Jarvis v. D'Angelo et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
HOLLY JARVIS,
Plaintiff,
5:25-CV-0648
v. 	(GTS/ML)
WILLIAM D’ANGELO; and MARPAT, LLC,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
HOLLY JARVIS
Plaintiff, Pro Se
105 Rider Avenue #1
Syracuse, New York 13207
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
I. 	BACKGROUND
A. 	Procedural History
Plaintiff Holly Jarvis (“Plaintiff”) commenced this civil rights action pro se by the filing
of a complaint alleging that her rights were violated by Defendants William D’Angelo and
MARPAT LLC (collectively “Defendants”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for
this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 19.)
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B. 	Complaint
Construed as liberally1 as possible, the Complaint alleges that Plaintiff’s rights were
violated by Defendants. (See generally Dkt. No. 1.)
The Complaint alleges that Plaintiff and Defendants entered a landlord-tenant
relationship for the residential unit located at 210 Lincoln Avenue, Apartment 1, Syracuse, New
York. (Dkt. No. 1 at ¶ 3.) Plaintiff alleges that during her tenancy, she “endured repeated and
ongoing harassment, threats, and property destruction by neighbors living in the upstairs unit.”
(Id. at ¶ 5.) Plaintiff alleges that Defendant D’Angelo was “informed of the ongoing danger” but
“refused to take action . . . and instead subjected Plaintiff and her son to further exposure to
harassment and danger.” (Id. at ¶¶ 7-8.) Plaintiff alleges that Defendant D’Angelo “failed to act
. . . because he was already under legal scrutiny for lead poisoning affecting the children in the
upstairs unit.” (Id. at ¶ 9.)
Based on these factual allegations, Plaintiff asserts the following four causes of action:
(1) a claim that Defendants beached the warranty of habitability pursuant to N.Y. Real Prop. Law
§ 235-b; (2) a claim that Defendants breached their contract; (3) a claim of negligence; and (4) a
claim of intentional infliction of emotional distress. (Dkt. No. 1 at ¶ 10.) As relief, Plaintiff
seeks $250,000 in “[g]eneral damages,” $500,000 in punitive damages, and “[i]njunctive relief
prohibiting further retaliation or housing discrimination by Defendants.” (Dkt. No. 1 at 3.)
1 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
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II. 	PLAINTIFF’S SECOND AMENDED APPLICATION TO PROCEED IN FORMA
PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee,
currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee
for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s Second
Amended IFP application (Dkt. No. 19), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff’s application to proceed IFP is granted.3
III. 	LEGAL STANDARDS
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted, a complaint must contain, inter
alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief
means that 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) (emphasis
2 	The language of that section is ambiguous because it suggests an intent to limit
availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the
commencement of an action without prepayment of fees “by a person who submits an affidavit
that includes a statement of all assets such prisoner possesses”). The courts have construed that
section, however, as making IFP status available to any litigant who can meet the governing
financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City
of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
3 	Plaintiff is reminded that, although her IFP application has been granted, she is still
required to pay fees that she may incur in this action, including copying and/or witness fees.
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added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a
complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and
punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .
. . have had an opportunity to respond.” 	Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. 	ANALYSIS
The subject matter jurisdiction of the federal district courts is limited. A federal district
court has jurisdiction only when a “federal question” is presented, 28 U.S.C. § 1331, or when
there is diversity jurisdiction because plaintiff and defendant are citizens of different states and
the amount in controversy exceeds $75,000, 28 U.S.C. § 1332. “‘[I]t is common ground that in
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our federal system of limited jurisdiction any party or the court sua sponte, at any stage of the
proceedings, may raise the question of whether the court has subject matter jurisdiction.’”
United Food & Com. Workers Union, Local 919, AFL-CIO v. CenterMark Prop. Meriden
Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway Constr. Co., Inc. v. Hous. Auth.
of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own
initiative.”). “If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
A. 	Federal Question Jurisdiction
To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under
federal law if the complaint “establishes either that federal law creates the cause of action or that
the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting
Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Merely invoking
federal question jurisdiction, without alleging any facts demonstrating a federal law claim, does
not create federal subject matter jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1188-89 (2d Cir. 1996).
The Complaint does not explicitly invoke federal law, and the allegations suggest state
law claims for breach of warranty of habitability, breach of contract, negligence, and intentional
infliction of emotional distress. (Dkt. No. 1 at ¶ 10.) Notwithstanding, the undersigned
considered whether Plaintiff adequately alleged a claim pursuant to the Federal Fair Housing
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Act, 42 U.S.C. § 3601 et seq., and the Civil Rights Act of 1844, 42 U.S.C. 1981 et seq., and finds
that she did not.
“The federal housing laws articulate a broad and clear public policy against
discrimination in housing and housing related transactions[.]” Saint-Jean v. Emigrant Mortg.
Co., 129 F.4th 124, 156 (2d Cir. 2025) (citing, inter alia, 42 U.S.C. § 3601), petition for cert.
filed, No. 25-229 (U.S. Aug. 27, 2025). “To this end, the FHA bans discrimination on the basis
of ‘race, color, religion, sex, familial status or national origin’ in connection with the sale and
rental of housing and other private real estate transactions.” Cnty. of Westchester v. U.S. Dep't of
Hous. & Urb. Dev., 802 F.3d 413, 416 n.3 (2d Cir. 2015) (per curiam) (citing 42 U.S.C. §§ 3604,
3605).
Moreover, to “establish a § 1981 claim, plaintiffs must plausibly allege facts sufficient to
support a showing that: (1) plaintiffs are members of a protected class; (2) defendants acted with
intent to discriminate against plaintiffs; and (3) defendants’ discriminatory act(s) concerned a
contractual activity enumerated under the statute.” Meyer v. Haines, 24-CV-0791, 2025 WL
1651154, at *21 (N.D.N.Y. June 11, 2025) (Brindisi, J.) (citing Clark v. City of N.Y., 13-CV-
0210, 2014 WL 4804237, at *2 (E.D.N.Y. Sept. 25, 2014)).
The Complaint is devoid of allegations plausibly suggesting that Plaintiff was
discriminated against on the basis of race, color, religion, sex, familial status, or national origin.
(See generally Dkt. No. 1.) Indeed, the Complaint does not allege Plaintiff’s membership in a
protected class. (Id.) Contrary to the assertion in the Complaint that Plaintiff is seeking
injunctive relief prohibiting “further retaliation or housing discrimination by Defendants,” the
factual allegations of the Complaint assert that Defendants failed to act because they sought “to
avoid further legal exposure” from the tenants that lived upstairs. (Dkt. No 1 at ¶ 9.)
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The Complaint therefore does not plead facts sufficient to establish federal subject matter
jurisdiction.
B. 	Diversity Jurisdiction
Plaintiff also does not allege facts demonstrating that the Court has diversity jurisdiction
of this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that
the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524
U.S. 381, 388 (1998). For diversity purposes, an individual is a citizen of the State where she is
domiciled. Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). A corporation is a
citizen “of every State and foreign state by which it has been incorporated and of the State or
foreign state where it has its principal place of business.” § 1332(c)(1); see also Hertz Corp. v.
Friend, 559 U.S. 77, 92-93 (2010) (a corporation’s principal place of business is its “nerve
center,” usually its main headquarters). In addition, a plaintiff must allege to a “reasonable
probability” that the claim is in excess of the sum or value of $75,000.00, the statutory
jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc.,
438 F.3d 214, 221 (2d Cir. 2006).
Here, the Complaint does not allege facts about the citizenship of either party. (Dkt. No.
1 at ¶¶ 2-3.) However, it appears that—like Plaintiff—Defendants may be citizens of New York,
which would preclude diversity of citizenship. The Complaint thus does not satisfy Plaintiff’s
burden of pleading diversity of citizenship, and Plaintiff does not show that the Court has subject
matter jurisdiction of this action.
As a result, I recommend that Plaintiff’s Complaint be dismissed for lack of subject
matter jurisdiction.
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V. 	OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se
litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, where “the problem
with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).4
In deference to plaintiff’s pro se status the undersigned recommends dismissing
Plaintiff’s claims without prejudice and with leave to amend.
If Plaintiff chooses to file an amended complaint, she should note that in any amended
complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates,
times, and places of the alleged underlying acts, and each individual who committed each alleged
4 	See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
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wrongful act. In addition, the revised pleading should allege facts demonstrating the specific
involvement of any of the named defendants in the constitutional deprivations alleged in
sufficient detail to establish that they were tangibly connected to those deprivations and facts
establishing subject matter jurisdiction in federal court. Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986). Finally, Plaintiff is informed that any such amended complaint will replace the
existing Complaint, and must be a wholly integrated and complete pleading that does not rely
upon or incorporate by reference any pleading or document previously filed with the Court. See
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that
an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiff’s second amended application to proceed in forma pauperis
(Dkt. No. 19) is GRANTED; and it is further respectfully
RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED without
prejudice and with leave to amend for lack of subject matter jurisdiction; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.5
5 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.6 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: December __, 2025
Binghamton, New York
6 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
22
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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Brown v. Peters, Not Reported in F.Supp. (1997)
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
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Clark v. City of New York, Not Reported in F.Supp.3d (2014)
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2014 WL 4804237
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Wilma CLARK, Plaintiff,
v.
CITY OF NEW YORK, New York City Police
Department, Police Officer Iocco, Police Officer
Del Villar, and Best Western Hotel, Defendants.
No. 13–cv–210 (ENV)(MDG).
|
Signed Sept. 19, 2014.
|
Filed Sept. 25, 2014.
Attorneys and Law Firms
Tamara M. Harris, The Law Office of Tamara M. Harris, New
York, NY, for Plaintiff.
Daniel Louis Passeser, Philip S. Frank, The City of NY Law
Department, David Harlan Schultz, Suzanne M. Halbardier,
Barry McTiernan & Moore, New York, NY, for Defendants.
MEMORANDUM & ORDER
VITALIANO, District Judge.
*1 Plaintiff Wilma Clark brings this claim against the City of
New York (the “City”), the New York City Police Department
(“NYPD”), and Police Officers Adam Iocco and David Del
Villar for violations of 42 U.S.C. § 1983, and against the
Best Western Hotel located at 87–07 Van Wyck Expressway,
Jamaica, New York (“Best Western”) 1 for violations of New
York Executive Law § 296(2) and 42 U.S.C. § 1981. 2 Best
Western has filed a motion to dismiss for failure to state a
claim upon which relief may be granted under Federal Rule
of Civil Procedure 12(b)(6). For the reasons set forth below,
Best Western's motion is denied.
Background
The following facts are drawn from the amended complaint
and are accepted as true for purposes of this motion. See
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d
Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009)).
Clark is a 62–year–old African American woman. On or about
January 10, 2012, Clark purchased and paid for an eleven-day
stay at Best Western for her father and brother. (Am.Compl.,
Dkt. No. 22, ¶ 6.) Clark entered the hotel on January 12,
2012 to meet with her father and brother, who were staying
in Room 301, the room she had reserved for them. (Id. ¶
7.) Upon entering Room 301, Clark discovered her sister,
Rhonda, who had not been registered as an occupant of the
room. (Id. ¶¶ 8–9.) Rhonda, who Clark alleges has a history
of mental illness, began acting violently, prompting Clark to
leave the room. (Id. ¶ 10.) Plaintiff later discovered that she
had left her pocketbook behind. (Id. ¶ 11.) Her sister, however,
refused to return it. (Id. ¶ 12.)
Plaintiff then approached Best Western personnel and asked
that they access Room 301 and remove her sister. (Id. ¶ 55.)
Clark advised that she was the lawful occupant of Room
301, although it appears she had made the reservation in her
father's name. 3 (Id. ¶ 56.) Best Western personnel refused
to assist Clark in gaining access to the room, refused to ask
her sister to leave, and otherwise ignored her. (Id. ¶ 57.)
Clark alleges that, by contrast, hotel employees courteously
addressed the concerns of white patrons, assisted them
promptly in accessing their rooms, and never ignored them,
although she does not describe w hen this occurred, how many
other patrons were assisted, or give any other detail as to the
white patrons who allegedly received better service than she
did. (Id. ¶ 58.)
Clark then called the police, and requested that hotel
personnel do the same. (Id. ¶ 12.) Officers Del Villar and
Iocco arrived on the scene, where Clark explained the
difficulties related to her sister. (Id. ¶ 13.) The officers
went to Room 301, where Rhonda handed them her sister's
pocketbook through the doorway. (Id. ¶ 14.) Once given
possession of her purse, plaintiff emptied its contents onto the
floor, in an effort to ensure that all of her belongings were
inside. (Id.) As she was checking the contents of her purse,
the officers began to treat Clark roughly, grabbing her and
shoving her. (Id. ¶¶ 15–16.) Clark called 911 to report the
officers' misconduct, which led them to shove her into an
elevator and force her through the lobby and out of the hotel.
(Id. ¶¶ 17–18.) After Clark took down the officers' names and
shield numbers, they tackled her, she says, and dragged her
back across the lobby. (Id. ¶ 20.) The officers accused Clark
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of trespassing and called for backup, alleging that Clark was
an emotionally disturbed person who needed to be taken to a
psychiatric hospital. (Id. ¶ 21.) Clark claims she at no point
resisted the officers, but was handcuffed and transported to
Jamaica Hospital's Psychiatric Unit, where she was assessed
and released several hours later. The psychiatric assessment
resulted in a finding that there was no basis on which to
commit her involuntarily. (Id. ¶¶ 22–25.) Clark was never
charged with trespass or any other criminal offense. (Id. ¶¶
26–27.)
