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Dunk v. Brower

March 12, 2009


The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.


Plaintiff Rodney Van Dunk initiated this action on August 9, 2007 by filing an eight-count complaint. On October 26, 2007, Defendants Town of Ramapo, John Doe #1, John Doe #2, John Doe #3, Pascocello, and Peter Brower filed a motion to dismiss Counts I, II, III, VI, VII, and VIII of Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In support of the motion to dismiss Count VI was an affidavit of Janice Gittelman, Esq., which referenced various exhibits including an affidavit of P.O. Pascocello, a police report and certificate of conviction of Plaintiff for a prior incident, and Section 402 of New York Vehicle and Traffic Law. This Court converts the motion to dismiss Count VI into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.*fn1 Also on October 26, 2007, Defendants Advanced Fighting Systems and Phil Dunlap filed a motion to dismiss Counts I, II, III, IV, and V of the complaint. On November 11, 2007, Plaintiff filed leave to amend his complaint, which was granted by consent at a conference before Judge Charles L. Brieant on December 7, 2007 (the "Second Amended Complaint"). Plaintiff filed opposition papers to the Defendants' motions to dismiss on November 16, 2007. Included in those opposition papers was an affidavit of Plaintiff. On January 4, 2008, during oral arguments before Judge Charles L. Brieant, the Parties agreed that Plaintiff would withdraw and discontinue, without prejudice, Counts I and II of the Second Amended Complaint.*fn2

For the reasons that follow, Defendants' motions to dismiss are granted in part and denied in part. Defendant Pascocello's motion for summary judgment on Count VI is granted in its entirety.


I. The Parties

Plaintiff Rodney Van Dunk ("Plaintiff") is a resident of the Village of Hillburn, located in the town of Ramapo, and a citizen of the State of New York. (Sec. Am. Compl. ¶ 1.) Defendant Phil Dunlap ("Dunlap") is a resident of the Township of Mahwah and a citizen of the State of New Jersey. (Id. ¶ 5.) Defendants John Doe #1, John Doe #2, and John Doe #3 ("John Doe Officers") are employees of the Town of Ramapo Police Department ("Police Department") and are all residents of the State of New York. (Id. ¶ 3.) Defendant Advanced Fighting Systems ("AFS") is a New Jersey corporation with its principal place of business in Township of Mahwah in the State of New Jersey. (Id. ¶¶ 4, 8.) Dunlap is the principal in, and managing officer of, AFS. (Id. ¶ 8.) Plaintiff had enrolled at AFS to receive training in martial arts fighting. (Id. ¶ 10.) Defendants Edward Pascocello ("Officer Pascocello") and Peter Brower ("Police Chief Brower") are both employees of the Town of Ramapo Police Department and are residents of the State of New York. (Id. ¶ 3.) Prior to mid-2006, Brower was a captain in the Police Department and, in 2006, was promoted to Chief of the Police Department. (Id. ¶ 24.) Defendant Town of Ramapo ("Town of Ramapo" or "Ramapo") is a municipal corporation located in Rockland County, New York. (Id. ¶ 2.)

II. Factual Allegations for the Purposes of the Motion to Dismiss Counts III, IV, V, VII and VIII

The following facts are drawn from the allegations in Plaintiffs' Second Amended Complaint and assumed to be true for the purposes of this motion to dismiss. Cruz v. Beto, 405 U.S. 319, 322 (1972); Oteze Fowlkes v. Adamec, 432 F.3d 90, 95 (2d Cir. 2005).

a. Concerning Defendants AFS, Dunlap, and John Doe Officers

Plaintiff enrolled at AFS to receive training in martial arts. (Sec. Am. Compl. ¶ 10.) In doing so, Plaintiff entered into a contract and/or contractual relationship with AFS, one that had explicit and implicit terms. (Id.) Several Ramapo police officers are also enrolled at AFS. (Id.) AFS advertises its services on the internet and, since its principal place of business is located approximately one mile from the New York state line, the corporation draws its clientele from a market area that encompasses portions of both New York and New Jersey. (Id. ¶¶ 8, 9) Plaintiff alleges that AFS is a place of public accommodation within the meaning of the Civil Rights Act of 1964. (Id. ¶ 8.)

Plaintiff is a member of the Hillburn community, which is a village in Ramapo, New York, adjacent to the Stag Hill community in Mahwah, New Jersey. (Id. ¶ 14.) The Hillburn and Stag Hill communities primarily consist of members of the Ramapough Lenape Nation, a Native American tribe recognized by the States of New York and New Jersey. (Id.) Plaintiff is an active member of the Ramapough Nation and is involved in the tribe's affairs. (Id.) Plaintiff alleges that the phrase "Hillburn Community" is a euphemism for the derogatory term "Jackson Whites," used to refer to members of the Ramapough Nation. (Id. ¶ 12A.)

