Plaintiff fails to allege sufficient facts to
undercut a finding of arguable probable cause. “[A] police officer is generally not required to
investigate an arrestee’s claim of innocence;” however “‘under some circumstances, a police
officer’s awareness of the facts supporting a defense can eliminate probable cause.’” Conte,
2010 WL 3924677, at *14 (quoting Jocks, 316 F.3d at 135). Nevertheless, “[o]nce a police
officer has a reasonable basis for believing there is probable cause, he is not required to eliminate
every theoretically plausible claim of innocence before making an arrest.” Widget, 2013 WL
1104273, at *6 (alterations and internal quotation marks omitted). “The crucial question then, is
whether the arresting officers deliberately disregarded facts known to them which established” a
defense. See id. Here, Plaintiff fails to allege any facts tending to show that Defendants knew
that Plaintiff had a potential defense, i.e. that Plaintiff claimed to have adversely possessed the
land in question, at the time of Plaintiff’s arrest.
23
Therefore, based on the sworn statements from Varney, the purported victim of the crime,
and in the absence of any evidence tending to show Varney’s unreliability or any evidence that
Defendants knew that Hudson had a potential defense, Defendants had at least arguable probable
cause to arrest Hudson for trespassing following the June 24, 2010 and the January 28, 2011
depositions from Varney.9 The Court further notes that it is irrelevant that Plaintiff ultimately
was acquitted of three of the four charges brought against him. (Pl.’s Exs., at 53, 58; FAC 3–4.)
See Alvarez v. County of Orange, 95 F. Supp. 3d 385, 400 (S.D.N.Y. 2015) (“[N]either the
ultimate disposition of an action, nor the crimes eventually charged, are dispositive of a probable
cause determination. . . . Instead, . . . the inquiry is whether the facts known by the arresting
officer at the time of the arrest objectively provided probable cause to arrest [the] [p]laintiff.”
(alterations and internal quotation marks omitted)); Garnett v. City of New York, No. 13-CV7083, 2014 WL 3950904, at *6 (S.D.N.Y. Aug. 13, 2014) (“[P]robable cause to arrest is a
complete defense to a claim of false arrest. This is true even where a person is ultimately
acquitted, because probable cause to arrest constitutes justification.” (citation omitted)); Douglas
v. City of New York, 595 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (“Probable cause to arrest is a
complete defense to an action for false arrest, even where a person is ultimately acquitted,
because it constitutes justification.”); Little v. City of New York, 487 F. Supp. 2d 426, 438
(S.D.N.Y. 2007) (same). Therefore, to the extent Plaintiff seeks to raise a false arrest claim,
Defendants’ Motion To Dismiss is granted, both because Plaintiff fails to state a plausible claim
and because the existence of arguable probable cause entitles Defendants to qualified immunity.
9
As noted above, “it is not relevant whether probable cause existed with respect to each
individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of
arrest.” Jaegly, 439 F.3d at 154. Additionally, a violation of N.Y. Penal Law § 140.05 may
warrant an arrest, rather than merely a citation or a summons. See Caidor v. Harrington, No. 05CV-297, 2009 WL 799954, at *1 & n.1 (N.D.N.Y. Mar. 24, 2009).
24
2. Rifle-Related Claims
The Court previously dismissed with prejudice any claims Plaintiff alleged against
Mergendahl regarding the seizure of Plaintiff’s rifles, (Sept. 29, 2014 Opinion 37); therefore the
Court will only address the adequacy of the rifle-related claims against Miano. As to Miano, the
Court reads Plaintiff’s FAC as asserting that Miano’s allegedly wrongful signing of the
informations set in motion a chain of events that eventually resulted in the confiscation of
Plaintiff’s rifles, and that Miano is therefore responsible for such action. Defendants construe
this as a malicious prosecution claim, whereby the damages include the seizure of the rifle, and
move to dismiss.
