of occupancy, the Town issued it immediately thereafter. Accordingly, the Court dismisses this claim.
F. False Arrest
Plaintiff Frooks claims that he was falsely arrested when Town employees issued him an appearance ticket for allegedly violating the April 4, 1990 stop work order. This claim must be dismissed, because it is barred by the statute of limitations.
A section 1983 claim for false arrest has a limitations period of three years. See Eagleston v. Guido, 41 F.3d 865, 870 (2d Cir. 1994); Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994); Covington v. City of New York, 1997 U.S. Dist. LEXIS 9241, No. 94 Civ. 4234, 1997 WL 370628, at *2 (S.D.N.Y. July 1, 1997). Frooks alleges that he was falsely arrested on May 18, 1990, when he was issued an appearance ticket based on "materially false reports." Frooks did not bring the instant action until October 25, 1993, more than three years after this claim arose. Therefore, his claim for false arrest is barred by the statute of limitations and is dismissed.
G. Abuse of Process
Plaintiffs also bring an abuse of process claim in connection with the issuance of the appearance ticket. Like Frooks' false arrest claim, his claim for abuse of process is barred by the statute of limitations. See Ferran v. Town of Grafton, 979 F. Supp. 944, 947 (N.D.N.Y. 1997) (statute of limitations for abuse of process is three years); Duamutef v. Morris, 956 F. Supp. 1112, 1118-9 (S.D.N.Y. 1997) (same); Heinfling v. Colapinto, 946 F. Supp. 260, 265 (S.D.N.Y. 1996) (one year). Frooks was issued the appearance ticket in April, 1990, and the charges were dismissed in July, 1990. However, Frooks did not bring this claim until October, 1993, more than three years later. Accordingly, this claim must be dismissed.
H. Malicious Prosecution
Additionally, plaintiffs bring a malicious prosecution claim in connection with the appearance ticket. Plaintiff Frooks claims that he was maliciously prosecuted by the defendants when they issued him a ticket and dropped the charges without prejudice several months later. Because this claim is also barred by the statute of limitations, it is also dismissed.
The statute of limitations for malicious prosecution is three years. See Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995), cert. denied, U.S. , 118 S. Ct. 1051, 140 L. Ed. 2d 114, 1998 U.S. LEXIS 967, 1998 WL 69931 (1998); Crespo v. New York City Police Commissioner, 930 F. Supp. 109, 117 (S.D.N.Y. 1996). A malicious prosecution claim accrues when the prosecution is terminated. Murphy, 53 F.3d at 548. Since the Town dismissed the charges against Frooks in July, 1990, and the Complaint was not filed until October, 1993, any claim for malicious prosecution is time barred and must therefore be dismissed.
Plaintiffs bring a claim for defamation against defendant Vincent Nyberg, former Director of Code Enforcement, now deceased, based on statements that Nyberg allegedly made concerning Frooks in April and November, 1990. According to the Complaint, in early April, 1990, Nyberg told Frooks' tenants that Frooks "doesn't care about [his tenants]" and that he "took the last tenant for a ride." Cplt. at P 105. Furthermore, the Complaint alleges that on November 5, 1990, Nyberg referred to Frooks as "a prick," "a real shrewdy," and "a smart ass." Id. at P 105. Plaintiff Frooks claims damage to his reputation based on these statements.
The Court dismisses plaintiffs' defamation claim, because it is not actionable under section 1983. "Defamation by itself, is a tort actionable under the laws of most states, but not as a constitutional deprivation." Siegert v. Gilley, 500 U.S. 226, 233, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991). For a defamation claim to be actionable under section 1983, the plaintiff's liberty interest must be implicated. See Paul v. Davis, 424 U.S. 693, 708-09, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). Therefore, where a plaintiff claims injury solely to his reputation, there can be no liability under section 1983. See id. See also Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994) (the "deleterious effects which flow directly from a sullied reputation," such as "the impact . . . on job prospects . . ., romantic aspirations, friendships, self-esteem" are insufficient to state a claim under section 1983).
Because plaintiffs have only alleged damage to Frooks' reputation, their allegations are insufficient as a matter of law. Accordingly, their defamation claim is dismissed.
J. Qualified Immunity Defense
The Court need not reach the merits of defendants' qualified immunity defense with respect to plaintiffs' section 1983 claims, because they fail to state a claim under that provision. See Siegert, 500 U.S. at 233 (no need to consider immunity defense where plaintiff failed to establish constitutional violation, stating that "this [is] the desirable . . . approach"). See also Martinez v. California, 444 U.S. 277, 284, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980) (Because appellants failed to show deprivation of rights under section 1983, "it is not necessary . . . to decide . . . question [of] immunity").