*2 After leaving Jamaica Hospital, plaintiff returned to the
hotel to see her father. (Id. ¶ 59.) However, Best Western
staff denied her access to Room 301, and a hotel employee
at the main desk, who claimed his name was Tye, called
her a “trespassing nigger” and told her she was not allowed
inside the hotel. (Id. ¶ 60.) Plaintiff demanded that Tye verify,
by looking on the hotel's computer, that she had made the
reservation and paid for Room 301, but he refused to do
so and continued to make racially disparaging comments to
her. 4 (Id. ¶¶ 61, 67.) Clark subsequently tried to reach her
father by calling Best Western's front desk and having her
call connected to Room 301, but her request was denied,
with hotel personnel disconnecting the call. (Id. ¶ 62.)
Clark complained to Best Western's management about Tye's
comments and behavior, but management did not conduct an
investigation or initiate disciplinary proceedings. (Id. ¶¶ 68,
71–72.)
Clark commenced this lawsuit on January 14, 2013. The
amended complaint was filed on December 3, 2013.
Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a complaint
need only contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). This rule does not compel a litigant to supply
“detailed factual allegations” in support of his claims,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007), “but it demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009). “A pleading that offers
‘labels and conclusions' ... will not do.” Id. (quoting Twombly,
550 U.S. at 555); see also In re NYSE Specialists Sec. Litig.,
503 F.3d 89, 95 (2d Cir.2007). “Nor does a complaint suffice
if it tenders ‘naked assertions' devoid of ‘further factual
enhancement.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557).
A complaint must be dismissed under Rule 12(b)(6) if
it does not “contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on
its face.’ “ Id. (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility w hen the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. Determining plausibility is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. That said, the
factual allegations are paramount—“a complaint need not pin
plaintiff's claim for relief to a precise legal theory” nor provide
“an exposition of his legal argument.” Skinner v. Switzer, –––
U.S. ––––, ––––, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233
(2011).
Discussion
I. Plaintiff's § 1981 Claim
Title 42 U.S.C. § 1981(a) provides that “[a]ll persons ... shall
have the same right ... to make and enforce contracts ... and
to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by
white citizens.” Section 1981(b) clarifies that “the term ‘make
and enforce contracts' includes the making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the
contractual relationship.” To state a claim under § 1981, a
plaintiff must make factual allegations sufficient to support
findings that: (1) plaintiff is a member of a protected class; (2)
defendant acted with intent to discriminate against plaintiff;
and (3) defendant's discriminatory act concerned a contractual
activity enumerated under the statute. Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993)
(per curiam).
*3 Best Western does not dispute that plaintiff has
adequately pleaded the first element; her complaint clearly
alleges that she is an African–American woman.
With respect to the second element, a plaintiff “must
specifically allege the events claimed to constitute intentional
discrimination as well as circumstances giving rise to a
plausible inference of racially discriminatory intent” to
survive a motion to dismiss. Yusuf v. Vassar Coll., 35 F.3d
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709, 713 (2d Cir.1994). This standard has been found to be
met, for example, where a plaintiff “describ[ed] defendants'
actions in detail, and alleg[ed] that defendants selected them
for maltreatment solely because of their color.” Phillip v.
Univ. of Rochester, 316 F.3d 291, 298 (2d Cir.2003) (internal
quotation marks omitted).
Clark alleges that, when she returned to the hotel after being
escorted from it in police handcuffs, Tye uttered a racial
epithet as he enforced the apparent hotel-imposed ban on
her re-entry to the hotel. The complaint also spotlights the
alleged misconduct of other hotel employees who refused, she
says, to connect her call to the room she had purchased for
her father. While “legislation ... cannot regulate individuals'
conduct so as to ensure that they will never be rude or
insensitive,” Camarillo v. Carrols Corp., 518 F.3d 153, 157
(2d Cir.2008) (internal quotation omitted), the alleged use
of a racial epithet in connection with Clark's exclusion from
the hotel is sufficient to support her claim of discriminatory
intent, at least for the purpose of the current motion. See,
e.g., Bishop v. Toys “R” Us–NYLLC, 414 F.Supp.2d 385,
391 (S.D.N.Y.2006) (finding plaintiff met pleading standard
for discriminatory intent where store security guard allegedly
subjected plaintiff to racial epithets, assaulted and detained
plaintiff). Cf. Tejwani v. United Airlines, Inc., No. 08–CV–
2966, 2009 WL 860064, at *3 (S.D.N.Y. Mar. 3, 2009)
(finding plaintiff failed to state a § 1981 claim in part because
no employee was alleged to have “uttered any derogatory
remarks or comments” while treating plaintiff differently).
This is merely to say that the complaint alleges enough
to make a case of racial discrimination by Best Western
plausible.
Finally, to satisfy the third element of a § 1981 claim, plaintiff
must demonstrate that defendant's allegedly discriminatory
act concerned contractual activities enumerated under the
statute. The scope of protection under § 1981 includes
all contractual rights throughout the course of formation,
performance and termination of a contract. 5 Compare
Perry v. Burger King Corp. ., 924 F.Supp. 548, 552
(S.D.N.Y.1996) (holding use of customer bathroom within
scope of contractual relationship between customer and
fast food restaurant), with Bishop, 414 F.Supp.2d at 392
(holding contractual relationship in sales contract terminates
at completion of sale for purposes of § 1981 claim).
Here, plaintiff steps over the Rule 12 threshold by alleging
the existence of a continuing contractual relationship based on
her reservation and payment for a then—occupied room at the
hotel. After that, the nature of the relationship, if any, between
Clark and Best Western is far less clear. Since neither party
has submitted the terms of the agreement to the Court, perhaps
for § 1981 purposes, Clark's agreement with Best Western
—as purchaser, but not registered occupant—had ended if
Clark, knowingly or not, gifted the reservation to her father.
That determination cannot now be properly made. Discovery
may show that the right to enter and occupy the hotel room,
or any other dealings in connection with the reservation,
belonged exclusively to the registered guest. Clearly, Clark
alleges her understanding that the contract did provide her
with the right to enter and occupy the room despite not being
a registered guest of the hotel. (Am.Compl.¶¶ 52–53.) Best
Western counters that only the registered occupant, in this
case, Clark's father, has this right. (Def.'s Mem. of Law in
Supp. of Mot. to Dismiss at 1 n. 2.) Presumably, Clark's
removal from the hotel by the NYPD on a criminal trespass
charge demonstrates Best Western's contrary belief.
*4 Drawing all reasonable inferences in plaintiffs favor,
as the Court must for purposes of this motion, the Court
assumes, without deciding, that Clark had the right she
claims. See, e.g., Newman & Schwartz v. Asplundh Tree
Expert Co., Inc., 102 F.3d 660, 662–63 (2d Cir.1996) (holding
that disputes over contracts outside the pleadings are “not
appropriately resolved on a 12(b)(6) motion”). In the light
of this favorable inference, Clark has adequately stated in
her amended complaint that the alleged discriminatory acts
she pleads concerned a contractual activity protected under
§ 1981. The motion by Best Western to dismiss the § 1981
claim must be denied, but, of course, without prejudice to Best
Western's right to establish, after discovery, that these alleged
acts of discrimination came after the contractual relationship
had terminated, that is, went beyond her contractual rights and
activities with Best Western.
II. Plaintiff's § 296(2) Claim
New York Executive Law § 296(2) makes it an unlawful
discriminatory practice for any “owner, lessee, proprietor,
manager, superintendent, agent or employee of any place of
public accommodation” to “deny to [any] person any of the
accommodations, advantages, facilities or privileges” of that
accommodation “because of [ ] race, creed [or] color.” N.Y.
Exec. Law § 296(2)(a). A “place of public accommodation” is
defined in § 292(9) to specifically include hotels and motels.
N.Y. Exec. Law § 292(9).
The standard for intentional discrimination under New York
Executive Law § 296 is identical to that for claims of
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discrimination pursuant to § 1981. Whitehurst v. 230 Fifth,
Inc., No. 11–CV–0767, 2011 WL 3163495, at *9 (S.D.N.Y.
July 26, 2011); Drayton v. Toys ‘R’ Us, Inc., 645 F.Supp.2d
149, 163 (S.D.N.Y.2009); see also Davis v. Oyster Bay–
E., No. 03–CV–1372, 2006 WL 657038, at *8 n. 12
(E.D.N.Y. Mar. 9, 2006) aff'd, 220 F. App'x 59 (2d Cir.2007).
Clark's allegations are therefore sufficient to state a claim of
discriminatory treatment under § 296(2) for the same reasons
her pleadings plausibly assert a § 1981 claim.
There is one crucial additional requirement, however, under
New York Executive Law § 296(2). In order to hold Best
Western liable for its employee's allegedly discriminatory
acts, Clark must also allege facts sufficient to support
a finding that “the employer became a party to [the
discrimination] by encouraging, condoning or approving it.”
Totem Taxi, Inc. v. N.Y. State Human Rights Appeal Bd., 65
N.Y.2d 300, 305, 491 N.Y.S.2d 293, 480 N.E.2d 1075 (1985).
On the other hand, affirmative discriminatory action on the
part of an employer is not required. “An employer's calculated
inaction in response to discriminatory conduct may, as readily
as affirmative conduct, indicate condonation.” N.Y. State Div.
of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 686,
496 N.Y.S.2d 411, 478 N.E.2d 268 (1985).
Clark alleges that she reported her discriminatory treatment
to Best Western's management and that Best Western failed to
take corrective measures or to discipline Tye. (Am.Compl.¶
68, ¶¶ 71–72.) These allegations, at this early pleading stage,
support an inference of “calculated inaction in response to
discriminatory conduct” St. Elizabeth's Hosp., 66 N.Y.2d at
286, 496 N.Y.S.2d 969, 487 N.E.2d 879; see also Wal–Mart
Stores E., L.P. v. N.Y. State Div. of Human Rights, 71 A.D.3d
1452, 1453, 897 N.Y.S.2d 348 (4th Dep't 2010). Clark's
amended complaint, consequently, states a claim against Best
Western under § 296(2), and this branch of defendant's motion
is also denied.
Conclusion
*5 For the foregoing reasons, Best Western's motion to
dismiss the claims against it is denied. The parties are referred
to Magistrate Judge Marilyn D. Go for her continued pretrial
management of the proceedings.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 4804237
Footnotes
1 Best Western's corporate name is SIDHDHY VINAYAK LLC. (See Def.'s Mem. of Law in Supp. of Mot. to
Dismiss at 1.)
2 Although the amended complaint lists a cause of action under Executive Law §§ 296(2) and 296(9), the
parties appear to agree that the reference to § 296(9) was a typographical error. The Court assumes that
plaintiff intended to refer, instead, to § 292(9), which defines “a place of public accommodation.”
3 Best Western asserts that Clark purchased the hotel reservation through the website Priceline and reserved
the room under her father's name, a claim Clark does not dispute. (See Def.'s Mem. of Law in Supp. of Mot.
to Dismiss at 1 n. 2.)
4 Best Western claims that because the room was reserved through Priceline, its personnel did not have access
to an electronic record of Clark's transaction. However fatal this fact may be if established at the summary
judgment stage, given that there appears no dispute that plaintiff did pay for the room reservation, for the
purposes of this motion, the Court accepts plaintiff's assertion that the Best Western did have available access
to a record of the transaction in her name. (Am.Compl.¶ 67).
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5 Defendant cites Patterson v. McClean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989),
for the proposition that § 1981 protects contracting parties against discrimination only in the formation of a
contract or in pursuit of legal remedies. (Def.'s Mem. of Law in Supp. of Mot. to Dismiss at 8.) However,
in 1991, and in the wake of this decision, Congress added § 1981(b) expressly expanding the scope of
the statute to encompass contractual rights throughout the course of performance. See CBOCS W., Inc. v.
Humphries, 553 U.S. 442, 450–51, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008); Bishop v. Toys “R” Us–NY LLC,
414 F.Supp.2d 385, 392 (S.D.N.Y.2006) aff'd sub nom. Bishop v. Toys R Us, 385 F. App'x 38 (2d Cir.2010).
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KeyCite Blue-Striped Flag
Appeal Filed by Meyer v. Haines, 2nd Cir., July 9, 2025
2025 WL 1651154
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Solomon MEYER, Cathy Meyer, Jerry Meyer,
Malka Meyer, Chaim Meyer, Sarah Meyer, Steven
Meyer, Pearl Meyer, Elliot Schon, Ester Elizabeth
Schon, Tammy Schon, and Yehuda Schon, Plaintiffs,
v.
Robert HAINES, Rachel L. Haines, Jacqueline Gordon,
Marino Romito, Russ McCabe, Lark Hotels, LLC,
Hunter Propco, LLC, and Town of Hunter, Defendants.
1:24-CV-00791 (AJB/DJS)
|
Signed June 11, 2025
Attorneys and Law Firms
JAROSLAWICZ & JAROS PLLC, Attorneys for Plaintiffs,
225 Broadway, 24th Floor, New York, NY 10007,
OF COUNSEL: DAVID JAROSLAWICZ, ESQ., DAVID
TOLCHIN, ESQ.
KAUFMAN DOLOWICH LLP, Attorneys for Hotel
Defendants, 135 Crossways Park Drive, Suite 201,
Woodbury, NY 11797, OF COUNSEL: KEITH GUTSTEIN,
ESQ., SOLOMON ABRAMOV, ESQ.
JOHNSON & LAWS, LLC, Attorneys for Town Defendants,
646 Plank Road, Suite 205, Clifton Park, NY 12065, OF
COUNSEL: GREGG T. JOHNSON, ESQ., OLIVIA G.
REINHARDT, ESQ.
