OPINION AND ORDER
Valdo Vaher (“Plaintiff’) brings this action pursuant to 42 U.S.C. § 1983 against the Town of Orangetown (“the Town”) and Chief Kevin Nulty of the Orangetown Police Department (“OPD”) in his personal capacity (“Defendants”). Plaintiff maintains that Defendants violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. Amended Complaint (“Am. Compl.”) (Doc. 10). He seeks compensatory and punitive damages for each alleged constitutional violation, and an order directing Defendants to return property that was confiscated from his home as a result of a March 2007 search and seizure, described below. Am. Compl. at 24-25.
I. BACKGROUND
A. Factual Background
At all times relevant to this suit, Plaintiff was a federal police officer with the United States Department of Veteran Affairs (“VA”), residing in Orangetown, a town in Rockland County, New York. Defendants’ Response to Plaintiffs Additional Allegations (“Defs.’ 56.1 Resp.”) (Doc. 72) ¶¶ 49-50.
While this action stems from several encounters between Plaintiff and various members of OPD starting in the early 2000s, Plaintiffs claims derive primarily from two events. First, in March 2007, OPD executed a search warrant and seized ammunition and magazines from Plaintiffs home, which Plaintiff has never recovered (“2007 Search and Seizure”). Two years later, in March 2009, OPD responded to a dispute between Plaintiff and a contractor at Plaintiffs home, in which Plaintiff pulled his gun on the contractor in response to perceived threatening behavior (“2009 Incident”).
1. Pre-2007 Search and Seizure
In the early 2000s, Plaintiff was a member of the New York Army National Guard’s 422nd Military Police Company, as was James Nawoichyk, who later became a Detective at OPD. Defs.’ 56.1 Resp. ¶¶ 51-52. Plaintiff asserts that the two men had a tense relationship, primarily because Na-woichyk became suspicious about Plaintiffs previous work for the Estonian army. Id. Additionally, Plaintiff claims that Na-woichyk became interested in Plaintiffs collection of military firearms, but Plaintiff rebuffed Nawoichyk’s requests to see the collection. Id. ¶ 53. Plaintiff also asserts that he complained about Nawoichyk’s treatment towards him to the New York National Guard’s Inspector General Office and to the Commander of the 422nd Military Police Company. Id. ¶¶ 53-56. Plaintiff did not, however, file a formal written complaint or disciplinary proceeding against Nawoichyk while they served in the National Guard together. See Affirmation of Paul E. Svennson (Doc. 63), Ex. C at 36-37, 85.
On March 7, 2007, Plaintiff lived with his mother in Orangetown, New York. Defs.’ 56.1 Resp. ¶¶ 58-59. On that day, while Plaintiff was away attending military school in Fort Dix, New Jersey, Plaintiffs mother accidently locked herself out of the house and had to call a local locksmith. Id. ¶¶ 61-62. The locksmith managed to open a door to the garage, and when he looked inside the garage he saw what appeared to be seven or eight rifles, thousands of rounds of ammunition, and large, military-style ammunition boxes. Ex. G at 2. Plaintiff admits that at the time he had several military rifles and several thousand rounds of ammunition in the garage in plain view. Ex. C at 100-02. The locksmith alerted his boss to the large cache of firearms and ammo in Plaintiffs garage, and the following day his boss contacted the Orangetown Police Department. Id.
In response, Nawoichyk, who was by then a Detective at OPD, and his partner, Detective Thomas Hoffman, went to Plaintiffs residence, where they spoke to Plaintiffs mother and asked her about the complaint OPD received from the locksmith. The parties dispute the tenor of this exchange and Plaintiff claims that the Detectives put his mother under duress, but whether coerced or not, it is undisputed that the mother eventually allowed Nawoi-chyk and Hoffman to look around the garage. Plaintiffs Response to Defendants’ Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Pl.’s 56.1 Resp.”) (Doc. 70) ¶ 3; Defs.’ 56.1 Resp. ¶¶ 65-66.
Inside the garage, Nawoichyk saw in plain view several rifles and military-style ammunition cans and containers, some of which contained belts of three or four rounds of ammunition linked together. Ex. H ¶¶ 9-10. While Plaintiff maintains that these rounds were not readily capable of being restored and linked together to form belts of 10 rounds or more, Ex. C at 152, they appeared to Nawoichyk to be so capable, Ex. H ¶ 11. Nawoichyk thus suspected that Plaintiff was in violation of New York Penal Law (“NYPL”) § 265.02(8), Criminal Possession of a Weapon in the Third Degree, outlawing possession of a “large capacity ammunition feeding device,” defined as “a magazine, belt, drum, feed strip, or similar device ... that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition,” § 265.00(23).
After hearing about the incident from his mother, Plaintiff called Nawoichyk to explain that he had the requisite firearm licenses, and to warn Nawoichyk that Plaintiff would not consent to another search of his home. Defs.’ 56.1 Resp. ¶¶ 68-70. On March 19, 2007, Plaintiff went into OPD in person to meet with Nawoichyk and Hoffman. Plaintiff showed the Detectives his various firearm licenses. In the course of that conversation, Plaintiff freely admitted that he owned a large capacity ammunition feeding device, but asserted that his licenses allowed him to do so legally. Pl.’s 56.1 Resp. ¶ 5; Defs.’ 56.1 Resp. ¶ 74; Ex. C at 115-16.
