The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiffs Robin Lukowski, Robert Lukowski, David Jensen, Thomas Castiglione, Teri Durso, Robert Heieck and Suzanne Cirencione ("Cirencione") (collectively "plaintiffs") bring this action pursuant to 42 U.S.C. § 1983 against The County of Seneca ("Seneca County"), Leo T. Connolly ("Connolly"), James R. Larson ("Larson"), Richard Swinehart, the Seneca County District Attorney ("Swinehart"), Jack Stenberg ("Stenberg"), Sharon Secor, former Seneca County Manager ("Secor"), Steven Getman, former Seneca County Attorney ("Getman"), Louis VanCleef ("VanCleef"), Christopher Constable ("Constable"), Scott Buck ("Buck"), James Sinicropi ("Sinicropi"), FingerLakes1.com, Inc. and TimeWarner Cable, Inc. ("TWC")*fn1 (collectively "defendants") claiming that their civil rights were violated in connection with the retaliation they experienced for the public criticism of defendants.
Specifically, plaintiffs allege five separate causes of action including: (1) First Amendment Retaliation ("First Cause of Action"); (2) Malicious Abuse of Process ("Second Cause of Action"); (3) Conspiracy claim under 42 U.S.C. § 1985 ("Third Cause of Action");*fn2 (4) Electronics Communication Privacy Act ("ECPA")claim pursuant to 18 U.S.C. § 2701 et seq. ("Fourth Cause of Action"); and (5) violation of the Cable Communications Privacy Act under 47 U.S.C. § 551 et seq. ("Fifth Cause of Action").*fn3
Plaintiffs seek declaratory relief, compensatory damages and attorney's fees and costs for the deprivation of their civil rights. Defendants filed a total of six motions to dismiss requesting various relief. Connolly, Swinehart, Secor and Getman move to dismiss plaintiffs' Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(6), alleging that plaintiffs have failed to state a claim upon which relief may be granted and that they are entitled to a dismissal as a matter of law.*fn4 Defendant Seneca County moves to dismiss the First, Third and Fifth Causes of Action. Moreover, defendant Larson moves to dismiss only the First and Third Causes of Action. In addition, Swinehart claims that the Complaint must be dismissed as to him based on the doctrine of absolute immunity.
Defendant Getman contends that the doctrine of absolute legislative immunity is applicable and accordingly the claims against him must be dismissed. Further, defendants Larson, Connolly, Secor and Getman argue that the doctrine of qualified immunity applies to them and on this alternative basis the Complaint should be dismissed as to them. Defendants Secor and Getman also assert that if the Court does not dismiss plaintiffs' Complaint, an Order pursuant to Fed.R.Civ.P. 21 and 42(a) severing plaintiff Cirencione's claims from claims made by the remaining plaintiffs is appropriate. Finally, several defendants request that if the Complaint is not dismissed in its entirety, the Court should strike the introductory paragraph of the Complaint as well as ¶ 43 pursuant to Rule 12(f) since they contain scandalous and immaterial allegations.*fn5
For the reasons set forth in more detail below, defendants' motions to dismiss are granted in part and denied in part.
Unless otherwise noted, the following facts are taken from plaintiffs' Complaint. Plaintiffs allege that prior to the election for Seneca County Sheriff in November 2003, each of the plaintiffs frequently posted comments on a community website known as Fingerlakes1.com critical of Seneca County government officials, including defendants in this action. See Compl. ¶¶ 24-25. Indeed, plaintiffs claim they posted their comments anonymously on the website using "handles" to identify themselves. See id. ¶ 24. In addition, plaintiffs claim that "[s]ubsequent to the 2003 election until the Plaintiffs' discovery of the Defendants' activities in March 2007, the Plaintiffs' criticism... increased in both frequency and ferocity...." See id. ¶ 26. According to the Complaint, beginning in 2004, Connolly and Larson started a campaign of retaliation against plaintiffs for their public criticism. See id. ¶ 27. Plaintiffs allege that Connolly and Larson compelled Fingerlakes1.com and its principal Sinicropi to disclose the e-mail addresses of the anonymous individuals who were posting comments critical of them on the website. See id. ¶ 28. This conduct was allegedly performed without a warrant or subpoena and under the pretext of a pending criminal investigation. See id. Plaintiffs also contend that Sinicropi and Fingerlakes1.com provided the requested information without providing plaintiffs' with the proper notice required under the ECPA. See id.
