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Nicholas M. v. Town of Dewitt; Town of Dewitt Police Dep't; Eugene J. Conway

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 8, 2013

NICHOLAS M. AURICCHIO, PLAINTIFF,
v.
TOWN OF DEWITT; TOWN OF DEWITT POLICE DEP'T; EUGENE J. CONWAY, CHIEF OF POLICE; BRENTON WHITE, POLICE OFFICER; AND DAMAN GAGNIER, POLICE OFFICER; DEFENDANTS.

The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this civil rights action filed by Nicholas M. Auricchio ("Plaintiff") against the five above-captioned entities and individuals ("Defendants"), are Defendants' motion for summary judgment and/or motion to dismiss for failure to state a claim and lack of subject-matter jurisdiction, and Plaintiff's cross-motion for summary judgment. (Dkt. Nos. 29, 62.) For the reasons set forth below, Defendants' motion is granted, and Plaintiff's cross-motion is denied.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND.........................................................................................3

A. Plaintiff's Amended Complaint............................................................................3

B. Recitation of Undisputed Facts.............................................................................4

1. First Incident..............................................................................................4

2. Second Incident........................................................................................12

3. Plaintiff's Arrest......................................................................................21

C. Parties' Arguments on Their Cross-Motions....................................................22

1. Defendants' Memorandum of Law........................................................22

2. Plaintiff's Opposition Memorandum of Law........................................29

3. Defendants' Reply Memorandum of Law.............................................31

II. GOVERNING LEGAL STANDARDS..........................................................................31

A. Standard Governing a Motion for Summary Judgment..................................31

B. Standard Governing a Motion to Dismiss.........................................................31

C. Standards Governing Plaintiff's Claims and Defendants' Defenses...............32

III. ANALYSIS.......................................................................................................................33

I. RELEVANT BACKGROUND

A. Plaintiff's Amended Complaint

Generally, Plaintiff's Amended Complaint asserts 21 federal and state claims arising from his arrest for violating the Town of DeWitt's noise ordinance following his preaching in the parking lot of, and then on the sidewalk across the street from, Holy Cross Church during the late afternoon of Sunday, September 6, 2009. (See generally Dkt. No. 16.)

More specifically, Plaintiff's Amended Complaint asserts eight federal claims under 42 U.S.C. § 1983 and the United States Constitution: (1) deprivation of freedom of speech under the First and Fourteenth Amendments; (2) deprivation of freedom of religion under the First and Fourteenth Amendments; (3) deprivation of due process under the Fifth and Fourteenth Amendments; (4) false arrest, unlawful detention and confinement under the Fourth and Fourteenth Amendments; (5) unlawful search and seizure under the Fourth and Fourteenth Amendments; (6) excessive force under the Fourth and Fourteenth Amendments; (7) conspiracy to deprive Plaintiff of his First, Fourth, Fifth and Fourteenth Amendment rights; and (8) failure to instruct, supervise, control, and discipline Defendant police officers so as to deprive Plaintiff of his rights under the First, Fourth, Fifth and Fourteenth Amendments. (Id.)

In addition, Plaintiff's Amended Complaint asserts 13 state claims under the New York State Constitution or New York State common law: (9) deprivation of freedom of speech under Article I, section 3 of the State Constitution; (10) deprivation of freedom of religion under Article I, section 8 of the State Constitution; (11) deprivation of due process under Article I, section 5 of the State Constitution; (12) false arrest, unlawful detention and confinement under Article I, section 12 of the State Constitution; (13) unlawful search and seizure under Article I, section 12 of the State Constitution; (14) excessive force under Article I, section 12 of the State Constitution; (15) conspiracy to deprive Plaintiff of his rights under the State Constitution; (16) common law false imprisonment; (17) common law abuse of process; (18) common law failure to instruct, supervise, control, and discipline; (19) common law assault; (20) common law battery; and (21) common law negligence. (Id.)

B. Recitation of Undisputed Facts

1. First Incident

At approximately 4:00 p.m. on Sunday, September 6, 2009, Plaintiff drove into the cul-de-sac driveway of the Holy Cross Church in the Town of DeWitt. Plaintiff came to the church to pray before a small shrine outside the entrance. Before Plaintiff left his vehicle, he saw a woman exiting the front door of the church whom he believed was dressed immodestly. In Plaintiff's own words, "[S]he was wearing incredibly tight clothing[;] she had a sleeveless top and her undergarments--her--basically, her bra straps were coming off--over--dangling over her shoulders."*fn1

As Plaintiff sat in his car and the woman walked near the passenger-side of his car, he verbally confronted her through his open driver-side window (his passenger-side window being closed). In his own words, he told her to repent all of her sins and to dress modestly. You know, I said that you should leave--'You should not go back into the church the way you're dressed. You should leave and come back modestly dressed.' I told her that, you know, [her] actions were a seduction to married men, even boys and the priest. I may have said it brings scandal on the church.*fn2

Plaintiff states that he then did an exorcism. I said, 'In the name of Jesus Christ, be gone, Satan and the fallen angels,' you know, because I felt it was a spiritual assault. As a Christian, I'm allowed to do, you know, an exorcism in the name of Jesus Christ, which I did . . . And then I told her to repent her sins, turn to Jesus Christ and be saved and to be modest. . . .

