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Clemente v. Town of North Greenbush

May 14, 2008

LINDA A MANDEL CLEMENTE AND JAMES R. REID, PLAINTIFFS,
v.
THE TOWN OF NORTH GREENBUSH, AT EL. DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiffs commenced the instant action asserting violations of their civil rights arising out of their prosecution. Presently before the Court are motions to dismiss pursuant to Fed. R. Civ. P. 12 by Defendants Town of Schodack, Paul W. Peter, Mandy Edwards, and Thomas O'Hern.

I. FACTS

The following facts are taken from the Complaint and, for purposes of this instant motion, are assumed to be true.

Plaintiff Linda A. Mandel Clemente ("Clemente") was Town Attorney for the Town of North Greenbush (the "Town") from January 1, 2002 until she resigned effective December 8, 2005. Clemente was attorney of record for the Town on various matters pending at the time of her resignation. No other attorney was substituted on her behalf and, therefore, she continued as the attorney of record on certain matters through June 2006. On December 31, 2005, Clemente removed certain litigation files from Town of North Greenbush offices with respect to cases on which she claims to have remained attorney of record. Clemente was charged with various crimes in relation to the removal of the files.

Various Defendants suggested that Rensselaer County District Attorney Patricia DeAngelis appoint a special prosecutor with respect to the charges against Clemente. DeAngelis opted to seek the appointment of a special prosecutor. DeAngelis moved in the County Court pursuant to County Law § 701 for an order appointing a special prosecutor. Defendant County County Judge Patrick McGrath granted the motion. Clemente alleges that the individual appointed as special prosecutor, Defendant Thomas O'Hern, did not appear on the list of eligible prosecutors, failed to file the oath of office, and had no experience prosecuting criminal matters.

In or about May 2006, a grand jury was convened concerning the charges against Clemente. Clemente was offered an adjournment in contemplation of dismissal ("ACOD") of the charges against her in exchange for her agreement to resign from her position on the North Greenbush Planning Board and waive certain of her civil rights. Clemente accepted the deal. Defendant Paul Peter is the Town Justice who accepted the ACOD.

In or about July and/or August 2006, Defendants sought to restore the criminal charges against Clemente on the ground that she violated the terms of her ACOD.*fn1

Defendant Peter acceded to the request that the criminal charges be re-instituted.

The Complaint further alleges that an article appeared on June 10, 2006 stating that Plaintiffs pleaded guilty to misdemeanor attempted petty larceny. The article attributed this statement to Defendant Mandy Edwards, against whom Plaintiffs have asserted a claim of libel.

The Court assumes familiarity with the Court's prior Decision and Order entered on April 15, 2008.

II. STANDARD OF REVIEW

In addressing a motion to dismiss, the Court must accept all factual allegations in the complaint and draw all reasonable inferences in Plaintiffs' favor. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008). The complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ---U.S. ----, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Rule 12 requires that the complaint's "[f]actual allegations be enough to raise a ...


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