Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bornschein v. Herman

United States District Court, N.D. New York

January 18, 2018

ANDREW HERMAN, et al., Defendants.


          Lawrence E. Kahn U.S. District Judge


         Plaintiff Gerald Bornschein commenced this civil rights action against defendants Andrew Herman and Daniel Walsh on March 22, 2017, alleging violations of Plaintiff's rights under the Fourth Amendment, as enforced through 42 U.S.C. § 1983, and New York State law. Dkt. No. 1 (“Complaint”). In June 2017, Defendants separately moved to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Dkt. Nos. 9 (“Walsh Motion”), 9-1 (“Walsh Memorandum”), 10 (“Herman Motion”), 10-1 (“Herman Memorandum”). For the reasons that follow, both motions are granted.

         II. BACKGROUND[1]

         Bornschein is a resident of Saugerties, New York, Compl. ¶ 1, where Walsh, a retired Nassau County police officer, resides part-time, id. ¶¶ 3, 12. Bornschein and Walsh own adjacent homes. Id. ¶ 6-9. Walsh purchased his property from Bornschein, who had sub-divided. Id. ¶ 6. To access his property, Walsh uses a narrow right of way that crosses Bornschein's property and extends to the beginning portion of Walsh's driveway. Id. ¶¶ 8-9. Following a property dispute in 2013, Walsh obtained an order of protection requiring Bornschein to “stay away from Walsh's home.” Id. ¶¶ 9-10.

         On October 24, 2015, Walsh met with Herman, a New York State police officer, at Walsh's home. Id. ¶ 13. The next day, Herman informed Bornschein that Walsh had accused him of trespassing on Walsh's property in violation of the order of protection. Id. ¶ 14. Walsh provided photographs that he claimed, in a sworn deposition, showed Bornschein entering Walsh's property on a tractor on two separate occasions, then quickly accelerating out, “disturb[ing]” the ground. Id. ¶ 20. Bornschein denied entering Walsh's property. Id. ¶ 15. Walsh did not witness the alleged trespass himself, id. ¶ 25, and the photographs provided to Herman were taken by a camera that Walsh had affixed to trees on his property, id. ¶ 19. On October 26, 2015, Herman arrested Bornschein for harassment in the second degree and criminal contempt in the second degree. Id. ¶¶ 16, 18. According to Herman's arrest report, Walsh “urged him to press criminal charges against” Bornschein. Id. ¶ 21. Bornschein hired a criminal defense attorney to defend him against the charges. Id. ¶ 27.

         The charges against Bornschein were dismissed on November 21, 2016. Id. ¶ 28. Town of Saugerties Justice Claudia Andreassen concluded that “[t]he photos of Gerald Bornschein merely show him on a road that he is allowed to traverse, ” and “[t]here is nothing to substantiate claims that [he] was on Mr. Walsh's property.” Id. ¶ 29. According to Bornschein, a review of a property map would have revealed that Bornschein never entered Walsh's property. Id. ¶ 31.

         Herman did not consult a property map before arresting Bornschein, which Bornschein says “any reasonable police officer would have” done. Id. ¶ 32.


         To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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. Twombly, 550 U.S. 554, 570 (2007)). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Plausibility, however, requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].” Twombly, 550 U.S. at 556. The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Where a court is unable to infer more than the possibility of misconduct based on the pleaded facts, the pleader has not demonstrated that he is entitled to relief, and the action is subject to dismissal. Id. At 678-79. Nevertheless, “[f]act-specific question[s] cannot be resolved on the pleadings.” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012) (second alteration in original) (quoting Todd v. Exxon Corp., 275 F.3d 191, 203 (2d Cir. 2001)). Presented with “two plausible inferences that may be drawn from factual allegations, ” a court “may not properly dismiss a complaint that states a plausible version of the events merely because the court finds a different version more plausible.” Id.


         “42 U.S.C. § 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of the right, privilege or immunity secured by the Constitution or the laws of the United States.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Section 1983 does not create any substantive rights; it provides civil litigants a procedure to redress the deprivation of rights established elsewhere. Id. “To prevail on a § 1983 claim, a plaintiff must establish that a person acting under the color of state law deprived him of a federal right.” Id.

         A. Claims Against Walsh

         1. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.