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Walzer v. Town of Orangetown

United States District Court, S.D. New York

April 7, 2015

ANDREW WALZER, Plaintiff,
v.
TOWN OF ORANGETOWN, et al., Defendants.

OPINION & ORDER

CATHY SEIBEL, District Judge.

Before the Court is Defendants' Motion to Dismiss, filed on September 18, 2014. (Doc. 33.) For the reasons stated below, the motion is GRANTED.

I. Background

For purposes of this Order, I accept the facts, but not the legal conclusions, as set forth in the Amended Complaint ("AC"), (Doc. 23), and the documents that Plaintiff cites as exhibits therein, which can be considered on a motion to dismiss, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).[1]

Plaintiff is Andrew Walzer, a resident of the Town of Orangetown (the "Town") in Rockland County, New York. (AC at 1.) Defendants are the Town; Town police officers Holihan, Goldfarb, Grunski, and other unnamed officers; Rockland County (the "County"); the County District Attorney's Office; Town Judge Paul Phinney; and Plaintiff's former tenant, Aniska Baptiste. The Court interprets the AC as also asserting claims against County District Attorney Investigator Mulkeen and Town police officers Polazolo, Stratton, and McDowell, all of whom are mentioned in the AC but not listed as defendants in the case caption.[2]

Plaintiff has a long history of interaction with local law enforcement. In late 2002 or 2003, Plaintiff reported to the Town police that he was the victim of a forgery scheme by several financial companies (who had sold some of his stocks to meet margin calls without his permission), but the Town police, County District Attorney's Office, and Investigator Mulkeen refused to investigate the matter. ( Id. at 7-8.) In 2007, after Plaintiff suffered injuries while bicycling on a sidewalk in the Town, he sued the Town (and others). ( Id. at 1; P's Ex. 3.)[3] Plaintiff believes that many of the events that followed were influenced by the Town's "prejudice" against him for having filed this lawsuit. (AC at 3.)

In early July 2008, Plaintiff made a criminal complaint to the County District Attorney's Office that his ex-girlfriend Paula Colombo had threatened and harassed him. ( Id. at 1; P's Ex. 5a.) On July 14, 2008, when Plaintiff showed up at Ms. Colombo's arraignment, Ms. Colombo informed the presiding judge, Judge Phinney, that she had a New Jersey restraining order against Plaintiff and asked that he be arrested for violating that order by coming near her. (AC at 16-17.) In response, Town Police Officer Grunski charged Plaintiff with second-degree criminal contempt for violating the restraining order. ( Id. at 17; P's Ex. 6a.) Months later, the week before Plaintiff's scheduled trial on the contempt charge, Judge Phinney dismissed the case based on his finding that Plaintiff had never been served with the restraining order and thus could not be held in contempt of it. (AC at 17; P's Opp. Ex. PF at 3.)

On October 3, 2009, two police officers from Bergen County, New Jersey, came to Plaintiff's home to speak with him about a New Jersey family court case that involved him. (AC at 14; P's Ex. 14) Plaintiff asked the officers to leave his property and when they refused, he called the Town police to request that they either remove the officers or charge them with trespassing. Town Police Officer Goldfarb "would not make these officers from New Jersey leave [Plaintiff's] property." (AC at 14.) According to the AC, because the officers were blocking Plaintiff's car in his driveway, he "had no choice but to submit to questioning" by them. ( Id. at 6; see id. at 14.) Later that day, Plaintiff went to the Town police station to make a trespassing complaint against the New Jersey officers and was told by Officer Polazolo that he should instead speak to the supervisor of those officers. ( See P's Ex. 14.) Plaintiff threatened to sue the Town if the police did not take a trespassing complaint from him, but they refused to do so. (AC at 7.)

In approximately February 2010, Plaintiff called the Town police after Erika Maloney "smacked [him] in the head with an open hand... breaking [his glasses]" and then chased him around his front lawn with a snow shovel. ( Id. at 15.) When officers arrived at the scene, they refused Plaintiff's request that they file assault charges against Ms. Maloney, instead charging her with harassment and also charging Plaintiff with harassment, which he alleges was "completely unfounded [and] retaliatory." ( Id. ) Plaintiff and Maloney later agreed to drop their charges against each other at the request of the Town and the County District Attorney's Office. ( Id. at 16.)

Later that year, Plaintiff called the police several times to report conflicts with Aniska Baptiste, a woman to whom Plaintiff rented a room in his house. ( See id. at 11.) On September 7, 2010, Plaintiff called the Town police to request that they remove two of Baptiste's guests, who Plaintiff said "would have to trespass on his property to get to and from the leased apartment." (P's Ex. 13 at 1; see AC at 5) Town Police Officer Stratton (or "Strattner, " according to a police report accompanying the AC), who responded to the calls, refused to remove the guests, and told Plaintiff that "leasing an apartment includes an implied easement across the landlord's property and that persons coming to and from the leased apartment did not commit a trespass." (P's Ex. 13 at 1.) After Plaintiff told Officer Stratton that if the guests were permitted to stay there "might be violence, " ( id. at 2), Stratton searched Plaintiff's wallet and pockets for weapons, ( id.; see AC at 5). Plaintiff later clarified that he had meant to convey that he feared the guests would hurt him and not vice versa. (P's Ex. 13 at 2.)