III. Section 1985 Claim
Plaintiffs bring a claim under section 1985, alleging that the Town employees conspired to violate their constitutional rights. Section 1985 provides a cause of action to redress, inter alia, injury resulting from a conspiracy to deprive "any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3).
The Court dismisses this claim for two reasons. First, to state a claim under section 1985, a plaintiff must allege a conspiracy among a plurality of actors, because "the defining element of a conspiracy -- a plurality of actors committed to a common goal -- is not satisfied by joint action . . . . of a single entity." See Tavoloni v. Mt. Sinai Med. Ctr., 984 F. Supp. 196, 205 (S.D.N.Y. 1997). Thus, as a matter of law, plaintiffs do not state a claim for "conspiracy" under section 1985, because they merely allege that a single entity -- the Town -- conspired with its employees to violate their constitutional rights. Accord Huntemann v. City of Yonkers, 1997 U.S. Dist. LEXIS 12714, No. 95 Civ. 1276, 1997 WL 527880, at *14 (S.D.N.Y. Aug. 25, 1997) (dismissing claim against municipality and municipal employees, because plaintiff did not "plead participation by third parties"). For this reason alone, plaintiffs' section 1985 claim must be dismissed.
Second, plaintiffs do not claim that the conspiracy was the result of "some racial, or . . . otherwise . . . invidious discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). To state a claim under section 1985(3), a plaintiff must allege an "insidious discriminatory motive." Gagliardi, 18 F.3d at 194 (citing Griffin, 403 U.S. 88 at 102). Here, plaintiffs state that they were discriminated against because they belonged to a class of "developers" or "commercial landowners." This will not suffice. For this reason as well, plaintiffs' section 1985 claim must be dismissed.
Because plaintiffs do not state a claim for conspiracy under section 1985, we hold that the Town employees are protected by qualified immunity, and therefore dismiss this claim as to them. See Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997) (determining that qualified immunity shielded defendants, upon concluding that plaintiffs' failed to state claim under section 1985(3)). See also Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 556 & n.30 (holding that defendant had qualified immunity under section 1985(3) claim where underlying claim failed as a matter of law).
IV. Section 1986 Claim
A viable section 1985 claim is a necessary prerequisite to maintaining a claim under 42 U.S.C. § 1986. See Gagliardi, 18 F.3d at 194; Dwares v. City of New York, 985 F.2d 94, 101 (2d Cir. 1993). Because plaintiffs' do not state a claim under section 1985, we dismiss plaintiffs' section 1986 claim.
V. Section 1961 Claim
A. Municipal and Official Liability
Plaintiffs also seek to hold the Town defendants liable for conspiracy under RICO. As a preliminary matter, we note that every court in this Circuit that has considered the issue has held that a municipality cannot form the requisite criminal intent to establish a predicate act, and has therefore dismissed the claim against the municipality. See Lazzarino v. Kenton Assoc., Ltd., 1997 U.S. Dist. LEXIS 5699, No. 96 Civ. 7842, 1997 WL 214938, at *2 (S.D.N.Y. April 29, 1997); Rini v. Zwirn, 886 F. Supp. 270, 294-95 (E.D.N.Y. 1995); Nu-Life Construction Corp. v. Bd. of Educ. of the City of New York, 779 F. Supp. 248, 251 (E.D.N.Y. 1991); O & K Trojan, Inc. v. Municipal & Contractors Equip. Corp., 751 F. Supp. 431, 434 (S.D.N.Y. 1990); Jade Aircraft Sales, Inc. v. City of Bridgeport, 1990 U.S. Dist. LEXIS 11576, No. Civ. B-83-454, 1990 WL 128573, at *1 (D. Conn. July 9, 1990); In re Citisource Sec. Lit., 694 F. Supp. 1069, 1079-80 (S.D.N.Y. 1988); Cullen v. Margiotta, 1987 U.S. Dist. LEXIS 15298, No. 76 Civ. 2247, slip. op. at 11 (E.D.N.Y. Aug. 31, 1987) (Mishler, J.). See also North Star Contracting v. Long Island R.R., 723 F. Supp. 902, 908 (E.D.N.Y. 1989) (same, with respect to public benefit corporation). Courts of Appeal in other circuits have come to the same conclusion.
See Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir. 1996) (rejecting as a matter of law RICO claim against defendant city), cert. denied, U.S. , 117 S. Ct. 2441, 138 L. Ed. 2d 201 (1997); Lancaster Community Hosp. v. Antelope Valley Hosp., 940 F.2d 397, 404 (2d Cir. 1991) (same, with respect to public hospital). Cf. Genty v. Resolution Trust Corp., 937 F.2d 899, 908-14 (3d Cir. 1991) (dismissing RICO claim against municipality, reasoning that treble damages mandated by 18 U.S.C. § 164(c) are punitive, and therefore cannot be imposed upon municipalities, which have been historically immune from exemplary damages). See also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261-62, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981) (suggesting that municipalities are incapable of committing malicious or criminal acts). So do we. While a municipality is undoubtedly a "person" within the meaning of 18 U.S.C. § 1961(3), it is incapable of forming the requisite criminal intent for RICO liability. Accordingly, the RICO claim against the Town is dismissed.
