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holding that opposition against plaintiff on the basis of his role as a whistleblower “is not grounds for liability under Section 1985.”
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11 CV 430 (VB) 11 CV 4425 (VB)
03-30-2012
NORMAN M. MARINO, Plaintiff, v. PAUL JONKE, SANDRA JONKE, JOSEPH A. CHARBONNEAU, WILLIS H. STEPHENS, JR., GEORGE MARTIN, J. ROONEY, M.A. CHESLO, JOHN E. KING, ADAM B. LEVY, TOWN OF CARMEL, TOWN OF PATTERSON, TOWN OF SOUTHEAST, COUNTY OF PUTNAM and JOHN DOE, Defendants. NORMAN M. MARINO, Plaintiff, v. PAUL JONKE and SANDRA JONKE, Defendants.
MEMORANDUM DECISION :
Plaintiff Norman M. Marino brings these actions alleging defendants violated his Fourth Amendment rights. He asserts claims under 42 U.S.C. § 1983 for abuse of process and malicious prosecution as well as state law claims. He seeks monetary damages and injunctive relief. Now pending are plaintiff's motions to strike the defendants' answers (Case No. 11 CV 430, Doc. #22; Case No. 11 CV 4425, Doc. #7) and cross motions for summary judgment filed by defendants Paul Jonke, Sandra Jonke, Joseph A. Charbonneau, Willis H. Stephens, Jr., Adam B. Levy, Town of Carmel, Town of Southeast, and County of Putnam ("movants"). (Case No. 11 CV 430, Doc. #23; Case No. 11 CV 4425, Doc. #8.) For the following reasons, plaintiff's motions are DENIED, and defendants' motions are GRANTED.
Identical motions were filed in both cases even though there are fewer defendants in case number 11 CV 4425.
Defendants request consolidation of these two actions pursuant to Federal Rule of Civil Procedure 42(a). Because all claims against the Jonke defendants are dismissed, case number 11 CV 4425 will be closed. As such, defendants' request is moot.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 as to plaintiff's federal law claims and 28 U.S.C. § 1367 as to plaintiff's state law claims.
I. Motions to Strike
Plaintiff commenced case number 11 CV 430 on January 20, 2011. According to the returned summonses, defendants were served with the complaint on May 4 and May 9, 2011. On June 3, the Court endorsed a letter from counsel for defendants "Paul Jonke, Joseph A. Charbonneau, Willis H. Stephens, Jr., J. Rooney, John E. King, Adam B. Levy, the Town of Carmel, the Town of Southeast and the County of Putnam" requesting additional time to respond to the complaint. The Court received a second letter from those defendants on June 7. On June 20, those defendants plus defendant Sandra Jonke ("Sandra") filed an answer. (Doc. #9.)
All citations to just one case are to case number 11 CV 430. The relevant submissions in both cases are the same.
On August 19, 2011, plaintiff filed a motion for default judgment against Sandra. (Doc. #19.) This motion was denied by the Court on August 30 (Doc. #21) because Sandra had filed an answer.
Plaintiff asks the Court to strike all pleadings filed by Sandra on two grounds. First, plaintiff argues it is not clear who represents Sandra because, according to plaintiff, he received papers and an answer from a law firm which has not appeared in either case currently pending before the Court. Second, plaintiff argues Miranda, Sambursky, Slone, Sklarin, Verveniotis LLP ("MSSSV"), which has filed answers on Sandra's behalf, should not be permitted to represent Sandra based on an inherent conflict of interest. In response, defendants assert there is no conflict of interest between Sandra and the other defendants represented by MSSSV.
Plaintiff's protestations of a conflict of interest are insufficient for the Court to conclude MSSSV should be barred from representing her. The Court sees no conflicts in the positions of defendants represented by MSSSV. In addition, only MSSSV has filed any papers on behalf of Sandra. From the Court's perspective, MSSSV - and only MSSSV - is Sandra's counsel of record. Therefore, plaintiff's motions to strike the answers are denied.
II. Motions for Summary Judgment
A. Factual Background
The parties have submitted briefs, statements of facts, and declarations with supporting exhibits. Movants filed a statement pursuant to Local Civil Rule 56.1, to which plaintiff failed to respond properly. See Local Civil Rule 56.1(b). Instead, plaintiff filed his affidavit with exhibits and did not provide a response to movants' statement of facts. In addition, movants rely upon plaintiff's complaint for certain facts. The parties' submissions reflect the following factual background.
