Hudson v. Town of Pine Plains-Justice Christie Acker et al
Filing
89
OPINION AND ORDER: Dutchess County's Motion to Dismiss is granted without prejudice. Additionally, Troopers Miano and Mergendahl's Motion to Dismiss is granted in part and denied in part without prejudice. Any rifle-related claims that Plaintiff is attempting to assert against Trooper Mergendahl are dismissed with prejudice, but any such claims that Plaintiff is attempting to assert against Trooper Miano are not dismissed at this time. Plaintiff may file a Fourth Amended Complai nt within 30 days of the issuance of this Opinion, which Complaint may address the deficiencies that the Court has identified. Alternatively, Plaintiff may notify the Court and Defendants that he wishes to proceed with the Third Amended Complaint. Defendants will then be given 20 days either to answer the operative complaint or to file a premotion letter. As noted above, should Troopers Miano and Mergendahl seek to dismiss any false-arrest claims that Plaintiff may assert against them in his Fourth Amended Complaint, they will not be required to submit a premotion letter in advance of filing a motion to dismiss such claims. However, should Troopers Miano and Mergendahl seek to dismiss any other claims that Plaintiff may assert agai nst them in his Fourth Amended Complaint-for example, the rifle-related claim that Plaintiff is attempting to assert against Trooper Miano in his Third Amended Complaint-they will be required to submit a premotion letter before doing so. The Clerk of Court is respectfully requested to terminate the pending motions. (See Dkt. Nos. 70, 77.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/29/2014) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT HUDSON,
Plaintiff,
-v-
Case No. 12-CV-5548 (KMK)
OPINION AND ORDER
COUNTY OF DUTCHESS, NEW YORK STATE
POLICE OFFICER MIANO, and NEW YORK
STATE POLICE OFFICER J. MARGENDAHL,
Defendants.
Appearances:
Robert Hudson
Stanfordville, N.Y.
Pro Se Plaintiff
David Lewis Posner, Esq.
McCabe & Mack L.L.P.
Poughkeepsie, N.Y.
Counsel for Defendant County of Duchess
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:
This case is rooted in a decades-old property dispute between Plaintiff Robert Hudson
(“Hudson”) and his neighbors, the Varneys, which dispute has already been the subject of
multiple state- and federal-court proceedings. At various points throughout the course of the
proceedings before this Court, Plaintiff has named a total of 13 different individuals and entities
as Defendants. However, the Court issued an Order dismissing ten of those Defendants, leaving
only Defendants County of Dutchess (“Dutchess County”), New York State Trooper Miano
(“Trooper Miano”), and New York State Trooper Mergendahl (“Trooper Mergendahl”).1
Dutchess County and Troopers Miano and Mergendahl now move to dismiss certain claims
asserted against them. For the following reasons, Dutchess County’s Motion to Dismiss is
granted, while Troopers Miano and Mergendahl’s Motion to Dismiss is granted in part and
denied in part.
I. BACKGROUND
A. Factual Background
The following facts are taken from Plaintiff’s Third Amended Complaint, which is
lengthy, not a model of clarity, and includes allegations about events dating back to 1979.
Indeed, many of the allegations appear to be completely unrelated to the causes of action that
Plaintiff seeks to assert against the remaining Defendants. (See, e.g., Third Am. Compl. 5 (“I
drove a truck with an eight foot by eight foot sign accusing [a Putnam County judge and
attorney] of extortion, against me.”); id. (“In 1984 and again in 1986 I ran for the office of the
United States Congressman for the twenty first Congressional District N.Y.”).)2 The Court will
therefore describe only those facts that are pertinent to Defendants’ Motions.
Plaintiff resides in the Town of Pine Plains, in Dutchess County, New York, on “twenty
two and a half . . . acres,” which Plaintiff describes as his “place of domicile” and his “home.”
(Id. at 6.) Plaintiff “maintain[s] [seven] goats on this property to help [him] bring [his] estate
1
Defendant Mergendahl’s surname is incorrectly spelled as “Margendahl” on the docket.
The Clerk of Court is respectfully requested to edit the docket accordingly.
2
Plaintiff also states that, in furtherance of his campaign, he “went door to door and
shook hands and spoke to citizens regarding [his] political position that [he] was against sodomy
by homosexuals and Jews passing judgment on the Christian citizens of the United States.”
(Third Am. Compl. 5.)
2
into farming (grazing) condition.” (Id.) On June 24, 2010, Trooper Miano signed an
information accusing Plaintiff of criminal trespass in the third degree, in violation of New York
Penal Law § 140.10.3 (See Pl.’s Exs., at 2.)4 Specifically, the criminal trespass information that
Trooper Miano signed stated that, on June 24, 2010, Plaintiff “did drive his [vehicle] on the
property of Sebastian Varney [“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.” (Pl.’s Exs., at 2.)
On the same day, Trooper Miano also signed an information accusing Plaintiff of
criminal harassment in the second degree, in violation of New York Penal Law § 240.26, in
connection with the same events.5 (See id. at 3.) Specifically, the criminal harassment
information that Trooper 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.) The factual basis for both of the informations that Trooper Miano
3
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 (McKinney 2014).
4
Plaintiff did not number the exhibits that he attached to his Third Amended Complaint.
Instead, Plaintiff included an index that provides the pages at which each document appears.
The Court will follow this convention, and refer to Plaintiff’s exhibits as a single consecutively
paginated document.
5
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 (McKinney 2014).
3
signed appears to have been the allegations contained in a deposition to which Varney swore at
the Town of Pine Plains Criminal Court earlier that day. (See id. at 1.) Many details from
Varney’s deposition appear in the charging instruments sworn to by Trooper Miano. (See id. at
2–3.) In his deposition, Varney also requested an order of protection. (See id. at 1.)
Also on June 24, 2010, as a result of the foregoing events, Town of Pine Plains Justice
Christie 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 without justification Varney’s dog; and, most importantly for the
purposes of Plaintiff’s Third Amended Complaint, 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. (Pl.’s Exs., at 4.) Justice Acker specified
that the order was to remain in effect until December 24, 2010. (See id.)6
Plaintiff was arrested on his property by Trooper Mergendahl and a second State Trooper
on the same day that Justice Acker issued the order. (See id. at 19.) The next day, June 25,
2010, “the New York State Police took Plaintiff’s rifles,” even though the order “required
Plaintiff to turn his rifles . . . over to the Dutchess County Sheriff.” (Third Am. Compl. 7.)
Plaintiff attached a June 25, 2010 receipt from the New York State Police for one Springfield
and one Remington rifle as an exhibit to his Third Amended Complaint. (See Pl.’s Exs., at 5.)
The receipt was signed by a New York State Trooper with the surname “Doncitek.” (Id.)
6
Plaintiff also alleges that on December 15, 2010, Justice Acker extended the protective
order, although Plaintiff does not specify to what date it was extended. (See Pl.’s Third Am.
Compl. 7.)
4
By October 18, 2010, criminal proceedings had commenced against Plaintiff in
connection with the two charging instruments that Trooper Miano signed. (See Pl.’s Exs., at 7.)
