The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff is represented by Lawrence E. Kelly, Esq. of Glynn Mercep and Purcell, LLP, North Country Road, P.O. Box 712, Stony Brook, NY, 11790-0712. The individual defendants are represented by Jessica D. Klotz, Esq. of Lewis, Johs, Avallone, Aviles & Kaufman, LLP, 425 Broadhollow Road, Melville, NY, 11747. Islip is represented by Erin A. Sidaras, Esq., of the Town Attorney's Office, 655 Main Street, Islip, NY, 11751.
On April 7, 2005, pursuant to 42 U.S.C. § 1983, plaintiff Frank Sloup ( plaintiff" or Sloup ) brought this action against defendants Alan Loeffler, individually and in his official capacity as a Town of Islip employee ( Loeffler ) and Craig Pomroy, individually and in his official capacity as a Town of Islip employee ( Pomroy ) (collectively, the individual defendants ), as well as the Town of Islip ( Islip ) (collectively, defendants ), alleging that defendants violated plaintiff's rights under the First and Fourteenth Amendments of the United States Constitution.*fn1 Specifically, Sloup is a commercial fisherman, and the action arises out of a summons he received from Pomroy on June 9, 2004 regarding certain fishing equipment plaintiff had placed in the waters of Islip. The individual defendants and Islip now move, separately, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motions are granted in part and denied in part. In particular, defendants' motions are granted with respect to Sloup's First Amendment claims and denied on all other grounds.*fn2
The Court has taken the facts set forth below from the parties' depositions, affidavits, and exhibits, and from the parties' respective Rule 56.1 statements of facts.*fn3 Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001). Unless otherwise noted, where a party's 56.1 statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.
Sloup has been a bayman, or commercial fisherman, since 1953. (Sloup. Dep. at 17, 24.) In 1999, he incorporated a commercial fishing business called Crabs Unlimited, LLC ( Crabs Unlimited ). (Sloup Dep. at 17.)
a. Sloup's Fishing Procedures
Since 2002, Sloup has been involved in catching eels, conch, fish, crabs, killies, which are minnows, clams, scallops, [and] different bait fish. . . . (Sloup. Dep. at 24.)
In particular, plaintiff catches eels and crabs using traps or pots. (Sloup Dep. at 24.) For instance, an eel trap is three feet long and contains bait to attract the eels. (Sloup Dep. at 25.) Further, plaintiff has testified regarding the means by which he indicates whether a trap is in the water: Depending on where I'm fishing and the time of year, sometimes there is a single buoy, float buoy, that marks where the pot is on the water, and sometimes I put them on the water without a buoy on them, with a weight on one end, and I drag it up. (Sloup Dep. at 25.) In addition, plaintiff personalizes the buoys in order to distinguish them from those of other fishermen. (Sloup Dep. at 26.)
Plaintiff testified that, in an average season, he uses 50 killi pots, 800 crab pots, 500 conch pots, 400 eel pots, and 120 blow fish pots. (Sloup Dep. at 240.) As of June 9, 2004, at least half of plaintiff's eel pots were in the waters of Islip. (Sloup Dep. at 243.) In particular, he had placed pots in the following portions of Islip: Nichols creek . . . Champlin's creek, at the very mouth of Orowoc creek, Awixa creek, and . . . the Bay Shore cove. . . . (Sloup Dep. at 244.)
During the relevant time period, Sloup held a Special Permit to fish for crabs from New York State. (Pl.'s 56.1 ¶ 54.) According to plaintiff, he also held a Commercial Fishing Permit from New York State. (Remmer Aff. ¶ 19.)
As of 2004, Pomroy was an Islip Harbor Master. (Pomroy Dep. at 76.) As such, Pomroy explained, his duties were to handle any paperwork that was outstanding, answer the phones, take any complaints, just you know, mostly clerical duties like that. (Pomroy Dep. at 78.) In addition, depending on the manpower available on a given day, Pomroy might also be responsible for leaving the office to deal with [a] complaint. (Pomroy Dep. at 78.)
