United States District Court, N.D. New York
WILLIAM PFLAUM, Individually and as a Citizen, Resident and Taxpayer of Town of Stuyvesant, Plaintiff,
TOWN OF STUYVESANT, Columbia Cnty., N.Y.; and VALERIE BERTRAM, Individually and as Supervisor of Town of Stuyvesant, Defendants.
CARL E. PERSON, ESQ., OFFICE OF CARL E. PERSON, Attorney for Plaintiff, New York, NY.
SHARON SIEGEL, ESQ., THOMAS J. MORTATI, ESQ., BURKE, SCOLAMIERO, MORTATI &, HURD, LLP, Attorneys for Defendants, Albany, NY.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
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 Plaintiff's motion to amend and supplement his complaint pursuant to Fed.R.Civ.P. 15(a)(2), 15(d) and 10(a). ( See Dkt. No. 20.) Defendants oppose Plaintiff's motion to amend and seek dismissal of Plaintiff's remaining claims pursuant to Fed.R.Civ.P. 12(b)(6). ( See Dkt. No. 21.) For the reasons set forth below, Plaintiff's motion is granted in part and denied in part and Defendants' motion is granted in part and denied in part.
I. RELEVANT BACKGROUND
Plaintiff's original complaint asserted 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."
Pflaum v. Town of Stuyvesant, 937 F.Supp.2d 289, 295 (N.D.N.Y. 2013) (citing Dkt. No. 1 [Pl.'s Compl.]; Dkt. No. 12 [Pl.'s Mem. of Law].) After carefully considering the arguments of the parties, the Court held that Plaintiff successfully pled only two of his claims under 42 U.S.C. § 1983 and denied Defendants' motion to dismiss in that regard. The surviving claims are: (1) a claim for the violation of Plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment based on the Defendants' selective treatment of Plaintiff in the form of an increase in his tax assessment in retaliation for his constitutionally protected speech, see id., at 305; and 2) a claim for the violation of Plaintiff's rights under the First Amendment based on Defendant Bertram's alleged support and encouragement of Town employees to deny or threaten to deny Plaintiff fire protection in retaliation for his charges of ethical violations against Bertram, see id., at 307-08.
The Court dismissed the remainder of Plaintiff's claims under Section 1983, but stated that, "in an exercise of extreme caution, ... Plaintiff [may] file a formal motion to amend his Complaint to cure any defects" in those claims. Accordingly, the following of Plaintiff's Section 1983 claims were dismissed without prejudice: (1) claims for violations of Plaintiff's right to due process under the United States Constitution as it relates to Defendants' tax assessments and below-market pricing for Town property use and as it relates to Defendants' application of the Town's zoning law, see id., at 304, 306-307; (2) a claim for violations of Plaintiff's right to equal protection under the United States Constitution as it relates to Defendants' application of the Town zoning law, see id., at 307; and (3) a claim for violations of Plaintiff's rights under the Fourth Amendment to the United States Constitution as it relates to the 2010 Dog Law, see id..
The remainder of Plaintiff's claims were dismissed with prejudice for the reasons stated in the Decision and Order.
Plaintiff now seeks this Court's leave to file an amended and supplemented complaint which purports to assert a "42 U.S.C. § 1983 retaliation claim." (Dkt. No. 20-1, at ¶ 3 [Aff. of Carl E. Person, Apr. 27, 2013].) In support of his motion, Plaintiff and his attorney state that he his not asserting an equal protection claim. ( See id., at ¶ 4; Dkt. No. 20-3, at ¶ 4 [Aff. of William Pflaum, Apr. 27, 2013].) Plaintiff also asks the Court to amend the caption of this action pursuant to Rule 10(a) of the Federal Rules of Civil Procedure to replace "William Pflaum, Individually and as a Citizen, Resident and Taxpayer of Town of Stuyvesant" with "William Pflaum." ( See Dkt. No. 20-4, at 1 [Pl.'s Mem. of Law].)
A. Plaintiff's Proposed Amended and Supplemented Complaint
Generally, in his Proposed Amended and Supplemented Complaint, Plaintiff essentially attempts to re-plead and supplement his First Amendment retaliation claim that survived Defendants' previous motion to dismiss, while eliminating the surviving equal protection claim. Plaintiff alleges that, beginning in December 2009, Defendants encouraged Town employees to serve notices of violation upon Plaintiff regarding excessive noise associated with his dog kennel business, without factual or legal basis, eventually resulting in the revocation of his business permit. Plaintiff notes that he was an active supporter of Bertram's unsuccessful opponent in the election for Town supervisor one month prior. Plaintiff appealed the Town's revocation of his permit, and eventually, by a March 2012 order of the New York State Supreme Court, his permit was restored. ( See Dkt. No. 20-2, at ¶¶ 11-36 [Pl.'s Proposed Am. Compl.].)
Plaintiff further alleges that, as a result of Defendants' actions leading up to the revocation of his business permit, he started a blog about official corruption in the Town wherein he disclosed information he received after making multiple requests for financial information regarding the Town's activities pursuant to Freedom of Information Laws ("FOIL"). ( See id. at ¶ 37.) As a result of his blogging activities and FOIL requests, Plaintiff alleges, Defendants encouraged Town residents to commit acts of vandalism and hostility against Plaintiff. In addition, the Town fire chief announced publicly in a list serv group message to 120 people that Plaintiff should move out of town, which Plaintiff, and the 120 list serv group members took to mean that Plaintiff could not count on the Town's fire department for any fire protection. Plaintiff informed Defendants of the acts of vandalism and hostility as well as the fire chief's threat but Defendants failed to assure Plaintiff that he did in fact have fire protection and failed to publicly condemn the acts of vigilantism against Plaintiff. ( See id., at ¶¶ 38-47.)
Plaintiff also alleges that false criminal charges were filed against him based on false testimony which was elicited through coaching by one or more unknown persons, but fails to identify who filed the criminal charges or made the false testimony. ( See id., at ¶ 42.)
As a result, Plaintiff alleges, he has suffered monetary damages in the form of legal expenses, lost earnings, and uninsured losses.
Plaintiff asserts one claim for First Amendment retaliation. In support of his claim, Plaintiff asserts that "[t]he alleged actions taking (sic) place after the Plaintiff commenced his [b]logging [a]ctivities were performed by Defendants in retaliation for his [b]logging ...