After that, the woman went back into the church.*fn3

Plaintiff decided to remain in the parking lot and preach toward the church. He drove his vehicle from the cul-de-sac in front of the church to the rear area of the church parking lot and took up a position of what he "guesstimate[d]" was approximately 50 to 75 feet from the church's front door.*fn4 He stated that he "got out of [his] car and started preaching to people about modesty," as people continued coming out of the church.

About that time, Rick Tschernjawski, a DeWitt resident living in a house across the street from the church, began to hear what he characterized as "yelling" coming from the church's parking lot.*fn5 (Plaintiff characterizes his speech at the time as "preaching.")*fn6 Mr. Tschernjawski saw Plaintiff standing in the back corner of the church parking lot and facing the front entrance of the church.*fn7 Mr. Tschernjawski guesses that, at the time, Plaintiff was about 150 feet away from him.*fn8

As Plaintiff defines it, "preaching" involves "speaking with a raised voice." Even though Plaintiff was directing his speech away from Mr. Tschernjawski, the volume of Plaintiff's speech was loud enough for Mr. Tschernjawski to hear at least some of what he was saying.*fn9 According to Mr. Tschernjawski, Plaintiff was trying to quote scripture, but was also yelling at the people coming out of the church about dressing modestly in church and calling them bad Catholics.*fn10

In the church parking lot, one man, who had come out of the church, drove up to Plaintiff and asked, "What are you doing and why are you here?"*fn11 In response, Plaintiff told the man that "I'm doing what John the Baptist would have done. . . . I'm a preacher . . . . People don't want to hear my preaching because they're predicting of their sins."*fn12 Plaintiff then admonished a woman sitting in the front seat of the same car because she was smoking a cigarette.*fn13 Plaintiff claims the man got out of the car, physically threatened Plaintiff and butted him with his chest; however, the man was eventually stopped by another man who had come out of the church.*fn14

Plaintiff states that he then performed another exorcism, this time on the aggressive man: "I did an exorcism because when someone attacks me, I feel it was a spiritual assault. And I said, 'In the name of Jesus Christ, be gone, devils . . . .'"*fn15

After the man drove way, Plaintiff was approached by a woman, whom he told to "dress modestly."*fn16 In addition, the driver of a TLC van looked over at Plaintiff, and Plaintiff believes that driver may have called the police.*fn17

From his location across the street from the front of the church, Mr. Tschernjawski saw some of the people coming out of the front entrance of the church appear to hurry to their cars (with some young children appearing to clutch their mothers), and other people appear to come out of the front entrance of the church briefly but then turn around and go back inside; from his location at the rear of the church parking lot, Plaintiff saw none of those things.*fn18

Watching the incident from in front of his house, Mr. Tschernjawski thought Plaintiff was loud and might be disturbed; so he decided to call 911 on his cell phone.*fn19 When Mr. Tschernjawski was talking to the 911 operator, he described the volume of Plaintiff' voice, held the phone toward the church for a few seconds, then put it back to his ear; he remembers the 911 operator saying, "Yeah, I could hear him," or something similar.*fn20

Three police officers from the Town of DeWitt Police Department (the "Police Department") arrived in the church parking lot approximately 5 to 20 minutes after Plaintiff began preaching.*fn21 Two of the three officers were Officers Brenton White and Stacey Wickes.*fn22 While Plaintiff does not identify Officer Senus as the third officer,*fn23 the remainder of the record evidence indicates that Officer Senus was the third officer.*fn24

When Officer White first approached Plaintiff, Plaintiff stopped preaching and reacted politely.*fn25 One of the officers asked him (among other things) what Plaintiff was doing, to which Plaintiff responded (among other things) that he was doing what John the Baptist would have done, and that he felt the Catholic Church had given him permission to preach on Sundays.*fn26

Plaintiff also described his feelings about the immodest woman in the church and stated as follows (among other things):

If I don't take a stand--. . . I saw this . . . very immodest woman. . . . Her bra straps were showing. . . . If I don't take a stand, Peter--. . . Jesus said to Peter, 'Upon this rock, I found this church and the gates of hell shall not prevail against it.' So . . . if I don't take a stand, you know, against the sin and the church, then the gates of hell shall prevail against the church. . . . I'm taking a stand and I'm preaching to repentance.*fn27

One of the officers said, "Well, you're yelling. You're disturbing the neighbors."*fn28 One of the officers suggested, "Why don't you go in and talk to the parishioners in the church?"*fn29 Plaintiff responded, "Well, I don't think they want me coming into the church. . . . I don't think that is appropriate."*fn30

One of the officers walked to the front entrance of the church to talk with church leaders.*fn31 The church leaders complained that Plaintiff was causing a disturbance due to, among other things, the volume of his voice.*fn32 As the officer spoke with church leaders, one of the other officers stayed with Plaintiff, chatted with him, and even inquired whether he might be interesting in joining the priesthood.*fn33 When the officer returned from speaking with four men dressed in suits who had identified themselves as church leaders, the officer told Plaintiff that the church leaders (including the priest) had requested the officer to ask Plaintiff to leave the premises because he was causing a disturbance, and had requested that Plaintiff be arrested for trespassing if he did not go willingly.*fn34

Plaintiff complied without delay; he returned to his van and drove away from the church.*fn35 Believing the problem was over, the officers also left the scene.*fn36

