The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In this civil rights action pursuant to 42 U.S.C. § 1981, 1983, and 1985, there are currently five pending dismissal motions. The first is filed by Oneida County Sheriff's Department, Lee Broniszewski, Oneida County Department of Social Services, Richard Ferucci, County of Oneida, and Norman X. (Dkt. No. 18); the second by Andrew Clark (Dkt. No. 24); the third by the Town of Kirkland and Gene C. Sinardo (Dkt. No. 57); the fourth by New York Municipal Insurance Reciprocal ("NYMIR") (Dkt. No. 76); and the fifth by the Village of Camden and Charles Gabriel (Dkt. No. 78). The Court grants the sixth motion (Dkt. No. 62), a request by Norman Peep that all references to Norman X in the motion papers be deemed to refer to Norman Peep.
The amended complaint (Dkt. No. 8) alleges that Lee Broniszewski is an Oneida County Sheriff's Deputy; Richard Ferucci is an investigator with the Oneida County District Attorney's Office and assists the Oneida County Department of Social Services with investigations; Norman Peep is an investigator employed by Oneida County; Charles Gabriel is a police officer employed by the Village of Camden; and Gene C. Sinardo is a police officer employed by the Town of Kirkland. Jeffrey Kelley and Andrew Clark reside in Camden, New York and are sued in their individual capacities only. Dr. Kevin Catney is a physician employed by Faxton-St. Lukes Hospital. The amended complaint relates the following events (Dkt. No. 8, pp. 3-10):*fn1
On March 12, 2008 at about 5:30 p.m., Plaintiff, Tomas Zavalidroga was in the Village of Camden distributing flyers relating to a Village election which was to take place March 18th, 2008. Zavalidroga, who was on a bicycle, noticed that a burgundy colored pick up truck had pulled up along side him. Zavalidroga recognized the truck's driver as Jeffery Kelley, one of the candidates in the March 18th Camden Village Trustee election which was the subject of Zavalidroga's flyers.
Kelley yelled out of his window, "hey, buddy". Alarmed by Kelley's behavior due to prior harassment by Kelley, Zavalidroga quickly flipped around his bicycle and started in the opposite direction. Kelley then made a U-turn in the middle of the street and began pursuing Zavalidroga at a high rate of speed. Zavalidroga had gotten about 100 feet when a second red colored pick-up had raced up from a side street blocking Zavalidroga in the middle of the intersection. The individual in the red colored pickup, later identified as Andrew Clark, was then heard yelling out his window, "go on, get him". Kelley by then had raced up, blocking Zavalidroga from the rear.
Perceiving the situation as a gang assault in progress, Zavalidroga flipped his bicycle around again and raced down the Village of Camden's main street towards the downtown commercial district. Zavalidroga noticed Kelley pursuing him on the opposite side of the street.
Upon reaching the business district, Zavalidroga switched direction again in an attempt to evade Kelley. While Zavalidroga was passing Kelley's open window, Kelley had yelled out, "Hey Buddy, you're dead.". Kelley then made a U-turn in the middle of the busy throughfare and again pursued Zavalidroga through the business district at a high rate of speed.
Zavalidroga eventually ditched his bicycle and took cover inside a dollar store on Camden's main street. Kelley quickly raced up in pursuit and parked in front of the Dollar Store. Almost simultaneously, Andrew Clark had also pulled up in his truck alongside Kelley in front of the Dollar Store.
Inside the store, a number patrons had gathered near the front window of the store. Zavalidroga asked those present to call 911 dispatch. Several of the patrons did this and the Zavalidroga himself was handed a phone and told the police dispatcher that Kelley and Clark had been pursiuing him with their trucks. One of the patrons described Clark as a local commissner of Police. About ten minutes after Zavalidroga call to 911, a number of police agentcies, local, county, and state, arrived in unison outside the store. A Sheriffs deputy, later identified as Lee Broniszewski, was the first to enter the store. Broniszewski immediately compelled Zavalidroga to drop the telephone he was speaking on and forced Zavalidroga back to a remote corner of the store. Broniszewski, without permission, began to reach into Zavalidroga's pockets and remove items, thereby violating Zavalidroga's Fourth Amendment rights. A short time later Broniszewski was joined by several other police officers from various agencies. One of these officers, Village of Camden patrolman, Charles Gabriel, quickly took the lead. Zavalidroga asked Gabriel to remove Kelley and Clark from the front of the store so he could safely exit. Gabriel refused to do this stating that, "They have a right to be there". Instead of entertaining arrests of Kelley and Clark, Gabriel began to accost Zavalidroga. Gabriel demanded to know why Zavalidroga had been distributing the leaflets throughout the Village. Gabriel also stated that the content of the leaflets looked like slander of the Kelley family to him. It was clear to Zavalidroga that Gabriel and the other police officers present were during all they could to suppress Zavalidroga's First and Fourteenth Amendment rights and insulate Kelley and Clark from criminal prosecution.
