Opinion
CV 13-4378 (SJF) (WDW)
04-04-2014
JENNIFER LaVERTU and JOHN LaVERTU, Plaintiffs, v. THE TOWN OF HUNTINGTON, Defendant(s).
REPORT AND RECOMMENDATIONS WILLIAM D. WALL, United States Magistrate Judge :
Before the court on referral from District Judge Feuerstein is a motion to dismiss by defendants. DE[11 &14]. The motion is opposed by the plaintiffs. DE[12]. For the reasons set forth herein, I recommend that the motion be granted in regard to the First Amendment and Due Process claims, and denied in regard to the Equal Protection claim. I further recommend that the plaintiffs be given leave to replead.
BACKGROUND
The plaintiffs filed this action in August 2013, alleging civil rights violations by the defendant Town related to the plaintiffs' opposition to the proposed Avalon Bay housing project. Complaint, DE[1]. The plaintiffs report that they released a YouTube video about the proposed project and other issues on January 28, 2011, and allege that the Town retaliated against them in response. On February 5, 2011, the Town released its own YouTube video in rebuttal, and, the plaintiffs allege, "targeted Plaintiffs' home with baseless summonses," in violation of their First Amendment rights. DE[1], ¶2. They further allege that the Town "target[ed] Mr. LaVertu's plumbing license in an attempt to put him out of business, as part of their retaliatory efforts. Id.
The plaintiffs assert that the Town's rebuttal video was harassing and improper, because it gave information about the LaVertu's tax records. The "baseless summonses" were issued in June 2011in regard to a retaining wall allegedly erected without a permit, and the absence of a Certificate of Occupancy for the LaVertu's home for a two story dwelling. The defendant, in support of this motion, has annexed documents that add details about those summonses. The plaintiffs urge the court to ignore such exhibits as improper on a motion to dismiss, but some of the exhibits can be considered, either because they are referenced in the Complaint or the court can take judicial notice of them. Looking to the admissible documents and the Complaint, it appears that the LaVertus originally entered a plea of not guilty as to the alleged violations, asserting that the retaining wall was on their neighbor's property and applying for a Letter In Lieu of a Certificate of Occupancy. A Letter in Lieu application was filed on February 12, 2012, and they were granted a Letter in Lieu on February 21, 2012. The grant of the letter was later disapproved, on October 16, 2012. See Barfuss Decl., DE[11-4], Exhs. A, B & G. The plaintiffs say that they did not learn of the disapproval for several months after it was issued. In the Complaint, the plaintiffs allege that the original Letter in Lieu was disallowed as part of a "witch hunt" against them by the Town. Compl., ¶39. Resolution of the Letter in Lieu issue is apparently ongoing in the County District Court.
The name on the accusing instruments was changed from John and Jennifer LaVertu to only Jennifer LaVertu, and, on June 12, 2012, Mrs. LaVertu pleaded guilty to a violation of Huntington Town Code §87-25 for failure to have a C of O for a two story dwelling. See Turner Decl., DE[11-3], Exs. C & D. Pursuant to the Conditions of Discharge of the violation, which was dated June 20, 2012, she was required to "follow through to legalize [the] dwelling at 4 Meredith Dr., Huntington Station to be completed within 4 months of this notice," and to pay a $750 fine. Id., Ex. C. A Declaration of Delinquency was issued by the Suffolk County District Court on or about January 11, 2013, indicating that the LaVertus had not followed through on the Conditions of Discharge and were in default for not making the required changes in the four month period given to them. Turner Decl., Ex. E. It is unclear whether Mrs. LaVertu pleaded guilty to the retaining wall charge, but that charge was "dismissed in satisfaction." The Complaint asserts that the charge was baseless and that the retaining wall is on the Lavertus' neighbors' property. The defendant disputes that in the motion papers, but I make no recommendation regarding it.
This lawsuit was filed in August 2013, and, in it, the plaintiffs assert claims under the First Amendment, the Due Process Clause and the Equal Protection Clause pursuant to Section 1983. The defendants seek dismissal of all claims in the Complaint.