Loeffler was Pomroy's supervisor, (Loeffler Dep. at 109), but Loeffler's precise professional position is a matter of dispute among the parties. According to Loeffler, he was an Islip Harbor Master between 1974 and 2005 and, sometime prior to 2004, was awarded the title Chief Harbor Master. (Loeffler Dep. at 54.) However, in their response to Pl.'s 56.1, the individual defendants state that Loeffler described his command as the 'Islip Town Harbor Police.' (Indiv. Defs.' 56.1 Resp. ¶ 11.) According to Sloup, therefore, Loeffler's true position is uncertain. (Pl.'s 56.1 Resp. ¶ 82.) Plaintiff notes, for instance, that the title Chief Harbor Master does not appear in the Islip Town Code and states that defendants have, at times, referred to Loeffler as the Chief of Harbor Police or Chief of Marine Law Enforcement Harbor Police. (Pl.'s 56.1 Resp. ¶ 25.) In any event, Loeffler has testified that he was responsible for [g]eneral supervision over the members of the division, administrative responsibilities, assuring that vendors were paid. (Loeffler Dep. at 103.) At his deposition, Loeffler agreed that he also share[d] the knowledge of federal, state and local laws governing fishing, clamming and boating in local waters with his subordinates. (Loeffler Dep. at 103.) Specifically, Loeffler agreed that his job responsibilities included training his subordinates. (Loeffler Dep. at 92.)
(4) The Regulation of Fishing
Pursuant to Sloup v. Islip – and as counsel for defendants agreed at oral argument – Islip does not have the legislative power to regulate fishing in public waters. 356 N.Y.S.2d 742, 745 (Suffolk Cty. 1974). Rather, such power rests in New York State. Id. at 745-46.
However, Islip is legally authorized to regulate navigational hazards within the waters of Islip. (Defs.' 56.1 ¶ 1.)*fn4 Specifically, pursuant to Islip Town Code 37-52 ( Section 37-52 ),
Any vessel or floating or submerged object which becomes a menace to navigation or unseaworthy or sinks, grounds or otherwise becomes incapable of navigation shall immediately be removed or restored to navigable condition by the owner or operator thereof at his own expense.
In the event that a vessel or obstruction described in § 37-56A or B above is not immediately removed or restored to navigable condition, the Harbor Master shall notify the owner, either by certified mail or personally, of the condition of the vessel, floating object or obstruction. The owner shall have 72 hours after receipt of notification to remove or restore the vessel, floating object or obstruction unless the Harbor Master shall determine that the vessel, floating object or obstruction is an immediate hazard, in which case he may either immediately remove it or specify a lesser time for the owner to comply.
Islip Town Code §§ 37-52A, C. Further, the Islip Town Code defines floating object to include fishing buoys. See Islip Town Code § 37-51.
B. Sloup's Contacts With Loeffler in the 1990s
According to Sloup, Loeffler approached him twice in the 1990s regarding certain of plaintiff's traps that Loeffler perceived as a threat to navigation. Plaintiff stated as follows regarding these two incidents:
On both occasions, [Loeffler] alleged that he had gotten a call complaining about a trap. On both occasions, I moved the one trap. In one situation, in Bay Shore, I was setting an eel trap with no buoy in 14 feet of water. Alan Loeffler stated I want you to get that pot out of there, it's a hazard to navigation. I responded that it was 14 feet of water, that I never had a problem with a pot I placed there, it is a safe place to put the pot. The pot was weighted. Alan Loeffler said Either you move it or we're going to move it . . . . The discussion got heated, and Alan Loeffler pointed at me and said If it's the last thing I do, I'm going to get you and your buoys out of this bay.
(Sloup Aff. ¶ 50.) As discussed in greater detail infra, defendants denied at oral argument that Loeffler ever made such a threat to plaintiff.
