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Rosendale v. Brusie

March 25, 2009

DONALD P. ROSENDALE, PLAINTIFF,
v.
NANCY BRUSIE, AS AMENIA, N.Y. ZONING CODE ENFORCEMENT OFFICER, DONALD SMITH, INDIVIDUALLY AND AS FORMER AMENIA, N.Y. ZONING CODE ENFORCEMENT OFFICER AND TOWN OF AMENIA, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Cathy Seibel, J.

ORDER ADOPTING REPORT AND RECOMMENDATION

Before the Court is Magistrate Judge George A. Yanthis' Report and Recommendation (Doc. 30) ("Report") concluding that Defendants' Motion to Dismiss (Doc. 19) should be granted in its entirety.

I. Background

On September 18, 2007, Plaintiff Donald Rosendale commenced this action, which was referred by the Honorable Charles L. Brieant to Magistrate Judge Yanthis for all purposes on September 27, 2007.*fn1 On November 16, 2007, Plaintiff filed a First Amended Complaint ("Complaint") (Doc. 18), asserting several causes of action pursuant to 42 U.S.C. § 1983 and New York State law: (1) First Amendment retaliation, (2) violation of his Fifth and Fourteenth Amendment due process rights, (3) violation of his Fourteenth Amendment equal protection rights, and (4) violations of various provisions of New York law. Defendants moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on December 13, 2007. (Doc. 19.) Magistrate Judge Yanthis issued a Report and Recommendation on January 9, 2009, recommending that the Motion to Dismiss be granted. (Doc. 30.) Plaintiff filed objections to the Report on January 21, 2009 (Doc. 32), and Defendants filed a reply to those objections on February 4, 2009 (Doc. 34). Plaintiff filed a Memorandum in response to that reply on February 9, 2009.*fn2 (Doc. 35.)

This is the third case filed by Plaintiff against the Town of Amenia and its Zoning Code Enforcement Officers. In the first case, Rosendale v. Iuliano, 99-CV-11701 (DLC) ("Iuliano"), Plaintiff alleged that defendants, including Amenia and the Town Zoning Code Enforcement Officer, violated his substantive and procedural due process rights by issuing a special use permit to Tamarack Preserve Ltd. ("Tamarack"), a rod and gun club adjacent to Plaintiff's farm and home, and failing to enforce it. Summary judgment was granted in favor of the defendants because Plaintiff failed to establish a valid property interest in Amenia's land use regulation and enforcement, which under state law is a discretionary function. The Second Circuit affirmed the decision. Rosendale v. Iuliano, 63 Fed. App'x 52 (2d Cir. 2003).

In the second action, Rosendale v. LeJeune, 03-CV-6181 (CLB) ("LeJeune"), Plaintiff alleged, among other things, that the defendants, including Amenia and its Zoning Code Enforcement Officer, retaliated against him in violation of the First Amendment for speaking out regarding the defendants' failure to enforce land use regulations against Tamarack, a Nextel cell phone antenna adjoining his property, an allegedly illegal auto body repair shop, and a restaurant at an adjoining golf club. Judge Brieant entered summary judgment in favor of the defendants because the law of the case under Iuliano was that Plaintiff failed to establish that he had a protected property right in the enforcement of Amenia zoning laws. Rosendale v. LeJeune, 420 F. Supp. 2d 315, 322 (S.D.N.Y. 2006). In addition, the court found there was insufficient evidence of retaliation to permit a reasonable factfinder to conclude that Plaintiff's constitutionally protected conduct motivated the defendants' actions or omissions with respect to the enforcement of land use regulations against the specified entities. Id. at 324. The Second Circuit affirmed that decision as to the claims based on incidents occurring before February 13, 2002, the date of the third amended complaint in Iuliano, because they were barred by res judicata. Rosendale v. LeJeune, 233 Fed. App'x 51 (2d Cir. 2007). The Second Circuit vacated the decision, however, with respect to Plaintiff's First Amendment retaliation claims based on events occurring after February 13, 2002, stating that "there may be sufficient evidence to support" them. Id. at 52. But the Court of Appeals also held that such claims should be dismissed because they were not ripe for review, as Plaintiff had not exhausted his administrative remedies. Id. The Court adopts the remainder of the facts and procedural history of this case as set forth in the Report.

II. Discussion

A. Standard for Reviewing a Magistrate Judge's Report and Recommendation

A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific[,] written," and submitted "[w]ithin 10 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C).

Insofar as a report and recommendation deals with a dispositive motion, a district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C); see Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); Fed. R. Civ. P. 72 advisory committee's note (b).

The objections of parties appearing pro se are "generally accorded leniency" and should be construed "to raise the strongest arguments that they suggest." Milano v. Astrue, No. 05-CV-6527, 2008 U.S. Dist. LEXIS 74488, at *3-4 (S.D.N.Y. Sept. 26, 2008) (internal quotation marks omitted).*fn3 "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at *2-3 (S.D.N.Y. July 21, 2008) (internal quotations marks omitted).