Movants submitted affidavits of Sandra and Paul with exhibits. The exhibits to Paul's affidavit include many hearsay statements. Although the Court will include such statements in the following narrative for background purposes, the Court will not rely upon any hearsay in reaching its legal conclusions.
Norman Marino was formerly a Town of Carmel board member. Paul Jonke ("Paul") was the Town of Carmel Assessor, and Sandra is his wife. She is not formerly affiliated with any municipal defendant. Levy was District Attorney, and Charbonneau was Assistant District Attorney for the Putnam County. Stephens was Town Attorney for the Town of Southeast.
In 2008, plaintiff appealed the Town of Carmel's tax assessment of his home. The Town Board of Assessment Review upheld the Assessor's office's review. Plaintiff then challenged the assessment at a Small Claims Assessment Review ("SCAR"). Paul appeared on behalf of the Town of Carmel at the SCAR hearing. Following the SCAR hearing, plaintiff wrote a letter to the Carmel Town Board and Supervisor accusing Paul of having a conflict of interest by serving as Town Assessor while being employed in real estate sales. On November 24, 2008, the Hearing Office concluded Paul's assessment was appropriate.
From January 2009 until March 16, 2009, according to visitor sign-in sheets, plaintiff visited the Carmel Town Hall more than twenty times. According to a note from Carmel Real Property Appraiser Josh Herman to Paul, plaintiff came into the Assessor's office on January 30 and questioned Herman on Paul's whereabouts. Herman observed plaintiff walking by the Assessor's office that afternoon. According to another note from Herman to Paul, on February 2, plaintiff again approached Herman to inquire about Paul's whereabouts. Paul handwrote on the note that he had seen plaintiff ducking into the stairwell that afternoon when Paul spotted him in the building.
On February 2, plaintiff submitted a FOIL request to the Carmel Records Access Officer for invoices submitted by Paul related to his position as Assessor and in connection with attendance at meetings and seminars. The request covered Paul's first day of employment until that day.
On February 3, according to a Carmel Police Department report, Carmel Town Supervisor Kenneth Schmitt contacted Carmel Police complaining of harassing behavior by plaintiff.
On March 5, according to the police report, Paul called the Carmel Police Department to complain that plaintiff was coming to the Assessor's office to inquire whether Paul was working. Paul also complained that plaintiff had appeared at a Rotary Club meeting the previous day.
On March 11, Paul observed plaintiff following him in his car, including down a side street. Later that day, Paul submitted a supporting deposition to the New York State Police which detailed plaintiff's alleged conduct over the previous few months. The next day, March 12, Paul saw plaintiff parked on a side road along Paul's route to work. On the advice of the state police, Paul took photographs of plaintiff in his car. Also on March 12, plaintiff appeared at the state police barracks and was warned to stay away from Paul.
In a second supporting deposition dated March 17, 2009, Paul indicated he saw plaintiff twice looking into the Assessor's office in the preceding days. In the deposition, Paul asked that a temporary order of protection be issued against plaintiff.
On March 20, 2009, an information was issued against plaintiff charging him with harassment in the second degree pursuant to New York Penal Law § 240.26. The information was filed in the Carmel Justice Court but was transferred to the Town of Patterson Justice Court by Acting Supreme Court Justice James Rooney. On August 10, 2009, Judge John E. King of the Town of Patterson Justice Court issued a temporary order of protection against plaintiff in favor of Paul and his family.
On October 14, 2009, Sandra observed plaintiff following her as she drove through Mt. Kisco. According to her affidavit, she called Paul who told her to turn onto a side street. Plaintiff continued to follow her through the residential streets for a short time before stopping. That afternoon, Sandra provided a supporting deposition to the state police.
On November 3, 2009, plaintiff was charged with criminal contempt in the second degree pursuant to New York Penal Law § 215.50(3) in the Town of Patterson Justice Court. At the arraignment, Judge King revoked plaintiff's permit to carry a pistol, and plaintiff was forced to turn in multiple firearms. In a decision and order dated February 24, 2010, Judge King dismissed the harassment charge because it was legally insufficient and determined "the Defendant Norman Marino, by his actions did not violate the order of this Court, therefore the charge against [Marino] is hereby dismissed."