2. Second Incident

Plaintiff left, but he did not go far. He pulled his van onto the side street closest to the Holy Cross Church and parked along the side of the road. He walked back to East Genesee Street (on which Holy Cross Church sits). In that area, there is a sidewalk bordering the south side of East Genesee Street.*fn37 Plaintiff crossed the three lanes of East Genesee Street, and took up a position across the street from the church, on a sidewalk bordering the north side of East Genesee Street. From that location, Plaintiff again preached toward the church, this time admittedly in a "loud" or "pretty loud[]" voice.*fn38

Plaintiff preached about what he characterizes as "repentance to Catholics in general," stating things such as "Repent your sins. Return to Jesus Christ. Be saved and be holy people, and not an unholy people."*fn39 In addition, he kept speaking about his First Amendment rights and saying, "I am not on private property."*fn40

Mr. Tschernjawski heard Plaintiff preaching again.*fn41 Plaintiff was located on the sidewalk in front of the border between Mr. Tschernjawski's house and his next-door neighbor's house.*fn42 Plaintiff's voice was louder than it was before the police had left.*fn43

Plaintiff saw a man (who was Mr. Tschernjawski) come out of one of the nearby houses holding a cell phone; Plaintiff assumed the man intended to call the police to make a complaint.*fn44

In Plaintiff's own words, the man with the cell phone "looked like he was, you know, maybe a little upset that I was preaching there." Plaintiff directed words to the man, saying, "I'm exercising my freedom of speech and religion and I know I have a right to preach from a public sidewalk."*fn45 Plaintiff also said to the man, "I have a right to be here."*fn46 (In addition to having a master's degree in public administration, Plaintiff has a juris doctor degree.)*fn47

Plaintiff kept preaching about what he characterizes as "repentance to Catholics in general." In addition, he again kept speaking about his First Amendment rights and saying, "I am not on private property."*fn48

Plaintiff does not deny preaching loudly at that time. He explains as follows:

[W]hen I preach, I--it's not like I'm talking to an individual where I don't have to speak loudly. A preacher has to speak loudly. I wouldn't call it screaming, but I was speaking very -- pretty loudly. . . . 'A voice crying in the desert.' John the Baptist, he would cry repentance. So maybe that would be a good way to describe it. But I wouldn't call it crying, just preaching in a loud way.

In his deposition, Plaintiff testified that, from his new position across East Genesee Street, he was approximately 150 to 200 yards from the front of the church.*fn49 Subsequently, in an affidavit, Plaintiff testified that he was only about 75 yards from the front of the church.*fn50

As he preached, Plaintiff intended his voice to be loud enough so that the people coming out of the church probably would have been able to hear him.*fn51 Moreover, in addition to directing his speech at the people coming out of the church, Plaintiff directed to everybody around him, including Mr. Tschernjawski.*fn52

Mr. Tschernjawski perceived Plaintiff's voice as loud, and believes that it was indeed loud enough that people coming out of the church would have been able to hear Plaintiff.*fn53 Mr. Tschernjawski perceived Plaintiff's speech as being louder than the noise from any passing traffic, which he testified was "real slow" at that time, and absent of trucks.*fn54

Mr. Tschernjawski called 911 again.*fn55 During that call, he again complained about the volume of Plaintiff's speech and that he thought Plaintiff might be disturbed.*fn56

Approximately five to ten minutes after Plaintiff resumed his preaching, two officers who responded to his initial behavior in the church parking lot returned to the scene.*fn57 One of the officers was Officer White.*fn58 While neither Plaintiff nor Mr. Tschernjawski identify Officer Senus as the other officer,*fn59 the remainder of the record evidence indicates that Officer Senus was the other officer.*fn60

When the officers passed Plaintiff in their vehicles in the north lane of East Genesee Street, they slowed down and saw Plaintiff on the sidewalk preaching.*fn61 The officers parked their vehicles and approached Plaintiff. Officer White saw that Plaintiff was on the same side of the street as several houses, and that several residents of the nearby houses were standing outside their homes watching the man.*fn62

After the officers walked up to Plaintiff, they told him, "You're making a disturbance."*fn63

Plaintiff responded, "I'm exercising my freedom of speech and religion on a public sidewalk and it's a violation of my rights for you to stop me."*fn64 The officers listened to Plaintiff as he "went into details about [his] rights of freedom and religion and speech under the Federal Constitution."*fn65 Plaintiff also warned the officers not to "cross the line" by arresting him.*fn66 Plaintiff told the officers that his brother was an attorney and they would be sued if they arrested him.*fn67 Officer White responded that Plaintiff was causing a disturbance (for which he could be stopped).*fn68

One of the officers spoke to Mr. Tschernjawski, who complained to the officer that Plaintiff was, among other things, "screaming profanities" and disturbing the sense of peace and quiet that he was enjoying.*fn69 The officer returned and told Plaintiff that the neighbors were disturbed by his yelling about underwear.*fn70 In response, Plaintiff "immediately" turned toward the direction Tschernjawski as a "knee jerk reaction" and said--in a voice that the officers perceived as yelling--"Liars, that's not true."*fn71 Plaintiff then turned back toward the church and resumed preaching, stating loudly, "Repent. Turn to Jesus Christ and be saved."*fn72

The officers put Plaintiff in handcuffs, placed him in the back of Officer White's patrol car, and informed him he was being detained, not arrested.*fn73

