Calderon v. Ulster County Area Transit et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:25-cv-01442-GTS-MJK Document5 Filed 11/13/25 Page 1 of 56

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Marty Calderon,
Plaintiff,
Vv. 1:25-CV-1442
(GTS/MJK)

Ulster County Area Transit, et. al.,

Defendants.

Marty Calderon, Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Glenn T. Suddaby, U.S. District Judge:

ORDER and REPORT- RECOMMENDATION

Calderon commenced this action on October 15, 2025, by filing a
Complaint and moving for leave to proceed in forma pauperis (“IFP’)
(Dkts. 1, 2). The Clerk has sent the Complaint and JFP application to

this Court for its review.

I. BACKGROUND
During the week of October 1, 2025, Defendants purportedly told

Calderon that she could no longer ride the public bus because she

urinated on it. (Complaint, Dkt. 1, at J 3).1 The following week,

1 The citation pagination refers to the CM/ECF pagination.

2
Calderon alleges that Defendants told her “third party advocate” that
she could no longer ride the public bus because she urinated on it. (Id.
at ¶4). Calderon claims that she does not have a history of urinary
incontinence and that she “never” urinated on the bus. (Id. at ¶ 10).
Calderon asserts claims under 42 U.S.C. §§ 1981, 1983, and the
Fourteenth Amendment. (Id. at ¶ 1.) Calderon also seeks damages for
slander, defamation per se, emotional distress, and loss of income. (Id.
at ¶¶ 1, 11).
II. 	IFP APPLICATION
Calderon declares in her IFP application that she is unable to pay
the filing fee. (Dkt. 2). After reviewing her application, this Court finds
that Calderon is financially eligible for IFP status.
III. 	STANDARD OF REVIEW
Courts can sua sponte dismiss a case at any time if they determine
that an action is (1) frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915
(e)(2)(B)(i)-(iii).
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When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or fact.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (cleaned up); see also
28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to
prevent abuses of court process as well as to discourage the waste of
judicial resources. See Neitzke, 490 U.S. at 327; see also Harkins v.
Eldredge, 505 F.2d 802, 804 (8th Cir. 1974).
Courts must show liberality toward pro se litigants and use
extreme caution when sua sponte dismissing pro se complaints. See
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir. 2000). Still, courts have a responsibility to determine that a claim
is not frivolous before permitting a plaintiff to proceed. See id.
III. 	DISCUSSION
A. The District Court should dismiss the Complaint because
Calderon has not established Monell liability.
The Court recommends dismissing Calderon’s Complaint against
Ulster County Area Transit (“UCAT”).
UCAT is “operated by Ulster County.” See
https://uctc.ulstercountyny.gov/projects/ulster-county-area-transit-
maintenance-and-storage-facility-site-selection-plan/ (last viewed on
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4
November 13, 2025). Further, UCAT’s website shares the same domain
as Ulster County. See https://ucat.ulstercountyny.gov/ (last viewed on
November 13, 2025). Calderon’s claim against UCAT is effectively a
claim against Ulster County. See White v. City of Syracuse, No. 5:11-CV-
1098 (GTS/ATB), 2011 WL 7109423, at *3 (Court deemed the County’s
Regional Transportation Authority a “municipality” for purposes of its
28 U.S.C. § 1915 analysis because its members were municipalities).
In Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the Supreme
Court outlined the limited circumstances under which a municipality
may be liable under Section 1983. A municipality may not be held liable
solely because it employs a tortfeasor. See LaVertu v. Town of
Huntington, No. 13-CV-4378, 2014 WL 2475566, at *3 (E.D.N.Y. Apr. 4,
2014) (citing inter alia Los Angeles County, Cal. v. Humphries, 562 U.S.
29, (2010)), report recommendation adopted in part, 2014 WL 2506217
(E.D.N.Y. June 2, 2014). Only when the municipality, through the
execution of its policies, deprives an individual of their constitutional
rights, is it liable for the injury. See Monell, 436 U.S. at 694.
“The existence of a municipal policy that gives rise to Monell
liability can be established in four ways: “(1) a formal policy endorsed
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by the municipality; (2) actions directed by the government’s
‘authorized decisionmakers’ or ‘those who establish governmental
policy;’ (3) a persistent and widespread practice that amounts to a
custom of which policymakers must have been aware; or (4) a
constitutional violation resulting from policymakers’ failure to train
municipal employees[.]” Deferio v. City of Syracuse, 770 F. App’x 587,
590 (2d Cir. 2019)(cleaned up). “Once a plaintiff has demonstrated the
existence of a municipal policy, a plaintiff must then establish a causal
connection, or an ‘affirmative link,’ between the policy and the
deprivation of his constitutional rights. Id. (citing Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)); see also Bd. of the Cnty.
Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (holding that plaintiff must
“demonstrate that, through its deliberate conduct, the municipality was
the ‘moving force’ behind the injury alleged”).
Calderon has not alleged any formal policy, widespread practice,
or actions directed by Ulster County’s ‘authorized decisionmakers’ or
‘those who establish governmental policy’ sufficient to satisfy the
pleading requirements for a Monell claim. See Deferio 770 F. App’x at
590. Even liberally construing Calderon’s Complaint as the Court must
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do, the allegations do not lead to a plausible inference that there is an
Ulster County policy or custom that was implemented to wrongfully
deny Plaintiff her right to ride on the public bus.
Also fatal to Calderon’s claim is her failure to plead a deprivation
of an underlying constitutional right. Although the Complaint
references the Fourteenth Amendment, it is devoid of any allegations
sufficient to give rise to a violation of any constitutional rights afforded
to her thereunder.
The Court therefore recommends that the Complaint be dismissed
without prejudice and with leave to amend.
B. The District Court should dismiss Calderon’s claims under
42 U.S.C. § 1981.
The Complaint alleges in part that “Defendants violated her
rights pursuant to … 42 U.S.C. 1981 …” (Complaint, Dkt. 1, at ¶ 1).
Section 1981 provides that, “[a]ll persons within the jurisdiction of
the United States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be parties, give
evidence, 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.”
42 U.S.C. § 1981(a).
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“To establish a claim under § 1981, a plaintiff must allege facts in
support of the following elements: (1) the plaintiff is a member of a
racial minority; (2) an intent to discriminate on the basis of race by the
defendant; and (3) the discrimination concerned one or more of the
statutorily enumerated activities.” Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993), cert. denied, 516
U.S. 824 (1995); see also Broich v. Inc. Vill. of Southampton, 462 Fed.
Appx. 39, 42 (2d Cir. 2012) (summary order). With respect to the second
element, a plaintiff must “offer more than conclusory allegations that he
was discriminated against because of his race.” Mian, 7 F.3d at 1088. A
plaintiff must “plead sufficient facts to state a plausible claim for relief
under 42 U.S.C. § 1981,” and cannot rely on “wholly conclusory
allegations of discriminatory intent.” Zavalidroga v. Cote, 395 F. App’x.
737, 740 (2d Cir. 2010) (summary order); see also Clyburn v. Shields, 33
F. App’x. 552, 555 (2d Cir. 2002) (summary order) (“claims of race-based
discrimination under . . . 42 U.S.C. § 1981 . . . require that intentional
discrimination be alleged in a non-conclusory fashion”).
Liberally construed, the Complaint fails to plausibly allege a claim
under § 1981. As an initial matter, Calderon’s allegations have nothing
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to do with the rights described in the statute. Calderon’s claims are
predicated on her exclusion from public transportation because she is
wrongfully alleged to have urinated on a public bus.
Even if Calderon’s claims were within the scope of § 1981, the
Court still recommends dismissal because there are no allegations in
the Complaint that: (1) she is a member of a racial minority, or (2) that
Defendants intended to discriminate against her based on race. See
Mian, 7 F.3d at 1087.
Because the Complaint fails to comply with the pleading
requirements of § 1981, the Court recommends that it be dismissed
without prejudice and with leave to amend.
C. The District Court should dismiss the Complaint against
the individual Defendants because Calderon has not
established their personal involvement in any alleged
constitutional deprivation.
It has long been established that “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983[,]” and supervisory officials may not be
held liable merely because they held a position of authority. Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted). Similarly,
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“[i]n order to make out a claim for individual liability under § 1981, ‘a
plaintiff must demonstrate some affirmative link to causally connect
the actor with the discriminatory action…. Personal liability under
section 1981 must be predicated on the actor’s personal involvement.’”
Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (quoting
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir.
2000) (internal quotation marks omitted)). “Personal involvement
[under 42 U.S.C. § 1983 and 42 U.S.C. § 1981] includes not only direct
participation in the alleged violation but also gross negligence in the
supervision of subordinates who committed the wrongful acts and
failure to take action upon receiving information that constitutional
violations are occurring.” Patterson, 375 F.3d at 229.
Calderon alleges that “Defendants violated and slandered the
Plaintiff by telling the Plaintiff she could no longer take their bus
because she urinated on the bus.” (Complaint, Dkt. 1, at ¶ 3). Calderon
further alleges that “the Defendants also told the Plaintiff’s third party
advocate that she could no longer ride their bus because she urinated on
the bus.” (Id., at ¶ 4). The Complaint lacks any specific allegations
about either individual Defendant. Calderon does not plead which
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individual Defendant, if either, made the alleged statements to her and
her third-party advocate. Calderon’s allegations are conclusory and lack
any details about the individual Defendants’ personal involvement, if
any. See Holland v. City of New York, 197 F. Supp. 3d 529, 550
(S.D.N.Y. June 24, 2016) (“Conclusory accusations regarding a
defendant’s personal involvement in the alleged violation, standing
alone, are not sufficient[.]”).
The Court therefore recommends that the Complaint be dismissed
without prejudice and with leave to amend as to Defendants Roser and
Troccia.
D. The District Court should dismiss Calderon’s claims for
slander and defamation per se.
Calderon claims damages for “defamation per se” and “slander per
se.” 	(Complaint, Dkt. 1, at ¶ 1, 11).
There is no cause of action for libel or slander under Section 1983
“unless it implicates a liberty interest.” Perez v. Amato, 12-CV-623
(TJM/CFH), 2013 U.S.Dist. LEXIS 100689, at *16 (N.D.N.Y. June 13,
2013) (internal citation and quotation marks omitted). “Defamation
alone, even by a government entity, does not constitute a deprivation of
a liberty interest protected by the Due Process Clause.” Martz v.
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Incorporated Village of Valley Stream, 22 F.3d 26, 31 (2d Cir.1994).
Calderon’s claims are state tort law claims over which the Court would
need to exercise supplemental jurisdiction, and the decision to do so is
within this Court’s discretion. See Kolari v. New York-Presbyterian
Hosp., 455 F.3d 118, 121-22 (2d Cir. 2006)). The Court cannot, at this
juncture, determine whether supplemental jurisdiction will be
exercised. If, however, the Court decides to exercise supplemental
jurisdiction over Plaintiff’s claims for slander and defamation per se,
they must be pled in accordance with New York state law.
The Court therefore recommends dismissing Calderon’s claims for
slander and defamation per se, without prejudice and with leave to
amend.
E. The District Court should dismiss Calderon’s damage claim
for emotional distress.
Calderon “claims money damages for emotional distress.” (Dkt. 1,
at § 11).
It is well-established that courts may award damages for
emotional distress in Section 1983 cases. See Patrolmen’s Benevolent
Ass’n of N.Y. v. City of New York, 310 F.3d 43 (2d Cir. 20024); see also
Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993). “However,
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the mere fact that a constitutional deprivation has occurred does not
justify the award of such damages; a plaintiff must establish that they
suffered an actual injury caused by the deprivation.” Patrolmen’s
Benevolent Ass’n of N.Y., 310 F.3d at 55 (citing Carey v. Piphus, 435
U.S. 247, 263-64, (1978)).
Calderon’s claim for emotional distress fails for several reasons.
First, Calderon has not, as noted above, pleaded any underlying
constitutional deprivation and therefore, no damage claim for emotional
distress can lie. Second, even if Calderon’s constitutional rights had
been traversed, there are no allegations in the Complaint plausibly
suggesting that she suffered an actual injury. Calderon alleges, without
more, that she “claims money damages for emotional distress.” (Dkt. 1,
at 3). That is not enough.
The Court therefore recommends dismissing Calderon’s damage
claim for emotional distress with prejudice and without leave to amend.
Any amendment would be futile.
F. The District Court should allow Calderon to amend her
Complaint.
Generally, before courts dismiss a pro se complaint or any part of the
complaint on its own, they should afford the plaintiff the opportunity to
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amend at least once; but leave to re-plead may be denied where any
amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993). Futility is present when the problem with a
plaintiff’s causes of action is substantive such that better pleading will
not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(citation omitted).
Out of an abundance of caution and in deference to Calderon’s pro
se status, the Court recommends that the Complaint be dismissed
without prejudice and with leave to amend to allow her the opportunity
to cure the defects noted above except as to her damage claim for
emotional distress which should be dismissed with prejudice and
without leave to amend based on futility.
The Court advises Calderon that should the District Court allow
her to amend the Complaint, the pleading must clearly be labeled
“Amended Complaint” and bear the docket number 1:25-CV-01442
(GTS/MJK). Calderon is strongly encouraged to read and comply with
the pro se handbook, a copy of which was mailed to her on October 16,
2025. (Dkt. 3). In deference to Calderon’s pro se status, the Clerk is
directed to mail Calderon an additional copy of the pro se handbook.
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The amended pleading must be signed2 and otherwise comply with Fed.
R. Civ. P. 8 and 10.
Calderon must set forth all claims she intends to assert and
plausibly allege that a case or controversy exists between her and any
Defendants by name over which this Court has jurisdiction. Calderon
must clearly set forth facts giving rise to her purported claims in
separately and consecutively numbered paragraphs. The amended
pleading must be a wholly integrated and a 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.” (internal quotation marks omitted)). Piecemeal
pleadings are not permitted. See L.R. 15.1.
WHEREFORE, based on the findings above, it is
2 Rule 11(a) of the Federal Rules of Civil Procedure requires that “[e]very pleading
. . . must be signed . . . by a party personally if the party is unrepresented.” Fed. R.
Civ. P. 11(a). Moreover, Rule 10.1(c)(2) of the Local Rules of Practice of this District
requires that all documents submitted to the Court include the original signature of
the attorney or the pro se litigant.
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ORDERED, that Calderon’s motion to proceed in forma pauperis
(Dkt. 2) is GRANTED,3 and it is further
RECOMMENDED, that the Complaint be DISMISSED
WITHOUT PREJUDICE and WITH LEAVE TO AMEND except as
to Calderon’s damage claim for emotional distress, which should be
DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO
AMEND, and it is further
ORDERED, that the Clerk provide Calderon with a copy of this
Order and Report-Recommendation, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam), and it is further
ORDERED, that the Clerk mail Calderon an additional copy of
the pro se handbook.
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the
3 Although his IFP application has been granted, Calderon will still be required to
pay fees that he may incur in this action, including copying and/or witness fees.
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Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636 (b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: November 13, 2025.
________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 16 of 56