DISCUSSION
Rule 12(b)(6) Standards:
The defendants move pursuant to Rule 12(b)(6). In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005); Rosen v. North Shore Towers Apts., Inc., 2011 WL 2550733, *2 (E.D.N.Y. June 27, 2011)(12(b)(1)). To survive a motion to dismiss pursuant to Rule 12, "a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570. But, a pleading that offers only 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement." Id. (quoting Twombly, 550 U.S. at 557.) Thus, while detailed factual allegations are not required, the pleading rules do require more than an "unadorned, the-defendant-unlawfully-harmed-me accusation." Twombly, 550 U.S. at 555 (internal citations omitted).
The Supreme Court clarified the appropriate pleading standard in Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. District courts are to first "identify [] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678 (quoting and citing Twombly, 550 U.S. at 556) (internal citations omitted).
Defendant's Exhibits in Support of Motion:
The defendant has annexed numerous exhibits to its motion papers, and the plaintiffs challenge them, stating that none of the exhibits have been presented to them "for review or discovery." DE[12] at 4. In deciding a 12(b)(6) motion, the court is confined to the four corners of the complaint, but may consider exhibits attached to the complaint or documents incorporated in it by reference. See Platt v. Incorporated Vill. of Southampton, 2009 WL 3076099, *3 (E.D.N.Y. Sept. 21, 2009)(citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998) & Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir. 2002)). The court "may also consider matters of which judicial notice may be taken." Id. (citing Kramer v. Time Warner, Inc., 837 F.2d 767, 773 (2d Cir. 1991)). I find that some exhibits are incorporated by reference in the Complaint and are properly before the court, and that other exhibits, notably documents from court proceedings regarding the summonses, are suitable for judicial notice.
I turn to the arguments regarding dismissal.
Monell Claims:
Although the Complaint does not specify Monell liability, the lawsuit is brought under Section 1983, and the only defendant is the Town, a municipal entity. Thus, the concept of Monell liability is inherent in the claims. The defendant urges that the Complaint does not adequately set forth allegations in regard to Monell liability and that the entire Complaint should be dismissed on that ground.
To prevail on a Section 1983 claim against a municipal entity, a plaintiff must show: "'(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.'" Jones v. Nassau County Correctional Inst., 2014 WL 1277908, *4 (E.D.N.Y. Mar. 26, 2014) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008); see also Connick v. Thompson, — U.S. —, 131 S. Ct. 1350, 1359, 179 L .Ed. 2d 417 (2011) ("Plaintiffs who seek to impose liability on local governments under Section 1983 must prove that 'action pursuant to official municipal policy' caused their injury." (quoting Monell v. Dept. of Social Servs. of the City of New York, 436 U.S. 658, 691(1978)). Thus, "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 East Haven, 691 F.3d 72, 80 (2d Cir.2012). "Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee." Id.; see also Connick, 131 S. Ct. at 1350 (holding that under Section 1983, governmental bodies are not vicariously liable for their employees' actions); Los Angeles County, Cal. v. Humphries, — U.S. —, 131 S. Ct. 447, 452, 178 L. Ed. 2d 460 (2010) ("[A] municipality cannot be held liable solely for the acts of others, e.g., solely because it employs a tortfeasor." (quotations and citation omitted)). "'A municipal policy may be pronounced or tacit and reflected in either action or inaction.'" Jones, 2014 WL 1277908 at *5 (quoting Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011)). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick, 131 S. Ct. at 1359. In addition, municipal liability can be established "by showing that a policymaking official ordered or ratified the employee's actions—either expressly or tacitly." Jones, 691 F.3d at 81.
