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Wood v. Town of East Hampton

September 30, 2010

ROBERT A. WOOD, PLAINTIFF,
v.
THE TOWN OF EAST HAMPTON, TODD H. SARRIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, KEVIN SARLO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MICHAEL SARLO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, THE VILLAGE OF EAST HAMPTON, PAUL RICKENBACH, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, GERRARD LARSEN, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MICHAEL TRACEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, RICHARD H. SCHNEIDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND JULIO MARIO GALEANO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiff Robert A. Wood seeks recovery for alleged violations of his constitutional rights under 42 U.S.C. §§ 1983, 1985 and 1986. Plaintiff also asserts New York state law causes of action for false arrest and imprisonment, malicious prosecution, and intentional infliction of emotional distress. Presently before the Court are: (1) a motion to dismiss filed by defendants Village of East Hampton (the "Village"), Paul Rickenbach, Jr. ("Rickenbach"), Michael Tracey ("Tracey"), Richard H. Schneider ("Schneider"), and Julio Mario Galeano ("Galeano") (collectively, the "Village Defendants") pursuant to Federal Rule of Civil Procedure 12(b)(6), and (2) a motion for judgment on the pleadings filed by defendant Gerrard Larsen, Jr. ("Larsen") pursuant to Federal Rule of Civil Procedure 12(c).*fn1 For the reasons stated below, the motions are GRANTED in part and DENIED in part.

BACKGROUND

The following facts are taken from the Complaint and are presumed true for purposes of these motions.

The Town of East Hampton (the "Town"), which is also a named defendant in this action but is not a party to the present motions to dismiss, and the Village of East Hampton (the "Village") are "two separate municipal entities which share the same name." (Compl., Ex. A at 1.)*fn2 "Although the Village is geographically situated within the Town, each entity has its own system of government and maintains its own police force." (Id.) The Town hired Plaintiff as a police officer in 1985, promoted him to the rank of sergeant in February 2004, and assigned him to the position of patrol supervisor in April 2004. (Compl. ¶¶ 17, 22, 23.) Rickenbach was the mayor and a trustee of the Village. (Id. ¶ 11.) Larsen was the chief of police of the Village Police Department. (Id. ¶ 12.) Tracey and Schneider were the captain and lieutenant, respectively, of the Village Police Department. (Id. ¶¶ 13, 14.) Galeano was a police officer employed by the Village Police Department. (Id. ¶ 15.)

I. Larsen's Relationship With Plaintiff's Wife

In 2004 or 2005, Larsen began having an extramarital affair with Plaintiff's wife. (Compl. ¶¶ 12, 38.) Plaintiff alleges that, beginning in May 2005, Larsen began "to coach Wood's wife in the law and legal terminology for the purpose of buttressing her claims against Wood for their later use in divorce or child custody proceedings." (Id. ¶¶ 39, 47, 50.) In August 2005, Plaintiff's wife revealed the affair to Plaintiff and separated from him. (Id. ¶ 40.) Thereafter, Plaintiff frequently observed his wife and Larsen driving around in Larsen's police-issued, Village-owned Dodge Durango. (Id. ¶ 41.) Plaintiff submitted Freedom of Information Law ("FOIL") requests to the Village seeking Larsen's "duty charts" for the purpose of proving that Larsen was wasting taxpayer money by engaging in an extramarital affair "on Village time and at Village expense." (Id. ¶¶ 41, 43.) Initially, the Village produced Larsen's duty charts for the period between 2004 and 2006. (Id. ¶ 42.) Subsequently, however, Larsen told the Village to stop providing his duty charts to Plaintiff and, thereafter, the Village claimed that no further duty charts existed. (Id.) Plaintiff then wrote a letter to the Village Board of Elders "informing it of all the violations of the Village's rules and procedures that Larsen had engaged in" by using a police vehicle for personal purposes and failing to conduct himself in an "upright and moral manner." (Id. ¶ 43.)

In December 2005, Plaintiff's wife filed for divorce. (Id. ¶ 48.) As part of the divorce proceedings, the New York Supreme Court for Suffolk County issued an order that required Larsen to "stay away from [Plaintiff's] wife when the children were present." (Id.) Thereafter, Plaintiff "frequently observed Larsen socializing with [Plaintiff's] wife while the children were present." (Id. ¶ 49.) Plaintiff wrote a letter to Rickenbach and the Village Board of Elders informing them that Larsen had violated the aforementioned court order. (Id.)