White v. City of Syracuse, Not Reported in F.Supp.2d (2011)
2011 WL 7109423
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 7109423
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Saundra V. WHITE, Plaintiff,
v.
CITY OF SYRACUSE, et al., Defendants.
No. 5:11–CV–1098 (GTS/ATB).
|
Sept. 21, 2011.
Attorneys and Law Firms
Saundra V. White, Syracuse, NY, pro se.
ORDER and REPORT–RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
*1 The Clerk has sent to the court a civil rights complaint,
together with an application to proceed in forma pauperis
(IFP), filed by pro se plaintiff, Saundra V. White. 1
(Dkt.Nos.1, 3).
1 The court notes that this is plaintiff's fifth
complaint, filed in the Northern District of New
York. All of plaintiff's other complaints have
been dismissed, and the cases have been closed.
See White v. Verison, 5:06–CV–617 (closed Oct.
15, 2009) (complaint dismissed on motion for
summary judgment, in part because plaintiff
wilfully failed to admit or deny defendant's factual
assertions and because of the statute of limitations);
White v. Wackenhut Security Contractor, 5:07–CV–
349 (closed Aug. 21, 2007) (dismissed sua sponte
after plaintiff afforded an opportunity to amend);
White v. Monarch Pharmaceuticals, Inc., 5:07–
CV–585 (closed Jan. 17, 2008) (dismissed sua
sponte under section 1915(e) for failure to state a
claim); and White v. St. Joseph's Hospital, 5:07–
CV–1286 (closed May 7, 2008) (dismissed sua
sponte under section 1915(e)(2)(B)(ii) for failure to
state a claim).
I. In Forma Pauperis (IFP) Application
A review of plaintiff's IFP application shows that plaintiff
alleges that she is not employed and is currently receiving
disability-related payments. (Dkt. No. 3 at 2). Based on
a review of plaintiff's application, this court finds that
plaintiff meets the financial criteria for proceeding without
the payment of fees.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) 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)(B) (i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in law
or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989). Dismissal of frivolous actions
is appropriate to prevent abuses of court process as well as to
discourage the waste of judicial resources. Neitzke, 490 U.S.
at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir.1974).
Although the court has a duty to show liberality toward pro se
litigants, and must use extreme caution in ordering sua sponte
dismissal of a pro se complaint before the adverse party has
been served and has had an opportunity to respond, the court
still has a responsibility to determine that a claim is not
frivolous before permitting a plaintiff to proceed. Fitzgerald
v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d
Cir.2000) (finding that a district court may dismiss a frivolous
complaint sua sponte even when plaintiff has paid the filing
fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell
Atl. Corp., 550 U.S. at 555). The court will now turn to
a consideration of the plaintiff's complaint under the above
standards.
II. Complaint
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White v. City of Syracuse, Not Reported in F.Supp.2d (2011)
2011 WL 7109423
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Plaintiff states that a Central New York Regional
Transportation Authority (“Centro”) bus driver lowered a
“forklift” on plaintiff, and he did not realize that he had done
so until plaintiff alerted him to this fact. (Compl.¶ 3). Plaintiff
states that she sought medical care from physicians, “who
established ... that an injury had occurred.” (Id.) Plaintiff
claims that the bus driver acknowledged “mistake” and
offered plaintiff a “scratch paper” so that she could write an
“account of [the] injury,” but did not provide plaintiff with a
carbon copy for herself. Plaintiff states that she asked Centro
for accident report “forms,” but that the company did not
respond, despite a written request. (Id.)
*2 Plaintiff claims that her First, Second, and Fourteenth
Amendment rights have been violated because defendants
deprived her of “life, liberty and the pursuit of
happiness.” (Compl.¶ 4(a)). Plaintiff states that this incident
has caused her “pain ... suffering ... and emotional trauma ...
requiring the expenditure of money for treatment.” (Compl.¶
4(b)). Plaintiff also seems to be alleging some sort of
Equal Protection violation in that she states that she was
denied “[f]reedom from injury and being treated differently
because of an existing disability.” (Compl.¶ 5(b)). She also
states that her injuries were the result of “policies and
customs of Centro ... City of Syracuse and County of
Onondaga.” (Compl.¶ 3). She seeks damages for the violation
of these constitutional rights.
III. Section 1983
A. Legal Standards
In order to state a claim pursuant to 42 U.S.C. § 1983,
the plaintiff must allege that the challenged conduct was
attributable, at least in part, to a person or entity acting
under color of state law, and that the challenged conduct
deprived the plaintiff of a right, privilege or immunity secured
by the Constitution or laws of the United States. Cornejo
v. Bell, 592 F.3d 121, 127 (2d. Cir.2010), cert. denied sub
nom. Cornejo v. Monn, ––– U.S. ––––, 131 S.Ct. 158, 178
L.Ed.2d 243 (2010); Dwares v. City of New York, 985 F.2d
94, 98 (2d Cir.1993). The plaintiff must also allege that the
defendant was personally involved in the conduct causing the
constitutional violation. Farid v. Ellen, 593 F.3d 233, 249 (2d
Cir.2010) (citation omitted).
When a plaintiff bases her claims on municipal liability,
plaintiff must allege a direct causal link between a municipal
“policy or custom” and the alleged violation. Bender v. City
of New York. No. 09 Civ. 3286, 2011 WL 4344203, at
*13 (S.D.N.Y. Sept.14, 2011) (citing Bohmer v. New York,
2011 WL 2651872, at *3 (S.D.N.Y. June 16, 2011)). “
‘[B]oilerplate assertions that a municipality has a custom or
policy resulting in a constitutional deprivation of plaintiff's
rights are insufficient.’ “ Id. (quoting Bohmer, supra ). The
policy must be the “moving force” behind the constitutional
violation. Bd. of the County Comm'rs v. Brown, 520 U.S.
397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (internal
quotations omitted).
A municipality may not be found liable simply because one
of its employees committed a tort. Brown, 520 U.S. at 403.
Plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate
a causal connection between the municipal action and the
deprivation of federal rights. Id. Where the plaintiff claims
that the municipality has not directly inflicted an injury,
but has “caused” an employee to do so, “rigorous standards
of culpability and causation must be applied” so that the
municipality is not held liable solely for the actions of an
employee. Brown, 520 U.S. at 405.
B. Application
1. Color of State Law
*3 It is well-settled that defendants City of Syracuse and
Onondaga County, as municipalities, act under color of state
law for purposes of section 1983. See Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978); Zherka v. DiFiore, 412 Fed. Appx. 345, 348 (2d
Cir.2011). Although the analysis is a bit more complicated for
Centro, for purposes of this recommendation, the court will
assume that Centro also acts under color of state law because
Centro's members are counties. 2
2 The court notes that Cento's website states that
the “current membership of the [Central New York
Regional Transit Authority] consists of the counties
of Onondaga, Oneida, Cayuga, and Oswego.”
http:// www.centro.org/aboutus.aspx. In Thrall v.
CNY CENTRO, Inc., Senior Judge Neal P. McCurn
assumed without analysis that Centro acted under
color of state law when he determined that a
Union did not act under color of state law because
there was insufficient evidence of conspiracy with
Centro. Thrall v. CNY CENTRO, Inc., No. 5:09–
CV–567, 2011 WL 743746, at *4 (N.D.N.Y.
Feb.23, 2011). A private entity may act under color
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White v. City of Syracuse, Not Reported in F.Supp.2d (2011)
2011 WL 7109423
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of state law if it acted in concert with a state
actor. Id. Plaintiff in Thrall made no claim that the
Union or another individual defendant “conspired
with Centro to violate his constitutional rights.” Id.
Thus, without specifically stating the fact, Judge
McCurn found that Centro was a state actor.
2. Municipal Liability
Although plaintiff makes a completely conclusory statement
that her injuries were the result of policies and customs of
Centro, the City of Syracuse, and Onondaga County, plaintiff
sets forth absolutely no basis for this statement. In addition,
the facts as stated in the complaint do not even lead to a
plausible inference that a policy or custom of any supervisor,
company, or municipality was responsible for the plaintiff's
accident. As stated above, such “boilerplate” accusations are
insufficient to state a claim of municipal liability. 3 Thus,
plaintiff's claims may be dismissed as against the City of
Syracuse and Onondaga County.
3 This assumes that the City of Syracuse is even
involved in Centro. Although it is unnecessary
to this court's recommendation, the City of
Syracuse is not one of Centro's members and
would therefore, not be responsible for the actions
of a Centro employee. http:// www.centro.org/
aboutus.aspx.
3. Centro
Centro is not a “municipality,” although its members are
municipalities; however, the same rationale applies to dismiss
any civil rights claims against Centro. Respondeat superior
is not an acceptable basis for liability under section 1983,
regardless of whether the defendant is a municipality or an
individual. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)
(citation omitted); Richardson v. Goord, 347 F.3d 431, 435
(2d Cir.2003). In her complaint, plaintiff simply states that on
an unspecified date, a Centro bus driver lowered a “forklift” 4
on plaintiff, and that plaintiff had to alert him that she was
pinned underneath. (Compl.¶ 3). Holding Centro liable for
such an incident would constitute a finding of respondeat
superior. Thus, plaintiff's claims may be dismissed in their
entirety.
4 The court assumes that plaintiff means a
wheelchair lift that is often attached to buses that
transport handicapped individuals.
4. Constitutional Violation
Although not necessary to the court's recommendation, there
is an alternate basis for dismissal of this action. Negligence
does not rise to the level of a constitutional violation. Daniels
v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon,
474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
See also Catanzaro v. Weiden, 188 F.3d 56, 62 n. 3 (2d
Cir.1998) (citing the general proposition that negligence
can not constitute a due process violation). Plaintiff states
that the bus driver pinned plaintiff under the “forklift” and
“acknowledged mistake.” (Compl.¶ 3). No interpretation of
plaintiff's statement supports a constitutional claim under
those circumstances. The fact that Centro refused to give
plaintiff an accident report form certainly does not qualify as
a constitutional violation. This case is essentially an attempt
at bringing a personal injury action against Centro in federal
court. The law does not support such an action.
*4 Although plaintiff also states that she was “treated
differently because of an existing disability,” there is no basis
for this conclusory statement. The Equal Protection Clause of
the Fourteenth Amendment requires that the government treat
all similarly situated people alike. Nicholas v. Tucker, 114 F.3d
17, 20 (2d Cir.1997). Generally, the equal protection clause
has been “concerned with governmental ‘classifications that
affect some groups of citizens differently than others.’ ”
Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601, 128 S.Ct.
2146, 170 L.Ed.2d 975 (2008).
In this case, at worst, plaintiff is complaining about an
incident that happened while she was either getting on or off
a Centro bus. Plaintiff does not allege what disability she has
or how she was treated differently because of her disability. In
fact, there is no indication that she was treated “differently”
than anyone else, regardless of classification. Thus, to the
extent that plaintiff's complaint can be read to allege an “equal
protection” claim, it may also be dismissed.
IV. Opportunity to Amend
Generally, when the court dismisses a pro se complaint sua
sponte, the court should afford the plaintiff the opportunity
to amend at least once, however, leave to re-plead may be
denied where any amendment would be futile. Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). In this
case, the court finds that any attempt of the plaintiff to amend
this complaint would be futile, and she would still be unable
to state a federal claim.
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White v. City of Syracuse, Not Reported in F.Supp.2d (2011)
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WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
3) is GRANTED FOR PURPOSES OF FILING ONLY,
and it is
RECOMMENDED, that this action be DISMISSED IN ITS
ENTIRETY sua sponte pursuant to 28 U.S.C. § 1915(e)(2)
(B) (ii), and it is further
RECOMMENDED, that if the District Court adopts this
recommendation, the court further certify that any appeal
from this matter would not be taken in good faith pursuant to
28 U.S.C. § 1915(a)(3), and it is
ORDERED, that the Clerk of the Court serve a copy of this
Order on plaintiff in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) 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 FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec. of Health &
Human Servs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)
(1); Fed.R.Civ.P. 6(a), 6(e), 72.
All Citations
Not Reported in F.Supp.2d, 2011 WL 7109423
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Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 20 of 56

White v. City of Syracuse
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:11cv01098
WHITE v. CITY OF SYRACUSE ET AL
— N.D.N.Y. Sep. 15, 2011 Docket
Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 21 of 56

