United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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.
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.
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.
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.
did not consult a property map before arresting Bornschein,
which Bornschein says “any reasonable police officer
would have” done. Id. ¶ 32.
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,
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.
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.
Claims Against Walsh