3. Plaintiff's Arrest

For approximately five minutes, the officers discussed the situation as Plaintiff sat in Officer White's patrol car.*fn74 While Plaintiff did not observe the officers make a cell phone call, and Mr. Tschernjawski testified that one of the officers "maybe . . . might have been on his cell phone" but he could not remember, the remainder of the evidence indicates that they made such a call to their supervisor, Sergeant Damon Gagnier, who was located several miles away.*fn75

The officers decided to charge Plaintiff with violating the Town's noise ordinance.*fn76 The Town's noise ordinance expressly prohibits the following noises, among others: "Annoying sounds: . . . any noise which causes public inconvenience, annoyance or alarm or disturbs the public's peace, comfort or tranquility." Town of DeWitt Code § 126-6(13).*fn77 Regarding the penalties for such offenses, the Town's noise ordinance states as follows, in pertinent part:

Any person who shall violate any of the provisions of this chapter shall be guilty of a violation pursuant to the Penal Law and shall be punishable by a fine of not more than two hundred fifty dollars ($250) or imprisonment for not more than fifteen (15) days, or both.

Town of DeWitt Code § 126-7.*fn78

Officer White returned to his car, transported Plaintiff to the DeWitt police station, and placed him in a holding cell.*fn79 Officer White searched Plaintiff's pockets, questioned him for basic biographical information, and eventually issued him an appearance ticket for violating the Town's noise ordinance. In all, Plaintiff was in custody for about 75 to 90 minutes.

Once Plaintiff was free to leave, he was driven by Officer White back to his parked car near the Holy Cross Church.

C. Parties' Arguments on Their Cross-Motions

1. Defendants' Memorandum of Law

Generally, in their memorandum of law, Defendants' assert the following eighteen arguments. (See generally Dkt. No. 29, Attach. 1, at 15-70 [attaching pages "3" through "58" of Defs.' Memo. of Law].)

First, Defendants argue, to the extent that Plaintiff's claims against Defendant Gagnier are premised on that Defendant's alleged presence at the scene of the arrest, those claims should be dismissed for lack of personal involvement because based on the current record there is no genuine dispute that those claims mistake Defendant Gagnier with Defendant Senus. (Id. at 15-16 [attaching pages "3" and "4" of Defs.' Memo. of Law].)

Second, Defendants argue, the noise ordinance survives Plaintiff's facial freedom-of-speech challenge under the First Amendment, because based on the current record there is no genuine dispute that the noise ordinance (a) is facially content neutral, (b) is narrowly tailored to serve a legitimate governmental interest, (c) permits alternative channels for expression, (d) is not a prior restraint on protected speech, and (d) does not confer unbridled discretion on law enforcement officials. (Id. at 16-24 [attaching pages "4" through "12" of Defs.' Memo. of Law].)

Third, Defendants argue, the noise ordinance survives Plaintiff's as-applied freedom-of-speech challenge under the First Amendment, because based on the current record there is no genuine dispute that (a) the Town did not enforce the noise ordinance in a content-based manner,

(b) the noise ordinance is narrowly tailored in the context of street preaching or as applied to Plaintiff, and (c) Plaintiff had plentiful alternative channels for communication. (Id. at 24-33 [attaching pages "12" through "21" of Defs.' Memo. of Law].)

Fourth, Defendants argue enforcing the noise ordinance did not violate Plaintiff's state constitutional freedom-of-speech rights. (Id. at 33-35 [attaching pages "21" through "23" of Defs.' Memo. of Law].)

Fifth, Defendants argue, enforcing the noise ordinance did not violate Plaintiff's federal constitutional freedom-of-religion rights because such rights do not relieve Plaintiff of the obligation to comply with a valid and neutral law of general applicability, such as the noise ordinance. (Id. at 35-37 [attaching pages "23" through "25" of Defs.' Memo. of Law].)

Sixth, Defendants argue, enforcing the noise ordinance did not violate Plaintiff's state constitutional freedom-of-religion rights. (Id. at 37-38 [attaching pages "25" through "27" of Defs.' Memo. of Law].)

Seventh, Defendants argue, the noise ordinance survives Plaintiff's state and federal constitutional vagueness challenges, because based on the current record there is no genuine dispute that (a) the "annoying sounds" provision in the ordinance is not unconstitutionally vague when read in the context of the whole noise ordinance, (b) the noise ordinance is similar to other noise ordinances that have survived vagueness challenge, (c) the New York Court of Appeals would give the noise ordinance a constitutional construction as applied, and (d) as applied, the noise ordinance provided sufficient notice to Plaintiff that excessive yelling near the church was prohibited. (Id. at 39-47 [attaching pages "27" through "35" of Defs.' Memo. of Law].)

Eighth, Defendants argue, Defendant police officers did not falsely arrest Plaintiff under the Fourth Amendment, because based on the current record there is no genuine dispute that (a) probable cause existed to arrest Plaintiff, and (b) probable cause still exists even if this Court holds that the "annoying sounds" provision of the noise ordinance is unconstitutionally vague. (Id. at 47-50 [attaching pages "35" through "38" of Defs.' Memo. of Law].)

Ninth, Defendants argue, Officer White did not improperly search Plaintiff's pockets under the Fourth Amendment because based on the current record there is no genuine dispute that the search was a routine one incident to a lawful arrest. (Id. at 50 [attaching page "38" of Defs.' Memo. of Law].)