On that date, Justice Acker granted the prosecutor’s request for an adjournment, as well as his
“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.” (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, in
which he stated that 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.” (Id. at
9.) 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, Trooper Mergendahl signed an information accusing Plaintiff of
criminal trespass, in violation of New York Penal Law § 140.05.7 (See id. at 10.) Specifically,
the criminal trespass information that Trooper 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, Trooper Mergendahl also signed an information accusing
Plaintiff of criminal contempt in the second degree, in violation of New York Penal
7
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 (McKinney 2014).
5
Law § 215.50.8 (See id. at 11.) 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].”
(Pl.’s Exs., at 11.)
Plaintiff alleges that, on either January 27 or January 29, 2011, and again on February 3,
2011, two New York State Troopers, including Trooper Mergendahl, entered his property while
he was not there. (See Pl.’s Third Am. Compl. 9; Pl.’s Exs., at 15–29.)9 In response to an order
that the Court issued pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), on February
28, 2013, (see Dkt. No. 57), the Office of the Attorney General of the State of New York
informed the Court on April 8, 2013 that, although it had “not been able to locate any records
that identif[ied] the second officer,” “Trooper Miano believe[d] that he may have been the
second officer accompanying Trooper Mergendahl,” (Dkt. No. 59).
Plaintiff claims that “[w]hen . . . Trooper [Mergendahl] came to [his] home, [his] home
was broken into and 300 pounds of [his] sheep and goat feed were dumped onto the top of the
8
Section 215.50 provides in relevant part that “[a] person is guilty of criminal contempt
in the second degree when he . . . [i]ntentionally 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 commissioners of
jurors and prescribing their duties or who refuses to be sworn as provided therein.” N.Y. Penal
Law § 215.50 (McKinney 2014).
9
In Plaintiff’s Third Amended Complaint, he alleges that Trooper Mergendahl stated
under oath that “he had come to Plaintiff’s property on the Saturday after January 28, 2011 . . . .”
(Pl.’s Third Am. Compl. 9.) However, in at least one Freedom of Information Law request that
Plaintiff submitted to the New York State Police, he asked for information “pertaining to
February 3, 2011 entry and the January 27, 2011 entry by the New York State Police upon the
Property of Robert Hudson.” (Pl.’s Exs., at 15.)
6
snow.” (Third Am. Compl. 9; see also id. at 16 (“After N.Y.S. State Police Officer Mergendahl
came to [P]laintiff[’]s property [his] home was broken into.”).) Plaintiff alleges that he “carried
sheep and goat feed, to keep the 12 goats that [he] had . . . alive.” (Id. at 16.) Plaintiff also
claims that “[a]fter [his] home was broken into [he] moved his important papers to his car,”
fearing that if he did not, “the papers in [his] home would be taken.” (Id.) Additionally,
Plaintiff alleges that “[t]he regulator on [his] car window was broken and [t]he N.Y.S. Secretary
of State decision against the N.Y.S. Police and other papers were taken from [his] car.” (Id.
at 16–17.)
On February 14, 2011, Plaintiff submitted the first of several requests to the New York
State Police under New York State’s Freedom of Information Law, N.Y. Pub. Off. Law § 84 et
seq. (“FOIL”), for information pertaining to these alleged entries. (Pl.’s Exs., at 15.)
Specifically, he requested “any information concerning any inquiry of [Plaintiff] conducted by
the New York State Police and any warrants or reasons, that may have been used to gain entry
into [his] home or any other inquir[i]es that have ever been undertaken concerning [Plaintiff].”
(Id.) On February 17, 2011, Captain Michael A. Jankowiak (“Captain Jankowiak”) responded to
Plaintiff’s letter, writing that he had “forwarded [Plaintiff’s] letter to Captain Scott Brown”
(“Captain Brown”), and that Captain Brown would “ensure [that] a supervisory member of his
command review[ed] [the] matter and advise[d] [Plaintiff] of the final determination.”
(Id. at 17.)
Approximately two weeks later, on March 2, 2011, Plaintiff was arrested by Trooper
Mergendahl and his partner, (id. at 19), and released on bail the following day, (id. at 12), in
connection with the trespass and criminal contempt informations that Trooper Mergendahl
signed. On the same day that Plaintiff was released, Captain Laurie M. Wagner (“Captain
7
Wagner”), Records Access Officer at the Central Records Bureau for the New York State Police,
sent Plaintiff a letter in which she wrote that “the record located responsive to [Plantiff’s] [FOIL]
request concern[ed] a case that [was] pending adjudication,” and that Plaintiff’s request was
“therefore . . . denied.” (Id. at 18.) Captain Wagner also informed Plaintiff that the record that
he had requested “was compiled for law enforcement purposes,” and that its disclosure “would
interfere with judicial proceedings.” (Id.)
Plaintiff appealed this decision in a March 15, 2011 letter addressed to “[t]he New York
State Police . . . Records Appeal Officer,” in which Plaintiff asked the officer to “[p]lease allow
[him] access to the documents compiled against [him] and [his] home and [his] land by the New
York State Police.” (Id. at 19–20.) On March 21, 2011, Lieutenant Colonel Terence P. O’Mara
(“Lt. Colonel O’Mara”), Assistant Deputy Superintendent for Administration for the New York
State Police, wrote to Plaintiff that he had “reviewed [Plaintiff’s] appeal and determined that the
record located responsive to [Plaintiff’s] request concern[ed] a case that [was] pending
adjudication”; that “[d]isclosure of this record, which was compiled for law enforcement
purposes, would interfere with judicial proceedings”; and that Plaintiff’s appeal was therefore
denied. (Id. at 22.) Plaintiff appealed this denial as well, in an April 6, 2011 letter addressed to
the “N.Y.S. Secretary of State—N.Y.S. Freedom of Information Law (FOIL) Officer Director.”
(Id. at 23.)
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 id. at 8.)
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 14.)
Then, on July 19, 2011, a jury acquitted Plaintiff of the charges stemming from the trespass and
8
contempt charges that Trooper Mergendahl initiated in January 2011. (See id. at 13; Pl.’s Third
Am. Compl. 9 (“In the second trial, the jury found [the] Plaintiff innocent of the N.Y.S. Trooper
[Mergendahl] second set of charges of Trespass and Violation of the Judge[’]s Order of
Protection.”).)
After Plaintiff’s acquittal, he persisted with his FOIL request. At some point before
November 11, 2011, Plaintiff renewed his request for records “pertaining to the entry of the New
York State Police into [his] home or entry upon [his] real property . . . in early February 2011,”
in a letter addressed to the New York State Police “Records Access Officer,” in which he
described his prior efforts to obtain the information that he was seeking. (See Pl.’s Exs., at 24.)
In this letter, Plaintiff stated that the Records Access Office had previously denied his request
because it “concern[ed] a case that [was] pending adjudication,” but that by the time he sent his
November 11, 2011 letter, “all judicial proceedings against [Plaintiff] [had] been dismissed and
[Plaintiff] [had] been found innocent of all criminal charges.” (Id.) On November 21, 2011,
Captain Wagner answered, in a letter in which she informed Plaintiff that his request was under
review, and that a written response would be sent to him approximately 20 days from the date of
her letter. (Id. at 25.) On December 19, 2011, Plaintiff sent another letter to the New York State
Police, addressed to its “Appeals Officer,” in which he wrote that, despite Captain Wagner’s
assurances in her November 21, 2011 letter, he had still “not received a response from the
records access officer.” (Id. at 26.)
On February 14, 2012, Plaintiff wrote yet another letter to the New York State Police,
this time requesting the return of his rifles. (Id. at 27.) Plaintiff emphasized that “[a]ll criminal
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.
