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Manbeck v. Micka

July 30, 2009

PETER C. MANBECK, WENDY GENNIMI, JAY AND CAROL DURANTE, LYNN AND DAVID GUTTERMUTH, MARY CLARK, DANIEL PRITCHARD, GEOFFREY SHAW, DAVID OLTMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
EUGENE MICKA, CATHERINE MICKA, ANDREW WEINGARTEN, KATHY WEINGARTEN, PAUL TAFT, TRACY TAFT, TOWN OF LEWISBORO, JAMES NORDGREN, TOWN SUPERVISOR AND FORMER MEMBER OF THE TOWN PLANNING BOARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, ALLEN HERSHKOWITZ, TOWN COUNCILMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JAY FAIN, WETLAND INSPECTOR, FORMER WETLAND CONSULTANT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JAY FAIN & ASSOCIATES, LLC, PLANNING BOARD, JACQUELINE DZALUK, CHAIRWOMAN OF THE PLANNING BOARD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, JOSEPH DECAMINADA, MEMBER OF THE PLANNING BOARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, FREIDA HALPERN, MEMBER OF THE PLANNING BOARD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, MAUREEN MAGUIRE, MEMBER OF THE PLANNING BOARD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, P.J. ROSSI, MEMBER OF THE PLANNING BOARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, VINCENT VETRANO, FORMER CHAIRMAN OF THE PLANNING BOARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MARGARET A. CLARK, PLANNING BOARD ATTORNEY INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, CONSERVATION ADVISORY COUNCIL, MARK PATEK, CHAIRMAN OF THE CONSERVATION ADVISORY COUNCIL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, BUILDING DEPARTMENT, WILLIAM CARGAIN, BUILDING INSPECTOR, AND FORMER WETLAND INSPECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, PETER BARRETT, DEPUTY BUILDING INSPECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, WILLIAM AGRESTA, TOWN PLANNER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER MODIFYING REPORT ADOPTING IN PART AND AND RECOMMENDATION

Before the Court are Plaintiffs' Objections to the Report and Recommendation of Magistrate Judge George A. Yanthis dated March 5, 2009 (the "R&R"), recommending that this Court (1) grant Defendants' motions for summary judgment seeking the dismissal of all claims in this action, and (2) deny Plaintiffs' cross-motions for summary judgment. (Doc. 104.) For the following reasons, the Court adopts the R&R to the extent that it is consistent with this Order and dismisses in their entirety Plaintiffs' claims against all Defendants.

I. BACKGROUND

This case is the latest of three related actions in which Plaintiffs, property owners in the Town of Lewisboro, New York (the "Town"), allege constitutional violations arising out of the Town's regulation of wetland use and development pursuant to Chapter 217 (the "Wetland Laws") and Chapter 220 (the "Zoning Laws") of the Code of the Town of Lewisboro (the "Town Code").*fn1 Plaintiffs name twenty-five Defendants in the present action, including the Town; Town Supervisor James Nordgren; Town Councilman Allen Hershkowitz; the Town Planning Board; Planning Board Chairwoman Jacqueline Dzaluk; Planning Board members Joseph DeCaminada, Freida Halpern, Maureen Maguire, and P.J. Rossi; former Planning Board Chairman Vincent Vetrano; Planning Board Attorney Margaret A. Clark; the Town Conservation Advisory Council; Chairman of the Conservation Advisory Council Mark Patek; the Town Building Department; Building Inspector and former Wetland Inspector William Cargain; Deputy Building Inspector Peter Barrett; Town Planner William Agresta;*fn2 Wetland Inspector and former Wetland Consultant Jay Fain; Jay Fain & Associates LLC;*fn3 and Plaintiffs' private-party neighbors Eugene and Catherine Micka, Paul and Tracy Taft, and Kathy and Andrew Weingarten.*fn4 Familiarity with these proceedings is presumed. The Court will discuss the procedural posture of this case only as it is relevant to the preclusive effect of the prior actions. Otherwise, I adopt the statement of Plaintiffs' factual allegations as thoroughly set forth in the R&R.

