KLEEHAMMER v. MONROE COUNTY

s barring them from using or occupying the North Sea Road properties. See Valdez v. Town of Brookhaven, 2005 WL 3454708, at *6 (E.D.N.Y. Dec. 15, 2005) (finding that "Plaintiffs who have been ousted pursuant to ex parte TROs clearly are the losers as the result of state court proceedings commenced by the Town").

Moreover, the fourth element is satisfied because the Complaint in this action was filed on October 8, 2008, which was after the TROs (and Extension Orders) were issued in the State Court Actions. ( See Cohen Decl., Exs. C-H.)

b. The Second and Third Elements

"As to the second requirement, the Court must determine whether the injury complained of by Plaintiff[s] was caused by a state court judgment." MacPherson, 452 F. Supp. 2d at 138. The Complaint can be read to allege that Plaintiffs' injury (i.e., the deprivation of their property without due process of law) was caused by: (1) the state court's order granting the ex parte TROs without affording Plaintiffs an opportunity to appear ( see Compl. ¶¶ 63, 64, 73); and (2) the manner in which Defendants obtained the ex parte TROs and Extension Orders ( see Compl. ¶¶ 57-65, 73, 85, 127, 128, 131.) The Court will consider each alleged injury in turn, and will determine whether Plaintiffs invite the Court to review and reject the state court's determination to remedy such injury.

i. The State Court's Orders

At some points in the Complaint, Plaintiffs' alleged injury stems from the ex parte TROs and Extension Orders that were granted in the State Court Actions. For example, in Count VIII of the Complaint, Plaintiffs seek "a preliminary injunction staying the pending civil actions against Plaintiffs in the state court and canceling the TROs and preliminary injunctions in all such cases." (Compl. ¶ 132.) By seeking such relief, Plaintiffs explicitly ask the Court to "review and reject [] . . . the TROs [and Extension Orders] signed by state court judges on the grounds that such orders were improperly issued without recognition of Plaintiffs' due process rights." Valdez, 2005 WL 3454708 at *2, 6 (plaintiffs sought a permanent injunction enjoining defendants from, inter alia, "engaging in any further `no notice, no standards' evictions," as well as "a declaration that Defendants' action violate their due process, equal protection and Fair Housing Act rights," and compensatory and punitive damages, and attorneys fees). This Court "clearly lacks jurisdiction [to grant such relief] pursuant to the classic articulation of the Rooker-Feldman doctrine. . . ." MacPherson, 452 F. Supp. 2d at 138; see also Valdez, 2005 WL 3454708 at *6 (finding second and third elements met when "Plaintiffs, in substance, seek a review and rejection of the TROs signed by state court judges on the grounds that such orders were improperly issued without recognition of Plaintiffs' due process rights").

ii. Defendants' Manner of Obtaining the TROs

Plaintiffs also allege that their injury (i.e., violations of their due process rights) was caused by the manner in which the Town and Town Board sought and obtained the TROs. ( See Compl. ¶¶ 57-65, 73, 85, 127, 128, 131.) Plaintiffs rely on Hachamovitch v. DeBuono, 159 F.3d 687 (2d Cir. 1998) as support for this position. (Pls.' Opp'n at 7.) In Hachamovitch, the plaintiff, a physician whose license was suspended by state officials, brought a Section 1983 action alleging, inter alia, that the New York State Department of Health had implemented a regulatory scheme that "violated due process insofar as it . . . barred the reopening of [closed medical disciplinary] proceedings." Hachamovitch, 159 F.3d at 693. The Second Circuit began its analysis by summarizing the Supreme Court's decision in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), which dealt with a challenge to "the validity of a rule of the District Columbia that prevented [the plaintiffs] from sitting for the District's bar exam." Hachamovitch, 159 F.3d at 694 (citing Feldman, 460 U.S. at 476). In examining the Supreme Court's holding in Feldman, the Second Circuit explained:

The Supreme Court drew a distinction — potentially critical in the present case — between a challenge to the rule governing bar admission and a challenge to a judgment of a state court applying that rule. Because promulgation of a rule is a non-judicial act, a federal court would have jurisdiction over a general challenge to state bar rules. By the same token, a federal court would lack jurisdiction over challenges to state court decisions in particular cases arising out of judicial proceedings, even if those challenges allege that the state court's action is unconstitutional.

Id. (citing Feldman, 460 U.S. at 485-86) (internal citations omitted). Applying the rule in Feldman to the case before it, the Second Circuit in Hachamovitch found that the plaintiff's challenge to the Department of Health's regulatory scheme's failure to provide a mechanism for reopening a closed medical disciplinary proceeding was "on the jurisdiction-favoring side of the Feldman distinction between a challenge to the procedures as they exist and a challenge to procedures as applied." Id. The Hachamovitch Court held that:

[The plaintiff] frames his suit as a general challenge to a supposedly unconstitutional procedural defect: the absence of any mechanism for the reopening of a closed disciplinary proceeding in light of newly discovered evidence. Such a claim attacks an alleged defect of state administration or legislation rather than adjudication; to use the terminology of Feldman, it is not a challenge to a judicial proceeding.

