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Pflaum v. Town of Stuyvesant

United States District Court, N.D. New York

March 28, 2013

WILLIAM PFLAUM, Individually and as a Citizen, Resident and Taxpayer of Town of Stuyvesant, Plaintiff,
v.
TOWN OF STUYVESANT, Columbia Cnty., N.Y.; and VALERIE BERTRAM, Individually and as Supervisor of Town of Stuyvesant, Defendants

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For Plaintiff: CARL E. PERSON, CARL E. PERSON, ESQ., OF COUNSEL, New York, NY.

For Defendants: BURKE, SCOLAMIERO, MORTATI & HURD, LLP, SHARON SIEGEL, ESQ., THOMAS J. MORTATI, ESQ., OF COUNSEL, Albany, NY.

OPINION

Hon. Glenn T. Suddaby, U.S. District Judge.

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DECISION and ORDER

Currently before the Court, in this civil rights action filed by William Pflaum (" Plaintiff" ) against the Town of Stuyvesant (" Town" ) and Valerie Bertram, Town Supervisor (" Bertram" ) (collectively, " Defendants" ), is Defendants' motion to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), and failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 10.) For the reasons set forth below, Defendants' motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, construed with the utmost of special liberality, Plaintiff's Complaint asserts the following six claims against Defendants: (1) violations of Plaintiff's rights to equal protection and due process under both the United States Constitution and the New York State Constitution related to Defendants' tax assessments and below-market pricing for Town property use; (2) " corruption and denial of honest services" related to Defendants' payments to Town employees and contractors; (3) " corruption and denial of honest services" related to Defendants' denial of Plaintiff's requests under the Freedom of Information Law (" FOIL" ); (4) retaliation for Plaintiff's charges of ethical violations against Bertram in violation of Plaintiff's rights under the First Amendment; (5) the Town's zoning law, as applied, violates Plaintiff's Fourteenth Amendment rights to equal protection and due process; and (6) " [t]he 2010 Dog Law, section 10, violates the [Fourth] [A]mendment to the U[nited] S[tates] Constitution." ( See generally Dkt. No. 1 [Pl.'s Compl]; Dkt. No. 12 [Pl.'s Mem. of Law].)[1]

Generally, in support of his claims, Plaintiff sets forth the following factual allegations in his Complaint, which are accepted by the Court as true for purposes of deciding the current motion.

Plaintiff is a resident and taxpayer in the Town, and is the sole owner of Glencadia Dog Camp, a dog kennel business that is located in the Town. Bertram, as Town Supervisor, also resides in the Town. In his Complaint, Plaintiff identifies three broad areas of grievances against Bertram, the Town and Town employees: (1) the manipulation of real estate assessments to result in artificially lower taxes for favored residents and artificially higher taxes on less favored residents, including the Plaintiff, and permitting favored residents

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to use Town property without adequate compensation for such use, resulting in higher taxes for less favored residents, including the Plaintiff; (2) the receipt of unlawful income by the Town Attorney and other Town employees and independent contractors; and (3) the illegal withholding of information from the public regarding Town assessment and financial data. ( See id . at ¶ ¶ 52-80.)

Specifically, Plaintiff alleges that Bertram " restricts the use of public land located near her residence for her own benefit, thereby illegally increasing the value and privacy of her residence." ( Id. at ¶ 17.) The Town Assessor, with Bertram, has " allow[ed] favored residents to pay substantially reduced or nominal taxes while unlawfully increasing the real property taxes of the Plaintiff and various political opponents of the Supervisor[; and has] raise[d] taxes to intimidate the Plaintiff and attempt to silence his constitutionally protected speech and criticism of [the Assessor and Bertram.]" ( Id. at ¶ ¶ 38-39.)

Plaintiff alleges that the Town Code and Zoning Officer " illegally revoked Plaintiff's permit to operate his dog-kennel business, harassed Plaintiff with more than 20 pre-dawn surveillances (sic), solicited and encouraged neighbors to file official but falsified complaints against the Plaintiff and his dog business, and denied constitutional rights to the Plaintiff as well as other residents of the Town over a period of years." ( Id. at ¶ 36.) In September 2010, Town employees denied Plaintiff's due process " to appeal the arbitrary and illegal revocation of the permit to operate his business." ( Id. at ¶ 31.) Specifically, Plaintiff alleges, Bertram and the Town Attorney " abused the Plaintiff's good faith offer to settle the zoning case as a pretext for revoking the permit through the planning board process should the zoning process fail to achieve the desired punitive results." ( Id. at ¶ 33.) The Town Attorney also " falsely claimed that Plaintiff lied in his 2009 Planning Board process as a false justification for closing the Plaintiff's business down [which was] part of the plot to turn [the] settlement offer and Planning Board hearing into a secondary effort to arbitrar[il]y close Plaintiff's business." ( Id. at ¶ 34.) Plaintiff also alleges that the Town Attorney has made illegal demands upon Plaintiff for " payment of legal fees personally" for services that he was being paid by the Town to perform. ( Id. at ¶ ¶ 27-30.)