On or about November 30, 2006, after vacating the marital premises pursuant to his pending divorce proceedings, Plaintiff returned to remove his personal belongings. (Id. ¶ 51.) Although Plaintiff's wife had previously agreed she would not be present while Plaintiff removed his belongings, she nonetheless "confronted" Plaintiff at the home. (Id.) Plaintiff's wife then called the Town police department and made false accusations of domestic violence against Plaintiff. (Id. ¶ 52.) Two Town police officers responded to the call. (Id.) In addition, Tracey and Larsen arrived in uniform and in Larsen's Dodge Durango despite the fact that the marital premises were outside the jurisdiction of the Village Police Department. (Id. ¶ 53.) According to Plaintiff, Tracey and Larsen responded to the scene with the "purpose of intimidating Wood, bolstering Wood's wife's claim, and using their rank as chief and captain of an adjoining agency to influence the responding officers from the Town." (Id.) No charges were filed against Plaintiff as a result of the incident. (Id. ¶ 54.) Plaintiff later wrote a letter to Rickenbach "questioning why [Plaintiff] was being harassed by Larsen and members of the Village Police Department while they were outside of their jurisdiction not attending to any official police business." (Id. ¶ 55.) Plaintiff also filed FOIL requests for copies of Larsen's and Tracey's "reports relating to their police activity at his home." (Id.) The Village responded that no such reports existed. (Id.) "A subsequent check of Larsen's duty chart for that day showed him to be off duty on a personal day." (Id.)

II. Plaintiff's Arrest and Indictment

Plaintiff alleges that the "Village Defendants had instituted a policy of harassing and surveilling persons of Hispanic origin under the guise of enforcing immigration and tax laws." (Id. ¶ 57.) Plaintiff believed that the Village Defendants' true intent was to "remove residents... who were deemed... to be undesirable solely due to their ethnic background and socioeconomic status." (Id.) Plaintiff disagreed with "the Village and Larsen's policy of harassing Hispanic citizens under the color of law and the guise of a legal investigation." (Id. ¶ 58.) On or about August 23, 2007, while off duty and walking in the Village, Plaintiff recognized Larsen's Dodge Durango parked on the street. (Id. ¶ 59.) Plaintiff approached two Hispanic men who were leaning on a fence nearby and "attempted to inform them that the Dodge Durango was the police." (Id.) However, the first "Hispanic man only spoke Spanish and did not understand what [Plaintiff] had said." (Id.) The second man translated what Plaintiff had said into Spanish for the first man. (Id. ¶ 60.) Although Plaintiff did not recognize him at the time, the second Hispanic man was Galeano who was working in the midst of an undercover police assignment. (Id.) Without identifying himself as a police officer, Galeano then walked away from scene, concluding that "his cover 'was blown.'" (Id., Ex. A at 2.)

On August 24, 2007, "at Larsen's [and Tracey's] direction or with [their] tacit agreement," Galeano and Schneider "filed a Misdemeanor Information in the criminal court of the Village charging [Plaintiff] with a violation of New York Penal Law § 195.05, Obstructing Governmental Administration in the Second Degree." (Id. ¶ 61.) Plaintiff was charged with "intentionally obstruct[ing] and impair[ing] the administration of law... by interfering with an ongoing narcotics investigation/operation, by alerting potential targets/suspects of the investigation to the presence of undercover officers... by approaching said targets and stating 'The policia in the black vehicle down there' and turning his head to signal where the undercover vehicle... was parked." (Id.) Plaintiff alleges that although Galeano and Schneider made and approved the charges contained in the Misdemeanor Information under penalty of perjury, the information contained therein "was false to the extent that it was later conceded that the civilian present [whom Plaintiff attempted to warn regarding the presence of police] had n[ot] been identified as a target or suspect, any real suspect was not present at the scene, and other than the fact that he was Hispanic there was nothing to distinguish him even as a 'potential suspect.'" (Id. ¶ 62.)

On August 27, 2007, Plaintiff turned himself in. (Id. ¶ 63.) Plaintiff was "processed, photographed, fingerprinted and brought before the Village Court for arraignment whereupon he was released on his own recognizance." (Id.) Although an arrestee's "mug shot" is not generally released to the media, the Village Defendants gave Plaintiff's mug shot "to a local newspaper and asked that it be published... in order to cause [Plaintiff] embarrassment and emotional and psychological pain and suffering." (Id. ¶ 64.)