Plaintiff Peter C. Manbeck commenced the first action, captioned Manbeck, et al. v. Micka, et al., 05-CV-4576 ("Manbeck I"),*fn5 on May 10, 2005. (Manbeck I, Doc. 1.) The Manbeck I plaintiffs filed a First Amended Complaint on June 14, 2005, adding Wendy Gennimi, Mark Mosello, Jay and Carol Durante, Efrain Cubides, Michael Honig, Lynn and David Guttermuth, Bruce Cascio, Siro Cortina, Luigi Imperia, Jerilynn Hagan, and Roger Moister, Jr. as representative plaintiffs, and naming the Town and certain Town officials and departments as defendants. (Manbeck I, Doc. 9.) The Manbeck I First Amended Complaint asserted twenty-three counts, including: a challenge to the Wetlands Laws as unconstitutionally vague; causes of action for violations of the Manbeck I plaintiffs' due process and equal protection rights premised on allegations of selective enforcement and deprivation of the right to counsel and to call witnesses at the Planning Board hearings relating to the Manbeck I plaintiffs' violations; and additional claims under the Hobbs Act, 18 U.S.C. § 1951, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and New York State law, among others.

On September 26, 2005, the Manbeck I plaintiffs moved the Court for leave to further amend the First Amended Complaint to add Mary Clark, Daniel Pritchard, George Shaw, and Goran Djordjeveski as plaintiffs (Manbeck I, Docs. 37, 39), and filed a Second Amended Complaint to this end on September 30, 2005 (Manbeck I, Doc. 50). At proceedings held on September 30, 2005, Judge Brieant denied the Manbeck I plaintiffs' motion for leave to file a Second Amended Complaint, prompting the commencement of a related action on behalf of Clark, Pritchard, Shaw and Djordjeveski on October 11, 2005, captioned Clark, et al. v. Town of Lewisboro, et al., 05-CV-8644 (the "Clark Action"), asserting virtually identical claims against substantially the same defendants as named in Manbeck I.

Consistent with his earlier oral ruling, Judge Brieant issued a Memorandum and Order dated November 10, 2005, providing, among other things, that the Manbeck I plaintiffs' Second Amended Complaint be stricken from the record on the grounds that the "Court previously denied Plaintiffs' motion to file a second amended complaint," and the Manbeck I plaintiffs had not received leave of Court to do so. (Manbeck I, Doc. 47.) Nevertheless, by Endorsement Order dated November 16, 2005, Judge Brieant ordered that the section of the November 10, 2005, Memorandum and Order regarding the Second Amended Complaint be deleted, and that the Manbeck I litigation proceed based on the Second Amended Complaint. (Manbeck I, Doc. 49.) Having thus rendered the Clark Action redundant, Judge Brieant, by Order dated January 17, 2006, directed that Manbeck I and the Clark Action be consolidated for all purposes pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, and that the Manbeck I docket number be used for "[a]ll papers filed and proceedings [t]hereafter conducted in [the consolidated] cases." (Manbeck I, Doc. 55.)

Although the Clark Action had been consolidated with Manbeck I, the Clark Action plaintiffs' moved for leave to amend their complaint in the Clark Action, and Magistrate Judge Yanthis granted the motion on April 19, 2006, by Stipulation and Order. (Manbeck I, Doc. 84.) Accordingly, on May 2, 2006, the named plaintiffs in the Clark Action filed their First Amended Complaint, adding Conservation Advisory Council Chairman Mark Patek and Building Inspector William Cargain as defendants. (Manbeck I, Doc. 85.) The only new claims contributed to the consolidated case by the First Amended Complaint filed in the Clark Action were Clark's First Amendment and equal protection claims alleging that the Planning Board refused to review her application for a wetland activity permit in retaliation for her joining as a named plaintiff in Manbeck I (Clark Action, Doc. 14., Count 13), and claims that the Town Defendants and Fain Defendants conspired to violate the Clark Action plaintiffs' rights to freedom from unreasonable searches (id.,Count 25).