DECISION & ORDER
Hon. Anthony Brindisi, U. S. District Judge:
I. INTRODUCTION
*1 This matter comes before the Court upon the Motion to
Dismiss filed by defendants Robert Haines, Russ McCabe,
Marino Romito, and the Town of Hunter (collectively,
the “Town defendants”) and the Motion to Dismiss filed
by defendants Jacqueline Gordon, Rachel Haines, Hunter
Propco, LLC, and Lark Hotels, LLC (collectively, the “Hotel
defendants”) pursuant to Federal Rule of Civil Procedure
12(c) and 12(b)(6) respectively. Plaintiffs Solomon Meyer,
Cathy Meyer, Jerry Meyer, Malka Meyer, Chaim Meyer,
Sarah Meyer, Steven Meyer, Pearl Meyer, Elliot Schon,
Ester Elizabeth Schon, Tammy Schon, and Yehuda Schon
(“plaintiffs”) oppose the Motions. The Court heard arguments
on May 29, 2025. Decision was reserved.
For the reasons below, defendants’ Motions (Dkt. Nos. 41,
45) are GRANTED.
II. BACKGROUND 1
The Meyers and Schons, Sabbath-observant Jews from New
Jersey looking to spend Shabbos in the Catskills, booked stays
for the weekend of July 14–16, 2023, at the Bluebird Lodge
(“Hotel”) in Hunter, New York. Am. Compl., Dkt. No. 37 ¶¶
30, 33, 39.
Plaintiff Sarah Meyer called ahead the day before plaintiffs’
intended arrival. She informed the on-site hotel manager,
defendant Jacqueline Gordon (“Jackie” or “Gordon”), that
her party would likely have about 30–40 people, including
children—all strict observers of kashrut and the Jewish
Sabbath. Id. ¶ 32.
Her party, Meyer explained to Gordon, could not use
electronics, including motor vehicles, from sundown Friday
to sundown Saturday; wished to bring their own food and
eat meals together; and would require a prayer space. Id.
¶¶ 33, 35. Gordon assured Meyer that the Hotel could
accommodate these requests and restrictions. The two then
discussed rooming options. Id. ¶ 39.
On Gordon's recommendation, the Meyers reserved one of
the Hotel's chalets: a suite-style accommodation, advertised
as soundproof, consisting of a full kitchen, living room, and
several bedrooms. Separately, other party members booked
“at least” eight “standard” rooms. The Bluebird's chalets are
isolated from the Hotel's main building. The standard rooms,
among them the eight (or more) booked by others in plaintiffs’
party, are located therein. Id. ¶¶ 35–41.
Throughout Friday afternoon, plaintiffs arrived at the
Bluebird, each clad in distinctive Orthodox Jewish attire. By
Sabbath's start, they had checked in and been directed to their
respective accommodations. Id. ¶¶ 46–48.
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Shortly after dusk, Gordon, in her first interaction with any
plaintiff that weekend, came by Steven Meyer with some
younger children outside the Meyers’ chalet. Gordon asked
that the group be quieter, and they complied. Id. ¶ 50.
About 15 minutes later, around 8:00 p.m., prayer convened
in the Meyers’ chalet. Following the service, plaintiffs’ party
gathered inside to eat together. Id. ¶¶ 52, 54.
Sometime during the two-hour meal, Gordon knocked on
the chalet door. She informed Cathy Meyer that there had
been noise complaints. If something were not done, Gordon
warned, plaintiffs’ party would be asked to leave. Id. ¶ 59.
Cathy Meyer, in turn, suggested that the group try to be quieter
and make a special effort to watch the children. Id. ¶ 62. By
11:00 p.m., those gathered retired to their rooms, aside from
a trio who stayed up cleaning and chatting for another two
hours. Id. ¶ 63.
*2 Around 8:30 a.m. on Saturday, several men and older
children from plaintiffs’ party (the “Morning Prayer Group”)
departed the Hotel on foot—walking a mile to the property
of an associate, Abraham Heller (“Heller Property”). Id.
¶ 66. There, the attendees spent the morning praying and
socializing. Id. ¶ 67.
Meanwhile, back at the Hotel, some children ate breakfast
in the Meyers’ chalet. Elsewhere, at least two other children
played cards. Id. ¶ 68. Once more, the kids came to the
awareness of the on-site Hotel manager, Gordon. Id. ¶ 69.
Gordon spoke with Cathy Meyer, remarking that one group
was not being watched. Id. ¶ 69. Meyer maintained that
Gordon was wrong: Meyer was supervising them. Id. ¶ 70.
Later that morning, Gordon again brought up the children,
specifically their behavior, with Cathy Meyer. Meyer, taken
aback, remarked that she felt harassed. She thought the Hotel
was child-friendly. Gordon affirmed the latter sentiment. Id.
¶ 77.
Slightly past noon, plaintiffs’ party assembled once more in
the chalet for lunch. Id. ¶ 78. As they ate, Gordon came to the
chalet door—this time, cellphone in hand. Id. ¶ 79. Plaintiff
Yehuda Schon answered the door. Id. Gordon, offering
the phone, asked that Cathy Meyer speak with Gordon's
supervisor, defendant Rachel Haines (“Rachel” or “Haines”).
Id. Schon declined on Meyer's behalf. He reminded Gordon
that it was the Sabbath, so plaintiffs did not use electronics.
Id. ¶ 80. But, Schon offered, Meyer could speak to Haines in
person if desired. Id. Gordon, seeming annoyed by the rebuff,
left to discuss with Haines. Id. ¶ 81.
About an hour and a half later, around 2:00 p.m., Gordon
told Yehuda Schon that the party was no longer welcome
at the Bluebird: plaintiffs had two hours, until 4:00 p.m., to
leave. Id. ¶ 88. Some point later, Gordon called the Hunter
Police Department. Id. ¶ 90. Gordon notified the department
that the Hotel had unwanted guests who, citing their religious
restrictions as the basis, refused to leave. Id. ¶ 90.
Defendant Officers Marino Romito (“Romito”) and Russ
McCabe (“McCabe”) (collectively “Town Officers”) were
dispatched by the Town of Hunter. Id. ¶ 91. A pair of New
York State Troopers and Greene County Deputy Sheriffs
later joined them. Id. ¶¶ 92, 93. Upon arrival, the two
Town Officers spoke with Gordon and Haines. Id. ¶ 91.
Then, plaintiffs Cathy and Solomon Meyer, along with Town
Officers Romito and McCabe, Gordon, the two state troopers,
and the two deputy sheriffs, convened in a private room to
discuss their dilemma. Id. ¶ 93.
There, the Town Officers relayed what they had just been
told to Mr. and Mrs. Meyer: plaintiffs’ party had violated the
Hotel's rules, the party was no longer welcome to remain on
the property, and the 32 guests needed to leave. Id. ¶ 96. Staff
had already told Mr. Meyer and the other guests this. Id. ¶ 99.
So, the officers added, if plaintiffs continued to refuse, they
would be trespassing. Id.
Solomon Meyer objected. Id. ¶ 103. Sabbath restrictions
prevented plaintiffs from packing, driving, or looking for
other accommodations until sundown. Id. Instead, he asked
that they be let to stay in their rooms or outside on the Hotel's
lawn—at least until dusk, around 9:25 p.m. Id. Haines, from
Gordon's speakerphone, declined: there had already been too
much noise, children were jumping on furniture, and singing
had continued until 2:00 a.m. the prior night. Id. ¶¶ 104, 106.
But if they desired, Haines offered, plaintiffs could leave their
belongings and vehicles and return for them after sundown.
Id. ¶ 114.
*3 Unable to convince Haines, Meyer turned to the law
enforcement officials, asking them to intervene on plaintiffs’
behalf. Meyer insisted because plaintiffs were observant
Jews with strict religious practices, they were being treated
unjustly. Id. ¶¶ 108, 109. Unmoved, Officer Romito remarked
tersely: “You don't understand; it is very simple, staying here
is not an option[.]” Id. ¶ 110. He continued, “[E]ither leave on
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your own[, or] if not, I have no problem cuffing every single
one of you. I have 50 cuffs in all sizes, including children[’s],
and we will take you to the precinct in shifts.” Id.
Seeing no viable alternatives, plaintiffs’ group made its way
to the Heller property down the road. Some walked the
mile there, as the Morning Prayer Group had twice earlier
that day. Others could not, or did not want to, walk there.
Id. ¶¶ 114, 115. Officers Romito and McCabe offered their
vehicles for transport. Id. ¶ 116. Yet this effort turned out
impractical. Several children, among them two with special
needs, did not want to go in the cruisers. Id. ¶ 116. As a
result, the officers called for a Kaaterskill Trolley bus. Some
voiced dissatisfaction with this plan as well. It, too, violated
the Sabbath. Despite the reluctance, the trolley eventually
transported those remaining to the Heller property. Id. ¶ 117.
Following the Sabbath's end, around 9:30 p.m., plaintiffs
returned to the Hotel to retrieve their left-behind belongings.
Id. ¶ 121. The party was allotted 20 minutes to gather their
things, and only one person could be inside a guestroom at
a time, as an unidentified Hunter Police officer observed. Id.
¶ 122. During the packing, Solomon Meyer asked whether
just he and his wife could stay until morning. They wanted
to avoid driving back home to New Jersey in the dark. His
request was denied. Id. ¶ 125.
After the weekend's turmoil, the Hotel's CEO, Peter
Twachtman, issued a press statement. Id. ¶ 129. In it,
Twachtman alleged that the behavior of a large party,
including individuals without reservations, had prompted
multiple complaints to staff. Id. ¶ 130. These complaints, he
claimed, led eight guests to check out early and resulted in
the Hotel issuing refunds for their abbreviated stays. Id. The
group in question consisted of parents with 20 young children,
many of whom, Twachtman asserted, were left unsupervised
for much of the time. Id. Despite warnings from the Hotel,
Twachtman stated, the group took no remedial actions, and
the unabated disruption ultimately led to their eviction. Id. ¶
130.
Plaintiffs dispute Twachtman's account. They argue it is a
mere pretext for discrimination, id. ¶ 131, and point to the
following as support:
During their Friday dinner, loud music from the Hotel lobby
and tavern could be heard outside the chalets. But to plaintiffs’
knowledge, no complaints were made about either. Id. ¶¶ 57,
58. And on Saturday morning, around 8:00 a.m., plaintiff
Malka Meyer sat outside with some of her children when
the on-site hotel manager, Gordon, appeared, observed the
scene, then walked away without comment. Id. ¶¶ 64, 65.
Later, plaintiffs Elizabeth Schon and Malka Meyer sat outside
while several of their children played nearby. Id. ¶ 71.
They observed two children—unknown and unrelated to
any plaintiff—jumping on a couch and performing “tumble-
saults.” Id. ¶ 72. Yet no warning was given to the two,
nor were their parents sought out to discuss the lack of
supervision. Id. ¶ 75.
When the officers reiterated that plaintiffs needed to leave,
Solomon Meyer asked what rules had been violated, but
the officers did not, or could not, specify. Id. ¶ 98. Nor
did the Town Officers investigate the Hotel's allegations,
review any video footage, or interview anyone. Id. ¶ 100. At
no point did the officers take plaintiffs’ side or attempt to
intercede or reason with management on their behalf. Id. ¶
127. Furthermore, during the 20 minutes when plaintiffs were
allowed back onto the Bluebird for their belongings, loud
music could be heard, unabated, coming from a hotel room.
Id. ¶ 123.
*4 And unknown to plaintiffs at the time, defendant
Rachel Haines was married to defendant Robert Haines
(“Sgt. Haines”), the lead commanding officer of the Town of
Hunter Police Department. Id. ¶¶ 18, 19. Thus—according to
plaintiffs—a standing agreement, “either explicit or implicit,”
existed between the off-site hotel manager and the sergeant:
“[I]f anyone from the Hotel called the Town police about
religious people allegedly causing trouble, the Town police
would act in their public capacity to force the guests to leave
on any pretext[.]” Id. ¶ 84.
This agreement meant that Rachel Haines, and the Hotel,
because of her husband's position, “had access to the Town
police as [a] private security force[,] empower[ing] them to
discriminate against Jewish guests who stood out.” Id. ¶ 85.
“[E]ven Jews on the Jewish Sabbath, and even in the absence
of any risk or danger to anyone[.]” Id. ¶ 84. Considered
together, plaintiffs contend, these are sure indicators of
defendants’ anti-Jewish animus.
III. STANDARD OF REVIEW
“The standard for granting a Rule 12(c) motion for judgment
on the pleadings is identical to that of a Rule 12(b)(6) motion
for failure to state a claim.” Patel v. Contemp. Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting
cases). Dismissal for failure to state a claim upon which relief
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can be granted “can be based on one or both of two grounds:
(1) a challenge to the ‘sufficiency of the pleading’ under
[Rule] 8(a)(2); or (2) a challenge to the legal cognizability of
the claim.” Gibson v. New York State Off. of Mental Health,
372 F. Supp. 3d 23, 28 (N.D.N.Y. 2019) (Suddaby, J.) (internal
citations omitted).
A pleading is generally sufficient where it contains “a short
and plain statement of the claim showing that the pleader
is entitled to relief.” FED. R. CIV. P. 8(a)(2) (emphases
added). Rule 8 “marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era”;
however, “it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.” Ashcroft
v. Iqbal, 556 U.S. 662, 678–79 (2009). A plaintiff must
provide “more than...unadorned, the-defendant-unlawfully-
harmed-me accusation[s].” Id. at 678. Rather, “[t]o 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, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(emphasis added))). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. “While a complaint...does not
need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more
than labels and conclusions[.]” Twombly, 550 U.S. at 555.
“[F]ormulaic recitation of the elements of a cause of action
will not do.” Id.
IV. DISCUSSION
As a prefatory matter, the Court notes that plaintiffs’
Amended Complaint is a “shotgun pleading.” Each of the
eleven causes of action asserted in plaintiffs’ Amended
Complaint incorporates all preceding factual allegations and
adopts the allegations in each prior count. When a party
presents claims this way, it can often be difficult, if not
“virtually impossible[,] to know which allegations of fact are
intended to support which claim(s) for relief.” Croons v. New
York State Off. of Mental Health, 18 F. Supp. 3d 193, 199
(N.D.N.Y. 2014) (Hurd, J.) (quoting Anderson v. Dist. Bd. of
Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir.