New York Penal Law § 215.50(3) prohibits "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court . . . ."
B. Standard for Summary Judgment
The Court must grant a motion for summary judgment if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
A dispute regarding a material fact is genuine if there is sufficient evidence upon which a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried . . . ." Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010) (citation omitted). It is the moving party's burden to establish the absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
If the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 323. If the nonmoving party submits evidence which is "merely colorable," summary judgment may be granted. Anderson v. Liberty Lobby, 477 U.S. at 249-50. The mere existence of a scintilla of evidence in support of the nonmoving party's position is likewise insufficient; there must be evidence on which the jury could reasonably find for her. Dawson v. Cnty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the Court resolves all ambiguities and draws all permissible factual inferences in favor of the nonmoving party. Nagle v. Marron, 663 F.3d 100, 105 (2d Cir. 2011). If there is any evidence from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper. See Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
Plaintiff brings this case pursuant to 42 U.S.C. § 1983. Specifically, he asserts claims for malicious prosecution against Paul and Sandra; for abuse of process and malicious prosecution against Carmel, Southeast, Putnam County, Paul, Sandra, Stephens, and Charbonneau pursuant to federal and state law; and for intentional infliction of emotional distress, prima facie tort, and discrimination pursuant to state law. In addition, the complaint may be read to assert a claim for conspiracy pursuant to 42 U.S.C. § 1985.
The Court only lists the causes of action relating to movants.
C. Plaintiff's Request for Discovery
In his opposition to the motion, plaintiff contends he has not been able to conduct sufficient discovery in this matter pursuant to Rule 56(d). Plaintiff claims he has not been able to depose Josh Herman. Plaintiff is correct in his assertion that Herman's statements constitute hearsay to the extent defendants rely on the statements to establish plaintiff was in the Assessor's Office and the Town Hall. The Court cannot consider hearsay statements on a summary judgment motion and will not rely on Herman's statements in its analysis. To the extent defendants rely on these statements for demonstrating notice or what prompted Paul to take certain actions, these statements are not hearsay and may be considered.
To invoke Rule 56(d) and have the Court permit further discovery before ruling on a motion for summary judgment, the request for more discovery must be made in an affidavit. Burlington Coat Factory Warehouse Corp. v. Esprit de Corp, 769 F.2d 919, 926 (2d Cir. 1985). The failure to file the request in an affidavit is grounds for denying the request. Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994). The request must state: "(1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant's efforts were unsuccessful." Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004). As one court has observed, "neither bare allegations nor mere speculation will suffice to stay a motion for summary judgment. Plaintiff must furnish enough information to convince the court that it is not engaged in a fishing expedition for claims that have no hope of being substantiated." Four Star Capital Corp. v. Nynex Corp., 183 F.R.D. 91, 99 (S.D.N.Y. 1997).
Plaintiff argues he needs additional discovery in two submissions. The first document is plaintiff's Rule 56(d) "declaration." The declaration, however, is unsworn and not made under the penalty of perjury. It therefore does not fall within the safe harbor for declarations under 28 U.S.C. § 1746; see also LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (accepting unsworn declaration made under penalty of perjury as substantially complying with Section 1746); Klein v. Rittenband, 2009 U.S. Dist. LEXIS 107811, at *8 n.4 (E.D.N.Y. Nov. 17, 2009). Plaintiff's declaration in this case is neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury. Therefore, it does not substantially comply with Section 1746. See Worsham, 185 F.3d at 65-66 & n.2; Nissho-Iwai American Corp v. Kline, 845 F.2d 1300, 1305-06 (5th Cir. 1988) (rejecting declaration which was "neither sworn nor its contents stated to be true and correct nor stated under penalty of perjury"). These grounds are sufficient to deny plaintiff's request for further discovery.
Plaintiff will be provided with copies of all unpublished opinions cited in this ruling. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
The second submission in which plaintiff argues for more discovery was his surreply to the motion for summary judgment titled "Preliminary Statement." (Doc. #40.) This memorandum of law is not an affidavit and does not meet the requirements of Rule 56(f). See Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d at 926.