On or about June 10, 2006, Dunlap, who is the principal managing officer of AFS, called Plaintiff and suggested that Plaintiff not return to AFS. (Id. ¶ 12.) Dunlap told Plaintiff that the Police Department had called him and made comments regarding the Hillburn community and that, because of these comments, "it would be best if [Plaintiff] did not return to the school." (Id.) These comments included: that the Hillburn community was "racially mixed and suspect," that members of the community had "communication problems with the Ramapo Police," and that Hillburn community members had "curious, even bizarre racial characteristics." (Id.) In the next week, Plaintiff and Dunlap had several more telephone conversations in which Dunlap restated these comments and maintained that Plaintiff should not return to AFS. (Id.) In one of these conversations, Dunlap named two to three officers (identified as John Does #1, #2, and #3 in Plaintiff's Second Amended Complaint) as the source of the comments about Plaintiff. (Id.)

b. Concerning Defendants Police Chief Brower and Town of Ramapo

On June 15, 2007, following an incident involving Plaintiff and Defendant Officer Pascocello (described in Section III infra), the Plaintiff attempted to issue a verbal complaint, by telephone, against Officer Pascocello. (Sec. Am. Compl. ¶ 19.) However, the officer on the telephone, Sergeant DeMaio (who is not a named defendant in this action), refused to take down the complaint. (Id.) Such a refusal to enter a verbal complaint into record is allegedly against the Ramapo Police Department General Order 202.4(1)(A).*fn3 (Id.)

The next day, Saturday, June 16, 2007, the Plaintiff filed a written complaint regarding his encounter with Officer Pascocello, this time in person at the Ramapo Police Headquarters. (Id. ¶ 20.) However, Plaintiff was allegedly refused a copy of his written complaint and has been refused a copy the several times he has returned and asked for one. (Id. ¶¶ 20, 21.) Furthermore, Plaintiff has allegedly made numerous verbal complaints to Police Chief Brower regarding racial harassment suffered by men in the Ramapough community at the hands of Ramapo police officers. (Id. ¶ 25.)

In the Spring of 2006, there was a public meeting held at the Ramapough Nation Lodge to address issues surrounding the alleged murder of a member of the community by New Jersey park police. (Id. ¶ 23.) Police Chief Brower and Ramapo Supervisor St. Lawrence (who is not a named defendant in this action) were present. (Id.) Plaintiff rose at this meeting and addressed Chief Brower and Supervisor St. Lawrence; he complained about the pattern and practice of racial harassment and profiling employed by Ramapo police officers against men in the Ramapough community. (Id.)

Prior to mid-2006, Police Chief Brower was a captain in the Ramapo Police Department. (Id. ¶ 24.) In violation of General Order #202,*fn4 Chief Brower never took action regarding Plaintiff's complaints about the conduct of Ramapo police officers. (Id. ¶ 26.)

III. Relevant Facts for the Purposes of the Motion for Summary Judgment on Count VI

On Friday, June 15, 2007, Plaintiff was sitting in his parked car at an area adjacent to the Fourth Street Bridge in Hillburn.*fn5 (Sec. Am. Compl. ¶ 15.) Officer Pascocello, after hearing "loud popping noises" and "observ[ing] smoke," appeared at the scene to investigate. (Pasc. Aff. ¶ 2.) He observed Plaintiff's car and another car with two men standing in front of it; the two cars were parked approximately five feet from each other. (Id.) Officer Pascocello approached the two men, who he saw were in possession of fireworks, and confiscated the fireworks. (Id.)

Officer Pascocello then approached Plaintiff's car and noticed that the car's front license plate was missing. (Pasc. Aff. ¶ 2.) Officer Pascocello asked Plaintiff for identification; Plaintiff replied that he did not have any and asked the officer why identification was being requested. (Id.) At this point, the officer recognized who Plaintiff was and recalled that Plaintiff had been arrested in the past for assaulting a police officer. (Id.) Officer Pascocello subsequently asked Plaintiff exit to his truck. (Id.) As Plaintiff exited the vehicle, Officer Pascocello "noticed that the front of [Plaintiff's] shorts was bunched up in the area of where pockets would be." (Id.) The officer then conducted a "pat-down" procedure on the exterior of Plaintiff's shorts. (Pasc. Aff. ¶ 3.)

After this encounter with Plaintiff, Officer Pascocello resumed his conversation with the two men in possession of fireworks. (Pasc. Aff. ¶ 4.) The men agreed to stop lighting the fireworks and, so, the officer decided not to issue any summonses in the matter. (Id.)


I. Motion to Dismiss: III, IV, V, VII and VIII

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court's role is to determine whether the pleadings are legally sufficient. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 48 (1957)). The district court must generally accept the factual allegations of the pleadings as true and draw all reasonable inferences in favor of the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).

The district court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (disregarding petitioners' allegation that they were denied a minimally adequate education because "no actual facts" were alleged in support of the assertion). As the Supreme Court clarified in Twombly, "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. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. The pleading standard is one of plausibility: the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face," id. at 1974; if the plaintiff "ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed." Id.; see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) ("[W]e believe the Court [in Twombly] is not ...

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