1996)). Left unimpeded, “shotgun pleadings” risk hindering
meaningful legal analysis, especially when consequential
factual allegations are missing or entangled with aspersions
and legal conclusions. Analysis becomes only more onerous
when opposition papers contradict the operative complaint or
attempt to introduce new factual allegations and when legal
claims and theories are mischaracterized, recharacterized,
or redefined ad hoc. Such a “waste of judicial and
private resources[,]” id. (quoting Johnson Enterprises of
Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th
Cir. 1998)), is in no party's interest.
*5 Pleading deficiencies are, apparently, not of concern to
plaintiffs. Rather, plaintiffs skirt the issue: “Although the
facts supporting th[ese] allegation[s] may be attacked as
circumstantial, at this early pleading stage of the action,
under [Rule 12(b)(6) and] Rule 12(c), the Court must award
Plaintiffs the benefit of all reasonable inferences[.]” Pls.’
Opp'n to Town Defs.’ Mem. (“Pls.’ Town Opp'n”), Dkt. No.
52 at 23; see also id. at 28 (“[Defendants’] argument relies on
a determination of the facts in their favor, but on a [Rule 12(b)
(6) or] Rule 12(c) motion depends on the allegations.”).
In its review, the Court is to “begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth[.]” Ashcroft, 556 U.S.
at 679. The Court must then determine whether the well-
pleaded factual allegations, accepted as true, “plausibly give
rise to an entitlement to relief.” Id. This is “a context-specific
task,” one “requir[ing] the reviewing court to draw on its
judicial experience and common sense.” Id. “A well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of the facts alleged is improbable, and that a
recovery is very remote and unlikely.” Offerup Inc. v. Ramtin
Software Sols., LLC, 2024 WL 4362512, at *2 (E.D.N.Y. Sept.
30, 2024) (citing Twombly, 550 U.S. at 556). Even so, where
“well-pleaded facts do not permit the Court to infer more than
the mere possibility of misconduct, the complaint has alleged
—but it has not shown—that the pleader is entitled to relief.”
Ashcroft, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2))
(emphases added) (internal alterations omitted).
The problem plaintiffs face here is not that their allegations
are circumstantial. It's that most are conclusory statements.
“[T]he Court [does] not requir[e] heightened fact pleading of
specifics, but only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S. 544 at 570. Still,
“ ‘[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice,’
therefore, pleadings that are no more than conclusions are
not entitled to the assumption of truth.” Justice v. King, 2015
WL 1433303, at *9 (W.D.N.Y. Mar. 27, 2015), aff'd, 628
F. App'x 58 (2d Cir. 2016) (citing Ashcroft, 556 U.S. at
678). The Court “need not consider conclusory allegations or
legal conclusions couched as factual allegations.” Dixon v.
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von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (internal
citations omitted). “[G]eneralized statements, which do not
identify who did what, fail[ ] to meet the requisite standard.”
Rosado v. Vill. of Goshen, 2019 WL 1437522, at *7 (S.D.N.Y.
Mar. 31, 2019) (citing Moffitt v. Town of Brookfield, 950 F.2d
880, 886 (2d Cir. 1991)). If a plaintiff “ha[s] not nudged [their]
claims across the line from conceivable to plausible, [their]
complaint must be dismissed.” Twombly, 550 U.S. at 570.
A. Federal Claims
i. § 1983 Individual Liability of Sgt. Haines
Most of plaintiffs’ federal claims rely on 42 U.S.C. § 1983.
Section 1983 “provides a mechanism for enforcing individual
rights ‘secured’ elsewhere”—that is, “rights independently
‘secured by the Constitution and laws’ of the United States.”
Gonzaga University v. Doe, 536 U.S. 273, 285 (2002).
“Standing alone, § 1983 clearly provides no protection for
civil rights since...[it] does not provide any substantive rights
at all.” McSweeney v. Bayport Bluepoint Cent. Sch. Dist., 864
F. Supp. 2d 240, 250 (E.D.N.Y. 2012) (quoting Chapman v.
Houston Welfare Rts. Org., 441 U.S. 600, 617 (1979)).
*6 To establish a given individual defendant's §
1983 liability, plaintiffs must show that particular
defendant's personal involvement in the alleged constitutional
deprivations. See Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013). “[D]efendant[s] in a § 1983 action may not
be held liable for damages for constitutional violations merely
because [they] held... high position[s] of authority.” Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). “[A] successful
§ 1983 claim holds an individual personally responsible for
the role his or her own acts or omissions played in violating
someone's constitutional rights[;] that is why an award of
§ 1983 money damages against an individual defendant is
executed against the official's personal assets.” Dukes v. City
of Albany, 492 F. Supp. 3d 4, 12 (N.D.N.Y. 2020) (Hurd,
J.) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
“That is also why a municipality cannot be held liable under
§ 1983 merely because it happened to employ the tortfeasor.”
Id. n.6 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690–91 (1978)). Instead, “under § 1983 local governments
are responsible only for ‘their own illegal acts.’ ” Id. (quoting
Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in
original)).
Plaintiffs do not plausibly allege Sgt. Haines’ personal
involvement in the events surrounding the instant action. In
fact, the only § 1983 claim asserted directly against Sgt.
Haines (“Count I”) lacks any specific allegations of action or
inaction by the sergeant except, ostensibly, in Paragraph 136:
Pursuant to the understanding and
agreement with [Bluebird] Manager
Rachel [Haines], Sgt. [Robert] Haines
used his power and position with
the Town police to deploy officers
and to subject Plaintiffs to the
deprivation of their rights, privileges
or immunities secured by the
Constitution, including the Fourteenth
Amendment, in violation of 42 U.S.C.
§ 1983.
Am. Compl. at 15.
The operative Complaint does not elaborate on this alleged
“agreement” or how it connects Sgt. Haines to the alleged
underlying constitutional violations. It merely asserts that
Rachel and Robert Haines are married, that plaintiffs were
unaware of this marital status, and that somehow, as a natural
extension of their marriage, the two possessed a “standing
agreement, either explicit or implicit[:] if anyone from the
Hotel called...about religious people...causing trouble, the
Town police would act in their public capacity to force the
guests to leave on any pretext[.]” Id. ¶¶ 19, 84, 86.
If there are grounds to believe such an agreement exists,
plaintiffs have failed to present a single plausible one.
The only supposed basis provided is the existence of the
Haines’ marriage. Plaintiffs concede, “[o]bviously, marriage
itself does [not] amount to a conspiracy.” Pls.’ Opp'n to
Hotel Defs.’ Mem. (“Pls.’ Hotel Opp'n”), Dkt. No. 51 at
25. But they insist “[h]owever, the coincidences of this
particular marriage raise enormous suspicion.” Id. Even
crediting this conclusory suspicion, it remains wholly unclear
what “coincidences” plaintiffs believe warrant the Court's
consideration, as plaintiffs do not state them.
Even if some abstract, wide-ranging, generalized agreement
to discriminate against “religious people” existed, plaintiffs
still do not plausibly allege facts showing that Sgt. Haines
was personally involved in any of the alleged constitutional
violations complained of here.
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Though, one could be forgiven for thinking otherwise.
Offered as one statement, Complaint Paragraph 136 provides
two discrete assertions about Sgt. Haines. The first, that
he “used his power and position with the Town police to
deploy officers,” is a neutral, generalized statement. It simply
indicates the sergeant could and did deploy officers as part
of his job. The second, that he “used his power and position
with the Town police to...subject Plaintiffs to the deprivation
of their rights...” asserts that Sgt. Haines’ authority as head
of the Hunter Police Department directly led to or caused the
violation of plaintiffs’ rights.
*7 But this is an entirely separate statement from the first.
Again, to sustain their § 1983 claim against Sgt. Haines,
plaintiffs must plausibly allege his personal involvement in
one of the alleged constitutional violations. Yet the part of
the Complaint alleging actions by the sergeant does not
accomplish that. It says only that Sgt. Haines used ‘his power
and position’ to deploy officers, and that Sgt. Haines used ‘his
power and position’ to deprive plaintiffs of their constitutional
rights. It does not plausibly assert that Sgt. Haines deprived
plaintiffs of their constitutional rights by deploying Officers
McCabe and Romito to the Hotel that weekend. The two
allegations are disjointed: they amount to an ipse dixit. In
other words, Count I fails to present a factual assertion of Sgt.
Haines’ personal involvement in the underlying constitutional
violations alleged.
This reading is consistent with the rest of the pleading.
Nowhere do plaintiffs allege that Sgt. Haines was on-site, on
duty, in communication with the other defendants, or even
aware of the events taking place. See, e.g., Pls.’ Town Opp'n
at 21 (“[T]he inference that Sgt. Haines used his position and
influence over the Town police to assist his wife and her hotel
is a reasonable one to draw, particularly at this early pleading
stage of this action[;] [a]s such it makes no difference whether
Sgt. Haines was on duty or not.”) (emphasis added).
Plaintiffs seek to remedy these deficiencies by introducing
new factual contentions in their opposition papers: “To the
extent Sgt. Haines knew what the Town Officers were doing
—and there is every reason to believe that he did, considering
he was likely with his wife that Saturday afternoon when
it was all happening and likely shares her views—he could
have easily called off the eviction[.]” Pls.’ Town Opp'n at 24
(emphases added).
This is inappropriate. “In adjudicating a Rule 12(b)(6) motion
to dismiss, the Court must limit itself to facts alleged in the
complaint, which are accepted as true; to documents attached
to the complaint as exhibits or incorporated in the complaint
by reference; to matters of which judicial notice may be taken;
or to documents whose terms and effect are relied heavily
upon in the complaint and, thus, are rendered ‘integral’ to the
complaint.” East v. Roosevelt Union Free Sch. Dist., 2020 WL
13753159, at *5 (E.D.N.Y. July 31, 2020) (citing Chambers v.
Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002)); see
also ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir.
2014). The Court declines to contemplate any facts introduced
in opposition that do not meet one of those requirements.
At any rate, it is still entirely unclear why plaintiffs believe,
let alone have “every reason” to believe, that Sgt. Haines
knew what was taking place at that time. Plaintiffs do not
plausibly allege a single fact in support of that conclusion.
Beyond vague and unfounded declarations of a nebulous,
possibly unspoken, general anti-religious agreement between
husband and wife, the sergeant only appears to be mentioned
incidentally. And even in Count I, Sgt. Haines appears
to be an afterthought. See, e.g., Am. Compl. at 9, ¶
142 (omitting Sgt. Haines from list of liable individual
defendants). Plaintiffs have not sufficiently tied Sgt. Haines
to the alleged constitutional violations at issue. As to Sgt.
Haines’ individual § 1983 liability, Count I is dismissed.
ii. § 1983 Individual Liability of Officers McCabe and
Romito
Count II purports to be a single claim levied against the
“Town Officers” for “[v]iolation of [r]eligious [l]iberties,
and [w]rongful [c]onfinement, in [v]iolation of 42 U.S.C. §
1983[.]” Am. Compl. at 16.
The Town Officers, acting under the
color of law and using the authority of
their offices, subjected Plaintiffs to the
deprivation of their rights, privileges
or immunities secured by the U.S.
Constitution, including the First
Amendment, Fourth Amendment, and
Fourteenth Amendment, and laws[.]
*8 Id. ¶ 144.
This conclusory allegation tells the Court little. As
pleaded, Count II amounts to an assertion that the “Town
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Officers” deprived plaintiffs of “rights...secured by the U.S.
Constitution...and laws.” Id. But every lawsuit involves
at least one law. See Darby v. New York City Health &
Hosps. Corp., 2019 WL 1994490, at *3 (E.D.N.Y. May 6,
2019), aff'd sub nom. Darby v. Greenman, 14 F.4th 124 (2d
Cir. 2021) (“[P]laintiff must also allege facts that amount
to a violation of law...no matter how detailed those facts
are[.]”). Enumeration of the First, Fourth, and Fourteenth
Amendments does not remedy Count II's inexactitude—the
three Amendments could be just a few of the “includ[ed]”
bases.
Still, what plaintiffs intend is reasonably discernible. They
argue that the “Town Officers” violated their alleged
constitutional “right to remain in the public areas of the
Hotel premises and in their paid rooms”; unconstitutionally
“removed all Plaintiffs from the Hotel premises under the
threat of arrest for trespassing”; and, “[i]n further violation of
§ 1983,...confined at least some of the Plaintiffs to the trolley
and excluded all Plaintiffs from the Hotel premises”—all “in
violation of the...Fourth and Fourteenth Amendments[.]” Am.
Compl. at 16–18; see, e.g., Pls.’ Hotel Opp'n at 7 (“Plaintiffs
claim that they had the right to remain at the hotel and in their
paid hotel rooms[.]”)
And, by their conduct, plaintiffs claim the officers “refused
to accommodate Plaintiffs’ religious practices[,]” thereby
also allegedly “violat[ing] Plaintiffs’ rights under the First
Amendment[.]” Am. Compl. at 17; see Pls.’ Hotel Opp'n at 7
(“Plaintiffs...had the right to...practice their religion without
interference from the Hotel or the state[.] They...were treated
differently from other guests at the Hotel, were lumped
together because they were Jews, were collectively punished
for the alleged infractions of a few unnamed individuals, and
were blamed for the conduct of youngsters whom they did not
even know.”).