In addition, plaintiff has failed to detail his prior efforts to conduct the depositions he currently wants to conduct or why such efforts failed. Guerra v. Jones, 421 Fed. Appx. 15, 18 (2d Cir. 2011). Plaintiff commenced the earlier of these actions on January 20, 2011. Movants' answer was filed on June 20, 2011, and the instant motion was filed on September 26, 2011. Plaintiff had plenty of time to conduct discovery. The Court will not stay the motion for summary judgment to allow plaintiff to conduct discovery when there is no indication he conducted discovery when he had the chance.
Furthermore, the requests for additional discovery plaintiff sets forth in his declaration are not addressed to the specific areas in which additional discovery would be helpful. For example, plaintiff requests discovery that would uncover potential exculpatory evidence of the crimes with which he was charged. "Actual innocence," however, is not at issue in this case. Given the nature of the claims before it, the Court is not concerned with whether Judge King's issuance of an order of protection was appropriate. Moreover, plaintiff seeks discovery on how defendant Paul investigated the allegations made against him by Herman and how Paul communicated with various law enforcement authorities. Such evidence is not relevant to the claims in this case. It is not clear that plaintiff's requested discovery would yield relevant evidence. See Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 512 (2d Cir. 1989). Plaintiff's request to reserve decision on the pending motion for summary judgment so that he may conduct discovery is therefore denied.
The Court also rejects plaintiff's assertion that he was not able to conduct a deposition of any party because he had only recently learned of space available in the federal courthouse to do so. The inability to find time or space in which to conduct a deposition, absent bad faith by another party, does not excuse plaintiff's failure to conduct discovery sufficient to stay resolution of movants' motion.
D. Malicious Prosecution Claim
Movants first argue plaintiff cannot maintain a Section 1983 claim against the Jonkes because they are not state actors. To sustain a claim for relief under Section 1983, plaintiff must demonstrate that defendants, acting under color of state law, deprived him of a constitutionally or federally protected right. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982); Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). An individual acts under color of state law when he exercises "some right or privilege created by the State . . . or by a person for whom the State is responsible," and is "a person who may fairly be said to be a state actor." Lugar, 457 U.S. at 937; Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008). If the actions at issue were not state action, the Court's inquiry ceases. State action occurs when (1) the deprivation is caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible, and (2) the party charged with the deprivation is a person who may fairly be said to be a state actor. Den Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir. 2010).
A person is not automatically a state actor under Section 1983 simply because he is a government employee. See United States v. Giordano, 442 F.3d 30, 43 (2d Cir. 2006) ("The fact that someone holds an office or otherwise exercises power under state law does not mean, of course, that any wrong that person commits is 'under color of law.'"); Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) ("Mere employment by a state or municipality does not automatically mean that a defendant's actions are taken under the color of state law."). Rather, a government employee is only a state actor for Section 1983 purposes when his actions are taken under "pretense" of law. Screws v. United States, 325 U.S. 91, 111 (1945). Actions taken in an individual's "personal pursuits" are excluded from state actions and do not give rise to liability under Section 1983. Id.; Giordano, 442 F.3d at 43. There is no bright-line test for determining whether an action is taken for personal reasons or under the color of state law. Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994).
An individual acts under color of state law when he exercises "some right or privilege created by the State . . . or by a person for whom the State is responsible," and when the individual is "a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. at 937. Generally, a public employee acts under color of state law when he acts in his official capacity or exercises his responsibilities pursuant to state law. See West v. Atkins, 487 U.S. 42, 50 (1988). A public employee may be liable under Section 1983 when he invokes the real or apparent authority of his position, see Rivera v. La Porte, 896 F.2d 691, 695-96 (2d Cir. 1990), or when an off-duty employee performs actions akin to his on-duty duties. See Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975) (cited by Pitchell v. Callan, 13 F.3d at 548).
Here, it is clear Sandra did not act as state actor. She was not a state employee, and it cannot be said she acted under the pretense of law. Plaintiff may not maintain any Section 1983 claims against her.
As to Paul, although he was a Carmel employee at all relevant times, the actions taken during the events of this case do not involve his official duties. Contacting police to report allegedly harassing behavior and providing statements to the police constitute actions taken in Paul's personal pursuits, not in his role as Town Assessor. The actions which he did take as Town Assessor - namely relating to the assessment of plaintiff's house and subsequent challenges to the assessment - are not the subject of any claims before the Court and merely serve as background to this case. Accordingly, plaintiff's Section 1983 claims against Paul are dismissed.