Several weeks later, on October 3, 2010, when Baptiste's cousin visited her in her room in Plaintiff's house, Plaintiff entered the room and asked the cousin to leave, whereupon Baptiste "suddenly and violently threw a glass candle-jar at [Plaintiff's] head, " concussing Plaintiff and causing a laceration that required him to get several stitches. (AC at 4-5; see P's Ex. 8.) Officers Goldfarb and Holihan, who responded to the incident, arrested Baptiste for assault and arrested Plaintiff for trespassing in Baptiste's room. ( See P's Exs. 11, 12.) Plaintiff states that Officer Holihan "at first told [Plaintiff] he was being arrested because he had threatened to sue" Holihan earlier that day for failing to remove the trespasser from his property. (AC at 4; see id. at 12-13.)

Plaintiff alleges that that evening, after he was released, the police "arranged to have [Ms. Baptiste]... be in [Plaintiff's] dark nighttime driveway, ... to cause problems [and] further put [his] life at risk." ( Id. at 10.) After Plaintiff apparently became alarmed and drove away, Town Police Officer McDowell called Plaintiff's cell phone and asked him to drive back to his house and unlock the door for the officers who were trying to help Ms. Baptiste (who no longer had a key) retrieve her possessions from Plaintiff's house. ( Id. ) When Plaintiff pulled into his driveway, Officer Holihan "ordered [Plaintiff] to hand over his license and registration, " "pushed [Plaintiff] into his car-door, " threatened to arrest him, and wrote Plaintiff four traffic tickets (all of which were later dismissed after Officer Holihan failed to answer Plaintiff's discovery requests). ( Id. at 10-11; see P's Exs. 16a, 16b.) Plaintiff then left his property for some period of time to rest at a neighbor's house. When he returned home, the police were gone, and Plaintiff found a broken chain door-guard on the door from the master bedroom to the main house that suggested to him that the police "had broken into... his house doing an illegal search." (AC at 11-12.)

On several occasions after the altercation with Ms. Baptiste, Plaintiff attempted to convince the County District Attorney's Office to prosecute Baptiste for a greater offense and to dismiss the trespassing charge against him. On January 4, 2011, Plaintiff went to the County District Attorney's Office to offer evidence related to the October 3, 2010 incident, including the glass candle jar that Baptiste threw at him and a statement from a witness to the incident. ( Id. at 20; see P's Ex. 8.) Investigator Mulkeen refused to accept Plaintiff's evidence, asked him to leave, and threatened him with arrest if he did not comply. (AC at 20.) On March 22, 2011, Plaintiff filed a motion in New York Supreme Court requesting that the court order the County District Attorney to investigate and prosecute Baptiste for second-degree assault. ( Id.; P's Ex. 21.) Finally, in July 2011, Plaintiff brought copies of two criminal complaints that he had drafted - one against Ms. Baptiste for assault and the other against her cousin for trespassing - to the Town police station, but the police refused to accept them. (AC at 9; see P's Exs. 22a, 22b.) On an unspecified later date, the trespassing charge against Plaintiff was dropped "upon Rockland ADA Ms. Gayle's motion, and [an] Orangetown Judge ordered it dismissed." (Doc. 58 at 1.)

In 2010, 2011 and 2013, Plaintiff requested that the Town provide him with copies of the police reports related to the October 3, 2010 incident pursuant to the Freedom of Information Act ("FOIA"), but he was denied. (AC at 18.) He later received five police reports related to that incident from counsel for the Town. ( Id. )

Plaintiff alleges that, on October 27, 2010, Officer Holihan falsely reported to the Town Building Department that Plaintiff was running an unlawful boarding house at his residence, ( id.; see P's Ex. 9), which allegedly caused the Town to charge Plaintiff with a criminal zoning violation for an "[a]ccumulation of unlicensed vehicles and automobiles on a residential lot, " (AC at 18; P's Ex. 24). (Because the criminal zoning violation is dated October 2009, a year before Holihan allegedly falsely reported Plaintiff to the Town Building Department, ( see P's Exs. 9, 24), these events could not have occurred as Plaintiff has described.) After Plaintiff paid a fine for the alleged violation, the Building Department "dropped the matter." (AC at 19.)

In April 2014, Plaintiff went to the Town police station with copies of "over 50 threatening and slanderous emails" from his estranged brother that showed that the brother had made false accusations about Plaintiff to the New York State Tax Department and an April 1, 2014 letter that Plaintiff received from a U.S. Postal Inspector flagging the brother's latest attempt to steal Plaintiff's identity. ( Id. at 8.) The police officer at the front desk "agreed that [the emails were] repeated and aggravated harassment and threats" but refused to take a complaint from Plaintiff because the emails were too old. ( Id. )

Plaintiff alleges that law enforcement's "multiple false retaliatory charges" against him and repeated refusal to investigate his criminal complaints, in addition to being retaliation for his 2007 lawsuit against the Town, form a pattern that demonstrates "gender prejudice against males if they bring criminal charges against a violent woman." ( Id. at 2-3.)

The Court interprets the AC as asserting a FOIA claim; Section 1983 claims for false arrest, malicious prosecution, failure to investigate and prosecute, use of excessive force, violation of Equal Protection, First Amendment retaliation, and illegal search and seizure (and Monell claims against the Town and County for these constitutional violations); a Section 1985(3) conspiracy claim; and a state-law battery claim against Ms. Baptiste. Ms. Baptiste has not been served in this case; the other Defendants have moved to dismiss Plaintiff's claims against them. (Docs. 31, 35, 54, 56.)

II. Legal Standard

"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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 129 S.Ct. at 1950.

In considering whether a complaint states a claim upon which relief can be granted, the court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth, " and then determine whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. 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 ...


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