During the course of discovery in the consolidated action, Plaintiffs claim to have discovered evidence purportedly linking the Private Defendants to a conspiracy with the Town Defendants and the Fain Defendants to violate Plaintiffs' constitutional rights, prompting the Manbeck I plaintiffs to move for leave to file a further amended complaint adding the Private Defendants. (Manbeck I, Doc. 117.) Judge Brieant denied the motion to further amend during proceedings held on March 30, 2007, "on the ground that the case ha[d] been pending too long to add additional parties" (Hr'g Tr. 7:20 - 8:2, Mar. 30, 2007), thus prompting Plaintiffs to commence the present action, captioned Manbeck, et al. v. Micka, et al., 07-CV-2642 ("Manbeck II") on March 30, 2007. (Doc. 1.) The Complaint in this action asserts thirty causes of action, which are mostly duplicative of those asserted in the previous cases. The cases being nearly identical, Manbeck II was assigned to Judge Brieant, who referred the case to Magistrate Judge Yanthis for all purposes (Doc. 12), who, in turn, ordered that discovery be stayed pending resolution of Manbeck I.

On March 4, 2008, Magistrate Judge Yanthis issued a Report and Recommendation (the "Manbeck I R&R") recommending that the Court grant the Manbeck I and Clark Action defendants' motions for summary judgment and dismiss all claims against them in both cases. (Doc. 230.) Specifically, Judge Yanthis made the following substantive recommendations, among others:

* The plaintiffs' claims that the definition of "wetlands" in the Wetlands Laws is unconstitutionally vague on its face and as applied should be dismissed, as five of the six plaintiffs charged with violations had actual knowledge of wetlands on their property before the alleged violations occurred and the sixth, Gennimi, could not challenge the Wetlands Laws as the identification of the wetlands bordering her property was made by the New York State Department of Environmental Conservation, not the Town. (Manbeck I R&R 12.)

* The plaintiffs' claims that the fines levied against them by the Planning Board violated the Eighth Amendment's prohibition against excessive fines should be dismissed, as (1) the plaintiffs failed to cite any authority for the proposition that administrative penalties are subject to the Eighth Amendment; and (2) the plaintiffs failed to establish that the penalties were grossly disproportionate to the gravity of the offense, as five of the six plaintiffs were assessed penalties of $500 or less and the sixth, Gennimi, was only assessed a total of $25,000 because she committed four separate violations and repeatedly failed to remedy her initial infraction and bring her property into compliance with the Wetlands Laws. (Id. 14.)

* The plaintiffs' equal protection claims premised on the Town's failure to pursue wetlands violations against the School District, the Town Highway Department, and Town resident and landowner Adam Rose should be dismissed on the grounds that: (1) municipal liability was not implicated as the plaintiffs failed to allege that Fain was implementing a policy or custom; (2) the School District and the Highway Department are not similarly situated as neither of them are "a person or property owner" within the meaning of the Wetlands Laws conferring jurisdiction on the wetlands inspector; (3) the plaintiffs failed to satisfy the second prong of the selective prosecution test, as: (a) they did not provide any theory as to why Fain harbored ill feelings against them, (b) they did not claim membership of any uniform race, religion, sex, or affiliation, and (c) plaintiffs had no fundamental right to demand enforcement of the laws against their neighbors; and (4) the plaintiffs did not satisfy the requirements of a "class of one" claim because a wetlands inspector has a rational basis to believe that initiating charges against admitted Wetlands Law violators serves the legitimate goals of the Town. (Id. 15-19.)

* The plaintiffs' Sixth Amendment claims should be dismissed as the plaintiffs were all given notice that the Wetlands Laws permit those charged with violations to be represented by counsel, to present evidence, and to examine any witness. (Id. 19.)

* The plaintiffs' Due Process claims should be dismissed because: (1) none of the plaintiffs alleged that they were charged with violations at the Planning Board hearings that were not contained in their summons and notice of violation; (2) the record was devoid of any evidence that the Planning Board members pre-judged the plaintiffs' liability based on internal violations summaries that were circulated before the hearings; and (3) Gennimi, Durante, and Manbeck did not have a constitutionally protected property interest in the building permits that were affected by the temporary suspensions effected by the issuance of stop work orders. (Id. 19-23.)

* The plaintiffs' Fourth Amendment claims should be dismissed because the Town had a legitimate interest in protecting its wetlands and the plaintiffs had diminished expectations of privacy because all inspections were either done in response to a complaint or as part of a permit process and there was no indication in the record that any of the plaintiffs went to lengths to prevent the visual inspection of their property. (Id. 24.)