A claim for malicious prosecution under Section 1983 is analyzed pursuant to New York law. See Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). Under New York law, a plaintiff suing for malicious prosecution must establish: (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause by the officer for commencing the proceeding; and (4) actual malice as a motivation for defendants' actions. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). To "initiate" a prosecution requires defendant to have "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000). The "mere reporting of a crime to police and giving testimony are insufficient." Id. (quoting DeFilippo v. County of Nassau, 583 N.Y.S.2d 283, 284 (2d Dep't 1992)).
The evidence before the Court indicates the actions of Paul and Sandra Jonke did not rise to the level of "initiation" under New York law. They reported crimes and provided testimony; there is no evidence they gave advice or encouragement to the police to act. Therefore, plaintiff has failed to establish the initiation element of his malicious prosecution claim under either federal or state law.
A termination in plaintiff's favor requires either an acquittal or a different disposition indicative of innocence. Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002). The dismissal of a criminal case because an information is legally insufficient is not indicative of innocence and cannot support a claim for malicious prosecution. Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997); MacFawn v. Kresler, 88 N.Y.2d 859, 860 (1996). This is because the dismissal is without prejudice and the prosecution may proceed on an amended information. Murphy, 118 F.3d at 949; MacFawn, 88 N.Y.2d at 860. Because it was on this basis that plaintiff's harassment charge was resolved, plaintiff's malicious prosecution claim cannot be predicated upon it.
The Court recognizes further discovery may uncover additional involvement by Sandra and Paul that is not discussed in their submissions. But because plaintiff is unable to establish the criminal proceedings terminated in his favor, discovery will not be permitted. Any additional evidence concerning the initiation inquiry would not help plaintiff defeat summary judgment.
The contempt charge, on the other hand, was dismissed upon Judge King's determination that plaintiff's actions did not violate the Court's order. Such conclusion is indicative of innocence, and a malicious prosecution claim can rest upon that charge.
Nonetheless, plaintiff cannot assert a claim under Section 1983 against Paul or Sandra Jonke and cannot assert a claim for malicious prosecution based upon the harassment charge. In addition, although plaintiff raises issues upon which he would like discovery, he has failed to object, question, or rebut Sandra's affidavit or her supporting deposition to the state police. On the basis of the affidavit and the supporting deposition, the Court finds there was probable cause to believe plaintiff had violated the order of protection, even if Judge King ultimately dismissed the charge. Therefore, summary judgment is appropriate in favor of Paul and Sandra Jonke.
Further discovery would not affect the Court's conclusion regarding the Jonkes as state actors or the disposition of the harassment charge. See Fed. R. Civ. P. 56(d)(3).
Movants next argue the prosecuting attorneys are entitled to absolute immunity in their role as prosecutors. All prosecutors are afforded absolute immunity under federal law for actions undertaken as part of a prosecution. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). Providing absolute immunity protects prosecutors from harassing litigation that would divert them from their official duties and allows them to exercise their independent judgment in deciding what cases to initiate and pursue. Kalina v. Fletcher, 522 U.S. 118, 125 (1997). This immunity exists regardless of the unreasonableness of the action or the actual malice in deciding to prosecute. Romer v. Morgenthau, 119 F. Supp. 2d 346, 354 (S.D.N.Y. 2000). Prosecutors sued for actions that are administrative or non-official prosecutorial functions, however, do not receive absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
Similarly, New York law provides absolute immunity to individuals acting in a judicial or quasi-judicial capacity. Arteaga v. State, 72 N.Y.2d 212, 216 (1988).
The question depends not so much on the importance of the actor's position or its title as on the scope of the delegated discretion and whether the position entails making decisions of a judicial nature - i.e., decisions requiring the application of governing rules to particular facts, an exercise of reasoned judgment which could typically produce different acceptable results.Id. The exercise of prosecutorial powers are judicial or quasi-judicial in nature under New York law. See Schumer v. Holtzman, 60 N.Y.2d 46, 51 (1983); McGinley v. Hynes, 51 N.Y.2d 116, 124-26 (1980); Norton v. Town of Islip, 2011 U.S. Dist. LEXIS 100900, at *9 (E.D.N.Y. Sept. 1, 2011).
Plaintiff's allegations against Charbonneau, Levy, and Stephens stem from their roles and duties as prosecutoring attorneys. Therefore, these defendants are entitled to absolute immunity from plaintiff's malicious prosecution claim.
