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Maloney v. County of Nassau

September 24, 2007

JAMES M. MALONEY, PLAINTIFF,
v.
THE COUNTY OF NASSAU, THE POLICE DEPARTMENT OF THE COUNTY OF NASSAU, DENIS DILLON, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF THE COUNTY OF NASSAU, JOAN P. YALE, ROBERT SEIDEN, ESQ., JOHN A. JOHNSON, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE STATE OF NEW YORK OFFICE OF CHILDREN AND FAMILY SERVICES, DAVID R. PETERS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE STATE CENTRAL REGISTER OF THE STATE OF NEW YORK OFFICE OF CHILDREN AND FAMILY SERVICES, AND JOHN DOES NO. 1 THROUGH 100, DEFENDANTS



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM AND ORDER

Plaintiff James M. Maloney brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his civil rights during and after an incident which began in the afternoon on August 23, 2000, and ended in the early morning of August 24, 2000 (hereinafter, the "Incident"). All of the named defendants have now filed dispositive motions. In addition, defendant Seiden has filed a motion pursuant to Fed. R. Civ. P. 15(a) to amend his answer and a motion for sanctions pursuant to Fed. R. Civ. P. 11. For the reasons set forth below, the latter two motions are denied without prejudice, and defendants' dispositive motions are granted in part and denied in part.

BACKGROUND

Although there are some disputes concerning exactly what transpired during the Incident at issue in this case, the following facts are not in dispute. Around 2:00 p.m. on August 23, 2000, plaintiff spotted a Verizon employee atop a telephone pole located on the curtilage of plaintiff's home in Port Washington, New York (County Defendants' Statement of Material Facts Pursuant to Local Rule 56.1 ("County 56.1 Statement") at ¶ 1; Plaintiff's Declaration in Opposition to County Defendants' Statement of Material Facts ("Pl. 56.1 Counterstatement") at ¶ 1). Plaintiff engaged the employee in a conversation and, thereafter, observed him with the aid of a scope of some sort (Id.).

About half an hour after the telephone worker left, two men dressed in plain clothes drove up to plaintiff's home in a van. These men told plaintiff that they were police officers and that a telephone worker had complained that plaintiff had threatened him with a rifle. Although the men demanded that plaintiff come outside, plaintiff refused to do so (County 56.1 Statement; Plaintiff's First Amended Complaint ("Am. Compl.") at ¶¶ 29-30).

These officers then summoned addition officers and a hostage negotiation team from the Nassau County Police Department (County 56.1 Statement at ¶ 2; Pl. 56.1 Counterstatement at ¶ 2). Over the ensuing twelve hours, the team spoke to plaintiff by telephone and attempted to persuade him to exit the house and surrender. During this time, plaintiff was permitted to speak to an attorney, Robert Seiden (County 56.1 Statement at ¶ 6; Pl. 56.1 Counterstatement at ¶ 6). At around 2:00 a.m. on August 24, 2000, plaintiff surrendered to the police (County 56.1 Statement at ¶ 9; Pl. 56.1 Counterstatement at ¶ 9). Shortly thereafter, numerous police officers entered plaintiff's home, where they forcibly opened a locked safe and seized various items of property (County 56.1 Statement at ¶¶ 12-13; Pl. 56.1 Counterstatement at ¶¶ 12-13).

Following his arrest, plaintiff was sent to a mental hospital, where he spent the night (County 56.1 Statement at ¶ 11; Am. Compl. at ¶ 50). Plaintiff was eventually charged with several criminal offenses (County 56.1 Statement at ¶ 10; Pl. 56.1 Counterstatement at ¶ 10), but the Nassau County District Attorney's Office subsequently permitted him to plead guilty to disorderly conduct, a violation, in full satisfaction of the charges (County 56.1 Statement at ¶ 14; Pl. 56.1 Counterstatement at ¶ 14). However, because plaintiff's young sons had been home at the time of the Incident, the New York State Office of Children and Family Services ("OCFS") investigated plaintiff for possible child abuse (State Defendants' Statement of Material Facts Pursuant to Rule 56.1 ("State 56.1 Statement") at ¶¶ 1-2; Am. Compl. at ¶ 40). Following this investigation, OCFS determined that child abuse was "indicated" (State 56.1 Statement at ¶ 2; Am. Compl. at ¶ 55). Thereafter, plaintiff wrote to OCFS, requesting that the records be amended by changing "indicated" to "unfounded -- legally sealed" (State 56.1 Statement at ¶ 3; Am. Compl. at ¶ 58). In September 2001, David R, Peters, the Director of the New York State Central Register of Child Abuse and Maltreatment, responded by sending plaintiff a letter which stated, among other things:

If the record is not amended within 90 days of receiving the request, or if your request is denied after the administrative review, your request will be forwarded to the Bureau of Special Hearings for the scheduling of a fair hearing.

