OPINION AND ORDER
I. Background
For the purposes of Defendants’ motions to dismiss, I accept as true the facts, but not the conclusions, as set forth in Plaintiffs FAC.
Plaintiff is the owner of a parcel of land located at 20 Sun Hill Road in Katonah, New York.
Throughout thе FAC, which spans some 130 paragraphs (many of which are repetitive and, at times, incoherent), Plaintiff pleads a series of events, from 2008 until 2013,
Plaintiffs allegations begin on or about October 25, 2008, when Police Officer Barker and DEC Officer Gillis entered his property and issued four appearance tickets
A few days later, on October 28, 2008, former Town Engineer Gagne filed thirty-six counts of wetlands violations and two misdemeanor charges against Plaintiff. (Id. ¶ 27.) Plaintiff alleges that the violations and charges were “baseless,” (id.), and that the Town initiated these proceedings to retaliate against him for uncovering Town cоrruption, to benefit his neighbors, and to punish him for First Amendment-protected activity, (id. ¶¶ 27, 34). According to the FAC, the charges were “terminated in Plaintiffs favor on July 23, 2011,” after the Town failed “to prosecute ... within the legal time frame.”
On November 2, 2008, Plaintiff “posted political signs on [his] property” in support of Councilman Harry Bolton, who was running against Supervisor Murphy in the Town election. (Id. ¶¶ 34, 80.)
Plaintiff further contends that Defendants have interfered with his right of way — a strip of land he owns that provides access to his property. He alleges that Gagne forced him to block the entrance to the right of way, causing his property to be landlocked and further devalued. (Id. ¶ 55.) He asserts that Gagne took these actions in order to restrict Plaintiffs access to his property, and to enable the Murphys, who are good friends with Supervisor Murphy, to purchase the land. (Id.) Plaintiff also alleges that the Murphys refused to remove a willow tree that had fallen across the right of way and resulted in severe flooding. (Id. ¶ 45.) He asserts that the Murphys violated the Wetlands Code by failing to remove the tree, but the Town did not enforce the Code against them (again because the Murphys were friends with Supervisor Murphy) even though the Town had “vigorously prosecuted” him for baseless wetlands violations. (Id.)
On December 9, 2011, Plaintiff reported the flooding in his right of way to DEC Officer Toth. (Id. ¶ 58.) Officer Toth investigated the complaint and, according to Plaintiff, declared that the Murphys were responsible for the flooding. (Id. ¶ 56.) In issuing his report, Officer Toth allegedly altered his findings and blamed Plaintiff for any damage to the property. (Id.) Plaintiff insists that Supervisor Murphy induced Officer Toth to change his report, alleging that “on or about Oct [sic] 20, 2011,” he learned that “Supervisor Murphy ... called the [DEC] in order to have Toth’s story changed.”
Plaintiff filed his initial complaint on September 13, 2011, (Doc. 2), and subsequently amended it four times, (Docs. 29, 87, 93, 94).
II. Legal Standards and Preliminary Issues
The Town Defendants move to dismiss pursuant to Rules 12(b)(1)
A. Legal Standards
1. Rule 12(b)(5)
On a motion to dismiss pursuant to Rule 12(b)(5) for deficient service of process, “the plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan,
2. Rule 12(b)(6)
“To survive a motion to dismiss, 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,
In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then detеrmines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679,
Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal. See Erickson v. Pardus,
1. Legal Standard
When deciding a motion to dismiss under Rule 12(b)(6), the Court’s “review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet Corp.,
In considering a Rule 12(b)(5) motion, however, “a Court must look to matters outside the complaint to determine whether it has jurisdiction.” Mende v. Milestone Tech., Inc.,
2. Documents Submitted
In support of their motion to dismiss, the Town Defendants submit the following documents: a Supporting Deposition of Mr. Gagne, (Rice Decl. Ex. B), Certifícate of Disposition, (id. Ex. C), and Stipulation of Settlement, (id. Ex. D), all relating to Plaintiffs wetlands violations; a Justice Court decision, dated April 21, 2011, (id. Ex. E); Supervisor Murphy’s Oath of Office, dated December 30, 2007, (id. Ex. F); a Case History Report, (id. Ex. G), and Supporting Deposition of Carla Rankel, (id. Ex. H), both relating to assault charges against Plaintiff; and Plaintiffs FOIL requests from April 2012, (id. Ex. I).
