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Freund v. County of Nassau

United States District Court, E.D. New York

February 24, 2017

MICHAEL FREUND, Plaintiff,
v.
COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY SHERIFF'S DEPARTMENT, and SHERIFF MICHAEL SPOSATO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, Defendants.

          LAW OFFICES OF GREGORY J. GALLO, PC, GREGORY J. GALLO, ESQ. Attorneys for Plaintiff

          CARNELL T. FOSKY, NASSAU COUNTY ATTORNEY BY: DIANE C. PETILLO, DEPUTY COUNTY ATTORNEY Attorneys for Defendants

          MEMORANDUM AND ORDER

          LEONARD D. WEXLER, United States District Judge

         Before the Court is the Defendants' motion to dismiss Plaintiffs Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. For the following reasons, Defendants' motion is granted in part and denied in part.

         BACKGROUND

         The relevant facts can be summarized as follows: Plaintiff, Michael Freund, ("Plaintiff or "Freund"), is a former Corrections Officer who was employed by the Nassau County Sheriffs Department (the "Sheriffs Department") from August 1995 to September 6, 2011, when he retired on disability due to an injury suffered in 2009 in the course of his duties as a corrections officer. Following his retirement, Plaintiff applied to the Sheriffs Department for a "good guy letter, " which would allow him to possess and carry a pistol as a retiree. Plaintiffs application for a good guy letter was denied by Defendant Sheriff Michael Sposato ("Sposato") on or about February 22, 2014, on the grounds that Plaintiff was injured and/or disabled for medical reasons at the time of his retirement.

         Plaintiff commenced the within action on October 27, 2015, alleging that Defendants have violated his Second Amendment, due process and equal protection rights under 42 U.S.C. § 1983. Plaintiff further alleges that Defendants have discriminated against him on the basis of disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794. Finally, Plaintiff asserts a claim for municipal liability, as well as state law claims for gross negligence and tortious interference with prospective contractual advantage.

         Defendants filed the instant motion, seeking to dismiss the entire Complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). However, Defendants only address the due process, equal protection, discrimination and municipal liability claims in their motion.[1] Although not addressed by Defendants, the Court finds, for the reasons discussed below, that Plaintiffs Complaint fails to state a claim for violation of his Second Amendment rights, gross negligence and tortious interference with prospective contractual advantage. In addition, the Court finds that Plaintiff has failed to state a claim for violation of his due process rights and disability discrimination. The Court finds, however, that Plaintiff has met his burden with respect to his equal protection and municipal liability claims.

         DISCUSSION

         I. Legal Standard

         "To survive a motion to dismiss [pursuant to Rule 12(b)(6)], 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. 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570 (2007)). "Facial plausibility" is achieved when the "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal. 556 U.S. at 678 (citing Twomblv. 550 U.S. at 556). As a general rule, the court is required to accept as true all of the allegations contained in the complaint, see Iqbal, 556 U.S. at 678; Kassner v. 2nd Ave. Delicatessen. Inc.. 496 F.3d 229, 237 (2d Cir. 2007), and to "draw[] all reasonable inferences in the plaintiffs favor." Troni. 2010 U.S. Dist. LEXIS 79670, at *5 (quoting In re NYSE Specialists Sec. Litig.. 503 F.3d 89, 95 (2d Cir. 2007)).

         However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... are not entitled to the assumption of truth." Iqbal. 556 U.S. at 678-79 (citation omitted); see also Twombly. 555 U.S. at 555 (stating that the Court is "not bound to accept as true a legal conclusion couched as a factual allegation"). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, " which state a claim for relief. Iqbal. 556 U.S. at 679. A complaint that "tenders 'naked assertion[s]' devoid of'further factual enhancement'" will not suffice. Iqbal. 556 U.S. at 678 (quoting Twomblv. 555 U.S. at 557).

         II. The NCPD and NCSD are not Suable Entities

         As Defendants correctly point out in their motion, Defendants Nassau County Police Department and Nassau County Sheriffs Department are not suable entities. It is well-established that "[u]nder New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued." Davis v. Lvnbrook Police Dep't. 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002) (citing cases). ...


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