In October 2007, the District Attorney presented the case to a grand jury. (Id. ¶ 65.) Galeano was the "People's main witness" and "testified under oath as to Wood's 'obstruction' with the Village's 'investigation.'" (Id.) The District Attorney succeeded in obtaining an indictment that charged Plaintiff with "one count of obstructing governmental administration in the second degree, NY Penal Law § 195.05, and two counts of official misconduct, NY Penal Law § 195.00." (Id. ¶ 66.) Plaintiff was "forced to retire from the Town Police Department effective November 30, 2007, as a result of the damage the defendants had caused to his reputation and career." (Id. ¶ 78.)

III. The Dismissal of Plaintiff's Indictment

On May 16, 2008, Plaintiff's indictment was dismissed by the County Court for Suffolk County "on Wood's motion based in part upon the fact that the indictment was obtained in violation of Wood's constitutional rights to a fair presentment of facts to the Grand Jury...." (Id. ¶ 67.) Specifically, the Village did not turn over to the Suffolk County District Attorney "a substantial amount of evidence that Galeano's motive for bringing the [Misdemeanor] Information was to salvage his floundering career by having Larsen's well-known bitter enemy arrested...." (Id. ¶ 68.)

Therefore, the Grand Jury did not hear the following information before it returned the indictment. On or about December 30, 2006, Galeano pulled over a vehicle in connection with a burglary investigation being conducted by the Village Police Department. (Id. ¶ 69.) Not only was the driver intoxicated, but the items stolen during the burglary were displayed in the vehicle in plain sight. (Id.) Galeano, however, recognized the driver as a friend and "[i]nstead of arresting the two men for any number of felonies they had committed, Galeano gave the two men a ride home in his police car." (Id.) "When Galeano filled out his report regarding this incident, he did so falsely by characterizing what had occurred as a courtesy ride for a resident." (Id.) Galeano subsequently lied to his superiors when directly questioned about the incident. (Id. ¶ 70.) "When [ ] presented with sworn statements from the men and the mother of one of the men," Galeano admitted what he had done. (Id.) However, "instead of bringing Galeano up on formal charges, Larsen made the decision to issue 'command discipline' to Galeano... which consisted of the forfeiture of 30 days compensation, and being subject to 40 hours of supervised patrol training." (Id. ¶ 71.) "Essentially, from January 9, 2007, to the date of [Plaintiff]'s arrest, Galeano was serving at the pleasure of Larsen, who he had to thank for saving his job, but who could also terminate Galeano at any time for any minor violation." (Id. ¶ 72.) However, "[t]he Grand Jury was not presented with the above information relevant to Galeano's credibility as a witness because the Village deliberately hid this information from the District Attorney's Office prior to the presentment to the Grand Jury." (Id. ¶ 73.)

Plaintiff's motion to have the indictment dismissed was based upon two grounds: (1) "the charges were not sustainable as a matter of law," and (2) "the presentment made to the Grand Jury violated Wood's constitutional rights in that the Brady material relating to Galeano's credibility was not presented to the Grand Jury" as described above. (Id.) The court "dismissed the indictment on the issue of the presentment made to the Grand Jury, but did not address the other grounds for Wood's motion as they were moot in light of the court's ruling." (Id. ¶ 74.) Plaintiff's motion to dismiss the indictment was granted "with leave to resubmit." (Id., Ex. A at 7.)

DISCUSSION

I. Motion to Dismiss and Motion for Judgment on the Pleadings

The Village Defendants contend that Plaintiff's Section 1983 claims under the First Amendment, Fourth Amendment, Fourteenth Amendment Equal Protection Clause, his claims pursuant to Sections 1985 and 1986, and his state law claims for false arrest, malicious prosecution, and intentional infliction of emotional distress all should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Village Defendants also assert that Tracey, Schneider, and Galeano are entitled to qualified immunity from Plaintiff's false arrest and malicious prosecution claims. Rickenbach argues that Plaintiff may not maintain any Section 1983 claims against him because Plaintiff has failed to allege his personal involvement in any alleged constitutional violation. Finally, the Village asserts that because Plaintiff has not alleged a viable Section 1983 claim against any individual police personnel, the Monell claim against the Village must be dismissed.

Larsen joins the Village Defendants' arguments and further asserts: (1) to the extent the Complaint contains a cause of action based upon "alienation of affections," such claim is no longer legally cognizable in New York State, and (2) Plaintiff has failed to state a claim against Larsen under federal or state law.

A. Legal Standard

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).*fn3

First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 555 (citations and internal quotation marks omitted).