Ex. D to Declaration of Asst. Atty. Gen. Lori L. Pack; Am. Compl. at ¶ 59. Approximately two years later, when plaintiff had yet to receive the "fair hearing" promised by Peters, plaintiff commenced this action pursuant to 42 U.S.C. § 1983 ("§ 1983").

Plaintiff's Pleadings*fn1

Plaintiff's First Amended Complaint ("Amended Complaint") provides a fairly detailed account of plaintiff's version of the Incident. Plaintiff alleges that the telephone worker, later identified as Michael Cates, refused to identify himself by anything other than his first name (Am. Compl. at ¶¶ 22, 28). Plaintiff further alleges that the scope he used to observe Cates was only "a small low-power telescope," and that plaintiff put the telescope away as soon as Cates observed him using it (Id. at ¶ 23). According to plaintiff, Cates demanded to know what plaintiff had pointed at him (Id. at ¶ 24). After plaintiff assured him that it was "nothing harmful," Cates allegedly worked for another five to seven minutes before descending the pole (Id. at ¶ 26).

The First Amended Complaint acknowledges that the men who arrived in the van about 2:30 p.m. on August 23, 2000, stated that they were police officers who had received a complaint from a telephone worker alleging that plaintiff had threatened him with a rifle. (Id. at ¶ 29). Plaintiff denied doing so and, speaking from an upstairs window, attempted to explain what had happened (Id. at ¶ 30). When one of the men interrupted and asked plaintiff to come outside to talk to them (id.), plaintiff demanded to know if they were federal or state officers. (Id. at ¶ 31). The man replied, "Both,"making plaintiff suspect that the men were not actually police officers (Id. at ¶ 32).

Shortly after plaintiff refused the officers' demand that he come outside, plaintiff's house "was surrounded by teams of armed police." (Id. at ¶ 33). The police cut plaintiff's telephone lines, but permitted plaintiff to speak with them by telephone (Id.). At some point, the police permitted plaintiff to speak with Seiden. The First Amended Complaint alleges that Seiden "professed to be acting on Plaintiff's behalf as Plaintiff's attorney" (id. at ¶ 35), and that plaintiff "acknowledged that Seiden was representing him as his attorney" (Id. at ¶ 36).

Over the ensuing 12 hours, the police repeatedly demanded that plaintiff exit the house and surrender (Id. at ¶ 38). Plaintiff, who denied having done anything wrong, refused to do so (Id. at ¶ 38). Aware that Payton v. New York, 445 U.S. 573, 576 (1980), prohibited warrantless arrests in the home, plaintiff insisted that the police obtain a warrant. (Id. at ¶¶ 32, 38). However, the police never did so (Id. at ¶ 39).

During the Incident, Seiden repeatedly advised plaintiff that the police were preparing to break down the door and storm the house (Id. at ¶ 40). Seiden stated, and plaintiff recognized, that there was a possibility that plaintiff's wife and infant sons might be injured in the process (Id. at ¶ 41). Seiden also assured plaintiff that he "would see to it that no illegal searches and seizures occurred" (Id. at ¶ 42).

Shortly after 2:00 a.m. on August 24, 2000, plaintiff, allegedly unable to bear the "continued threat of . . . harm to [his] family" (id. at ¶ 41), stepped outside and surrendered to the police (Id. at ¶ 42). Shortly thereafter, personnel from the Nassau County Police Department entered plaintiff's home without a warrant and without consent (Id. at ¶¶ 45-48). Defendant Joan P. Yale, who is identified in the Amended Complaint only as a police "official" (id. at ¶ 9), allegedly informed plaintiff's wife that Seiden had "withdrawn" from the case and that plaintiff would need another criminal defense attorney (Id. at ¶ 45). Other officers -- John Does 2 through 100 -- searched the house and seized "property, papers and effects, including each and every locked box in the home" (Id. at ¶ 46). Among the closed containers opened and searched by the police was plaintiff's safe, which was destroyed in the process (Id.).