The next day, at about 10:am in the morning, Plaintiff Margaret Zavalidroga was in front of her house, which is about six miles from the Village of Camden, when Jeffery Kelley had come down the road and pulled up in front of Zavalidroga. Zavalidroga observed Kelley taking several pictures of her with his camera. Kelley also was observed taking out a note pad and writing down the license plate number of Zavalidroga's car. Kelley then departed down the road.
This incident, in connection with Kelley's murderous threat towards Tomas Zavalidroga the previous day, prompted the Zavalidrogas to seek a Criminal Complaints at a local FBI office and State Police Barracks later that day. Neither of these police agencies were willing to entertain any meaningful action against Kelley or Clark. In an obvious effort to further insulate Kelley and Clark from due prosecution, the State Trooper(Gallager) who had taken Tomas Zavalidroga's deposition stated that in his opinion, Kelley and Clark could be charged with no more than a simple violation.
Realizing that the police were violating their Fourteenth Amendment rights of due process and equal protections, the Zavalidrogas filed their own criminal Complaints directly with the Oneida County District Attorney, who refused to act on said Complaints.
A short time after having filed their criminal Complaints against Kelley and Clark with Oneida County District Attorney McNamara, Maragret Zavalidroga received a "courtesy call" from an investigator with the District Attorney's office, Richard Ferucci, who claimed to be calling on behalf of Oneida County Adult Protective Services. Ferucci stated that he had received an anonymous call from a member of the public who was concerned for Margaret Zavalidroga's welfare. Zavalidroga told Ferucci about the threatening conduct of Kelley. At one point in the telephone conversation, Ferucci stated that he was concerned that someone like Margaret Zavalidroga might, "end up dead the next week." Neither Ferucci nor anyone else with the District Attorney's office did anything about Kelley. It was obvious to the Zavalidrogas that Ferucci's contrived "courtesy call" of concern was little more than a veiled threat which further chilled the Zavalidroga's civil rights. Beginning in late 2009, Margaret Zavalidroga began receiving the first of a series of death threats left on her home telephone answering system.
On September 11, 2010 at about 8:30 p.m., a truck matching one owned by Andrew Clark, pulled up in front of Margaret Zavalidroga's property, and the individual driving lowered the window and fired a handgun out the window, then spinning his wheels in a hasty departure. Margaret Zavalidroga called regional 911 at 8:50 p.m. to report the incident and have a patrol car come to investigate. None was ever dispatched, and the incident was never investigated.
On October 30th, 2010, Margaret Zavalidroga and Tomas Zavalidroga were in the Village of Clinton, Town of Kirkland, so that Margaret Zavalidroga could attend church services at Clinton's St. Mary's Church on Marvin St. in the village. While Tomas Zavalidroga waited in Margaret Zavalidroga's car nearby, he was harassed by a local resident who disliked having Margaret Zavalidroga's legally parked car in front of his house. The individual at one point asked Tomas Zavalidroga to identify himself and then, in a threatening manner, began following Zavalidroga along Marvin St. for some distance as Zavalidroga walked toward the church. Zavalidroga last saw the man speaking on a cell phone and then later looking into the windows of Margaret Zavalidroga's car. This individual, whose name is currently unknown, is represented as John Doe in this Complaint.
A short time after this encounter with John Doe, after it had become completely dark outside, Margaret Zavalidroga and Tomas Zavalidroga as a passenger, were stopped by Town of Kirkland police officer, Gene Sinardo, as Margaret Zavalidroga was driving her car away from the church down Marvin St. Sinardo demanded to know if the Zavalidrogas had earlier been parked down the street in the direction of where John Doe had accosted Tomas Zavalidroga. Sinardo became increasingly belligerent in his behavior and at one point threateded Tomas Zavalidroga with arrest if he did not answer Sinardo's questions. Sinardo then asked for the Zavalidroga's identification and kept the Zavalidrogas detained for at least 15 or 20 minutes while he made the ID check. When Sinardo returned to the Zavalidrogas, he began searching around the outside of Margaret Zavalidroga's car and then stated that he noticed an expired inspection sticker o the Zavalidroga car. As a result of Sinardo's unlawful stop and detainment, the Zavalidrogas suffered great emotional distress and the loss of their fourth and fourteenth Amendment rights.