C. The Events of June 9, 2004
As of June 9, 2004, Sloup had placed eight or nine crab pots marked with buoys on the East side of Champlin's Creek in Islip, and thirty to thirty-three crab pots marked with buoys on two double rows on the West side of Champlin's Creek. (Defs.' 56.1 ¶ 21.)
(1) McCann's Alleged Complaint and Pomroy's Ensuing Investigation
According to Pomroy, on June 9, 2004, he had a telephone conversation with a boater named McCann, during which McCann lodged a complaint regarding the waters in Champlin's Creek. (Pomroy Dep. at 76.) In particular, a Complaint Report completed by Pomroy that day (the Complaint Report ) describes McCann's complaint as follows: Above compl reported crab traps & buoys creating a hazard at [Champlin's Creek]. States there are so many, it is difficult for two boats to pass one another. (See Complaint Report.)
According to Pomroy, he proceeded to Champlin's Creek and observed there being a lot of hazards in the water that would make it difficult to operate a boat. (Pomroy Dep. at 85.) However, he also testified: Whether or not I specifically tried to relate it for being difficult for two boats to pass, I don't think I saw it – looked at it in that capacity. (Pomroy Dep. at 85.) Pomroy testified that he understood a hazard to be something in the way that would be – something that would prevent running a – a course – you know, running my course through the waterway to get from where I was to where I wanted to get without having some sort of problem with whatever it was that was in the waterway in front of me. (Pomroy Dep. at 86.) Pomroy also took photographs of these alleged hazards when he investigated the complaint. (See Defs.' Exh. U.)
The question of whether Sloup's fishing equipment actually posed a hazard to navigation on June 9, 2004, pursuant to the Islip Town Code, is a subject of complete dispute among the parties. (Compare Defs.' 56.1 ¶¶ 15 and 18 (stating that photographs Pomroy took, taken in totality, showed the hazards he observed ) with Pl.'s 56.1 Resp. ¶¶ 14-15, 17, and Sloup Aff. ¶ 14 ( All they can say as to Champlin Creek is that in an area the size of over 41 football fields with end zones and room on the sides for the teams, fields which can only be legally traveled by a motor boat at a walking pace (4 miles per hour), 41 brightly colored buoys the size of a very large human head present a menace to navigation. That is one football helmet per football field, supposedly creating a hazard to navigation for people moving at the pace of a dog show best of breed walkabout. ).
(2) Pomroy's Conversations With Loeffler
Pomroy testified that he had several conversations with Loeffler on June 9, 2004, (Pomroy Dep. at 142), including an initial conversation about McCann's complaint. (Pomroy Dep. at 143.) Pomroy did not specifically recall receiving direction from Loeffler regarding the complaint during that conversation, except to look into the complaint. (Pomroy Dep. at 143.) Further, after Pomroy went to Champlin's Creek, he had another conversation with Loeffler, during which Pomroy informed Loeffler that there were numerous buoys in the creek that were creating a hazard – and that . . . the complaint was, in [Pomroy's] opinion, substantiated. (Pomroy Dep. at 143.)
According to Pomroy, he was ultimately instructed to issue [Sloup] a summons for the violation. (Pomroy Dep. at 62.) Pomroy, however, denied that he was just following orders when he issued the summons. (Pomroy Dep. at 67.) Specifically, Pomroy testified: I was instructed to issue the summons, and I agreed that it was a just issuance of that summons. (Pomroy Dep. at 67.)
Loeffler summarized his conversations with Pomroy as follows: I was advised that there were crab pots in Champlin's Creek. I advised him to talk to Mr. Sloup and ask him to remove them because we had a complaint that there was – they were causing a hazard to navigation. *fn5 Loeffler also stated that he independently traveled by car to Champlin's Creek, and concurred with [Pomroy's] judgment on the basis of Loeffler's observations there. (Loeffler Dep. at 184.)