In opposition, Plaintiff submits a sworn affidavit, to which he attaches the following documents: the deed to his property, (Rankel Aff. Ex. A); title to the Murphys’ property, (id. Ex. B); Notices of Environmental Violations from 2005, (id. Ex. C); a 2006 appeal to the Zoning Board of Appeals, (id. Ex. D); a 2007 expert report finding no wetlands on Plaintiffs property, (id. Ex. E); a video clip of a May 5, 2008 Town Board Meeting, (id. Ex. F); emails from January 2008 between Supervisor Murphy and Gail Murphy about Plaintiffs right of way, along with a letter from Mr. Gagne about an August 2008 altercation involving a dump truck on Plaintiffs property, (id. Ex. G); police reports involving Plaintiff and the Neighbor Defendants, (id. Ex. H); letters in response to Plaintiffs
On the Rule 12(b)(5) motion, I will consider the sworn declarations from Officers Toth, Gillis and Martin, (Docs. 115, 116, 117), along with the affidavit of service from Carlo Rankel, (Rankel Aff. Ex. O).
On the Rule 12(b)(6) motion, the Town Defendants argue that I should disregard Plaintiffs affidavit and attached documents. (Town Ds’ Reply Mem. 3.)
As for the documents submitted by Defendants, I will consider the Certificate of Disposition, (Rice Decl. Ex. C), Stipulation of Settlement, (id. Ex. D), and Justice Court decision, (id. Ex. E); they are matters of public record of which I may take judicial notice for the fact of what is said. See, e.g., Anderson v. Rochester-Genesee Reg’l Transp. Auth.,
III. Discussion
A. Insufficient Service of Process
Rule 4(e) of the Federal Rules of Civil Procedure governs the service of a complaint in federal court. The Rule provides that service may be effectuated by: (1) service consistent with the rules of the
The DEC Defendants move to dismiss on the ground that Plaintiff has failed to serve them with the FAC. (See DEC Mem. 7-9.)
The decision to dismiss a complaint for insufficient service of process is discretionary, but I find dismissal proper here because I have repeatedly reminded Plaintiff of his obligation to serve Defendants, (see Docs. 8, 17, 28, 31, 39, 43, 83), and Plaintiff has failed to do so. I alerted Plaintiff to the fact that not all Defendants had been served prior to filing his FAC, (see Minute Entry of Dec. 5, 2012), but Plaintiff still failed to serve the DEC Defendants.
B. Time-Barred Claims
The DEC Defendants move in the alternative to dismiss any § 1983 claims arising from Officer Gillis’s October 25, 2008 entry onto Plaintiffs property as time-barred. (See DEC Mem. 9-12.) They contend that these claims accrued on October 25, 2008, and that the statute of limitations expired three years later on October 25, 2011. Plaintiff did not file his complaint against the DEC Defendants until October 24, 2012, one year after the time to file had expired. Plaintiff fails to respond to this argument. (See DEC Reply Mem. 2-3.)
I agree with the DEC Defendants that any § 1983 claims arising from the еvents of October 25, 2008 are time-barred. The statute of limitations for a § 1983 action arising in New York is three years. See Lynch v. Suffolk Cnty. Police Dep’t, Inc.,
Plaintiff alleges in the FAC that “the conduct ... is ongoing and continuous, so there should be an [e]quitable tolling of the statute of limitations for the continuous [deprivation of civil rights.” (FAC ¶71.)
I find the continuing violation doctrine inapplicable here because Officer Gillis’s entrance onto Plaintiffs property is a “discrete act” that starts the statute of limitations running, even if there were subsequent entrances on the property. See Kellogg v. N.Y. State Dep’t of Corr. Servs., No. 07-CV-2804,
C. Failure to State a Claim
The Town and DEC Defendants
To plead a First Amendment retaliation claim, a plaintiff must show: “(1) he has a right protected by the First Amendment; (2) the defendant’s actions were motivated or substantially caused by his exercise of that right; and (3) the defendant’s actions caused him some injury.” Dorsett v. Cnty. of Nassau,
Plaintiff alleges that he engaged in protected First Amendment activity when, among other things, he posted political signs on his property supporting the candidacy of Councilman Bolton, registered as a Democrat, spoke out against Town corruption and filed FOIL requests. (FAC ¶ 81.) He alleges that Defendants had “full knowledge” of these actions, (id.), and in retaliation, prosecuted him for baseless wetland violations, dragged out these proceedings for thirty-three months, repeatedly entered his property, interfered with the use and enjoyment of his property, prevented him from obtaining an Agricultural District inclusion, denied him other applications, conspired with the DEC Defendants to alter records, deniеd his FOIL requests and removed his political signs from his property, (id. ¶ 82). He contends that this retaliation has “chilled” his First Amendment speech. (Id. ¶ 83.)
The Town Defendants move to dismiss on the ground that Plaintiffs conduct is not protected First Amendment activity, and even if it were protected, Plaintiff has failed to allege that Defendants’ actions were motivated by the exercise of his First Amendment rights. (See Town D’s Mem. 3-6.) The Town Defendants further argue that Plaintiffs First Amendment expression has not been chilled, and in any event, Defendants would have taken the same actions against Plaintiff in the absence of any protected activity. (See id. at 6-7.)
Assuming that Plaintiffs conduct is protected activity — which at least some of it clearly seems to be — -Plaintiff fails to plead a causal connection between this activity and any retaliatory conduct. A plaintiff must allege “a causal connection ... sufficient to warrant the inference that the protected speech was a substantial motivating factor” in the adverse action. Blum v. Schlegel,
Nor does temporal proximity provide an inference of causal connection. The Second Circuit “has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship,” Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty.,
Separate from his retaliation claim, Plaintiff contends that the Town sign laws, found under Chapter 170, 174 and 142 of
A facial challenge “considers only the text of the statute itself, not its application to the particular circumstances of an individual.” Field Day, LLC v. Cnty. of Suffolk,
An as-applied challenge, on the other hand, requires “an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right.” Field Day,
The Town sign laws are largely confined to Chapter 170, Article 22, § 123-129 of the Town Code.
2. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment requires the government to treat similarly situated persons alike.” Missere v. Gross,
To state a selective-enforcement claim, a plaintiff must plead: (1) he was “treated differently from other similarly situated” individuals and (2) “that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Cine SK8, Inc. v. Town of Henrietta,
Under a class-of-one theory, a plaintiff must allege that he has been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Analytical Diagnostic Labs, Inc. v. Kusel,
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.
Id. at 59-60. “[Plaintiffs cannot attempt to federalize every ... dispute with a municipality by simply uttering the magic words ‘class-of-one[J ” Crippen v. Town of Hempstead, No. 07-CV3478,
Whether construed as a selective-enforcement or class-of-one claim, I dismiss Plaintiffs equal protection claim because he has failed to allege that he was treated differently from similarly situated individuals. Although Plaintiff asserts that he was “selectively prosecut[ed] ... for wetland and other criminal offenses [when the Town] refus[ed] to enforce the same laws ... against the Neighbor Defendants,” (FAC ¶ 87), that the “Town did not engage in the described wrongful conduct in regard to other similarly-situated citizens,” (id.), and that the conduct was “[arbitrary, [e]apricious, irrational, evil, fraud and in bad faith,” (id.), Plaintiff has provided no facts from which it may be plausibly inferred that these Neighbor Defendants or any other citizens were similarly situated. He provides no information about their properties, situations or conduct that would support the conelusory statement that they were similarly (let alone extremely similarly) situated. See MacPherson v. Town of Southampton,
3. Procedural Due Process
In order to bring a claim for violation of the procedural due process rights guaranteed by the Fourteenth Amendment, a plaintiff must show “(1) that he possessed a protected liberty or property interest; and (2) that he was deprived of that interest without due process.” Rehman v. State Univ. of N.Y. at Stony Brook,
Plaintiff alleges that his properties “have been intentionally [and] severely damaged by each defendant, including the repeated refusals by the [Town] and its officials to enforce their own town codes, state building codes, and planning board resolution that made it clear that [he] was to have full access to the [r]ight of [w]ay.” (FAC ¶ 93.) He asserts that his right of way is now “unusable and severely damaged.” (Id.) The Town Defendants move to dismiss on the grounds that Plaintiff has failed to allege a property interest to which he is entitled, and that even if he did have a property interest, there is adequate state court review of any land decision, which precludes a procedural due process claim. (See Town Ds’ Mem. 13-18.)
I agree with the Town Defendants that Plaintiff has failed to state a claim for procedural due process. To the extent Plaintiff alleges that he has a property
To the extent Plaintiff bases his claim on the infringement on his right of way, Plaintiff presumably has a property interest, but this claim still fails because Plaintiff has not alleged that the process to seek review of any decision with respect to the right of way is insufficient. To the contrary, it is well established that Article 78 proceedings, which Plaintiff could have pursued, satisfy due process requirements. See Hellenic Am. Neighborhood Action Comm. v. City of N.Y.,
4. Substantive Due Process
To plead a substantive due process claim, a plaintiff must allege facts establishing (1) a cognizable property interest (2) that was invaded in an arbitrary and irrational manner. See O’Mara v. Town of Wappinger,
Plaintiff alleges that he had a “vested right to the use and enjoyment of his property [and] to seek the permits and applications for which approval was sought.” (FAC ¶ 97.) He contends that Defendants violated these rights when they “refused to enforce [the] town codes ... in order to benefit Supervisor Murphy’s best friends,” (id.), and in effect, denied him the right to use and enjoy his land, (id. ¶ 98). Plaintiff asserts that this conduct was “arbitrary and capricious[,]” “utterly irrationalf,] and so outrageous as to shock the conscience.” (Id.)
Plaintiffs allegations are insufficient to state a substantive due process claim. As an initial matter, it is unclear on which property interest Plaintiff bases his claim. To the extent he relies upon the right to use his property as a farm, Plaintiff never alleges that he was denied this right, (see Town Ds’ Reply Mem. 4 n. 1); he only alleges that the Town denied him unspecific “permits and applications” for which he sought approval, (FAC ¶ 97).
But assuming that Plaintiff had a property interest, he fails to state a substantive due process claim because he has not alleged that the Town and its conspirators engaged in conduct that is “so egregious, so outrageous” as to shock the conscience. Velez,
5. Malicious Prosecution and Fourth Amendment
Plaintiff brings a claim for malicious prosecution arising from the wetlands violations filed against him. He alleges that Defendants commenced and continued the prosecution of these “baseless” charges with full knowledge that there was “no probable cause.” (FAC ¶ 101.) He further alleges that the prosecution was “terminated in [his] favor on July 23, 2011,” (id. ¶ 27), that Defendants were “actuated by malice,” (id. ¶ 107), and that his “liberty interests” were restricted when he “had to sit through hours of Court hearing[s]” on the charges, (id. ¶ 101). Defendants move to dismiss on the grounds that Plaintiff has failed to satisfy each element of a malicious prosecution claim. (See Town Ds’ Mem. 8-11.)
To state a malicious prosecution claim under 42 U.S.C. § 1983, a plaintiff must allege the elements of a state-law malicious prosecution claim as to a state actor. See Fulton v. Robinson,
To the extent Plaintiff brings a separate Fourth Amendment claim for Defendants’ entrance on his property, (see FAC ¶¶ 26, 31, 107), I find that Plaintiff has failed to plausibly allege that the Fourth Amendment was violated. The Second Circuit has repeatedly held that no Fourth Amendment search occurs when a law enforcеment officer enters a home’s driveway, walkway, or similar area that is accessible to the general public. See, e.g., United States v. Reyes,
6. Stigma Plus (Procedural Due Process)
To bring a claim for stigma-plus, a plaintiff must allege “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiffs status or rights.” Vega v. Lantz,
Plaintiff alleges that Defendants made various defamatory statements about him — for example, that he was “a lawbreaker,” “not a real farmer,” and “paid off his wetland expert.” (FAC ¶ 120.) He contends that these statements “damaged] ... his business,” (id.), and that Defendants took other injurious actions against hi m, all in connection with these statements, (id. ¶ 121).
Even assuming that Defendants’ statements constitute defamation, Plaintiff has failed to plead a state-imposed burden, or “plus,” to invoke the stigma-plus doctrine. Plaintiffs claim that he suffered harm to his business, for example, is the type of damage that merely flows from the injury to reputation and is insufficient to state a claim for stigma-plus. See Sadallah,
Absent an underlying constitutional violation, a Monell claim cannot lie. See Bolden v. Cnty. of Sullivan,
E. Neighbor Defendants
Plaintiffs failure to plead a constitutional violation also warrants dismissal of his claims against the Neighbor Defendants.
Private parties are ordinarily beyond the reach of § 1983 unless they were acting under color of state law. Jae Soog Lee v. Law Office of Kim & Bae, PC,
F. Leave to Amend
Leave to amend a complaint should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). It is “within the sound discretion of the district court to grant or deny leave to amend.” McCarthy,
Plaintiff has now amended his complaint four times. (See Docs. 2, 87, 93, 94.) At the last status conference on December 5, 2012, I advised Plaintiff of the deficiencies in his complaint. Plaintiffs failure to fix these deficiencies, after being provided with notice of them, is alone sufficient ground to deny leave to amend sua sponte. See In re Eaton Vance Mut. Funds Fee Litig.,
IV. Conclusion
For the reasons stated above, the Town Defendants’ motion is GRANTED IN PART and DENIED IN PART, and the DEC Defendants’ motion is GRANTED. Plaintiff’s claims brought pursuant to § 1983 against the Town Defendants are dismissed with prejudice with the exeep
SO ORDERED.
Notes
. The Carlo Rankel trust owns the property, and Plaintiff serves as trustee of the trust. (FAC ¶ 21.) Plaintiff represents that he is authorized to bring this action on behalf of the trust, and I accept this representation as true.
. The FAC lists SPD in the caption even though the docket indicates that the case was terminated against SPD. To the extent any claims remain against SPD, I dismiss those claims because SPD is not a proper party to the action where Plaintiff has also sued the Town. See Hayes v. Cnty. of Sullivan,
. Plaintiff's previous complaints listed additional Town officials as defendants, but Plaintiff has not included those officials in the FAC, and I need not address those individuals here.
. The FAC describes DEC, a New York State agency, as a defendant, (see FAC ¶ 17), but does not list DEC in the caption. To the extent Plaintiff intends to sue DEC, it is immune from suit by private citizens in federal court without state consent. See New Holland Vill. Condo, v. DeStaso Enters.,
. All claims against Mr. Lopane have already been dismissed. (Doc. 99.)
. The FAC's most recent allegation is that Plaintiff is "back again in the Somers Court and wrongfully charged once again in retaliation and as a punishment for filing the instant complaint.” (FAC ¶38.) Plaintiff does not specify what the charges are or what prompted them. Defendants allege that Plaintiff faces assault charges. (See Declaration of Terry Rice ("Rice Deck”), (Doc. 109), Exs. G, H.)
. An appearance ticket is a written notice issued by a public officer directing an individual to appear in the local criminal court at a specified time for a specified charge. See N.Y.Crim. Pro. L. § 150.10. Plaintiff does not specify the charges on these tickets, but presumably they relate to the wetland charges subsequently filed against him.
. The FAC does not allege that the officers searched Plaintiff’s property at that time. (See FAC ¶ 26.) The FAC later alleges, in somewhat conclusory fashion, that "[i]t got to the point where [Defendants] where [sic) searching [Plaintiff's] properties from 2007 [to] 2011,” (id. ¶31), but does not specify when these searches occurred. To thе extent Plaintiff intends to allege that a search occurred on October 25, 2008, he does not specify of what it consisted, and seems to equate entry onto his property with a search. See Part III.C.5 below.
. Plaintiff later admits that the charges were not dismissed for failure to prosecute but rather that he "was forced into a settlement with the town.” (See Plaintiff's Memorandum
. Plaintiff later alleges that he posted the signs on November 2, 2011. (See Affidavit in Opposition ("Rankel Aff.”), (Doc. 121), 3.) I will not consider this allegation because it contradicts the FAC, see Blue,
. Plaintiff does not specify how he learned that Supervisor Murphy contacted Officer Toth. I also note that Plaintiff's timeline of
. The FAC lists “Article 25-AA 300 and Section 303, [sic ] and 305” as the relevant provisions of state law, (FAC ¶ 63), but pleads no facts to plausibly suggest Defendants violated the law, or that any violation results in a constitutional claim. To the extent Plaintiff intends to allege an Equal Protection Clause violation, he has failed to provide facts supporting the conclusion that he was treated differently from similarly situated farmers. See Part III.C.2 below.
. Plaintiff’s Third Amended Complaint in the instant case overlapped with his Second Amended Complaint in a separate action, Rankel v. Leibell, No. 12-CV-1377. I dismissed Leibell and allowed Plaintiff one final opportunity to amend in the instant case. (See Minute Entry of Dec. 5, 2012.)
. The Town Defendants list Rule 12(b)(1) as a ground for dismissal but fail to elaborate on this point. Because I must assess the court’s jurisdiction sua sponte, see Arbaugh v. Y & H Corp.,
. Copies of all unpublished decisions cited herein will be sent to Plaintiff.
. Defendants also attach the decision in Old St. George’s LLC v. Bianco, No. 08-CV-5321,
. "Dirks Decl.” refers to the Declaration of Kаtherine Dirks. (Doc. 114.)
. "Town Ds' Reply Mem.” refers to Defendants' Reply Memorandum of Law in Support of Motion to Dismiss Complaint. (Doc. 135.)
. "DEC Mem.” refers to Defendants Brian Gillis, Richard Martin, and Brian Toth's Memorandum of Law in Support of Their Motion to Dismiss. (Doc.113.)
. Prior to that conference, on April 20, 2012, Defendants agreed to obtain copies of future complaints on ECF, but the DEC Defendants were not defendants at that time. The DEC Defendants were not added until October 24, 2012.
. "DEC Reply Mem.” refers to the DEC Defendants’ Reply Memorandum of Law in Further Support of their Motion to Dismiss. (Doc. 136.)
. Equitable tolling is "only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit Auth.,
. I also find that neither the relation back doctrine under Fed.R.Civ.P. 15(c), nor the reference to the October 25, 2008 event in the related 12-CV-1377 action, saves the otherwise time-barred claims. (See DEC Ds’ Mem. 10 n. 8, 11-12.)
. I consider the DEC Defendants’ arguments as alternative grounds for dismissal, having already dismissed the FAC on the ground of insufficient service of process and dismissing as time-barred all claims (except for malicious prosecution) аrising from Officer Gillis’s entrance onto Plaintiff’s property in October 2008.
. For purposes of this analysis, I accept as true Plaintiff's allegations that Defendants entered his property and filed wetlands violations against him in October 2008, and that Plaintiff posted signs on his property on November 2, 2008. (See FAC ¶¶ 26-27, 34.) Even if I were to consider Plaintiff's later allegation that he posted these signs in November 2011, (see Rankel Aff. 2), this would not affect my analysis. First, a later date makes the relationship between these events wholly attenuated. Second, the only event that follows closely in time to November 2011 is Officer Toth's alleged alteration of his report, (see FAC ¶ 56), but Plaintiff presents no facts rendering it plausible that Toth, a State DEC officer, knew of or cared about the signs that the Town highway department employees removed. While Plaintiff alleges that Toth acted under the influence of Murphy, by Plaintiff’s own admission Murphy allegedly influenced Toth in October 2011 before he posted his signs. Nor does Plaintiff present facts plausibly suggesting why a DEC officer would take orders from a Town supervisor.
. Because I find causation lacking, I need not address Defendants' alternate arguments that Plaintiff’s speech has not been chilled, and even if it were chilled, that Defendants would have engаged in the same conduct. I briefly mention, however, that "[c]hilled speech is not the sine qua non of a First Amendment claim,” and a plaintiff may bring a claim "either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.” Dorsett,
. Plaintiff purports to challenge Chapters 142, 170 and 174 (actually A174), but Chapters 142 and A174 do not apply to the instant case. Chapter 142 is titled "Sidewalk Maintenance and Repair,” and although it provides, in part, that "[a]ffixing signs ... to light fixtures, trash receptacles or benches is prohibited,” Chap. 142, § 7, Plaintiff does not allege that he affixed his sign to anything, and this seems to be a reasonable, content-neutral restriction. Chapter A174 is titled "Subdivision Roаd Construction Specifications,” and the only section in that chapter that relates to signs involves “street name signs,” Chap. A174, Art. 6 § 7, and has no application here.
. Although the parties do not submit the Town sign laws, I may take judicial notice of them. See Fed.R.Evid. 201(b) (court may take notice of facts "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).
. I will presume for present purposes that the signs were posted on property in a residential district. There are different rules for commercial districts.
. Section 127 sets forth notice requirements prior to posting certain types of signs on residential properties, see Chap. 170, Art. 22,
. I will dismiss these claims as to the DEC and Neighbor Defendants because neither is responsible for the Town sign laws, and the FAC does not plead either party's involvement in the application of the Town laws. Likewise, because there are no facts plausibly supporting the personal involvement of Murphy or Gagne, this claim will go forward only against the Town.
. To the extent Plaintiff argues that he was treated differently from those similarly situated because he exercised his constitutional right to free speech, his equal protection claim "coalesces” with his First Amendment retaliation claim. See Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals,
. The FAC includes two claims titled “Equal Protection,” (see FAC at 27, 35), but the second claim does not relate to equal protection and instead restates allegations raised elsewhere.
. Construing the FAC liberally, I could interpret Plaintiff to be referring to his exclusion from the Agricultural District. (See FAC ¶ 41.) But such exclusion does not give rise to a protected property interest, see Old St. George's,
. The Second Circuit has noted that "it is hard to see how multiple appearances required by a court ... can be attributed to the conduct of the officer who issues [the notice of appearance].” Burg v. Gosselin,
. I find Kilgore v. Kaufman,
. The FAC also alleges that Plaintiff had "no free will” during these "searches” and was "questioned [and] interrogated” in violation of his Fifth and Sixth Amendment rights. (FAC ¶¶ 104, 124.) To the extent Plaintiff claims that he should have received Miranda warnings, I reject this argument because Fifth Amendment protections do not attach absent a custodial interrogation. See United States v. Russell,
. To the extent Plaintiff alleges that the "stigma” was the charges against him and the "plus” was the "intentional[ ] dragging out those proceedings and refusing to allow [him] a hearing after repeated requests,” (see FAC ¶ 121), I find that the criminal proceeding against Plaintiff — during which time he was apprised of the charges against him and given the opportunity to challenge those charges—
. Nor do I find Dieterly v. Sorrenti, No. 92-CV-4078,
. I therefore need not consider whether the FAC sufficiently alleges actions of Supervisor Murphy that would give rise to municipal liability. See Glenview Const., Inc. v. Bucci,
. In their answer to the FAC, the Neighbor Defendants assert that the FAC should be dismissed, {see Docs. 152, 153, 154), but they have not filed a motion to dismiss. I dismiss the claims against them sua sponte.
. To the extent Plaintiff might seek to amend the FAC to allege that he posted his signs in November 2011, and not in 2008, as explained above, see page 542 n. 25, this amendment would not remedy the problems in the FAC.
. I discern no state law claims against the Town itself.