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Ellis v. Wilkinson

United States District Court, E.D. New York

January 28, 2015

HARRY J. ELLIS, Plaintiff,

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For Plaintiff: James S. Henry and Victor John Yannacone, Jr. of Yannacone & Yannacone PC, Patchogue, New York.

For Defendant: Steven C. Stern and Mark A. Radi of Sokoloff Stern, Carle Place, New York.

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JOSEPH F. BIANCO, United States District Judge.

On June 5, 2014, plaintiff Harry J. Ellis (" plaintiff" ) filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (" Section 1983" ) and New York law against William Wilkinson (" Wilkinson" or " defendant" ), the former supervisor of the Town of East Hampton (" the Town" ). The gravamen of

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plaintiff's complaint is that Wilkinson retaliated against him for reporting environmental concerns.

Presently before the Court is the defendant's motion to dismiss the amended complaint. For the following reasons, the Court grants the motion and dismisses the federal claims in the amended complaint with leave to re-plead. Furthermore, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims at this juncture, and dismisses them without prejudice. Finally, the Court denies defendant's request for an award of attorney's fees.

I. Background

A. Facts

The following facts are taken from the amended complaint, and are not findings of fact by the Court. Instead, the Court will assume these facts to be true and, for purposes of the pending motion to dismiss, will construe them in a light most favorable to plaintiff, the non-moving party.

This action arises from the Town of East Hampton's efforts to construct a storm-water retention pond on a .76 acre of wetlands adjacent to plaintiff's home. Plaintiff claims that the Town initiated this project to retaliate against plaintiff for acting as an environmental whistleblower against a Keith Grimes (" Grimes" ), who is a friend of Wilkinson. Wilkinson was the Town Supervisor from January 2010 to January 2014. (Am. Compl. at ¶ 2-7.)

Specifically, plaintiff claims that, in the spring of 2010, plaintiff investigated Grimes for " illegal dredging and other environmentally-destructive activities on Lake Montauk," and reported these findings to the New York State Department of Environmental Conservation (" DEC" ). ( Id. at ¶ 4-5.) Plaintiff claims that the DEC issued notices of violation to Grimes on June 15, 2010, and that Wilkinson took action against the plaintiff immediately thereafter. ( Id. at ¶ 6-7.) Plaintiff claims that on September 22, 2010, Wilkinson ordered plaintiff to cease using the wetlands adjacent to his home, and asserted Town ownership over this property. ( Id. at ¶ 8-9.) Plaintiff also claims that from June 2010 to October 2010 Wilkinson coordinated a Town effort to submit " a detailed plan and formal application for a DEC permit to construct a massive, costly, environmentally-dubious project on this narrow strip of wetlands." ( Id. at ¶ 10.)

In October 2010, plaintiff filed a petition in New York State Supreme Court, Suffolk County, contesting the Town's title to the strip of wetlands at issue. The wetlands project has been stayed pending the resolution of that action, because on February 7, 2011, the parties entered into a stipulation,[1] under which the Town agreed not to take any action with respect to the construction project, and further agreed not to " 'interfere' in any way with Plaintiff's present use" of the wetlands parcel. ( See Docket Entry 19-6.) The state court lawsuit remains pending, however, and plaintiff alleges that the Town has evaded discovery, in bad faith and at a substantial litigation cost to plaintiff. ( Id. at ¶ 142-48.)

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Plaintiff filed this action on June 5, 2014, seeking monetary damages and injunctive and declaratory relief. On July 10, 2014, plaintiff filed an amended complaint. Defendant filed a motion to dismiss the amended complaint on August 25, 2014, and plaintiff filed an opposition to that motion on September 25, 2014. Defendant filed a reply on October 9, 2014, and the Court heard oral argument on October 31, 2014.

This matter is fully submitted, and the Court has fully considered the submissions of the parties.

II. Motion To Dismiss

A. Standard of Review

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). " In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require " heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth two principles for a district court to follow in deciding a motion to dismiss. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, district courts must " identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. " While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains " well-pleaded factual allegations, a ...

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