Respecting the conduct of Officers McCabe and Romito, the
plausible and pertinent factual assertions made by plaintiffs
in their Amended Complaint are as follows:
The Town of Hunter dispatched Officers McCabe and Romito
to the Hotel on Saturday afternoon. Upon arrival, the officers
spoke with Gordon and Rachel Haines. They then had a
discussion with Cathy and Solomon Meyer, Gordon, Rachel
Haines, two New York State Troopers, and two Greene
County Deputy Sheriffs in a private room at the Bluebird.
There, the Town Officers reiterated what had been conveyed
to them by Bluebird management—plaintiffs were no longer
welcome on the Hotel property and were instructed to leave
promptly. The officers added that if plaintiffs continued to
refuse, they would face arrest for trespassing. At some point
following that announcement, plaintiffs vacated the premises,
setting course for the Heller Property. A portion of plaintiffs’
party walked the mile from the Hotel. Others, due to the
uncomfortable temperature, physical difficulties, or other
personal restrictions, did not. The Town Officers offered to
drive the latter group to Heller's in their police cruisers. That
turned out to be impracticable, so the officers called for a
trolley car, which ultimately transported those still left.
*9 Plaintiffs muddy these actual allegations through a series
of vagaries, equivocations, non sequiturs, under-descriptive
verbiage, and evocative language. For instance, the pleadings
repeatedly allege that the “Town Officers” “would do as
instructed” by Rachel Haines. Yet plaintiffs are loath to say
what those alleged instructions entail or whether either officer
acted on any such instructions. 2
The few times that concrete “actions” by the “Town Officers”
are alleged, plaintiffs do not say whether Officer McCabe,
Officer Romito, or both were responsible—or even what the
underlying conduct might have included. In fact, there are
only two factual assertions in the Amended Complaint that
even mention Officer McCabe by name:
¶ 21. At the time of the incident, Defendant RUSS
MCCABE (“Officer McCabe”) was an officer and member
of the Town's police department.
....
¶ 91. Town Officer Romito and Town Officer McCabe
(the “Town Officers”) came to the Hotel in official police
vehicles and spoke with Manager Jackie and Manager
Rachel.
Am. Compl. at 3, 10.
Little more is provided regarding Officer Romito. Beyond
noting the duo's arrival and a similar statement concerning his
employment status, the Complaint mentions Officer Romito
just once more:
¶ 110. [O]fficer Romito threatened to arrest everyone: “You
don't understand; it is very simple, staying here is not an
option so either leave on your own and if not, I have no
problem cuffing every single one of you. I have 50 cuffs in
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all sizes, including children[’s], and we will take you to the
precinct in shifts.”
Id. at 12.
When a plaintiff's allegations fail to “state precisely what
each defendant did and how it violated plaintiff's rights[,]
[w]ithout more, plaintiff's allegations fail to state a claim upon
which relief may be granted.” Harris v. Summers, 2014 WL
1340032, at *4 (N.D.N.Y. Apr. 3, 2014) (Kahn, J.).
*10 Even if the Court deems the term “Town Officers”
sufficient to indicate the alleged personal involvement
of Officers McCabe and/or Romito, the Complaint still
suffers from numerous legal deficiencies intertwined with
superficially substantive, yet materially inadequate, “factual”
allegations, which prove fatal to plaintiffs’ case:
Plaintiffs allege that “the Town Officers confined at least
some of the plaintiffs to the trolley[.]” Am. Compl. ¶ 151
(emphasis added). “The police...caused a Kaaterskill tourist
Trolley-bus to arrive for the purpose of transporting some of
the parents and children to the Heller property to be with the
others.” Id. ¶ 117. And “[d]espite their express objections on
Sabbath-violation grounds, these parents and children were
confined to the trolley for the entirety of the trip to the Heller
property[.]” Id. ¶ 118 (emphasis added).
Plaintiffs also allege that the “Town Officers...excluded all
Plaintiffs from the Hotel premises and their paid rooms[,]”
id. ¶ 151, “in violation of the First, Fourth and Fourteenth
Amendments[.]” Id. ¶ 154 (emphasis added).
Plaintiffs further contend that, in violation of § 1983,
“[t]he Town Officers...removed all Plaintiffs from the Hotel
premises under the threat of arrest for trespassing.” Id. ¶ 147
(emphasis added). And that “the Town Officers acted willfully
to cause Plaintiffs to be threatened with a violation and arrest,
thereby depriving Plaintiffs of their rights protected by the
Fourth and Fourteenth Amendments[.]” 3 Id. ¶ 148.
It does not matter which combination of constitutional
amendments and seemingly factual bases plaintiffs assert
above; none of these plausibly plead an actionable § 1983
claim against either defendant.
1. § 1983 Substantive Due Process Challenge
It is not immediately obvious what legal theories support
these claims, but the Fourth Amendment appears to be a
throughline. Though, plaintiffs also assert that “[u]nder the
facts alleged, every one of the operative clauses of [Section
1 of the Fourteenth] Amendment was violated.” Pls.’ Town
Opp'n at 19. Among those violations, plaintiffs contend,
“[t]he Town Officers...deprived them of their substantive Due
Process Rights.” Id.
But where a specific constitutional amendment provides an
explicit textual source of protection against a particular type
of government action, that amendment—not the broader
concept of substantive due process—should provide the
guiding framework for consideration of such claims. See
Simons v. New York, 472 F. Supp. 2d 253, 265 (N.D.N.Y.
2007) (Hurd, J.), aff'd sub nom. Simons v. Fitzgerald, 287 F.
App'x 924 (2d Cir. 2008) (summary order) (citing Albright v.
Oliver, 510 U.S. 266, 273 (1994)).
The Fourth Amendment provides explicit protection against
pretrial deprivations of liberty, making it the proper
framework here—not the Fourteenth Amendment. See Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).
Accordingly, plaintiffs’ substantive due process claims
against the Town Officers are dismissed.
2. § 1983 Fourth Amendment Challenges
a. Wrongful Confinement
Plaintiffs characterize their alleged “wrongful confinement”
to be a “detention[.]” See Pls.’ Town Opp'n at 14 (“[The Town
Officers’] conduct itself constitutes a detention, as [plaintiffs]
were compelled to be confined on the trolleybus to the
exclusion of the hotel and could go nowhere else.”) (emphasis
added). So this claim arises under the Fourth Amendment. See
Goodman v. City of N.Y., 2024 WL 3532921, at *11 (S.D.N.Y.
July 25, 2024) (concluding a § 1983 claim for “unlawful
detention” arose under the Fourth Amendment and was best
considered as a “false arrest” § 1983 claim); see also Manuel
v. City of Joliet, Ill., 580 U.S. 357, 369 (2017).
*11 A “false imprisonment” claim is essentially a
reformulated “false arrest” claim. See Evans v. City of N.Y.,
308 F. Supp. 2d 316, 329 n.8 (S.D.N.Y. 2004), aff'd, 123 F.
App'x 433, 433–35 (2d Cir. 2005) (summary order) (“False
arrest is simply an unlawful detention or confinement brought
about by means of an arrest rather than in some other
way and is in all other respects synonymous with false
imprisonment.”) (internal citations omitted). Here, plaintiffs
allege that they were threatened with arrest. They do not say or
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suggest that they were, in fact, arrested. Therefore, the Court
will consider the alleged “wrongful confinement” claim as a
§ 1983 “false imprisonment” claim.
For such a claim, the Court looks to state law to determine the
requisite elements. Singleton v. New York City Police Dep't,
2021 WL 665032, at *5 (S.D.N.Y. Feb. 17, 2021). As the
elements under § 1983 are essentially the same as those under
New York law, the analysis is identical. Boyd v. City of N.Y.,
336 F.3d 72, 75 (2d Cir. 2003).
There are four essential elements of a false imprisonment
claim or, in this case, a “wrongful confinement” claim: (1)
defendants intended to confine plaintiffs; (2) plaintiffs were
conscious of the confinement; (3) plaintiffs did not consent to
the confinement; and (4) the confinement was not otherwise
privileged. D'Alessandro v. United States, 2024 WL 3759759,
at *6 (W.D.N.Y. Aug. 12, 2024).
Here, plaintiffs allege that “[t]he police...caused a Kaaterskill
tourist Trolley-bus to arrive [to] transport[ ] some of the
parents and children to the Heller property.” They assert that
“the Town Officers confined at least some of the plaintiffs to
the trolley[,]” and that “[d]espite their express objections on
Sabbath-violation grounds, [they] were confined to the trolley
for [the] trip to the Heller property[.]” Am. Compl. ¶¶ 118,
151 (emphases added).
No other information is provided.
Plaintiffs may use whatever verbs they prefer when crafting
their pleadings. But evocative verbiage alone is not sufficient
to nudge from conceivable to plausible. The plausibility of
these “wrongful confinement” claims depends on the alleged
actions the officers took to restrict plaintiffs’ corporeal
freedom. Plaintiffs cannot bootstrap their way to discovery by
simply repeating that they were allegedly confined and that
it was wrong for the officers to have allegedly done so. The
operative complaint's non-conclusory factual allegations fail
to give the Court any sense of what conduct is actually being
described.
These descriptors are thus conclusory. See, e.g., Chavez v.
Finney, 2022 WL 874716, at *8 (S.D.N.Y. Mar. 23, 2022)
(“[E]ven assuming plaintiff's use of the legal terms “stop” and
“confined” is intended to assert that he was confined prior to
his arrest, he fails to state any facts that would support those
conclusory assertions, such as describing physical restraint
or an order from [defendants] to remain in place.”); Beck v.
City of N.Y., 2014 WL 80544, at *3 (S.D.N.Y. Jan. 3, 2014)
(“Plaintiff's allegation that she ‘was confined by defendants,’
without more, is simply a legal conclusion.”).
Plaintiffs also allege that “[a]s a direct and proximate result
of the foregoing” they were “forced to board a vehicle
on their Sabbath[.]” Am. Compl. ¶ 155. As used in the
Amended Complaint, the Court finds that the verb “forced” is
conclusory for substantially the same reasons as “confined.”
Even if the Court found otherwise, it would make
little difference. The Amended Complaint does not allege
that either Officer Romito or Officer McCabe intended
to confine plaintiffs—thereby negating the first essential
element of the claim. Putting the intent requirement aside,
plaintiffs fail to state a claim for wrongful confinement:
“Plaintiffs...repeated[ly] object[ed] that boarding or traveling
in a trolley on the Sabbath was anathema.” Id. ¶ 153. That may
be true; plaintiffs may not have thought much of what they
saw as their available options. Still, at no point were plaintiffs
obligated or forced by defendants to board the trolley.
*12 For these reasons, plaintiffs’ “wrongful confinement”
claims against Officers Romito and McCabe are dismissed. 4
b. Removal and Exclusion
Plaintiffs do not allege an unlawful search. Therefore, as
with their confinement, the Court also considers whether
their removal and exclusion are cognizable “seizures” of their
persons. See Salmon v. Blesser, 802 F.3d 249, 252 (2d Cir.
2015).
A seizure occurs “when an officer, by means of physical force
or show of authority, in some way restrains the liberty of
a citizen.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968)) (internal alterations omitted). “To explain when a
sufficient ‘show of authority’ effects restraint, the Supreme
Court has relied on a totality-of-the-circumstances test, asking
whether a reasonable person would believe that he was ‘not
free to leave.’ ” Salmon, 802 F.3d at 252 (citing I.N.S. v.
Delgado, 466 U.S. 210, 215 (1984)). But where a person
lacks any desire to leave the location of a challenged police
encounter, the ‘free to leave’ test “may not be the best measure
of a seizure[.]” Salmon, 802 F.3d at 252 (citing Florida v.
Bostick, 501 U.S. 429, 434–36 (1991)).
The circumstances alleged here are not analogous to either
Bostick or Delgado—Officers Romito and McCabe were not
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looking to question or search plaintiffs. Nor were they seeking
to prevent plaintiffs from leaving the Hotel grounds. Rather,
the Town Officers actively sought plaintiffs’ departure. See
Salmon, 802 F.3d at 253.
Plaintiffs allege that they were removed and excluded from
the Bluebird by Officer Romito's threat of arrest. But
“[a] claim for threatened arrest, seizure or search is not
cognizable under the Fourth Amendment.” Dunkelberger v.
Dunkelberger, 2015 WL 5730605, at *15 (S.D.N.Y. Sept. 30,
2015) (quoting Wilson v. Fla. Dep't of Revenue, 2015 WL
136557, at *7 (N.D. Cal. Jan. 8, 2015)) (emphasis in original).
“Police officers frequently order persons to leave public areas:
crime scenes, accident sites, dangerous construction venues,
anticipated flood or fire paths, parade routes, areas of public
disorder, etc. A person may feel obliged to obey such an
order. Indeed, police may take a person by the elbow or
employ comparable guiding force short of actual restraint to
ensure obedience with a departure order. [Second Circuit]
precedent does not view such police conduct, without more,
as a seizure under the Fourth Amendment as long as the
person is otherwise free to go where he wishes.” Id.; see
Maxwell v. City of N.Y., 102 F.3d 664, 668 n.2 (2d Cir. 1996)
(“In Sheppard v. Beerman, 18 F.3d 147 (2d Cir.), cert. denied,
513 U.S. 816 (1994), we held that no Fourth Amendment
‘seizure’ took place when a fired court employee was escorted
from the courthouse. We reasoned that because the plaintiff
was free to go anywhere in the world, except the courthouse,
he had not been ‘seized.’ ”); see also Hamilton v. Vill. of
Oak Lawn, Ill., 735 F.3d 967, 972 (7th Cir. 2013) (Posner, J.)
(“[N]ot every expulsion is a confinement, let alone a seizure.
The police didn't touch [plaintiff]—didn't grab and fling her
from the house, which could be a form of seizure. They didn't
threaten her. They ordered her out, and she left. Had she
refused to go, they would have had to arrest her to get her out,
and we would have a different case.”).