While the Complaint does not specifically identify anyone as a policymaker, it is replete with references to the actions taken by Town Council members and nameless "Town officials." The Town Attorney is also mentioned, as is "high ranking Town Consultant Bob Fonti." The plaintiffs argue that the allegations suffice to suggest a policy of retribution against them by Town officials, and I agree. While the Complaint is not a model of pleading in the Monell context, the plaintiffs allege facts from which it could be plausibly inferred that a custom or policy of the Town caused the alleged violations. See Jones v. Bay Shore Union Free School Dist., 947 F. Supp. 2d 270, 282 (E.D.N.Y. May 28, 2013) (citing Harris v. Westchester Cnty. Dep't of Corr., 2008 WL 953616, at *11 (S.D.N.Y. Apr. 3, 2008)). Accordingly, the defendants' motion to dismiss Plaintiff's Section 1983 claims against the Town based upon Monell liability should be denied.
Application of Rooker-Feldman Doctrine:
The defendant recounts the history of the summonses and Mrs. LaVertu's guilty plea in regard to the C of O summons, and argues that, under the Rooker-Feldman doctrine, claims predicated on allegedly baseless summonses should be dismissed.
"Pursuant to what is commonly known as the Rooker-Feldman doctrine, federal district courts lack subject matter jurisdiction over suits that are, in substance, appeals from state court judgments." Brown v. Wells Fargo Bank, N.A., 2014 WL 1248022, *2 (E.D.N.Y. Mar. 24, 2014)(citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-415,(1923); D. C. Court of Appeals v. Feldman, 460 U.S. 462, 476,(1983); Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.1998) ("The Rooker-Feldman doctrine provides that the lower federal courts lack subject matter jurisdiction over a case if the exercise of jurisdiction over that case would result in the reversal or modification of a state court judgment.").
The doctrine is limited to "'cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.'" Brown, 2014 WL 1248022 at *2 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284,(2005). There are four requirements for the application of Rooker-Feldman: (1) the federal court plaintiff must have lost in state court; (2) the plaintiff's injuries must be caused by the state court judgment; (3) the plaintiff's claims must invite the district court to review and reject the state court judgment; and (4) the state court judgment must have been rendered prior to the commencement of the district court proceedings. Id. (citing Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005). "The first and fourth of these requirements may be loosely termed procedural; the second and third may be termed substantive." Id. If all four requirements are met, the case must be dismissed.
Here, the defendant relies on Jennifer LaVertu's plea of guilty in the County District Court as the relevant lower court proceeding. It would appear from the pleadings and the motion papers that proceedings regarding the Conditional Discharge and Declaration of Delinquency are ongoing in state court, and I recommend a finding that any reference to the Rooker Feldman doctrine here is premature. While LaVertu's entry of the guilty plea demonstrates that her claim that the summons was baseless is futile, there are still issues about how she can correct the problems that the summons was based on. Further, the plaintiffs do not appear to be complaining of injuries from the District Court ruling, nor are they asking this court to review and reject that ruling. Thus, the complaint should not be dismissed on Rooker-Feldman grounds.
First Amendment Claims:
The defendant argues that the plaintiffs fail to state a viable claim for First Amendment violations because plaintiffs' exercise of First Amendment rights was not chilled by any Town action, a requirement of First Amendment retaliation claims. See DE[11-11], Mem. in Support at 7. The plaintiffs argue that the chilling element is not necessary and that they have alleged sufficient harm to meet pleading standards. The defendant further argues that, to the limited extent that actual chilling is not necessary, the plaintiffs have not alleged sufficient concrete harm.
To state a claim of retaliation, plaintiffs generally must plead that (1) they have an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by their exercise of that right; and (3) defendants' actions effectively chilled the exercise of their First Amendment right. Butler v. City of Batavia, 323 Fed. Appx. 21, 23(2d Cir. 2009) (quoting Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). The elements of a First Amendment retaliation claim have also been phrased without reference to a chilling requirement, as requiring the plaintiff to prove "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff; and (3) that there was a causal connection between the protected speech and the adverse action." Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). While some decisions in the Second Circuit, like Butler, have required that plaintiffs prove that the adverse actions chilled the exercise of their First Amendment rights (see Grossi v. City of New York, 2009 WL 4456307, *7 n.4 (E.D.N.Y. Nov. 30, 2009)(citing cases)), other courts have found that the chilling element is required only "in cases where a plaintiff states no harm independent of the chilling of his speech." See Puckett v. City of Glen Cove, 631 F. Supp. 2d 226, 239 (E.D.N.Y. June 30, 2009).