Three days later, after consulting with his supervisor, Detective Lieutenant McAndrew, and the local Assistant District Attorney, Nawoichyk prepared an affidavit and applied for a warrant to search Plaintiffs premises, based on a belief that Plaintiff was in violation of NYPL
On March 26, 2007, Nawoichyk, Hoffman, and McAndrew, along with members of the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) and the Rockland County Sheriffs Department, executed the search warrant. Defs.’ 56.1 Resp. ¶¶ 80-81. Plaintiff maintains (and Defendants deny) that the search was conducted in an “abusive and disrespectful manner,” including the destruction of his property, threatening and insulting comments made by officers at the scene, and one member of OPD, Officer Sila, drawing his gun on Plaintiff in a menacing fashion. Id. ¶¶ 87-89, 91. Plaintiff twice tried to call OPD Chief Nulty on the day of the search to complain, but could not reach him and did not leave a message. Accordingly, Nulty never returned the calls. Id. ¶ 84; Ex. C at 182.
The search team seized ten ammunition cans and boxes containing hundreds of ammunition belts with links of three and four rounds, one belt with thirteen linked rounds, and a number of high capacity magazines. See Ex. J (Return Order listing seized items). While Plaintiff attests that the three-round belts were broken such that one could not link them together with other rounds, he also testified that the thirteen-round belt appeared to be multiple three-round links attached together, which he had not yet taken apart despite an intent to do so. See Ex. C at 151— 55.
The following day, Justice Phinney signed the Return Order, which contained a list of items removed from Plaintiffs residence, and was delivered to Plaintiff several weeks later. Pl.’s 56.1 Resp. ¶¶ 19-20; Defs.’ 56.1 Resp. ¶94; Ex. J. Upon filing the instant suit, Plaintiff now insists that the Return Order omitted two items that were seized, “a 20" barrel length AR-15 rifle kit consisting of a barrel and two plastic bags and a green military ammunition box with hinges.” Defs.’ 56.1 Resp. ¶ 95. Plaintiff admits that he did not inform OPD of the missing rifle kit or ammunition box when he filed a formal complaint with OPD in January 2008, despite already having access to the Return Order. Ex. C at 164. Defendants deny taking the rifle kit and contend that all seized property was within the scope of the search warrant.
The parties do not dispute that Plaintiff was never arrested for weapons possession, and that his seized property was never returned. Defs.’ 56.1 Resp. ¶ 96. The Return Order was issued pursuant to CPL § 690.55(l)(b) and directed OPD to “retain custody of the 10 listed items seized” and “hold the same in a safe and secure place until such time as the court, or another court of competent jurisdiction, should direct the disposition or delivery of said items.” Ex. J. It does not appear from the record that Plaintiff ever petitioned the Justice Court, or any other court, for an order directing the return of his property.
Following the search, Plaintiff contends, and Defendants deny, that Nawoichyk told officials at the 442nd Military Policy Company and the Department of Veterans Affairs that he believed Plaintiff was a “for
As a result of the entire incident, on January 16, 2008, Plaintiff served a Notice of Claim (“2008 Notice of Claim”) on OPD, alleging a violation of his civil rights pursuant to 42 U.S.C. § 1983. Ex. N. The 2008 Notice of Claim stated that Plaintiff never recovered his seized property, but it did not contain any allegation about a missing rifle kit or ammunition box. Id.
Roughly a year after the 2008 Notice of Claim was served, Plaintiff claims he ran into Nawoichyk at a home improvement store, and Nawoichyk made a “rude and provocative” comment, telling Plaintiff he did not “have a case.” Defendants deny that this encounter took place. See Defs.’ 56.1Resp. ¶ 100; Ex. C at 182-83.
3. The 2009 Incident
Plaintiffs next encounter with OPD did not occur until March 3, 2009. On that day, Plaintiff was engaged in a dispute with a contractor over work the contractor, had done on Plaintiffs home. The dispute escalated when Plaintiff refused to pay the contractor on the basis that the work done was deficient and not up to code. Defs.’ 56.1Resp. ¶¶ 101-02. According to Plaintiff, the contractor cursed at him and picked up a five-foot level, swinging it “in close proximity” to Plaintiffs head, id. ¶ 104, while the contractor claims that he picked up the level in order to show Plaintiff that the work was adequate, Ex. L (Box 74).
Whatever the intent, the swinging level caused Plaintiff to call the OPD and retrieve ' a handgun from inside his house. When he approached the contractor again, Plaintiff maintains that the contractor charged at him with the level and swung a steel tile cutter “in the vicinity” of Plaintiffs head, which then caused Plaintiff to pull his gun and order the contractor to halt. Defs.’ 56.1 Resp. ¶¶ 104-05. Plaintiff admits that he pulled the gun because he felt he was being threatened with a deadly instrument. Id. ¶ 109; Ex. C at 202-04.
