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Matthes v. Town of East Fishkill

March 3, 1986

WILLIAM L. MATTHES, D/B/A THE LOOKOUT, PLAINTIFF-APPELLANT,
v.
THE TOWN OF EAST FISHKILL, FRANCOIS CROSS, DOUGLAS G. NESTLER, LAWRENCE FOGARTY, DANIEL ANDRIANO, AND WILLIAM SUTTER, DEFENDANTS-APPELLEES.



Plaintiff appeals pro se from a judgment of the United States District Court for the Southern District of New York (Knapp, J.) dismissing his civil rights complaint. Affirmed.

Before:

FEINBERG, Chief Judge, VAN GRAAFEILAND, and PRATT, Circuit Judges.

Per Curiam:

William L. Matthes, the editor and publisher of The Lookout, a newspaper published in the East Fishkill, New York, area, was arrested for trespassing after he refused to leave a closed meeting of the East Fishkill Town Planning Board. Contending that he had an absolute right to be present at the meeting and alleging a lack of probable cause in connection with his arrest, Matthes brought this civil rights action against, inter alia, the twon and the members of its planning board, seeking damages "generally of $250,000". Because we agree with the court below that Matthes failed to show that the defendants acted improperly in holding the closed meeting, we affirm the dismissal of the complaint.

BACKGROUND

At a regularly scheduled and duly noticed public meeting of the East Fishkill Town Planning Board held on August 15, 1978, the board voted to hold a closed "executive session" during its next meeting in order to discuss pending litigation. At the board's next meeting, on September 13, 1978, after conducting a regular business in open session, the board asked the public to leave so that it could hold the anticipated executive session.

Contending that the closed session would violate New York's Opening Meetings Law, see N.Y. Pub. Off. Law ยง 100 et seq. (McKinney 1986), Matthes refused to leave. After obtaining the advice of counsel as to the legality of meeting in private, the board again requested Matthes to leave. Matthes not only refused to leave the room, but even followed the board when it moved first to one and then to another alternate location. Finally, the board enlisted the aid of the local police who arrested Matthes and ultimately charged him with trespassing.

In December 1979 Matthes commenced this civil rights action alleging that his arrest was without probable cause and therefore deprived him of a constitutional right. Named as defendants were the Town of East Fishkill, its Planning Board chairman, Douglas Nestler, East Fishkill Town Attorney Francois Cross, Town Justice Lawrence Fogarty, and the two arresting officers, Daniel Andriano and William Sutter -- all of whom were present at the time of Matthes's arrest.

In addition, Matthes named as defendants Richard Wager and Edward Cunningham. Wager, the publisher of the Poughkeepsie Journal, arranged for his newspaper to pay the cost of representing Matthes in connection with the trespass charge. Cunningham, a member of the law firm of Van DeWater & Van De Water, counsel to Wager's newspaper, was engaged for that purpose and represented Matthes in his pretrial proceedings on the trespass charge. When Matthes told Wager that a trial of the trespass charge would be necessary, Wager informed Matthes that his paper would not bear the cost of such extensive representation. Shortly thereafter, Matthes discharged Cunningham as his attorney and engaged alternative counsel to represent him in connection with the trespass charge.

On January 15, 1980, both Wager and Cunningham moved, pursuant to F.R.C.P. 12(b)(6) to dismiss the complaint as it related to them. With respect to Wager, the motion was granted with prejudice. The motion was also granted with respect to Cunningham, but with leave to replead facts showing that Cunningham's actions (1) prejudiced Matthes and (2) constituted state action. Instead of taking the opportunity to replead, and after the district court denied reconsideration of its earlier dismissal to both Wager and Cunningham, Matthes appealed to this court on April 8, 1980, but the appeal was dismissed for lack of jurisdiction.

At a trial on the merits the district court dismissed the complaint as to all remaining defendants after Matthes put in his proof. Matthes filed a notice of appeal on April 19, 1985, from that dismissl, and later filed an amended notice of appeal from the earlier order dismissing the complaint as to Wager and Cunningham.

Discussion

A. Wager and Cunningham.

We affirm the dismissal as to Wager and Cunningham. Wager's only action with respect to Matthes was in his capacity as publisher of the Poughkeepsie Journal when he secured counsel to represent Matthes in connection with the trespass charge. Wager was under no obligation to provide counsel and there was no facts alleged to indicate that Wager had deprived Matthes of any constitutional right. For similar reasons we affirm the dismissal as to defendant Cunningham. Cunningham's only contact with Matthes occurred when Cunningham's represented Matthes on the trespass charge. Although the district court generously gave Matthes the opportunity to replead to allege a factual basis for his charges of constitutional violations, Matthes never took advantage of that opportunity. As with Wager, Matthes has failed to allege any factual basis for his allegation that Cunningham deprived him of a constitutional right. Moreover, neither Wager nor Cunningham ...


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