Later on August 24, 2000, while involuntarily confined at Nassau County Medical Center (now known as Nassau University Hospital), plaintiff refused the hospital staff's request for a urine sample (Id. at ¶ 51). Plaintiff was thereafter restrained and "choked into unconsciousness" and threatened with further violence by a Nassau County Police paramedic, defendant John Doe No. 1 (Id. at ¶ 53).

The Amended Complaint implies that plaintiff was charged with criminal offenses stemming from the incident of August 23-24, 2000 (id. at ¶ 61), but does not specify the charges. On or about January 28, 2003, plaintiff entered into a plea agreement with the Nassau County District Attorney's Office under which plaintiff was permitted to plead guilty to a violation in satisfaction of the charges against him (Id.). As part of that plea agreement, the District Attorney's Office agreed to return all of the papers and property seized from plaintiff's home, with the exception of certain items listed in the agreement but not specified in the Amended Complaint (Id.). Plaintiff alleges that he has yet to receive any of the papers and property from the District Attorney, notwithstanding correspondence from plaintiff and his attorney reminding the District Attorney's Office of its agreement (Id. at ¶¶ 62-63).

Plaintiff was also investigated by OCFS, which looked into allegations that plaintiff's actions on August 23-24, 2000, resulted in maltreatment of his infant sons (Id. at ¶ 54). That investigation concluded that maltreatment was "indicated" (Id. at ¶ 55). As a result, plaintiff was listed on the New York State Child Abuse and Maltreatment Register ("the Register") (Id. at ¶¶ 56-57).

Sometime thereafter, plaintiff requested in writing that "the record about him in the Register be amended from "Indicated" to "Unfounded Legally Sealed" (Id. at ¶ 58). On September 5, 2001, the Director of the Register, defendant David R. Peters, sent plaintiff a letter promising to undertake an administrative review in response to plaintiff's letter (Id. at ¶ 59). That letter stated that if plaintiff's request was denied or if the record was not amended within 90 days, plaintiff's request would be "forwarded to the Bureau of Special Hearings," which would schedule a hearing (Id.). However, plaintiff's record was never amended and, as of the date of plaintiff's Amended Complaint, no hearing had yet been scheduled (Id. at ¶ 60).

In his Amended Complaint, plaintiff alleges five causes of action. In the first of these, plaintiff alleges that Seiden, Nassau County, Nassau County District Attorney Denis Dillon, the Nassau County Police Department and its employees, Yale and Does 2 through 100, "deprived Plaintiff of his rights under the Fourth and Fourteenth Amendments" of the United States Constitution (Id. at ¶ 65). Plaintiff seeks compensatory damages from all defendants, plus punitive damages from Seiden alone (Id. at ¶¶ 66-67).

Plaintiff's second cause of action alleges that the actions of the Nassau County paramedic, John Doe No. 1, violated his "rights under the NYS and federal constitutions" (Id. at ¶ 70). Plaintiff does not seek to recover damages from John Doe No. 1, but seeks damages from Nassau County (Id. at ¶ 71).

In his third cause of action, plaintiff alleges that Seiden, Nassau County, Nassau County District Attorney Denis Dillon, the Nassau County Police Department and its employees, Yale and Does 2 through 100, "jointly and severally illegally seized and retained property, personal effects, and papers taken by defendants from plaintiff" and have thereby deprived plaintiff of his rights under the Fifth and Fourteenth Amendments of the federal Constitution (Id. at ¶¶ 74, 76). In addition, plaintiff alleges that these defendants' actions constitute conversion and "trespass to chattels" under New York State law (Id. at ¶¶ 77-78). Plaintiff seeks an accounting and the return of his property, plus compensatory damages from all defendants and punitive damages from Seiden (Id. at ¶¶ 79-84).

The fourth cause of action alleges that defendant John A. Johnson, the Commissioner of OCFS, and David R. Peters, the Director of the Register, "have deprived and continue to deprive Plaintiff of his rights under the First, Second, Sixth, Eighth and Fourteenth Amendments" of the United States Constitution (Id. at ¶ 87). Plaintiff does not expressly state the basis for his First, Second, Sixth and Eighth Amendment claims, but specifically alleges that he has "a protectable liberty interest in his name not being on 'The Register'" and that Johnson and Peters, acting under color of state law and under official policy, "have violated and continued [sic] to deprive plaintiff of his liberty interests" (Id. at ¶¶ 88-89). In addition, plaintiff alleges that the Second Circuit has "held unconstitutional the NYS statutory scheme whereby persons are listed on 'The Register,'" and that Johnson and Peters "knew or should have known" of this ruling (Id. at ¶¶ 90-91). Plaintiff does not seek damages against Johnson or Peters, but seeks a declaratory judgment stating that the Register is unconstitutional, an injunction prohibiting Johnson and Peters from listing plaintiff's name on the Register, and an order expunging all records concerning plaintiff from the files of the OCFS and the Register (Id. at ¶¶ 92-94).