Shortly thereafter, Officer Robert Sick arrived at Plaintiffs home, after being dispatched in response to Plaintiffs complaint. Pl.’s 56.1 Resp. ¶ 29. Sick first spoke with the contractor, who was waiting outside of Plaintiffs home, and got his side of the story, including a denial that he wielded a level in order to threaten Plaintiff. Ex. L (Box 74); Pl.’s 56.1 Resp. ¶¶ 31-32. Sick inquired whether the contractor wanted to file a charge against Plaintiff for “menacing,” but the contractor declined and just wanted to be paid. Pl.’s 56.1Resp. ¶ 35. Sick then spoke with Plaintiff, and the two men have conflicting accounts of that conversation. Plaintiff claims that Sick “falsely accused him of menacing,” did not give Plaintiff a chance to explain his side of the story,
Later that day, Sick wrote up and filed an incident report describing the events at Plaintiffs home. Even though he was dispatched in response to the call placed by
Because Plaintiff had told Sick that he was a federal police officer for the Department of Veterans Affairs, Sick told his supervisor, Sergeant Bottari, about the incident, and Bottari then called Plaintiffs supervisors at the VA regarding the incident. Pl.’s 56.1 Resp. ¶ 37. Plaintiff asserts that as a result of this contact, he was “placed on modified duty,” “ordered to undergo psychological testing,” and was eventually terminated. Defs.’ 56.1 Resp. ¶ 111. Plaintiff was reinstated only s‘after a hearing before the Merit Systems Protection Board.” Id. Plaintiff concedes that he has no documentation of his termination or reinstatement. Pl.’s 56.1 Resp. ¶ 39.
4. Post-2009 Incident
On March 11, 2010, Plaintiff alleges that an OPD officer pulled him over in his car and approached Plaintiff with his gun drawn and pointed at him. The officer eventually told Plaintiff to leave, and Plaintiff felt “menaced and threatened as a result of this incident.” Defs.’ 56.1 Resp. ¶ 114. Defendants deny that this incident' occurred.
Plaintiff also recounts a number of similar encounters with Sick and other unidentified OPD officers up through 2013, alleging intimidating and intrusive behavior, such as shining bright lights into Plaintiffs home and car on multiple occasions. See Defs.’ 56.1 Resp. ¶¶ 113-21. These allegations, however, are not in the Amended Complaint, have never been added to a supplemental complaint, and are relied upon for the first time in Plaintiff’s opposition to Defendants’ motion for summary judgment. They will therefore not be considered by the Court for purposes of the instant motion.
5. Orangetown Police Department
At all times relevant to this suit, Chief Kevin Nulty was the first in command at OPD and reported directly to the Town Board. Reporting directly to Chief Nulty was Captain Robert Zimmerman, second in command. Below Zimmerman were roughly six Lieutenants, including Detective Lieutenant McAndrew, head of the Detectives Bureau. Roughly a dozen Sergeants reported to the Lieutenants, and b'elow them, Officers reported to the Sergeants. Detectives Nawoichyk and Hoffman reported directly to Det. Lt. McAndrew, who would regularly advise on applications for, and executions of, search warrants. See Pl.’s 56.1 Resp. ¶¶ 41, 45; Ex. F at 11-13.
Nawoichyk, Hoffman, and McAndrew did not report directly to Nulty. Pl.’s 56.1 Resp. ¶ 41. Nulty testified that his only knowledge of Plaintiff prior to Plaintiffs lawsuit was in regards to the 2009 Incident. Id. ¶ 42. Nulty does not know Plaintiff, never spoke or communicated with him directly, and does not recall receiving Plaintiffs calls during the 2007 Search and Seizure. Id. ¶ 43; Ex. F at 20-21. Nulty had no involvement in the application for, or execution of, search warrants, was not personally involved with the retention and return of seized property, and had no knowledge of any OPD policy of notifying employers when investigating the criminal conduct of one of its employees. Pl.’s 56.1 Resp. ¶¶ 44-47; Plaintiff either concedes these facts or lacks knowledge or information sufficient to form a belief as to their truth.
B. Procedural Background
Plaintiff commenced this action on March 1, 2010, by filing a Verified Complaint alleging various constitutional violations by Defendants the Town of Orange-
On January 2, 2013, this Court denied Plaintiffs request for a third extension of time to serve Nawoichyk, Hoffman, and Sullivan, and also denied Plaintiffs motion to compel without prejudice, for renewal during discovery. Vaher v. Town of Orangetown,
Defendants filed their Answer on January 18, 2013. (Doc. 42). After completing discovery, Defendants filed the instant motion on December 12, 2014. (Doc. 62).
II. LEGAL STANDARDS
A. Summary Judgment
To prevail on summary judgment, the movant must show that “there is no genuine dispute as to any material fact.” Fed. R.Civ.P. 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist.,
The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,
In deciding a motion for summary judgment, the Court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Brod v. Omya, Inc.,
B. Municipal Liability and Personal Liability Under Section 1983
Plaintiffs constitutional claims against the Town are brought pursuant to 42 U.S.C. § 1983, in accordance with the Supreme Court’s decision in Monell v. Dep’t of Soc. Servs. of N.Y.C.,
A plaintiff can prove the first “policy, custom, or practice” prong in one of four ways:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policymaker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.