White v. City of Syracuse
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. White v. City of Syracuse
2011 WL 7109423 , N.D.N.Y. , Sep. 21, 2011
Report and Recommendation Adopted by
2. White v. City of Syracuse
2012 WL 254075 , N.D.N.Y. , Jan. 27, 2012 , appeal dismissed (2nd Circ. 12-482) ( Jun 26, 2012 )
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LaVertu v. Town of Huntington, Not Reported in F.Supp.3d (2014)
2014 WL 2475566
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2014 WL 2475566
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Jennifer LAVERTU and John LaVertu, Plaintiffs,
v.
The TOWN OF HUNTINGTON, Defendant(s).
No. CV 13–4378(SJF)(WDW).
|
Signed April 4, 2014.
Attorneys and Law Firms
Steven A. Morelli, Paul Bartels, The Law Offices of Steven
A. Morelli, P.C., Garden City, NY, for Plaintiffs.
Thelma N. Neira, Town of Huntington, John C. Bennett,
Gathman & Bennett, LLP, Huntington, NY, for Defendants.
REPORT AND RECOMMENDATIONS
WILLIAM D. WALL, United States Magistrate Judge.
*1 Before the court on referral from District Judge
Feuerstein is a motion to dismiss by defendants. DE[11 &
14]. The motion is opposed by the plaintiffs. DE[12]. For
the reasons set forth herein, I recommend that the motion be
granted in regard to the First Amendment and Due Process
claims, and denied in regard to the Equal Protection claim.
I further recommend that the plaintiffs be given leave to
replead.
BACKGROUND
The plaintiffs filed this action in August 2013, alleging
civil rights violations by the defendant Town related to the
plaintiffs' opposition to the proposed Avalon Bay housing
project. Complaint, DE[1]. The plaintiffs report that they
released a YouTube video about the proposed project and
other issues on January 28, 2011, and allege that the Town
retaliated against them in response. On February 5, 2011,
the Town released its own YouTube video in rebuttal, and,
the plaintiffs allege, “targeted Plaintiffs' home with baseless
summonses,” in violation of their First Amendment rights.
DE[1], ¶ 2. They further allege that the Town “target[ed] Mr.
LaVertu's plumbing license in an attempt to put him out of
business, as part of their retaliatory efforts. Id.
The plaintiffs assert that the Town's rebuttal video was
harassing and improper, because it gave information about
the LaVertu's tax records. The “baseless summonses” were
issued in June 2011 in regard to a retaining wall allegedly
erected without a permit, and the absence of a Certificate
of Occupancy for the LaVertu's home for a two story
dwelling. The defendant, in support of this motion, has
annexed documents that add details about those summonses.
The plaintiffs urge the court to ignore such exhibits as
improper on a motion to dismiss, but some of the exhibits
can be considered, either because they are referenced in the
Complaint or the court can take judicial notice of them.
Looking to the admissible documents and the Complaint, it
appears that the LaVertus originally entered a plea of not
guilty as to the alleged violations, asserting that the retaining
wall was on their neighbor's property and applying for a
Letter In Lieu of a Certificate of Occupancy. A Letter in Lieu
application was filed on February 12, 2012, and they were
granted a Letter in Lieu on February 21, 2012. The grant of the
letter was later disapproved, on October 16, 2012. See Barfuss
Decl., DE[11–4], Exhs. A, B & G. The plaintiffs say that they
did not learn of the disapproval for several months after it was
issued. In the Complaint, the plaintiffs allege that the original
Letter in Lieu was disallowed as part of a “witch hunt” against
them by the Town. Compl., ¶ 39. Resolution of the Letter in
Lieu issue is apparently ongoing in the County District Court.
The name on the accusing instruments was changed from
John and Jennifer LaVertu to only Jennifer LaVertu, and, on
June 12, 2012, Mrs. LaVertu pleaded guilty to a violation
of Huntington Town Code § 87–25 for failure to have a C
of O for a two story dwelling. See Turner Decl., DE[11–3],
Exs. C & D. Pursuant to the Conditions of Discharge of the
violation, which was dated June 20, 2012, she was required to
“follow through to legalize [the] dwelling at 4 Meredith Dr.,
Huntington Station to be completed within 4 months of this
notice,” and to pay a $750 fine. Id., Ex. C. A Declaration of
Delinquency was issued by the Suffolk County District Court
on or about January 11, 2013, indicating that the LaVertus
had not followed through on the Conditions of Discharge and
were in default for not making the required changes in the
four month period given to them. Turner Decl., Ex. E. It is
unclear whether Mrs. LaVertu pleaded guilty to the retaining
wall charge, but that charge was “dismissed in satisfaction.”
The Complaint asserts that the charge was baseless and that
the retaining wall is on the Lavertus' neighbors' property. The
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defendant disputes that in the motion papers, but I make no
recommendation regarding it.
*2 This lawsuit was filed in August 2013, and, in it, the
plaintiffs assert claims under the First Amendment, the Due
Process Clause and the Equal Protection Clause pursuant to
Section 1983. The defendants seek dismissal of all claims in
the Complaint.
DISCUSSION
Rule 12(b) (6) Standards:
The defendants move pursuant to Rule 12(b)(6). In reviewing
a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b) (6), the Court must accept the factual
allegations set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. See Cleveland
v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir.2006);
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d
Cir.2005); Rosen v. North Shore Towers Apts., Inc., 2011
WL 2550733, *2 (E.D.N.Y. June 27, 2011) (12(b)(1)). To
survive a motion to dismiss pursuant to Rule 12, “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim for relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). “[O]nce a claim has been stated adequately, it
may be supported by showing any set of facts consistent
with the allegations in the complaint.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). The Court, therefore, does not require “heightened
fact pleading of specifics, but only enough facts to state
a claim to relief that is plausible on its face.” Id. at 570.
But, a pleading that offers only ‘labels and conclusions' or
a “formulaic recitation of the elements of a cause of action
will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.”
Id. (quoting Twombly, 550 U.S. at 557.) Thus, while detailed
factual allegations are not required, the pleading rules do
require more than an “unadorned, the-defendant-unlawfully-
harmed-me accusation.” Twombly, 550 U .S. at 555 (internal
citations omitted).
The Supreme Court clarified the appropriate pleading
standard in Iqbal, setting forth a two-pronged approach for
courts deciding a motion to dismiss. District courts are to
first “identify [ ] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679. Though “legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations.” Id. Second, if a complaint contains
“well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. “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. The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. at
678 (quoting and citing Twombly, 550 U.S. at 556) (internal
citations omitted).
Defendant's Exhibits in Support of Motion:
*3 The defendant has annexed numerous exhibits to its
motion papers, and the plaintiffs challenge them, stating that
none of the exhibits have been presented to them “for review
or discovery.” DE[12] at 4. In deciding a 12(b)(6) motion,
the court is confined to the four corners of the complaint, but
may consider exhibits attached to the complaint or documents
incorporated in it by reference. See Platt v. Incorporated Vill.
of Southampton, 2009 WL 3076099, *3 (E.D.N.Y. Sept.21,
2009) (citing Pani v. Empire Blue Cross Blue Shield, 152
F.3d 67, 71 (2d Cir.1998) & Chambers v. Time Warner, Inc.,
282 F.3d 147, 152–153 (2d Cir.2002)). The court “may also
consider matters of which judicial notice may be taken.”
Id. (citing Kramer v. Time Warner, Inc., 837 F.2d 767, 773
(2d Cir.1991)). I find that some exhibits are incorporated
by reference in the Complaint and are properly before
the court, and that other exhibits, notably documents from
court proceedings regarding the summonses, are suitable for
judicial notice.
I turn to the arguments regarding dismissal.
Monell Claims:
Although the Complaint does not specify Monell liability, the
lawsuit is brought under Section 1983, and the only defendant
is the Town, a municipal entity. Thus, the concept of Monell
liability is inherent in the claims. The defendant urges that the
Complaint does not adequately set forth allegations in regard
to Monell liability and that the entire Complaint should be
dismissed on that ground.
To prevail on a Section 1983 claim against a municipal entity,
a plaintiff must show: “ ‘(1) actions taken under color of
law; (2) deprivation of a constitutional or statutory right;
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(3) causation; (4) damages; and (5) that an official policy
of the municipality caused the constitutional injury.’ ” Jones
v. Nassau County Correctional Inst., 2014 WL 1277908, *4
(E.D.N.Y. Mar.26, 2014) (quoting Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir.2008); see also Connick v. Thompson,
––– U.S. ––––, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011)
(“Plaintiffs who seek to impose liability on local governments
under Section 1983 must prove that ‘action pursuant to
official municipal policy’ caused their injury.” (quoting
Monell v. Dept. of Social Servs. of the City of New York,
436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978)).
Thus, “a municipality can be held liable under Section 1983
if the deprivation of the plaintiff's rights under federal law
is caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir.2012). “Absent such a custom, policy, or usage, a
municipality cannot be held liable on a respondeat superior
basis for the tort of its employee.” Id.; see also Connick, 131
S.Ct. at 1350 (holding that under Section 1983, governmental
bodies are not vicariously liable for their employees' actions);
Los Angeles County, Cal. v. Humphries, ––– U.S. ––––, 131
S.Ct. 447, 452, 178 L.Ed.2d 460 (2010) (“[A] municipality
cannot be held liable solely for the acts of others, e.g., solely
because it employs a tortfeasor.” (quotations and citation
omitted)). “ ‘A municipal policy may be pronounced or tacit
and reflected in either action or inaction.’ ” Jones, 2014
WL 1277908 at *5 (quoting Cash v. County of Erie, 654
F.3d 324, 333 (2d Cir.2011)). “Official municipal policy
includes the decisions of a government's lawmakers, the
acts of its policymaking officials, and practices so persistent
and widespread as to practically have the force of law.”
Connick, 131 S.Ct. at 1359. In addition, municipal liability
can be established “by showing that a policymaking official
ordered or ratified the employee's actions—either expressly
or tacitly.” Jones, 691 F.3d at 81.
*4 While the Complaint does not specifically identify
anyone as a policymaker, it is replete with references to the
actions taken by Town Council members and nameless “Town
officials.” The Town Attorney is also mentioned, as is “high
ranking Town Consultant Bob Fonti.” The plaintiffs argue
that the allegations suffice to suggest a policy of retribution
against them by Town officials, and I agree. While the
Complaint is not a model of pleading in the Monell context,
the plaintiffs allege facts from which it could be plausibly
inferred that a custom or policy of the Town caused the alleged
violations. See Jones v. Bay Shore Union Free School Dist. .,
947 F.Supp.2d 270, 282 (E.D.N.Y. May 28, 2013) (citing
Harris v. Westchester Cnty. Dep't of Corr., 2008 WL 953616,
at *11 (S.D.N.Y. Apr.3, 2008)). Accordingly, the defendants'
motion to dismiss Plaintiff's Section 1983 claims against the
Town based upon Monell liability should be denied.
Application of Rooker–Feldman Doctrine:
The defendant recounts the history of the summonses and
Mrs. LaVertu's guilty plea in regard to the C of O summons,
and argues that, under the Rooker–Feldman doctrine, claims
predicated on allegedly baseless summonses should be
dismissed.
“Pursuant to what is commonly known as the Rooker–
Feldman doctrine, federal district courts lack subject matter
jurisdiction over suits that are, in substance, appeals from
state court judgments.” Brown v. Wells Fargo Bank, N.A.,
2014 WL 1248022, *2 (E.D.N.Y. Mar.24, 2014) (citing
Rooker v. Fidelity Trust Co., 263 U.S. 413, 414–415, 44
S.Ct. 149, 68 L.Ed. 362,(1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206,
(1983); Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d
Cir.1998) (“The Rooker–Feldman doctrine provides that the
lower federal courts lack subject matter jurisdiction over a
case if the exercise of jurisdiction over that case would result
in the reversal or modification of a state court judgment.”).
The doctrine is limited to “ ‘cases brought by state-
court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.’ ” Brown, 2014 WL 1248022 at *2 (quoting
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454, (2005). There
are four requirements for the application of Rooker–Feldman:
(1) the federal court plaintiff must have lost in state court;
(2) the plaintiff's injuries must be caused by the state court
judgment; (3) the plaintiff's claims must invite the district
court to review and reject the state court judgment; and (4)
the state court judgment must have been rendered prior to the
commencement of the district court proceedings. Id. (citing
Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85
(2d Cir.2005). “The first and fourth of these requirements may
be loosely termed procedural; the second and third may be
termed substantive.” Id. If all four requirements are met, the
case must be dismissed.
*5 Here, the defendant relies on Jennifer LaVertu's plea
of guilty in the County District Court as the relevant lower
court proceeding. It would appear from the pleadings and
the motion papers that proceedings regarding the Conditional
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Discharge and Declaration of Delinquency are ongoing in
state court, and I recommend a finding that any reference
to the Rooker Feldman doctrine here is premature. While
LaVertu's entry of the guilty plea demonstrates that her claim
that the summons was baseless is futile, there are still issues
about how she can correct the problems that the summons
was based on. Further, the plaintiffs do not appear to be
complaining of injuries from the District Court ruling, nor are
they asking this court to review and reject that ruling. Thus,
the complaint should not be dismissed on Rooker–Feldman
grounds.
First Amendment Claims:
The defendant argues that the plaintiffs fail to state a viable
claim for First Amendment violations because plaintiffs'
exercise of First Amendment rights was not chilled by any
Town action, a requirement of First Amendment retaliation
claims. See DE[11–11], Mem. in Support at 7. The plaintiffs
argue that the chilling element is not necessary and that
they have alleged sufficient harm to meet pleading standards.
The defendant further argues that, to the limited extent that
actual chilling is not necessary, the plaintiffs have not alleged
sufficient concrete harm.
To state a claim of retaliation, plaintiffs generally must
plead that (1) they have an interest protected by the First
Amendment; (2) defendants' actions were motivated or
substantially caused by their exercise of that right; and (3)
defendants' actions effectively chilled the exercise of their
First Amendment right. Butler v. City of Batavia, 323 Fed.
Appx. 21, 23(2d Cir.2009) (quoting Curley v. Village of
Suffern, 268 F.3d 65, 73 (2d Cir.2001)). The elements of a
First Amendment retaliation claim have also been phrased
without reference to a chilling requirement, as requiring the
plaintiff to prove “(1) that the speech or conduct at issue
was protected, (2) that the defendant took adverse action
against the plaintiff; and (3) that there was a causal connection
between the protected speech and the adverse action.” Scott
v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003). While some
decisions in the Second Circuit, like Butler, have required that
plaintiffs prove that the adverse actions chilled the exercise of
their First Amendment rights (see Grossi v. City of New York,
2009 WL 4456307, *7 n. 4 (E.D.N.Y. Nov.30, 2009) (citing
cases)), other courts have found that the chilling element
is required only “in cases where a plaintiff states no harm
independent of the chilling of his speech.” See Puckett v. City
of Glen Cove, 631 F.Supp.2d 226, 239 (E.D.N.Y. June 30,
2009).
For purposes of this motion, I suggest a finding that the
plaintiff, or at least Jennifer LaVertu, engaged in activities
protected by the First Amendment and that the Complaint
adequately alleges retaliatory motive as to most, but not all,
of the Town's acts. I focus for the most part on determining
whether the Complaint adequately alleges concrete, specific
harm.
*6 The Second Circuit has recognized that “in certain
situations a showing of some other form of concrete harm may
substitute for ‘actual chilling,’ ” Zherka v. Amicone, 634 F.3d
642, 643 (2d Cir.2011). The Zherka court explained:
“To state a claim under Section 1983, a plaintiff must allege
facts indicating that some official action has caused the
plaintiff to be deprived of his or her constitutional rights
—in other words, there is an injury requirement to state
the claim.” Colombo v. O'Connell, 310 F.3d 115, 117 (2d
Cir.2002) (per curiam). Various forms of harm have been
accepted as satisfying this injury requirement in the context
of a claim that a public official has injured the plaintiff in
retaliation for her exercise of her First Amendment rights.
“We have described the elements of a First Amendment
retaliation claim in several ways, depending on the factual
context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76
(2d Cir.2008). For example, public employees must show
adverse employment action. Id. For their part, inmates
must show “retaliatory conduct that would deter a similarly
situated individual of ordinary firmness from exercising
*645 ... constitutional rights.” Gill v. Pidlypchak, 389
F.3d 379, 381 (2d Cir.2004) (internal quotation marks and
citation omitted).
By contrast, private citizens claiming retaliation for their
criticism of public officials have been required to show
that they suffered an “actual chill” in their speech as a
result. Id. (citing Spear v. Town of W. Hartford, 954 F.2d
63, 68 (2d Cir.1992)). However, in limited contexts, other
forms of harm have been accepted in place of this “actual
chilling” requirement. See, e .g., Dougherty v. Town of
N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91
(2d Cir.2002) (alleging retaliatory revocation of building
permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195
(2d Cir.1994) (alleging retaliatory failure to enforce zoning
laws); see also Gill, 389 F.3d at 383 (explaining that “the
Gagliardi plaintiffs' retaliation claim apparently survived a
motion to dismiss because ... they adequately pleaded non-
speech injuries”). Despite these limited exceptions, as a
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general matter, First Amendment retaliation plaintiffs must
typically allege “actual chilling.”
634 F.3d at 644–45.
The court in Zherka found that a claim of defamation per
se under state law was not sufficient to satisfy the harm
element on a First Amendment retaliation claim. Such harm,
they explained, must be concrete or tangible, not assumed,
as is the case in defamation per se claims. In private
citizen cases, “various forms of concrete harm have been
substituted for the ‘actual chilling’ requirement.” Brink v.
Muscente, 2013 WL 5366371, *7 (S.D.N.Y. Sept.25, 2013)
(citing Zherka, 634 F.3d at 643, 645–46; see also Puckett,
631 F.Supp.2d at 239 (E.D.N.Y.2009) (chilling element is
required only “in cases where a plaintiff states no harm
independent of the chilling of his speech”); Tomlins v. Village
of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d
357, 371 (S.D.N.Y.2011) (deeming allegations of retaliatory
denial of building permits and a denial of an unconditional
variance sufficient concrete harms to substitute for chilling
effects); Hafez v. City of Schenectady, 894 F.Supp.2d 207,
222 (N.D.N.Y. Apr.19, 2012) (citing Gagliardi v. Village of
Pawling, 18 F.3d 188 (2d Cir.1994) (alleging harm in the
form of municipal defendants' misapplication of zoning code
in retaliation for plaintiffs' exercise of free speech rights))).
Where a plaintiff has sufficiently alleged a concrete harm, and
in the absence of a subjective chilling requirement, Second
Circuit courts have only required a showing (1) that the
First Amendment protected the plaintiff's conduct, and (2)
that “defendants' conduct was motivated by or substantially
caused by [the plaintiff's] exercise of speech.” Hafez, 894
F.Supp.2d at 222 (citing Gagliardi, 18 F.3d at 194 (citation
omitted)); see also Tomlins, 812 F.Supp.2d at 371 n. 11.
Contrary to the plaintiff's argument, some concrete harm must
be shown, even if chilling is not.
*7 Here, the plaintiffs have suggested that their free speech
rights are implicated, alleging that in issuing summonses to
the plaintiffs, the Town had “the clear intention of deterring
Free Speech activities,” but they do not allege any actual
chilling. Compl. ¶ 2. Instead, the complaint can be read
to allege harm flowing primarily from the YouTube video,
unwarranted summonses and interference with Mr. LaVertu's
plumbing license.
The allegations of harm allegedly done by the rebuttal video
are too vague and conclusory to constitute the concrete harm
needed to make out a First Amendment Retaliation claim.
The Complaint alleges that the video was a “personal attack”
on Mrs. LaVertu and that it released information about her
tax records. I have not viewed the videos, although they
are referenced in the Complaint and provided as exhibits to
the motion, but limit my consideration, on this motion to
dismiss, to the allegations set forth in the Complaint itself.
The posting of the video does not per se suggest retaliatory
motive. Mrs. LaVertu had posted her own YouTube video
and a rebuttal in kind was not so surprising. The fact that
the Town posted its rebuttal in the same forum used by Mrs.
LaVertu does not in and of itself give rise to an inference of
retaliatory motive or concrete harm. The content of the video
as described in the Complaint, as distinct from the fact of
the posting itself, also fails to satisfy the standard of harm
required. If it did disclose the LaVertus' property taxes (and I
assume that it did), it only aired information readily accessible
as a matter of public record. No details are given in the
Complaint as to the nature of the personal attack beyond the
tax information, and the vague allegations about discussions
on various social media and other websites add nothing to
the allegation of harm. While Mrs. LaVertu may have felt
“personally attacked, “[h]urt feelings or a bruised ego are not
by themselves the stuff of constitutional tort.” Zherka, 634
F.3d at 645–46 (citing Sadallah v. City of Utica, 383 F.3d
34, 38 (2d Cir.2004) 0. Although the Second Circuit has not
decided if “allegations of emotional and psychological harm
would establish compensable injury in a First Amendment
retaliation claim,” I recommend that the allegations in regard
to the video do not establish such a compensable injury. See
Zherka, 634 F.3d at 646–47.
The vague allegations about the plumbing license similarly
do not rise to a level sufficient to make out a claim of
constitutional tort. There are no allegations of any concrete
harm to Mr. LaVertu caused by any Town behavior in this
regard, harm such as loss of business or harm to reputation 1 .
Thus, those claims do not provide the actual harm necessary
for a First Amendment retaliation claim.
1 I do not take a position on whether loss of
business or injury to reputation would constitute
such concrete harm.
Nor do the allegations about the summonses suggest
sufficiently concrete or tangible harm so as to satisfy the
pleading standards for a First Amendment retaliation claim.
The retaining wall summons, even viewed as baseless, is too
de minimis in terms of harm for First Amendment retaliation
purposes. 2 If, on the other hand, the court accepted the
plaintiffs' claim that the Certificate of Occupancy summons
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was baseless, it might rise to such a level because it carried
the potential for greater consequences. The record before the
court, however, does not allow an inference of baselessness
to be drawn. As noted, the court can take judicial notice of the
County court documents regarding that summons, and those
documents reflect the fact that Mrs. LaVertu entered a plea of
guilty to the summons. This court will not infer baselessness
under that circumstance. The issue of whether a Letter in
Lieu should have been issued—an issue that presumably will
be decided by the County court—is still open, but there is
nothing to support an inference that the summons itself was
baseless. The plaintiffs argue that even if the summonses
were justified, their retaliation claim is viable if the Town's
motivation for enforcing the Code was retaliatory. See DE[12]
at 19. They do not, however, cite any law to support that
conclusion, which is at odds with the caselaw setting forth the
elements of a First Amendment claim as requiring more than
retaliatory motive.
2 The circumstances of the retaining wall summons
are discussed in the context of the Equal Protection