The Court does not foresee any discovery which would affect this determination.
Plaintiff's malicious prosecution claim against movants is dismissed in its entirety.
E. Abuse of Process Claim
To state a claim for abuse of process under federal or state law, plaintiff must demonstrate defendant "(1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). "The crux of a malicious abuse of process claim is the collateral objective element." Douglas v. City of New York, 595 F. Supp. 2d 333, 344 (S.D.N.Y. 2009). The query is whether the defendant used the criminal process to achieve a collateral purpose outside the legitimate uses of process. "The collateral objectives typically associated with abuse of criminal process are extortion, blackmail or retribution; and those objectives are usually characterized by personal animus." Richardson v. N.Y. City Health & Hosps. Corp., 2009 U.S. Dist. LEXIS 25247, at *45 (S.D.N.Y. Mar. 25, 2009). Malice alone does not give rise to a cause of action for abuse of process. Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003).
This claim must also be dismissed. As to defendants Charbonneau, Levy, and Stephens, they are entitled to absolute immunity because of their roles as prosecutors. As to Paul and Sandra Jonke, plaintiff cannot maintain a federal abuse of process claim because they are not state actors under Section 1983.
As to abuse of process under state law, plaintiff has failed to (a) proffer any evidence of the Jonkes' improper purposes in participating in the criminal prosecution of plaintiff; or (b) argue how additional testimony would enable plaintiff to present evidence of an improper purpose and why he has not been able to obtain such evidence yet. Even if Paul acted due to a personal animosity toward plaintiff, such motive would be insufficient to demonstrate a claim for abuse of process. See Newton v. City of New York, 566 F. Supp. 2d 256, 280 (S.D.N.Y. 2008) ("Personal animosity is a collateral motive, not a collateral purpose."). The evidence indicates Paul and Sandra used the criminal process to keep plaintiff away from themselves and their family. Such a purpose is a legitimate use of the criminal process.
Plaintiff's federal and state abuse of process claims are dismissed.
F. Conspiracy Claim
Although it is not a separately delineated claim, plaintiff's complaint may be read as asserting a conspiracy claim under 42 U.S.C. § 1985. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (stressing importance of reading pro se submissions liberally). "To prevail on a § 1985(3) claim, a plaintiff must prove that defendants (1) engaged in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons the equal protection of the laws, or the equal privileges and immunities under the laws; (3) acted in furtherance of the conspiracy; and (4) deprived such person or class of persons the exercise of any right or privilege of a citizen of the United States." New York State NOW v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989). Plaintiff, however, has failed to show, or even allege, a discriminatory animus addressed to plaintiff's race or his membership in a protected class. The theory of plaintiff's case is he was targeted because of his role as a whistleblower. Opposition against him on this basis is not grounds for liability under Section 1985(3). See Cahill v. O'Donnell, 7 F. Supp. 2d 341, 347 (S.D.N.Y. 1998) (Parker, J.) (no liability for retaliation against those opposing police corruption); Aulson v. Blanchard, 83 F.3d 1, 4-5 (1st Cir. 1996) (no conspiracy claim based on class of individuals whose conduct disfavored defendants).
In addition, to sustain a Section 1985(3) claim, plaintiff must demonstrate a violation of a constitutional right. See Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). As discussed above, plaintiff has failed to show a constitutional injury. Therefore, summary judgment in favor of movants is granted on plaintiff's conspiracy claim.