Moreover, plaintiffs claim that when Larson and Connolly "could not determine the identities of all the Plaintiff from the information provided by Sinicropi because many of the email [addresses] were ... anonymous," defendants enlisted the help of Swinehart. See id. ¶ 29. Plaintiffs further allege that Swinehart, at the request of Connolly and Larson and with the help of Stenberg, issued a series of allegedly "illegal subpoenas" to various internet providers, including TWC to determine the identity of individuals who posted on an internet website. See id. Plaintiffs allege that Swinehart "knew, or should have known" of the illegal motives in requesting these subpoenas. See id., ¶ 30. Plaintiffs claim that Connolly and Larson started a campaign to retaliate against and harass them for their public criticism after conclusively identifying plaintiffs through the subpoenas. See id. ¶¶ 32-33. The alleged retaliation included surveillance and monitoring by Seneca County deputies involving defendants VanCleef, Constable and Buck, denial of promotions, job assignments and additional training for plaintiffs that were employed by Seneca County, and various other retaliatory tactics. See id. ¶¶ 34-39.
The Complaint also asserts that Cirencione was "targeted for retaliation" by Secor and Getman as a result of her "sending electronic mail to the former County Manager and making internet postings criticizing officials in Seneca County government[.]" See id. ¶ 39. Plaintiffs allege that the retaliatory action taken by Secor and Getman involve "illegally subpoena[ing] Cirencione's internet records using a subpoena issued by the County Attorney's office[,]" and banning Cirencione from Seneca County property "because Secor knew who 'Madison' was. See id. Madison is... Cirencione's 'handle' for posts on Fingerlakes1.com." See id.
The Complaint alleges that plaintiffs learned of the allegedly illegal conduct of the defendants in "late March 2007, ... after being contacted by Ontario County District Attorney Michael Tantillo, the special prosecutor assigned to investigate the actions of Connolly, Larson and others." See id. ¶ 40. In addition, plaintiffs claim that as a result of the investigation, the Grand Jury indicted Connolly and Larson on a range of criminal charges. See id. ¶ 41. Further, plaintiffs contend that the Grand Jury issued a report recommending disciplinary action against Getman, Secor, Swinehart, Stenberg, VanCleef, Constable and Buck for their actions against plaintiffs involving the misuse of subpoenas to learn the identities of the plaintiffs. See id. ¶ 43.
I. Defendant's Motion for Judgment on the Pleadings and Defendants' Motion to Dismiss
A Rule 12(c) motion is decided under the same standard as a Rule 12(b)(6) motion. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052 (2000). In reviewing a motion to dismiss under Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). The plaintiff must satisfy "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." See Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, ----, 127 S.Ct. 1955, 1969 (2007). The Court does not, therefore, require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." See id. at 1974. In order to state a claim, the factual allegations contained in the complaint "must be enough to raise a right to relief above the speculative level." See id. at 1965. Where a plaintiff "ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed." See id. at 1974.
Further, in reviewing a motion to dismiss under Rule 12(b)(6), "the district court is normally required to look only to the allegations on the face of the complaint." See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007). The Court may only consider a document not appended to the complaint if the document is "incorporated in [the complaint] by reference" or is a document "upon which [the complaint] solely relies and ... is integral to the complaint." See id. (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (emphases in original)).*fn6
II. Absolute Immunity Claims
A. Absolute Immunity Claim of Defendant Swinehart
Swinehart argues that the Court should dismiss plaintiffs' claims against him, as the District Attorney on the ground of absolute immunity. Swinehart contends that the subpoenas he is alleged to have issued is conduct that is "intimately associated with the judicial phase of the criminal process ." See Swinehart Br. at 6. (citations omitted) (emphasis in original). Plaintiffs contend that Swinehart was not acting in his role as an "advocate for the people" rather, he abused his power outside the confines of any legitimate criminal investigation. See Pls. Br. at 5.
The question of whether a prosecutor has absolute immunity "depends principally on the nature of the function performed, not on the office itself." See Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir.1993); see also Kalina v. Fletcher, 522 U.S. 118 (1997) (reaffirming this functional approach). Under Second Circuit case law, prosecutors are entitled to absolute immunity for those activities "'intimately associated with the judicial phase of the criminal process.'" See Hill v. City of New York, 45 F.3d 653, 660-61 (2d Cir.1995) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Ying Jing Gan, 996 F.2d at 530 ("It is well- settled that prosecutors performing prosecutorial activities that are 'intimately associated with the judicial phase of the criminal process' are entitled to absolute immunity from an action for damages under § 1983.") (quotation omitted); Robison v. Via, 821 F.2d 913, 918 (2d Cir.1987); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981). Activities falling within the ambit of this phrase include "initiating a prosecution and presenting the case at trial ... evaluating and organizing evidence for presentation at trial or to a grand jury ... or determining which offenses are to be charged." See Hill, 45 F.3d at 661. (citations omitted).*fn7 The protected category is thus a broad one, extending to "'virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate'" for the state. See id. (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994). T h e Complaint, which is the only statement of facts the Court can consider on a motion to dismiss, alleges that Swinehart, at the request of Connolly and Larson issued a series of allegedly illegal subpoenas to various internet providers to determine the identity of individuals who posted on an internet website. See Compl. ¶29. In addition, plaintiffs allege that Swinehart "knew, or should have known" of the illegal motives in requesting these subpoenas. See id., ¶30. Accepting these allegations as true, the court must decide whether those actions fall within the functions protected by absolute immunity. First, the Complaint alleges no facts that demonstrate the subpoenas were "intimately associated with the judicial phase of [any] criminal process[,]" against any of the plaintiffs. See Imbler, 424 U.S. at 430. There is nothing in the Complaint that shows that plaintiffs were arrested because of the subpoenas or that a criminal case was commenced due to information obtained from the subpoenas.