(3) Pomroy Approaches Sloup About Alleged Hazard
According to plaintiff, on June 9, 2004, two men in a boat arrived at Sloup's business. (Sloup Dep. at 42.)*fn6 The boat bore an insignia stating Islip Town Harbor Police. (Sloup Dep. at 42.) The men went into the building that housed plaintiff's business, and asked plaintiff whether the pots in Champlin's creek were Sloup's. (Sloup Dep. at 43.) Plaintiff responded in the affirmative. (Sloup Dep. at 43.) The men then stated: 'Well, we want you to remove the pots because there is a hazard to navigation.' (Sloup Dep. at 43.) Sloup responded: 'The pots aren't a hazard to navigation, they're off against the shore. There's hundreds of feet for people to get by. They're marked with a buoy, and I'm legally allowed to be there by state law, and if I move those pots, I'm going to lose my business.' (Sloup Dep. at 43.)*fn7
Sloup further testified that, in response to his statement, the men stated: 'Let me call the office,' and then proceeded back to their boat for a short while. (Sloup Dep. at 44.) When the men returned, they informed plaintiff: 'If you don't remove the pots [from Champlin's Creek], we're going to impound them, we're going to write you a ticket and impound the pots.' (Sloup Dep. at 45.) Sloup responded: 'Write me the ticket.' (Sloup Dep. at 45.) The men then issued plaintiff a summons pursuant to Islip Town Code 37-56A, set forth supra, and a time frame to remove the pots of approximately 48 or 72 hours. (Sloup Dep. at 45; Defs.' Exh. R.)*fn8
At his deposition, Pomroy stated that, in issuing other summonses pursuant to Islip Town Code 37-56A, he could not recall another occasion on which he ordered a fisherman to remove all of his traps and buoys from a particular body of water.
(4) Pomroy Completes Complaint Report
After issuing the summons, Pomroy proceeded back to the office and completed the Complaint Report. (Pomroy Dep. at 83.) Specifically, he completed the section entitled Follow Up Action Taken, which states: Issued Frank Sloup above summons for . . . 37.56A Hazard to Navigation. He stated traps would be removed by 1200 hrs. on 06/10/04. (See Complaint Report.)
(5) Sloup Discusses Alleged Hazard with Loeffler
According to Sloup, after receiving the summons, he proceeded immediately to Loeffler's office at the East Islip Marina – the harbor police office. (Sloup Dep. at 48.) Loeffler informed Sloup that plaintiff had to remove all of his pots from all harbor areas within the Town of Islip, the killi pots, eel pots, crab pots, all fishing gear. (Sloup Dep. at 47.) In particular, Sloup testified as follows regarding his conversation with Loeffler:
We kind of had an – it was a slightly heated discussion, but I told him, I said, Alan, I can't fish any other place at this time because of the slime in the bay. The only place that I can fish right now is in the creeks. I'm allowed to fish there. I've never had a problem with anyone, and he said, All your pots are a hazard. I said, How could they be a hazard in 18 inches of water against the shore? I said, I can't even get to those pots in my boat except on high tide. He says, Any water that a canoe can float in is considered navigable water in the State of New York, and a canoe could hit your killi pot in a mosquito ditch, and to get them out.
I said, How am I going to get these pots out? I said, I don't have a boat that floats in that water where I have these pots. He said, If we have to, we'll get a boat from the dock department, and I knew at that point that if anyone who didn't know how to handle this gear handled it in the wrong way, they would destroy it. So I made the decision immediately to pull the gear out, plus if it was impounded, I wouldn't have use of it for the rest of the season, so I pulled it all out so when the conditions changed, I would at least be able to make some kind of a living.
At his deposition, Loeffler admitted that he informed Sloup that he could not fish in any of the harbor areas listed in the Islip Town Code. (Loeffler Dep. at 177.) The following colloquy then ensued:
Q: What did you indicate with regards to those harbor areas in the Town of Islip?
A: That they were prohibited from causing a navigation hazard.
Q: What did that mean to you?
A: That meant that if his fishing buoys caused a navigation hazard, they would be in violation of the town code, as per the town code.
Q: Had you ever used that interpretation of the town code prior to June 9th of 2004?
Q: It wasn't the town code that was making the statement to Mr. ...