For purposes of this motion, I suggest a finding that the plaintiff, or at least Jennifer LaVertu, engaged in activities protected by the First Amendment and that the Complaint adequately alleges retaliatory motive as to most, but not all, of the Town's acts. I focus for the most part on determining whether the Complaint adequately alleges concrete, specific harm.
The Second Circuit has recognized that "in certain situations a showing of some other form of concrete harm may substitute for 'actual chilling,'" Zherka v. Amicone, 634 F.3d 642, 643 (2d Cir. 2011). The Zherka court explained:
"To state a claim under Section 1983, a plaintiff must allege facts indicating that some official action has caused the plaintiff to be deprived of his or her constitutional rights—in other words, there is an injury requirement to state the claim." Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir.2002) (per curiam). Various forms of harm have been accepted as satisfying this injury requirement in the context of a claim that a public official has injured the plaintiff in retaliation for her exercise of her First Amendment rights.634 F.3d at 644-45.
"We have described the elements of a First Amendment retaliation claim in several ways, depending on the factual context." Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). For example, public employees must show adverse employment action. Id. For their part, inmates must show "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising *645 ... constitutional rights." Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (internal quotation marks and citation omitted).
By contrast, private citizens claiming retaliation for their criticism of public officials have been required to show that they suffered an "actual chill" in their speech as a result. Id. (citing Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir.1992)). However, in limited contexts, other forms of harm have been accepted in place of this "actual chilling" requirement. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.2002) (alleging retaliatory revocation of building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir.1994) (alleging retaliatory failure to enforce zoning laws); see also Gill, 389 F.3d at 383 (explaining that "the Gagliardi plaintiffs' retaliation claim apparently survived a motion to dismiss because ... they adequately pleaded non-speech injuries"). Despite these limited exceptions, as a general matter, First Amendment retaliation plaintiffs must typically allege "actual chilling."
The court in Zherka found that a claim of defamation per se under state law was not sufficient to satisfy the harm element on a First Amendment retaliation claim. Such harm, they explained, must be concrete or tangible, not assumed, as is the case in defamation per se claims. In private citizen cases, "various forms of concrete harm have been substituted for the 'actual chilling' requirement." Brink v. Muscente, 2013 WL 5366371, *7 (S.D.N.Y. Sept. 25, 2013)(citing Zherka, 634 F.3d at 643, 645-46; see also Puckett, 631 F. Supp.2d at 239 (E.D.N.Y.2009) (chilling element is required only "in cases where a plaintiff states no harm independent of the chilling of his speech"); Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357, 371 (S.D.N.Y.2011) (deeming allegations of retaliatory denial of building permits and a denial of an unconditional variance sufficient concrete harms to substitute for chilling effects); Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 222 (N.D.N.Y. Apr. 19, 2012) (citing Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir.1994) (alleging harm in the form of municipal defendants' misapplication of zoning code in retaliation for plaintiffs' exercise of free speech rights))). Where a plaintiff has sufficiently alleged a concrete harm, and in the absence of a subjective chilling requirement, Second Circuit courts have only required a showing (1) that the First Amendment protected the plaintiff's conduct, and (2) that "defendants' conduct was motivated by or substantially caused by [the plaintiff's] exercise of speech." Hafez, 894 F. Supp. 2d at 222 (citing Gagliardi, 18 F.3d at 194 (citation omitted)); see also Tomlins, 812 F. Supp. 2d at 371 n.11. Contrary to the plaintiff's argument, some concrete harm must be shown, even if chilling is not.
Here, the plaintiffs have suggested that their free speech rights are implicated, alleging that in issuing summonses to the plaintiffs, the Town had "the clear intention of deterring Free Speech activities," but they do not allege any actual chilling. Compl. ¶2. Instead, the complaint can be read to allege harm flowing primarily from the YouTube video, unwarranted summonses and interference with Mr. LaVertu's plumbing license.