claim infra.
*8 In their memorandum in opposition to the motion, the
plaintiffs argue that Town Attorney Jacob Turner's refusal
to conference with them about the ongoing Letter in Lieu
dispute is “the essence of First Amendment Retaliation,” but
that allegation is not in the Complaint, and I do not address
it. See DE [12] at 18.
Finally, the Complaint alleges that Jennifer LaVertu has
experienced “severe reoccurring headaches, sleeplessness
and numbness in her fingers and along the left side of
her body,” and that doctors diagnosed stress as a cause
for her physical complaints. Compl., ¶ 63. That stress was
allegedly cause by the Town's retaliatory acts. As noted
earlier, “[h]urt feelings or a bruised ego are not by themselves
the stuff of constitutional tort.” Zherka, 634 F.3d at 645–46.
These allegations, however, describe physical harm. Neither
party addresses the issue of whether these allegations of
physical distress can substitute for the chilling of rights as
concrete harm in a First Amendment retaliation context, and
I have located no cases in this Circuit that have so found. I
recommend that the type of harm that satisfies the concrete
harm requirement not be extended to this sort of injury, which
is quite different from the forms of concrete harm distinct
from the chilling of speech that have been found in other
cases 3 . See, e.g., Dougherty v. Town of N. Hempstead Bd.
of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.2002) (retaliatory
revocation of plaintiff's building permit); Gagliardi v. Village
of Pawling, 18 F.3d 188, 195 (2d Cir.1994) (retaliatory failure
to enforce zoning laws); see also Tomlins, 812 F.Supp.2d at
239 (allegations of retaliatory denial of building permitss and
denial of unconditional variance sufficient concrete harms
to substitute for chilling effects); Puckett, 631 F.Supp.2d
22(First Amendment retaliation claim adequately pled where
plaintiff alleged harm to value of her property as result of
defendants' retaliatory conduct).
3 I note that if District Judge Feuerstein disagrees,
and finds that these allegations do suffice, that
the harm is to Mrs. LaVertu only. Mr. LaVertu
has alleged no such harm to himself. Indeed,
Mr. LaVertu's role in the events outlined in the
Complaint, except for the allegations about his
plumbing business, and the impact of those events
on him, is not clear.
The Second Circuit has observed that “the arena of political
discourse can at times be rough and tough. Public officials
must expect that their decisions will be subjected to withering
scrutiny from the populace. A public official's response to
that criticism is subject to limits, but the injury inflicted
by that response must be real. Without that limitation, the
Constitution would change from the guarantor of free speech
to the silencer of public debate.” Zherka, 634 F.3d at 647. The
Complaint here does not sufficiently set forth a real injury
in First Amendment terms, and I recommend that the First
Amendment Retaliation claim be dismissed without prejudice
and that the plaintiffs be permitted to replead.
Substantive Due Process Claim:
The plaintiffs allege violations of their substantive due
process rights. “ ‘In the zoning context, a government
decision regulating a landowner's use of his property offends
substantive due process if the government action is arbitrary
or irrational. Government regulation of a landowner's use of
his property is deemed arbitrary or irrational, and thus violates
his right to substantive due process, only when government
acts with no legitimate reason for its decision.’ ” Ahmed
v. Town of Oyster Bay, 2014 WL 1092363, *10 (E.D.N.Y.
Mar.18, 2014) (quoting Southview Assoc., Ltd. v. Bongartz,
980 F.2d 84, 102 (2d Cir.1992) (citations and quotation
marks omitted)); see also Merry Charters, LLC v. Town of
Stonington, 342 F.Supp.2d 69, 78 (D.Conn.2004) (explaining
that “denial by a local zoning authority violates substantive
due process standards only if the denial is so outrageously
arbitrary as to constitute a gross abuse of governmental
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authority”). “As for substantive due process, ‘[i]n the context
of a zoning dispute, to state a claim ... for deprivation of
‘property’ without due process of law a person must establish
that he had a valid ‘property interest’ in some benefit that
was protectible under the fourteenth amendment at the time
he was deprived of the benefit.' ” Zito v. Town of Babylon,
534 Fed. Appx. 25, 27 (2d Cir.2013) (citing Brady v. Town
of Colchester, 863 F.2d 205, 211–12 (2d Cir.1988)). The
defendant argues that the property or liberty interest claimed
by the LaVertus is nowhere stated in the Complaint. That is
true, but I assume for purposes of this motion that here, the
property interest at issue is the LaVertu's use and enjoyment
of their home, and I assume that they are alleging that the
summonses against the property have interfered with that use
and enjoyment. However, even if such a property interest
is inferred, this claim is not ripe under the test set out in
Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126(1985),
and should be dismissed without prejudice to renewal.
*9 Following Williamson, the Second Circuit applies “ ‘a
two-pronged test for assessing the ripeness of takings-type
claims.’ ” Zito, 534 Fed. Appx. at 28 (quoting Southview
Associates, Ltd. v. Bongartz, 980 F.2d 84, 95–96 (2d Cir.1992)
(internal citations omitted)). “The first prong requires the
government entity charged with enforcing the regulations
at issue to have rendered a final decision. The second
prong requires the plaintiff to have sought compensation
if the state provides a reasonable, certain and adequate
provision for obtaining compensation.” Id. (internal citations
and quotation marks omitted); see also Dougherty, 282 F.3d at
88. The Second Circuit applies Williamson's “final decision”
requirement to both substantive and procedural due process
claims in the land-use context. Id. (citing Dougherty, 282 F.3d
at 88–89 (procedural due process), Southview, 980 F.2d at 96–
97 (substantive due process)). Here, the dispute about the C of
O/Letter in Lieu is ongoing in the County court, with no final
determination yet reached by the County authorities. It is also
unclear whether the LaVertus have initiated any appeals or
started an Article 78 proceeding. Thus, this court cannot find
that the claim is ripe and I recommend that it be dismissed
without prejudice.
Equal Protection Claim:
The plaintiffs' equal protection claim apparently arises from
their contention that they were issued a summons for the
retaining wall and their neighbors were not. As noted earlier,
they allege that the retaining wall is on the boundary line
between their neighbor's property and their own, and that
the neighbors helped build the wall, but their neighbors were
never issued a summons for lack of a permit, while they
were 4 . Complaint, ¶¶ 32–34. This claim can be analyzed as
selective prosecution or class of one discrimination. Selective
prosecution plaintiffs “have been required to show both (1)
that they were treated differently from other similarly situated
individuals, and (2) that such differential treatment was based
on impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person. Mental
Disability Law Clinic, Touro Law Center v. Hogan, 519 Fed.
Appx. 714, 718 (2d Cir.2013) (citing Cobb v. Pozzi, 363 F.3d
89, 110 (2d Cir.2004) (quoting Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 (2d Cir.2001))).
4 The defendants vigorously deny this, and have
submitted photographs and other evidence that
the wall is on the LaVertus' property. I do not
address the merits of the plaintiffs' allegation. If
the case proceeds, they will have to prove their
allegations. If they replead the Complaint, they may
wish to amend allegations that time has proven
invalid, or they may wish to adhere to their original
allegations.
Under class-of-one discrimination doctrine, “ ‘when it
appears that an individual is being singled out by the
government, the specter of arbitrary classification is fairly
raised, and the Equal Protection Clause requires a rational
basis for the difference in treatment.” Id. (quoting Engquist
v. Oregon Dep't of Agric., 553 U.S. 591, 602, 975, 128
S.Ct. 2146, 170 L.Ed.2d 975 (2008) (internal quotation
marks omitted)). A plaintiff proceeding on a “class of one”
equal protection theory must plead “ ‘an extremely high
degree of similarity between themselves and the persons
to whom they compare themselves.’ ” Sacher v. Village of
Old Brookville, 2013 WL 4780046, *7 (E.D.N.Y. Sept.4,
2013) (quoting Ruston v. Town Bd. for Vill. of Skaneateles,
610 F.3d 55, 59 (2d Cir.2010)). In particular, a class-of-one
plaintiff must establish that “(i) no rational person could
regard the circumstances of the plaintiff to differ from those
of a comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy;
and (ii) the similarity in circumstances and difference in
treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.” Id. (citing Adam
J. v. Village of Greenwood Lake, 2013 WL 3357174 *7
(S.D.N.Y.2013); Viteritti v. Incorporated Vill. of Bayville, 918
F.Supp.2d 126, 135 (E.D.N.Y.2013); MacPherson v. Town
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of Southampton, 738 F.Supp.2d 353, 371 (E.D.N.Y.2010)).
“To state a class of one equal protection claim in a zoning
context, a plaintiff must make more than a general statement
of treatment different from those similarly situated. Even
the mention of particular properties alleged generally to be
similar is insufficient to state a claim. Instead, the properties
cited must be so similar that ‘no rational person could see
them as different ...” Sacher, 2013 WL 4780046 at*7(quoting
Ruston, 610 F.3d at 60). Thus, a plaintiff alleging unfair
treatment in a zoning/building context, must plead specific
examples of applications and hearings that were similar
to plaintiff's application and demonstrative of the disparate
treatment alleged. Id. (citing Amid v. Village of Old Brookville,
2013 WL 527772 *6 (E.D.N.Y.2013).
*10 Under either theory, the plaintiffs have sufficiently
alleged a claim based on the retaining wall summons. The
allegations about their neighbors are sufficient to withstand
the motion to dismiss on an equal protection claim based
on the wall, because the neighbors are valid comparators.
To the extent, if any, that they intended a broader claim
arising from their being issued with summonses while other
Town residents with similar violations were not, such a claim
must be dismissed because no comparators other than their
neighbors are identified. Further, their argument that the Town
Attorney's refusal to conference with them is a violation of
their Equal Protection rights (see DE [12] at 23) will not be
considered, because that allegation does not appear in the
Complaint.
OBJECTIONS
A copy of this Report and Recommendation is being sent
to counsel for the parties by electronic filing on the date
below. Any objections to this Report and Recommendation
must be filed with the Clerk of the Court within 14 days.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a)
and 6(d). Failure to file objections within this period waives
the right to appeal the District Court's Order. See Caidor v.
Onondaga County, 517 F.3d 601, 604 (2d Cir.2008); Cephas
v. Nash, 328 F.3d 98, 107 (2d Cir.2003).
All Citations
Not Reported in F.Supp.3d, 2014 WL 2475566
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LaVertu v. Town of Huntington
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History (3)
Direct History (2)
1. LaVertu v. Town of Huntington
2014 WL 2475566 , E.D.N.Y. , Apr. 04, 2014
Report and Recommendation Adopted in Part by
2. Lavertu v. Town of Huntington
2014 WL 2506217 , E.D.N.Y. , June 02, 2014
Related References (1)
3. LaVertu v. Town of Huntington
2014 WL 6682262 , E.D.N.Y. , Nov. 24, 2014
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LaVertu v. Town of Huntington
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Filings
There are no Filings for this citation.
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2014 WL 2506217
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
John LAVERTU and Jennifer Lavertu, Plaintiffs,
v.
The TOWN OF HUNTINGTON, Defendant.
No. 13–CV–4378 (SJF).
|
Signed June 2, 2014.
Attorneys and Law Firms
Steven A. Morelli, The Law Offices of Steven A. Morelli,
P.C., Garden City, NY, for Plaintiffs.
Paul Bartels, Garden City, NY, Thelma N. Neira, Town of
Huntington, John C. Bennett, Gathman & Bennett, LLP,
Huntington, NY, for Defendant.
OPINION AND ORDER
FEUERSTEIN, District Judge.
*1 Before the Court is the Report and Recommendation
(“Report”) of Magistrate Judge William D. Wall, dated April
4, 2013, recommending that defendant Town of Huntington's
motion to dismiss be granted as to plaintiffs' First Amendment
and Due Process claims and denied as to plaintiffs' Equal
Protection Claim. The Report also recommends that plaintiffs
be given leave to replead. Both parties timely filed objections.
For the following reasons, the Report is adopted to the extent
set forth below and defendant's motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) is GRANTED in
part and DENIED in part.
I. Case History
On August 2, 2013, plaintiffs Jennifer LaVertu and John
LaVertu (“plaintiffs”) filed a complaint against defendant
Town of Huntington (“Town”) alleging that the Town violated
their constitutional rights. Specifically, plaintiffs allege that
after they released a video on YouTube opposing the Town's
proposed housing project, the Town retaliated against them
by releasing its own rebuttal YouTube video, targeting
plaintiffs' home with baseless summonses and interfering
with John LaVertu's plumbing license. The complaint alleges
that the Town's retaliatory acts infringed upon plaintiffs' First
Amendment, Equal Protection and Substantive Due Process
rights.
Defendant filed a motion to dismiss plaintiffs' complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim, which was referred to
Magistrate Judge Wall to report and recommend. The Report
recommends that defendant's motion to dismiss the case,
pursuant to Monell v. Dep't of Social Services of City of
New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978), be denied on the ground the complaint contains
plausible allegations that a municipal custom or policy caused
the violations. The Report also recommends that the case
not be dismissed under the Rooker–Feldman doctrine . 1 As
to plaintiff's First Amendment retaliation claim, Magistrate
Judge Wall recommends it be dismissed without prejudice
and that plaintiffs be permitted to replead to allege a concrete
harm. As to plaintiffs' substantive due process claim, the
Report recommends it be dismissed without prejudice on the
ground it is unripe and that it be raised anew after final
judgment by the Huntington Town Court, Third District. The
Report also recommends that plaintiffs' equal protection claim
go forward as a class-of-one violation based on the retaining
wall summons.
1 Pursuant to the Rooker–Feldman doctrine, a federal
court lacks subject matter jurisdiction over suits
that are, in substance, appeals from state court
judgments. Rooker v. Fidelity Trust Co., 263 U.S.
413, 414–415, 44 S.Ct. 149, 68 L.Ed. 362 (1923);
D.C. Court of Appeals v. Feldman, 460 U.S. 462,
476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
II. Discussion
A. Standard of Review
Title 28 U.S.C. § 636(b)(1)(C) provides that a “judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” See also Fed.R.Civ.P. 72(b)
(3) (“The district judge must determine de novo any part
of the magistrate judge's disposition that has been properly
objected to.”). After reviewing a report, a district court
“may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “[I]n providing for a “de novo
determination” ... Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
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discretion, chose to place on a magistrate's proposed findings
and recommendations.” United States v. Raddatz, 447 U.S.
667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
B. Analysis
Monell Liability
*2 Defendant objects to the Report's finding that plaintiffs
stated a viable Monell claim on the ground plaintiffs failed to
plead deprivation of a constitutional right or damages.
In a motion to dismiss, “ ‘[t]he issue is not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.’ “ Kimbrough v. Town
of Dewitt Police Dep't, No. 03 Civ. 08, 2010 WL 3724121,
at *3 (N.D.N.Y. Mar. 8, 2010) (quoting Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The complaint alleges that plaintiffs released their YouTube
video opposing the housing project on January 28, 2011.
Approximately eight days later, on February 5, 2011, the
Town released its own video entitled “Huntington Speaks”
using an alternative YouTube account. At the end, Huntington
Town Council members take credit for the video, which
publicized information about plaintiffs' real estate taxes.
Compl. ¶¶ 17–21. Councilwoman Susan Bernard allegedly
told plaintiffs that the rebuttal video was specifically made in
response to plaintiffs' video criticizing the Town. Id. at ¶ 27.
On June 6, 2011, the Town voted on and approved a change in
zoning to accommodate the housing project. Id. at ¶ 29. The
next day, June 7, 2011, plaintiffs received a summons for a
stone retaining wall on the boundary line between plaintiffs
and their neighbor, yet the neighbor was not ticketed. Id. at ¶
32. After plaintiffs proved that the neighbors owned the wall,
the summons against plaintiff was dismissed, however, the
neighbor was not ticketed. Id. at ¶ 34.
On June 7, 2011, plaintiffs were also ticketed because they
had no certificate of occupancy for their home. Id. at ¶ 35. On
February 14, 2012, they requested a town inspection to obtain
approval for a “letter-in-lieu” of a certificate of occupancy
(the “Letter”). On February 21, 2012, the inspector issued a
Final Inspection for Construction prior to 1934, which found
that the structure was safe and the Letter was approved. Id. at
¶¶ 36, 37. According to the complaint, nearly eight (8) months
later and without reason or justification, Jennifer LaVertu was
advised that the inspector's Letter had been “discredited.” 2
Id. at ¶ 38. On April 4, 2012, John LaVertu saw the inspector
who approved the Letter who told plaintiff that he was being
written up for not doing his job when he inspected plaintiffs'
home and that the subsequent denial of the Letter was part of
a “witch-hunt” against plaintiffs. Id. at ¶ 39. After speaking
with the inspector, John LaVertu called the Town official,
who advised plaintiff it was not safe to speak on his Town
issued cell phone and that he would call plaintiff back from
his private cell phone. Id . at ¶ 40. The Town official called
plaintiff and advised him that the Town attorney, John Leo,
had approached him and demanded the inspector be written
up. The Town official vehemently disagreed with Mr. Leo,
but Mr. Leo insisted, stating that it was an order from “higher
ups,” specifically Patricia DelCol, Deputy Supervisor for the
Town of Huntington. Id. at ¶¶ 41, 42. The Town official
stated, “in my 24 years I have never seen [the Town] go after
anyone so strongly,” in reference to plaintiffs. Id. at ¶ 43.
After John LaVertu explained that plaintiffs thought the Town
had retaliated against them after they objected to the housing
project, the official stated, “yep, that is what they do, now I
understand, but I have never seen them go after anyone like
this.” Id. at ¶ 44.
2 Plaintiffs allege that Jennifer LaVertu found out
nearly “eight (8) months” later that the letter-
in-lieu had been discredited (Compl.¶ 38), but
according to the next allegation, John LaVertu saw
the inspector on April 4, 2012 or approximately two
(2) months after the inspection. Id. at ¶ 39.
*3 Accepting the foregoing as true, plaintiffs' allegations
raise an inference that the Town had a policy or custom of
targeting private citizens who criticized the Town's actions.
Accordingly, that portion of the Report which recommends
denying the Town's motion to dismiss this case based on
Monell is adopted and defendant's objections are overruled.
First Amendment Retaliation Claim
Plaintiffs object to the Report's recommendation that their
First Amendment claim be dismissed without prejudice and
they be permitted to replead to allege a concrete harm. They
argue that the summonses issued for the retaining wall and
certificate of occupancy constitute sufficient harm to sustain
their retaliation claim.
To establish a retaliation claim under § 1983 in cases
involving criticism of public officials by private citizens,
a plaintiff must show that “(1) his conduct was protected
by the First Amendment and (2) such conduct prompted or
substantially caused defendant's action .” Dougherty v. Town
of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83,
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91 (2d Cir.2002) (internal citations omitted). In addition,
the Second Circuit generally “impose[s] an actual chill
requirement for First Amendment retaliation claims.” Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004). See Zherka v.
Amicone, 634 F.3d 642, 645 (2d Cir.2011) (“[P]rivate citizens
claiming retaliation for their criticism of public officials have
been required to show that they suffered an ‘actual chill’ in
their speech as a result.”) (citing Gill, 389 F.3d at 381); Spear
v. Town of West Hempstead, 954 F.2d 63, 68 (2d Cir.1992)
(First Amendment retaliation claim properly dismissed where
plaintiff continued to speak out after government's allegedly
adverse actions).
“However, in limited contexts, other forms of harm have
been accepted in place of this ‘actual chilling’ requirement.”
Zherka, 634 F.3d at 645. Thus, the Second Circuit has
described “the elements of a First Amendment retaliation
claim in several ways, depending on the factual context.”
Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d
Cir.2008). See Dougherty, 282 F.3d at 91 (finding adequate
harm where complaint alleged that plaintiff's building permit
was revoked days after he opposed municipality's motion
to dismiss); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195
(2d Cir.1994) (upholding retaliation claim where defendant
municipality refused to enforce zoning laws on behalf of
plaintiffs); Tomlins v. Vill. of Wappinger Falls Zoning Bd.
of Appeals, 812 F.Supp.2d 357, 371 n. 17 (S.D.N.Y.2011)
(retaliation claim stated where plaintiff alleged that zoning
board denied building permit and an unconditional variance
in retaliation for prior litigation against municipality).
“Despite these limited exceptions, as a general matter, First
Amendment retaliation plaintiffs must typically allege ‘actual
chilling.’ “ Zherka, 634 F.3d at 645.
Plaintiffs contend that the fact that the Town cited them for
the retaining wall, which actually belongs to their neighbors,
is evidence of a concrete harm. Plaintiffs had to respond
to the summons, execute a land survey and coordinate with
the Town Inspector to prove that the retaining wall was not
theirs. 3 These allegations do not amount to First Amendment
harm.
3 In their objections, plaintiffs argue that had
plaintiffs failed to respond to the summons, a
warrant would have issued for their arrests and
they would have been imprisoned. DE 21 p. 8.
They argue that Magistrate Judge Wall overlooked
these scenarios by finding that the retaining wall
summons was de minimus. Id. I disagree. First
Amendment harm cannot be based on speculation
or supposition.
*4 As to the summons for lack of a Certificate of
Occupancy, plaintiffs advise the Court that the District Court
of the County of Suffolk, Third District (“the Town court”)
dismissed the pending action against Jennifer LaVertu on her
motion to vacate the Conditional Discharge and/or dismiss
a Declaration of Delinquency. DE 21–2 p. 23. Because
defendant objects to Magistrate Judge Wall's recommendation
that the Court sua sponte grant plaintiffs leave to replead
their First Amendment claim to allege a concrete harm, the
recommendation is adopted to the extent that plaintiffs' First
Amendment retaliation claim is dismissed without prejudice
and if they choose, plaintiffs may move for leave to amend
their complaint to give defendant an opportunity to oppose
the motion.
Substantive Due Process Claim
Plaintiffs object to the Report's recommendation that their
substantive due process claim be dismissed without prejudice
because the certificate of occupancy/Letter issues had not
been decided by the town court. As discussed above, while
this motion was pending, the Town court rendered a decision
granting plaintiff Jennifer LaVertu's Town court motion and
holding that she satisfied her promises in the Conditional
Discharge. DE 21–2 p. 25. Plaintiffs' objections contain
allegations about the decision that are not part of the
complaint. Accordingly, the Report is adopted to the extent
plaintiffs' Due Process claim is dismissed without prejudice.
Equal Protection Claim
Defendant objects to the Report's recommendation that
plaintiffs' Equal Protection claim be allowed to proceed as a
class-of-one action based on the summons for the retaining
wall.
Defendant complains that the Report did not address People v.
Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139,
143 (N.Y.1972), which held that a claim of discriminatory
enforcement “should not be considered as an affirmative
defense to [a] criminal charge ... but, rather, should be
addressed to the court before trial as a motion to dismiss the
prosecution upon constitutional grounds.” The Town argues
that plaintiffs failed to make such a motion.
“ ‘By definition, federal law, not state law, provides the
source of liability for a claim alleging the deprivation of a
Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 35 of 56

