The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff William Morse ("Morse" and/or "plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against The County of Seneca ("Seneca County"), Leo T. Connolly ("Connolly"), James R. Larson ("Larson"), Burl Osbourne ("Osbourne"), Richard Swinehart, the Seneca County District Attorney ("Swinehart"), James Sinicropi ("Sinicropi"), FingerLakes1.com, Inc. and TimeWarner Cable, Inc. ("TWC")*fn1 claiming that his civil rights were violated in connection with the retaliation he experienced for the public criticism of defendants. Specifically, plaintiff alleges six 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"); (4) Electronics Communication Privacy Act ("ECPA") claim pursuant to 18 U.S.C. § 2701 et seq. ("Fourth Cause of Action"); (5) violation of the Cable Communications Privacy Act under 47 U.S.C. § 551 et seq. ("Fifth Cause of Action"); and intentional infliction of emotional distress ("Sixth Cause of Action").
Plaintiff seeks injunctive relief, compensatory damages, punitive damages and attorney's fees and costs for the deprivation of his civil rights. Several defendants filed a total of four motions to dismiss requesting various relief. Larson, Connolly and Swinehart move to dismiss plaintiff's Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(6), alleging that plaintiff has failed to state a claim upon which relief may be granted and that they are entitled to a dismissal as a matter of law. Moreover, Swinehart claims that the Complaint must be dismissed as to him based on the doctrine of absolute immunity. Further, Larson argues that the doctrine of qualified immunity applies to him and on this alternative basis the Complaint should be dismissed as to him. Defendants Seneca County and Osbourne move to dismiss the First, Third and Fifth Causes of Action.
Defendants brought similar motions on behalf of the same defendants in an action entitled Lukowski v. County of Seneca et al., 08-CV-6098. On February 24, 2009, prior to the time when plaintiff's opposition to defendants' motions to dismiss in this present case was due, the Court issued its Decision and Order on the Lukowski v. County of Seneca et al. case. See Lukowski v. County of Seneca, 2009 WL 467075 (W.D.N.Y. February 24, 2009) ("Lukowski Decision"). On February 27, 2009, plaintiff submitted opposition papers to defendants' motions stating that "[b]oth the Complaint in Lukowski and the Complaint in Morse involve the same essential wrong doing on the part of the Defendants as alleged, and the causes of action, with certain exceptions, are similarly worded in each Complaint." See Pl. Opp. Br. at 1.*fn2 Based on the Lukowski Decision, plaintiff acknowledges that this Court will render a similar decision in this case. Accordingly, plaintiff in essence concedes the dismissal with prejudice of the First Cause of Action for First Amendment Retaliation; Third Cause of Action for Conspiracy under 42 U.S.C. § 1985*fn3 and Fifth Cause of Action alleging a violation of the Cable Communications Privacy Act. See id. at 2.*fn4
Plaintiff, however argues that the Second Cause of Action, Fourth Cause of Action and Sixth Cause of Action and the claim of absolute immunity asserted by Swinehart should survive. See id. In reply to plaintiff's opposition, defendant Swinehart requests that the Court convert his motion to dismiss into a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The remaining defendants, Larson, Connolly, Seneca County and Osbourne submitted reply papers in support of their motions to dismiss pursuant to Rule 12(b)(6) failure to state a claim.
For the reasons set forth below, defendants' motions to dismiss are granted and Swinehart's motion for summary judgment is granted.
Plaintiff alleges that he frequently posted anonymous comments on a local website known as Fingerlakes1.com that maintained a community forum. See Compl. ¶ 13. Plaintiff's comments on the website were often critical of defendants Connolly and Larson. See id., ¶ 14. He alleges that Connolly and Larson wrongfully obtained information from Fingerlakes1.com and TWC that allowed them to reveal the identity of the plaintiff and the anonymous comments that he had made. See id., ¶ 17. Moreover, plaintiff contends that Connolly and Larson started a campaign of retaliation against plaintiff for his public criticism, which allegedly included having deputies follow him. See id., ¶ 25. In addition, plaintiff claims that Osbourne intentionally served plaintiff with eviction papers at the wrong address resulting in his eviction from his residence. See id., ¶¶ 26-28.
I. Standards for Summary Judgment and Motion to Dismiss
A. Defendants' Motions to Dismiss
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." ...