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Rodrigues v. The Incorporated Village of Mineola

United States District Court, E.D. New York

June 16, 2016

Zacarias Rodrigues and Morsman Realty Corp., Plaintiffs,
v.
The Incorporated Village of Mineola, et al., Defendants.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO, UNITED STATES DISTRICT JUDGE

         Plaintiff Zacarias Rodrigues filed the Complaint in this action on March 15, 2016. (ECF No. 1.) After this Court dismissed the Complaint with leave to amend on October 25, 2016 (ECF Nos. 21-22), Rodrigues filed the Amended Complaint on November 30, 2016 (ECF No. 25 (“Am. Compl.”)), which added his company, Morsman Realty Corp. (“Morsman”) (collectively with Rodrigues, “plaintiffs”) as a plaintiff. Presently before the Court is a motion to dismiss the Amended Complaint filed by defendants the Incorporated Village of Mineola (“Village”) and Daniel B. Whalen, the Village's Superintendent of the Department of Buildings (collectively “defendants”).[1] For the reasons set forth below, the motion is granted in part and denied in part. In particular, the motion is granted with respect to the claims (1) against Mayor Strauss, (2) based on the 2006 summons, and (3) against Whalen to the extent they stem from the parking citations. The motion is denied as to the claims against Whalen and the Village regarding the summonses for the building violations and as to the Village regarding the parking citations.

         I. Background

         The following facts are taken from the Amended Complaint. The Court assumes them to be true for purposes of deciding this motion and construes them in the light most favorable to plaintiffs, the non-moving party.

         A. Facts

         Rodrigues is of Portuguese descent. (Am. Compl. ¶ 11.) He is the sole owner and shareholder of Morsman, which owns property at 75 Windsor Avenue, Mineola, New York (the “Property”). (Id. ¶¶ 6, 13.) In 2005, plaintiffs applied for a permit to operate a concrete mixing plant on the Property, but the Village denied the application. (Id. ¶ 14.) Plaintiffs eventually entered into a stipulation of settlement with the Village whereby they were allowed to use the Property as an outdoor storage facility for the “open storage of trucks, machinery, equipment and materials . . . provided they are not used for the production of cement.” (Id. ¶ 16.)

         Since the time the parties entered into the stipulation, inspectors from the Village have frequently visited the Property. (Id. ¶ 17.) Several of plaintiffs' neighbors also operate storage facilities, some without permits, but they have not received frequent visits from inspectors. (Id. ¶ 18.) Plaintiffs' neighbors are not of Portuguese descent. (Id. ¶ 19.) When Rodrigues raised concerns about unfair treatment with defendant Whalen, Whalen responded, “mind your own business.” (Id. ¶ 18)

         On September 28, 2006, Rodrigues received a summons as owner of Morsman, which alleged that he “allow[ed] for the accumulation of filth, dirt, concrete dust and stones upon a public place (Windsor Avenue) within the Village of Mineola” in violation of the Village's Municipal Code (“Code”). (Id. ¶ 20.) Building Inspector Keith Gessner issued the summons. (Id. ¶ 21.) On July 22, 2014, Rodrigues received another summons from the Village, this one issued by Building Inspector Thomas Murphy, for “allow[ing] discharge into the Villages [sic] separate storm sewer system . . . materials other than storm water.” (Id. ¶¶ 24-25.) On December 1, 2014, Rodrigues received additional summonses from the Village via Murphy for operation of a non-permitted use of a garbage corporation in an M-District and for permitting a tenant to deposit waste on private property. (Id. ¶ 32.) It was later determined that, although garbage trucks were being stored on the Property, there was no garbage being stored or dumped there. (Id.)

         Plaintiffs' non-Portuguese neighbors have not received summonses even though they have spilled concrete production material onto public streets and into storm drains. (Id. ¶¶ 22, 25-26.) In addition, at least one neighbor, D&A Sand and Gravel (“D&A”), produces and stores concrete at their facility at 328 Sagamore Avenue (“328 Sagamore”), but its owner only has a permit to do so at a different facility located at 335 Sagamore Avenue (“335 Sagamore”). (Id. ¶ 30.)

         Rodrigues has also received over 25 parking citations from the Village from September 2013 to February 2015 totaling over $6, 000 in fines. (Id. ¶ 34.) The citations were issued for, inter alia, double parking and improper parking of a commercial vehicle. (See, e.g., id. ¶¶ 36-47.) Plaintiffs' neighbors have not received citations to the extent Rodrigues has even though some of them have engaged in similar behavior. (Id. ¶ 57.)

         B. Procedural History

         Rodrigues filed the Complaint on March 15, 2016. (ECF No. 1.) Defendants' initial motion to dismiss was granted on October 25, 2016. (See ECF Nos. 21-22.) Plaintiffs filed the Amended Complaint on November 30, 2016 (ECF No. 25), and defendants moved to dismiss on February 3, 2017 (ECF No. 29). Plaintiffs filed an opposition on March 28, 2017 (ECF No. 35), and defendants replied on April 11, 2017 (ECF No. 37). Oral argument was held on April 20, 2017. (ECF No. 38.) The Court has fully considered the parties' submissions.

         II. 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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 (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 court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         III. Discussion

         The Amended Complaint sets forth claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) for violations of the Equal Protection Clause of the Fourteenth Amendment and municipal liability against the Village based on its selective enforcement of laws, rules, regulations, and ordinances against plaintiffs because of Rodrigues's national origin. (Am. Compl. ¶¶ 71-76.) Specifically, plaintiffs claim that the Village selectively targeted them for both violations of the Village's Code and traffic citations. As set forth below, the Court concludes that, although the Amended Complaint fails to state a claim based on the Village's issuance of traffic citations with respect to Whalen individually, it adequately states Equal Protection against Whalen based on his alleged selective enforcement of summonses for Code violations. The Amended Complaint also adequately alleges municipal liability against the Village for both the Code violations and the parking citations.

         A. Individual Liability

         As a threshold matter, defendants argue that Whalen cannot be held individually liable because (1) the Amended Complaint does not adequately allege that Whalen was personally involved in the constitutional violations; and (2) Whalen is entitled to qualified immunity. For the reasons outlined below, the Court concludes that, although the Amended Complaint fails to state a claim against Whalen based on the traffic ...


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