United States District Court, S.D. New York
December 15, 2005.
BARBARA BALABER-STRAUSS, as Trustee of The Estate of Loronda Murphy, LORONDA MURPHY, Individually, and VINCENT MURPHY, Plaintiffs,
THE TOWN/VILLAGE OF HARRISON, FRANK ALLEGRETTI, in his official and individual capacities, STEPHEN MALFITANO, in his official and individual capacities, and "JOHN DOE" and "RICHARD ROE," two unknown Detectives employed by the Town of Harrison Police Department, Defendants.
The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
OPINION AND ORDER
Plaintiffs Loronda Murphy, Vincent Murphy, her husband, and
Barbara Balaber-Strauss, trustee of the bankrupt estate of Mrs.
Murphy, bring this action pursuant to 42 U.S.C. § 1983 against
(1) the Town/Village of Harrison (the "Town"); (2) Frank
Allegretti, the Town attorney; (3) Stephen Malfitano, the Town
mayor; and (4) John Doe and Richard Roe, unidentified Town
detectives (collectively, "defendants"). Plaintiffs claim
defendants abused their respective governmental powers to
retaliate against plaintiffs and chill plaintiffs' First
Amendment rights by making defamatory comments about the Murphys
at a public meeting during which the Town's foreclosure of the
Murphy's home was discussed. Plaintiffs also allege violations of
their Fifth and Fourteenth Amendment rights, as well as a state
law claim for defamation.
Defendants now move to dismiss the Second Amended Complaint
(the "Complaint") pursuant to FED. R. CIV. P. 12(b)(6) for
failure to state a claim upon which relief can be granted. This
Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
For the reasons set forth herein, the motion to dismiss is
granted as to all the federal claims asserted in the Complaint.
As this Court declines to exercise supplemental jurisdiction over
the remaining state law defamation claim, that cause of action is
dismissed without prejudice.
The following statement of facts, which, for the purposes of
this motion, we assume to be true, is based on plaintiffs'
Complaint and the exhibits incorporated therein by reference.
Mrs. Murphy purchased a residential home located at 1596 Old
Orchard Street in the Town (the "Property") for $545,000 and took
title to the Property by deed dated June 29, 2000. (Complt. ¶
11.) By December 16, 2002, Mrs. Murphy had not paid real property
taxes on the Property, accruing an arrearage of $28,673.28.
(Id. ¶ 12.) As a result, the Town commenced an in rem tax
foreclosure proceeding in New York State Supreme Court for the
County of Westchester against the Property and nineteen other
properties also delinquent in the payment of real property taxes.
(Id. ¶ 13.)
The Town set a redemption date of May 9, 2003 (id. ¶ 13) and
allegedly served Mrs. Murphy and her mortgagor, Washington Mutual
Bank, F.A., with notice of the proceeding via ordinary mail.
(Id. ¶ 14.) After the redemption date passed with no payment
having been made, the Town moved for entry of a default judgment
against Mrs. Murphy's property. (Id. ¶ 16.) At that point, Mrs.
Murphy filed her opposition to the motion, claiming no notice was
given. (Id. ¶ 17.) The New York Sate Supreme Court nevertheless
granted the Town's motion for default judgment, awarding legal
title to the Property to the Town. (Id. ¶ 18.) By deed dated
September 26, 2003, the Town's Receiver of Taxes officially
conveyed title to the Town. (Id. ¶ 19.)
Through an agreement with the Town, the Murphys and their two
children continued living on the Property while negotiations
toward a resolution of the debt proceeded. (Id. ¶¶ 20, 22.)
During this period, Mrs. Murphy, with the assistance of an
organization called Concerned Harrison Homeowners ("CHH"), mailed
letters to Town residents explaining her situation and urging the
residents to contact the Town to voice their opposition. (Id. ¶
39 & Ex. A.) The campaign proved effective, garnering support for
the Murphy's cause and leading residents to contact Town
officials to express their disapproval of the Town's actions.
(Id. ¶ 40 & Ex. B.)
On or about February 26, 2004, negotiations broke down. (Id.