Plaintiff also brings claims against Chief Kevin Nulty in his personal capacity. Personal-capacity suits “seek to impose individual liability upon a government officer for actions taken under color of state law.” Hafer v. Melo,
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring.
Id. (citation omitted); see also Grullon v. City of New Haven,
III. DISCUSSION
A. Fourth Amendment
Plaintiff first alleges that the 2007 Search and Seizure violated his rights under the Fourth Amendment. Am. Compl. ¶¶ 65-69; Pl.’s Mem. Opp’n Defs’ Mot. Summ. J. (“Pl.’s Opp’n”) 7-11. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST, amend. IV. The text of the Fourth Amendment “expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King,
Plaintiff here does not contest that there was probable cause for the warrant to issue, but rather focuses exclusively on the reasonableness of the search and seizure.
“A search is presumptively reasonable when executed pursuant to a warrant. A search warrant issued by a neutral magistrate, upon a finding of probable cause, must be afforded great deference and creates a presumption that the officers executing the warrant acted in an objectively reasonable fashion.” Merriweather v. City of New York, No. 12 CIV. 5258(KPF),
Plaintiff first argues that the search was unreasonable because Defendants searched the entire premises, including Plaintiffs bedroom dressers and closets, “despite the fact that the property they were seeking was clearly located in the basement/garage.” Pl.’s Opp’n 10-11; Defs.’ 56.1 Resp. ¶ 88. The text of the warrant, however, plainly authorized a search of Plaintiffs entire premises and nowhere purported to limit the search to the garage. See Ex. I (authorizing search of “the premises described as 254 Betsy Ross Drive”); see also United States v. Bershchansky,
Plaintiff next argues that Defendants violated his rights when they “seized material not subject to the search warrant and omitted certain other items that were seized.” Pl’s. Opp’n 10. Specifically, Plaintiff alleges that Defendants improperly seized “a 20” barrel length AR-15 rifle kit consisting of a barrel and two plastic bags and a green military ammunition box with hinges. Defs.’ 56.1 Resp. ¶ 95.
Seizure of items outside the scope of a search warrant is unconstitutional, absent an exception to the Fourth Amendment’s warrant requirement. Horton,
The rifle kit was plainly not within the scope of the warrant. Defendants do not claim as much. Instead, Defendants argue that the rifle kit was never seized, pointing to Plaintiffs lack of documentary evidence establishing that he owned the kit, and to the fact that neither the Return Order nor Plaintiffs 2008 Notice of Claim included mention of a rifle kit.
The same cannot be said for seizure of the green ammunition box. It is commonsense that the warrant authorized
Next, Plaintiff argues that the search was unreasonable because it was done “in an abusive and disrespectful manner.” Am. Compl. ¶42. These allegations fall into two general categories: excessive physical damage to Plaintiffs property, and insulting or threatening comments and gestures made by officers at the scene towards Plaintiff.
While “[ejxcessive or unnecessary destruction of property” in the course of an otherwise valid search “may violate the Fourth Amendment,” Ramirez,
Determining whether a particular instances of property damage was “unreasonable or malicious” is ordinarily not amenable to resolution at the summary judgment stage. See, e.g., Koller v. Hilderbrand,
Nor can Plaintiff establish a genuine issue of material fact based on alleged threatening conduct and disrespectful comments by officers at the scene. Plaintiffs testimony that Orangetown Police Officer Sila menaced him by drawing his gun “half out,” Ex. C at 146, could not lead a reasonable juror to conclude that the search was objectively unreasonable. See, e.g., Lynch,
Finally, Plaintiff questions Defendants’ good faith in procuring the search warrant, implying a type of retaliatory motive for the search. See Pl.’s Opp’n 9-10. “[T]he subjective motivations of the individual officers,” however, “ha[ve] no bearing on whether a particular [search or] seizure is ‘unreasonable’ under the Fourth Amendment.” Spinelli v. City of New York,
Since there remains a genuine issue of material fact only as to whether Defendants improperly seized Plaintiffs rifle kit, the Court proceeds to discuss whether Plaintiff can hold the Town or Nulty liable for this constitutional violation.
(i) Municipal Liability
Unable to demonstrate any explicit policy that was causally related to the seizure of his rifle kit, see, e.g., City of Canton v. Harris,
First, Plaintiff maintains that he “has presented sufficient evidence establishing that the March 2007 encounter and the March 2009 encounter were part of a pattern, practice, policy and custom of the Town to harass, target and intimidate [him].” Pl.’s Opp’n 4. Defendants retort that, at least with respect to the Fourth Amendment claim, Plaintiff “has not identified any Town-wide custom or policy to target, harass or intimidate [him] in March 2007.” Defs.’ Rep. Mem. Supp. Mot. Summ. J. (“Defs.’ Rep.”) 11 (emphasis added). The Court agrees with Defendants.
A municipality may be liable under Monell for a “custom” that is so widespread as to have the force of law, even though it has “not received formal approval through the body’s official decision-making channels.”
Next, Plaintiff argues that the “involvement and participation of Detective Lieutenant McAndrew” in the 2007 Search and Seizure “is sufficient to bind the Town,” because McAndrew “had the final decision making authority with reference to the procurement of the warrant” and “actually participated in the events.” Pl.’s Opp’n at 5. Defendants respond that McAndrew was not a final policymaker and thus his involvement in the search cannot lead to liability for the Town itself under Monell. Defs.’ Rep. 5-8.
In order to hold a municipality liable for a “single decision by [a] municipal policymaker[ ],” Pembaur v. City of Cincinnati,
“As a matter of New York law, the town board and police board ‘are the
Additionally, Plaintiff has not even alleged a “deliberate choice to follow a course of action” by McAndrew, Pembaur,
(ii) Personal Liability
The same is true for Plaintiffs claim against Chief Nulty in his personal capacity. Plaintiff does not point to any evidence contradicting Nulty’s testimony that he had no knowledge of the 2007 Search and Seizure, that he did not participate in the application or execution of the search warrant, and that he had no involvement in the retention or return of seized property. See Ex. F at 25-34; Pl.’s 56.1 Resp. ¶¶ 42, 44, 46. Plaintiff thus has no proof that Nulty “participated directly” in the seizure of the rifle kit or “created a policy or custom” that allowed the seizure to occur. Back,
Despite raising a genuine issue of material fact as to whether his rifle kit was improperly seized, therefore, Plaintiff can
B. First Amendment Retaliation
Plaintiff alleges that Defendants have subjected him “to harassment, discriminatory actions and other retaliation” as a result of his “protests, complaints, comments and opposition,” including the 2008 Notice of Claim. Am. Compl. ¶ 78. While Defendants argue that Plaintiff has failed to identify specific instances of retaliation that were causally related to Plaintiffs exercise of free speech, see Defs.’ Mem. 12-15, Plaintiffs response consists exclusively of identifying specific instances of protected speech and repeating the Court’s prior holding that chilled speech is not the only type of retaliation injury, see Pl.’s Opp’n 11-12. Plaintiff does not provide any concrete evidence or arguments supported by legal authority to establish Defendants’ intent to retaliate against him for engaging in protected speech. Summary judgment is thus granted on Plaintiffs First Amendment claim.
“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out.” Hartman v. Moore,
“Specific proof of improper motivation is required in order for plaintiff to survive summary judgment on a First Amendment retaliation claim.” Curley v. Vill. of Suffern,
Defendants do not dispute that the Plaintiff has engaged in protected speech. Plaintiffs conduct — for example, the 2008 Notice of Claim — is plainly protected under the First Amendment. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
That said, no reasonable juror could conclude that Defendants acted with a retaliatory motive given the paucity of evidence. Plaintiff nowhere contends that he has produced any direct evidence of intent, nor has the Court identified any, meaning Plaintiff relies exclusively on circumstantial evidence. “Circumstantial evidence of retaliation may be found when defendants are aware that plaintiff has
To start, Plaintiff implies that Nawoichyk and his OPD colleagues instigated the 2007 Search and Seizure based on Plaintiffs previous complaints about Nawoichyk during their time together in the National Guard. See Pl.’s Opp’n 9 (“This history could certainly have been a motivating factor in the Town’s procurement of the warrant.”). While Plaintiff testified that he submitted various complaints about Nawoichyk to the Office of Inspector General of both the state- and federal-level National Guard and to Plaintiffs company commander, see Defs.’ 56.1 Resp. ¶¶ 53-56; Ex. C. at 36-37, 85-88, there is no evidence that Nulty or anyone else at OPD (besides Nawoichyk) had knowledge of these complaints.
While Plaintiff again exercised his free speech rights shortly after the 2007
Following the 2009 Incident, Plaintiff describes an altercation one year later, in March 2010, in which an unidentified officer pulled Plaintiffs vehicle over and pointed a gun at him multiple times, Defs.’ 56.1 Resp. ¶ 114, but Plaintiff fails to proffer any direct or circumstantial evidence about the intent of this unidentified officer. Plaintiff also testified to other instances of protected speech
The Court therefore grants summary judgment on Plaintiffs First Amendment claim.
C. Fourteenth Amendment Procedural Due Process: “Stigma Plus” Interest
While the Court has previously struggled to discern the exact nature of Plaintiffs “liberty interest” claim, see Vainer,
Plaintiff points to two instances of “stigma.” First, after the 2007 Search and Seizure, Nawoichyk told officials at the 442nd Military Policy Company and the Department of Veterans Affairs about the 2007 Search and Seizure, and accused Plaintiff of being a “foreign spy and assassin” and a “member of the Estonian Army and terrorist.” Am. Compl. ¶¶ 50-52; Ex. C at 68-69. Second, in 2009, Officer Sick and Sergeant Bottari of OPD alerted an official at the VA about the 2009 Incident by faxing over a copy of the incident report, in which Sick categorized the incident as one of “menacing” and listed the contractor as the “Complainant/Vietim” rather than Plaintiff. See Defs.’ 56.1 Resp. ¶¶ 110-11; Doc. 63, Ex. L (Box 74) (noting that incident report was faxed to the VA).
