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Felice Rubino v. Town of Babylon; Suffolk County Police Department

March 19, 2012


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


Plaintiff Felice Rubino commenced this action against defendants Town of Babylon ("Town") and Suffolk County Police Department (the "SCPD" or the "County")*fn1 seeking recovery for alleged violations of his constitutional rights under 42 U.S.C. § 1983 ("Section 1983") arising out of defendants' alleged raid of plaintiff's business. Presently before the Court is the County's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c) or, in the alternative, summary judgment pursuant to Rule 56. For the reasons that follow, the County's motion is granted and the Amended Complaint is dismissed with prejudice as against the County.


The following facts are drawn from the Amended Complaint.

Plaintiff is a resident of the Town and owns a business in the Town called the Zodiac Lounge, a club frequented by members of the gay and lesbian community. Plaintiff alleges that the Town and the SCPD "raided the Zodiak Lounge on August 28, 2008 and cited violations in a discriminatory and harassing manner." (Am. Compl. ¶ 10.) Specifically, plaintiff alleges that John Farrell, the Town Enforcer, threatened plaintiff and referred to him as "a gay [b]astard." (Id.) Mr. Farrell allegedly stated that "[g]ay issue or not[,] if you F . . K with the Town the Town will F . . K with you." (Id.) Plaintiff alleges that the Town discriminatorily singled out his business based upon plaintiff's sexual orientation as well as the sexual orientation of the Lounge's clientele. Plaintiff claims that defendants' actions were the result of complaints of several community members who sought the removal of plaintiff's business from the neighborhood due to its clientele.

Plaintiff asserts that defendants violated his Fourth Amendment rights by conducting an improper and unreasonable search of both his business and adjoining apartment without a warrant. (Id. ¶ 10.) Plaintiff seeks a declaration that his constitutional rights were violated, as well as compensatory and punitive damages pursuant to Section 1983.

By Memorandum & Order dated November 12, 2010, the Court dismissed the original Complaint as against both the Town and the County because "even assuming the truth of Plaintiff's allegations, nothing in Plaintiff's Complaint suggest[ed] that the Town's acts [or the SCPD's acts] were undertaken in accordance with any municipal policy or custom." (Nov. 2010 Decision at 7 & n.1.) The Court concluded that plaintiff failed to sufficiently state a claim for municipal liability as against the Town or the County. (See id.) The Court granted plaintiff leave to re-plead, but warned that "failure to remedy any pleading defect as detailed in this decision may result in dismissal of Plaintiff's Complaint with prejudice." (Id. at 7-8.)


I. Legal Standard

A. Rule 12(b)(6) and Rule 12(c)

The County moves for judgment on the pleadings pursuant to Rule 12(c). Because the County has yet to file an Answer to the Amended Complaint, however, it appears this motion is more appropriately made pursuant to Rule 12(b)(6). C.f. Quartararo v. Catterson, 917 F. Supp. 919, 930 (E.D.N.Y. 1996) (finding that Rule 12(c) "only becomes operative after the pleadings are closed") (internal alterations and quotation marks omitted). The Court need not decide the issue because "[i]n deciding a Rule 12(c) motion, [a court] appl[ies] the same standard as that applicable to a motion under Rule 12(b)(6)." Livant v. Clifton, 272 Fed. Appx 113, 115 (2d Cir. Apr. 7, 2008) (quoting Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006)); see also Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999) (same).

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).

First, in Bell Atl. Corp. 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." 550 U.S. at 561. 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 ...

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