The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff James Missel ("Missel" or "Plaintiff") brings this action against defendants Monroe County Deputy Sheriffs "John Doe Deputies 1-5" and the County of Monroe (collectively the "County defendants") claiming that the defendant Deputies engaged in a campaign of harassment and retaliation against him in violation of his rights under the United States Constitution, and that the County maintained a policy or custom pursuant to which the Deputies violated his rights, or improperly permitted the Deputies to infringe upon his constitutional rights. Plaintiff also makes claims of negligent and intentional infliction of emotional distress against defendant Michael Hildreth, ("Hildreth") a former Monroe County Deputy Sheriff.
According to Missel, the County defendants harassed him in retaliation for having filed a lawsuit in 2007 against the County and Hildreth. In that lawsuit, Missel alleged that the County failed to supervise the actions of Hildreth, who is also a neighbor of the plaintiff. According to the allegations in the 2007 Complaint, Hildreth believed that Missel was a pedophile, and used his position as Deputy Sheriff to investigate Missel's conduct. Hildreth also used spyware installed on Missel's home computer to track Missel's use of the internet in a failed attempt to discover illegal conduct. Upon discovery that Hildreth had been unlawfully monitoring Missel's computer, the Sheriff's Department conducted an investigation of Hildreth, and Hildreth was charged and convicted of eavesdropping and official misconduct. As a result of the convictions, Hildreth was fired from his employment as a Sheriff's deputy.
Plaintiff's current Complaint contains three causes of action. Plaintiff's first cause of action alleges that the County defendants deprived him of his First Amendment rights pursuant to 42 U.S.C. § 1983. The Second and Third causes of action allege intentional and negligent infliction of emotional distress respectively, against defendant Hildreth. Hildreth has not answered or otherwise moved against the Complaint.
The County defendants now move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). Plaintiff cross moves for a default judgment against defendant Hildreth. For the reasons set forth below, I grant defendant's motion to dismiss, and grant in-part and deny in-part plaintiff's motion for a default judgment.
This action follows an extensive history of acrimony between Plaintiff and defendant Michael Hildreth, a neighbor of the plaintiff, and a former Monroe County Sheriff's Deputy. According to the allegations set forth in Plaintiff's complaint, a dispute arose in 2005 between Hildreth and Plaintiff. Plaintiff, who worked with children, and who was employed by several agencies that provided services to children, claims that Hildreth stalked him, and wrongfully informed his employers that he was a pedophile. As a result of these false accusations, Plaintiff was asked to not return to any of the organizations that employed him
Plaintiff further alleges that in 2005, Hildreth initiated a Sheriff's Department investigation into his alleged pedophilia which produced no leads. Following that, Hildreth created a plan to install a spyware program named "eBlaster" on Plaintiff's computer so that Hildreth would be able to monitor all of the actions taken on Plaintiff's computer. Pursuant to this plan, Hildreth adopted the alias of "Robin Mattox" and posed as woman involved with children's causes. Under the alias, Hildreth sent an email to Missel which contained an attachment. Once plaintiff opened the attachment, the spyware was installed on his computer, and Hildreth was able to monitor all of the plaintiff's computer activity.
Missel then received another email from "Robin Mattox" informing him that he was not to contact her or any of her students since she discovered that Plaintiff was on the "County Educational No Contact List." Plaintiff is not and was not on any such list.
On June 16, 2005, Plaintiff met with investigators from the Internal Affairs department of the Monroe County Sheriff's Department to complain about Hildreth's harassment. Following an investigation into Hildreth's activity, On June 21, 2006, Hildreth was charged with computer tampering, eavesdropping, and official misconduct by a Grand Jury. Hildreth was convicted of eavesdropping and official misconduct in April 2007. After his conviction, the Monroe County Sheriff's Department terminated Hildreth's employment.
Thereafter, in 2007, Plaintiff filed suit in this court against the County of Monroe, the Monroe County Sheriff's Department, Monroe County Sheriff Patrick O'Flynn, and Hildreth claiming that the defendants violated his civil rights pursuant to 42 U.S.C. § 1983. On June 4, 2008, this Court dismissed Plaintiff's complaint against the County of Monroe. In so doing, this Court found that there was a lack of any "widespread practice" or "governmental custom" resulting in the deprivation of Plaintiff's constitutional rights. Missel v. County of Monroe, 2008 WL 2357637 (Jun. 4, 2008). Further, this Court determined that Plaintiff's allegations did not demonstrate that the County "tacitly approved and/or ignored Hildreth's misconduct, or displayed indifference to his actions . . . ." Id. On November 4, 2009, the dismissal of Plaintiff's suit was affirmed on appeal. Missel v. County of Monroe, 351 F.App'x. 543 (2d Cir. 2009).
Approximately eight months after the dismissal of Plaintiff's suit was affirmed, Plaintiff filed the instant action, in which he alleges that Hildreth continues to harass him with the assistance of the Monroe County Sheriff's Department. Specifically, Plaintiff alleges that the County of Monroe dispatched Deputy Andy Suveges to Plaintiff's home with a letter from the Penfield Building Code Enforcement Authority stating that Hildreth filed a complaint regarding a smell emanating from Plaintiff's garden. Plaintiff further alleges that on June 15, 2008, Monroe County Sheriff's officers refused to arrest Hildreth despite Missel's complaint that Hildreth was illegally videotaping him in violation of a court order. Finally, plaintiff alleges ...