9
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 that because the plaintiff in that
case had “not [been] offered [that] type of hearing, Nassau County [had] violated [the plaintiff’s]
Fourteenth Amendment due process rights.” Id. 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.
Id. 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[ed] [the] matter and advise[d] [Plaintiff] of the final determination.” (Pl.’s
Exs., at 29.) Plaintiff alleges that, as of March 22, 2013, the date on which he filed his Third
Amended Complaint, there has never been a post-deprivation hearing regarding the confiscation
of his rifles, and that his “rifles have never been returned.” (Pl.’s Third Am. Compl. 7.)
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, Trooper Miano, Trooper 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.) Plaintiff’s case
was reassigned to the Court on August 16, 2012. (See Dkt. No. 7.) On August 31, 2012,
Plaintiff filed an Amended Complaint. (See Dkt. No. 14.)
10
On September 12, 2012, the Court issued an Order directing Plaintiff to amend his
Complaint. (See 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.) 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.) The Court also
stated 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.)
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
11
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. (Id.)
As to the claims that the Court construed Plaintiff’s Complaint to be asserting against
Troopers 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.) However, the Court also stated that, “to the extent Plaintiff [was] asserting a false arrest
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. (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 id.)
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 Geller and Klein
P.C.—as additional Defendants. (See Dkt. No. 23.) On November 1, 2012, the Court issued an
12
Order in which it considered whether Plaintiff’s 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.)
The Court also dismissed the claims that Plaintiff was attempting to assert against the three lawfirm Defendants, as Plaintiff had “not made any allegations whatsoever against [them], much
less described how their conduct [was] attributable to the government.” (See id.)
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
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.) The Court also found that
Plaintiff’s claims regarding Troopers Miano 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 false-arrest claim or any other 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
13
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 [Trooper] Miano and [Trooper] 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 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.)
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, the version of
his Complaint to which the instant Motions relate, in which the only Defendants that he names
are Dutchess County and Troopers Miano and Mergendahl. (See Dkt. No. 58.) On August 9,
2013, Dutchess County filed a Motion to Dismiss any claims asserted against it therein. (See
Dkt. No. 70.) One week later, on August 16, 2013, Troopers Miano and Mergendahl filed a
Motion to Dismiss some, but not all, of the claims asserted against them. (See Dkt. No. 77.)
II. DISCUSSION
A. Standard of Review
Defendants move to dismiss certain claims asserted against them in Plaintiff’s Third
Amended Complaint 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
14
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.” 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.’” (citation omitted) (second alteration in original) (quoting
Fed.R.Civ.P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hyper-technical, 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) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the
sufficiency of a complaint we accept as true all factual allegations . . . .” (internal quotation
marks omitted)); Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013)
15
(“In reviewing a dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the
complaint as true . . . .” (internal quotation marks and alterations omitted)). 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. Christie’s Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n
ruling on a 12(b)(6) motion, . . . a court may consider the complaint[,] . . . any written instrument
attached to the complaint as an exhibit[,] or any statements or documents incorporated in it by
reference,” as well as “matters of which judicial notice may be taken, and documents either in
plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.”
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) (citation, internal quotation marks, and some alterations omitted); see also Leonard F.
v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (“In 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.” (internal quotation marks omitted)); 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); see also Farzan v. Wells
Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at *12 (S.D.N.Y. Dec. 2, 2013) (same).
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, 980 F. Supp.
2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga
16
Cnty., 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.” (emphasis and internal
quotation marks removed)).
B. Analysis
1. Dutchess County’s Motion to Dismiss
Dutchess County argues that any claims Plaintiff is attempting to assert against it should
be dismissed, as Plaintiff’s Third Amended Complaint “alleges almost nothing against Dutchess
County and what it does allege does not set forth a viable Monell claim.” (Dutchess County
Mem. 2.) Specifically, Dutchess County claims that the only allegations in Plaintiff’s Third
Amended Complaint that can possibly be construed as relating to Dutchess County are those that
Plaintiff makes in regard to (1) allegedly improper conduct by the assistant district attorney who
prosecuted Plaintiff in his trespass and harassment bench trial, (see Third Am. Compl. 8 (“The
Dutchess County [assistant district attorney] suborn[ed] the witness Varney, telling the witness
Varney to lie under oath, to change the . . . testimony [that] [Varney] had just given.”); (2) the
Dutchess County clerk’s alleged refusal to accept a petition for registration of title that Plaintiff
submitted in 1981, (see id. at 9 (“[T]he Clerk of Dutchess County wrote [that] he [would] not
[accept] the petition without a title search . . . .”); and (3) Plaintiff’s inability to obtain various
Dutchess County tax maps he sought through FOIL requests and other means, (see, e.g., id. at
10–11 (“Plaintiff made a (FOIL) request for the common law road relating to Plaintiff’s property
to the Dutchess County Attorney, records Appeal Officer who responded in a letter dated
February 16, 2007 stating, ‘such easements are not shown on tax maps unless they serve multiple
parcels’”); id. at 11 (“All Plaintiff’s Dutchess County 6770 and 6670 tax maps before 1979 are
destroyed or altered or denied access to from the Dutchess County Treasurer, Clerk and
17
[Director] of Real Property Services.”). (See Dutchess County Mem. 5–6.)
“Under the standards of Monell v. Department of Social Services, 436 U.S. 658 . . .
(1978), a municipality can be held liable under Section 1983 if the deprivation of the plaintiff’s
rights under federal law is caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012); see also Hunter v.
City of New York, — F. Supp. 2d —, 2014 WL 3894339, at *9 (E.D.N.Y. Aug. 11, 2014) (“In
order to sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff
must show the existence of an official policy or custom that caused injury and a direct causal
connection between that policy or custom and the deprivation of a constitutional right.” (citing
Monell, 436 U.S. at 694–95)). But “[a]bsent such a custom, policy, or usage, a municipality
cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones, 691
F.3d at 80; see also Dillon v. Blake, No. 14-CV-2416, 2014 WL 1894316, at *2 (E.D.N.Y. May
12, 2014) (“Absent a showing of a custom, policy, or usage, a municipality cannot be held liable
for the tort of its employee on the basis of respondeat superior.”).
“The Supreme Court has held that ‘[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.’” Giscombe v. N.Y.C. Dep’t of Educ., No. 12-CV-464,
2014 WL 3974582, at *8 (S.D.N.Y. Aug. 12, 2014) (alterations in original) (quoting City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985)). In other words, although a “single
incident involving [an] employee below the policymaking level generally will not suffice to
support [an] inference of a municipal custom or policy,” Vann v. City of New York, 72 F.3d
1040, 1050 (2d Cir. 1995) (describing the Supreme Court’s holding in Tuttle), “[s]o long as the
18
single challenged act was the decision of a municipal policymaker, the municipality [can] be
held liable,” Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992) (describing the
Supreme Court’s holding in Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986)). See also
Reynolds v. Giuliani, 506 F.3d 183, 207 (2d Cir. 2007) (noting that, to make out a claim against
a local governmental unit under 42 U.S.C. § 1983, a plaintiff generally must prove that an
alleged violation “occurred as a result of a governmental policy rather than as a result of isolated
misconduct by a single actor” (internal quotation marks and alterations omitted)); Pignone v.
