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Russitano v. Brown

United States District Court, Second Circuit

September 9, 2013



LAWRENCE E. KAHN, District Judge.


Pro se Plaintiff Garrett D. Russitano ("Plaintiff") commenced this civil rights action on November 2, 2012. Dkt. No. 1 ("Complaint"). Defendant the State of New York ("New York") has moved to dismiss. Dkt. No. 6; 6-1 ("New York Memorandum"). Defendants James F. Brown, Mark Domenico, James Masucchi, John Mazzaferro, Joseph Fusco, Jr., and the City of Rome (collectively, "Rome Defendants") have also moved to dismiss. Dkt. No. 23; 23-2 ("Rome Memorandum"). For the following reasons, both Motions are granted.


The Complaint enumerates roughly 48 incidents of alleged constitutional violations and states that there are "at least 65 other incidents of selective prosecution' and discrimination by the defendants from 2002 until the present time." Compl. ¶ 51; see id. ¶¶ 3-50. In keeping with its duty to construe pro se pleadings liberally, see, e.g., Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008), and in an effort to organize Plaintiff's claims for analysis, the Court has endeavored to catalogue the enumerated incidents chronologically as follows.

A. Incidents Before November 2, 2009

Plaintiff claims that Defendants the City of Rome, Brown, Domenico, Masucchi, John Doe, and Jane Doe have "harassed" him since 2002, singled him out for selective prosecution, given him the "evil eye, " used racial slurs such as "ignorant [w]etback" against him, and otherwise discriminated against him and conspired to "run [him] out of town." Compl. ¶¶ 1, 3, 23. In September 2002, an unnamed party stated that a petition complained about Plaintiff's business at 1333 East Dominick Street in Rome but refused to provide Plaintiff a copy of the petition so Plaintiff could verify the signatures and "face [his] accusers." Id . ¶ 46. On October 28, 2002, Defendant Domenico, as Rome's Codes Director, and Codes Inspector Robert Ryan charged Plaintiff with codes violations that Plaintiff contends did not exist at 1333 East Dominick Street. Id . ¶ 45. On December 18, 2002, Codes Inspector Paul Ziminski charged Plaintiff with 54 counts of "running a junk yard" for repairing used cars inside one of Plaintiff's buildings. Id . ¶ 44. Two "scrap and salvage operations" across the street from Plaintiff's repair shop received no citations. Id.

On or about October 5, 2003, "Judge Gannon"[2] issued a ruling in a codes case that limited the number and size of logs that Plaintiff could have within a manufacturing zone. Id . ¶ 49. Other entities were allowed to have any number and size of logs. Id . On December 2, 2003, the City of Rome served Plaintiff with a "Final Notice Before Redemption" in an undescribed matter and thereafter refused to permit Plaintiff to pay the taxes owed. Id . ¶ 43. In April 2005, Defendant Brown, as Mayor of Rome, directed Ann Lynch to eject Plaintiff from 109 Canal Street in Rome or he would shut the building down for codes violations. Id . ¶ 50. On November 22, 2005, the Rome City Court heard docket number 38523, consisting of three counts of animal violations against Plaintiff. Id . ¶ 40. Plaintiff was found guilty of having an unlicensed dog despite "indisputable proof" that the dog was not his. Id . At this trial, an unnamed City Court Judge "interfered" with Plaintiff's defense, encouraged the Rome City Dog Warden to lie to support the City's case, and tried to have the court reporter alter the record. Id . ¶ 41. Sometime in 2005, Defendant Domenico held a hearing and ordered Plaintiff to tear down his building at 717 West Dominick Street in Rome even though it held seven feet of snow on the roof and roofless buildings remained standing as of the filing of the Complaint.[3] Id . ¶ 24.

On January 24, 2006, Codes Inspector Kevin Wheaton[4] issued Plaintiff a Rome City Court appearance ticket for "rubbish" that was not on Plaintiff's property. Id . ¶ 39. On April 24, 2006, Plaintiff filed a motion to dismiss in one of his codes cases in Rome City Court on the basis of selective prosecution and political retribution, which the court ignored. Id . ¶ 22. On August 30, 2006, Codes Inspector Bill Mentor attempted to inspect Plaintiff's place of business. Id . ¶ 31. Inspector Mentor was turned away because he did not have an appointment, and at 2:00 P.M. that day, Defendant Domenico and Rome City Attorney Tim Benedict arrived at Plaintiff's place of business to threaten Plaintiff and his business. Id . On October 19, 2006, Defendant Domenico ordered Plaintiff by letter not to work at 109 Canal Street and to use it only for cold storage. Id . ¶ 20. The building had two other occupants, Rofin LLC and Elagrace Caskets, both of whom were permitted to continue working there. Id .; see id. ¶ 6. On November 21, 2006, Defendant Domenico "tried to run [Plaintiff] out of business" by informing him via letter that he could not sell used cars at 715 Erie Boulevard West in Rome without permission from the zoning appeals board. Id . ¶ 38.

On February 1, 2007, Rome Patrolman Jason Paul "harassed" Plaintiff at 109 Canal Street and "interfered" with an undescribed civil matter. Id . ¶ 21. On October 27, 2007, City Court Judge Daniel Wilson, [5] in another undescribed matter, granted the city attorney's request for an adjournment. Id . ¶ 42.

