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Jeffrey Bartels v. the Incorporated Village of Lloyd

July 2, 2012

JEFFREY BARTELS,
PLAINTIFF,
v.
THE INCORPORATED VILLAGE OF LLOYD HARBOR, MAYOR LELAND M. HAIRR, DEPUTY MAYOR JEAN THATCHER, JOHN RITTER, JR., POLICE CHIEF CHARLES FLYNN, SERGEANT RENALD DIFONZO, POLICE OFFICER MORRISSEY, POLICE OFFICER MULLNER, POLICE OFFICER BAFFA, MARY MOHRMAN, BRIAN MADSEN, THOMAS SCHOLL, JOHN DOES 1 AND 2, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

On November 3, 2010, the Plaintiff Jeffrey Bartels commenced this action against the The Incorporated Village of Lloyd Harbor (the "Village"), Mayor Leland M. Hairr, Deputy Mayor Jean Thatcher, John Ritter, Jr., Police Chief Charles Flynn, Sergeant Renald Difonzo, Police Officer Morrissey, Police Officer Mullner, Police Officer Baffa, Brian Madsen, Thomas School, Mary Mohrman, and John Does 1 and 2, arising out of three related occurrences in which the Plaintiff claims that the Defendants acted knowingly and willingly to deprive him of his federal constitutional rights. Presently before the Court is the Plaintiff's motion to amend his complaint for a second time to name six additional public employees of the Village and to add allegations relating to events that occurred subsequent to the filing of the first amended complaint. For the reasons set forth below, the Court denies the Plaintiff's motion in part and grants it in part.

I. BACKGROUND

A. Factual Background

The following facts are drawn from the Plaintiffs' first amended complaint ("FAC"). For purposes of this motion to amend, the Court accepts all well-pleaded, nonconclusory factual allegations as true and treats them in the best light for the Plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949--50, 173 L. Ed. 2d 868 (2009); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009).

The Plaintiff, Jeffrey Bartels, has resided in the Village for more than 43 years. In the FAC, he characterizes himself as "a concerned resident of the Village who has documented and spoken out against, among other matters of public concern: (a) environmental harm, including and especially destruction of healthy trees by Village personnel; and (b) unsafe conditions on and near the roadways of the Village." (FAC, at ¶ 13.) As part of the Plaintiff's efforts to document these supposed harms and exercise his First Amendment rights, Bartels has attempted to take photographs of these conditions. The Plaintiff claims that the Defendants and other Village personnel began an active campaign in 2005 to prevent him from gathering and disseminating information on matters of public concern, by silencing and threatening the Plaintiff through harassment and arrests. These actions were the subject of a separate 42 U.S.C. § 1983 action previously pending in this district. See Bartels v. The Incorporated Village of Lloyd Harbor, 08-CV-1256 (Tomlinson, J.) ("Bartels I"). Ultimately, the Defendants obtained a jury verdict in their favor in Bartels I on March 24, 2011.

The events that are the subject of the present action are alleged to have occurred wholly or substantially after the close of fact discovery in Bartels I. Nevertheless, the Plaintiff views the occurrences relevant to this case as part of "a continuing campaign on the part of Defendants . . . to prevent Plaintiff from gathering and disseminating information about matters of public concern relating to: (a) the destruction of healthy trees by Village personnel, and (b) unsafe conditions on and near the roadways of the Village," and also as retaliation for Plaintiff's having brought Bartels I against many of the Defendants in this action.

1.The First Occurrence

The Plaintiff alleges that on or about May 7, 2009, he was driving on a public road in the Village and observed that a support bracket holding up the electric power line and other cables on one of the poles along the road was crooked, i.e., angled at about 45 degrees rather than horizontal as it should have been. The Plaintiff pulled his vehicle over on the side of road to take a closer look, and noticed that one of the two bolts was missing and/or broken. Concerned about the health and safety of Village residents if the power lines should fall, and wanting to take a record of the defect, Bartels retrieved his camera from his vehicle and photographed the pole.

According to the Plaintiff, while taking these pictures, Defendant Police Officer Morrissey arrived and told Bartels that he was illegally parked. The Plaintiff claims that he was within a few feet of his vehicle; had not left it unattended; had put the flashers on; and had explained to Morrissey that he had stopped only momentarily to identify the dangerous condition. After both the Plaintiff and the Defendant Morrissey drove away, the Plaintiff pulled over again to use a public pay phone. At that point, Defendant Morrissey also pulled over and then issued the Plaintiff a summons for "illegally parking", based upon the initial time the Plaintiff parked his vehicle to take the photograph.

The Plaintiff further alleges that Defendants Mayor Leland M. Hairr, Deputy Mayor Jean Thatcher, and/or John Ritter, Jr., engaged the services of a Special Prosecutor for the Village, Andrew Ellsworth, Esq., at $375 per hour, to prosecute the Plaintiff for the parking ticket. On November 4, 2009, following a hearing, Plaintiff was found "not guilty" of the alleged "illegal parking" violation.

2.The Second Occurrence

The second incident took place on or about December 10, 2009. According to the Plaintiff, about this time, the Defendants began an operation of "mass tree-cutting" within a mile of the Plaintiff's home. Several days before this process began, the Plaintiff had contacted the press and made statements publicly in order to alert the public to the Village's planned tree-cutting, because the "Plaintiff believed and continues to believe that the trees being destroyed (and that have now been destroyed) were healthy oldgrowth trees, and that the operation was in truth designed primarily to yield financial gain to Defendants and others through the sale of the wood." (FAC, at ¶ 34.)

At the time of the actual tree cutting on December 10, 2009, the Plaintiff claims he was in the State of Florida. However, a voice mail message was left on the Plaintiff's answering machine on an unknown date, accusing him of "trespassing" at a location adjacent to the tree-cutting site. The message stated:

Yes, hi, good afternoon, Mr. Bartels, this is [Defendant] Officer Baffa, Lloyd Harbor Police Department. It is around ten after one.

I'm calling to advise you that the homeowner at 23 Fiddlers Green had [or 'has'] spotted you on her property and is [unintelligible, possibly 'asking'] us to advise you that you are not wanted on the property and if ---- the ---- in future reference if you are on the property she will press charges of trespassing and the violation will be held against you. This is your warning. 23 Fiddlers Green. Do not go on that property. Have a nice day. (FAC, at ΒΆ 37.) Thereafter, the Plaintiff sent a letter, dated December 29, 2009, to the Lloyd Harbor Police Department. (Ex. 2.) The Plaintiff received a response in a letter dated January 11, 2010 from the Defendant Police Chief Charles Flynn. It stated that "this department did receive a complaint on December 10, 2009 at 12:40 PM reporting you and your vehicle being on the complainants [sic] property", and stated that the message on Plaintiff's answering machine "was indeed from Police Officer Baffa of this department and was in response to the complaint received." (Ex. 3.) The Plaintiff alleges in his FAC that the homeowner of this property is the Defendant Mary Mohrman. Moreover, the Plaintiff claims that the Lloyd Harbor Police could have corroborated ...


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