Missel v. County of Monroe et al
ORDER granting 4 Motion to Dismiss; granting in part and denying in part 9 Motion for Default Judgment. (Clerk to follow up). Copy of Order sent to defendant Hildreth at the address set forth in Document #2. Signed by Hon. Michael A. Telesca on August 17, 2011. (MS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COUNTY OF MONROE, JOHN DOE DEPUTIES
1-5; in Their Official and Individual
Capacities, and MICHAEL HILDRETH
Plaintiff James Missel (“Missel” or “Plaintiff”) brings this
action against defendants Monroe County Deputy Sheriffs “John Doe
Deputies 1-5" and the County of Monroe (collectively the “County
defendants”) claiming that the defendant Deputies engaged in a
campaign of harassment and retaliation against him in violation of
his rights under the United States Constitution, and that the
County maintained a policy or custom pursuant to which the Deputies
violated his rights, or improperly permitted the Deputies to
infringe upon his constitutional rights.
Plaintiff also makes
distress against defendant Michael Hildreth, (“Hildreth”) a former
Monroe County Deputy Sheriff.
According to Missel, the County defendants harassed him in
retaliation for having filed a lawsuit in 2007 against the County
In that lawsuit, Missel alleged that the County
failed to supervise the actions of Hildreth, who is also a neighbor
of the plaintiff.
According to the allegations in the 2007
Complaint, Hildreth believed that Missel was a pedophile, and used
his position as Deputy Sheriff to investigate Missel’s conduct.
Hildreth also used spyware installed on Missel’s home computer to
track Missel’s use of the internet in a failed attempt to discover
illegal conduct. Upon discovery that Hildreth had been unlawfully
monitoring Missel’s computer, the Sheriff’s Department conducted an
investigation of Hildreth, and Hildreth was charged and convicted
of eavesdropping and official misconduct.
As a result of the
convictions, Hildreth was fired from his employment as a Sheriff’s
Plaintiff’s current Complaint contains three causes of action.
defendants deprived him of his First Amendment rights pursuant to
42 U.S.C. § 1983.
The Second and Third causes of action allege
answered or otherwise moved against the Complaint.
The County defendants now move to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“Rule 12(b)(6)”). Plaintiff cross moves for a default judgment
against defendant Hildreth.
For the reasons set forth below, I
grant defendant’s motion to dismiss, and grant in-part and deny inpart plaintiff’s motion for a default judgment.
This action follows an extensive history of acrimony between
plaintiff, and a former Monroe County Sheriff’s Deputy. According
to the allegations set forth in Plaintiff’s complaint, a dispute
arose in 2005 between Hildreth and Plaintiff. Plaintiff, who worked
with children, and who was employed by several agencies that
provided services to children, claims that Hildreth stalked him,
and wrongfully informed his employers that he was a pedophile. As
a result of these false accusations, Plaintiff was asked to not
return to any of the organizations that employed him
Plaintiff further alleges that in 2005, Hildreth initiated a
Sheriff’s Department investigation into his alleged pedophilia
which produced no leads. Following that, Hildreth created a plan to
install a spyware program named “eBlaster” on Plaintiff’s computer
so that Hildreth would be able to monitor all of the actions taken
on Plaintiff’s computer.
Pursuant to this plan, Hildreth adopted
the alias of “Robin Mattox” and posed as woman involved with
Under the alias, Hildreth sent an email to
Missel which contained an attachment.
Once plaintiff opened the
attachment, the spyware was installed on his computer, and Hildreth
was able to monitor all of the plaintiff’s computer activity.
Missel then received another email from “Robin Mattox” informing
him that he was not to contact her or any of her students since she
discovered that Plaintiff was on the “County Educational No Contact
List.” Plaintiff is not and was not on any such list.