* The plaintiffs' conspiracy claims should be dismissed because: (1) their failure to state a claim under 42 U.S.C. § 1983 prohibits conspiracy liability under Section 1983; and (2) their failure to demonstrate some racial or otherwise class-based discriminatory animus prohibits conspiracy claims under 42 U.S.C. § 1985. (Id. 26.)

* The plaintiffs' Hobbs Act and RICO claims should be dismissed for insufficient evidence in the record to support a claim that any defendant conspired with any party to extort money. (Id.)

Judge Brieant adopted the Manbeck I Report and Recommendation in full on March 24, 2008. (Manbeck I, Doc. 240.) On March 27, 2008, Plaintiffs filed a Notice of Appeal to the Court of Appeals for the Second Circuit. (Manbeck I, Doc. 242.)

Following the dismissal of all claims in Manbeck I, on June 9 and 10, 2008, the Town Defendants, the Fain Defendants, the Weingartens, the Mickas, and the Tafts moved separately for summary judgment seeking the dismissal of all claims in Manbeck II. (Docs. 38, 39, 40, 41, 42, 43, 44.) From the end of September 2008 through early October 2008, Plaintiffs filed their papers in opposition to Defendants' respective motions and cross-moved for summary judgment against all Defendants. (Docs. 48, 49, 55, 57, 58, 59, 60, 61, 62.) Defendants filed their reply papers from late October 2008 through mid-November 2008. (Docs. 76, 77, 79, 81.) Plaintiffs filed their reply papers on December 1 and 2, 2008. (Docs. 86, 88, 89, 90, 91, 92.)

Magistrate Judge Yanthis issued the R&R on March 5, 2009, recommending that Defendants' motions for summary judgment be granted and that Plaintiffs' cross-motions for summary judgment be denied. (R&R 29-30.) Specifically, Judge Yanthis made the following substantive recommendations, among others:

* Plaintiffs' claims against the Town Defendants and the Fain Defendants arising from facts which occurred on or before the date the First Amended Complaint was filed in Manbeck I should be dismissed as precluded under the doctrines of res judicata and collateral estoppel. (Id. 17-18.)

* Plaintiffs' federal conspiracy claims against the Private Defendants should be dismissed for failure to produce sufficient evidence of a conspiracy with state actors or discriminatory animus. (Id. 20-22.)

* Plaintiff Gennimi's malicious prosecution claims against the Town Defendants should be dismissed for failure to establish that the underlying actions terminated in her favor. (Id. 22-25.)

* Plaintiff Clark's equal protection claims against the Town Defendants should be dismissed for failure to produce evidence of similarly situated persons who were treated differently when applying for the same type of permit. (Id. 26-27.)

* Plaintiff Clark's First Amendment Retaliation claim against the Town Defendants should be dismissed for failure to submit any evidence that her speech was chilled. (Id. 27.)

* Plaintiff Clark's procedural due process claim against the Town Defendants should be dismissed on ripeness grounds, as the Planning Board never issued a final decision to deny her permit and Clark never attempted to reschedule the Planning Board hearing. (Id. 29.)

Plaintiffs, with the exception of Gennimi, joined in filing Objections to the R&R on March 23, 2009 ("Pls.' Objs."). (Docs. 108, 109, 110.*fn6 ) Gennimi filed Objections to the R&R on March 20, 2009. (Doc. 107.) By Order dated March 31, 2009 (Doc. 112), Gennimi was directed to withdraw her previously filed fifty-five page memorandum of law as violative of my Individual Practices, and to file a memorandum of law in support of her objections of no more than thirty-five pages, which she did on April 7, 2009 ("Gennimi's Objs.") (Doc. 115). By separate letters, Defendants' counsel informed the Court that, in response to Plaintiffs' and Gennimi's Objections to the R&R, they rely on the papers filed in connection with their respective motions for summary judgment before the Magistrate Judge.

On May 29, 2009, the Court of Appeals issued a Summary Order affirming the award of summary judgment in favor of the Manbeck I and Clark Action defendants, concluding that none of the claims in the Manbeck I plaintiffs' over 330 pages of opening briefs had "any merit." See Manbeck v. Town of Lewisboro, No. 08-CV-1543, 2009 U.S. App. LEXIS 11524, at *2 (2d Cir. May 29, 2009).

II. DISCUSSION

A. STANDARDS OF REVIEW

1. Review of Magistrate Judge's Report & 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. ยง 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 ...


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