Vill. of Pelham Manor, No. 10-CV-2589, 2014 WL 929805, at *3 (S.D.N.Y. Mar. 6, 2014)
(“Even one act by a municipal policymaker may constitute a municipal policy, so long as that
policymaker possessed final authority to establish municipal policy in the area at issue.” (internal
quotation marks omitted)); Canzoneri v. Inc. Vill. of Rockville Ctr., 986 F. Supp. 2d 194, 204
(E.D.N.Y. 2013) (“It is well settled that municipal liability may be established based on the
single acts of a municipal official with final policymaking authority.” (internal quotation marks
omitted)). “The matter of whether a given official is a municipal policymaker is a question of
law,” Bliven v. Hunt, 579 F.3d 204, 214 (2d Cir. 2009), “which is to be answered on the basis of
state law,” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000).
As to the first two categories of allegations that Plaintiff makes against Dutchess County,
regarding the assistant district attorney’s alleged misconduct and the clerk’s alleged refusal to
accept a petition for registration of title, Plaintiff’s allegations are confined to single acts of
alleged misconduct. The question thus becomes whether either the assistant district attorney or
the clerk can be considered a municipal policymaker under Monell for the purposes of
this Action.
19
It appears as though the assistant district attorney cannot. “The case law in [the Second]
Circuit has often determined that ADAs are not policymakers for purposes of municipal
liability.” Conte v. Cnty. of Nassau, No. 06-CV-4746, 2010 WL 3924677, at *29 (E.D.N.Y.
Sept. 30, 2010) (collecting cases); see also Weir v. City of New York, No. 05-CV-9268, 2008 WL
3363129, at *7 (S.D.N.Y. Aug. 11, 2008) (finding that two assistant district attorneys were not
“policymakers” for the purposes of Monell); Feerick v. Sudolnick, 816 F. Supp. 879, 886
(S.D.N.Y. 1993) (dismissing claims against two assistant district attorneys because they were not
“municipal policymakers,” but merely “subordinates”), aff’d, 2 F.3d 403 (2d Cir. 1993). In fact,
“some courts within [the Second] Circuit have determined” that ADAs are not policymakers “as
a matter of law,” “by virtue of their position and title.” Conte, 2010 WL 3924677, at *30.
However, other courts have “suggest[ed] that the question of whether an ADA may be
considered a policymaker for the purposes of a municipal liability claim depends on whether
[the] ADA has supervisory authority.” Id. at *29. But those other courts have also emphasized
that “[a]ctivities such as negotiating plea agreements, scheduling hearings, and filing
affirmations in support of writs are typically actions of assistant district attorneys undertaken in
the prosecution of a criminal case,” and therefore, “[s]uch actions cannot be said to represent the
actions of a policymaker responsible for a delineated policy that caused a constitutional
deprivation,” as “[t]o hold otherwise would treat too closely to holding the municipality liable on
a theory of respondeat superior.” Peterson v. Tomaselli, 469 F. Supp. 2d 146, 169–70 (S.D.N.Y.
2007); see also Velasquez v. City of New York, No. 08-CV-8478, 2012 WL 232432, at *6
(S.D.N.Y. Jan. 25, 2012) (holding that an ADA’s decision “to apply for a search warrant falls
into this category”); DeJean v. Cnty. of Nassau, No. 06-CV-6317, 2008 WL 111187, at *4
20
(E.D.N.Y. Jan. 8, 2008) (holding that an ADA’s decision to “declin[e] to prosecute [the]
plaintiff’s misdemeanor complaints” was not “undertaken in any supervisory capacity”).
Here, the only allegedly wrongful conduct in which Plaintiff claims the assistant district
attorney engaged occurred in the context of the assistant district attorney’s prosecution of
Plaintiff. (See Third Am. Compl. 8 (“The Dutchess County [assistant district attorney]
suborn[ed] the witness Varney, telling the witness Varney to lie under oath, to change the . . .
testimony [that] [Varney] had just given.”).) Put simply, the complained-of conduct was
“action[] . . . undertaken in the prosecution of a criminal case,” which “cannot be said to
represent the actions of a policymaker responsible for a delineated policy that caused a
constitutional deprivation.” Peterson, 469 F. Supp. 2d at 169–70. What is more, “Plaintiff has
not [even] alleged that [the assistant district attorney] had any policymaking role in the district
attorney’s office.” DeJean, 2008 WL 111187, at *4. Accordingly, Plaintiff’s claim against
Dutchess County related to the assistant district attorney’s alleged conduct is dismissed.
Whether the clerk can be considered a municipal policymaker under Monell is a more
difficult question, mostly because Plaintiff has not provided the Court with any information
regarding the clerk’s job responsibilities, or the capacity in which the clerk allegedly refused to
accept his petition for registration of title. But the Court need not reach that question, because
Plaintiff’s claim is clearly time barred.
“Section 1983 does not provide a specific statute of limitations. Thus, courts apply the
statute of limitations for personal injury actions under state law. Section 1983 actions filed in
New York are therefore subject to a three-year statute of limitations.” Hogan v. Fischer, 738
F.3d 509, 517 (2d Cir. 2013) (citations omitted); see also Ruiz v. Suffolk Cnty. Sheriff’s Dep’t,
No. 03-CV-3545, 2008 WL 4516222, at *2 (E.D.N.Y. Oct. 2, 2008) (applying the same three21
year statute of limitations to a Section 1983 claim predicated on a Monell theory of liability);
Conteh v. City of New York, No. 00-CV-5787, 2001 WL 736783, at *2 (S.D.N.Y. June 28, 2001)
(same). “Although state law provides the statute of limitations period, federal law determines
when § 1983 claims accrue. Under federal law, a § 1983 claim accrues when the plaintiff knows
or has reason to know of the injury which is the basis of his action.” Houston v. Cotter, No. 07CV-3256, 2014 WL 1246067, at *5 (E.D.N.Y. Mar. 27, 2014) (citation and internal quotation
marks omitted) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80, 85 (2d Cir. 2002)); see
also Hogan, 738 F.3d at 518 (same).
Plaintiff asserts that he submitted his petition for registration of title in 1981, and that the
clerk informed him on August 31, 1983 that the petition would not be accepted without a title
search, (see Third Am. Compl. 9; Pl.’s Exs., at 30), which means that Plaintiff must have filed
his claim before August 31, 1986. However, Plaintiff did not file his Complaint until July 18,
2012. (See Dkt. No. 1.) As such, Plaintiff’s claim is untimely—by approximately 26
years—and is therefore dismissed.
The third category of allegations that Plaintiff makes against Dutchess County, regarding
Plaintiff’s inability to obtain various Dutchess County tax maps he sought through FOIL
requests and other means, must also be dismissed, but for different reasons. In contrast with the
first two categories, in which Plaintiff’s allegations relate to single acts of alleged misconduct,
Plaintiff’s tax-map-related allegations appear to concern Dutchess County’s allegedly deficient
policies, customs, or practices in connection with the maintenance and accessibility of such
maps. In addition to referencing Dutchess County’s rejection of a FOIL request that he made
based on an alleged Dutchess County policy of not identifying common-law easements on tax
maps unless such easements serve multiple parcels, (see Third Am. Compl. 10–11), and claiming
22
that “[a]ll Plaintiff’s Dutchess County 6770 and 6670 tax maps before 1979 are destroyed or
altered or denied access to from the Dutchess County Treasurer, Clerk and [Director] of Real
Property Services,” (see id. at 11), Plaintiff also quotes from what he describes as an opinion of
the New York State Board of Real Property Services:
The [c]ounty in question retains microfilm copies of its tax maps, but, because the
map is subject to on going [sic] revision, it has been the policy of the particular
county to discourage or even deny access to archival tax maps. The issue here is
whether this policy is a correct one, and whether the freedom of information law
request should be granted. We disagree with the policy and believe that access
should be allowed.