The allegations of harm allegedly done by the rebuttal video are too vague and conclusory to constitute the concrete harm needed to make out a First Amendment Retaliation claim. The Complaint alleges that the video was a "personal attack" on Mrs. LaVertu and that it released information about her tax records. I have not viewed the videos, although they are referenced in the Complaint and provided as exhibits to the motion, but limit my consideration, on this motion to dismiss, to the allegations set forth in the Complaint itself. The posting of the video does not per se suggest retaliatory motive. Mrs. LaVertu had posted her own YouTube video and a rebuttal in kind was not so surprising. The fact that the Town posted its rebuttal in the same forum used by Mrs. LaVertu does not in and of itself give rise to an inference of retaliatory motive or concrete harm. The content of the video as described in the Complaint, as distinct from the fact of the posting itself, also fails to satisfy the standard of harm required. If it did disclose the LaVertus' property taxes (and I assume that it did), it only aired information readily accessible as a matter of public record. No details are given in the Complaint as to the nature of the personal attack beyond the tax information, and the vague allegations about discussions on various social media and other websites add nothing to the allegation of harm. While Mrs. LaVertu may have felt "personally attacked, "[h]urt feelings or a bruised ego are not by themselves the stuff of constitutional tort." Zherka, 634 F.3d at 645-46 (citing Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.2004) 0. Although the Second Circuit has not decided if "allegations of emotional and psychological harm would establish compensable injury in a First Amendment retaliation claim," I recommend that the allegations in regard to the video do not establish such a compensable injury. See Zherka, 634 F.3d at 646-47.
The vague allegations about the plumbing license similarly do not rise to a level sufficient to make out a claim of constitutional tort. There are no allegations of any concrete harm to Mr. LaVertu caused by any Town behavior in this regard, harm such as loss of business or harm to reputation. Thus, those claims do not provide the actual harm necessary for a First Amendment retaliation claim.
I do not take a position on whether loss of business or injury to reputation would constitute such concrete harm.
Nor do the allegations about the summonses suggest sufficiently concrete or tangible harm so as to satisfy the pleading standards for a First Amendment retaliation claim. The retaining wall summons, even viewed as baseless, is too de minimis in terms of harm for First Amendment retaliation purposes. If, on the other hand, the court accepted the plaintiffs' claim that the Certificate of Occupancy summons was baseless, it might rise to such a level because it carried the potential for greater consequences. The record before the court, however, does not allow an inference of baselessness to be drawn. As noted, the court can take judicial notice of the County court documents regarding that summons, and those documents reflect the fact that Mrs. LaVertu entered a plea of guilty to the summons. This court will not infer baselessness under that circumstance. The issue of whether a Letter in Lieu should have been issued - an issue that presumably will be decided by the County court - is still open, but there is nothing to support an inference that the summons itself was baseless. The plaintiffs argue that even if the summonses were justified, their retaliation claim is viable if the Town's motivation for enforcing the Code was retaliatory. See DE[12] at 19. They do not, however, cite any law to support that conclusion, which is at odds with the caselaw setting forth the elements of a First Amendment claim as requiring more than retaliatory motive.
The circumstances of the retaining wall summons are discussed in the context of the Equal Protection claim infra.
In their memorandum in opposition to the motion, the plaintiffs argue that Town Attorney Jacob Turner's refusal to conference with them about the ongoing Letter in Lieu dispute is "the essence of First Amendment Retaliation," but that allegation is not in the Complaint, and I do not address it. See DE[12] at 18.