On Thursday, February 10th, 2011 at approximately 4pm, Tomas Zavalidroga drove Margaret Zavalidroga to the emergency room of the Faxton-St. Lukes Hospital in New Hartford, NY. after Margaret Zavalidroga complained of feeling unwell. Tomas Zavalidroga had suggested to the hospital staff that Margaret Zavalidroga's illness might have been related to the sub-zero weather the region had experienced the previous few days. The emergency room staff, which was being supervised by Dr. Kevin Catney, concurred and quickly began warming Margaret Zavalidroga.
Margaret Zavalidroga began responding well to the treatment but at approximately 7pm, the Zavalidrogas were informed that the hospital staff wished to take a series of exploratory x-rays. Margaret Zavalidroga expressed her concern that it was against her personal policy to permit xrays except the most compelling reasons. Tomas Zavalidroga, as medical agent and proxy for Margaret Zavalidroga, also communicated this to the staff and Dr. Catney, but nonetheless, the medical staff took a series of xrays in spite of the Zavalidroga's wishes. Further, the hospital staff informed the Zavalidrogas that on the basis of Margaret Zavalidroga's alleged incorrect answers to a few questions they had asked her, such as the date, they had adjudged Margaret Zavalidroga as incompetent to make her own decisions. The staff had also refused to acknowledge Tomas Zavalidroga as Margaret Zavalidroga's medical agent and proxy. At about 8 p.m., the Zavalidrogas had overheard an announcement on the hospital's speaker system summoning Dr. Catney to answer a phone call. The Zavalidroga's perceived this call as being related to Margaret Zavalidroga's treatment.
By 9pm, Dr. Catney had informed the Zavalidrogas that Margaret Zavalidroga was fit and no longer in need of medical attention. However, instead of discharging her, Dr. Catney informed Margaret Zavalidroga that she was ordered to stay in the hospital overnight. When the Zavalidrogas protested, they were told again that Margaret Zavalidroga was not mentally competent to leave the hospital. Later Tomas Zavalidroga asked the nitetime attending physician, Dr. Siddiqua to question Margaret Zavalidroga again. In the presence of Tomas Zavalidroga the Doctor asked Margaret Zavalidroga a series of questions which she answered correctly. Still, the attending physician would not allow Margaret Zavalidroga to be discharged.
Upon further inquiry, the chief nurse of the unit, Don, informed Tomas Zavalidroga that the staff had been in contact with someone representing the Oneida Couinty Sheriff's Department who had instructed the hospital staff to detain Margaret Zavalidroga overnight at the hospital. The Zavalidrogas attempted to leave the hospital anyway but were physically stopped from leaving the hospital by the hospital's security staff.
The next day, Friday, the hospital continued to hold Maragret Zavalidroga against her wishes and against the wishes of her family. Later in the day, the staff at the hospital told the Zavalidrogas that her discharge from the hospital was being delayed by the Oneida County Department of Social Services. Tomas Zavalidroga while still at the hospital, talked with an investigator claiming to represent the Department of Social Services, Norman X. ,who informed Tomas Zavalidroga that his mother would not be discharged from the hospital unless members of the Oneida County Department of Social Services could inspect Margaret Zavalidroga's residence.
Margaret Zavalidroga was eventually held for four days at Faxton-St.Lukes hospital against her will and against the wishes of her family even though she was never in need of continued medical care, blatantly in violation of the Fourth Amendment.
The Plaintiffs Zavalidrogas allege that members of the Oneida County Sheriffs Department and Oneida County Department of Social Services, in collusion with members of the Faxton-St Lukes Hospital staff, orchestrated Margaret Zavalidroga's detainment at the hospital for no other reason than to harass the Zavalidrogas. This is especially apparent in light of the fact that the Zavalidroga's had, a few weeks before, filed papers with the U.S. Supreme Court seeking review of earlier civil rights litigation involving the Oneida County Sheriffs Department. Even after her discharge from the hospital, the purported Social Services investigator, Norman X, continued to harass the Zavalidrogas by unlawfully attempting to gain entrance to Margaret Zavalidroga's home.
St. Lukes-Faxton also engaged in criminal fraud and enrichment when it contrived a bill of over $15,000.00 for Margaret Zavalidroga's unlawful stay, even though the only meaningful treatment Margaret Zavalidroga required was being reheated by an electric heater at the hospital for several hours. This is also confirmed by the vastly different treatment Maragret Zavalidroga received from others who are treated for the same condition.