On June 16, 2005, Plaintiff met with investigators from the
Department to complain about Hildreth’s harassment. Following an
investigation into Hildreth’s activity, On June 21, 2006, Hildreth
was charged with computer tampering, eavesdropping, and official
eavesdropping and official misconduct in April 2007. After his
Thereafter, in 2007, Plaintiff filed suit in this court
Department, Monroe County Sheriff Patrick O’Flynn, and Hildreth
claiming that the defendants violated his civil rights pursuant to
42 U.S.C. § 1983. On June 4, 2008, this Court dismissed Plaintiff’s
complaint against the County of Monroe. In so doing, this Court
found that there was a lack of any “widespread practice” or
“governmental custom” resulting in the deprivation of Plaintiff’s
constitutional rights. Missel v. County of Monroe, 2008 WL 2357637
(Jun. 4, 2008). Further, this Court determined that Plaintiff’s
allegations did not demonstrate that the County “tacitly approved
and/or ignored Hildreth’s misconduct, or displayed indifference to
his actions . . . .” Id. On November 4, 2009, the dismissal of
Plaintiff’s suit was affirmed on appeal. Missel v. County of
Monroe, 351 F.App’x. 543 (2d Cir. 2009).
Approximately eight months after the dismissal of Plaintiff’s
suit was affirmed, Plaintiff filed the instant action, in which he
alleges that Hildreth continues to harass him with the assistance
of the Monroe County Sheriff’s Department. Specifically, Plaintiff
alleges that the County of Monroe dispatched Deputy Andy Suveges to
Plaintiff’s home with a letter from the Penfield Building Code
Enforcement Authority stating that Hildreth filed a complaint
regarding a smell emanating from Plaintiff’s garden. Plaintiff
further alleges that on June 15, 2008, Monroe County Sheriff’s
officers refused to arrest Hildreth despite Missel’s complaint that
Hildreth was illegally videotaping him in violation of a court
Finally, plaintiff alleges that on December 21, 2009, a
Monroe County Deputy Sheriff’s officer came to Plaintiff’s house,
and suggested that a Christmas card sent by Plaintiff to another
neighbor constituted harassment.
Defendants’ Motion to Dismiss
Legal Standards for Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must “accept...all
factual allegations in the complaint and draw...all reasonable
inferences in the plaintiff’s favor.” See Ruotolo v. City of New
York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks
omitted). In order to withstand dismissal, the complaint must plead
“enough facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974 (2007) (disavowing the oft-quoted statement from Conley
v. Gibson, 355 U.S. 41 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief”).
“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
recitation of the elements of a cause of action will not do.” See
conclusory allegations are not entitled to any assumption of truth,
and therefore, will not support a finding that the plaintiff has
stated a valid claim.
Hayden v. Patterson, 594 F.3d 150, 161 (2nd
Circ., 2010). Thus, “at a bare minimum, the operative standard
requires the ‘plaintiff [to] provide the grounds upon which his
claim rests through factual allegations sufficient to raise a right
to relief above the speculative level.’” See Goldstein v. Pataki,
516 F.3d 50, 56-57 (2d Cir.2008) (quoting Twombly, 127 S.Ct. at
Plaintiff has failed to State a Claim of Retaliation for
Exercise of his First Amendment Rights.
Plaintiff brings a claim of retaliation for exercise of free
speech under the First Amendment pursuant to 42 U.S.C. § 1983
against the County and John Doe Deputies 1-5.
According to the
plaintiff, he was retaliated against by the County and individual
officers for filing the 2007 lawsuit, and the retaliation took the
form of: (1) an officer delivering a notice that a complaint had
been filed; (2) two officers refusing to arrest Hildreth when
videotaping; and (3) an officer suggesting that plaintiff’s sending
of a Christmas card may be considered harassment.
To state a claim under § 1983 for retaliation for exercise of
First Amendment rights, a plaintiff must allege that (1) he has a
protected First Amendment right; (2) the defendant's actions were
motivated by or substantially caused by the plaintiff's exercise of
that right; and (3) the defendant's actions effectively chilled the
plaintiff's exercise of his rights. See Butler v. City of Batavia,
323 Fed.Appx. 21, (2nd Cir., 2009); Connell v. Signoracci, 153 F.3d
74, 79 (2d Cir. 1998).
In the instant case, plaintiff has alleged that he filed a
civil lawsuit against defendant County of Monroe, an action that
constitutes the exercise of his First Amendment rights.
County of Putnam, 30 F.3d 885, 896 (7th Cir., 1994)(“Retaliation for
filing a lawsuit is prohibited by the First Amendment's protection
of free speech . . . .”)