Lavertu v. Town of Huntington, Not Reported in F.Supp.3d (2014)
2014 WL 2506217
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
federal constitutional right.’ “ Pilchman v. Dep't of Defense,
154 F.Supp.2d 415, 421 (E.D.N.Y.2001) (quoting F.D.I.C. v.
Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308
(1994)). Because plaintiffs bring their equal protection claim
pursuant to the Fourteenth Amendment and 42 U .S.C. § 1983,
federal law applies to their claim and therefore, they were not
required to bring a motion to dismiss in state court prior to
filing their federal complaint.
As the remainder of defendant's objections lack merit, the
Report's recommendation that defendant's motion to dismiss
be denied as to plaintiff's equal protection claim is adopted
and, accordingly, defendant's motion is denied as to this claim.
III. Conclusion
For the foregoing reasons, the Report is adopted to the extent
indicated and accordingly, defendant's motion to dismiss this
case on Monell grounds is denied. The motion is also denied
with respect to plaintiffs' Equal Protection claim. The motion
is granted for failure to state a claim as to plaintiffs' First
Amendment Retaliation and Due Process claims and those
claims are dismissed without prejudice.
*5 SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 2506217
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 36 of 56

Lavertu v. Town of Huntington
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. LaVertu v. Town of Huntington
2014 WL 2475566 , E.D.N.Y. , Apr. 04, 2014
Report and Recommendation Adopted in Part by
2. Lavertu v. Town of Huntington
2014 WL 2506217 , E.D.N.Y. , June 02, 2014
Related References (1)
3. LaVertu v. Town of Huntington
2014 WL 6682262 , E.D.N.Y. , Nov. 24, 2014
Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 37 of 56

Lavertu v. Town of Huntington
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings
There are no Filings for this citation.
Case 1:25-cv-01442-GTS-MJK Document 5 Filed 11/13/25 Page 38 of 56

Case 1:25-cv-01442-GTS-MJK Document5 Filed 11/13/25 Page 39 of 56

> Positive

As of: November 13, 2025 1:55 PM Z

Perez v. Amato

United States District Court for the Northern District of New York
June 13, 2013, Decided; June 13, 2013, Filed
No. 12-CV-623 (TJM/CFH)

Reporter
2013 U.S. Dist. LEXIS 100689 *

JOSE A. PEREZ, Plaintiff, v. MICHAEL J. AMATO, Sheriff, MICHAEL FRANKO, Jail
Administrator; Defendants.

Subsequent History: Adopted by, Summary judgment granted, in part, summary judgment
denied, in part by Perez v. Amato, 2013 U.S. Dist. LEXIS 99607 (N.D.N.Y, July 17, 2013)

Core Terms

inmates, classification, confinement, mail, defendants’, regulations, sex offender, housed, due
process, segregation, conditions, protective custody, jail, administrative segregation, material
fact, placement, proffered, quotation, slander, criminal history, notice, marks, qualified immunity,
articulated, screening, sex, constitutional right, general population, summary judgment, sex
offense

Counsel: [*t] JOSE A. PEREZ, Plaintiff, Pro se, Amsterdam, New York.

For Defendants: MURRY S. BROWER, ESQ., OF COUNSEL, LAW OFFICE OF THERESA
PULEO, Albany, New York.

Judges: Christian F. Hummel, U.S. MAGISTRATE JUDGE.

Opinion by: Christian F. Hummel

Opinion

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER'

‘This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b} and N.D.N. ¥.LAR.
72.3(¢).