More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S.Ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. The Court defined plausibility as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Id. at 1949 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must look to the allegations on the face of the complaint, but may also consider "[d]ocuments that are attached to the complaint or incorporated in it by reference." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); see also Gillingham v. GEICO Direct, 2008 WL 189671, at *2 (E.D.N.Y. Jan. 18, 2008) (noting that a court considering a motion to dismiss "must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint") (citation and internal quotation marks omitted).

The Village Defendants and Larsen advance several arguments as to why certain of Plaintiff's claims should be dismissed. The Court will address each of these arguments in turn.

B. Causes of Action Pursuant to 42 U.S.C. § 1983 ("Section 1983")

A plaintiff may assert a cause of action pursuant to Section 1983 against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any... person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (2006). Because "Section 1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred'... [t]he first step in [analyzing] any such claim is to identify the specific [federal] right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994) (citation omitted) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

The Village Defendants and Larsen move to dismiss Plaintiff's: (1) First Amendment retaliation and intimate association claims; (2) Fourth Amendment false arrest and malicious prosecution claims; and (3) Fourteenth Amendment equal protection claim.*fn4

1. Plaintiff's First Amendment Retaliation Claim is Dismissed

The Complaint alleges that the Village Defendants and Larsen "while acting under color of state law, retaliated against Plaintiff for... his exercise of his rights to speak freely on matters of public concern... which are rights secured to Plaintiff by the First Amendment to the Constitution of the United States." (Compl. ¶ 84.) In his motion papers, Plaintiff argues that he exercised his First Amendment freedom of speech rights in the following three ways: (a) by writing letters to the Village Board of Elders and Rickenbach; (b) by submitting FOIL requests to the Village; and (c) by saying "the policia in the black vehicle down there" to two Hispanic men after noticing that Larsen's Dodge Durango was parked nearby. (Pl.'s Opp'n Vill. at 13-14.)*fn5 Plaintiff argues that the Village Defendants and Larsen retaliated against him by "harassing Plaintiff, failing to remedy Plaintiff's complaints, and eventually falsely arresting and maliciously prosecuting Plaintiff." (Id. at 14.)

The Second Circuit has "described the elements of a First Amendment retaliation claim in several ways, depending on the factual context." Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). When the plaintiff is "a private citizen who sued a public official,"*fn6 the Second Circuit has required the plaintiff "to show: '(1) [the plaintiff] 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' actions effectively chilled the exercise of his First Amendment right.'" Williams, 535 F.3d at 76 (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)) (alteration in the original); see also Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010) (noting that a "private citizen" bringing a First Amendment retaliation claim must satisfy the three-pronged test set forth in Curley); Butler v. City of Batavia, 2009 WL 910194, at *1 (2d Cir. Apr. 6, 2009) (applying the Curley test); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (same). In order to survive a motion to dismiss, a claim of retaliation under Section 1983 "must be 'supported by specific and detailed factual allegations,' not stated 'in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)); see also Eberling v. Town of Tuxedo, 2006 WL 278246, at *2 (S.D.N.Y. Feb. 3, 2006) (same).

a. Plaintiff Has Not Alleged Any Chilling Effect on His Speech

Even if the Court were to assume that Plaintiff's speech, as described above, deserved protection under the First Amendment,*fn7 Plaintiff's retaliation claim still fails because Plaintiff has failed to allege that any actions taken by the Village Defendants or Larsen "effectively chilled the exercise of his First Amendment right." Williams, 535 F.3d at 76 (internal quotation marks omitted). An essential element of a Section 1983 claim, including a claim of retaliation in violation of the First Amendment, is that "some official action has caused the plaintiff to be deprived of his or her constitutional rights -- in other words, there is an injury requirement to state the claim." Id. at 78 (quoting Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir. 2000)) (internal quotation marks omitted). The Second Circuit has "explained that plaintiffs who allege a violation of their right to free speech must prove that official conduct actually deprived them of that right." Id. (citing Colombo, 310 F.3d at 117). Therefore, "to properly allege a claim for First Amendment retaliation, a plaintiff must show that his First Amendment rights were 'actually chilled.'" Balaber-Strauss v. Town/Vill. of Harrison, 405 F. Supp. 2d 427, 433 (S.D.N.Y. 2005) (quoting Curley, 268 F.3d at 73) (internal quotation marks omitted).