G. State Law Claims Against Municipal Defendants
Section 50-i of the New York General Municipal Law provides:
No action or special proceeding shall be prosecuted or maintained against a . . . county [or] town . . . for personal injury . . . alleged to have been sustained by reason of the negligence or wrongful act of such . . . county [or] town . . . or of any officer, agent or employee thereof, . . . unless, (a) a notice of claim shall have been made and served upon the . . . county [or] town . . . in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused, and (c) the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based . . . .N.Y. Gen. Mun. Law. § 50-i(1). Section 50-e(1)(a) provides the notice of claim is a "condition precedent to the commencement of an action" against an employee of a public corporation. N.Y. Gen. Mun. Law § 50-e(1)(a). No action may be commenced unless "at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused." N.Y. Gen. Mun. Law § 50-i(1)(b). The municipal defendant has the "right to demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made . . . ." N.Y. Gen. Mun. Law § 50-h(1). Where a demand for this so-called "50-h hearing" is made, "no action shall be commenced against the . . . county [or] town . . . unless the claimant has duly complied with such demand for examination . . . ." N.Y. Gen. Mun. Law § 50-h(5); see also Ambroziak v. County of Erie, 577 N.Y.S.2d 1020, 1020 (4th Dep't 1991) ("It is well established that a potential plaintiff is precluded from commencing an action against a municipality until there has been compliance with section 50-h(1) of the General Municipal Law."). However, "[i]f such examination is not conducted within ninety days of service of the demand, the claimant may commence the action." N.Y. Gen. Mun. Law § 50-h(5); see also Ambroziak, 577 N.Y.S.2d at 1020 (holding 50-h hearing was not a condition precedent to commencing an action where defendant requested adjournment, no date was set for rescheduled hearing, and plaintiff had never failed to appear for a hearing).
In this case, plaintiff served a notice of claim on January 14, 2011, on behalf of himself and Barbara F. Marino, naming defendants Town of Carmel, Paul as Assessor of the Town of Carmel, and Charbonneau as Special Prosecutor for the Town of Carmel. No other defendants were named in the notice of claim. On January 31, counsel for respondents scheduled a 50-h hearing of Barbara Marino for March 2, 2011. This federal action was commenced January 20. Because plaintiff failed to comply with Sections 50-h and 50-i by not waiting the requisite ninety days, plaintiff's state law claims against the Town of Carmel, Town of Southeast, and Putnam County are barred. See McKune v. City of New York, 799 N.Y.S.2d 25, 27 (1st Dep't 2005). On this basis, plaintiff's claims are dismissed without prejudice so that he may comply with Section 205(a) of the New York Civil Practice Law and Rules.
Plaintiff argues defendants rescheduled the March 2 hearing for March 30 without his consent. This is irrelevant because the commencement of this action was too early, not too late. If permitted under New York law, plaintiff may start over. The instant action, however, is barred.
H. Claims for Prima Facie Tort
Prima facie tort consists of "four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful." Curiano v. Suozzi, 63 N.Y.2d 113, 117 (1984). Movants argue plaintiff has failed to allege special damages reflecting a specific and measurable loss. See Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 (1985). Plaintiff has not alleged or identified any loss he suffered as a result of defendants' conduct.
In addition, plaintiff requests five million dollars in compensatory damages and one million dollars in punitive damages on this claim. A monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages. See TADCO Constr. Corp. v. Dormitory Auth. of N.Y., 700 F. Supp. 2d 253, 274 (E.D.N.Y. 2010). Plaintiff having failed to identify his damages except in general amounts, summary judgment is granted in favor of movants on these claims.
I. Intentional Infliction of Emotional Distress Claims
A claim for intentional infliction of emotional distress under New York law requires plaintiff to plead (1) extreme and outrageous conduct; (2) 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. See Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). "Liability has been found only where the conduct has been 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." Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983). The standard for asserting a claim is "rigorous, and difficult to satisfy." Howell, 81 N.Y.2d at 121. As the New York Court of Appeals recognized in Howell, it had rejected every claim for intentional infliction of emotional distress because the conduct was not sufficiently outrageous or extreme. Those claims upheld by the Appellate Division have been "supported by allegations detailing a longstanding campaign of deliberate, systematic, and malicious harassment of the plaintiff." Seltzer v. Bayer, 709 N.Y.S.2d 21, 23 (1st Dep't 2000). The Court may determine in the first instance whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).
Conduct similar to the allegations at issue here - falsely pursuing the arrest and criminal prosecution of an individual - has been held not to constitute intentional infliction of emotional distress. See Kaye v. Trump, 873 N.Y.S.2d 5, 6 (1st Dep't 2009); Slatkin v. Lancer Litho Packaging Corp., 822 N.Y.S.2d 507, 509 (1st Dep't 2006). Therefore, movants' motion for summary judgment is granted as to these claims.
J. Defamation Claim
Movants also move for summary judgment on plaintiff's defamation claim. Plaintiff did not respond to movants' defamation arguments until his preliminary statement in which he asserted Paul defamed him by making comments to the Journal News newspaper. According to an article in the Journal News published on November 5, 2009, Paul said about plaintiff: "We hope he gets whatever help he needs." Barbara Livingston, Former Carmel councilman arrested in battle with town assessor, Journal News, Nov. 5, 2009. Plaintiff maintains this statement implies he suffers from a mental illness.