Tax maps are to be prepared and maintained in current condition. . . . [S]ince a tax
roll is a public record which must be permanently retained, it necessarily follows that
the tax maps applicable to the tax roll must be permanently retained. . . . The
Freedom of Information Law provides that all government records are public unless
they fit within one or more statutory exemptions. In our opinion, an archival tax map
does not fit any of the exemptions, even though a more current map may exist. It
must be made available for public inspection and copying.
(Id. at 14–15 (citations omitted).)10
However, even if Plaintiff’s claims against Dutchess County in this context are based on
allegedly wrongful policies, customs, or practices, as opposed to discrete acts, such claims are
nevertheless deficient, because there is no violation of a federal constitutional or statutory right
from a municipality’s inadequate response to a FOIL request. See Rankel v. Town of Somers,
No. 11-CV-6617, 2014 WL 715702, at *3 n.14 (S.D.N.Y. Feb. 25, 2014) (“[M]any of Plaintiff’s
allegations—e.g., that the Town refused to fulfill FOIL requests . . . —involve state law, not
federal constitutional, violations.”); Jenn-Ching Luo v. Baldwin Union Free Sch. Dist., No. 12-
10
The Court reproduces this portion of Plaintiff’s Third Amended Complaint not to
suggest that the obligations described therein are applicable to Dutchess County, but only as
evidence that Plaintiff is attempting to allege deficiencies in Dutchess County’s tax-map-keeping
policies customs, or practices, not merely Dutchess County’s misconduct in responding to
Plaintiff’s tax-map-related requests on discrete occasions.
23
CV-6054, 2013 WL 4719090, at *4 n.6 (E.D.N.Y. Sept. 3, 2013) (“To the extent that Plaintiff is
attempting to assert a constitutional due process violation arising out of Defendants’ failure to
comply with the procedural requirements of FOIL, his claim also fails. . . . Plaintiff does not
have a protected property interest in the requested FOIL documents.” (citation omitted)); Collins
v. City of New York, 923 F. Supp. 2d 462, 473 (E.D.N.Y. 2013) (“A violation of New York’s
FOIL does not, standing alone, support a § 1983 claim.”); Hayes v. Perotta, 751 F. Supp. 2d 597,
602 (S.D.N.Y. 2010) (“The Complaint does allege that [the defendant local governmental unit]
wrongly refused to provide Plaintiff with information that he requested. . . . [But] [t]his
allegation does not state a § 1983 claim, as it is not rooted in a claimed constitutional or federal
statutory right.”). Instead, an allegedly wrongful denial of a FOIL request is a matter of state
law that is to be addressed in an Article 78 proceeding. See Papay v. Haselhuhn, No. 07-CV3858, 2010 WL 4140430, at *8 (S.D.N.Y. Oct. 21, 2010) (“Plaintiff’s remedy for an alleged
violation of FOIL is to appeal in writing within thirty days to the head, chief executive, or
governing body of the entity. A person denied access to a record in an appeal determination may
then seek review pursuant to the state procedures outlined in Article 78.” (citations omitted));
Hayes, 751 F. Supp. 2d at 602 (noting that the plaintiff’s claim that the defendant local
governmental unit wrongly refused to provide him with information that he requested was
“governed by New York’s Freedom of Information Law”). Thus, to the extent that Plaintiff has
not pursued any Article 78 process to address the alleged denial of his FOIL application—and
Plaintiff has not suggested that he has anywhere in his Third Amended Complaint—his Section
1983 claim against Dutchess County falters.11
11
The Court also notes that, insofar as Plaintiff’s tax-map-related claims are based on
other alleged conduct by Dutchess County, unrelated to any alleged denials of any FOIL requests
24
However, there is another category of allegations in Plaintiff’s Third Amended
Complaint directed towards Dutchess County that it does not address in its Memorandum of
Law. Plaintiff appears to be attempting to assert a claim against Dutchess County for its failure
to hold a hearing in connection with the confiscation of Plaintiff’s rifles. As Plaintiff alleges,
“The Town of Pine Plains Justice and the Dutchess County District Attorney, never held a pre
trial hearing to evaluate if plaintiffs rifles were lawfully taken as required in the case of Gabriel
Razzano v. County of Nassau, et al.” (Third Am. Compl. 18 (emphasis added); see also id. at 2
(“The Complaints of Complainant Varney, did not amount to a criminal offense to be placed
against Plaintiff Hudson upon which Plaintiffs Rifles were taken, without pretrial hearing.”); id.
at 7 (“N.Y.S. Trooper Miano never appeared at court on the trial date and there was never a post
deprivation of Plaintiff’s rifle, hearing before the trials, and Plaintiff’s rifles have never been
returned.”); id. at 18 (“Gabriel Razzano v County of Nassau, et al . . . held that Denial of prompt
due process hearing after removal of rifles (long guns) is depravation of plaintiffs Fourteenth
Amendment rights . . . .”).)
Plaintiff elaborates on these allegations in his Reply to Dutchess County’s Motion to
Dismiss, stating that, “[h]ad a Pre Trial Hearing been scheduled by the County of Dutchess
District Attorney there would have been no reason for the N.Y.S. State Police to have taken
Plaintiffs Rifles.” (Pl.’s Reply to Def. Dutchess County’s Mot. to Dismiss (“Pl.’s Reply Mem.”)
3 (emphasis added).) Plaintiff also states that his “complaint against the County of Dutchess
regarding the taking of Plaintiff’s rifles is similar to the matter of the Complaint of Razzano . . . ,
which was included in every complaint and amended complaint.” (Id. (emphasis added).)
that Plaintiff may have made, Plaintiff has not provided the Court with any reason to believe that
such conduct constitutes a violation of federal constitutional law.
25
Plaintiff claims that “[t]here has never been a sufficient answer to the Plaintiff[’]s complaint of
denial of plaintiffs pre trial hearing upon the taking of Plaintiff[’]s Rifles. Against the
Defendants, in Plaintiff’s Amended Complaint . . . Plaintiff asserts the cause of action for
Violation of his 14th Amendment procedural due process rights . . . .” (Id. at 5.) According to
Plaintiff, “[t]he Defendants should answer why Plaintiff[’]s Rifles were taken without Post
seizure hearing, or charge substantiating a crime; the court must determine first whether the
plaintiff’s alleged erroneous deprivation of property was pursuant to a governmental policy. If it
was the court must apply the Mathews test to determine what pre- and post-deprivation remedies
are due from Dutchess county.” (Id. at 9 (emphasis added).)