a. Malicious Prosecution Claim
The Court agrees that this claim could potentially be cognizable as a malicious
prosecution claim. Under New York law, “[t]he elements of a malicious prosecution
claim . . . are ‘(1) that the defendant initiated a prosecution against the plaintiff, (2) that the
defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant
acted with malice, and (4) that the prosecution was terminated in the plaintiff’s favor.’” Rohman
v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (quoting Posr v. Court Officer Shield
# 207, 180 F.3d 409, 417 (2d Cir. 1999)). “In order to allege a cause of action for malicious
prosecution under § 1983, [Plaintiff] must assert, in addition to the elements of malicious
prosecution under state law, that there was (5) a sufficient post-arraignment liberty restraint to
implicate [] [P]laintiff’s Fourth Amendment rights.” Id. “Because lack of probable cause is an
element of a malicious prosecution claim, the existence of probable cause is a complete defense
to a claim of malicious prosecution.” Stansbury v. Wertman, 721 F.3d 84, 94–95 (2d Cir. 2013)
(internal quotation marks omitted)). Moreover, “if probable cause existed at the time of arrest, it
25
continues to exist at the time of prosecution unless undermined by the discovery of some
intervening fact.” Costello v. Milano, 20 F. Supp. 3d 406, 415 (S.D.N.Y. 2014) (citations and
internal quotation marks omitted). Further, as discussed above, because probable cause is a
complete defense to malicious prosecution, a defendant is entitled to qualified immunity if
“arguable probable cause” exists. See Cerrone, 246 F.3d at 202.
Plaintiff argues that it was Miano’s charges that allowed Justice Acker to issue the order
of protection and that Varney’s deposition was insufficient to support a charge of harassment.
(FAC 3, 6.) However, a malicious prosecution claim on either of Miano’s charges would fail.
First, Plaintiff was found guilty of Miano’s criminal trespass charge, (see Pl.’s Exs., at 53), and
thus Plaintiff cannot bring a malicious prosecution claim related to that charge, see Fleming v.
City of New York, No. 10-CV-3345, 2014 WL 6769618, at *5 (S.D.N.Y. Nov. 26, 2014) (“[N]o
claim for false arrest or malicious prosecution may be brought under Section 1983 if the plaintiff
was convicted of the offense for which he was arrested.”); see also Cameron v. Fogarty, 806
F.2d 380, 387 (2d Cir. 1986) (“[T]he common-law rule, equally applicable to actions asserting
false arrest, false imprisonment, or malicious prosecution, was and is that the plaintiff can under
no circumstances recover if he was convicted of the offense for which he was arrested.”); Corsini
v. Brodsky, No. 13-CV-2587, 2015 WL 3456781, at *5 (S.D.N.Y. May 27, 2015) (finding that
the plaintiff’s claim for malicious prosecution must fail because the plaintiff was convicted of
one of the charges for which he was arrested); Bowles v. State, 37 F. Supp. 2d 608, 611
(S.D.N.Y. 1999) (“No claim may be brought pursuant to 42 U.S.C. § 1983 for false arrest or
malicious prosecution if the plaintiff was convicted of the offense for which he was arrested.”).
Additionally, Plaintiff has provided no basis to believe that the probable cause that existed at the
26
time of his arrest for trespass had been somehow subsequently undermined, such that it no longer
existed for purposes of his malicious prosecution claim. See Costello, 20 F. Supp. 3d at 415.
With respect to the second charge, the Court holds that Miano had arguable probable
cause to charge Plaintiff with harassment in the second degree based on Varney’s first criminal
complaint. Miano charged Plaintiff with § 240.26 of the N.Y. Penal Law, which provides that
“[a] person is guilty of harassment in the second degree when, with intent to harass, annoy[,] or
alarm another person . . . [h]e or she engages in a course of conduct or repeatedly commits acts
which alarm or seriously annoy such other person and which serve no legitimate purpose.” N.Y.