A claim for defamation requires plaintiff to demonstrate (1) a defamatory statement of fact; (2) that is false; (3) published to a third party; (4) "of and concerning" the plaintiff; (5) made with the applicable level of fault on the part of the speaker; (6) either causing special harm or constituting slander per se; and (7) not protected by privilege. Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001). A "defamatory" statement is one which "exposes an individual to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or induces an evil opinion of one in the minds of right-thinking persons, and deprives one of confidence and friendly intercourse in society." Celle v. Filipino Reporter Enters., 209 F.3d 163, 177 (2d Cir. 2000). A plaintiff need not plead special harm if he alleges the defamatory statements (1) charge him with a serious crime; (2) tend to injure another in his trade, business or profession; (3) include a claim that plaintiff has a loathsome disease; or (4) impute unchastity to a woman. Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992).
Plaintiff's claim for defamation makes no allegations of a special harm. As such, plaintiff must rely on a theory of defamation per se.
The Restatement recognizes that loathsome diseases include only existing venereal disease and other "loathsome and communicable" disease. Restatement (Second) of Torts § 572. Mental illness does not constitute a "disease" under defamation law. The requirement that the disease be communicable ensures the defamatory comment serves to isolate the person. Restatement (Second) of Torts § 572, cmt. c. Implying an individual is mentally ill does not isolate an individual as the law contemplates. See TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d 577, 603 (S.D.N.Y. 2011). Therefore, the Court grants summary judgment on plaintiff's defamation claim.
Even if mental illness could constitute a "loathsome disease," summary judgment would nonetheless be appropriate. The statute of limitations in New York for defamation is one year from the date of the publication of the statement. N.Y. C.P.L.R. § 215(3). "[U]nder the 'single publication rule', a reading of libelous material by additional individuals after the original publication date does not change the accrual date for a defamation cause of action but, rather, the accrual date remains the time of the original publication." Gelbard v. Bodary, 706 N.Y.S.2d 801, 802 (4th Dep't 2000). An exception to the single publication rule applies when a defamatory statement is "reissued" or "republished," which gives rise to a new limitations period. Gold v. Berkin, 2001 U.S. Dist. LEXIS 1206, at *11 (S.D.N.Y. Feb. 9, 2001). This exception does not apply to statements published online continuously available to the public. Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 89-90 (2d Cir. 2003); Firth v. State, 98 N.Y.2d 365, 370 (2002); Young v. Suffolk County, 705 F. Supp. 2d 183, 212 (E.D.N.Y. 2010) ("[U]nder the single publication rule, the fact that a story remains available online does not restart the statute of limitations."). Plaintiff's defamation claim is therefore barred by the statute of limitations, even though movants have not raised this argument. See 28 U.S.C. § 1915(e)(2) (court may dismiss pro se claim which is frivolous or fails to state a claim upon which relief may be granted).
K. Monell Claims
Because plaintiff has failed to establish a claim for a violation of any federal constitutional right, he cannot maintain a claim under Section 1983 against the Town of Carmel, the Town of Southeast, or Putnam County. His Section 1983 claims against these municipal entities are therefore dismissed.
CONCLUSION
Plaintiff's motions to strike defendant Sandra Jonke's answer are DENIED. In addition, movants' motions for summary judgment are GRANTED.
In granting movants' motions, case number 11 CV 4425 is resolved. The Clerk is instructed to close it.
In case number 11 CV 430, defendants Cheslo and Martin filed answers and did not join in the motion for summary judgment. The case continues as to them. Plaintiff and counsel for defendants Cheslo and Martin are instructed to attend an in-person case management conference on April 12, 2012, at 12:00 p.m. in Courtroom 620.
The Clerk is instructed to terminate the pending motions (Case No. 11 CV 430, Docs. #22, 23; Case No. 11 CV 4425, Docs. #7, 8) and terminate defendants Paul Jonke, Sandra Jonke, Joseph A. Charbonneau, Willis H. Stephens, Jr., Adam B. Levy, Town of Carmel, Town of Southeast, and County of Putnam as defendants in case number 11 CV 430. Dated: March 30, 2012
White Plains, New York
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge