Vaher v. Town of Orangetown
2013 U.S. Dist. LEXIS 926
| S.D.N.Y. | 2013Background
- Valdo Vaher filed a 1983 action March 1, 2010; amended complaint filed Oct 26, 2010 against Town of Orangetown, OPD, Nulty, Nawoichyk, Hoffman, and Sullivan.
- Plaintiff asserts seven constitutional claims under 42 U.S.C. § 1983 such as Fourth, Second and First Amendment rights, plus Fifth and Fourteenth Amendment due process and equal protection claims.
- March 2007 search at Plaintiff’s residence yielded seizure of items; inventory omitted certain items and no return of seized property occurred; third-party communications allegedly harmed Plaintiff’s reputation.
- 2009 incident involved confrontations with contractor’s son; Sullivan allegedly threatened Plaintiff and prepared a false complaint; Plaintiff placed on modified duty and psychological testing.
- Court denied Plaintiff’s motion to compel addresses and extension for service; granted in part Defendants’ motion to dismiss, dismissing unserved Hoffman, Nawoichyk, and Sullivan and certain related claims while allowing others to proceed.
- Court noted that Fifth Amendment claims are to be dismissed as to municipal defendants and OPD is not independently suable; Monell claim and several other constitutional claims survive to be litigated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extension for service—good cause under Rule 4(m). | Plaintiff sought third extension to serve unserved defendants. | Defendants argued no good cause and prejudice to defendants. | Denied extension; lack of good cause and substantial delay. |
| Fourth Amendment claim viability. | Seizure outside warrant scope; conduct abusive. | Warrant valid and presumptively reasonable; no response on scope. | Denied dismissal; Fourth Amendment claim survives at this stage. |
| Second Amendment claim viability. | Seizure of rifle kit and ammunition violated Second Amendment. | No viable Second Amendment violation given alleged lack of broader impact. | Granted dismissal of Second Amendment claim. |
| Monell claim against Town. | Pattern of harassment and final policymaker involvement shows municipal liability. | Insufficient pleading of formal policy or custom. | Denied dismissal; Monell claim survives. |
| Procedural due process claim viability. | Municipal policy deprived Plaintiff of property without remedy. | Parratt/Hudson arguments apply; post-deprivation remedies available. | Denied dismissal; procedural due process claim survives. |
Key Cases Cited
- Zapata v. City of New York, 502 F.3d 192 (2d Cir. 2007) (notification by defendant starts 4(m) clock; discretion to extend beyond good cause)
- Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) (First Amendment retaliation needs protected activity and causal connection, not always ‘actual chilling’)
- Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (final policymaker liability for municipality requires showing official action by policy-maker)
- Heller v. District of Columbia, 554 U.S. 570 (2008) (Second Amendment protects individual right to bear arms for self-defense; not unlimited)
- Zherka v. Amicone, 634 F.3d 642 (2d Cir. 2011) (retaliation claims require some harm; chilling not always necessary)
- Described authority in Parratt/Hudson line (conceptual background), N/A (N/A) (random/unauthorized vs. final-authority deprivation for due process)