Finally, the Complaint alleges that Jennifer LaVertu has experienced "severe reoccurring headaches, sleeplessness and numbness in her fingers and along the left side of her body," and that doctors diagnosed stress as a cause for her physical complaints. Compl., ¶63. That stress was allegedly cause by the Town's retaliatory acts. As noted earlier, "[h]urt feelings or a bruised ego are not by themselves the stuff of constitutional tort." Zherka, 634 F.3d at 645-46. These allegations, however, describe physical harm. Neither party addresses the issue of whether these allegations of physical distress can substitute for the chilling of rights as concrete harm in a First Amendment retaliation context, and I have located no cases in this Circuit that have so found. I recommend that the type of harm that satisfies the concrete harm requirement not be extended to this sort of injury, which is quite different from the forms of concrete harm distinct from the chilling of speech that have been found in other cases. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002) (retaliatory revocation of plaintiff's building permit); Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (2d Cir.1994) (retaliatory failure to enforce zoning laws); see also Tomlins, 812 F. Supp. 2d at 239 (allegations of retaliatory denial of building permitss and denial of unconditional variance sufficient concrete harms to substitute for chilling effects); Puckett, 631 F. Supp. 2d 22(First Amendment retaliation claim adequately pled where plaintiff alleged harm to value of her property as result of defendants' retaliatory conduct).
I note that if District Judge Feuerstein disagrees, and finds that these allegations do suffice, that the harm is to Mrs. LaVertu only. Mr. LaVertu has alleged no such harm to himself. Indeed, Mr. LaVertu's role in the events outlined in the Complaint, except for the allegations about his plumbing business, and the impact of those events on him, is not clear.
The Second Circuit has observed that "the arena of political discourse can at times be rough and tough. Public officials must expect that their decisions will be subjected to withering scrutiny from the populace. A public official's response to that criticism is subject to limits, but the injury inflicted by that response must be real. Without that limitation, the Constitution would change from the guarantor of free speech to the silencer of public debate." Zherka, 634 F.3d at 647. The Complaint here does not sufficiently set forth a real injury in First Amendment terms, and I recommend that the First Amendment Retaliation claim be dismissed without prejudice and that the plaintiffs be permitted to replead.
Substantive Due Process Claim:
The plaintiffs allege violations of their substantive due process rights. "'In the zoning context, a government decision regulating a landowner's use of his property offends substantive due process if the government action is arbitrary or irrational. Government regulation of a landowner's use of his property is deemed arbitrary or irrational, and thus violates his right to substantive due process, only when government acts with no legitimate reason for its decision.'" Ahmed v. Town of Oyster Bay, 2014 WL 1092363, *10 (E.D.N.Y. Mar. 18, 2014)(quoting Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 102 (2d Cir.1992) (citations and quotation marks omitted)); see also Merry Charters, LLC v. Town of Stonington, 342 F. Supp.2d 69, 78 (D. Conn.2004) (explaining that "denial by a local zoning authority violates substantive due process standards only if the denial is so outrageously arbitrary as to constitute a gross abuse of governmental authority"). "As for substantive due process, '[i]n the context of a zoning dispute, to state a claim . . . for deprivation of 'property' without due process of law a person must establish that he had a valid 'property interest' in some benefit that was protectible under the fourteenth amendment at the time he was deprived of the benefit.'" Zito v. Town of Babylon, 534 Fed. Appx. 25, 27 (2d Cir. 2013) (citing Brady v. Town of Colchester, 863 F.2d 205, 211-12 (2d Cir. 1988)). The defendant argues that the property or liberty interest claimed by the LaVertus is nowhere stated in the Complaint. That is true, but I assume for purposes of this motion that here, the property interest at issue is the LaVertu's use and enjoyment of their home, and I assume that they are alleging that the summonses against the property have interfered with that use and enjoyment. However, even if such a property interest is inferred, this claim is not ripe under the test set out in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172(1985), and should be dismissed without prejudice to renewal.
Following Williamson, the Second Circuit applies "'a two-pronged test for assessing the ripeness of takings-type claims.'" Zito, 534 Fed. Appx. at 28 (quoting Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 95-96 (2d Cir.1992) (internal citations omitted)). "The first prong requires the government entity charged with enforcing the regulations at issue to have rendered a final decision. The second prong requires the plaintiff to have sought compensation if the state provides a reasonable, certain and adequate provision for obtaining compensation." Id.(internal citations and quotation marks omitted); see also Dougherty, 282 F.3d at 88. The Second Circuit applies Williamson 's "final decision" requirement to both substantive and procedural due process claims in the land-use context. Id. (citing Dougherty, 282 F.3d at 88-89 (procedural due process), Southview, 980 F.2d at 96-97 (substantive due process)). Here, the dispute about the C of O/Letter in Lieu is ongoing in the County court, with no final determination yet reached by the County authorities. It is also unclear whether the LaVertus have initiated any appeals or started an Article 78 proceeding. Thus, this court cannot find that the claim is ripe and I recommend that it be dismissed without prejudice.