*13 For these reasons, plaintiffs’ claims against Officers
Romito and McCabe of unlawful removal and exclusion are
also dismissed. Plaintiffs fail to plausibly state any claim for
relief under the Fourth Amendment against either defendant.
3. § 1983 Equal Protection Challenge
Construing the Amended Complaint liberally, it appears that
plaintiffs also intend to assert an Equal Protection claim based
on a theory of “selective treatment.” See Pls.’ Town Opp'n
at 19 (noting the clause requires “the government to treat
all similarly situated people alike” and citing a ‘selective
prosecution’ case as support); see generally LeClair v.
Saunders, 627 F.2d 606 (2d Cir. 1980).
A LeClair claim for selective enforcement requires plaintiffs
to allege that (i) they, compared with others similarly situated,
were selectively treated, and (ii) the selective treatment was
motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, to
punish or inhibit the exercise of constitutional rights, or by a
malicious or bad-faith intent to injure the person. Hu v. City
of N.Y., 927 F.3d 81, 94 (2d Cir. 2019).
Plaintiffs, to satisfy the first element, “must identify ‘a
comparator who received more favorable treatment from
the defendants.’ ” Murphy v. City of N.Y., 719 F. Supp. 3d
357, 371 (S.D.N.Y. 2024) (quoting Hu, 927 F.3d at 91).
“[T]he plaintiff's and comparator's circumstances must bear
a reasonably close resemblance though they need not be
‘identical.’ ” Brown v. Daikin Am. Inc., 756 F.3d 219, 230
(2d Cir. 2014). Put differently, plaintiffs must show that
they were similarly situated in all material respects to the
individuals with whom they seek to compare themselves.
Jeanty v. Sciortino, 669 F. Supp. 3d 96, 115 (N.D.N.Y. 2023)
(Sannes, C.J.).
If plaintiffs intended to present comparators, they do not
say so, nor whom. Plaintiffs may have sought to compare
themselves to the parents of the two ‘tumble-saulting’
children or, perhaps, the guests who played loud music
while they packed on Saturday night. Even if the Court
were to accept these as appropriate comparators, one could
only argue they received more favorable treatment from the
Hotel defendants—not from Officers McCabe and Romito.
As alleged, at no point did the officers interact with either
group of possible comparators. In fact, the Complaint does
not suggest that the officers interacted with anyone except the
plaintiffs and other defendants that weekend.
Because plaintiffs fail to identify any comparator who
received more favorable treatment from Officers McCabe and
Romito, they fail to state a claim for selective enforcement.
Accordingly, plaintiffs’ Equal Protection claims against
Officers McCabe and Romito are dismissed.
4. § 1983 Free Exercise Challenge
The Free Exercise Clause of the First Amendment states that
“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof[.]” U.S.
CONST. amend. I; see Cantwell v. Connecticut, 310 U.S.
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296, 303 (1940) (incorporating the clause against the states).
The clause “protects an individual's private right to religious
belief, as well as ‘the performance of (or abstention from)
physical acts that constitute the free exercise of religion.’
” Kane v. De Blasio, 19 F.4th 152, 163–64 (2d Cir. 2021)
(quoting Cent. Rabbinical Cong. of U.S. & Canada v. New
York City Dep't of Health & Mental Hygiene, 763 F.3d 183,
193 (2d Cir. 2014)).
*14 When making a Free Exercise Clause claim, a plaintiff
“generally must establish that the object of the challenged
law is to infringe upon or restrict practices because of their
religious motivation, or that its purpose is the suppression of
religion or religious conduct.” Collins v. City Univ. of N.Y.,
2023 WL 1818547, at *7–8 (S.D.N.Y. Feb. 8, 2023) (quoting
Okwedy v. Molinari, 69 F. App'x 482, 484 (2d Cir. 2003)
(summary order)) (internal alterations omitted). “Importantly,
the protections granted under the Free Exercise clause ‘do
not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability.’ ” Collins, at
*8 (citing Emp. Div., Dep't of Hum. Res. of Oregon v. Smith,
494 U.S. 872, 879 (1990)). “Where the government seeks to
enforce a law that is neutral and of general applicability...it
need only demonstrate a rational basis for its enforcement,
even if enforcement of the law incidentally burdens religious
practices.” Id. (quoting Fifth Ave. Presbyterian Church v. City
of N.Y., 293 F.3d 570, 574 (2d Cir. 2002)). “The Free Exercise
Clause does not relieve an individual of the obligation to
comply with a valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).” Id. (quoting Cent.
Rabbinical Cong., 763 F.3d at 193).
Plaintiffs purportedly levy Free Exercise violations against
Officers Romito and McCabe. See Am. Compl. ¶ 170
(“Plaintiffs had a right to be and remain on the Hotel
premises and in their paid rooms; to exercise their religious
freedoms; [and] to have their rights to the free exercise of their
religion protected without unreasonable interference[.]”). But
as ever, plaintiffs are coy about discussing any particulars.
When pressed by defendants, plaintiffs provide the below
elaboration in their opposition memoranda:
The Town Officers, acting jointly with the Hotel, required
Plaintiffs to violate the dictates of their religion[.]
[...]
“First Amendment rights may be curtailed only by the least
drastic means.” United States v. Kahane, 396 F. Supp. 687,
699 (E.D.N.Y. 1975), mod. sub nom. Kahane v. Carlson,
527 F.2d 492 (2d Cir. 1975) (citing Cantwell, 310 U.S. at
303). Any limitation on the exercise of religious freedoms
must be as narrow as practicable and clearly related to
an appropriate governmental need. United States v. Pablo
Hernandez, 209 F. Supp. 3d 542, 546 (E.D.N.Y. 2016).
The Town Officers had no legitimate need to require
Plaintiffs to leave the hotel. Plaintiffs suggested any
number of less restrictive actions that would have avoided
forcing Plaintiffs to break the Sabbath.
Pls.’ Town Opp'n at 19–20.
Nowhere do plaintiffs proffer any statute, law, regulation,
court order, or the like on which they base these Free Exercise
claims. Plaintiffs reference Kahane, which concerned an
imprisoned orthodox rabbi seeking enforcement of a court
order that he be placed in a correctional setting where he
could obtain kosher foods and comply with other reasonable
religious requirements. See Kahane, 396 F. Supp. at 689.
Yet even the excerpt of Kahane quoted by plaintiffs, “First
Amendment rights may be curtailed only by the least drastic
means[,]” is immediately followed therein by two Supreme
Court case citations: United States v. Robel, 389 U.S. 258, 268
(1967) and Shelton v. Tucker, 364 U.S. 479, 488 (1960). Both
concerned constitutional challenges to statutes that potentially
violated the Free Exercise clause. 5
*15 Hernandez, which plaintiffs also cite, is similarly off
base. There, a magistrate judge ordered 6 a post-release
condition forbidding the defendant—a parolee convicted
for receiving child pornography—from “attend[ing] church
services where minors [were] present.” 209 F. Supp. 3d
at 544. In vacating the parole condition, the district court
emphasized that “conditions of supervised release must be
‘narrowly tailored to serve a compelling government interest’
so as not to unnecessarily deprive a defendant of his liberty.”
Id. at 545 (quoting United States v. Reeves, 591 F.3d 77,
82–83 (2d Cir. 2010)). Moreover, in its review, the district
court noted the parole condition “touche[d] on two interests
protected under the First Amendment: the right to associate
and the right to exercise religion.” And that, citing Kahane,
“[l]imitations must affect prisoners and parolees with the least
denigration of the human spirit and mind consistent with
the needs of a structured correctional society.” Hernandez,
209 F. Supp. 3d at 546. The court held that “no compelling
government interest justifies prohibiting attending religious
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services where a minor is present,” taking judicial notice “that
minors are frequently present” at such services. Id.
Plaintiffs do not identify a governmental law, regulation,
order, ordinance, or otherwise on which they wish to base
their Free Exercise claims. True, they touch on the state's
trespassing statute, see N.Y. Penal Law §§ 140.00, 140.05, in
their opposition papers. But they do not do so to attack the
law's validity or general applicability: “To be clear, Plaintiffs
do not claim that they are immune from trespass under Penal
Law § 140.05.” Pls.’ Town Opp'n at 22. Even if plaintiffs had
managed to meet these basic requirements, they give no hint
about, let alone plausibly allege, how Officers McCabe and
Romito factor into or might be liable under this constitutional
provision. Plaintiffs fail to state an Equal Protection claim in
any cognizable form.
After thorough consideration, the Court holds that plaintiffs
fail to state any § 1983 claim against Officers McCabe and
Romito. Accordingly, Count II is dismissed in its entirety.
iii. § 1983 Individual Liability of Rachel Haines and
Jacqueline Gordon
The Court now turns to the first of the claims against the
Hotel defendants. Count I is alleged against Rachel Haines
and Jacqueline Gordon for their purported “[v]iolation of 42
U.S.C. § 1983[.]” See Am. Compl. at 15.
“Section 1983 provides remedies for violations of federal
statutory and constitutional rights only by persons acting
under color of state law.” Thompson v. City of N.Y., 2024
WL 1216534, at *5 (S.D.N.Y. Mar. 21, 2024), aff'd, 2024
WL 4586530 (2d Cir. Oct. 28, 2024). This requirement, that
a defendant act under ‘color of law,’ means that the typical
§ 1983 claim is brought against state and local government
officials and entities, not against private individuals or
entities. Private actors “may only be held liable under § 1983
where the conduct at issue constitutes ‘state action’[—]which
only occurs where the challenged action of a private party is
‘fairly attributable’ to the state.” Hulett v. City of Syracuse,
253 F. Supp. 3d 462, 504 (N.D.N.Y. 2017) (Hurd, J.) (citing
Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir.
2010)).
“Courts in the Second Circuit lack a single test to identify state
actors, and instead three main tests have emerged[.]” Mumin
v. City of N.Y., 760 F. Supp. 3d 28, 66 (S.D.N.Y. 2024). A
private entity's action is fairly attributed to the state: “(1) when
the entity acts pursuant to the coercive power of the state or
is controlled by the state (‘the compulsion test’); (2) when
the state provides significant encouragement to the entity, the
entity is a willful participant in joint activity with the state,
or the entity's functions are entwined with state policies (‘the
joint action test’ or ‘close nexus test’); [and] (3) when the
entity has been delegated a public function by the state (‘the
public function test’).” Barrows v. Becerra, 24 F.4th 116, 135
(2d Cir. 2022) (quoting Fabrikant v. French, 691 F.3d 193,
207 (2d Cir. 2012)). “Each of the three avenues requires a
fact-specific inquiry into the challenged conduct, and in order
to find state action, a court must determine that the specific
actions of which a plaintiff complains can be fairly deemed
to be that of the state.” Berlin v. Jetblue Airways Corp., 436
F. Supp. 3d 550, 563 (E.D.N.Y. 2020).
*16 Here, plaintiffs allege that “[i]n the course of her
employment for the Hotel[,] Rachel [Haines] reached
an...agreement with Sgt. Haines, that empowered her
to deploy the police to deny the Hotel's services and
accommodations to Jewish guests, at her discretion.” Am.
Compl. ¶ 135. Plaintiffs also allege that “[u]sing her special
relationship and agreement with Sgt. Haines and his access
to police power[,] Rachel [Haines] caused Plaintiffs to
be subjected to the deprivation of their rights, privileges
or immunities secured by the Constitution, including the
Fourteenth Amendment, in violation of 42 U.S.C. § 1983.”
Id. ¶ 137. Additionally, plaintiffs allege that “[b]ecause
of her connection to [R]achel, [J]ackie [Gordon] had the
same access to the police power, and used that power to
subject Plaintiffs to the deprivation of their rights, privileges
or immunities secured by the Constitution, including the
Fourteenth Amendment, in violation of 42 U.S.C. § 1983.”
Id. ¶ 138.
The remainder of Count I states as follows:
Plaintiffs had the right to remain in the
public areas of the Hotel premises and
in their paid rooms, including the right
to practice their religion there without
state interference. Because they were
Jews Plaintiffs were treated differently
from other guests at the Hotel, were
lumped together because they were
Jews, were all held responsible for
alleged infractions of a few unnamed
individuals, and were blamed for
the conduct of guests whom they
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did not even know. In violation of
their rights, Plaintiffs were forced
to break their Sabbath at significant
spiritual and emotional cost, and were
otherwise damaged. By reason of the
foregoing, defendants Manager Rachel
and Manager Jackie are liable to the
Plaintiffs for all of their damages in
amounts be determine at trial.
Am. Compl. ¶¶ 139–42.
Nowhere in the above excerpt do plaintiffs state that any
of these (largely conclusory) actions were undertaken by
Haines or Gordon—merely that, regardless of whoever did
them, the two defendants are liable. Count I, “like many
other counts in the Amended Complaint, [is] the sort...that
illustrates plaintiffs’ utter disrespect for Rule 8—It sets forth
a potpourri of vague and conclusory allegations that...are not
explicitly linked to any specific factual assertions[.]” Coakley
v. Jaffe, 49 F. Supp. 2d 615, 625 (S.D.N.Y. 1999), aff'd, 234
F.3d 1261 (2d Cir. 2000).
Even considering plaintiffs’ unsupported assertions of a
marriage-based antisemitic agreement between the Haines,
plaintiffs do not come close to plausibly alleging that Rachel
Haines or Gordon acted under color of state law. Once again,
plaintiffs rely on nothing more than equivocal verbiage in
an attempt to state a claim: “Rachel caused Plaintiffs to
be subjected to[,]” and Gordon “used [Rachel's] power to
subject plaintiffs to[,] the deprivation of their rights[.]” Am.
Compl. ¶¶ 137–38 (emphases added). Paragraph 135 of the
Amended Complaint does not provide support for this claim
either: Beyond being nonspecific and conclusory, it only
alleges that Haines was “empowered...to deploy the police to
deny...Jewish guests” in an abstract sense—not that she did
so here. These are threadbare legal conclusions. They do not
and cannot support a plausible claim.