As for the “plus,” Plaintiff claims that he was “placed on modified duty and ordered to undergo psychological testing” and then terminated from the VA as a result of OPD’s disclosure of the 2009 Incident. Defs.’ 56.1 Resp. ¶ 111; see also Pl.’s Opp’n 12.
“To prevail on a ‘stigma plus’ claim, a plaintiff must show (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.” Sadallah v. City of Utica,
While Nawoichyk’s description of Plaintiff as a “foreign spy” and “terrorist” may be defamatory, Plaintiff has not alleged any adverse state action constituting a “plus” that is “sufficiently proximate” to these 2007 statements. See Velez,
Plaintiffs claim based on OPD’s 2009 statements to the YA must also succumb to summary judgment. The simple reason is that Plaintiff has sued the wrong parties. Plaintiffs claim is that the VA did not provide adequate process before terminating him in a manner that adopted OPD’s stigmatic characterization of his role in the 2009 Incident. See Segal,
While “[t]here is no rigid requirement ... that both the ‘stigma’ and the ‘plus’ must issue from the same government actor or at the same time,” the Second Circuit in Velez v. Levy held that a “stigma-plus” claim is not cognizable against a state actor that issues the “stigma” but has no legal control over the process provided in connection with the “plus.” Velez,
The Court thus grants Defendants’ motion for summary judgment as to Plaintiffs Fourteenth Amendment “stigma plus” interest claim.
D. Fourteenth Amendment Substantive Due Process
Plaintiff next asserts that Defendants have violated his right to substantive due process under the Fourteenth Amendment. Neither the Amended Complaint nor Plaintiffs motion papers adds much specificity to this claim. The Court agrees with Defendants that “[r]ead most liberally, Plaintiff sets forth a claim that the 2007 seizure of his property, the 2009 intervention between [Plaintiff] and his contractor, or miscellaneous other alleged police conduct since 2009, caused him embarrassment and damage to his profession.” Defs.’ Mem. 15. Defendants take the position that not only is this claim “covered” by Plaintiffs First Amendment, Fourth Amendment, and procedural due-process claims, but that in any event Plaintiff fails to produce an issue of fact as to whether he was subject to constitutionally arbitrary action at the behest of a municipal policy or Chief Nulty individually. Id. at 15-18.
The Due Process Clause of the Fourteenth Amendment guarantees procedural protections from government action, but it also “cover[s] a substantive sphere as well, ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’ ” Cty. of Sacramento v. Lewis,
Again, Plaintiffs specific claim is opaque and it is not entirely clear what constitutional right he believes to be at stake. His opposition brief claims only a violation of “his right to substantive due process,” without any more specification. PL’s Opp’n 13. Given the cases Plaintiff cites, however, it appears that he is arguing that “the conduct alleged states a substantive due process ‘pattern of harassment’ claim, citing Chalfy v. Turoff,
“[A] true pattern of harassment by government officials may make out a section 1983 claim for violation of due process of law.” Chalfy v. Turoff,
Defendants urge the Court to dismiss Plaintiffs claim because other constitutional Amendments provide more specific protection against the type of government behavior being challenged. See Defs.’ Mem. 15-16 (quoting Lewis,
Ultimately, however, Plaintiff has " not provided evidence sufficient for a reasonable juror to conclude that Defendants have systematically harassed him in a conscience-shocking way. Plaintiff concedes that he has never been issued any type of summons or citation by OPD. Ex. C at 249. Neither the 2007 Search and Seizure nor the 2009 Incident were instigated by OPD, and Plaintiff has not identified any state action during those events that could reasonably be described as “arbitrary, conscience-shocking, or oppressive,” as opposed to merely “ill-advised.” Kaluczky,
Because “each determination of whether state conduct ‘shocks the conscience’ is
E. Fourteenth Amendment Procedural Due Process: Property Interest
Plaintiff contends that Defendants violated his constitutional right to procedural due process because they “adopted, promulgated and implemented a policy and practice of deliberately depriving plaintiff of his personal property without providing him with a remedy to recover that property.” Am. Compl. ¶ 101. According to Plaintiff, once Defendants knew that he was not going to be prosecuted for weapons possession, they could not have a policy of waiting for a subsequent court order, but rather had an obligation to “return the property or commence a lawsuit to retain it.” Pl.’s Opp’n 14.
The Due Process Clause of the Fourteenth Amendment protects “against deprivations of constitutionally protected interests in life, liberty, or property ... without due process of law.” Rivera-Powell v. N.Y.C. Bd. of Elections,
Here, Plaintiff has abandoned any claim based on a “random or unauthorized” act, seeking relief exclusively on the basis of a Town policy (or decision of a high-ranking policymaker within OPD) to permanently deprive Plaintiff of his seized property without adequate process. See Pl.’s Opp’n 14 (arguing that the “Paratt/Hudson” line of Supreme Court cases establishing the “random or unauthorized” jurisprudence is “not applicable herein”); see also Vaher,
Despite anchoring his claim on a supposedly deficient municipal policy, Plaintiff does not even attempt to marshal evidence from the record establishing the existence of such a policy, nor does he attempt to explain how the policy falls short under the standard procedural due-process framework set out by the United States Supreme Court in Mathews v. Eldridge,
Given the lack of engagement from the parties on the substantive application of the Mathews test to the facts here, it is fortunate that the Court need not undertake such a balancing, because Plaintiff cannot sustain this § 1983 claim against the Town under Monell or against Chief Nulty in his personal capacity.