Plaintiff has failed, however to allege facts which raise a
plausible inference that he was retaliated against because he filed
a lawsuit against Monroe County, or that his free speech rights
Initially, there is no factual allegation that the officers
who allegedly retaliated against Missel did so because he filed a
federal lawsuit against the County of Monroe in 2007.
facts set forth in the Complaint allege that “[s]hortly after” he
filed his lawsuit, a Monroe County Sheriff’s Deputy personally
delivered a letter from the Town of Penfield notifying Missel that
a complaint for violations of the Town Code had been filed against
Complaint at. ¶ 46.
Such an allegation fails to allege
retaliation for filing a Federal Complaint. There is no allegation
that the County or any person acting on behalf of the County made
the complaint of a town code violation.
The Complaint merely
alleges that a Sheriff’s deputy delivered a letter.
Just as the
United States Postal Service would not be liable for retaliation if
it delivered a letter, plaintiff’s allegation that a Deputy Sheriff
delivered a letter fails to allege retaliation.
retaliated against because two officers failed to arrest Hildreth
upon Missel’s Complaint that Hildreth had violated an Order of
Again, there is no factual allegation suggesting that
Hildreth was not arrested out of retaliation for the Complaint that
Missel had filed 8 months earlier.
Indeed, the facts alleged in
the Complaint establish that Hildreth was arrested or subjected to
court proceedings several times for violations of probation or
criminal activity directed at Missel.
See Complaint at ¶¶ 56, 58
(noting Hildreth’s September 10, 2008 arraignment on charges of
criminal contempt); Complaint at ¶ 57 (noting prior charges that
had been dismissed against Hildreth); Complaint at ¶ 62 (noting
that Hildreth had been arrested three times); Complaint at ¶ 67
(noting Hildreth’s arrest for having aimed a surveillance camera at
Accordingly, the alleged facts stated in the
Hildreth to harass Missel in retaliation for Missel having filed a
lawsuit against the County.
Plaintiff’s final allegation of retaliation claims that on
years after plaintiff
original lawsuit against the County, a Sheriff’s Deputy went to
Missel’s home and suggested that Missel’s sending a Christmas card
to a neighbor could be construed as harassment, and threatened that
“an investigation [presumably of plaintiff] would be commenced.”
Complaint at ¶¶
This claim fails to allege facts from
which a plausible inference of retaliation could be made.
Even if plaintiff could allege that retaliatory acts were
taken against him, he has failed to allege that the acts could
objectively be considered to have a chilling effect on a person’s
exercise of free speech rights. The acts complained of, delivering
a notice of a complaint of a code violation, failing to immediately
arrest Hildreth upon Missel’s claim that Hildreth had violated an
Order of Protection, and a Sherrif Deputy’s claim that sending a
Christmas card could be harassment, fail to allege facts that
support a finding that the defendant’s engaged in behavior intended
to chill exercise of free speech rights.
To successfully allege that conduct had a chilling effect on
the exercise of First Amendment rights, a plaintiff must establish
that the retaliatory “official conduct actually deprived [him] of
th[ose] right[s]” by either (1) silencing [him] or (2) having some
Cir.2008)(quoting Colombo v. O'Connell, 310 F.3d 115, 117 (2d
Cir.2002)); Avgerinos v. Palmyra-Macedon Central School Dist., 690
F.Supp.2d 115, 133-34 (W.D.N.Y., 2010)(Telesca, J.). In this case,
the plaintiff has failed to allege that his behavior has been
modified as a result of the defendant’s actions, and has failed to
allege, in other than conclusory terms, that his First Amendment
rights have been chilled.
Curley v. Village of Suffern, 268
Amendment retaliation claim required to show actual chilling effect
as a result of defendant’s conduct, as opposed to conduct that
could objectively be seen as chilling First Amendment rights). See
Laird v. Tatum, 408 U.S. 1, 13–14 (1972)(plaintiff claiming
retaliation must allege a specific present objective harm or a
threat of specific future harm--subjective or vague claims of a
chilling effect will not establish retaliation claim).
plaintiff has failed to allege the required elements of a claim for
First Amendment retaliation, I grant the individual defendants’
motion to dismiss plaintiff’s § 1983 claims.
Plaintiff alleges that the County of Monroe violated his
Constitutional rights by allowing members of the Monroe County
Sheriff’s Department to harass him, and by failing to protect him
from harassment by Hildreth.
To state a cause of action against a
municipality under § 1983, a plaintiff must "plead and prove three
elements: (1) [that the municipality adopted] an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right."