Chaim Jaffe

Case 1:25-cv-01442-GTS-MJK Document5 Filed 11/13/25 Page 40 of 56
2013 U.S, Dist. LEXIS 100689, *1

Plaintiff pro se Jose Perez ("Perez"), an inmate previously in custody at a loca! jail, brings this
action pursuant to 42 U.S.C. § 1983 alleging that defendants, the Montgomery County Sheriff
and Jail Administrator, violated his constitutional rights. Compl. (Dkt. No. 1). Presently pending
is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 19. Perez
has not responded to the present motion. For the following reasons, it is recommended that
defendants’ motion be granted in part and denied in part.?

|. Failure to Respond

Perez did not oppose defendants’ motion. "[Jjudgment should not be entered by default against
a pro se piaintiff who has not been given any notice that failure to respond will be deemed a
default.” Champion v, Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Defendants’ provided such notice
in the notice of motion, stating that Perez "must respond by affidavits or as otherwise provided in
the rule, setting forth specific facts showing that there is a genuine issue of material fact for trial.”
Dkt. No. 19 at 1. Moreover, the Court provided notification to Perez regarding both the date of
his response and the consequences of failing to respond. Dkt. No. 20. Perez even requested,
and was granted, an extension to respond. Dkt. Nos. 21-22. Despite such notice and the
extension, Perez failed to respond. Because Perez has not responded [*3] fo raise any
question of material fact, to the extent defendants have pled properly su pported facts, such facts
as set forth by defendants are accepted as true. See Cusamano v. Sobek, 604 F. Supp. 2d 416,
452-453, 453 n.48 (N.D.N.Y. 2009); see also N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem
admitted any properly supported facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.") (emphasis in original).

ll. Background

A. Involuntary Protective Custody

Revised in January 2010, Montgomery County Correctional Facility ("Montgomery") had a
specific policy regarding administrative segregation for protective custody. Dkt. No. 19-1 at 51,
54. After an inmate had undergone screening and classification, he could be assigned to
protective custody, being locked in his cell for twenty-three hours a day for a sixty day period of
time. Id. at 54. However, the inmate could seek review of said classification, through a written
request to the jail administrator, after sixty days provided "there [wa]s no further threat to [the
inmate's] safety . . . . Id. If such a threat remained, the inmate's situation may be re-evaluated
every thirty days until [*4] such time as the threat dissipated. Id.

2Defendants move for summary judgment contending that (1) Perez's Equal Protection claims were meritless; (2) they are
protected by qualified immunity;(3) Perez has failed to allege a physical injury sufficient to grant him the damages he seeks and
(4) [*2] Perez's state law claims need to be dismissed for his failure to comply with the notice of claim requirement. Defs Mem.
of Law (Dkt. No. 19 at 6-15) at 4-9, Defendants fail to discuss the merit of Perez's inartfully pled First Amendment legal mail
claims or any potential due process claims which, for the reasons stated infra, should not be dismissed.

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2013 U.S. Dist. LEXIS 100689, *2

Perez arrived at Montgomery on December 19, 2011 for a parole violation. Franko Aff. (Dkt. No.
19 at 36-42) § 2; Dkt. No. 19 at 48 (Montgomery New Admissions form indicating that Perez was
detained for a parole violation). Upon arrival, all inmates are processed and evaluated for
placement in the appropriate housing unit consistent with the policy outlined above. Franko Aff.
1 3; Id. 7 6 (explaining that classification officers consider an inmate's “past criminal history. . .
and information if that person has been in the jail on other occasions,” as well as interviewing
the inmate). Perez's classification was determined after evaluating "the charges pending and his
past history of [sex based] criminal offenses . . . [for which defendants concluded that Perez]
was therefore considered to be vulnerable to injury from inmates housed in the regular
population." Franko Aff. | 5; see also Dkt. No. 19 at 58-61 (inmate classification form awarding
(1) ten points for a request or requirement of administrative segregation for safety purposes; (2)
three points for a previously being detained at Montgomery; (3) twenty points for current charges
of a parole [*5] warrant; (4) twenty points for a prior violent felony or sex offense; (3) various
points for substance abuse and having a mental health history; and (4) twenty points for having
a pending warrant regarding a violent felony or sex offense felony and determining that Perez
required protective custody and close supervision despite a lack of any victimization history "due
to convictions, previous, safety [and] security of facility.").

After spending approximately one day undergoing classification, on or about December 20,
2011, Perez received notification that Classification Officer Payne had administratively
segregated Perez into involuntary “protective custody [hereinafter "IPC"] for his own personal
safety.” Dkt. No. 19 at 51; but cf Franko Aff. §§ 3-4 (indicating that Perez was placed into IPC on
December 20, 2012 but that his classification was completed on December 26, 2011 whereupon
he was still classified as an IPC inmate). Perez signed the Administrative Segregation Notice
Form indicating that he was being placed in IPC for his own protection. Dkt. No. 19 at 51.

"In the late fall of 2010 and continuing into the winter and spring of 2011[] the inmate population
of Montgomery . . [*6]. was growing[; thus] the Sheriff and [Administrator] began to discuss
how the rising population might impact the safety of inmates and... of corrections officers
assigned to the various pods . . . ." Franko Aff. {| 8. Specifically during this time period, there
was "a rise in the population of sex offenders[, which] . . . was a concern given that sex
offenders are often victimized in a correction setting when housed in the general population."
Franko Aff. 9. This also caused a concern for the safety of the correctional staff "who intervene
to break up fights and provide a higher level of protection to the vulnerable population.” Id.

While in IPC, it is undisputed that Perez was locked in his cell for twenty-three hours a day, with
one hour of recreation during which he could use the phone or shower. Franko Aff. q] 10
(confirming that the sex offenders were locked down for twenty three hours a day because
"while [defendants] would have liked to have given each of the persons housed at the jail the
ability to move about the pod, this was not possible because of the number of persons the
facility was housing and . . . the then current staffing levels."); Id. {| 11 (explaining that [*7] !PC
inmates "were not given the option to join the general population [yet while in [IPC, inmates]...
were allowed out of their cells for one hour each day for recreation, showers, etc."). During the
time period in question, while he was in IPC, Perez was upset that defendants "tamper[ed] with
[his] legal mail and discriminat[ed against him] by [classifying him] in [jPC against [his] will."
Compl. at 4.

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2013 U.S. Dist. LEXIS 100689, *7

Defendants emphatically state that placement in IPC was not punitive, but prophylactic. Franko
Aff. 1 14 (explaining IPC placements were “intended primarily to address the conditions at the
jail of a higher than normal population of sex offenders who belong to a class of inmates who
are most often targeted for victimization."). Defendants also contend that IPC inmates could
participate in educational activities, just not with those inmates in general population, and
shower during recreation. Franko Aff. 13. While Perez states that defendants tampered with
his legal mail, nothing in Perez's file shows he ever "filed a grievance about alleged tampering
with legal mail or claimed that he was slandered." Franko Aff. § 17.

Perez proffers that he asked for a grievance form and was refused. [*8] Compl. at 2. Pursuant
to "State of New York Commission of Corrections [(hereinafter "COC")] rules, classification and
placement in [IPC] is not grievable . . . ." Franko Aff. § 15. Additionally, Perez's file "does not
[contain a request for Franko to] . . . review his classification . . . ." Id. Franko asked Officer
Payne to review Perez's classification status on March 19, 2012. Franko Aff. ] 15; see also Dkt.
No. 19 at 54-57 (inmate classification form completed by Officer Payne on March 21, 2012).
Concurrently, in March of 2012 it was suggested to Franko, by a COC representative that IPC
inmates' classifications be reviewed “to ensure that those in [IPC] . . . needed to be there."
Franko Aff. § 15; see also Dkt. No. 19 at 51 {indicating that “at the behest of . .. COC, [Perez's]
classification has been reviewed" and ultimately discontinued). As a result, Perez was
reclassified and taken out of IPC. Franko Aff. 15; Dkt. No. 19 at 56.

Defendants assert that during the meeting with the COC, Franko “was informed that
[Montgomery's] classification scheme was not incorrect [and] . . . thle] evaluation forms being
used did not discriminate . . . It was merely suggested that... Montogomery [*9] . . . review its
procedures to insure that those in protective custody needed to be there." Franko Aff. 7 21.
Perez spent approximately three months in IPC custody.

B. Prior Incarcerations at Montgomery

Perez was previously incarcerated at Montgomery in 1999, 2005, and most recently, for a parole
violation in 2011. Franko Aff. § 2. In May of 2005, Perez was charged with a sexual offense. Dkt.
No. 19-1 at 14. He underwent a slightly different classification whereupon he was awarded (1)
thirty-three points for the severity of his current charges of a violent felony or sexual offense
felony and (2) ten points for prior misdemeanor charges. Dkt. No. 19-1 at 21-23. Perez received
a medium classification and "was offered protective custody — he declined, stat[ing] that he will
advise [Montgomery] if he has problems." Dkt. No. 19-1 at 24.

Perez was next violated on parole in November of 2010, appearing intoxicated upon his
admission to Montgomery. Dkt. No. 19 at 81. Classification was pursuant to identical categories
and the same form as that utilized during the time in question. Perez was awarded (1) ten points
for requesting or requiring administrative segregation for safety; (2) twenty-two [(*10] points for
current charges of a parole warrant; (3) twenty points for a prior violent felony or sex offense
felony; (4) nine points for alcohol dependance issues; (5) twenty-five points for a mental heaith
history; (6) fifteen points for institutional misconduct; and (7) forty points for assault or attempted
assaults on staff or inmates, resulting in a close custody classification and IPC because Perez

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2013 U.S. Dist. LEXIS 100689, *10

was "[flound guilty of assault and fighting [in] . .. 2000 with another inmate [as well as] for [his]
own personal safety due to previous charges . . . [and presumably, his self-admitted] alcohol
problem.” Dkt. No. 19 at 71; see also Dkt. No. 19 at 68 (Administrative Segregation Notice Form
signed by Perez on November 25, 2010).

lll. Discussion

In his complaint, Perez seeks "comprehensive, punitive, damages, {sic] of slander, ctitisizim
[sic], tamperin [sic] with [his] legal mail and discrimination by putting [Perez] in [IJPC against [his]
will." Compl. at 4. Such bare and conclusory claims are impossible to decipher. However,
liberally reading that claim in conjunction with the inmate record that defendants provided, along
with defendants’ moving papers, Perez's complaint can be construed [*11]to present
Fourteenth Amendment claims alleging due process and equal protection infringements, as well
as a First Amendment violation. Defendants seek dismissal contending that (1) Perez's Equal
Protection claim is meritless; (2) they are entitled to qualified immunity; (3) the Prisoner
Litigation Reform Act ("PLRA") precludes any recovery given the lack of physical injuries; and
(4) the Court should refuse to exercise supplemental jurisdiction over Perez's slander claims.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material
fact if supported by affidavits or other suitable evidence and the moving party is entitled to
judgment as a matter of law. The moving party has the burden to show the absence of disputed
material facts by informing the court of portions of pleadings, depositions, and affidavits which
support the motion. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 377, 323, 106 S. Gt
2548, 91 L. Ed. 2d 265 (1986). Facts are material if they may affect the outcome of the case as
determined by substantive law. Anderson v, Liberty Lobby, 477 U.S. 242, 248, 1 06S. Ct 2505,
91 L. Ed. 2d 202 (1986). All ambiguities are resolved and all reasonable inferences are drawn in
favor of the [*12] non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial.
The non-moving party must do more than merely show that there is some doubt or speculation
as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). It must be apparent that no rational finder of
fact could find in favor of the non-moving party for a court to grant a motion for summary
judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham
v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).

When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-
movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 477, 477 (2d Cir.
2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special
solicitude," . . . that a pro se litigant's submissions must be construed "liberally,”. . . and that

Chaim Jaffe
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2013 U.S. Dist, LEXIS 100689, *12

such submissions must be read to raise the strongest arguments that they "suggest,".... At
the same time, our cases have also [*13] indicated that we cannot read into pro se
submissions claims that are not "consistent" with the pro se litigant's allegations, . . . or
arguments that the submissions themselves do not "suggest," . . . that we should not
"excuse frivolous or vexatious filings by pro se litigants," . . . and that pro se status "does not
exempt a party from compliance with relevant rules of procedural and substantive law... ."

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d
185, 191-92 (2d Gir, 2008) ("On occasions too numerous to count, we have reminded district
courts that 'when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings
liberally." (citations omitted)). However, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion; the requirement is
that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. First Amendment

"A prisoner's right to the free flow of incoming and outgoing mail is protected by the First
Amendment." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citations omitted). In order to
state a claim for denial [*14] of access to the courts, including those premised on interference
with legal mail, a plaintiff must allege "that a defendant caused ‘actual injury,’ i.e. took or was
responsible for actions that ‘hindered [a plaintiffs] efforts to pursue a legal claim.” Id. (citing
Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343,
351, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996)). Such injury must affect "a nonfrivolous legal
claim [which] had been frustrated or was being impeded due to the actions of prison officials."
Warburton v. Underwood, 2 F. Supp. 2d 306, 312 (W.D.N.Y. 1998) (citations omitted); Shine v.
Hofman, 548 F. Supp. 2d 112, 117-18 (D. Vt. 2008} (explaining that actual injury "is not satisfied
by just any type of frustrated legal claim because the Constitution guarantees only the tools that
inmates need in order to attack their sentences . . . and . . . challenge the conditions of their
confinement.") (internal quotation marks and citations omitted). Accordingly, without
identification of the underlying action which was prejudiced, actual injury, and by extension a
First Amendment violation, cannot be established. See Christopher v. Harbury, 536 U.S. 403,
415, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002) ("[T]he underlying [*15] cause of action .. . is
an element that must be described in the complaint, just as much as allegations must describe
the official acts frustrating the litigation.”).

Perez's claims fail to establish any sort of plausible First Amendment claim. All Perez states, in a
conclusory manner, is that defendants tampered with his mail. Perez fails to include any facts
about when, what or how often said tampering occurred. Moreover, Perez fails to indicate what
injury he sustained as a result of said tampering.

"A prisoner's right to receive and send mail, however, may be regulated." Johnson v, Goord, 449
F.3d 532, 534 (2d Cir. 2006) (citations omitted). While legal mail is afforded the greatest
protection, "greater protection [is afforded] to outgoing mail than to incoming mail." Davis, 320
F.3d at 351 (citations omitted). The Second Circuit has determined two different tests by which
to evaluate whether infringements on inmate correspondence were constitutionally justified.

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2013 U.S. Dist. LEXIS 100689, *15

Compare Davis, 320 F.3d at 351 ("Restrictions . . . are justified only if they further one or more
of the substantial governmental interests of security, order, and rehabilitation and must be no
greater than is necessary [*16] or essential to the protection of the particular government
interest involved.") with Johnson, 445 F.3d at 534-35 (applying the Turner test to prisoner's
challenge on regulating mail which asks whether (1) there is “a valid, rational connection
between the prison regulation and the legitimate government interest . . . [(2)] whether there are
alternate means of exercising the right [for inmates; (3)] . . . the impact accommodation of the
right . . . will have on [DOCS; and (4)] . . . proposed alternatives.") {internal quotation marks and
citations omitted).

To the extent a policy exists for inspecting mail, defendants explain that:
[elach piece of mail that is received at . .. Montgomery . . . is screened for contraband. No
mail is opened or read that is sent to an inmate or received by an inmate. Each piece of mail
received is logged on records maintained by . . . Montgomery . . . Perez has not identified
when or what portions of his mail he alleges were tampered with and therefore no records
have been provided.

Franko Aff. § 23. Regardless of which test is utilized, defendants’ policy of inspecting mail to
prohibit contraband from entering the facility is justified. Thus, to the extent [*17] this policy did
result in any potential interference, such actions were justified. These regulations touch at the
heart of defendants’ duties to protect government's security and order and are no greater than
necessary. As Franko outlined, mail is screened but not unilaterally and discriminately opened.
Furthermore, a general screening policy is consistent with legitimate penological interests. See
eg. Wolff v. McDonnell, 418 U.S. 539, 575-76, 94 S. Ct. 2963, 47 L. Ed. 2d 935 (1974)
(explaining that while the First Amendment protects against censorship of mail, "freedom from
censorship is not equivalent to freedom from inspection or perusal.") (citations omitted).