Tenth, Defendants argue, the arresting officers did not apply excessive force against Plaintiff in violation of the Fourth Amendment, because based on the current record there is no genuine dispute that (a) Plaintiff's alleged handcuff injuries were de minimis, (b) Plaintiff's short wait in an allegedly hot police car was not unreasonable, and (c) even if the arresting cfficers lacked probable cause to arrest Plaintiff, their physical contact with him did not violate his Fourth Amendment rights. (Id. at 50-53 [attaching pages "38" through "41" of Defs.' Memo. of Law].)

Eleventh, Defendants argue, Plaintiff's state law police misconduct claims fail for the same reasons as do his Fourth Amendment claims. (Id. at 54 [attaching page "42" of Defs.' Memo. of Law].)

Twelfth, Defendants argue Plaintiff's common law police misconduct claims fail for the same reasons as do his Fourth Amendment claims, because based on the current record there is no genuine dispute that (a) Plaintiff's assault and battery claims are identical to his federal excessive force claim, and (b) Defendant officers' probable cause for arrest provides a complete defense to Plaintiff's false imprisonment claim. (Id. at 54-56 [attaching pages "42" through "44" of Defs.' Memo. of Law].)

Thirteenth, Defendants argue, Plaintiff's federal failure-to-train claim against Defendant Conway (the Chief of Police) fails as a matter of law, because (a) Defendant Police Department is not a valid Defendant under 42 U.S.C. § 1983, (b) Plaintiff has not alleged facts plausibly suggesting that Defendant Conway was personally involved in the constitutional violations alleged or that he caused Plaintiff to be deprived of a federal right, and (c) as pled in his Amended Complaint, Plaintiff's failure-to-train claim improperly relies on only a single incident of alleged deprivation of rights. (Id. at 56-59 [attaching pages "44" through "47" of Defs.' Memo. of Law].)

Fourteenth, Defendants argue, Plaintiff's negligent-supervision claim against Defendant Town and Defendant Conway (the Chief of Police) fails as a matter of law because (a) a prerequisite of this claim is a successful false arrest claim and excessive force claim (neither of which are successful in this action), and (b) based on the current record evidence there is no genuine dispute that the Town neither knew nor should have known of any Defendant officer's propensity for the conduct which caused the injury' prior to the injury's occurrence. (Id. at 59-60 [attaching pages "47" and "48" of Defs.' Memo. of Law].)

Fifteenth, Defendants argue, Defendant police officers did not maliciously abuse the process of law, because based on the current record there is no genuine dispute that Defendant officers used legal process against him in order to obtain a collateral objective that is outside the legitimate ends of the process. (Id. at 61-64 [attaching pages "49" through "51" of Defs.' Memo. of Law].)

Sixteenth, Defendants argue, the arresting officers did not conspire to deprive Plaintiff of his rights, because (a) Plaintiff's federal conspiracy claim fails to allege facts plausibly suggesting a meeting of the minds between two or more state actors (in part due to the intra-enterprise conspiracy doctrine), or an actual deprivation of an underlying constitutional right, (b) Plaintiff's state law conspiracy claim does not exist, and (c) Plaintiff did not list conspiracy in his notice of claim thus depriving the Court of subject-matter jurisdiction over that conspiracy claim. (Id. at 63-66 [attaching pages "51" through "54" of Defs.' Memo. of Law].)

Seventeenth, Defendants argue, Plaintiff's negligence claim should be dismissed because

(a) to the extent that the claim is asserted against Defendant Town and Conway, it is redundant of Plaintiff's negligent supervision claim previously discussed, and (b) to the extent that the claim is asserted against the arresting officers, that claim does not allege facts plausibly suggesting anything other than improper police conduct, which is not an act of negligence. (Id. at 66-67 [attaching pages "54" and "55" of Defs.' Memo. of Law].)

Eighteenth and finally, Defendants argue, based on the current record there is no genuine dispute that Defendant White is protected from liability as a matter of law by the doctrine of qualified immunity with regard to five of Plaintiff's claims, specifically, Plaintiff fourth claim (for false arrest and unlawful detention under federal law), his fifth claim (for unlawful search and seizure under federal law), his twelfth claim (for false arrest and unlawful detention under state law), his thirteenth claim (for unlawful search and seizure under state law), and his sixteenth claim (for false imprisonment under state law), because it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged action. (Id. at 67-70 [attaching pages "55" through "58" of Defs.' Memo. of Law].)

Familiarity with the particular nature of each of these arguments is assumed in this Decision and Order, which is intended primarily for the review of the parties.

2. Plaintiff's Opposition Memorandum of Law

Generally, in his opposition memorandum of law, Plaintiff asserts the following twelve arguments. (See generally Dkt. No. 62, Attach. 1, at 12-55 [attaching pages "6" through "49" of Plf.'s Opp'n Memo. of Law].)

First, Plaintiff argues, he should be granted leave to withdraw all claims against Defendant Gagnier, and to file a Second Amended Complaint asserting a new claim of conspiracy against him, in light of the fact that Plaintiff's assertion of his claims against Defendant Gagnier in his Amended Complaint was due to the now-apparent fact that Defendant White "misrepresented" in a police report that Defendant Gagnier was at the scene during the time in question. (Id. at 12 [attaching page "6" of Plf.'s Opp'n Memo. of Law].)

