United States District Court, E.D. New York
OPINION AND ORDER
SANDRA J. FEUERSTEIN, District Judge.
Before the Court is the Report and Recommendation ("Report") of Magistrate Judge William D. Wall, dated April 4, 2013, recommending that defendant Town of Huntington's motion to dismiss be granted as to plaintiffs' First Amendment and Due Process claims and denied as to plaintiffs' Equal Protection Claim. The Report also recommends that plaintiffs be given leave to replead. Both parties timely filed objections. For the following reasons, the Report is adopted to the extent set forth below and defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED in part and DENIED in part.
I. Case History
On August 2, 2013, plaintiffs Jennifer LaVertu and John LaVertu ("plaintiffs") filed a complaint against defendant Town of Huntington ("Town") alleging that the Town violated their constitutional rights. Specifically, plaintiffs allege that after they released a video on YouTube opposing the Town's proposed housing project, the Town retaliated against them by releasing its own rebuttal YouTube video, targeting plaintiffs' home with baseless summonses and interfering with John LaVertu's plumbing license. The complaint alleges that the Town's retaliatory acts infringed upon plaintiffs' First Amendment, Equal Protection and Substantive Due Process fights.
Defendant filed a motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, which was referred to Magistrate Judge Wall to report and recommend. The Report recommends that defendant's motion to dismiss the case, pursuant to Monell Dep't of Social Services of City of New York, 436 U.S. 658, 692 (1978), be denied on the ground the complaint contains plausible allegations that a municipal custom or policy caused the violations. The Report also recommends that the case not be dismissed under the Rooker-Feldman doctrine. As to plaintiffs First Amendment retaliation claim, Magistrate Judge Wall recommends it be dismissed without prejudice and that plaintiffs be permitted to replead to allege a concrete harm. As to plaintiffs' substantive due process claim, the Report recommends it be dismissed without prejudice on the ground it is unripe and that it be raised anew after final judgment by the Huntington Town Court, Third District. The Report also recommends that plaintiffs' equal protection claim go forward as a class-of-one violation based on the retaining wall summons.
A. Standard of Review
Title 28 U.SC. § 636(b)(1)(C) provides that a "judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See also Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). After reviewing a report, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Tin providing for a "de novo determination"... Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. 667, 676 (1980).
Defendant objects to the Report's finding that plaintiffs stated a viable Monell claim on the ground plaintiffs failed to plead deprivation of a constitutional right or damages.
In a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Kimbrough Town of Dewitt Police Dep't, No. 03 Civ. 08, 2010 WL 3724121, at *3 (N.D.N.Y. Mar. 8, 2010) (quoting Scheuer Rhodes, 416 U.S. 232, 236 (1974)). The complaint alleges that plaintiffs released their YouTube video opposing the housing project on January 28, 2011. Approximately eight days later, on February 5, 2011, the Town released its own video entitled "Huntington Speaks" using an alternative YouTube account. At the end, Huntington Town Council members take credit for the video, which publicized information about plaintiffs' real estate taxes. Compl. ¶¶ 17-21. Councilwoman Susan Bernard allegedly told plaintiffs that the rebuttal video was specifically made in response to plaintiffs' video criticizing the Town. Id. at ¶ 27.
On June 6, 2011, the Town voted on and approved a change in zoning to accommodate the housing project. Id. at ¶ 29. The next day, June 7, 2011, plaintiffs received a summons for a stone retaining wall on the boundary line between plaintiffs and their neighbor, yet the neighbor was not ticketed. Id. at ¶ 32. After plaintiffs proved that the neighbors owned the wall, the summons against plaintiff was dismissed, however, the neighbor was not ticketed. Id. at ¶ 34.
On June 7, 2011, plaintiffs were also ticketed because they had no certificate of occupancy for their home. Id. at ¶ 35. On February 14, 2012, they requested a town inspection to obtain approval for a "letter-in-lieu" of a certificate of occupancy (the "Letter"). On February 21, 2012, the inspector issued a Final Inspection for Construction prior to 1934, which found that the structure was safe and the Letter was approved. Id. at ¶¶ 36, 37. According to the complaint, nearly eight (8) months later and without reason or justification, Jennifer LaVertu was advised that the inspector's Letter had been "discredited." Id. at ¶ 38. On April 4, 2012, John LaVertu saw the inspector who approved the Letter who told plaintiff that he was being written up for not doing his job when he inspected plaintiffs' home and that the subsequent denial of the Letter was part of a "witch-hunt" against plaintiffs. Id. at ¶ 39. After speaking with the inspector, John LaVertu called the Town official, who advised plaintiff it was not safe to speak on his Town issued cell phone and that he would call plaintiff back from his private cell phone. Id. at ¶ 40. The Town official called plaintiff and advised him that the Town attorney, John Leo, had approached him and demanded the inspector be written up. The Town official vehemently disagreed with Mr. Leo, but Mr. Leo insisted, stating that it was an order from "higher ups, " specifically Patricia DelCol, Deputy Supervisor for the Town of Huntington. Id. at ¶¶ 41, 42. The Town official ...