Accordingly, to the extent Perez attempts to articulate a First_ Amendment claim, such
contentions are insufficient to establish a constitutional violation.

C. Fourteenth Amendment

1. Due Process?

The Due Process Clause of the Fourteenth Amendment states that "[nJo State shall . . . deprive
any person of life, liberty, or property without due process of law.” U.S. Const. Amend. XIV § 1.
It is important to emphasize that due process "does not protect against all deprivations of liberty.
It protects [*18] only against deprivations of liberty accomplished without due process of the
law." Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 67 L. Ed. 2d 433 (1979) (internal
quotation and citations omitted). "A liberty interest may arise from the Constitution itself, ... or it
may arise from an expectation or interest created by state laws or policies." Wilkinson v. Austin,
545 U.S. 209. 221, 125 S. Ct. 2384, 162 L. Ed. 20 174 (2005) (citations omitted). An inmate

3 Defendants’ memorandum of law did not address any due process issues.

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2013 U.S. Dist. LEXIS 100689, *18

retains a protected liberty interest to remain free from segregated confinement if the prisoner
can satisfy the standard set forth in Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293,
132 L. Ed, 2d 418 (1995).

a. Procedural Due Process

To state a claim for procedural due process, there must first be a liberty interest which requires
protection. See generally Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) ("[P]rocedural due
process questions [are analyzed] in two steps: the first asks whether there exists a liberty or
property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.") (citing Kentucky
Dep't of Corr. v. Thompson, 490_U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)). The
Second Circuit has articulated a two-part test whereby the [*19] length of time a prisoner was
placed in segregation as well as "the conditions of the prisoner's segregated confinement
relative to the conditions of the general prison population” are to be considered. Vasquez v.
Coughlin, 2 F. Supp. 2d 255, 259 (N.D.N.Y. 1998). This standard requires a prisoner to establish
that the confinement or condition was atypical and significant in relation to ordinary prison life.
See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999): Frazier v. Coughlin, 81 F.3d 313, 317
(2d Cir.1996). This analysis is applicable to confinement for either punitive or administrative
reasons. Arce v. Walker, 139 F.3d 329, 334-35 (2d Cir. 1998).

While not a dispositive factor, the duration of a disciplinary confinement is a significant factor in
determining atypicality. Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citations omitted).
The Second Circuit has not established "a bright line rule that a certain period of SHU
confinement automatically fails to implicate due process rights." Palmer v. Richards, 364 F.3d
60, 64 (2d Cir. 2004) (citations omitted). Instead, the Second Circuit has provided guidelines that
"Ww]here the [*20] plaintiff was confined for an intermediate duration—between 101 and 305
days-development of a detailed record of the conditions of confinement relative to ordinary
prison conditions is required." /d. at 64-65 (citing Colon, 215 F.3d at 232). In the absence ofa
dispute about the conditions of confinement, summary judgment may be issued "as a matter of
law." Id. at 65 (citations omitted). Conversely, where an inmate is confined under normal SHU
conditions for a duration in excess of an intermediate disposition, the length of the confinement
itself is sufficient to establish atypicality. Id. (citing Colon, 215 F.3d at 231-32). Also, "[i]n the
absence of a detailed factual record, cases in this Circuit typically affirm dismissal of due
process claims where the period of time spent in SHU was short - e.g. 30 days - and there was
no indication [of] . . . unusual conditions." Harvey v. Harder, No. 09-CV-154 (TJM/ATB), 2012
U.S. Dist. LEXIS 132248, 2012 WL 4093791, at *6 (N.D.N.Y. July 37, 2072) (citing inter alia
Palmer, 364 F.3d at 65-66).4

j. Initial Placement in IPC

4 All unreported decisions are attached as exhibits to this Report-Recommendation.

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New York regulations require "chief administrative officer[s] of each [local [*21] or county]
correction facility [to] establish, implement, and maintain a formal and objective system for the
consistent classification of all inmates.” N.Y. Comp. Codes R. & Regs. Tit. 9, § 7013.1. These
detailed regulations provide (1) various classification categories (Id. § 7073.4); (2) provisions for
a screening instrument which records information regarding the inmate's physical and mental
health, criminal history, incarceration history, and any other relevant information (Id. § 7073.7);
(3) requirements that classification be generally determined within five business days of
admission into the facility (id. § 7013.8); and (4) conditions under which an inmate's
classification should be changed (Id. § 7073.9).

The Montgomery policies regarding classification reference the above regulations. Dkt. Dkt. No.
19-1 at 54. Specifically, the Montgomery policy states that initial screening and risk assessment
will occur and classification will generally happen within five business days. Id. (citing N.Y.
COMP. CODES R. & REGS. TIT. 9, § 7013). Additionally, the policy provides that

INMATES WHO . . . HAVE BEEN ASSIGNED TO PROTECTIVE CUSTODY
SEGREGATION AFTER THE COMPLETION OR DURING THEIR CLASSIFICATION
[*22] SCREENING WILL BE SUBJECT TO A 23 HOUR A DAY LOCK IN STATUS AND
WILL BE HOUSED SEPARATELY FROM GENERAL POPULATION, FOR A MANDATORY
60 DAY PERIOD OF TIME. AFTER 60 DAYS YOU MAY REQUEST, IN WRITING, TO THE
JAIL ADMINISTRATIVE OFFICER A CHANGE IN YOUR PROTECTIVE CUSTODY
STATUS. IF IT IS DETERMINED THAT THERE IS NO FURTHER THREAT TO YOUR
SAFETY, YOU WILL BE TAKEN OUT OF PROTECTIVE CUSTODY AND MOVED INTO
GENERAL POPULATION. HOWEVER, IF IT IS DETERMINED THAT A THREAT TO YOUR
SAFETY STILL EXISTS, YOU WILL BE KEPT IN PROTECTIVE CUSTODY AND YOUR
SITUATION WILL BE RE-EVALUATED EVERY 30 DAYS AFTER UNTIL SUCH TIME THAT
NO THREAT EXISTS.

Id. (citing N.Y. Comp. Copes R. & ReGs. TIT. 9, § 7013) (emphasis in original). While not
specifically articulated in the policy, defendant Franko affirmed, and the jail intake forms
corroborated, that the same categories were used when classifying inmates as those articulated
in the New York regulations. Most specific to this case was Perez's past criminal history and sex
offender status.

It is undisputed that initially, during classification, Perez spent a day segregated for classification
purposes. This time, in and of itself, is insufficient to establish a protected [*23] liberty interest.

Moreover, "[t]he [Supreme] Court has counseled judicial restraint in the federal courts' review of
prison policy and administration, noting that courts are ill equipped to deal with the increasingly
urgent problems of prison administration and reform." Giano v. Senkowski, 54 F.3d_1050, 1053
(2d Cir. 1995) (internal quotation marks and citations omitted). The balancing test articulated in
Turner v. Safely has been deemed uniquely instructive in considering whether “a prison
regulation infringing on an inmate's constitutional rights is valid[,] so long as the regulation is
reasonably related to the legitimate penological interests." Harvey, 2072 U.S. Dist. LEXIS
132248, 2012 WL 4093791, at *7 (citing Turner, 482 U.S. at 89).

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The Turner Court determined that the four factors to be considered are: 1) whether there is a
rational relationship between the regulation and the legitimate government interests
asserted; 2) whether the inmates have alternative means to exercise the right; 3) the impact
that accommodation of the right will have on the prison system; and 4) whether ready
alternatives exist which accommodate the right and satisfy the governmental interest.

Benjamin, 905 F.2d at 574 (citing Turner v. Safley, 482 U.S. 78, 89-91, 107 S. Ct, 2254, 96 L.
Ed. 2d 64 (1987).

A [*24] recent case in the Northern District of New York has already deemed the initial,
temporary segregation of an inmate in a county jail during classification procedures valid and not
an infringement upon due process protections. Harvey, 2072 U.S. Dist. LEXIS 132248, 2072 WL
4093791, at *7. In that case, the county jail had identical initial classification policies also based
on the New York regulations.

Until an inmate is screened for prior violence; propensity for victimization; possible enemies;
behavior; and adjustment, the facility administrators have no way of knowing where the best
place to house the inmate will be. Thus, a short classification period in administrative
segregation in order to complete this objective is a completely reasonable restriction on an
inmate's liberty.

Harvey, 2012 U.S. Dist. LEXIS 132248, 2012 WL 4093791, at *7. For substantially similar
reasons, to the extent that Perez challenges his initial classification period spent in segregation,
such contentions are insufficient to establish a due process violation.

ii. Continued Placement in IPC

As previously explained, duration of confinement alone is not a dispositive factor in determining
whether due process rights were infringed. Defendants continually contend that Perez's
[*25] confinement was administrative and prophylactic, not disciplinary. See e.g. Cofon v.
Goord, No. 05-CV-129 (TJM/GJD), 2008 U.S. Dist. LEXIS 22187, 2008 WL 783364, at *7
(N.D.N.Y. Mar. 20, 2008) {explaining that in the NYS Department of Corrections and Community
Supervision ("DOCCS") facilities, which fall under different regulations but have analogous
housing classifications, "IPC is not a disciplinary unit . . . .") (emphasis in original). However, the
undisputed housing conditions for Perez in IPC, particularly being locked in one's cell for twenty-
three hours a day, were more analogous to disciplinary confinement than segregation. See e.g.
Id. (explaining that in the DOCCS facilities "IPC inmates are afforded more privileges and have
less restrictions than Ad[ministrative] Seg[regation] inmates . . . [who] are subject to the same
restrictions as disciplinary S[pecial ]H[ousing ]U[nit] inmates . . . ."). This was acknowledged by
the COC when it urged Montgomery to reevaluate the classification of all IPC inmates, to ensure
that the classification was resulting in the appropriate inmates being housed under such
restrictive conditions. Accordingly, although not quite as long as the intermediate standard
articulated [*26] above, the fact that Perez spent an additional three months in IPC, in the
aforementioned environment, is sufficient to satisfy the Sandin atypical environment test so that
a liberty interest, protected by due process, has been established.

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As a form of administrative segregation, as opposed to disciplinary confinement, placement in
IPC "requires only an informal, nonadversary review." Smart v. Goord, 441 F. Supp. 2d 631, 641
(S.D.N.Y. 2006). The procedural due process protections are minimal, dictating that the informal
review must occur within a reasonable time, after the inmate has had some notice of the
charges lodged against him and an opportunity to present his views to the administrator making
the determination about segregation. See e.g. McClary v. Kelly, 4 F. Supp. 2d 195, 212
(W.D.N.Y. 1998) (citing Hewitt. Helms, 459 U.S. 460, 460, 476, 103 S. Ct. 864, 74 L. Ed. 2d
675 (1983)). Moreover, the "prison officials must engage in periodic review of the decision . . . to
ascertain whether a prisoner remains a security risk . . . [which is] supported by some evidence."
Id_ at 212-13 (internal quotation marks and citations omitted). Lastly, "administrative segregation
may not be used as a pretext for indefinite confinement[, [*27] so] . . . periodic reviews [cannot
be] a sham; the reviews must be meaningful and not simply perfunctory.” /d. at 273 (citations
omitted); see also Covino v. Vermont Dep't of Corr, 933 F.2d 128, 130 (2d Cir. 1997)
(explaining that "[aJt some point, however, the administrative necessity for involuntary jock-up
begins to pale . . . [and] smacks of punishment.").

Initially, Perez received a document that indicated that because of his criminal history, he was to
be placed in IPC. Perez signed the form, which served as notification of the administrative
segregation, as well as the initial opportunity for Perez to express his displeasure with his
classification. Both appear to comply with the minimal procedures guaranteed by the Due
Process clause.

The Montgomery policy indicated above details that the prison officials were supposed to review
the IPC inmates' files after sixty days and then, if the danger were deemed to still persist, every
thirty days thereafter. Moreover, inmates were allowed, after the initial sixty day period, to seek
review of their classification in IPC. It is unclear what effort Perez made to file a grievance or
seek review regarding his classification. Pursuant to [*28] the complaint, Perez asked for a
grievance and was advised that the classification status was not grievable, but it is unclear what
direction he received, if any, informing him of the proper avenues for complaining about such
placement.

Liberally construing the facts in the light most favorable to Perez, regardless of whether he
properly sought reclassification, nothing in defendant Franko's affidavit indicates that facility staff
engaged in the periodic review of Perez's confinement outlined in the facility's procedures. While
a "lack of specificity . . . [regarding] the dates of the reviews or the specific decision[s]," is not
required, it is clear that there needs to be some evidence that a meaningful review occurred.
See Colon, 2008 U.S. Dist. LEXIS 22187, 2008 WL_783364, at *9 (explaining that a meaningful
review occurred even where the inmate received short, cursory memoranda "indicating that his
circumstances had not changed, and his IPC status was being continued,” as the record
demonstrated through several affidavits that the inmate's case was carefully and regularly
contemplated and defendants unsuccessfully attempted to transfer him on several occasions to
a safer facility where housing in the general [*29] population was possible) (emphasis in
original). No such evidence presently exists on the record before the Court. Accordingly, Perez's
“allegations raise the possibility that [Ihe was confined in IPC without meaningful review or

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sufficient process," and defendants have not provided sufficient factual support to quell such
disputes in material facts. Smart, 447 F. Supp. 2d at 642.

Additionally, to the extent that defendants may rely on the Turner analysis above to relieve them
of responsibility in the face of a potential constitutional infringement, such reliance is misplaced.
First, it does not appear that defendants followed their own regulations with respect to periodic
reviews of the inmates: thus, the Turner analysis is inappropriate. See Nolley v. County of Erie,
776 F. Supp. 715, 739 (W.D.N.Y_ 1991) (explaining that the Turner analysis is applicable where
it is argued that "an otherwise valid regulation impinges on a plaintiff's constitutional rights, but
[not] where the defendants fail] to follow even their own regulations."). However, it is unclear
that defendants did not perform any kind of review, so a question of material fact exists.

Second, even assuming the Turner analysis [*30] did apply, defendants have still failed to
proffer sufficient evidence to establish the absence of a question of material facts. Defendants
repeatedly state that housing inmates with a criminal history of sex crimes or with a sex offender
status was not punitive, but rather prophylactic, as these inmates represented a risk to safety
and security of the facility. Defendants have proffered an affidavit from Franko which indicates
that inmates with sex offender status were generally more vulnerable and susceptible to
victimization, the population of the jail was increasing without a concomitant increase in the
number of corrections officers, and that increase was attributed primarily to larger numbers of
sex offenders entering custody. Other districts have deemed an inmate's sex offender status to
represent a safety issue requiring protective custody. See ¢.g. Tucker v. Royce, Nos. 09CV35-
MPM-JAD, 09CV106-MPM-JAD, 10CV4-MPM-JAD, 2011 U.S. Dist. LEXIS 12680, 2017 WL
541116, at *6 (N.D.Miss. Feb. 8, 2011) (denying Eighth Amendment claims regarding {PC
classification because the inmate “was placed in [IPC] for a reason: as a sex offender, he was
vulnerable to assault from other inmates ... ."). Moreover, the Second [*31] Circuit has
discussed, though not explicitly commented on the constitutionality of the policy of offering IPC
to inmates with sex offender histories. See Amold v. County of Nassau, 252 F.3d 599, 601 (2d
Cir. 2001) (explaining in an action alleging failure to protect, and not a due process violation,
that the inmate was initially placed into IPC "pursuant to ‘Warden's Order: Sex Crimes,’ an order
designed to assure that inmates charged with sex crimes are removed from the genera! prison
population because they are a greater risk of assault by other inmates.").