(i) Municipal Liability
“A municipality may be liable under Section 1983 for any ‘policy or custom’ that causes a ‘deprivation of rights protected by the Constitution.’ ” Dudek v. Nassau Cty. Sheriffs Dep’t,
In Dudek, the federal district court for the Eastern District of New York considered this question in a factual context similar to the one here.
The situation here is just the opposite of Dudek, and the opposite result logically follows. On March 27, 2007, Defendants were ordered to seize and retain Plaintiffs property pursuant to New York Criminal Procedure Law (“CPL”) § 690.55(l)(b), which authorizes courts receiving property seized pursuant to a search warrant to “[djirect that it be held in the custody” of the government agency that applied for or executed the warrant, “upon condition that upon order of such court such property be returned thereto or delivered to another court.” See Ex. J (ordering OPD to “retain custody” of Plaintiffs seized magazines and ammunition “and hold the same in a safe and secure place until such time as the court, or another court of competent jurisdiction, should direct the disposition or delivery of said items”). Defendants represent that this court order is still in place, Defs.’ Rep. 18 (“No such order has ever been sought by the Plaintiff or made by a local, state or federal court”), which Plaintiff nowhere disputes. Thus, unlike the Sheriffs Department in Dudek that was not bound by an active court order or state law, OPD appears to still be so bound, without the freedom to create a policy or additional procedures governing seized property atop § 690.55(l)(b). Furthermore, whereas state courts had determined that the Du-dek Sheriffs Department was free to return the firearms under state law, here
There is, in sum, no evidence that OPD made a “meaningful” or “conscious” choice to erect a policy in which it would always wait for a subsequent court order before returning seized property. To the contrary, the decision was made for OPD through application of clear state law and obedience to an active court order. Thus, Vives applies to shield the Town from municipal liability under Monell.
(ii) Individual Liability
The procedural due-process claim against Nulty must also fail for two dis
Second, Nulty cannot be held liable on grounds of absolute immunity. “Absolute immunity protects from liability judges, along with any officers who, in performing ‘functions’ which are an ‘integral part of the judicial process’ and ‘comparable] ... to those of the judge,’ are allowed the same protection ‘derivative of the immunity of judges.’ ” Dudek,
IY. CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 62, and close the case.
It is so ORDERED.
Notes
. Under Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local R. 56.1”), a party moving for summary judgment pursuant to Rule 56 must submit a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,” and must cite admissible evidence in doing so. Local R. 56.1(a), (c) & (d). Rule 56.1 also requires a party opposing summary judgment to submit, with his or her opposition, a statement responding to each of the moving party’s proposed undisputed facts, along with citations to admissible evidence. Local R. 56.1(b) & (d). Here, Defendants submitted their statement containing forty-eight numbered paragraphs (Doc. 64), Plaintiff submitted his statement that both responded to each of Defendants’ paragraphs and added an .additional seventy-three numbered paragraphs as “additional allegations” (Doc. 70), and Defendants subsequently submitted a response to Plaintiff's additional numbered paragraphs (Doc. 72). For ease of reference, and because the parties' responses to numbered paragraphs are relevant, the Court will refer to Plaintiff’s Response to Defendants' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (Doc. 70) when citing ¶¶ 1-48 and responses thereto, and will refer to Defendants’ Response to Plaintiff’s Additional Allegations (Doc. 72) when citing ¶¶ 49-121 and responses thereto.
. All further citations to Exhibits refer to those Exhibits attached to the Affirmation of Paul E. Svennson (Doc. 63).
. These iterations of the provisions were in effect in 2007 and up through their amendment on January 15, 2013. See Licenses and Permits — Weapons—Suspension or Revocation, 2013 Sess. Law News of N.Y. Ch. 1 (S.2230) (McKinney’s) (effective Jan. 15, 2013) (amending, inter alia, §§ 265.00(23), 265.02(8)).
. When Sick later reported the details in his incident report, he included details from Plaintiff’s characterization of events, and thus it appears that Plaintiff did have the opportunity to explain his side. See Ex. L (Box 74).
. The Court also dismissed the claims against OPD because it is an arm of the municipality without a distinct legal identity. Vaher,
. Plaintiff includes a single sentence in his opposition that could be construed as contest
. It appears from the record that Plaintiffs first specific mention of the missing rifle kit was in his Amended Complaint, filed on October 26, 2010. Am. Compl. ¶ 43. Plaintiff's initial Complaint, filed on March 1, 2010, states only that members of the search party "confiscated property not subject of the search warrant [sic].” Complaint (Doc. 1) ¶ 38.