¶ 23.) The Town held a scheduled public meeting that evening, at
which the CHH campaign was addressed. (Id. ¶¶ 41-42.) At the
beginning of the public comment and participation portion of the
meeting, during which time Mrs. Murphy was registered to speak,*fn1 Malfitano stated:
Over the past several days, as most of you are aware,
there was a mailing that was sent to the residents of
Harrison by an organization that is referred to in
the mailing as "Concerned Harrison Homeowners." The
purpose of the mailing was to call attention to the
Town of Harrison's foreclosure on (the Subject
Property). I want all of you to know who are here
this evening and who are listening that the mailing
does contain false and misleading information.
(Id. ¶ 42.) Malfitano then turned the meeting over to
Allegretti, who commented:
As the town attorney for the Town of Harrison, I feel
I have an obligation to set the record straight on
the misinformation that is being distributed to the
public in connection with a certain tax foreclosure
proceeding that I had brought on behalf of the Town
of Harrison against certain properties within the
town, one of them including property located at 1596
Old Orchard Street in Harrison whose title owner is
Loronda Murphy. Ms. Murphy purchased this property
following a mortgage foreclosure sale in June of
2000, for what appears to be the price of
$200,000.00. Mrs. Murphy was able to take cash from
the closing for herself as she obtained a mortgage in
the amount of $485,000.00.
. . .
It has also come to the attention of the Town that
Mrs. Murphy and her husband claimed tax deductions on
their personal tax returns submitted to both the IRS
and the New York State Commission for the years 2001
and 2002, years in which they paid absolutely no
taxes to the Town.
(Id. ¶¶ 55, 57.) The meeting was broadcast on local cable
television three times each day for two weeks, and the statements
were published in the March 5, 2004 edition of the Harrison
Report, a local Town newspaper.*fn2
(Id. ¶¶ 57, 64.)
Plaintiffs deny the truth of these assertions. On March 1, 2004, Mrs. Murphy filed a voluntary petition
seeking relief under Chapter 13 later converted to Chapter 7
of the Bankruptcy Code with the United States Bankruptcy Court
for the Southern District of New York ("Bankruptcy Court").
(Id. ¶ 24.) Balaber-Strauss was appointed trustee of the
bankruptcy estate at that time. (Id. ¶ 25.)
Three days later, Allegretti and several Town police officers
came to the Property. (Id. ¶ 27.) The parties agree that Mr.
Murphy informed Allegretti that any action by the Town would be
in violation of 11 U.S.C. § 362, the automatic stay of
enforcement proceeding provision of the Bankruptcy Code.*fn3
(Id. ¶ 28.) Plaintiffs allege Allegretti responded that the
"`Federal Bankruptcy Court means nothing to Harrison' and that
the automatic bankruptcy stay did not apply." (Id. ¶ 29.) At
some point during this meeting, an unidentified attorney
representing Mrs. Murphy reached an agreement with Allegretti
whereby Allegretti and the Town's building inspector would
inspect the Property and then leave the premises. (Id. ¶ 30.)
According to the Complaint, Allegretti left the premises after
the inspection but returned some hours later with a "phalanx" of
Town police officers and "forcibly evicted" the Murphys from the
Property. (Id. ¶¶ 31-32.)
On or about April 23, 2004, plaintiffs allege detectives Doe
and Roe appeared at Mr. Murphy's mortgage business looking for
Mrs. Murphy, who worked for her husband, in order to question her
in connection with a criminal investigation relating to the
Property. (Id. ¶ 71; Pls. Mem. Opp. Mot. Dismiss at 8-9.)
According to the Complaint, the detectives read Mr. Murphy his
Miranda rights and proceeded to interrogate him about doors and
windows missing from the Property. (Complt. ¶ 72.) The detectives
left without arresting Mr. Murphy, and no criminal charges were filed against him or his wife. (Id. ¶ 73.)
On May 4, 2004, Balaber-Strauss commenced an action in
Bankruptcy Court against the Town seeking to set aside the
conveyance of the Property. Plaintiffs filed the instant action
on February 7, 2005.
I. Standard of Review
On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6),
the issue is "whether the claimant is entitled to offer evidence
to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds by Davis v. Scherer,
468 U.S. 183 (1984). A court's task in determining the sufficiency of
a complaint is "necessarily a limited one." Id. A complaint
should not be dismissed for failure to state a claim "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."
Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996)
(quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). Generally,
"[c]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE §
12.34[b] (3d ed. 1997); see also Hirsch v. Arthur Andersen &
Co., 72 F.3d 1085, 1088 (2d Cir. 1995).
"In assessing the legal sufficiency of a claim, the Court may
consider those facts alleged in the complaint, documents attached
as an exhibit thereto or incorporated by reference . . . and
documents that are `integral' to plaintiff's claims, even if not
explicitly incorporated by reference." John v. N.Y.C. Dep't of
Corrs., 183 F. Supp. 2d 619, 627 (S.D.N.Y. 2002) (Conner, J.)
(internal citations omitted). On a motion to dismiss pursuant to Rule
12(b)(6), a court must accept as true all of the well-pleaded
facts and consider those facts in the light most favorable to the
plaintiff. See Hertz Corp. v. City of New York, 1 F.3d 121, 125
(2d Cir. 1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578,
583 (S.D.N.Y. 1993) (Conner, J.).
II. First Amendment Violation
To establish a First Amendment retaliation claim, a plaintiff
must prove that: (1) she has an interest protected by the First
Amendment; (2) defendants' actions were motivated or
substantially caused by her exercise of that right; and (3)
defendants' actions effectively chilled the exercise of
plaintiff's First Amendment right. See Estate of Morris v.
Dapolito, 297 F. Supp. 2d 680, 692 (S.D.N.Y. 2004) (Conner, J.);
see also Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.
Plaintiffs claim defendants retaliated against them because
Mrs. Murphy exercised her First Amendment right in speaking at
the public Town meeting. Nevertheless, plaintiffs also claim
their First Amendment rights were chilled.*fn4 Specifically,
plaintiffs allege that: (1) Allegretti, with the knowledge and
approval of Malfitano, "falsely vilified and defamed" the Murphys
(Complt. ¶ 43); (2) Allegretti's "disparaging and defamatory
statements" were aimed at publicly discrediting plaintiffs by
"placing them in a bad light . . ., alienating the public support
[they] previously received, and chilling . . . their exercise of,
and depriving [them] of their constitutional rights to publicly
redress their grievances and garner further public support,"
which resulted in a change of public opinion (id. ¶¶ 46, 47);
(3) Allegretti's "disparaging and defamatory statements" were
made to discourage Mrs. Murphy from speaking at the public meeting and to
harm her "ability to be taken seriously by citizens she was
attempting to reach and influence" (id. ¶ 51); (4) the
detectives' actions were "intended to deter and hinder"
plaintiffs pursuit of and cooperation in the Bankruptcy
proceeding as well as chill "their right to seek legal redress"
against defendants (id. ¶¶ 73, 74); and (5) defendants were
liable for defamation under state law. (Id. ¶¶ 53-69.)
A. Defamation Claims Are Insufficient to Form Basis for §
Plaintiffs' Complaint repeatedly alleges that Allegretti's
speech defamed Mrs. Murphy. (Complt. ¶¶ 43, 46, 51, 54, 56, 58,
60, 62, 65.) In addition, plaintiffs' Memorandum of Law in
Opposition to Defendants Motion to Dismiss (plaintiffs'
"Memorandum") repeatedly states that Allegretti's comments were
part of a "smear" campaign intended to discredit plaintiffs.
(Pls. Mem. Opp. Mot. Dismiss at 12, 15, 17, 25.) According to
plaintiffs' own synopsis, "In short, as the direct result of the
defendants' denigration, plaintiff Loronda Murphy became `the
girl who cried wolf' someone not to be believed and someone to
be dismissed completely, regardless of what she had to say."
(Id. at 18.)
Even taking all facts alleged in the Complaint as true, as the
Court must on a motion to dismiss under Rule 12(b)(6), it is
apparent that all of plaintiffs' claims are based on defamation.
"The New York Court of Appeals has defined a defamatory statement
as one that 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) (quoting Kimmerle v. N.Y. Evening Journal, 262 N.Y. 99, 186 N.E. 217, 218 (1933)). "The
gravamen of an action alleging defamation is an injury to
reputation." Celle, 209 F.3d at 177. This is the precise nature
of the claims before the Court. "Defamation, however, is an issue
of state law, not of federal constitutional law, and therefore
provides an insufficient basis to maintain a § 1983
action."*fn5 Sadallah, 383 F.3d at 38 (citing Lauro v.