Second, Plaintiff argues, he should be granted leave to withdraw his second, sixth, eighth, tenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, twentieth and twenty-first causes of action against Defendants "in order to promote judicial expediency of this civil action." (Id. at 13 [attaching page "7" of Plf.'s Opp'n Memo. of Law].)

Third, Plaintiff argues, he should be granted leave to file a Second Amended Complaint, in order to assert a new conspiracy claim against Defendants, arising from "new information, obtained during the discovery process, regarding the DeWitt police officers' alleged involvement in an ongoing conspiracy outside the scope of their employment." (Id. at 13 [attaching page "7" of Plf.'s Opp'n Memo. of Law].)

Fourth, Plaintiff argues, the noise ordinance is unable to survive Plaintiff's facial or as-applied freedom-of-speech challenges under the First and Fourteenth Amendments, because (a) the noise ordinance is a facially content-based law (as evident from the fact that it provides exceptions for church bells and public sporting/entertainment events but not for preaching), and

(b) the noise ordinance is unconstitutional as applied to Plaintiff (as evident from the fact that, for example, Defendants admit in the responses to Plaintiff's Request for Admissions that the Town never offered Plaintiff an alternative venue to continue his preaching). (Id. at 13-33 [attaching pages "7" through "27" of Plf.'s Opp'n Memo. of Law].)

Fifth, Plaintiff argues, the noise ordinance is a violation of Plaintiff's right to freedom of speech under the State Constitution. (Id. at 34 [attaching page "28" of Plf.'s Opp'n Memo. of Law].)

Sixth, Plaintiff argues, the noise ordinance cannot survive Plaintiff's state and federal constitutional vagueness challenges because, (a) the Town "probably intended" the "annoying sounds" provision of Section 126-6(A)(13) to be read in conjunction with the "maximum permitted noises" provision of Section 126-4 but never established minimal guidelines to govern law enforcement in doing so, and (b) Plaintiff was not given proper notice of the alleged prohibited activity of yelling near a church because Section 126-6(A)(6) applies only when that church is "in session," which does not occur during a birthday party. (Id. at 35-41 [attaching pages "29" through "35" of Plf.'s Opp'n Memo. of Law].)

Seventh, Plaintiff argues, Defendant White falsely arrested, confined and detained Plaintiff under the Fourth Amendment, because (a) they handcuffed him and confined him a vehicle before formally arresting him, and (b) they could not possibly have had probable cause to arrest him before they formally arrested him. (Id. at 41-46 [attaching pages "35" through "40" of Plf.'s Opp'n Memo. of Law].)

Eighth, Plaintiff argues, Defendant White committed an improper search and seizure against Plaintiff under the Fourth Amendment, because while Plaintiff was in a holding area in the DeWitt police station Defendant White seized Plaintiff's wallet, keys and rosary beads to prevent him from preaching in the future. (Id. at 47-48 [attaching pages "41" and "42" of Plf.'s Opp'n Memo. of Law].)

Ninth, Plaintiff argues, Defendant White falsely arrested, unlawfully detained, and confined Plaintiff under the State Constitution. (Id. at 48 [attaching page "42" of Plf.'s Opp'n Memo. of Law].)

Tenth, Plaintiff argues, Defendant White committed an improper search and seizure against Plaintiff under the State Constitution. (Id. at 49 [attaching page "43" of Plf.'s Opp'n Memo. of Law].)

Eleventh, Plaintiff argues, Defendant White maliciously abused the process of law under the New York State common law. (Id. at 49-51 [attaching pages "43" through "45" of Plf.'s Opp'n Memo. of Law].)

Twelfth, and finally, Plaintiff argues, Defendant White is not entitled to qualified immunity on any causes of action because it was not objectively reasonable for him to believe that his actions were lawful at the time of the challenged action. (Id. at 51-54 [attaching pages "45" through "48" of Plf.'s Opp'n Memo. of Law].)

3. Defendants' Reply Memorandum of Law

Generally, in their reply memorandum of law, Defendants' assert the following four arguments. (See generally Dkt. No. 66, at 4-12 [attaching pages "1" through "9" of Defs.' Reply. Memo. of Law].)

First, Defendants argue, Plaintiff's arguments on his facial freedom-of-speech and due process claims under the First and Fourteenth Amendments are unavailing, because (a) Plaintiff's focus on two exemptions in the noise ordinance (i.e., for church bells and public sporting/ entertainment events) do not sufficiently challenge the particular subsection under which he was charged (i.e., the "annoying sounds" provision of Section 126-6[13]), and (b) the decibel limits established in Section 126-4 of the noise ordinance and the list of prohibited noises in Section 126-6 of the noise ordinance does not somehow render the "annoying sounds" provision of Section 126-6(13) impermissibly vague. (Id. at 4-5 [attaching pages "1" and "2" of Defs.' Reply. Memo. of Law].)

Second, Defendants argue, the Second Circuit's recent decision in Costello v. City of Burlington suggests that summary judgment is also appropriate on Plaintiff's as-applied claim under the First Amendment, because (a) evidence exists that Defendant officers merely told Plaintiff to lower his voice (not to be silent), (b) based on the current record there is no genuine dispute that Plaintiff's voice was heard more than 220 feet away, dominated the area, and was not subsumed by any of the competing ambient noise, and (c) based on the current record there is no genuine dispute that Plaintiff's noise impinged on the use of the neighborhood by others with equal claim. (Id. at 6-9 [attaching pages "3" through "6" of Defs.' Reply. Memo. of Law].)