Plaintiffs have presented nothing that could lead the Court to
infer that the Hotel defendants were willful participants in a
joint scheme with the Town defendants. “[M]erely conclusory
allegation[s] that a private entity acted in concert with a state
actor does not suffice to state a § 1983 claim against the
private entity.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324 (2d Cir. 2002).
Further, Plaintiffs contend in their opposition papers that
“Rachel and Jackie lied to the police.” Pls.’ Hotel Opp'n,
Dkt. No. 51 at 28. “In our case, Plaintiffs allege that Jackie,
acting jointly with and at the direction of Rachel, the wife of
the police chief, fabricated pretextual claims—e.g., lied about
noise, about their children jumping on furniture, and about
singing until 2:00 a.m.—and did so with the specific intent of
causing the police to remove Plaintiffs from their paid rooms
at the hotel against their rights. The actions of Jackie and
Rachel constitute state action, regardless of whether the police
officers shared their improper purpose.” Id. at 17.
*17 Yet the Court finds it difficult to identify any specific
allegation in the Complaint that Haines or Gordon made false
statements to Officers McCabe or Romito with the intent to
deceive the officers and thereby induce them to take official
action. Instead, the Complaint appears, rather consistently, to
assert that all the individual defendants were co-conspirators
in a scheme to deprive plaintiffs of their rights. See, e.g.,
Am. Compl., Dkt. No. 37, ¶ 177 (“Manager Rachel, Manager
Jackie, Sgt. Haines, and each of the Town Officers...had
knowledge of the wrongs conspired to be done[.]”); Id.
¶ 180 (“Defendants, themselves, by their departments,
agents, and employees, were reckless, careless and negligent
in...colluding and conspiring with Manager Haines...to evict
and exclude Plaintiffs[;]...inventing and abiding false pretexts
and pretenses; reiterating pretexts asserted by others; failing
to question the pretexts...undertaking the police conduct in
bad faith...the Town Officers knowingly acted in a manner
likely to be injurious...[and] caused Plaintiffs [to] sustain
the harm of being treated like the victims of a pogrom or
the Holocaust[.]”); Id. ¶ 169 (“At least one or more of the
Police Officers conspired with Manager Rachel, the then-
undisclosed spouse of Sgt. Haines, of the Town police, to
remove, vacate, evict or dispossess Plaintiffs[.]”).
Regardless, plaintiffs are incorrect: under any non-conclusory
reading of the pleadings, the mere provision of information
to law enforcement—whether true or false—does not, by
itself, plausibly establish that Haines or Gordon acted under
color of state law. See Cheruvu v. HealthNow New York,
Inc., 2023 WL 3443362, at *2 (2d Cir. May 15, 2023)
(“[T]he complaint asserts that defendants acted under color
of state law by furnishing allegedly ‘false information’ to
law-enforcement agencies[,] [b]ut the law is clear that the
provision of information to law-enforcement agencies does
not by itself make a private party a joint participant in state
action under section 1983.”) (internal alterations and citations
omitted); see also Betts v. Shearman, 751 F.3d 78, 84 (2d Cir.
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2014) (“Betts's claim against Shearman as a state actor boils
down to the fact that he was arrested upon the false accusation
of assault made against him by a private citizen to the police.
This is insufficient to state a plausible claim that Shearman
and the arresting officers shared a common goal of violating
Betts's rights. The district court properly granted defendant
Shearman's motion to dismiss.”).
Accordingly, Count I is dismissed in its entirety.
iv. Individual Liability under §§ 1985 and 1986
Plaintiffs present their § 1985 claim “[a]gainst the Individual
Defendants” and their § 1986 claim “[a]gainst Manager
Rachel, Manager Jackie, Sgt. Haines, and the Police
Officers[.]” See Am. Compl. at 20, 21. From the contents of
the § 1986 claim, it can be inferred that “Police Officers”
is used synonymously with “Town Officers,” i.e., Officers
McCabe and Romito. See id. ¶¶ 176–78. The Court infers the
same for the § 1985 claim.
Section 1985 prohibits various conspiracies and consists of
three subsections. See 42 U.S.C. § 1985. The first, § 1985(1),
“is designed to provide a remedy against conspiracies that
interfere with the performance of official duties by federal
officers.” Affrunti v. Zwirn, 892 F. Supp. 451, 455 n.4
(E.D.N.Y. 1995), aff'd, 100 F.3d 943 (2d Cir. 1996) (citing
Kush v. Rutledge, 460 U.S. 719, 724 (1983)); see, e.g., Jordan
v. Quiros, 2024 WL 5112002, at *4 (D. Conn. Dec. 13, 2024).
Section 1985(2) and 1985(3) “provide causes of action based
on conspiracies intending to violate a plaintiff's civil rights.”
Jordan v. Dep't of Corr., 2024 WL 5112001, at *5 (D. Conn.
Dec. 13, 2024). “The civil remedy for a violation of any of the
[three] subsections is found at the end of § 1985(3).” Kush,
460 U.S. at 724.
Count IV of the Complaint states that “[t]he due course of
justice was impeded, hindered, obstructed, or defeated by
the actions of two or more of the individual defendants who
conspired with intent to deny Plaintiffs the equal protection
of the laws...[and] to injure Plaintiffs for lawfully enforcing,
or attempting to enforce, the right of one or more of the
plaintiffs to the equal protection of the laws[.]” Am. Compl.,
Dkt. No. 37 at 20–21. This language is taken nearly verbatim
from the final clause of § 1985(2). “[I]f two or more persons
conspire for the purpose of impeding, hindering, obstructing,
or defeating, in any manner, the due course of justice in any
State or Territory, with intent to deny to any citizen the equal
protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the
laws[.]” 42 U.S.C. § 1985(2).
*18 Plaintiffs also assert—twice—in Count IV of the
operative Complaint that “such conduct is covered by 42
U.S.C. § 1985(2).” Am. Compl. ¶ 171, ¶ 173. The claim
concludes, “[b]y reason of the foregoing, each of the
individual defendants who so conspired is liable to Plaintiffs
for the injuries, deprivations and damages caused by any
of such defendants pursuant to 42 U.S.C. § 1985(3).” Am.
Compl. ¶ 174.
To reiterate: as pleaded, plaintiffs allege that defendants
violated § 1985(2) and, as a result, plaintiffs are entitled to a
civil remedy. But “[t]he gist of the wrong at which § 1985(2)
is directed is...intimidation or retaliation against witnesses
in...court proceedings.” Haddle v. Garrison, 525 U.S. 121,
125 (1998); see, e.g., Bell v. New York State Dep't of Corr. &
Cmty. Supervision, 2019 WL 1305809, at *11 (N.D.N.Y. Mar.
22, 2019) (Hurd, J.) (dismissing plaintiff's claim for failing
to allege he was a party or witness to a pending federal court
matter); Empire Merchants, LLC v. Reliable Churchill LLP,
2017 WL 7512900, at *1 (E.D.N.Y. Jan. 30, 2017) (holding
that plaintiff failed to state a claim as § 1985(2) is “a civil
rights statute designed to protect the rights of parties and
witnesses to federal proceedings”); Johnson v. Comm'n on
Hum. Rts. & Opportunities, 2024 WL 3649743, at *2 n.4 (D.
Conn. July 8, 2024) (specifying the second subsection of §
1985 “concerns conspiracies intending to deter ‘any party or
witness’ from participating in state or federal proceedings”).
In their opposition papers, plaintiffs attempt to rewrite Count
IV. Responding to the Hotel defendants’ dismissal motion,
plaintiffs maintain that they alleged the group of defendants
engaged in both a § 1985(2) and a § 1985(3) conspiracy. See
Pls.’ Hotel Opp'n at 23 (“Plaintiffs has alleged that Jackie
and Rachel engaged in a conspiracy in violation of § 1985(3).
Plaintiffs allege 1) an agreement; 2) that Jackie and Rachel
targeted Plaintiffs’ right to practice their religion, impeded
their right to the equal protection of the laws; 3) and that
they acted with an invidious discriminatory animus.”); id.
at 24–25 (“Plaintiff thus alleged...the due course of justice
was impeded, hindered, obstructed, or defeated by the actions
of two or more defendants, who conspired with intent to
deny to Plaintiffs the equal protection of the laws, and such
conduct is covered by 42 U.S.C. § 1985(2)”) (citing Amended
Complaint paragraphs 171 through 173 specifically).
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Yet in their response to the Town defendants’ motion
(filed only two days after plaintiffs’ response to the Hotel
defendants), plaintiffs maintain they “alleged that Rachel
engaged in a conspiracy with Sgt. Haines, and the Town
Officers under his command, in violation of § 1985 (3)[,]”
omit the above language on § 1985(2), recharacterize Count
IV as simply a general § 1985 claim and—despite quoting
directly from the second subsection in both briefs—remove
reference to § 1985(2) in the ‘List of Statutes and Other
Authorities.’ See Pls.’ Town Opp'n at 6, 25.
The Court will not entertain this duplicity. Nothing in the
Amended Complaint indicates a connection between the facts
and harms alleged and any underlying judicial proceeding.
§ 1985(2) does not apply. See, e.g., Thompson, 2024 WL
1216534, at *8; Bird v. Cnty. of Westchester, 2022 WL
2263794, at *10 (S.D.N.Y. June 23, 2022) (citing Morgan
v. Dzurenda, 2016 WL 6826156, at *4 (D. Conn. Nov. 18,
2016)).
*19 Count IV is dismissed.
Section 1986 does not provide substantive rights. See
Morgan, 2016 WL 6826156, at *6. “A § 1986 claim must be
predicated upon a valid § 1985 claim.” Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)
(citing Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir.), cert.
denied, 436 U.S. 906 (1978)). Because, as discussed above,
plaintiffs do not state a § 1985 claim, their § 1986 claim is
also not actionable. Therefore, Count V is dismissed.
v. § 1983 Municipal Liability
Count III is a Monell claim against Sgt. Haines and the Town
of Hunter for “[f]ailure to [s]upervise and [t]rain[.]” See Am.
Compl. at 18–20.
“Monell does not provide a separate cause of action for
the failure by the government to train its employees; it
extends liability to a municipal organization where that
organization's failure to train, or the policies or customs
that it has sanctioned, led to an independent constitutional
violation.” Segal v. City of N.Y., 459 F.3d 207, 219 (2d
Cir. 2006). The Court has already explained that respondeat
superior is inapplicable to § 1983 claims. Sergeant Haines
and the Town of Hunter may not be held liable for the alleged
conduct of Officers McCabe and Romito solely on such a
theory. See Palmer v. City of N.Y., 564 F. Supp. 3d 221,
252 (E.D.N.Y. 2021) (“A municipality and its supervisory
officials may not be held liable under § 1983 ‘for the conduct
of a lower-echelon employee solely on the basis of respondeat
superior.’ ”) (quoting Ricciuti v. N.Y. City Transit Auth., 941
F.2d 119, 122 (2d Cir. 1991)).
Regardless, “[t]he Court need not and does not consider
whether plaintiffs’ allegations are sufficient to give rise
to municipal liability for any of the underlying alleged
constitutional violations claimed by plaintiffs because
plaintiffs have failed to plead an underlying constitutional
violation by a state actor.” Blanco v. Success Acad. Charter
Sch., Inc., 722 F. Supp. 3d 187, 227 (S.D.N.Y. 2024).
Therefore, Count III is dismissed.
B. State Claims 7
i. Negligent Infliction of Emotional Distress
Plaintiffs label Count VI as a claim for negligent infliction
of emotional distress (“NIED”) against all defendants. Am.
Compl. at 22. “To plead a[n] [NIED] claim under New
York law, a plaintiff must allege (1) a breach of a duty
owed to the plaintiff; (2) emotional harm; (3) a direct causal
connection between the breach and the emotional harm; and
(4) circumstances providing some guarantee of genuineness
of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d
67, 81 (2d Cir. 2021). “To establish the fourth element, [a]
plaintiff generally must plead that the breach endangered
[their] physical safety or caused him to fear for his physical
safety.” Id. n.57 (2d Cir. 2021).
*20 Plaintiffs’ NIED claim “consists primarily of a single
run-on sentence that spans nearly two full pages of their
Amended Complaint but is devoid of factual detail and
is, frankly, incomprehensible.” Rice v. City of N.Y., 275 F.
Supp. 3d 395, 407 (E.D.N.Y. 2017); see Am. Compl. ¶
180. “Specifically, it does not clearly indicate which of the
numerous defendants in this action were allegedly negligent,
whether they owed any duty to the plaintiffs, or which of their
actions constituted a breach.” Rice, 275 F. Supp. 3d at 407–
08. “These inadequacies are particularly striking where, as
here, plaintiffs are represented by counsel and have already
amended their Complaint.” Id. at 408.
Because Count VI neither complies with Rule 8, nor gives
defendants fair notice of the claim asserted, nor states a claim
for negligent infliction of emotional distress, it is dismissed.
ii. Intentional Infliction of Emotional Distress
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Count VII claims intentional infliction of emotional distress
(“IIED”) by defendants Rachel Haines and Jacqueline
Gordon. Am. Compl. at 24. To state an IIED claim, a party
must allege “(1) extreme and outrageous conduct, (2) intent
to cause severe emotional distress, (3) a causal connection
between the conduct and the injury, and (4) severe emotional
distress.” Bender v. City of N.Y., 78 F.3d 787, 790 (2d Cir.
1996) (citing Howell v. New York Post Co., 81 N.Y.2d 115,
121 (1993)).
The bar for pleading IIED “is extremely high, and this highly
disfavored cause of action is almost never successful.” Sesto v.