Here, Plaintiff has not alleged that any conduct on the part of the Village Defendants or Larsen actually chilled the exercise of his First Amendment rights. In particular, the Complaint does not contain any factual allegations setting forth specific instances in which Plaintiff "desired to exercise [his] First Amendment rights but was chilled by" the alleged conduct of the Village Defendants or Larsen. Mangano v. Cambariere, 2007 WL 2846418, at *2 (S.D.N.Y. Sept. 27, 2007); see also Balaber-Strauss, 405 F. Supp. 2d at 433 ("Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.") (quoting Curley, 268 F.3d at 73) (internal quotation marks omitted). To the contrary, the Complaint avers that Plaintiff actually responded to at least one episode of harassment by writing another complaint letter to Rickenbach and submitting additional FOIL requests. (Compl. ¶ 55.)

Moreover, Plaintiff's arrest and subsequent indictment for Obstructing Governmental Administration in the second degree are not a substitute for a showing of a chilling effect. See Richardson v. New York City Health & Hosps. Corp., 2009 WL 804096, at *20 n.8 (S.D.N.Y. Mar. 25, 2009). In Richardson, the plaintiff alleged that she was arrested for harassment and disorderly conduct in retaliation for her threat to report the arresting officer to his supervisor. Id. at *20. The court rejected the plaintiff's assertion that "she need not show a chilling effect on her speech because her arrest and the issuance of the summonses were a sufficient injury to maintain a First Amendment Claim." Id. at *20 n.8. The court explained:

In a claim for retaliation under the First Amendment, a plaintiff must demonstrate a First Amendment harm. Where the retaliation claim is brought by a private citizen alleging that he or she was arrested in retaliation for criticizing public officials, the relevant First Amendment harm is a chilling effect on the arrestee's speech. The absence of a chilling effect does not preclude other claims under [S]section 1983 for, inter alia, excessive force, false arrest, or malicious prosecution, but it is fatal to this type of First Amendment claim.

Id. (internal citations omitted); see also Griffin-Nolan v. Providence Washington Ins. Co., 2005 WL 1460424, at *9 (N.D.N.Y. June 20, 2005) (finding the plaintiff sufficiently alleged that his First Amendment rights were chilled when he alleged that after he engaged in First Amendment protected activity, he was threatened with arrest, and "Plaintiff stopped speaking to the officers").

Accordingly, Plaintiff's First Amendment retaliation claim against the Village Defendants and Larsen is dismissed.

2. Plaintiff's First Amendment Intimate Association Claim is Dismissed

The Complaint avers that the Village Defendants and Larsen "while acting under color of state law, retaliated against Plaintiff for... having exercised his right to associate freely with his wife, which [is] secured to Plaintiff by the First Amendment to the Constitution of the United States." (Compl. ¶ 84.) The Village Defendants and Larsen argue that courts within the Second Circuit have "found a valid First Amendment intimate association claim existed only when the conduct of one spouse[ ] resulted in a retaliatory action against the other." (Vill. Defs.' Mem. at 10) (emphasis in the original). According to the Village Defendants and Larsen, because Plaintiff has failed to allege "conduct by [Plaintiff]'s spouse that would result in a retaliatory action against [Plaintiff]," his First Amendment right of intimate association claim must be dismissed. (Id.) Plaintiff does not address the Village Defendants' arguments regarding this claim.

Plaintiff does oppose, however, Larsen's contention that Plaintiff has attempted to set forth a legally untenable "alienation of affections" claim. (See Larsen Mem. at 4-6; Pl.'s Opp'n Larsen at 4.) Plaintiff states that "the facts and circumstances set forth in paragraphs 38 through 55 [of the Complaint], under the heading 'The Affair,' are merely background information relevant to the claims against Defendant Larsen...." (Pl.'s Opp'n Larsen at 4.)

"The Supreme Court has recognized two types of associational rights: an individual's right to associate with others in intimate relationships and a right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct." Econ. Opportunity Comm'n of Nassau Cnty., Inc. v. County of Nassau, 106 F. Supp. 2d 433, 439 (E.D.N.Y. 2000) (citing Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999)). The Second Circuit addressed the contours of an individual's right of intimate association in Adler v. Pataki, 185 F.3d 35. There, the plaintiff alleged that his employment was unlawfully terminated in retaliation for a lawsuit filed by his wife against state officials. The court held that "a spouse's claim that adverse action was taken solely against that spouse in retaliation for conduct of the other spouse should be analyzed as a claimed violation of a First Amendment right of intimate association." Id. at 44. The plaintiff was permitted to proceed with his right of intimate association claim that challenged state conduct which "seeks to penalize him with the loss of his job because of its displeasure with the conduct of his wife." Id.; see also Berrios v. State ...


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