Moreover, because the Town cannot be held liable under RICO as a matter of law, neither may the Town employees in their official capacities. E.g., Rini, 886 F. Supp. at 295. Accordingly, we dismiss the RICO claim against the Town employees in their official capacities.
B. Individual Liability
Furthermore, the Court concludes that the Town employees cannot be held liable in their individual capacities under RICO, because plaintiffs have failed to state a claim against them. To state a claim under section 1962, a plaintiff must show (1) that the defendant, (2) through the commission of two or more acts, (3) constituting a pattern, (4) of racketeering activity, (5) directly or indirectly participates in, (6) an enterprise, (7) the activities of which affect interstate or foreign commerce. Moss v. Morgan Stanley, 719 F.2d 5, 17 (2d Cir. 1983).
Plaintiffs attempt to show that defendants have engaged in mail fraud, in violation of 18 U.S.C. § 1341, wire fraud, in violation of 18 U.S.C. § 1343, and extortionist threats, in violation of 18 U.S.C. § 1951. For the following reasons, plaintiffs have failed to state a predicate act under section 1962, and thus their claims against defendants in their individual capacities must be dismissed.
1. Mail and Wire Fraud
Plaintiffs do not state a claim for mail or wire fraud, because they have not pled a predicate act with specificity. Fed. R. Civ. P. 9(b) requires that a plaintiff state "with particularity" "the circumstances constituting fraud or mistake" "in all averments of fraud or mistake." In a mail or wire fraud case, a plaintiff must plead the "time, place, speaker and content of the alleged fraudulent misrepresentations," and specify the manner in which the communications were fraudulent or contributed to a fraudulent scheme. Browning Avenue Realty Corp. v. Rosenshein, 774 F. Supp. 129, 137 (S.D.N.Y. 1991) (citing Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986)). "Conclusory allegations that . . . conduct was fraudulent or deceptive are insufficient to satisfy [Rule] 9(b)." Id. The facts alleged "must support an inference of fraudulent intent." Id. (citing Stern v. Leucadia Nat'l Corp., 844 F.2d 997, 1003 (2d Cir. 1988)). See also Segal v. Gordon, 467 F.2d 602, 608 (2d Cir. 1972) ("the mere assertion that wrongful statements were made, without more, is wholly insufficient to support a claim of fraud").
While plaintiffs allege that the Town employees have made numerous false communications, the Complaint does not allege that any particular communication was made with fraudulent intent. Moreover, plaintiffs fail to set forth the manner in which the communications were fraudulent or furthered a fraudulent scheme. See, e.g., Cplt. PP 208, 214, 218, 227, 234. Clearly, such allegations are insufficient to state a claim for mail or wire fraud. See 28 U.S.C. § 1341; Colony at Holbrook, Inc. v. Strata G.C., Inc., 928 F. Supp. 1224, 1231-32 (S.D.N.Y. 1996); Morin v. Trupin, 711 F. Supp. 97, 105 (S.D.N.Y. 1989).
Extortion is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951. To state a claim for extortion under section 1951, a plaintiff must show that an official accepted money or property in exchange for a specific exercise of official power. Evans v. United States, 504 U.S. 255, 258, 119 L. Ed. 2d 57, 112 S. Ct. 1881 (1992).
Here, it is unclear from the Complaint which defendants have allegedly committed extortion or by what means. Plaintiffs' extortion claim must therefore be dismissed. Cf. De Falco v. Dirie, 923 F. Supp. 473, 479 (S.D.N.Y. 1996) (declining to dismiss RICO claim on 12(b)(6) motion where plaintiffs alleged that defendants had extorted "firewood, timber, gravel and sand worth hundreds of thousands of dollars," and one third of their company's stock, and denied or delayed building permits and certificates of occupancy when plaintiffs failed to comply).
Because plaintiffs have failed to state a predicate act under RICO, we dismiss their claim against the Town employees in their individual capacities.
VI. State Law Claims
Having dismissed the federal claims against each of the defendants, the Court declines to exercise jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367; Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994); Town of West Hartford v. Operation Rescue, 915 F.2d 92, 104 (2d Cir. 1990). Accordingly, these claims are dismissed.
For the reasons stated above, defendants' motion for summary judgment is granted and plaintiffs' motion for partial summary judgment is denied. The Clerk of the Court is directed to enter judgment in favor of defendants.
Dated: White Plains, New York
March 11, 1998
William C. Conner
Senior United States District Judge