New York Municipal insurance reciprocal (NYMIR), an insurance company which insures municipalities, has been brought into this lawsuit as a result of its continuing attempt to rig State Court actions against Margaret Zavalidroga, seeking fraudulent judgments and liens against her.
NYMIR had indemnified a municipality which Margaret Zavalidroga sued in 2009 for civil rights abuses. In August of 2009, NYMIR paid Margaret Zavalidroga funds which Maragret Zavalidroga accepted towards settlement of her claim against the municipality. Shortly thereafter, the Federal district court removed the municipality from the lawsuit as a result of Margaret
Zavalidroga's request. A few days after the municipality was removed from the lawsuit, NYMIR communicated to Margaret Zavalidroga that the payment of funds to her had been in error and that NYMIR sought the return of these funds.
Without any communication to the Federal Court, NYMIR, a short time later, brought suit against Zavalidroga for return of the settlement funds in New York State Supreme Court, Albany County, which is were NYMIR offices are located. Notably, apart from its attempt to circumvent Federal law, NYMIR corruptly brought suit in their home county (instead of the proper venue) which is where NYMIR, a company with billions in assets, could influence State Court action. To make matters worse, NYMIR sought a judgment against Margaret Zavalidroga even though it never properly initiated legal action against her under New York State law or federal law in violation of Zavalidroga's federal 14th amendment due process rights.
The Zavalidrogas also allege that a clear pattern and motive has emerged since Jeffery Kelley's and Andrew Clark's attack whereby the Irish-Celtic Kelley and Clark appear to have been insulated from prosecution, under color of law, by Irish-Celtic State actors, to the detriment of the Eastern European Zavalidrogas. There is also strong evidence that the initial pre-St. Patrick's Day attack by Kelley and Clark and the inaction and misdeeds of the State actors involved were racially motivated. A preponderance of State actors involved were themselves Irish-Celtic.
Upon information and belief, the Zavalidrogas allege that Dr. Kevin Catney, Dohn Doe, Attorneys for NYMIR and the state Court judge NYMIR secured for its fraudulent litigation are also Irich-Celtic, and as a result, knew they had special access to local police and other state actors and could act with impunity. (Paragraph numbering omitted.) The amended complaint sets forth two causes of action. The first, citing 42 U.S.C. § 1981 ("section 1981"), claims that defendants' actions under color of law have deprived plaintiffs of their constitutional rights to equal protection, due process, free speech, and the right to be free from unlawful seizure. The second, citing 42 U.S.C. §§ 1983 ("section 1983") and 1985 ("section 1985"), claims that defendants, acting under color of law and "pursuant to the de facto policies and customs of the County of Oneida and the State of New York" have deprived plaintiffs of "certain other rights, privileges and immunities guaranteed to them under the Constitution of the United States[.]"
Defendants' motions to dismiss are primarily based on the argument that the amended complaint (Dkt. No. 8) fails to state a cause of action. See Fed. R. Civ. P. 12(b)(6). To survive a dismissal motion, "a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). The court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See ATSI Commc'n, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Where the factual allegations "do not permit the court to infer more than the mere possibility of misconduct," the complaint has not shown that the plaintiff is entitled to relief. Ashcroft v. Iqbal, 129 S. Ct. at 1950. Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id. at 1949.
A complaint should be "especially liberally construed when it is submitted pro se and alleges civil rights violations." See Jacobs v. Mostow, 271 Fed.Appx. 85, 87 (2d Cir. 2008) (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)). The submissions of a pro se litigant should be interpreted to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Courts should not dismiss without granting leave to amend at least once when a liberal reading of a pro se complaint gives any indication that a valid claim might be stated. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
Plaintiffs assert infringement of their rights under 42 U.S.C. § 1981 ("section 1981").
Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]
A section 1981 claim may be brought against private actors who intentionally discriminate on the basis of race or ethnicity. See 42 U.S.C. § 1981(c); Wong v. Mangone, 450 Fed.Appx. 27, 30 (2d Cir. 2011). As the Second Circuit has recently observed, a section 1981 violation "may occur when a private individual injures 'the security of persons and property' in violation of a state law, and does so with a racially discriminatory purpose." Id. (noting that New York State laws prohibiting assault and battery are clearly intended for the "security of persons" within the meaning of section 1981).
To state a section 1981 claim, a plaintiff must allege facts supporting the following elements: "(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Sec., 7 F.3d 1085, 1087 (2d Cir. 1993). Section 1981 prohibits discrimination on the basis of race, ancestry, or ethnic characteristics, but does not prohibit discrimination on the basis of national origin. See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (citing St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) ("[Section] 1981 at a ...