United States District Court, S.D. New York
ROBERT R. RANKEL, Plaintiff,
TOWN OF SOMERS, MARY BETH MURPHY, individually and in her official capacity as Supervisor of the Town of Somers, GUY GAGNE, Former Town Engineer, SOMERS PD, OFFICER BARKER, GAIL MURPHY, THOMAS MURPHY, PIETER WOELTGENS, DEC OFFICERS BRIAN GILLIS, RICHARD MARTIN, and BRIAN TOTH, Defendants
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Robert Rankel, Plaintiff, Pro se, Katonah, New York.
For Town of Somers, Mary Beth Murphy, Guy Gagne, Somers PD and Officer Barker, Defendants: Terry August Rice, Rice & Amon, Suffern, New York.
For Gail Murphy, Thomas Murphy and Pieter Woeltgens, Defendants: Anthony John Messina, Messina & Associates, White Plains, New York.
For DEC Officers Brian Gillis, Richard Martin and Brian Toth, Defendants: Barbara Katherine Hathaway, Katherine Brady Dirks, New York State Office of the Attorney General, New York, New York.
OPINION AND ORDER
CATHY SEIBEL, U.S.D.J.
Before the Court are the motions of Defendants Town of Somers (" Town" ), Mary Beth Murphy, Guy Gagne, Somers Police Department (" SPD" ) and Officer Barker, (collectively, " Town Defendants" ), (Doc. 107), and New York State Department of Environmental Conservation (" DEC" ) Officers Brian Gillis, Richard Martin and Brian Toth, (collectively, " DEC Defendants" ), (Doc. 112), seeking dismissal of the Fourth Amendment Complaint (" FAC" ), (Doc. 94), of Plaintiff Robert Rankel. For the following reasons, the Town Defendants' motion is GRANTED IN PART and DENIED IN PART, and the DEC Defendants' motion is GRANTED.
For the purposes of Defendants' motions to dismiss, I accept as true the facts, but not the conclusions, as set forth in Plaintiff's FAC.
Plaintiff is the owner of a parcel of land located at 20 Sun Hill Road in Katonah, New York. (FAC ¶ 11.) For many years, Plaintiff operated a farm business on his property without interference from the Town. ( Id. ¶ 21.) In 2005, Gail and Thomas Murphy (" the Murphys" ) moved in next door to Plaintiff. ( Id. ¶ 49.) Plaintiff alleges that the Murphys have conspired with another neighbor, Pieter Woeltgens, and their friends in the Town government to " take adverse action" against Plaintiff and his property, ( id. ¶ 22), and to violate his constitutional rights, ( id. ¶ 25). He brings this action pro se against the Town, Town Officials Mary Beth Murphy (Town Supervisor) and Guy Gagne (former Town Engineer), SPD and Police Officer Barker; 
against DEC and DEC Officers Brian Gillis, Richard Martin, and Brian Toth; and against his neighbors, the Murphys, Mr. Woeltgens, and Joseph Lopane (collectively, " Neighbor Defendants" ).
Throughout the FAC, which spans some 130 paragraphs (many of which are repetitive and, at times, incoherent), Plaintiff pleads a series of events, from 2008 until 2013, involving his property and Defendants. ( See generally FAC.) He alleges that the Murphys and Mr. Woeltgens have " conspired with . . . Town officials thru [ sic ] emails, faxes, phone calls, and personal visits to the [Town] offices at the Elephant Hotel on [R]oute 22 in Somers, N.Y." ( Id. ¶ 22.) He insists " there is no way [other than a conspiracy that] the Town would have independently addressed [any] issue" with his property because it is located " at the far end of a remote cull de sac [ sic ], and then, far back from the road." ( Id.)
Plaintiff's allegations begin on or about October 25, 2008, when Police Officer Barker and DEC Officer Gillis entered his property and issued four appearance tickets in his name. ( Id. ¶ 26.) He alleges that the Officers arrived without a warrant or probable cause, and came only after Mr. Woeltgens had filed a false complaint against Plaintiff with SPD. ( Id.)
A few days later, on October 28, 2008, former Town Engineer Gagne filed thirty-six counts of wetlands violations and two misdemeanor charges against Plaintiff. ( Id. ¶ 27.) Plaintiff alleges that the violations and charges were " baseless," ( id.), and that the Town initiated these proceedings to retaliate against him for uncovering Town corruption, to benefit his neighbors, and to punish him for First Amendment-protected activity, ( id. ¶ ¶ 27, 34). According to the FAC, the charges were " terminated in Plaintiff's favor on July 23, 2011," after the Town failed " to prosecute . . . within the legal time frame."  ( Id. ¶ 27,
As a result of these charges, Plaintiff alleges that he spent thirty-three months in court sitting through " hours of hearings week after week, and month after month while being completely restrain[ed], confine[d], restricted from his movements and falsely imprisoned." ( Id. ¶ 27.) He asserts that the Town Wetlands Code (under which he was charged) violates due process because it " does not give the accused the right to a meaningful pre-deprivation or prompt post-deprivation hearing." ( Id. ¶ 52.)