Third, Defendants argue, it is clear that, Costello v. City of Burlington, qualified immunity is appropriate for Defendant White and all other individual Defendants. (Id. at 9-10 [attaching pages "6" and "7" of Defs.' Reply. Memo. of Law].)

Fourth and finally, Defendants argue, the Court should not give weight to Plaintiff's reliance on Defendants' erroneous response to one of Plaintiff's requests for admission, because it (a) was but one response to more than 200 such requests, (b) was in error (in that in accidentally neglected to give a bifurcated response to a compound question), and (c) was plainly inconsistent with the existing testimony in the record. (Id. at 10-12 [attaching pages "7" through "9" of Defs.' Reply. Memo. of Law].)

II. GOVERNING LEGAL STANDARDS

A. Standard Governing a Motion for Summary Judgment

Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the legal standard governing motions for summary judgment under Fed. R. Civ. P. 56, the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's recent decision in Pitts v. Onondaga County Sheriff's Dep't, 04-CV-0828, 2009 WL 3165551, at *2-3 (N.D.N.Y. Sept. 29, 2009) (Suddaby, J.), which accurately recites that legal standard.

The Court would add only that Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3). It further provides that, to the extent that the nonmoving party fails to do so, the facts asserted in the movant's Statement of Material Facts will be deemed admitted, as long as they are supported by the record. Id.

B. Standard Governing a Motion to Dismiss

Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the legal standard governing dismissals for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's decision in Wade v. Tiffin Motorhomes, Inc., 05-CV-1458, 2009 WL 3629674, at *3-5 (N.D.N.Y. Oct. 27, 2009) (Suddaby, J.), which accurately recites that legal standard.

With regard to the standard governing a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), "[i]t is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be properly dismissed for lack of subject-matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when resolving a motion to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).

C. Standards Governing Plaintiff's Claims and Defendants' Defenses

Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the relevant points of law contained in the legal standards governing Plaintiff's claims and Defendants' defenses in this action, the Court will not recite, in their entirety, those legal standards in this Decision and Order, which (again) is intended primarily for review by the parties.

III. ANALYSIS

After carefully considering the matter, the Court agrees with Defendants that Plaintiff's Amended Complaint should be dismissed for each of the numerous alternative reasons stated in Defendants' memoranda of law. (See generally Dkt. No. 29, Attach. 1, at 15-70 [attaching pages "3" through "58" of Defs.' Memo. of Law]; Dkt. No. 66, at 4-12 [attaching pages "1" through "9" of Defs.' Reply. Memo. of Law].) See, supra, Parts I.C.1. and I.C.3. of this Decision and Order (summarizing those reasons). To those reasons the Court adds the following nine points.

First, in Part I.B. of this Decision and Order, the Court has resolved some purported factual disputes in favor of Defendants (e.g., whether it was Defendant Gagnier or Defendant Senus who was present at the scene, whether Plaintiff "yelled" or simply spoke "in a raised voice," whether the 911 operator heard him over Mr. Tschernjawski's cell phone, whether the four men in suits who one of the officers spoke to were actually "church leaders," whether they specifically complained of the volume of Plaintiff's speech, whether the distance from Plaintiff to the front of the church during the second incident was 150-200 yards or 75 yards, whether people coming out of the church actually heard Plaintiff during the second incident, whether Plaintiff said "Liars," whether the arresting officers called Defendant Gagnier on the phone, etc). However, even if the Court were to find those purported factual disputes to be genuine, the Court would still grant Defendants' motion for summary judgment, because those factual disputes would not be material to the ultimate disposition of Defendants' motion.

For example, it is uncontroverted that (1) during the second incident, the arresting officers witnessed Plaintiff speaking in a loud voice between a residential neighborhood and a church, (2) Plaintiff intended that his voice carry at least 225 feet in front of him (over a three-lane road and the area in front of the church) as well as far enough to reach at least one neighbor behind him (to whom he turned at least twice, (3) Mr. Tschernjawski heard Plaintiff's loud voice (despite any competing ambient noise) and twice complained that the loud voice was impinging on his use of the neighborhood, (4) several residents of the nearby houses were standing outside their homes watching Plaintiff as he spoke in that loud voice, (5) Plaintiff (an attorney) had repeatedly been warned that he was causing a disturbance due to his loud voice, and (6) he nonetheless kept speaking in that loud voice. That is enough for the officers to find probable cause that Plaintiff had violated the Town's noise ordinance. Moreover, there is no admissible record evidence from which a rational fact finder could conclude that the officers were arresting Plaintiff (or taking any action against him) based on the content of his speech, rather than the volume of that speech. Finally, whether it was Defendant Sensus or Defendant Gagnier (or perhaps some other officer) who aided Defendant White is ultimately of no consequence. Indeed, if it was not Defendant Senus, then he should be dismissed from this action due to his lack of personal involvement in the constitutional violations alleged.

Second, liberally construed, Plaintiff's request to voluntarily dismiss his claims against Defendant Gagnier in his Amended Complaint appears to be implicitly conditioned on the Court's granting of his request for leave to file a new claim (for conspiracy) against Defendant Gagnier in a Second Amended Complaint. (Dkt. No. 62, Attach. 1, at 12 [attaching page "6" of Plf.'s Opp'n Memo. of Law].) Because the Court has already denied Plaintiff's request for leave to file that Second Amended Complaint (Dkt. No. 75), the Court will deem Plaintiff's request to voluntarily dismiss his claims against Defendant Gagnier as withdrawn. This does not end the Court's inquiry into the matter, however, because Defendants have requested the dismissal of those claims on the ground of lack of personal involvement. (Dkt. No. 29, Attach. 1, at 15-16 [attaching pages "3" and "4" of Defs.' Memo. of Law].) By failing to oppose Defendants' request for the dismissal of these claims, Plaintiff has lightened Defendants' burden with regard to that request;*fn80 and (at the very least) Defendants have met their modest threshold burden with regard to that request. The Court notes that Plaintiff's statement that Defendant White "misrepresented" in a police report that Defendant Gagnier was at the scene during the time in question is a mischaracterization; rather, what appears to have happened is that, in his haste and zeal to vindicate the wrong he perceived to have occurred against him, Plaintiff simply misinterpreted that police report.

Third, Plaintiff's request to voluntarily dismiss eleven claims against Defendants (i.e., his second, sixth, eighth, tenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, twentieth, and twenty-first claims) does not specify whether the dismissal of those claims should be with prejudice or without prejudice. (Dkt. No. 62, Attach. 1, at 13 [attaching page "7" of Plf.'s Opp'n Memo. of Law].) Because Defendants have taken the time and incurred the expense of filing a motion for summary judgment with regard to those claims, the Court finds that it is proper for the dismissal to be with prejudice, pursuant to Fed. R. Civ. P. 41(a)(2).*fn81 In the alternative, the

Court bases its dismissal of these claims on the fact that, again, by failing to oppose Defendants' request for the dismissal of these claims, Plaintiff has lightened Defendants' burden with regard to that request; and (at the very least) Defendants have met their modest threshold burden with regard to that request.

Fourth, the Court rejects the second part of Plaintiff's fourth argument in opposition to Defendants' motion (i.e., that Defendants have admitted in their responses to Plaintiff's Request for Admissions that the Town never offered Plaintiff an alternative venue to continue his preaching) on the additional ground that, after Plaintiff made that argument, United States Magistrate Judge Andrew T. Baxter permitted Defendants to withdraw and amend their responses to Plaintiff's requests for admission. (Dkt. No. 73.) In addition, the Court notes that there is no admissible evidence in the record from which a rational fact finder could conclude that Plaintiff was in any way prohibited from communicating his message by (1) creating a large sign and erecting it on the public sidewalk bordering either the north or south side of East Genesee Street, (2) passing out fliers or leaflets at the same location, (3) entering the church to discuss his concerns with church leaders, or (4) simply speaking in a lower voice from the public sidewalk bordering the south side of East Genesee Street.

Fifth, the Court rejects the first part of Plaintiff's seventh argument in opposition to Defendants' motion (i.e., that the officers violated the Fourth Amendment by handcuffing him and confining him a vehicle before formally arresting him) on the additional ground that, for an arrest to occur, it is not necessary for the arresting officer to advise the arrestee that he is being arrested.*fn82 Rather, whether an arrest has occurred depends on whether a reasonable person would have believed that he was not free to leave.*fn83 Moreover, generally, the constitutional validity of an arrest turns on whether probable cause existed for the arrest (or whether it was objectively reasonable for the arresting officer to believe that he had probable cause to arrest the arrestee).*fn84 That constitutional validity does not turn on whether the arrestee was informed of the arrest.*fn85

Sixth, the Court rejects the second part of Plaintiff's seventh argument in opposition to Defendants' motion (i.e., that the officers could not possibly have had probable cause to arrest him before they formally arrested him) on the additional ground that probable cause can arise to arrest a defendant for a crime hours if not days before that defendant is actually arrested for that crime.*fn86 For example, generally it is permissible for there to be a reasonable delay between the issuance of an arrest warrant and the execution of that warrant.*fn87 Moreover, an officer may be shielded from liability on a claim of false arrest due to the fact that probable cause existed to arrest the defendant for a crime other than the crime for which that defendant was actually arrested.*fn88

Seventh, to the extent that Plaintiff argues that his Fourth Amendment rights were violated because Defendants arrested him under circumstances in which he could only be given an appearance ticket (see Dkt. No. 62, Attach. 5, at ¶ 57), the Court rejects that argument. Even if Defendants were able under the noise ordinance to only issue Plaintiff an appearance ticket (rather than arrest him), that fact would not give rise to a Fourth Amendment claim under 42 U.S.C. § 1983.*fn89

Eighth, even if state law claims were not dismissed for reasons stated above, the Court would decline to exercise supplemental jurisdiction over those claims after it had dismissed all claims over which it had original jurisdiction, pursuant to 28 U.S.C. § 1367(c).

Ninth, and finally, for each of the reasons that Defendants' motion is granted, Plaintiff's cross-motion is denied as moot and/or unsupported by a showing of cause.

ACCORDINGLY, it is

ORDERED that Defendants' motion for summary judgment and/or motion to dismiss for failure to state a claim and lack of subject-matter jurisdiction (Dkt. No. 29) is GRANTED; and it is

ORDERED that Plaintiff's cross-motion for summary judgment (Dkt. No. 62) is DENIED; and it is further

ORDERED that Plaintiff's Amended Complaint (Dkt. No. 16) is DISMISSED.


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