On January 29, 2009, Plaintiff filed a Notice of Claim, which the City of Rome ignored, for interference by Patrolman Jay Demagio and a New York State Trooper with Plaintiff's ability to access the polling places at the Stanwix Heights Fire Department and the South Rome Senior Citizens Center. Id . ¶ 16. On June 11, 2009, Plaintiff filed a Notice of Claim with the State of New York, which was rejected by New York Assistant Attorney General G. Dillon Lawrence. Id . ¶ 27. In July 2009, the City of Rome removed Plaintiff's equipment and stock from a fenced-in lot at 701 Lawrence Street in Rome. Id . ¶ 7. On July 22, 2009, Plaintiff filed a Notice of Claim for the removed equipment and stock. Id . ¶ 18. Rome Corporation Counsel Diane Martin Grande rejected the July 22 Notice of Claim as well as two follow-up claims and a Freedom of Information Law ("FOIL") request. Id . On August 11, 2009, Codes Inspector Wheaton charged Plaintiff with five codes violations, including "having no water and a sign on a trailer." Id . ¶ 10. Plaintiff contends that no investigation was undertaken to determine whether he had running water. Id.

On October 6, 2009, Corporation Counsel Grande ordered Fire Inspector Kieth Gorczka[6] to inspect an undisclosed location and to "pay particular attention to [Plaintiff's] side of the building." Id . ¶ 17. Plaintiff filed another Notice of Claim on October 7, 2009, which was ignored. Id . Fire Inspector Gorczka scheduled an inspection on October 10 but failed to appear. Id . A second appointment was scheduled that month, but again fire inspectors did not appear. Id . ¶ 3. On October 30, 2009, Corporation Counsel Grande and Defendants Brown, Domenico, Masucchi, John Doe, and Jane Doe ordered Fire Inspector Gorczka to obtain an administrative search warrant by stating that he had been unable to access 109 Canal Street. Id . ¶¶ 3, 19.[7] Plaintiff was then two blocks from the Rome City Courthouse, where fifty police officers were waiting to serve him with a notice. Id . ¶ 19.

B. Incidents On or After November 2, 2009

Defendant Masucchi executed the administrative search warrant on November 3, 2009, an election day, causing Plaintiff to leave the polls.[8] Id . ¶ 19. That same day, Rome City Fire Chief Bremant removed firemen John DiBardino and Joseph Fusco, III, from the inspection truck to prevent them from protecting Plaintiff. Id . ¶ 32. On November 23, 2009, the Rome Fire Department "posted" Plaintiff's building at 109 Canal Street and denied him entry, but Defendant Brown permitted the other two occupants to continue work without interruption. Id . ¶ 6. On November 27, 2009, Plaintiff moved to intervene in a case in Rome City Court. Id . ¶ 28. The court denied the motion, which Plaintiff contends permitted Defendant Domenico to selectively prosecute him. Id.

On December 3, 2009, Plaintiff attempted to file a complaint for an unstated reason, which Oneida County District Attorney Scott[9] McNamara[10] refused. Id . ¶ 26. On December 4, 2009, Plaintiff agreed to help and support Defendant Fusco's campaign for Mayor of Rome, which Plaintiff contends formed a contract that Defendant Fusco later breached. Id . ¶ 47. On December 12, 2009, the Clerk of the New York State Supreme Court at the Oneida County Courthouse refused to review or accept Plaintiff's complaint, request for judicial intervention, and order to show cause. Id . ¶ 14. On December 13, 2009, Plaintiff complained to District Attorney McNamara that Defendant Brown was leading a conspiracy and had to be prosecuted.[11] Id . ¶ 34. District Attorney McNamara replied, "Brown bullies everyone, " and "You're not the only one Brown[']s[] doing this to." Id . ¶¶ 3, 34. On December 37, 2009, Rome Police Detective Rotolo refused Plaintiff's complaint that Defendants Brown and Masucchi, Corporation Counsel Grande, and Fire Inspector Gorczka had filed false information to obtain the administrative search warrant. Id . ¶ 37.

On January 12, 2010, Plaintiff filed FOIL requests and a Notice of Claim, which Defendants ignored. Id . ¶ 35. On January 19, 2010, Plaintiff filed a FOIL request to gather information relating to the City of Rome's removal of equipment and stock in July 2009, which was denied. Id . ¶ 8. Plaintiff filed a Notice of Claim on February 10, 2010, which Defendants Masucchi and Fusco and District Attorney McNamara ignored. Id . ¶ 5. On February 16, 2010, the city attorney failed to appear in court in an undescribed matter and moved for an adjournment. Id . ¶ 11. On February 29, 2010, Oneida County Treasurer Anthony Carvelli and Daniel Yerden prevented Plaintiff from attending a county land auction. Id . ¶ 36. On March 5, 2010, Plaintiff filed a FOIL request, which the City of Rome denied. Id . ¶ 9.

On March 12, 2010, Plaintiff received an online threat and took down his website as a result.[12] Id . ¶ 33. Defendants Masucchi and Fusco and District Attorney McNamara identified the responsible party but declined to take action against him, opting instead to "forgive him for stealing [Plaintiff's] rights." Id . ¶¶ 5, 33. Defendants Masucchi and Fusco and District Attorney McNamara refused to give Plaintiff information or the identity of the responsible party, denied Plaintiff's FOIL request, arrested Plaintiff, and charged him with threatening someone. Id . ¶¶ 5.

On June 22, 2010, Defendant Masucchi, District Attorney McNamara, and the Rome Police Department declined to act on Plaintiff's complaint on an undescribed matter and recalled the dispatched officers to the station. Id . ¶ 25. On July 26, 2010, Rome Police Detective DelAsandro, at the direction of Defendant Masucchi, accused Plaintiff of removing Defendant Brown's campaign signs and threatened to arrest Plaintiff. Id . ¶ 29. Plaintiff had removed no signs. Id . On May 29, 2011, Rome Police attempted to evict Plaintiff from 109 Canal Street and refused to provide a copy of the police report, thus preventing Plaintiff from filing a lawsuit on a theory of improper eviction. Id . ¶ 30. In September 2012, Patrolman Sanders declined ...

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