. By failing to contest the seizure of the three ammunition boxes that contained magazines and ammunition, see Ex. J (listing three seized boxes containing magazines and ammunition), Plaintiff concedes that the warrant covered at least those ammunition boxes that in fact contained magazines and ammunition. It is not clear whether Plaintiff's argument is (a) that one of the three boxes on the Return Order, Ex. J, was actually empty when seized and thus outside the scope of the warrant, or (b) that the green ammunition box was in fact a fourth box, improperly seized and then omitted from the inventoiy list. Whichever way this ambiguity is resolved, the legal question remains whether the warrant authorized seizure of an empty ammunition box.
. The same analysis applies to seizure of ammunition rounds that Plaintiff claims "could not be linked together because they were broken.” Pl.’s Opp'n 10. The officers on the scene found hundreds of three- and four-round ammunition belts. See Ex. J. They were not required to test whether each individual round could be readily restored and made capable of being linked into more than 10 rounds while standing in Plaintiff’s garage. If not explicitly covered by the warrant, these ammunition rounds were at the very least probative evidence covered by the "plain view” doctrine.
. Two of these allegations do not involve any activity by any member of OPD: threats to handcuff Plaintiff and his mother made by ATF agents on the scene, and loud laughter at Plaintiffs property by Rockland Police Department officials. See Defs.' 56.1 Resp. ¶ 87. The Court will disregard these two allegations in its Fourth Amendment analysis because it is self-evident that Plaintiff cannot rely on them to sustain a Mortell claim against the Town or a claim for individual liability against Nulty.
. "Although Cody dealt with a due process claim, district courts in the Circuit have interpreted Cody as articulating the standard for Fourth Amendment violations as well.” Koller v. Hilderbrand,
. The Court notes that the particular circumstances of this search-the fact that the search was targeted only at magazines and ammunition, and the fact that Plaintiff was not posing a threat to the present officers or attempting to flee — would certainly counsel against particularly excessive or intrusive displays of force. See, e.g., Bolden v. Vill. of Monticello,
. It is not even clear from the record that Nawoichyk himself knew of these complaints. Plaintiff admitted that.he never filed a formal written complaint or disciplinary proceeding against Nawoichyk. See Ex. C at 36-37, 85.
. See Smolicz v. Borough/Town of Naugatuck,
. Plaintiff also alleges that he complained to Detective Lieutenant McAndrew and Nulty in the midst of the search of his home, but neither allegation rescues the First Amendment claim. With respect to McAndrew, this is a mere allegation unsupported by any evidence. See Defs.’ 56.1 Resp. ¶ 83 (citing Am. Compl. ¶ 38). With respect to Nulty, Plaintiff admitted he did not leave a voicemail, Ex. C at 182, and Nulty had no recollection of ever receiving the message, Ex. F at 25, 28-29. Furthermore, Plaintiff alleges no adverse action that was specifically motivated by these particular complaints.
. Plaintiff testified that he had an unpleasant verbal exchange with Nawoichyk at a home improvement store in January 2009, but this does not represent an adverse action sufficient to sustain a claim of First Amendment retaliation. Cf. Scott v. City of New York Dep't of Correction,
. Additionally, Plaintiff does not even attempt to establish that Sick’s conduct during the 2009 Incident or Bottari’s later communication the VA would bind the Town under Monell or Nulty in his personal capacity. See Jeffes,
. These are: (i) a complaint to an unidentified Sergeant following a 2011 run-in with Sick, whom Plaintiff accused of intimidation, Defs.’ 56.1 Resp. ¶ 115, and (ii) a complaint to an unidentified Lieutenant after yet another verbal encounter with Sick in a parking lot followed by Plaintiff’s being tracked by an unmarked car, id. ¶ 119.
. Plaintiff was eventually reinstated. Defs.' 56.1 Stmt. ¶ 111.
. Given the Second Circuit's holding in Velez, the Court need not consider whether OPD’s characterization of the 2009 Incident as "menacing” and failure to report Plaintiff as the "Complainant/Victim” is sufficiently defamatory and capable of being proved false to satisfy the first "stigma” prong.
. In addition, it is not clear how this alleged deprivation "adopted” any o£ the stigmatic statements that Plaintiff alleges. See Velez,
. While Plaintiff does cite other cases besides Chalfy, see PL’s Opp’n 13, none give the Court a better sense of what Plaintiff's specific substantive due-process claim is. Cf. DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,
. Notably, Plaintiff does not cite to any cases with analogous facts that would lead the Court to conclude that the alleged pattern of behavior here is conscience-shocking. While the citation to Chalfy helps determine the general contours of Plaintiff’s claim, it too appears inapposite on a fact-specific level. See Bertuglia,
. In the same vein, the Court notes that it has not considered all of Plaintiff's post-2010 allegations that are not in the Amended Complaint and are relied upon for the first time in Plaintiff’s summary judgment papers. See Kearney,
. Had Plaintiff not abandoned his claim of a “random or unauthorized act,” summary judgment would nevertheless be appropriate because “New York law provides property
. Defendants also argue that, even if they wanted to return Plaintiff's property, they could not without an additional court order. See Defs.’ Rep. 17-18 (asserting that there is no due process violation because the court order requires OPD to retain custody until another court of competent jurisdiction directs delivery of the property, and "[n]o such order has ever been sought by the Plaintiff or made by a local, state or federal court”).
. The only case that Plaintiff relies on, McClendon v. Rosetti,