B. Standard for Motion to Dismiss

1. Plaintiff's Objections

In evaluating the legal sufficiency of Plaintiff's Complaint, Magistrate Judge Yanthis applied the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), which requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face." (Report 9.) In addition, he explained that less stringent standards should be applied to pro se plaintiffs and that their complaints should be interpreted to raise the strongest arguments they suggest. (Id. (quoting Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).) Magistrate Judge Yanthis also acknowledged, however, that pro se plaintiffs are not exempt from the rules of procedural and substantive law. (Id. 9-10.)

Plaintiff objects to Magistrate Judge Yanthis' application of the Twombly standard in reviewing the legal sufficiency of his Complaint because he is a non-lawyer pro se plaintiff. He argues that Magistrate Judge Yanthis overlooked Erickson v. Pardus, 127 S.Ct. 2197 (2007), which, according to Plaintiff, holds that the "heightened" pleading standard set forth in Twombly does not apply to complaints drafted by non-lawyers. (Objections 9.)

Contrary to Plaintiff's assertions, Erickson did not hold that the pleading standard set forth in Twombly is inapplicable to pro se complaints drafted by non-lawyers. Rather, the Erickson Court, which cited Twombly in setting forth the proper pleading standard, found that the Tenth Circuit Court of Appeals had improperly departed from the liberal pleading standards of Federal Rule of Civil Procedure 8(a)(2), and that its departure was "even more pronounced" because the plaintiff was pro se. Erickson, 127 S.Ct. at 2200. Moreover, the Twombly standard is not a "standard of heightened fact pleading," but rather "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." Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008) (emphasis in original) (internal quotation marks omitted) (applying Twombly standard to pro se complaint and finding no amplification necessary to render claim plausible).

In evaluating the legal sufficiency of pro se complaints, the Second Circuit has applied the Twombly standard while being mindful of the "duty," emphasized in Erickson, "to construe more liberally" pro se complaints. Id. at 214 (vacating judgment that claim was insufficiently pleaded because complaint presented plausible claim and satisfied Rule 8(a) by giving defendant notice of claim and grounds on which it rested); accord Bisson v. Martin Luther King Jr. Health Clinic, No. 07-CV-5416, 2008 U.S. App. LEXIS 23977, at *2 (2d Cir. Nov. 20, 2008) ("Like any other complaint, a pro se complaint, to survive a motion to dismiss, must plead enough facts to state a claim to relief that is plausible on its face." (internal quotation marks and ellipses omitted)); Fransua v. Vadlamudi, No. 05-CV-1715, 2008 U.S. App. LEXIS 23236, at *2 (2d Cir. Nov. 3, 2008) (pro se plaintiff complaint properly dismissed because it did not contain enough facts to state claim to relief). Accordingly, by applying the Twombly standard while being mindful of the duty to construe pro se complaint liberally, Magistrate Judge Yanthis used the appropriate standard for reviewing the legal sufficiency of Plaintiff's complaint.

2. Rule 12(b)(6) Standard

Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 127 S.Ct. at 2200 (quoting Twombly, 550 U.S. at 555). When ruling on a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the court "must accept as true all of the factual allegations contained in the complaint," id., and must draw all inferences from those allegations in the plaintiff's favor, Bisson, 2008 U.S. App. LEXIS 23977, at *2. "To survive a motion to dismiss, a complaint must contain 'only enough facts to state a claim to relief that is plausible on its face.'" Fransua, 2008 U.S. App. LEXIS 23236, at *2 (quoting Twombly, 127 S.Ct. at 1974). But a plaintiff must provide enough facts to "nudge[ his] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570.

Documents filed pro se are to be "liberally construed" and pro se complaints, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson, 127 S.Ct. at 2200 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), and as such, must be interpreted to "raise the strongest arguments that they suggest," Bisson, 2008 U.S. App. LEXIS 23977, at *3 (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). "This is particularly so when the pro se plaintiff alleges that [his] civil rights have been violated." Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

"Accordingly, the 'dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases.'" Id. (quoting Boykin, 521 F.3d at 216).

C. First Amendment Retaliation

Plaintiff alleges that Defendants retaliated against him for cooperating with alleged state and federal investigations of Amenia officials accused of corruption, writing to and appearing before municipal boards, and bringing a number of state and federal lawsuits. (Compl. ¶¶ 4, 43.) He claims that Defendants retaliated against him by refusing to enforce zoning ordinances, wrongfully taxing him, interfering with a contract of sale for a portion of his land, and threatening to cancel his senior citizen and agricultural tax exemptions. (Id. ¶¶ 2, 5, 45, 52.) Plaintiff further contends that Defendants' retaliatory actions have chilled his speech, in that he ...


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