Penal Law § 240.26. As discussed above with respect to the false arrest claim, as the purported
victim of a crime, and having signed a statement under penalty of perjury, Varney’s statement is
presumed to be true. Furthermore, as also discussed above, Plaintiff alleges no facts tending to
show that Miano knew or should have known that Varney was unreliable or that Plaintiff had a
defense to the charge. According to Varney’s statement, Plaintiff drove across Varney’s
property and swerved around Varney’s dog, nearly hitting it, even with Varney “wav[ing] [his]
arms and shout[ing] to avoid the dog.” (Pl.’s Exs., at 36.) Furthermore, Varney attested to the
fact that “[the] event was extremely unnerving and caused [him] to be concerned for [his]
personal well being.” (Id.) Finally, Varney attested that the property is clearly posted and that
he, as well as the property manager, had repeatedly advised Plaintiff that he had no permission to
access or enter the Varneys’ land. (Id.) This information was sufficient to provide Miano with
at least arguable probable cause to charge Plaintiff with harassment as, according to the evidence
in Miano’s possession, Plaintiff engaged in a course of conduct that alarmed Varney and served
no legitimate purpose, and the requisite intent element could reasonably have been inferred from
Plaintiff’s conduct. See Lynn v. State, 822 N.Y.S.2d 600, 602 (App. Div. 2006) (“The intent to
27
annoy, harass, or alarm . . . may be inferred from the totality of this conduct.”); People v.
Hoffstead, 905 N.Y.S.2d 736, 740 (Sup. Ct. 2010) (“An intent to ‘harass, annoy[,] or alarm’ may
be inferred from the conduct of a defendant . . . .”). Thus, any malicious prosecution claim based
on the harassment charge is dismissed, again both for failure to state a claim and because Miano
is entitled to qualified immunity.
b. Other Rifle Claims
To the extent that Plaintiff raises a Second Amendment claim against Miano for taking
action that led to the imposition of the order of protection requiring him to turn in his guns and to
not acquire other guns or firearms, this claim is dismissed. Miano, acting with probable cause, as
discussed above, brought a harassment charge against Plaintiff. Justice Acker found good cause
to issue a temporary order of protection under N.Y. Criminal Procedure Law § 530.13, which
order required Plaintiff to turn in his guns and prevented him from acquiring new guns or
firearms. (See Pl.’s Exs., at 39.)
The Second Amendment provides that “[a] well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The right of an individual to keep and bear arms has been affirmed by the Supreme Court in
District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S.
742 (2010). This right, however, is not unlimited, Heller, 554 U.S. at 626, and within the
Second Circuit, “the contours of [the right to bear arms] are as of yet underdeveloped and illdefined,” Doutel v. City of Norwalk, No. 11-CV-1164, 2013 WL 3353977, at *23 (D. Conn. July
3, 2013). Indeed, the case law in the Second Circuit addressing the relationship between N.Y.
Criminal Procedure Law § 530.13 and the Second Amendment is particularly sparse, although
there is at least some case law addressing whether the seizure of weapons pursuant to a
28
temporary order of protection violates the Second Amendment. In Estes-El v. Dumoulin, No. 06CV-2528, 2012 WL 1340805 (E.D.N.Y. Apr. 18, 2012), the plaintiff was charged with the same
harassment charge as was Plaintiff in the instant case. See id. at *1. As a result, a judge issued a
temporary order of protection that ordered the plaintiff to surrender all weapons. Id. at *1, *6.
There, the court dismissed the Second Amendment claim the plaintiff brought against the
complainant, holding that there was no basis for holding the complainant responsible for the
issuance of the order of protection, reasoning that the “Second Amendment [did] not prohibit the
state’s right to enforce a weapons restriction and there [was] no suggestion that the underlying
statutes [were] unconstitutional.” Id. at *6 (internal quotation marks omitted). Similarly, here,
there is no allegation that § 530.13 is unconstitutional nor is there any plausible allegation that
Miano was personally responsible for the issuance of the temporary order of protection as the
statute under which the order was issued requires that the court must find good cause to issue
such an order. See N.Y. Crim. Proc. Law § 530.13(1). Likewise, in another case, a court in this
district concluded that the plaintiff’s Second Amendment right was not violated where the police
department seized the plaintiff’s handguns pursuant to a temporary order of protection that the
village justice entered after the plaintiff was arrested on a charge of second-degree menacing.