Zahra v. Town of Southold, 48
F.3d 674, 685 (2d Cir. 1995); see also, Monell v. Department of
Social Services, 436 U.S. 658, 691 (1978).
A plaintiff may
evidence of the policy itself, or by “establishing that responsible
supervisory officials acquiesced in a pattern of unconstitutional
conduct by subordinates.” Dove v. Fordham University, 56 F.Supp.2d
330, 336 (S.D.N.Y. 1999).
A municipality may not be held liable
under 42 U.S.C. § 1983 exclusively under a theory of respondeat
superior. See Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978). Accordingly, plaintiffs suing
under § 1983 must prove that “policies or customs . . . sanctioned”
by the municipality led to the alleged constitutional violation.
Segal v. City of New York, 459 F.3d 207, 219 (2d. Cir 2006) (citing
Monell, 436 U.S. at 694).
To argue that an affirmative
municipal policy was the cause of a constitutional violation, a
plaintiff must put forth factual allegations in his complaint that
support a plausible inference that the violation was due to a
formal course of action officially sanctioned by the municipality’s
policymaking authority for the municipality. Vives v. City of New
York, 524 F.3d 346, 350 (2d Cir. 2008) (citing Pembaut v. City of
Cincinnati, 475 U.S. 469, 481 (1986)). A complaint states a § 1983
municipal policymaker was “knowingly and deliberately indifferent
to the possibility that its officers” were likely to violate
constitutional rights. Fiacco v. City of Rensselaer, 783 F.2d 319,
326 (2d Cir. 1986).
In the instant case, plaintiff has failed to identify any
policy or custom adopted or sanctioned by the County of Monroe
which led to the deprivation of his rights.
The acts complained of
in the Complaint: dispatching a Monroe County Deputy Sheriff to
Plaintiff’s home with a letter informing Plaintiff of a an alleged
violation of a Town Code provision; refusing to arrest Hildreth
upon Plaintiff’s complaint that Hildreth was illegally videotaping
him (Complaint at 12), and a Deputy Sheriff suggesting that a
constitute harassment (Complaint at 14), do not allege a policy or
custom that led to the violation of Plaintiff’s constitutional
rights. Nor do these claims allege that the County knew of, or was
Accordingly, I find that plaintiff has failed to adequately allege
municipal liability on the part of Monroe County, and I grant
Monroe County’s motion to dismiss plaintiff’s Complaint.
Plaintiff’s Motion for Default Judgment.
infliction of emotional distress, and negligent infliction of
Hildreth has failed to Answer the Complaint,
or appear in this action, and the Clerk of the Court has made an
entry of default against Hildreth. Plaintiff now moves for a
default Judgment against Hildreth.1
Although Hildreth has not appeared in this action, the Court
may not grant a default judgment without first examining the merits
of the plaintiff’s claims.
As stated by this Court in
“judgment against a defaulting party should be granted only after
careful examination of the moving party’s claim by the district
court.... Indeed, a defendant’s default does not in itself warrant
a court in entering a default judgment because there must be a
sufficient basis in the pleadings for the judgment entered.”
In the instant case, I find that plaintiff has failed to state
a claim for negligent infliction of emotional distress. “Under New
York law, a plaintiff may recover for negligent infliction of
emotional distress under one of two theories: (1) the ‘bystander
theory’ or (2) the ‘direct duty theory.’”
Higgins v. Metro-north
Railroad Company 2001 WL 503003 (S.D.N.Y., May 11, 2001)(citing
United States ex rel. Ben-Shlush v. St. Luke's-Roosevelt Hosp.,,
200 WL 269895 at *4 (S.D.N.Y. Mar. 10, 2000) (additional citations
I note that Hildreth failed to appear in plaintiff’s previous action against him, (civil
action 07-CV-6593T) and that this Court granted plaintiff’s motion for a default judgment on his
§ 1983 claims against Hildreth. In that case, I referred the matter to Magistrate Judge Jonathan
Feldman for a hearing on damages. Thereafter, however, prior to any hearing, the parties agreed
to dismissal of the action with prejudice. Plaintiff did not raise any claim of intentional infliction
of emotional distress in the previous proceeding, and therefore he is not precluded from raising
such a claim in this action.
Under the “bystander” theory, a plaintiff must allege
that he witnessed the death or serious bodily injury of a member of
her immediate family. Mortise v. United States, 102 F.3d 693 (2d
Cir.1996). There are no allegations in the complaint that plaintiff
witnessed anyone’s death or serious bodily injury.