Further, Plaintiff alleges that Bertram has " used her official powers to punish [] Plaintiff for filing [] complaint[s] with the county Board of Supervisors [and] with the New York Bar Association, submitting FOIL requests, calling for a referendum on a bond issue, publishing documents, investigating assessment rolls, participating in elections and campaigning for mediation services in neighbor to neighbor disputes." ( Id. at ¶ 18.) In retaliation for Plaintiff's charges of ethical violations against Bertram, she has " collaborated with and supported" the Town's Fire Chief to deny and/or threaten to deny fire protection to Plaintiff. ( Id. at ¶ ¶ 20-21.) Bertram has further " supported and encouraged" various Town employees to " illegal[ly] revo[ke] . . . Plaintiff's permit to operate his business[; ]" and " to silence Plaintiff to stop Plaintiff from investigating the fraudulent assessment of the Hook Boat Club[2] and to prevent Plaintiff from calling for a referendum on a town garage

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project bond issue." ( Id. at ¶ ¶ 22-23.) Finally, Bertram, as FOIL appeal officer for the Town, has failed to respond to " all thirteen (13) of the Plaintiff's FOIL appeals." ( Id. at ¶ 25.)

Familiarity with the remaining factual allegations supporting Plaintiff's claims is assumed in this Decision and Order, which is intended primarily for review by the parties. ( See generally Dkt. No. 1.)

B. Defendants' Motion

Generally, in support of their motion to dismiss Plaintiff's Complaint, Defendants assert the following six arguments: (1) the Complaint must be dismissed because Plaintiff failed to file a notice of claim; (2) Plaintiff's claims under the First, Fifth and Fourteenth Amendments must be dismissed because no such claims may be filed against a municipality directly under the Constitution; (3) Plaintiff has failed to set forth a cause of action for the violation of his rights under the Equal Protection Clause or the Due Process Clause; (4) Count II of the Complaint must be dismissed because Plaintiff does not allege a violation of any recognizable constitutional right; (5) Count III of the Complaint must be dismissed because Plaintiff does not allege a violation of any due process right; and (6) Count IV of the Complaint generally fails to allege a claim upon which relief may be granted. ( See generally Dkt. No. 10-7.)

Generally, in response to Defendants' motion to dismiss, Plaintiff asserts the following arguments: (1) Plaintiff has filed a special proceeding to obtain a nunc pro tunc order permitting belated service of his notice of claim; (2) Plaintiff's Complaint should not be dismissed for failure to cite 42 U.S.C. § 1983 as the statutory vehicle pursuant to which he asserts his constitutional claims; (3) Plaintiff has set forth a cause of action based on the denial of his due process and equal protection rights and has alleged a continuing controversy; (4) Count II of Plaintiff's Complaint sets forth meritorious claims of corruption and denial of honest services, with a Constitutional right of the courts to intervene; (5) Count III of Plaintiff's Complaint sets forth additional meritorious claims of corruption and denial of honest services, with a Constitutional right of the courts to intervene; and (6) Count IV of Plaintiff's Complaint alleges specific instances of discriminatory treatment. ( See generally Dkt. No. 12.)

Generally, in reply to Plaintiff's response, Defendants assert the following arguments: (1) Plaintiff's declaration and annexed exhibits may not be considered by the Court; (2) Plaintiff's request to amend the Complaint to state claims under 42 U.S.C. § 1983 must be denied; (3) Plaintiff's Complaint must be dismissed because Plaintiff has failed to serve the necessary notice of claim; and (4) Plaintiff fails to allege a due process or other Constitutional claim upon which relief can be granted. ( See generally Dkt. No. 15.)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions to Dismiss for Failure to State Claim

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim upon which relief can be granted on either or both of two grounds: (1) a challenge to the " sufficiency of the pleading" under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).

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Because such motions are often based on the first ground, a few words on that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). In the Court's view, this tension between permitting a " short and plain statement" and requiring that the statement " show[]" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed.R.Civ.P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the " short and plain" pleading standard under Fed.R.Civ.P. 8(a)(2) as " simplified" and " liberal." Jackson, 549 F.Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described " showing," the pleading standard under Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a statement that " give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F.Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of " enabl[ing] the adverse party to answer and prepare for trial" and " facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F.Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F.Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the " liberal" notice pleading standard " has its limits." 2 Moore's Federal Practice § 12.34(1)(b) at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the " liberal" notice pleading standard. Rusyniak, 629 F.Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-83, 129 S.Ct. 1937, 1949-52, 173 L.Ed.2d 868 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, the Court " retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (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." Twombly, 550 U.S. at 561, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the " fair notice" standard turns on the plausibility of an actionable claim. Id. at 556-70, 127 S.Ct. at 1965-74. The Court explained that, while this does not mean that a pleading need " set out in detail the facts upon which [the claim is based]," it does mean the pleading must contain at least " some factual allegation[s]." Id. at 555, 127 S.Ct. at 1965, n.3. More specifically, the " [f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. at 554, 127 S.Ct. at1965.[3]

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As for the nature of what is " plausible," the Supreme Court explained that " [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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). " [D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not show[n]--that the pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard " asks for more than a sheer possibility that a defendant has acted unlawfully," id., it " does not impose a probability requirement." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.

Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, " the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Similarly, a pleading that only " tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 " demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id., at 678, 129 S.Ct. at 1949.

This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ.P. 8, 10 and 12.[4] Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.[5] Stated more simply, when a plaintiff is proceeding pro se, " all normal rules of pleading are not absolutely suspended." Jackson, 549 F.Supp.2d at 214, n.28.

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Finally, a few words are appropriate regarding what documents are considered on a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). The court may consider the following documents without triggering the summary judgment standard: " (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference into the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are " integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case." Planck v. Schenectady Cnty., No. 12-CV-0336, 2012 WL 1977972, at *5 (N.D.N.Y. June 1, 2012) (Suddaby, J.). Moreover, " a pro se plaintiff's papers in response to a defendant's motion to dismiss for failure to state a ...


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