Finally, in his fifth cause of action, plaintiff alleges that Seiden intentionally breached fiduciary and legal obligations that he owed to plaintiff. Plaintiff alleges that Seiden not only had such obligations under the New York State Code of Professional Conduct, but also owed a "common law fiduciary duty" to plaintiff (Id. at ¶¶ 97-98). As with every other count naming Seiden as a defendant, this cause of action seeks both compensatory and punitive damages (Id. at ¶¶ 100-01).

The Defendants' Motions

All of the named defendants have now filed dispositive motions. Defendants County of Nassau, the Police Department of the County of Nassau, Nassau County District Attorney Denis Dillon and Joan P. Yale (collectively, the "County Defendants") move pursuant to Federal Rules of Civil Procedure 12(c) and 56 to dismiss the causes of action against them. Defendant Robert Seiden, Esq., also moves pursuant to Rules 12 and 56 to dismiss the causes of action against him, but has filed additional motions seeking to amend his answer to add two affirmative defenses and to impose sanctions on plaintiff pursuant to Fed. R. Civ. P. 11. Finally, defendants John A. Johnson and David R. Peters (collectively, the "State Defendants") move to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6).

I. The County Defendants' Motion

The County Defendants originally sought permission to move to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(c). See Letter to Hon. Leonard D. Wexler from Tatum J. Fox, Esq., dated April 21, 2004. Now, however, the County Defendants move to dismiss the claims against them pursuant to both Rules 12(c) and 56 of the Federal Rules of Civil Procedure. Judge Wexler's Rules and this Court's own Individual Motion Practices require that, before making a motion pursuant to Rule 56, a party must send a pre-motion conference request explaining the bases of the proposed motion. Since the County Defendants' pre-motion conference request did not seek permission to move for summary judgment, this Court will treat the County Defendants' motion as having been brought solely pursuant to Rule 12(c).

In deciding a motion for judgment on the pleadings pursuant to Rule 12(c), courts apply the same standard that is used to decide a motion to dismiss under Rule 12(b)(6). See Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all of the factual allegations in the complaint as true and must draw all reasonable inferences in the plaintiff's favor. See Erickson v. Pardus, ___U.S.___, ___, 127 S.Ct. 2197, 2200 (2007); Ofori-Tenkorang v. Am. Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir. 2006). A court must then determine whether a plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atlantic Corp., ___U.S.___, ___, 127 S.Ct. 1955, 1974 (2007).

While a complaint "does not need detailed factual allegations," id. at 1964, it nonetheless must give the defendant(s) "fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 127 S.Ct. at 2200. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). As the Second Circuit recently stated, the "flexible 'plausibility standard'" enunciated in Twombly "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis added).

Because "a Rule 12(b)(6) motion challenges the facts alleged on the face of the complaint . . . or, more accurately, the sufficiency of the statements in the complaint," see Cortec Indus., Inc. v. Sum Holding L.P, 949 F.2d 42, 47 (2d Cir. 1991) (internal citations omitted), cert. denied, 503 U.S. 960 (1992), a court deciding such a motion "is normally required to look only to the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, in some circumstances, a court may consider documents other than the complaint. For example, "[d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered. Id. (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1997), cert. denied, 525 U.S. 1103 (1999)). In addition, a document which is not attached to, or incorporated by reference in, the complaint may be considered if the complaint "solely relies" on the document and it is "integral to the complaint." Id. (quoting Cortec Indus., 949 F.2d at 47) (emphasis omitted). If "matters outside the pleading are presented to and not excluded by the court," a court should convert the motion to one for summary judgment and give "all parties . . . [a] reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b).

In their motion pursuant to Rule 12(c), the County Defendants raise four "Points." First, these defendants argue that plaintiff's §1983 claims must be dismissed because plaintiff cannot make out a violation of any of his federal Constitutional rights. Second, they assert that the §1983 claims against Nassau County and the Nassau County Police Department must be dismissed because plaintiff has not alleged that the Constitutional violations are due to a municipal policy. Third, these defendants argue that plaintiff's state-law claims are barred because plaintiff has not filed a notice ...


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