However, Dutchess County did not address this claim in its Memorandum of Law, and as
a result, the Court will not do so here. But Plaintiff should note that, in its present form, his
claim may fail to satisfy Monell for the same reason as does his claim in regard to the assistant
district attorney’s alleged misconduct. As noted above, a “single incident involving [an]
employee below the policymaking level generally will not suffice to support [an] inference of a
municipal custom or policy,” Vann, 72 F.3d at 1050. But Plaintiff’s allegations are based on a
single incident of alleged misconduct involving “the Dutchess County District Attorney.” (Third
Am. Compl. 18; Pl.’s Reply Mem. 3.) Although courts within the Second Circuit have held that
a district attorney can be a policymaker for the purposes of Monell in some contexts, see, e.g.,
Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993) (“We have noted that generally, where a district
attorney acts as the manager of the district attorney’s office, the district attorney acts as a county
policymaker.” (alterations and internal quotation marks omitted)), when Plaintiff’s Third
Amended Complaint is read in context, it seems as though, by referring to “the Dutchess County
District Attorney,” he was attempting to refer to the same assistant district attorney whom he
26
claims suborned perjury at his trial, in which case his allegations would likely be deficient, see
generally Conte, 2010 WL 3924677, at *29–30.
The Court has provided Plaintiff with multiple opportunities to cure the Monell problems
with his claims against Dutchess County, which problems the Court has previously identified on
numerous occasions. (See, e.g., Order (Sept. 11, 2012) 5–6 (Dkt. No. 12); Order (Nov. 1, 2012)
5–6 (Dkt. No. 27).) Despite the Court’s warnings, Plaintiff’s Third Amended Complaint still
suffers from many of the same shortcomings as did its earlier iterations. However, given
Plaintiff’s pro se status, and given that Dutchess County did not address Plaintiff’s claims related
to its alleged failure to provide him with a hearing in connection with the confiscation of his
rifles in its Memorandum of Law, the Court will grant Plaintiff one final opportunity to amend
his Complaint to satisfy Monell. But Plaintiff should be aware that, if he fails to state viable
Monell claims against Dutchess County in his Fourth Amended Complaint, any claims that he is
attempting to assert against Dutchess County will be dismissed with prejudice.
2. Trooper Miano and Trooper Mergendahl’s Motion to Dismiss
a. False-Arrest Claims
Troopers Miano and Mergendahl argue that “Plaintiff’s Third Amended Complaint . . .
appears to attempt to assert claims against [them] for false arrest.” (Miano and Mergendahl’s
Mem. 1.) The Court disagrees. Even construing Plaintiff’s Third Amended Complaint liberally,
and interpreting it to raise the strongest arguments that it suggests, see Sykes, 723 F.3d at 403,
Plaintiff cannot be understood to be asserting false-arrest claims therein.
“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, 2014 WL 950041, at
*4; see also Crews v. Cnty. of Nassau, — F. Supp. 2d —, 2014 WL 558696, at *10 (E.D.N.Y.
27
Feb. 11, 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 prevail, a plaintiff must prove
four elements: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not contest the confinement and (4) the confinement was not
otherwise privileged.” Crews, 2014 WL 558696, at *10 (internal quotation marks omitted); see
also Laster v. Mancini, No. 07-CV-8265, 2013 WL 5405468, at *12 (S.D.N.Y. Sept. 25, 2013)
(same); Chillemi v. Town of Southampton, 943 F. Supp. 2d 365, 377 (E.D.N.Y. 2013) (same).
In his Third Amended Complaint, Plaintiff makes only two references to his arrests.
First, Plaintiff alleges that, “[w]hen [he] appeared in the Town of Pine Plains Justice Court [he]
was arrested and placed in jail, solitary confinement; and on the following day released from jail
on Plaintiff’s posting of seven thousand five hundred dollars bail bond.” (Pl.’s Third Am.
Compl. 7 (citation omitted).) Second, in describing Troopers Miano and Mergendahl’s alleged
entries onto his property, Plaintiff alleges that “[t]he State Police came to arrest Plaintiff at his
home.” (Id. at 16.) However, Plaintiff was not in fact arrested contemporaneously with those
alleged entries, as he does not appear to have been present when they occurred. Nowhere in
Plaintiff’s Third Amended Complaint does he allege that his arrests were wrongful in any way.
The closest that he comes to doing so is in the section of his Third Amended Complaint titled
“Relief,” in which he “requests damages for emotional distress and post judgment interest for the
removal of Plaintiffs rifles (Long Guns) . . . , the return of plaintiff’s rifle and shotgun and four
million dollars for the denial of plaintiff’s liberty and rights or whatever relief the court deems
just and proper.” (Id. at 21 (emphasis added).) But the main thrust of Plaintiff’s request for
28
relief is clearly directed towards his rifles, and it is unclear to what, if any, separate and distinct
liberty interests or rights Plaintiff is referring.
There are several statements contained in the exhibits attached to Plaintiff’s Third
Amended Complaint that might be construed as supporting a false-arrest claim. However, these
statements appear in documents that Plaintiff submitted for other purposes, before he filed his
original Complaint in this Action, and it is unclear whether Plaintiff intended those statements to
be incorporated into the allegations that he seeks to make in this procedural setting. For
example, in the March 15, 2011 letter that Plaintiff wrote to “[t]he New York State Police . . .
Records Appeal Officer,” in which Plaintiff “appeal[ed] the [March 3, 2011] decision and order”
of Captain Wagner denying one of his FOIL requests, Plaintiff wrote that, “[u]pon [his] arrest for
trespass on March 2, 2011[, Trooper Mergendahl] took [him] the long way around to interrogate
to the Dutchess County jail.” (Pl.’s Exs., at 19.) Additionally, in Plaintiff’s “Answer to
Allegations by Sebastian Varney,” which he submitted to the Town of Pine Plains Criminal
Court on June 29, 2010, he wrote, “N.Y. State Police interrogated me for 4 hours they wanted to
know where my children live and to know about my rifles,” although it appears that these
statements most likely relate to a separate incident with no connection to the instant matter.
(Id. at 6(d).)12
The lack of false-arrest allegations in Plaintiff’s Third Amended Complaint is
unsurprising, as the Court already dismissed any false-arrest claims that Plaintiff was attempting
12
In his April 19, 2013 response to Troopers Miano and Mergendahl’s April 1, 2013
premotion letter, in which Trooper Miano and Trooper Mergendahl made clear that they would
seek to dismiss any false-arrest claims that Plaintiff was attempting to assert against them in his
Third Amended Complaint, Plaintiff states, “Mergendahl made a false arrest.” (See Dkt. No.
61.) However, as noted above, Plaintiff did not allege anything to this effect in the Third
Amended Complaint itself.
29
to assert against Troopers Miano and Mergendahl in earlier versions of his Complaint in its
November 1, 2012 Order. (See Dkt. No. 27.) Although Troopers Miano and Mergendahl do not
explicitly make this point in their Memorandum of Law, the premotion letter that they submitted
in advance of their Motion to Dismiss acknowledged as much. (See Dkt. No. 63 (“To the extent
that the [Third Amended Complaint] is construed as including a false arrest claim as well, the
claims fails as a matter of law because plaintiff was convicted of the charge on which he was
arrested. The Court already dismissed any false arrest claims in plaintiffs’ prior complaints on
these grounds.” (emphasis added)).)