Slaine, 171 F. Supp. 3d 194, 201–02 (S.D.N.Y. 2016) (quoting
Guan N. v. N.Y. City Dep't of Educ., 2013 WL 67604, at
*25 (S.D.N.Y. Jan. 7, 2013)). “As a result, ‘such claims are
routinely dismissed on pre-answer motion.’ ” Medina v. City
of N.Y., 2020 WL 7028688, at *13 (S.D.N.Y. Nov. 30, 2020)
(internal citations omitted).
Plaintiffs allege that “Rachel [Haines] relied on the Town
police as their [sic] private security force [and] abused her
position, her connection to Sgt. Haines, the justice system,
and the time of public servants, including the police.”
Am. Compl. ¶¶ 186, 188. They also allege Haines’ and
Gordon's conduct “was extreme and outrageous[,] vindictive,
inhumane, and unacceptable in society[;] was deliberate
and intended to cause severe emotional distress, or was...in
disregard of a substantial probability of causing such distress,
and caused Plaintiffs to sustain injury, including spiritual and
emotional distress.” Id. ¶¶ 184, 187, 189.
These allegations are conclusory. They also fail to plausibly
allege the defendants engaged in any wrongful conduct, let
alone any extreme and outrageous conduct. As such, Count
VII is dismissed.
iii. New York State Human Rights Law
Count VIII claims that all defendants have violated New York
Executive Law § 296. Am. Compl., Dkt. No. 37 at 25. Count
IX claims the Hotel defendants violated New York Civil
Rights Law § 40. Am. Compl., Dkt. No. 37 at 27. The New
York State Human Rights Law (“NYSHL”) is “comprised of
the New York Executive Law §§ 292 et seq. (which provides
the substance of the law) and the New York Civil Rights Law
§§ 40 et seq. (which provides for penalties).” New Hope Fam.
Servs., Inc. v. James, 2022 WL 4494277, at *8 (N.D.N.Y.
Sept. 28, 2022) (D'Agostino, J.); see Andrews v. Blick Art
Materials, LLC, 268 F. Supp. 3d 381, 399–400 (E.D.N.Y.
2017) (citing de la Rosa v. 597 Broadway Dev. Corp., 2015
WL 7351540, *17 n.16 (S.D.N.Y. Aug. 4, 2015) (employing
the “collective term NYSHRL” in reference to both statutes));
see also Ganzy v. Allen Christian Sch., 995 F. Supp. 340, 350
(E.D.N.Y. 1998) (“Facts sufficient to sustain a cause of action
under New York Executive Law § 296 will support a cause of
action under § 40-c of the Civil Rights Law”).
*21 Plaintiffs assert intentional discrimination by
defendants under several § 296 provisions. See Am. Compl.
at 25 (listing N.Y. Exec. Law § 296(2)(a), 296(5)(b),
and 296(6) as bases for the claim). The standard for
intentional discrimination under § 296 is identical to that
for claims of discrimination under 42 U.S.C. § 1981. Clark
v. City of N.Y., 2014 WL 4804237, at *4 (E.D.N.Y. Sept.
25, 2014). To establish a § 1981 claim, plaintiffs must
plausibly allege facts sufficient to support a showing that: (1)
plaintiffs are members of a protected class; (2) defendants
acted with intent to discriminate against plaintiffs; and (3)
defendants’ discriminatory act(s) concerned a contractual
activity enumerated under the statute. Clark, 2014 WL
4804237, at *2 (citing Mian v. Donaldson, Lufkin & Jenrette
Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam))).
New York Civil Rights Law § 40 also requires that defendants
act with the intent to discriminate against plaintiffs. See
NYCRL § 40 (prohibiting discriminatory conduct “on
account of” an individual's protected class).
Moreover, “[t]o make out a claim against an individual
defendant under the NYSHRL a plaintiff must either show
direct, personal involvement in discriminatory conduct, or
that the defendant ‘aided and abetted’ the discrimination
or retaliation at issue, i.e., that the defendant ‘encouraged,
condoned or approved’ it.” Plasencia v. City of N.Y. Dep't
of Educ., 2023 WL 6161928, at *3 (S.D.N.Y. Sept. 21,
2023) (quoting Zambrano-Lamhaouhi v. New York City Bd.
of Educ., 866 F. Supp. 2d 147, 162–63 (E.D.N.Y. Nov. 21,
2011)).
Plaintiffs have not plausibly alleged discrimination
perpetuated by defendants—intentional or otherwise.
Assuming momentarily that plaintiffs have established
discrimination by the Hotel defendants, plaintiffs have still
not sufficiently alleged that any Town defendant aided or
abetted it.
Furthermore, NYCRL § 41—which provides the penalty
for violation of § 40—requires that, “at or before the
commencement of any action under this section, notice
thereof shall be served upon the attorney general.” NYCRL
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§ 41. “The failure to comply with the notice provisions of
New York Civil Rights Law Article 4 is fatal to a private
action under that Article.” Feacher v. Intercontinental Hotels
Grp., 563 F. Supp. 2d 389, 407 (N.D.N.Y. 2008) (McAvoy,
J.). During oral argument, Plaintiffs told the Court that they
had not provided such notice.
Counts VIII and IX are dismissed.
iv. Criminal Harassment under New York law
Oddly, Count X alleges that defendants Gordon and Romito
violated New York's criminal statutes for first-degree and
second-degree harassment, and, as a result, plaintiffs seek
reprieve here. See Am. Compl. at 28 (citing N.Y. Penal
Law § 240.25 and 240.26). Private citizens, however, cannot
prosecute criminal actions in federal court. Taylor v. Enter.
Holding Grp., LLC, 2020 WL 5634266, at *3 (S.D.N.Y. Sept.
18, 2020).
In their opposition papers, plaintiffs try to reframe Count X
as pleading a claim for negligence per se. Pls.’ Hotel Opp'n at
30; Pls.’ Town Opp'n at 28. In support, they highlight that the
claim asserts defendants committed “a tort of negligence and
intentional infliction of emotional distress[.]” Am. Compl. ¶
212. These are not the same.
Plaintiffs do not present a legally cognizable claim: Count X
is dismissed.
v. “Respondeat Superior” Liability
Count XI is a claim for “respondeat superior” liability. 8 Am.
Compl. at 28–29. “Respondeat superior...is not a separate
cause of action, but rather is a doctrine that permits the
imputation of liability on a principal or employer for the
act of an agent or employee.” Clarke v. Antonini, 2024 WL
1347578, at *10 (S.D.N.Y. Mar. 29, 2024) (quoting Biberaj v.
Pritchard Indus., Inc., 2009 WL 10738222, at *16 (S.D.N.Y.
Sept. 28, 2009)); see also Biswas v. City of N.Y., 973 F.
Supp. 2d 504, 540 (S.D.N.Y. 2013) (citing Donelli v. Cnty. of
Sullivan, 2009 WL 2365551, at *12 n.10 (S.D.N.Y. July 31,
2009)). Thus, Count XI is dismissed.
C. Leave to Amend
*22 Leave to amend a complaint should be freely given
when justice so requires. FED. R. CIV. P. 15(a)(2). It
is within the district court's sound discretion to grant or
deny such leave. See McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007). Leave may properly be
denied for “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment[,]” or the like. Ruotolo v. City of N.Y.,
514 F.3d 184, 191 (2d Cir. 2008).
At the conclusion of the oral argument, plaintiffs alluded 9 to
a request for leave to amend, citing the existence of other facts
that they could add. Plaintiffs have already had an opportunity
to cure the defects in their Complaint. They did not do so.
While plaintiffs assert the existence of further facts that could
supplement their pleadings, they have not revealed what these
facts are, why they have not already incorporated them or
sought leave to do so, or how such facts would cure the
deficiencies already identified and further outlined in this
opinion. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir.
2011).
Additionally, during oral argument, Plaintiffs stated that
“outside the record,” they possessed evidence of an
unspecified prior incident involving other Jewish guests at
the Hotel. The relevance of this alleged event to the matter,
or even the smallest detail about it, was not provided. In
any case, this is not a new factual allegation. Plaintiffs
included the same vague, blanket assertion in their Amended
Complaint. See Am. Compl. ¶ 163 (“Upon information and
belief...the Hotel had previously caused others to be evicted
or threatened to [be] evicted, including persons who were
obviously or apparently religious Jews, from the Hotel, at the
direction of Manager Rachel.”).
It is apparent that plaintiffs could not amend their pleading in
good faith or accordance with Federal Rule of Civil Procedure
11.
Accordingly, the Court declines to grant leave to amend.
V. CONCLUSION
Plaintiffs have set forth a plethora of allegations; however,
upon closer examination, their claims ultimately lack genuine
substance.
Therefore, it is
ORDERED that
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1. The Hotel defendants’ motion (Dkt. No. 41) is
GRANTED;
2. The Town defendants’ motion (Dkt. No. 45) is
GRANTED;
3. Plaintiffs’ Amended Complaint is DISMISSED WITH
PREJUDICE;
4. Defendants’ Motions to Dismiss (Dkt. Nos. 20, 24) are
DENIED AS MOOT.
The Clerk of Court is directed to terminate the pending
motions (Dkt. Nos. 20, 24, 41, 45), enter a judgment
accordingly, and close the case.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1651154
Footnotes
1 The following factual assertions are taken from plaintiffs’ First Amended Complaint (“Am. Compl.”), Dkt. No.
37.
2 See, e.g., Pls.’ Town Opp'n at 25 (“Plaintiffs have alleged that Rachel engaged in a conspiracy with Sgt.
Haines, and the Town Officers under his command...to deprive Plaintiffs of their rights because Rachel
wanted it done, and everyone agreed.”); Am. Compl. ¶ 113 (“The Town Officers did not contravene Manager
Rachel's alleged instructions[.]”); Am. Compl. ¶ 112 (“The Town Officers were part of the conspiracy or
complicit in it.”); Pls.’ Town Opp'n at 21 (“Given the incestuous relationship between the hotel and the Town
police, it is not unreasonable to infer that the Town Officers who served under Sgt. Haines command, when
they operated at his wife's hotel, would do as she directed, as though the direction came from him.”); Pls.’
Town Opp'n at 10 (“[H]aving received their marching orders, the Town Officers went to work, doing as Rachel
directed.”); Pls.’ Town Opp'n at 21 (“From the Town Officers’ blind obedience to Rachel's orders, it can be
inferred that something more was at play than met the eye. That something was, of course, that Rachel and
Sgt. Haines were married and that, as a result, the officers...were going to do as Rachel said regardless
of the facts.”); Pls.’ Town Opp'n at 11 (“Contrary to [defendants’] argument, the [Town] [O]fficers’ refusal to
state what hotel rule was allegedly violated does not make the [Town] [O]fficers impartial moderators. Rather,
their failure to respond was an admission that no such rules existed, and that they were going to do as the
manager directed regardless of the underlying facts.”).
3 Given that the only removal method alleged in the Amended Complaint is Officer Romito's threat of arrest,
the Court will assume plaintiffs contend such a “removal” constitutes a violation their Fourth and Fourteenth
Amendment rights.
4 At the May 29, 2025 oral argument on the instant motions, in response to a request for clarification of their
assertions that the officers had “confined” them, plaintiffs explained that they were “confined” to every location
except their respective hotel rooms—only to then insist that use of the term was irrelevant, as they were not
claiming false arrest.
5 See Robel, 389 U.S. at 268 (“Our decision today simply recognizes that, when legitimate legislative concerns
are expressed in a statute which imposes a substantial burden on protected First Amendment activities,
Congress must achieve its goal by means which have a ‘less drastic’ impact on the continued vitality of First
Amendment freedoms.”); see also Shelton, 364 U.S. at 488 (“The statute requires a teacher to reveal the
church to which he belongs, or to which he has given financial support.”). The Court also notes that, in Kahane,
it could only find one citation to Cantwell: “But where the government has total control over people's lives,
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as in prisons, a niche has necessarily been carved into the establishment clause to require the government
to afford opportunities for worship. The free exercise clause embraces both the freedom to believe and the
freedom to act according to those beliefs. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84
L.Ed. 1213 (1940).” Kahane, 396 F. Supp. at 698. It does not appear, either, that Cantwell is discussed at
any point in the Second Circuit's Kahane v. Carlson opinion. In fact, the part of Cantwell cited by plaintiffs
even seems to go against their proposition. See Cantwell, 310 U.S. at 303–04 (“The constitutional inhibition
of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law
of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to
adhere to such religious organization or form of worship as the individual may choose cannot be restricted by
law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment
embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of
things, the second cannot be.”).
6 See Hernandez, 09-CR-703, Dkt. No. 53 (“Order Setting Conditions of Release”).
7 During oral argument, plaintiffs represented to the Court that, even if their federal claims were dismissed, the
Court would still retain jurisdiction over plaintiffs’ state law claims based on diversity of the parties or pendent
jurisdiction. Although plaintiffs acknowledged that they had not particularly alleged diversity jurisdiction in the
Amended Complaint, they stated at argument that the parties were diverse and requested, if necessary, the
opportunity to replead to assert diversity jurisdiction. The parties’ briefing have presupposed the propriety of
the Court's jurisdiction over all claims, and no defendant contested plaintiffs’ assertion or request during or
after argument. The Court will proceed to address plaintiffs’ state law claims.
8 Here too plaintiffs seek, once more, to amend the already Amended Complaint in their opposition papers,
arguing that Count XI is a common law vicarious liability claim. See Pls.’ Hotel Opp'n at 30–31. The Court
declines to entertain these efforts.
9 A brief aside is not a proper manner to seek leave to amend. See Local Rule 15.1(a) (“The motion [to amend]
must set forth specifically the proposed insertions and deletions of language and identify the amendments
in the proposed pleading, either through the submission of a redline/strikeout version of the pleading sought
to be amended or through other equivalent means.”).
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