See McGuire v. Vill. of Tarrytown, No. 08-CV-2049, 2011 WL 2623466, at *3, *7 (S.D.N.Y.
June 22, 2011). Consequently, the seizure of Plaintiff’s weapons here, too, would fail to
implicate the rights guaranteed under the Second Amendment.
Even if there was a way to hold Miano responsible for the issuance of the protective
order, he would nonetheless be entitled to qualified immunity on that claim. As previously
noted, an officer is entitled to qualified immunity if he or she has not violated a clearly
established statutory or constitutional right. Pearson, 555 U.S. at 231. The Second Circuit has
29
set forth three criteria of a clearly established right: “(1) the law is defined with reasonable
clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a
reasonable defendant would have understood from the existing law that his conduct was
unlawful.” Schubert, 775 F. Supp. 2d at 702 (quoting Luna, 356 F.3d at 490). Miano would be
entitled to qualified immunity because the law is not defined with reasonable clarity, and a
reasonable officer would not have understood that he was violating Plaintiff’s Second
Amendment rights by bringing a harassment charge based on probable cause that led to the
issuance of an order of protection, especially since no court has held that such orders of
protection are unlawful. Cf. Kachalsky v. Cty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012)
(“[W]e do not know . . . the scope of [the Second Amendment] right beyond the home and the
standards for determining when and how the right can be regulated by a government.”);
McGuire, 2011 WL 2623466, at *1, *7 (finding that the police department’s seizure of the
plaintiff’s handgun pursuant to a temporary order of protection did not violate Second
Amendment right to bear arms).
Finally, to the extent Plaintiff has alternative claims based on the removal and continued
possession of his rifles, for example for inadequate pre- or post-deprivation remedies or
unreasonable seizure under the Fourth Amendment, Plaintiff does not assert these claims against
Defendants because there is no allegation that either Miano or Mergendahl took Plaintiff’s guns,
is holding Plaintiff’s guns, or is responsible for the amount of process Plaintiff received. See,
e.g., Kneitel v. Danchuk, No. 04-CV-0971, 2007 WL 2020183, at *7 (E.D.N.Y. July 6, 2007)
(noting that “personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983” (internal quotation marks omitted) (quoting
30
Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986)). Therefore, any claim asserted by Plaintiff
against Miano based on the removal of his firearms is dismissed.
III. Conclusion
For the foregoing reasons, Defendants ' Motion To Dismiss Plaintiff's claims for false
arrest against Miano and Mergendahl and for Miano ' s involvement in the seizure of Plaintiff's
rifles is granted with prejudice. 10 The Clerk of the Court is respectfully directed to terminate the
pending Motion. (See Dkt. No. I 00.)
SO ORDERED.
DATED:
November Jq, 2015
White Plains, New York
10
Because this is Plaintiff's Fourth Amended Complaint, dismissal with prejudice is
appropriate. See, e. g., Gomes v. Avco Corp. , 964 F.2d 1330, 1336 (2d Cir. 1992) ("The district
court was well within its discretion in denying leave to amend a fourth time."); Harris v.
Westchester Cty. Med. Ctr., No . 08-CV-1128, 2011 WL 2637429, at *4 (S.D.N .Y. July 6, 2011)
("As [the plaintiff] has already amended his complaint three times after being informed of the
deficiencies in his original complaint ... , dismissal with prejudice is appropriate at thi s stage of
the litigation."); Treppe! v. Biovail Corp., No. 03-CV-3002, 2005 WL 2086339, at* 12 (S.D.N.Y.
Aug . 30, 2005) (granting motion to dismiss with prejudice where the "plaintiff has already had
two bites at the apple and they have proven fruitless"); Rozsa v. May Davis Grp., Inc., 187 F.
Supp. 2d 123, 132 (S.D .N.Y. 2002) a.ff'd sub nom. Rozsa v. SG Cowen Sec. Corp., 165 F. App 'x
892 (2d Cir. 2006) (dismissing the plaintiff's amended complaint with prejudice because it was
the plaintiff's "second effort to state a claim against [the defendant] ").
31
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