Charles, 219 F.3d 202, 207 (2d Cir. 2000), in turn citing Paul
v. Davis, 424 U.S. 693, 699-701 (1976)). Consequently,
plaintiffs have failed to allege a proper basis for a § 1983
action, warranting dismissal of their claims.
B. Plaintiffs Fail to Allege Actual Chill
Even if plaintiffs' Complaint had alleged an adequate basis for
a § 1983 cause of action, it nevertheless fails to establish a
First Amendment retaliation claim. Defendants appear to concede
that (1) Mrs. Murphy had an interest protected by the First
Amendment and (2) defendants' actions were motivated or
substantially caused by her exercise of that right.*fn6
However, this Court is persuaded that plaintiffs' First Amendment
rights have not been chilled.
The Second Circuit has stated that to properly allege a claim
for First Amendment retaliation, a plaintiff must show that his
First Amendment rights were "`actually chilled.'" Curley,
268 F.3d at 73 (quoting Davis v. Vill. Park II Realty Co., 578 F.2d 461,
464 (2d Cir. 1978) and Laird v. Tatum, 408 U.S. 1, 13-14
(1972)). "`Allegations of a subjective "chill" are not an
adequate substitute for a claim of specific present objective
harm or a threat of specific future harm.'" Id. Indeed, in
Estate of Morris, this Court quoted Curley for the principle
that "`[w]here a party can show no change in his behavior, he has
quite plainly shown no chilling of his First Amendment right to
free speech.'" 297 F. Supp. 2d at 693 (quoting Curley,
268 F.3d at 73).
In Curley, the plaintiff campaigned for village trustee in
1994 and again in 1995 after he was arrested by the defendants,
allegedly in retaliation for comments made during his 1993 run
for village mayor. Curley argued that his 1995 campaign was
"demoralized and only amounted to a token effort" as a result of
his arrest. 268 F.3d at 73. The fact that Curley continued his
1994 campaign and chose to run again in 1995 convinced the Second
Circuit that no chilling effect on his First Amendment rights
could be established. Id.
This analysis is directly applicable to plaintiffs' case.
Plaintiffs claim that defendants' smear campaign discredited Mrs.
Murphy and was "designed for the purpose of discouraging" her
from speaking. (Complt. ¶¶ 51, 65.) Defendants "painted her in
such a negative light that even if she did manage to go through
the motions of addressing the Town Board and her neighbors, she
was perceived, as the direct result of the defendants' preemptive
strike, as . . . not worthy of belief." (Pls. Mem. Opp. Mot.
Dismiss at 18.) Yet nowhere in the Complaint does it allege that
Mrs. Murphy failed to speak at the public Town meeting. In fact,
the newspaper article attached as Exhibit B to the Complaint, and
incorporated by reference therein, makes clear that Mrs. Murphy
did speak at the meeting. Indeed, plaintiffs' Memorandum
concedes this fact: "The mere fact that plaintiff Loronda Murphy
was still able to physically move volumes of air through her
vocal cords should not be determinative as to whether her First Amendment rights were
chilled." (Id.) Plaintiffs assert Mrs. Murphy's speech was
chilled because members of the public "changed their mind[s]
after hearing the facts." (Complt., Ex. B; id. ¶ 47.) The First
Amendment affords Mrs. Murphy the right to speak, not the right
to be believed or to exclude others from expressing contrary
views. As she exercised her right to speak, she has "quite
plainly shown no chilling of [her] First Amendment right to free
speech." Curley, 268 F.3d at 73.
The lengthy list of cases, including Estate of Morris, that
plaintiffs cite for the proposition that the severe nature of the
defamatory conduct itself establishes chill miss the mark. Those
cases all focus on the imposition of severe punishment for
speech, including incarceration or expulsion from school. See
Estate of Morris, 297 F. Supp. 2d at 694 (noting that "summary
punishment for the exercise of constitutional rights is clearly a
more serious infringement of those rights than a mere chilling of
their constitutional exercise"); see also Kerman v. City of New
York, 261 F.3d 229, 242 (2d Cir. 2001); Webster v. City of New
York, 333 F. Supp. 2d 184, 202 (S.D.N.Y. 2004); Brown v. W.
