The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
This action was brought by Dyck Livant ("Livant" or
"Plaintiff") against Gregory M. Clifton ("Clifton") individually
and in his capacity as an investigator for the Town of Islip, Town of Islip ("Town"), Islip
Town Supervisor Pete McGowan ("McGowan"), Town Board of Islip
("Town Board"), Islip Town Board Members Brian Ferruggairi
("Ferruggairi"), Pamela Green ("Green"), Christopher Bodkin
("Bodkin") and William Rowley ("Rowley), Suffolk County, John and
Jane Does 1-10 of the Town ("Town John and Jane Does") and County
of Suffolk, and Any Other Unknown Agents of the Town ("Town
Agents") and County of Suffolk, alleging violations of
42 U.S.C. § 1983 and State law claims for trespass, conversion and
Before the Court is one motion:
1. Defendants Town, Town Board, McGowan, Ferruggairi,
Green, Bodkin, Rowley, Clifton, Town John and Jane
Does, and Town Agents (collectively "Town
Defendants") move pursuant to Fed.R. Civ. P. 12(c)
to dismiss Plaintiff's second amended complaint.
For the following reasons, the Town Defendants' motion is
GRANTED as to the federal claims, and the Court DECLINES to
exercise jurisdiction over the State law claims, DISMISSING
same without prejudice.
On January 5, 2001, certain of the Town Defendants conducted a search of Plaintiff's home pursuant to a valid warrant in order
to substantiate claims that Plaintiff was violating the Town Code
by illegally using his one-family home as a three-family home and
keeping debris and unregistered vehicles on his property. (Ans.
to 2nd Amend. Compl., Exhs. A-C; Amend. Compl. at ¶
29).*fn1 That same day, criminal charges were filed against
Plaintiff for the aforementioned violations. (Ans. to 2nd
Amend. Compl., Exh. B; Amend. Compl. at ¶ 34).
After the lawful search of Plaintiff's property and pursuant to
the dictates of the Town's nuisance abatement law, the Board held
a hearing on March 6, 2001, and passed a resolution requiring
Plaintiff to clean up his lawn and remove the debris in question.
(2nd Amend. Compl. at ¶ 29). Notice of the resolution was
sent to Plaintiff via registered mail but was returned unclaimed.
(2nd Amend. Compl. at ¶ 36). Apparently, Plaintiff was in
Mexico visiting friends and "seeking medical treatment." (2nd
Amend. Compl. at ¶ 35). On various dates in March and April of 2001, certain of the
Town Defendants, acting pursuant to the resolution, entered
Plaintiff's property and removed the debris. (2nd Amend.
Compl. at ¶¶ 30-1). Plaintiff claims that the debris was not, in
fact, debris, but "ten Bogward Isabella classic cars" and a
trailer "full of antique furniture." (2nd Amend. Compl. at ¶
65) Further, Plaintiff alleges that while removing his antiques,
certain of the Town Defendants carelessly destroyed Plaintiff's
fence, broke flower pots, took tools and created large ditches on
his lawn. (2nd Amend. Compl. at ¶ 42)
Plaintiff filed the instant action on July 2, 2002 and amended
his complaint on July 29, 2002. On, December 5, 2003, the Town
Defendants moved pursuant to Fed.R. Civ. P. 12(c) to dismiss the
action, and Plaintiff cross-moved to amend his complaint as to
the State law claims, for a second time. This Court heard oral
argument and denied the Town Defendants' motion without prejudice
to renew, and granted Plaintiff's motion for a second amendment.
Plaintiff subsequently filed a second amended complaint on
January 5, 2004, alleging violations pursuant to 42 U.S.C. § 1983
of the Fourth and Fourteenth Amendments for unlawful search and
seizure and the Fifth and Fourteenth Amendments for lack of due
process and uncompensated takings of his property. In addition, Plaintiff alleged State law claims of conversion, trespass and
A. Rule 12(c) Standard of Review
In deciding a Fed.R. Civ. P. 12(c) motion, a Court
must "accept all
allegations contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant." Sheppard v.
Beerman, 18 F.3d 147
, 150 (2d Cir. 1994). The Plaintiff's
complaint must not be dismissed unless "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Ad-Hoc Comm. of Baruch
Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College,
835 F.2d 980
, 982 (2d Cir. 1987) (quoting Conley v. Gibson,
355 U.S. 41
, 45-46 (1957)).
Qualified immunity is a three step analysis. Wilson v. Layne,
526 U.S. 603, 609 (1999). First, the Court "must determine
whether plaintiff has alleged a violation of a constitutional
right. Then, [the Court] consider[s] if the violated right was
clearly established at the time of the conduct. Finally, if
plaintiff had a clearly established, constitutionally protected
right that was violated . . . [plaintiff] must demonstrate that
defendants' actions were ...