However, the Court’s previous dismissal of any false-arrest claims that Plaintiff was
attempting to assert against Troopers Miano and Mergendahl was based on an incorrect
application of Second Circuit precedent. As noted above, the Court stated in its September 12,
2011 Order that, “to the extent Plaintiff [was] asserting a false arrest claim, 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,” and cited to Heck, 512 U.S. at 486–87, as well as Kevilly, 410 F. App’x at 374, a
Second Circuit decision interpreting Heck, in support of that proposition. (Dkt. No. 12 (internal
quotation marks omitted).) In its November 1, 2012 Order, the Court subsequently dismissed
any false-arrest claims that Plaintiff was attempting against Troopers Miano and Mergendahl on
these same grounds. (See Dkt. No. 27.)
But in the section of Kevilly to which the Court cited, the Second Circuit was discussing
claims alleging insufficiency of the charging information, prosecutorial misconduct, and a
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conspiracy between the plaintiff’s court-appointed counsel and the district attorney’s office, not
claims alleging false arrest. See Kevilly, 410 F. App’x at 374. In fact, in the very next section of
Kevilly, the Second Circuit specifically stated that “[the plaintiff’s] false arrest and unlawful
imprisonment claims—which are not barred by Heck . . . .” Id. at 375 (emphasis added). In
addition to this passage in Kevilly, the Second Circuit has held that false-arrest claims are not
barred by Heck on numerous other occasions, including as recently as January of this year. See
Poventud v. City of New York, —F.3d—, 2014 WL 182313, at *8 (2d Cir. Jan. 16, 2014) (en
banc) (“Unlike malicious prosecutions, many violations of constitutional rights, even during the
criminal process, may be remedied without impugning the validity of a conviction. For example,
. . . [w]hen a plaintiff is unlawfully arrested without probable cause, his § 1983 claim accrues
before any conviction.”).
What is more, even if Heck were applicable to false-arrest claims as a general matter, it
likely still would not bar any false-arrest claims that Plaintiff seeks to assert here, as “[t]he
Heck bar to § 1983 actions . . . does not apply to former prisoners who are no longer in custody
because only individuals in state or federal custody can petition for writs of habeas corpus to
collaterally challenge their convictions.” Barmapov v. Barry, No. 09-CV-3390, 2011 WL
32371, at *3 (E.D.N.Y. Jan. 5, 2011) (internal quotation marks omitted); see also Huang v.
Johnson, 251 F.3d 65, 75 (2d Cir. 2001) (holding that a plaintiff’s “Section 1983 claim [for false
imprisonment] must be allowed to proceed” where the plaintiff did “not challenge the validity of
[her son’s] conviction” and her son had “long since been released from . . . custody”); Hardy v.
Fischer, 701 F. Supp. 2d 614, 620 n.6 (S.D.N.Y. 2010) (“The Court recognizes that Heck’s
favorable termination requirement does not bar plaintiffs who are not in custody—and thus have
no remedy through habeas relief—from seeking relief pursuant to section 1983.”). Here, it
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appears as though Plaintiff was not in custody at the time that he filed his original Complaint, or
that Plaintiff has been in custody at any point since.
Although it seems unlikely, the Court is concerned that its November 1, 2012 Order, in
which it erroneously relied on Heck to dismiss any false-arrest claims against Troopers Miano
and Mergendahl that Plaintiff may have been attempting to assert, could have discouraged
Plaintiff from alleging, or from fully fleshing out, any such claims that he otherwise would have
sought to assert in his Third Amended Complaint. It is conceivable that, based on the Court’s
prior Orders, Plaintiff could have reached the conclusion that, even though he believed that he
had a good-faith basis to assert such claims, to do so would be pointless. Therefore, out of an
abundance of caution, the Court will provide Plaintiff with one final opportunity to amend his
Complaint to adequately allege any false-arrest claims that he may believe that he has against
Troopers Miano and Mergendahl.
Should Plaintiff attempt to assert false-arrest claims against Troopers Miano and
Mergendahl in his Fourth Amended Complaint, and should Troopers Miano and Mergendahl
thereafter seek to dismiss such claims, Troopers Miano and Mergendahl will not be required to
submit a premotion letter in advance of submitting a motion to dismiss them, as would ordinarily
be required by the Court’s individual rules of practice. Additionally, should Troopers Miano and
Mergendahl seek to dismiss any such claims that Plaintiff attempts to assert in his Fourth
Amended Complaint, Troopers Miano and Mergendahl will be permitted to rely upon the
arguments that they have made in their Memorandum of Law to support such a motion, and will
not be required to submit a second memorandum. However, should Troopers Miano and
Mergendahl believe a second memorandum to be necessary to supplement the arguments that
they have already put forth, they will, of course, be permitted to submit such a memorandum.
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b. Rifle-Related Claims
Troopers Miano and Mergendahl argue that, “to the extent Plaintiff pleads claims
regarding the removal of his rifles” against them, “all such claims fail for lack of personal
involvement.” (Miano and Mergendahl’s Mem. 6.) Specifically, Troopers Miano and
Mergendahl claim that “[P]laintiff alleges that an Order was issued by [Justice Acker] that
required [P]laintiff to turn his rifles over to the Dutchess County Sheriff, and that, pursuant to
this Order, [P]laintiff thereafter turned his rifles over to State Police Officer ‘Doncitek,’” but that
“neither Trooper Mergendahl nor Miano are alleged to have been involved in the taking of
plaintiff’s rifles, so cannot be held liable.” (Id. at 7 (citation omitted).) Troopers Miano and
Mergendahl also argue that “Plaintiff further alleges that his rifles should have been, but were
not, returned to him by the State Police after the Order of Protection was cancelled,” but that
“Troopers Mergendahl and Miano again are not alleged to have had any involvement in the
alleged failure to return [P]laintiff’s rifles”—“[i]ndeed, the exhibits to the complaint demonstrate
their non-involvement,” as “the request for return was . . . sent to and being considered by senior
State Police officials,” including Captain Brown, in a process in which “[n]either Mergendahl
nor Miano were involved.” (Id.) Additionally, Troopers Miano and Mergendahl argue that the
claims against them should be dismissed on the independent grounds that “there can be no
federal claim against the State Police for simply accepting plaintiff’s rifles pursuant to Justice
Acker’s facially-valid Order,” and that, “because a reasonable officer would not have believed
that any actions Mergendahl and Miano are alleged to have personally taken in regard to the
alleged removal of and failure to return plaintiff’s rifles violated plaintiff’s constitutional rights,
they are, at a minimum, entitled to qualified immunity,” (id. at 7–8).