However, the present record proffers nothing more than conclusory assertions about the
circumstances faced by defendants at Montgomery. Defendants have failed to provide any
documentation regarding information including specific numbers of the inmate population and
the percentage of sex offenders previously housed at Montgomery, that population's anticipated
increase in comparison to the rest of the incoming inmate population, or the number of attacks
on sex offenders or those with a sexually based criminal history. See Smart, 441 F. Supp. 2d at
645 (denying qualified immunity because defendants failed to demonstrate anything [*32] more
than “conclusory statements" about safety concerns essentially providing the court with "no
showing that there was any reason to fear for [the inmate's] personal safety.").

Furthermore, Perez's inmate file evidences that he was previously housed at Monigomery on
another occasion after his sex offense conviction. While he was housed in IPC at that time,
records indicate that concerns included not just his prior criminal history, but his history of

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previously assaulting an inmate while incarcerated and his self-admitted alcohol dependancy.
Conversely, during the present classification, there was no mention of either the assault or
substance abuse history. Instead, classification in IPC was premised solely on Perez's prior
criminal history. On this record, Perez's classification history seems inconsistent and presents
questions of fact surrounding the legitimacy of defendants claims that all sex offenders were
prone to victimization and thus were required to be housed in IPC for prophylactic measures.

Accordingly, to the extent that procedural due process claims are intimated regarding Perez's
continued confinement in IPC, material questions of fact exist so that such claims should
[*33] remain as litigation moves forward.

b. Substantive Due Process

Liberally reading Perez's complaint, it appears he has also alleged a substantive due process
claim concerning his placement and continued confinement in IPC based on his criminal history.
"Substantive due process protects individuals against government action that is arbitrary,
conscience-shocking, or oppressive in a constitutional sense . . . but not against government
action that is ‘incorrect or ill-advised” Lowrance v. Achtyl, 20 F.3d_529, 537 (2d Cir.1994)
(internal citations omitted). "To establish a violation of substantive due process rights, a plaintiff
must demonstrate that the state action was 'so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience." Okin v. Villiage of Cornwall-On-Hudson Police
Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833,
847 n.8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). As already observed by the Northern
District of New York, "[vlery few conditions of prison life are ‘shocking’ enough to violate a
prisoner's right to substantive due process. In Sandin v. Conner, the Supreme Court provided
only two examples: the transfer to a mental hospital [*34] and the involuntary administration of
psychotropic drugs." Samms v. Fischer, No. 10-CV-349 (GTS/GHL), 2017 U.S. Dist, LEXIS
97810, 2011 WL 3876528, at *12 (N.D.N.Y. Mar. 25, 20117) (citations omitted).

In this case, while the actions of defendants in articulating a policy which summarily housed a
population of inmates in IPC pursuant to potentially legitimate concerns related to inmate facility
and security could be categorized as incorrect or ill-advised, it does not appear that such a
policy was arbitrary, conscience shocking, or constitutionally oppressive. Moreover, given the
limited number of recognized circumstances where substantive due process is advanced, and
the dissimilarity between those instances and the present claim, to the extent that Perez is
attempting to advance such due process arguments, they are insufficient to establish a
constitutional claim.

2. Equal Protection

The Fourteenth Amendment's Equal Protection Clause mandates equal treatment under the law.
Essential to that protection is the guarantee that similarly situated persons be treated equally.
City of Cleburne, Tex. v. Cleburne Living Ctr.. 473 U.S. 432, 439, 105 S. Ct, 3249, 87 L. Ed. 2d
313 (1985): Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) ("To prove a violation [*35] of

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the Equal Protection Clause . . . a plaintiff must demonstrate that he was treated differently than
others similarly situated as a result of intentional or purposeful discrimination."). "[A]bsent
classification by race, alienage or national origin, legislation is presumed to be valid and wiil be
sustained if the classification drawn by the statute is rationally related to a legitimate state
interest.” Vargas v. Pataki, 899 F. Supp. 96, 98 (N.D.N.Y. 1995) (citations, quotation marks, and
internal alterations omitted). Accordingly, strict scrutiny shall only be employed "where the
classification involves a fundamental right or a suspect class." Jd. (citations and quotation marks
omitted).

If an inmate is unable to establish membership in a protected class, "the Supreme Court has
recognized ‘class of one’ claims, where the plaintiff must prove that he was intentionally treated
differently from others similarly situated without a rational basis for the difference in treatment."
Fortunatus v. Clinton County, N.Y... No. 12-CV-458 (RFT), 937 F. Supp. 20 320, 2013 U.S. Dist.
LEXIS 48613, 2013 WL 1386641, at “11 (N.D.N.Y. Apr. 4, 2073) (citing Vill, of Willowbrook v.
Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000)). Such plaintiffs

must show an extremely {*36] high degree of similarity between themselves and the
persons to whom they compare themselves . . . [and] must establish that (1) no rational
person could regard the circumstances of the plaintiff to differ from those of a comparator to
a degree that would justify the differential treatment on the basis of a legitimate government
policy; and (ji) the similarity in circumstances and difference in treatment are sufficient to
exclude the possibility that the defendants acted on the basis of a mistake.

Clubside, Inc. v. Valentin, 468 F.3d_144, 159 (2d Cir. 2006) (citations omitted). "Generally,
whether parties are similarly situated is a fact-intensive inquiry," best suited for the jury, unless
"no reasonable juror could find that the persons to whom plaintiff compares itself are similarly
situated," and then summary judgment is appropriate. Id. (citations omitted).

Prisoners are not a part of a suspect class. Scott v. Denison, 739 F. Supp. 2d 342, 362
(W.D.N.Y. 2010) (citations omitted); Lee v. Governor of State of New York, 87 F.3d 99, 60 (2d
Cir. 1996) ("[P]risoners either in the aggregate or specified by offense are not a suspect class . .
_."). "[Slex offenders [also] do not compromise [*37] a suspect or quasi-suspect class . . . [thus
any] allegedly different treatment is subject to rational basis scrutiny, that is, it must be rationally
related to a legitimate state interest.” Taylor v. New York State Dep't of Corr. Servs., No. 07-CV-
1288 (NAM/RFT), 2009 U.S. Dist. LEXIS 100977, 2009 WL 3522781, at *2 (N.D.N.Y. Oct, 29,
2009} (citations omitted).

In this case, a question of fact remains as to Perez's Equai Protection claim. Both sides agree
that Montgomery's policy was to summarily classify and house all sex offenders in {PC for their
own safety. Therefore, sex offenders were treated differently from all other inmates who were
generally housed in, and accorded the amenities of, general population. Perez has successfully
established a high degree of similarity between himself and the other sex offenders and such
similarity and difference in treatment are undisputable so that mistake is not a reasonable
possibility.

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As previously discussed, defendants have proffered affidavits indicating that their policy of
confining sex offenders and those with sexual offenses in their criminal history to IPC was based
on a legitimate concern for safety in the prison given the increasing number of inmates and
stagnant [*38] number of staff. Furthermore, for the reasons articulated above, there are
questions of fact which surround the legitimacy of Montgomery's policy given the lack of factual
and statistical evidence. Conversely, if defendants' claims are proven to be more than
conclusory, a rational basis may be deemed to exist. Accordingly, defendants’ have failed to
provide sufficient evidence to establish that no question of material fact exists regarding the
reasons defendants are proffering for segregating sex offenders to IPC. Accordingly,
defendants’ motion on this ground is denied.

D. Qualified Immunity

Defendants also contend that they are entitled to qualified immunity. Qualified immunity
generally protects governmental officials from civil liability "insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982);
Aiken v. Nixon, 236 F. Supp. 2d 211, 229-30 (N.D.N.Y. 2002) (McAvoy, J.), aff'd, 80 Fed. Appx.
146 (2d Cir. Nov. 10, 2003).

[A] decision dismissing a claim based on qualified immunity at the summary judgment state
may only be granted when a court finds that [*39] an official has met his or her burden
demonstrating that no rational jury could conclude (1) that the official violated a statute or
constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.

Coollick v. Hughes, 699 F.2d 211, 219 (2d Cir. 2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080, 179 L. Ed. 2d 1149 (2011)) (internal quotation marks omitted). The Supreme Court
has granted district courts “discretion to decide which of the two prongs . . . to tackle first [in
order to] . . . save[] judicial resources by avoiding unnecessary decisions whether certain
conduct violates a constitutional or statutory right, which it is beyond reproach that the conduct
was not objectively unreasonable in light of existing law." Id. (internal quotation marks and
citations omitted).

A constitutional right is clearly established if it is both reasonably specified and affirmed by both
Supreme Court and Second Circuit case law and understood to be viewed by a reasonable
defendant as unlawful under the status of the law at the relevant time in question. Looney Vv.
Black, 702 F.3d 701, 706 (2d Cir. 2012). Such an inquiry is context-specific, looking at "the
contours of the [*40] right" which is alleged to be protected so that "the very action in question
[need not] ha[ve] previously been held unlawful; but . . . in the light of pre-existing law the
unlawfulness must be apparent.” Doninger v. Niehoff, 642 F.3d_334, 345-46 (2d Cir. 2011)
(internal quotation marks and citations omitted).

Defendants contend that their decision to institute a policy segregating all inmates labeled as
sex offenders or with sexually violent crimes in their criminal histories into IPC is protected by

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the qualified immunity doctrine. While there is no New York regulation concerning the placement
or review of an inmate in local custody being placed into !PC, or a case which has been decided
presenting identical facts, the constitutional rights surrounding an individual's right fo due
process and to remain housed in a manner presenting neither atypical nor significantly different
circumstances than ordinary prison life were clearly established at the time of the case. See
Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); Wright v. Coughlin,
132 F.3d 133, 136-38 (2d Cir. 1998) (discussing how duration and conditions of confinement
serve to illustrate the atypical and significant requirement created [*41] by Sandin). Moreover,
the right of an inmate in administrative segregation to receive informal, periodic reviews was
also clearly established. See Hewitt, 459 U.S. at 476, 477 n.9 (deeming informal, non-
adversarial procedures sufficient for administrative segregation and requiring periodic and
meaningful reviews of continued confinement to preclude such confinement as a pretext for
indefinite punishment). As was an inmate's right not to be treated different than others unless a
rational basis existed. See Lee v. Governor of State of New York, 87 F.3d 55, 60 (2d Cir. 1996)
(citing City of Cleburne v. Cleburne Living Ctr, Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L.
Ed. 2d 313 (1985)). Accordingly, it is apparent that Perez's Fourteenth Amendment rights to Due
Process and Equal Protection were clearly established at the time in question.

Defendants contend that because of increased inmate populations, legitimate concerns for the
safety and security of the institution, inmates, and staff compelled IPC for inmates like Perez.
Similar scenarios make it clear that a holding an inmate in segregation, under adverse
conditions, without a legitimate basis, and without review is unreasonable. See Smart v. Goord,
441 F. Supp. 2d 631, 645 (S.D.N.Y_ 2006) [*42] (denying qualified immunity where defendants
"made no showing with regard to either the conditions of . . . confinement or the extent to which
confinements of similar duration may or may not be typical . . . .." proffered only conclusory
allegations about asserted safety concerns, and failed to defeat arguments that procedural
protections afforded to inmate were anything more than "hollow formalitfies}."). Despite
defendants’ proffers to the contrary, at this juncture, for the reasons stated above, the
undersigned cannot conclude that defendanis' have met their burden in demonstrating that the
policy was rationally related to a legitimate penological objective. Without proof of a compelling
safety concern, neither defendants’ actions can be deemed reasonable given the case law and
constellation of circumstances surrounding Perez's |PC confinement.

Accordingly, it is recommended that defendants’ motion on this ground be denied.

E. PLRA

Defendants correctly state that the PLRA provides that "[nJo Federal civil action may be brought
by a prisoner confined in jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical [*43] injury." 42 U.S.C. § 1997e(e).
Had Perez sought recovery for compensatory damages related to emotional injury, such
recovery would be precluded without showing a concomitant physical injury. Jenkins v. Haubert,
179 F.3d 19, 28-29 (2d Cir. 1999) ("ln the case of suits seeking damages for mental or
emotional injuries . . . a defendant in a prisoner § 7983 suit may also assert as an affirmative
defense the plaintiff's failure to comply with the PLRA's requirements [and make a prior showing

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2013 U.S. Dist. LEXIS 100689, *43

of a physical injury]."). However, Perez seeks "comprehensic, punitive, damages" and makes no
mention of linking the damages to emotional harm. Compl. at 4. Thus, defendants’ argument is
moot. Accordingly, for these reasons, defendants’ motion is denied on this ground.

F. Slander Claims

Perez aiso attempts to assert a claim for slander. Defendants contend that, to the extent Perez
has proffered state law claims, such must be dismissed for Perez's failure to file a notice of claim
as required by New York General Municipal Law § 50-e. Defs. Mem. of Law (Dkt. No. 19 at 6-
15) at 9-10. Regardless of whether the failure to file a notice of claim could be fatal to Perez's
assertions, he has failed to allege [*44] a claim which the Court could recognize or choose to
exercise supplemental jurisdiction over.

"A tort, such as slander, is not actionable under § 1983 unless it implicates a liberty interest."
Davis-Payne v. Galie, No. 09-CV-6363 (MAT), 2012 U.S. Dist, LEXIS 148773, 2072 WL
4959445, at *5 (W.D.N_Y. Oct. 16, 2012) (citations omitted). Alternately, even if the slander does
not rise to the level of a constitutional claim, a court could exercise supplemental jurisdiction
over the alleged pendant state law claim. 28 U.S.C. § 1367. However, Perez has aileged no
facts, let alone sufficient facts, to allow such a claim to continue. O’Diah v. Artus, 887 F. Supp.
2d 497, 502 (W.D.N.Y. 2012) (declining to exercise jurisdiction over a conclusory slander claims
where plaintiff failed to include any concrete harm or other "sufficient facts to make out such a
claim.") (citaitons omitted). There is no basis to consider this a constitutional violation or
exercise supplemental jurisdiction. Accordingly, to the extent Perez has attempted to state either
federal or state based slander claims, such claims fail.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for
summary judgment (Dkt. No. [*45] 19) be:

1. GRANTED as to defendants’ claims to dismiss Perez's proffered state-based slander
claims; and

2. DENIED in all other respects.®

Pursuant to 28 U.S.C. § 636(b)(7), the parties may lodge written objections to the foregoing
report. Such objections shall be filed with the Clerk of the Court "within fourteen (14) days after
being served with a copy of the . . . recommendation.” N.Y.N.D.L.R. 72.1/¢) (citing 28 U.S.C.
§636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS

5 Defendants move for summary judgment contending that Perez's Equal Protection claim be dismissed, they are entitled to
qualified immunity, the PLRA precludes damages, and Perez's state-based slander claims should be dismissed. For ithe reasons
discussed supra, defendants’ motion is granted with respect to Perez’s slander claims and denied in all other respects.
Moreover, defendants failed to discuss the merit of Perez's inartfully pied due process claims which, for the reasons stated
supra, should not be dismissed.

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WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72,

6(a), [746] 6fe).
Dated: June 13, 2013

Albany, New York
fs! Christian F. Hummel
Christian F. Hummel

U.S. Magistrate Judge

End of Document

Chaim Jaffe
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