Nor can the
plaintiff make out a claim under the “direct duty” theory, as such
a claim requires evidence that a plaintiff suffered an emotional
unreasonably endangered her own physical safety, . . . or caused
her to fear for her physical safety.”
Wahlstrom v. Metro-north
identified the breach of a specific duty owed by the defendants to
him that could
See Mortise, 102 F.3d at 693 (duty alleged
free-floating duty to society”).
Finally, the complaint is devoid
of any allegation that plaintiff suffered a physical manifestation
negligent infliction of emotional distress.
Bertuzzi v. Chase
Manhattan Bank, N.A., 1999 WL 759997, at *7 n. 3 (S.D.N.Y. Sept.
24, 1999); Iannotti v. City of Amsterdam, 225 A.D.2d 990, 639
N.Y.S.2d 537, 538 (3d Dep't 1996). Because plaintiff has failed to
establish a claim for negligent infliction of emotional distress,
I grant defendant’s motion to dismiss this claim.
To state a claim for intentional infliction of emotional
distress, a plaintiff must allege that the defendant engaged in
"(1) extreme and outrageous conduct; (2) [with] intent to cause, or
reckless disregard of a substantial probability of causing, severe
emotional distress; (3) a causal connection between the conduct and
the injury; and (4) severe emotional distress." Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir.1999).
The conduct complained of must be
"so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society." Fischer
v. Maloney, 43 N.Y.2d 553, 558 (1978).
Ordinarily, whether the
challenged conduct is sufficiently outrageous will be determined as
a matter of law.
Nevin v. Citibank, 107 F.Supp.2d 333, 345-46
Howell v. New York Post Company, Inc., 81
N.Y.2d 115, 121 (1993)).
In the instant case, assuming the factual allegations set
forth in the Complaint to be true, I find that plaintiff has stated
a claim for intentional infliction of emotional distress.
plaintiff has alleged that Hildreth: (1) publicly accused Missel of
being a pedophile; (2) visited plaintiff’s employers and advised
them that Missel was a pedophile; (3) wrongfully used his position
as a Sheriff’s Deputy to launch an investigation of the plaintiff
by the Sheriff’s Department; (4) assumed an alias for the purpose
computer; (5) illegally tracked all of Missel’s activities on his
computer; (6) stalked the plaintiff; (7) threatened to arrest and
imprison the plaintiff; (8) taped a rotting fish head to Missel’s
car; (9) issued an ultimatum to plaintiff that he move from the
neighborhood; (10) installed a spy camera to video the plaintiff at
his home; (11) videotaped the plaintiff with a handheld camera; and
(12) enlisted neighbors to stalk the plaintiff.
alleges that Hildreth’s conduct caused severe emotional distress.
Missel’s allegations, taken as a whole, allege outrageous,
atrocious conduct that is utterly intolerable in a civilized
Because the defendant has chosen not to answer the
Complaint or controvert the alleged facts, the Court must accept
them as true, and doing so, I find that plaintiff has stated a
claim for intentional infliction of emotional distress, and is thus
entitled to a default judgment.
Although plaintiff is entitled to a default judgment as a
result of defendant Hildreth’s failure to appear, the Court is not
able, on this record, to determine the amount of damages to which
plaintiff may be entitled. Accordingly, I refer this matter to the
Defendant Hildreth shall be put on notice of
the date and time of the hearing, and shall be given an opportunity
to contest the amount of damages sought by plaintiff.
Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
155, 158 (2nd Cir., 1992)(“Damages, which are neither susceptible
of mathematical computation nor liquidated as of the default,
usually must be established by the plaintiff in an evidentiary
proceeding in which the defendant has the opportunity to contest
For the reasons set herein, I grant the County defendants’
motion to dismiss Count I of the Complaint against all County
With respect to Count II of the Complaint, I grant
I deny plaintiff’s motion for a default judgment with
respect to Count III of the Complaint.
Accordingly, the only
remaining defendant in this action is defendant Hildreth, and the
intentional infliction of emotional distress.
This matter is
referred to Magistrate Judge Feldman to conduct a hearing, on
notice to defendant Hildreth, for determination of plaintiff’s
damages, and to issue a Report and Recommendation on that issue to
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
August 17, 2011
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