Conn. State Univ., 204 F. Supp. 2d 355, 364 (D. Conn. 2002). In
Webster, the court focused expressly on the close temporal
proximity, or immediacy, of the severe punishment in relation to
the speech. 333 F. Supp. 2d at 202. This Court does not believe
that the alleged statements, even if false and defamatory, amount
to punishment of sufficient severity to constitute chill in and
Nor do the allegations concerning the Town detectives present a
viable claim for the reasons just expressed. To the extent those
allegations charge more than simply First Amendment retaliation,
the detectives' questioning of Mr. Murphy does not constitute
severe punishment, and plaintiffs have continued to pursue both
the existing Bankruptcy Court action against defendants and the
instant action, thus negating any alleged chill. In addition,
plaintiffs' repeated overblown references to the detectives as "stormtroopers," characterization
of their inquiry as a "Jeanine Pirroled" investigation and
allusion to the Russian, Italian and Nazi secret police add no
legal substance to their claims.
Accordingly, plaintiffs' First Amendment retaliation claims are
III. Fifth and Fourteenth Amendment Claims
Plaintiffs make a single reference to deprivation of their
Fifth and Fourteenth Amendment rights in the Jurisdiction and
Venue portion of the Complaint. (Complt. ¶ 9.) The Complaint
contains no allegations supporting these alleged constitutional
violations and plaintiffs' Memorandum makes no argument relating
to these rights.
Insofar as plaintiffs maintain an alleged violation of their
Fifth Amendment rights, that claim must be dismissed as
plaintiffs "have not named the United States government or any
agency or employee thereof as a defendant in this matter." See
Cassidy v. Scoppetta, 365 F. Supp. 2d 283, 286 (E.D.N.Y. 2005).
The Fifth Amendment "`governs the conduct of the federal
government and federal employees, and does not regulate the
activities of state officials or state actors.'" Id. (quoting
Dawkins v. City of Utica, No. 93-CV-373, 1997 WL 176328, at *4
(N.D.N.Y. Apr. 4, 1997) (emphasis in original) (internal
citations and quotation marks omitted)).
With regard to any potential Fourteenth Amendment claim, the
Court is unable to glean such a claim from the Complaint. "It has
been settled since the United States Supreme Court decided Paul
v. Davis . . . that the stigma associated with defamation does
not, without more, give rise to a Fourteenth Amendment
violation." Olivera v. Town of Woodbury, 281 F. Supp. 2d 674,
687 (S.D.N.Y. 2003). There is no allegation in the Complaint that
any interest was taken without due process of law, either as a result of Allegretti's statements or
the detectives' investigation. The New York Supreme Court already
had issued a default judgment in favor of the Town and title to
the Property already had passed to the Town when the complained
of events occurred. Any claimed violation of the automatic stay
of enforcement proceedings provision of the Bankruptcy Code must
be brought before the Bankruptcy Court, not before this Court as
a § 1983 action. We note that plaintiffs have filed an action
before the Bankruptcy Court raising Fifth and Fourteenth
Amendment due process claims. (Complt. ¶ 35.)
IV. State Law Defamation Claim
Although plaintiffs' Complaint does explicitly assert a claim
under New York state law for defamation, "because plaintiffs no
longer have any viable federal claim, any remaining state law
claims belong in state, rather than federal, court." Sadallah,
383 F.3d at 40-41; see also United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal
claims are dismissed before trial, . . . the state claims should
be dismissed as well."). We therefore decline to exercise
supplemental jurisdiction over the defamation claim.
For all of the foregoing reasons, the motion of defendants
Town/Village of Harrison, Frank Allegretti, Stephen Malfitano,
John Doe and Richard Roe to dismiss the action pursuant to FED.
R. CIV. P. 12(b)(6) is granted. All the federal claims asserted
in Counts I, II, III and V are dismissed with prejudice and with taxable costs. The state claim asserted
in Count IV is dismissed without prejudice.
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