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Pacherille v. Burns

United States District Court, N.D. New York

July 3, 2014

TONY PACHERILLE, Plaintiff,
v.
BRIAN BURNS, Defendant

Page 160

FOR THE PLAINTIFF: FRANK POLICELLI, ESQ., OF COUNSEL, Office of Frank Policelli, Utica, NY.

FOR THE DEFENDANT: TIMOTHY P. MURPHY, ESQ., JAMES P. YOUNGS, ESQ., OF COUNSEL, Hancock, Estabrook Law Firm, Syracuse, NY.

Page 161

MEMORANDUM-DECISION AND ORDER

Gary L. Sharpe, Chief U.S. District Judge.

I. Introduction

Plaintiff Tony Pacherille commenced this action against defendant Brian Burns,[1] individually and as an Otsego County Court Judge, pursuant to 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. (Am. Compl., Dkt. No. 22.) Pending is Judge Burns' motion to dismiss the amended complaint, (Dkt. Nos. 20, 23), and Pacherille's letter requesting oral argument, (Dkt. No. 12). For the reasons that follow, Judge Burns' motion is granted and Pacherille's request is denied as moot.

II. Background[2]

The genesis of this action is the New York State criminal case of Pacherille's son, Anthony Pacherille, Jr., over which Judge Burns, an Otsego County Court Judge, presided. (Am. Compl. ¶ 10.) Pacherille Jr., then sixteen years old, was charged with, among other things, " attempted murder in the first degree as a hate crime, as the result of an incident in which he shot a classmate who was an African American." People v. Pacherille, 106 A.D.3d 1136, 1137, 963 N.Y.S.2d 783 (3d Dep't 2013).[3] On April 29, 2011, Pacherille Jr. pled guilty to attempted murder in the second degree. Id.; (Am. Compl. ¶ 10.)

Prior to sentencing, defense counsel requested that Pacherille Jr. be sentenced as a youthful offender. (Am. Compl. ¶ 10.) In support of that request, defense counsel submitted sixty-two letters, one of which was from Pacherille. ( Id.) Among other things, Pacherille's letter pleaded that Judge Burns, " [a]s a father of a boy Anthony's age," consider the " undeveloped

Page 162

and perplexing" mind of an adolescent boy. (Dkt. No. 22, Attach. 1 at 1.) In May 2011, also prior to the sentencing, Pacherille helped create " coophallofshame.com," a website which " contained numerous satirical messages highly critical of Judge Burns," the District Attorney, and the father of the shooting victim.[4] (Am. Compl. ¶ ¶ 11-12.) Ultimately, in July 2011, Judge Burns sentenced Pacherille Jr. as an adult, in accordance with the plea agreement. ( Id. ¶ ¶ 10, 12); see Pacherille, 106 A.D.3d at 1137.

After the sentencing, Pacherille planned to protest Judge Burns' decision. (Am. Compl. ¶ 12.) Pacherille picked up a gathering application, seeking permission from the City of Oneonta to publically protest Judge Burns' decision. ( Id. ¶ 13.) While reviewing the application, Pacherille noticed that it required that the place of protest be listed. ( Id.) On August 2, 2011, Pacherille went to Judge Burns' residence to confirm his address and measure the sidewalk. ( Id.; Dkt. No. 22, Attach. 2.) When Pacherille went to Judge Burns' residence, only Burns' wife was home. (Dkt. No. 22, Attach. 2.) Judge Burns' wife answered the door, and soon asked that Pacherille leave her porch. ( Id.)

Soon after Pacherille left, Judge Burns called the police, and on August 5, 2011, he filed a complaint and signed a sworn deposition, charging Pacherille with harassment and claiming that Judge Burns believed Pacherille's behavior " serve[d] no legitimate purpose," that Pacherille's only intentions were to " intimidate, harass[,] and annoy [him]," and that he feared for himself and his family. ( Id.; Am. Compl. ¶ ¶ 14, 23.) Pacherille then received a phone call from the Chief of Police, who told him to stay away from Judge Burns' house. (Am. Compl. ¶ 23.) On August 3, 2010, Pacherille received a Cease and Desist letter from the New York State Unified Court System, directing Pacherille to " refrain from any harassing, offensive or otherwise disruptive contact or ...


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