33
Contrary to these arguments, the Court does not interpret Plaintiff’s Third Amended
Complaint to allege that Troopers Miano and Mergendahl are at fault because they are the State
Troopers who took possession of Plaintiff’s rifles, or that they are the State Troopers who
refused and continue to refuse to return them. Rather, Plaintiff’s Third Amended Complaint is
best read as alleging that Trooper Miano is responsible for the seizure of Plaintiff’s rifles
because he wrongfully signed the information accusing Plaintiff of the criminal conduct on
which Justice Acker’s protection order was based. (See, e.g., Third Am. Compl. 7 (“Upon the
criminal complaints of Officer Miano on charges of criminal trespass and criminal harassment
and the deposition of Sebastian Varney, the Town of Pine Plains Justice Court, Justice Christi
Acker issued an Order of Protection, that took Plaintiff’s rifles on June 24, 2010, lasting for six
months.” (citations omitted)); id. at 16 (“Officer Miano made two criminal complaints against
Plaintiff upon which plaintiffs rifles were taken . . . .” (citation omitted)); id. at 18 (“Plaintiff’s
Rifles were taken from plaintiff under the Town Justice order of protection issued upon the
criminal complaint of N.Y.S. Trooper Officer Miano . . . .”).) Plaintiff appears to be alleging
that Trooper Miano’s signing of the informations was wrongful because the charges contained
therein were not supported by Varney’s deposition. (See, e.g., id. at 6–7 (“The ComplaintDeposition of Sebastian Varney never amounted to the crime Plaintiff was prosecuted by
Dutchess County District Attorney for violating.”); id. at 8 (“[T]he Varney deposition did not
amount to a crime.” (citation omitted)). But the reason why Plaintiff appears to be alleging that
the informations were not supported by Varney’s deposition is not that Varney’s deposition was
somehow deficient in terms of the type or amount of information that it provided. Instead,
Plaintiff appears to be alleging that the informations were not supported by Varney’s deposition
because Plaintiff was not in fact trespassing when he entered Varney’s land, as Plaintiff had a
34
right to be there under the doctrine of adverse possession. (See, e.g., id. at 7 (“The Dutchess
County District Attorney wanted to make [P]laintiff a criminal for using the road to Plaintiff’s
property that Plaintiff has used for 33 years in adverse possession.”).)
As the foregoing makes clear, it is difficult to characterize the nature of the rifle-related
constitutional tort Plaintiff is attempting to assert against Trooper Miano. Plaintiff’s theory
appears to be that Trooper Miano’s signing of the informations accusing him of trespass and
harassment was improper because Plaintiff adversely possessed the property on which he was
accused of trespassing, and upon which the harassment of which he was accused took place; that
those informations were the basis for Justice Acker’s protection order directing Plaintiff to
surrender his rifles to the Dutchess County Sheriff’s Office; and that Justice Acker’s protection
order was the basis for the seizure of Plaintiff’s rifles by the New York State Police, which rifles
the New York State Police still have not returned. In other words, Plaintiff seems to be alleging
that Trooper Miano’s wrongful signing of the informations set in motion a chain of events that
eventually resulted in the deprivation of Plaintiff’s rifles, and that Trooper Miano is therefore
responsible for such deprivation.
There may be fatal flaws in Plaintiff’s theory of liability, among them that any wrongful
acts that Trooper Miano allegedly committed could not have been the proximate cause of
whatever injuries Plaintiff has suffered as a result of the State Police’s seizure of and failure to
return Plaintiff’s rifles, due to breaks in the causal chain caused by independent intervening
actors. See Higazy v. Templeton, 505 F.3d 161, 175 (2d Cir. 2007) (finding that a § 1983 action
“to vindicate a constitutional right . . . employs the tort principle of proximate causation”);
Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999) (“A § 1983 action, like its state
tort analogs, employs the principle of proximate causation.”); Martinez v. City of New York, No.
35
12-CV-3806, 2012 WL 4447589, at *4 (E.D.N.Y. Sept. 25, 2012) (finding that an “intervening
actor” broke the causal chain in a § 1983 action for false arrest). There may also be a strong
argument to be made that Trooper Miano is entitled to qualified immunity. However, Troopers
Miano and Mergendahl did not raise these arguments in their Memorandum of Law. They did
not raise the proximate causation argument at all; and while they devoted space to explaining
why they are entitled to qualified immunity for arresting Plaintiff, (see Miano and Mergendahl’s
Mem. 4–5), they did not explain why they are so entitled in relation to a claim that they
wrongfully signed informations charging Plaintiff with crimes.13 Given the lack of clarity in
Plaintiff’s Third Amended Complaint, Troopers Miano and Mergendahl’s misinterpretation of
the rifle-related claim that Plaintiff is attempting to assert against them may be understandable.
But the Court ordinarily does not consider arguments that represented parties do not raise in their
memoranda. See Elektra Entm’t Grp., Inc. v. Barker, 551 F. Supp. 2d 234, 240 n.6 (S.D.N.Y.
2008) (“Because Defendant has not raised this argument in her brief, the Court declines to reach
this question.”) (collecting cases). As such, the Court will not dismiss Plaintiff’s claims on the
basis of proximate causation or qualified immunity at this time.
However, the Court notes that the rifle-related claim that Plaintiff appears to be
asserting—that Trooper Miano’s wrongful signing of the informations set into motion a chain of
13
To the extent that Troopers Mergendahl and Miano’s argument that, “because a
reasonable officer would not have believed that any actions Mergendahl and Miano are alleged
to have personally taken in regard to the alleged removal of and failure to return plaintiff’s rifles
violated plaintiff’s constitutional rights, they are, at a minimum, entitled to qualified immunity,”
(Miano and Mergendahl’s Mem. 8), could be construed as encompassing a claim that Trooper
Miano is entitled to qualified immunity for wrongfully signing informations charging Plaintiff
with crimes, the Court notes that this argument is entirely conclusory. Troopers Mergendahl and
Miano do not explain why no reasonable officer could have held such a belief, nor do they cite a
single case in support of their position. (See id.)
36
events that eventually resulted in the deprivation of Plaintiff’s rifles, and that Trooper Miano is
therefore responsible for such deprivation—applies only to Trooper Miano, and not to Trooper
Mergendahl. As the exhibits that Plaintiff attached to his Third Amended Complaint
demonstrate, Trooper Mergendahl did not sign any informations accusing Plaintiff of any crimes
until January 28, 2011, (see Pl.’s Exs., at 10–11), more than seven months after Justice Acker
issued the protection order on June 24, 2010, (see Pl.’s Exs., at 4), and more than a month after
she extended it on December 15, 2010, (see Pl.’s Third Am. Compl. 7). Accordingly, although
the Court does not now dismiss any rifle-related claims that Plaintiff may be attempting to assert
against Trooper Miano, any such claims that Plaintiff may be attempting to assert against
Trooper Mergendahl are dismissed.
III. CONCLUSION
For the foregoing reasons, Dutchess County’s Motion to Dismiss is granted without
prejudice. Additionally, Troopers Miano and Mergendahl’s Motion to Dismiss is granted in part
and denied in part without prejudice. Any rifle-related claims that Plaintiff is attempting to
assert against Trooper Mergendahl are dismissed with prejudice, but any such claims that
Plaintiff is attempting to assert against Trooper Miano are not dismissed at this time.
Plaintiff may file a Fourth Amended Complaint within 30 days of the issuance of this
Opinion, which Complaint may address the deficiencies that the Court has identified.
Alternatively, Plaintiff may notify the Court and Defendants that he wishes to proceed with the
Third Amended Complaint. Defendants will then be given 20 days either to answer the
operative complaint or to file a premotion letter. As noted above, should Troopers Miano and
Mergendahl seek to dismiss any false-arrest claims that Plaintiff may assert against them in his
Fourth Amended Complaint, they will not be required to submit a premotion letter in advance of
37
filing a motion to dismiss such claims. However, should Troopers Miano and Mergendahl seek
to dismiss any other claims that Plaintiff may assert against them in his Fourth Amended
Complaint-for example, the rifle-related claim that Plaintiff is attempting to assert against
Trooper Miano in his Third Amended Complaint-they will be required to submit a premotion
letter before doing so. The Clerk of Court is respectfully requested to terminate the pending
motions. (See Dkt. Nos. 70, 77.)
SO ORDERED.
Dated:
September 29, 2014
White Plains, New York
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