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LIVANT v. CLIFTON

DYCK LIVANT, Plaintiff,
v.
GREGORY M. CLIFTON, individually and in his capacity as an investigator for the Town of Islip, THE TOWN OF ISLIP, ISLIP TOWN SUPERVISOR PETE McGOWAN, individually and in his capacity as Islip Town Supervisor, THE TOWN BOARD OF ISLIP, ISLIP TOWN BOARD MEMBER BRIAN FERRUGGAIRI, ISLIP TOWN BOARD MEMBER PAMELA GREEN, ISLIP TOWN BOARD MEMBER CHRISTOPHER BODKIN, ISLIP TOWN BOARD MEMBER WILLIAM ROWLEY each individually and in their capacities as Islip Town Board Members, JOHN DOES 1-10, JANE DOES 1-10, said names being fictitious and intended to represent employees, contractors, agents, and/or assignees of the Town of Islip and Suffolk County, ANY OTHER UNKNOWN AGENTS, assignees and/or employees of the Town of Islip and Suffolk County, and SUFFOLK COUNTY, Defendant(s).



The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge

MEMORANDUM AND ORDER

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 negligence.

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.

  BACKGROUND

  A. Factual History

  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)

  B. Procedural History

  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 negligence.

  DISCUSSION

  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)).

  B. Qualified Immunity

  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 ...


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