Equal Protection Claim:
The plaintiffs' equal protection claim apparently arises from their contention that they were issued a summons for the retaining wall and their neighbors were not. As noted earlier, they allege that the retaining wall is on the boundary line between their neighbor's property and their own, and that the neighbors helped build the wall, but their neighbors were never issued a summons for lack of a permit, while they were. Complaint, ¶¶32-34. This claim can be analyzed as selective prosecution or class of one discrimination. Selective prosecution plaintiffs "have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Mental Disability Law Clinic, Touro Law Center v. Hogan, 519 Fed. Appx. 714, 718 (2d Cir. 2013)(citing Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir.2004) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001))).
The defendants vigorously deny this, and have submitted photographs and other evidence that the wall is on the LaVertus' property. I do not address the merits of the plaintiffs' allegation. If the case proceeds, they will have to prove their allegations. If they replead the Complaint, they may wish to amend allegations that time has proven invalid, or they may wish to adhere to their original allegations.
Under class-of-one discrimination doctrine, "'when it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a rational basis for the difference in treatment.'" Id. (quoting Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 602, 975 (2008) (internal quotation marks omitted)). A plaintiff proceeding on a "class of one" equal protection theory must plead "'an extremely high degree of similarity between themselves and the persons to whom they compare themselves.'" Sacher v. Village of Old Brookville, 2013 WL 4780046, *7 (E.D.N.Y. Sept. 4, 2013)(quoting Ruston v. Town Bd. for Vill. of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)). In particular, a class-of-one plaintiff must establish that "(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake." Id. (citing Adam J. v. Village of Greenwood Lake, 2013 WL 3357174 *7 (S.D.N.Y. 2013); Viteritti v. Incorporated Vill. of Bayville, 918 F. Supp. 2d 126, 135 (E.D.N.Y. 2013); MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 371 (E.D.N.Y. 2010)). "To state a class of one equal protection claim in a zoning context, a plaintiff must make more than a general statement of treatment different from those similarly situated. Even the mention of particular properties alleged generally to be similar is insufficient to state a claim. Instead, the properties cited must be so similar that 'no rational person could see them as different . . .'" Sacher, 2013 WL 4780046 at*7(quoting Ruston, 610 F.3d at 60). Thus, a plaintiff alleging unfair treatment in a zoning/building context, must plead specific examples of applications and hearings that were similar to plaintiff's application and demonstrative of the disparate treatment alleged. Id. (citing Amid v. Village of Old Brookville, 2013 WL 527772 *6 (E.D.N.Y.2013).
Under either theory, the plaintiffs have sufficiently alleged a claim based on the retaining wall summons. The allegations about their neighbors are sufficient to withstand the motion to dismiss on an equal protection claim based on the wall, because the neighbors are valid comparators. To the extent, if any, that they intended a broader claim arising from their being issued with summonses while other Town residents with similar violations were not, such a claim must be dismissed because no comparators other than their neighbors are identified. Further, their argument that the Town Attorney's refusal to conference with them is a violation of their Equal Protection rights (see DE[12] at 23) will not be considered, because that allegation does not appear in the Complaint.
OBJECTIONS
A copy of this Report and Recommendation is being sent to counsel for the parties by electronic filing on the date below. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 14 days. See 28 U.S.C. §636 (b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a) and 6(d). Failure to file objections within this period waives the right to appeal the District Court's Order. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: Central Islip, New York
April 4, 2014
/s/ William D. Wall
WILLIAM D. WALL
United States Magistrate Judge