On November 2, 2008, Plaintiff " posted political signs on [his] property" in support of Councilman Harry Bolton, who was running against Supervisor Murphy in the Town election. ( Id. ¶ ¶ 34, 80.) He alleges that Murphy ordered his signs " be taken down and seized . . . by the town highway [department] employees," ( id. ¶ 34), and further alleges that the Town sign laws are unconstitutional because they require citizens to remove their political signs, even when posted on private property, ( id. ¶ 5). Plaintiff asserts that Murphy's decision to seize his signs chilled his free speech in that he changed his political enrollment and is " afraid to speak out on the Town's corruption as much as he would like." ( Id. ¶ 36.)
Plaintiff further contends that Defendants have interfered with his right of way -- a strip of land he owns that provides access to his property. He alleges that Gagne forced him to block the entrance to the right of way, causing his property to be landlocked and further devalued. ( Id. ¶ 55.) He asserts that Gagne took these actions in order to restrict Plaintiff's access to his property, and to enable the Murphys, who are good friends with Supervisor Murphy, to purchase the land. ( Id.) Plaintiff also alleges that the Murphys refused to remove a willow tree that had fallen across the right of way and resulted in severe flooding. ( Id. ¶ 45.) He asserts that the Murphys violated the Wetlands Code by failing to remove the tree, but the Town did not enforce the Code against them (again because the Murphys were friends with Supervisor Murphy) even though the Town had " vigorously prosecuted" him for baseless wetlands violations. ( Id.)
On December 9, 2011, Plaintiff reported the flooding in his right of way to DEC Officer Toth. ( Id. ¶ 58.) Officer Toth investigated the complaint and, according to Plaintiff, declared that the Murphys were responsible for the flooding. ( Id. ¶ 56.) In issuing his report, Officer Toth allegedly altered his findings and blamed Plaintiff for any damage to the property. ( Id.) Plaintiff insists that Supervisor Murphy induced Officer Toth to change his report, alleging that " on or about Oct [ sic ] 20, 2011," he learned that " Supervisor Murphy . . . called the [DEC] in order to have Toth's story changed."  ( Id. ¶ 59.)
Plaintiff brings three final allegations against Defendants. He alleges that he has filed many Freedom of Information Law (" FOIL" ) requests with the Town, but the Town has " stalled, denied, altered, destroyed, or hidden" the responses to his requests in an attempt to " cover-up the on-going conspiracy and [Town] corruption." ( Id. ¶ ¶ 61-62, 67-68.) He also alleges that his property should have been afforded Agricultural District Status, but the Town convinced the County to deny his request. ( Id. ¶ 62.) He insists that the Town has never blocked " any similarly-situated small farmer," ( id.), and that the Town's refusal to grant the request violates the State Agricultural District Law, ( id. ¶ 63). He finally alleges that Defendants forced him to destroy 300 bamboo trees on his property. ( Id. ¶ 48.)
Plaintiff filed his initial complaint on September 13, 2011, (Doc. 2), and subsequently amended it four times, (Docs. 29, 87, 93, 94). The FAC, filed on January 2, 2013, sets forth myriad claims against Defendants under the First, Fourth, Fifth, Sixth and Fourteenth Amendments. Plaintiff contends that Defendants violated his right of free speech, of free association, and to petition for redress of grievances; his right to be free from illegal search and seizure of his property and person; his right to privacy; his right to counsel; his right to equal protection; and his procedural and substantive due process rights. He further contends that the " Code of Ethics, tax exemptions, Wetland laws, Sign Display Town Codes, Illicit discharges, and most of the town codes . . . are very vague, unclear and overly burdensome to the average homeowner." (FAC ¶ 6.) Plaintiff also purports to bring state law claims. ( See id . ¶ 9.)
II. Legal Standards and Preliminary Issues
The Town Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). The DEC Defendants move to dismiss pursuant to Rules 12(b)(5) and 12(b)(6). The Neighbor Defendants have not moved to dismiss.
A. Legal Standards
1. Rule 12(b)(5)
On a motion to dismiss pursuant to Rule 12(b)(5) for deficient service of process, " the plaintiff bears the burden of establishing that service was sufficient." Khan v. Khan, 360 F.Appx. 202, 203 (2d Cir. 2010) (internal quotation marks omitted);
see TAGC Mgmt., LLC v. Lehman, 842 F.Supp.2d 575, 580 (S.D.N.Y. 2012). A plaintiff must meet this burden by making a prima facie case of proper service " through specific factual allegations and any supporting materials," Kwon v. Yun, No. 05-CV-1142, 2006 WL 416375, at *2 (S.D.N.Y. Feb. 21, 2006), and conclusory statements alone are not sufficient to overcome a defendant's sworn affidavit that service was improper, Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002). " If service of process was not sufficient, the Court has discretion to dismiss the action, but dismissal is not mandatory." Id.
2. Rule 12(b)(6)
" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " 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." Id. " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 " marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the court " begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, " plausibly give rise to an entitlement to relief." Id. at 679. Deciding 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." Id. " [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 'shown' -- 'that the pleader is entitled to relief.'" Id. (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)).
Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). But while pleadings of a pro se party should be read " to raise the strongest arguments [that they] suggest," Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal quotation marks omitted), dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements, see Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997); acc ...