Second, Swinehart argues that the function alleged in plaintiffs' Complaint is "one which is part of the prosecutor's role as an advocate in the judicial process." See Swinehart Br. at 6. It is the party claiming absolute immunity who "bears the burden" of establishing its applicability." See Butz v. Economou, 438 U.S. 478, 506 (1978), accord Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.1996) (holding that prosecutors must show that they were acting as advocates when they engaged in challenged function). I find that Swinehart has not carried this burden. The alleged action undertaken by Swinehart--issuance of subpoenas to internet providers---has not been shown to fall within the scope of activities deemed to be closely related to the judicial phase of any criminal legal process against plaintiffs and thus is not protected by absolute immunity. As noted above, the motivation behind the defendants' actions is not of importance, so long as they were acting within their role as advocates for the state pursuing the judicial phase of a criminal case. See Hill, 45 F.3d at 661 (quoting Dory, 25 F.3d at 83)). At this stage of the pleadings, based on the allegations of the Complaint, the Court finds that Swinehart's motion to dismiss based on absolute immunity for the conduct alleged in the Complaint is denied without prejudice.
B. Absolute Legislative Immunity Claim of Defendant Getman
Legislators are entitled to absolute legislative immunity for claims brought under § 1983. See Bogan v. Scott-Harris, 523 U.S. 44 (1998). Under the Supreme Court's functional test of absolute legislative immunity, whether immunity attaches turns not on the official's identity, or even on the official's motive or intent, but on the nature of the act in question. See Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 210 (2d Cir.2003) (citing Bogan, 523 U.S. at 54) ("Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.") Specifically, legislative immunity shields an official from liability if the act in question was undertaken "in the sphere of legitimate legislative activity." See Bogan, 523 U.S. at 54 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)).*fn8 Legislative immunity bars suits for damages, injunctions and declaratory relief against legislators. See State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 81-88 (2d Cir.2007). Accordingly, legislators, whether in the local, state and regional levels, are entitled to absolute immunity for their legislative activities. See Bogan, 523 U.S. at 49; Harhay, 323 F.3d at 210.
Getman argues that the privilege of absolute immunity extends to an attorney for the legislative body and thus he is protected by the immunity. See Getman Br. at 15. The Complaint alleges that Getman subpoenaed Cirencione's internet records using a subpoena issued by the County Attorney's office. See Compl. ¶39. This action of defendant in issuing a subpoena for internet records of one of the plaintiffs "were, in form, quintessentially [non] -legislative." See Bogan, 523 U.S. at 55. The act for which immunity is sought by Getman is not within the "sphere of legitimate legislative activity." See id. at 54.
Accordingly, based on the limited allegations of the Complaint, Getman is not entitled to absolute legislative immunity. The Court finds that at this stage of the pleadings Getman's motion to dismiss on the basis of absolute legislative immunity as alleged in the Complaint is denied without prejudice.*fn9
III. Plaintiffs have failed to state a cause of action relating to First Amendment Retaliation
The Court of Appeals has instructed that the elements of a First Amendment retaliation claim are dependent on the "factual context" of the case before the district court. See Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). For instance, a public employee who alleges First Amendment retaliation must allege the following: "(1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest; (2) he or she suffered an adverse employment action; and (3) the speech was at least a substantial or motivating factor in the adverse employment action." See Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003) (internal quotation marks and citations omitted); see also Woodlock v. Orange Ulster B.O.C.E.S., 281 Fed.Appx. 66, 68, 2008 WL 2415726 at *1 (2d Cir. 2008). A private citizen, on the other hand, must allege: "(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' action effectively chilled the exercise of his First Amendment right." See Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.2001).
In the normal course, a public employee is not required to show that his or her speech was actually chilled due to the defendant's retaliatory conduct because, in the employment context, the public employee usually suffers an adverse employment action--above and beyond chilling--that would demonstrate injury. See Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir.2005) (public employee not required to allege actual chill in addition to adverse employment action); Gill v. Pidlypchak, 389 F.3d 379, 382 (2d Cir.2004) ("[I]t is well-settled that public employees alleging retaliation for engaging in protected speech are not normally required to demonstrate a chill subsequent to the adverse action taken against them.... [T]he employee's essential burden is to show that he or she was punished, not that his or her speech was 'effectively chilled' from that point forward."). Instead, it is ...