Id.

Here, Plaintiffs argue that they have alleged "state procedural flaws" similar to those set forth in Hachamovitch, and that "Plaintiffs' allegations also pertain to other persons who fall within that New York system of procedures. . . ." (Pls.' Opp'n at 7.) First, Plaintiffs allege that Defendants obtained the ex parte TROs without providing Plaintiffs notice and an opportunity to be heard. Second, Plaintiffs allege that Defendants obtained the TROs by providing "stale information" to the state court. (Compl. ¶ 54.) In reply, Defendants contend as follows:

Unlike the due process claim arising out of the unavailability of any procedure for reopening a concluded physician disciplinary proceeding in Hachamovitch, which was presented "as a general challenge to a supposedly unconstitutional procedural defect," plaintiffs here are complaining about defendants' use of the state court ex parte TRO system as it was applied to them, putting their claims squarely within the ambit of Rooker-Feldman.

(Reply Mem. at 2) (internal citation omitted).

After reviewing the allegations set forth in the Complaint, the Court finds this case to be distinguishable from Hachamovitch. Despite Plaintiffs' assertions in their opposition papers, the factual allegations contained in the Complaint cannot be read as a constitutional challenge to the procedural method by which Defendants obtained the TROs. Rather, Plaintiffs have alleged that the application of those procedures to Plaintiffs violated their constitutional rights.

First, Plaintiffs claim that Defendants did not provide them with constitutionally sufficient notice before obtaining the TROs. Specifically, Plaintiffs allege that when the Town, Town Board, and Lombardo initially sought the TROs, Plaintiffs were provided "no notice at all." (Compl. ¶ 58.) When this effort was "rebuffed by the State Court Clerks," Defendants allegedly "pretended to give some `notice' but that `notice' was legally and constitutionally insufficient." ( Id.) Plaintiffs allege that although Defendants left an after-hours telephone and facsimile message with an attorney representing Plaintiffs on an unrelated matter, Defendants failed to contact either Plaintiffs' current attorney of record or MacPherson directly. ( Id. ¶ 59-62.) These factual allegations do not support a constitutional challenge to the overall procedure by which a municipality may obtain an ex parte TRO. Rather, they constitute an allegation that the manner in which Defendants obtained the three TROs at issue in this litigation violated these particular Plaintiffs' constitutional rights. Thus, the holding of the Hachamovitch court is inapplicable here. Moreover, a finding by this Court that Defendants' conduct violated Plaintiffs' due process rights would necessarily involve a review of the state court's determination that (1) no notice was required before the TROs could be issued and/or (2) the notice given to Plaintiffs by Defendants, as alleged in the Complaint, was constitutionally sufficient. Such a review would be barred by the Rooker-Feldman doctrine.

Plaintiffs contend in their opposition papers that the due process allegations in the Complaint "also pertain to other persons." ( See Pls.' Opp'n at 7.) The Complaint contains only one, rather vague allegation to this effect. ( See Compl. ¶ 85 ("[T]he manner in which Defendants have brought [] the TRO and utilized the ex parte pre-judgment attachment process . . . is unconstitutional and could [affect] others if it is allowed to continue.").) The Court finds that, despite this lone allegation, the Complaint as a whole contains only a challenge to the procedure for obtaining a TRO as applied to the named Plaintiffs.

Second, Plaintiffs assert that Defendants obtained the TROs by submitting "stale information" to the state court. (Compl. ¶ 54.) Although the Complaint does not make clear the exact nature of this "stale information," it appears to refer to allegations that the Town, Town Board, and Lombardo informed the state court that individuals were living in the basement areas of the North Sea Road properties (in violation of Town Code) even though Defendants were aware that Plaintiffs already removed those individuals from those residences by the time they sought the TROs. ( See id. ¶ 56.) By taking this position, however, Plaintiffs essentially ask the Court to overturn the TROs and defer to Plaintiffs' assertions as to why the TROs were not necessary and should not have been issued by Justice Weber. Moreover, Plaintiffs specifically presented this argument to Justice Pitts during the show cause hearing, and, based upon this argument, Justice Pitts made the decision to hold an evidentiary hearing and leave the TROs in

place in the interim. ( See Cohen Decl., Exs. D, F, H at 3 ("In opposition to the application at bar the defendants argue that the tenants in the premises have moved out and as such there are no code violations which would require the relief the plaintiff is seeking. Based upon the assertions of the defendant an evidentiary hearing is directed to be held before this Court to determine whether a preliminary injunction is warranted.")) Because these factual allegations evidence Plaintiffs' intent to challenge the application of the procedure by which Defendants obtained the ex parte TROs — and do not challenge the constitutionality of the procedure itself — the Court finds that the Rooker-Feldman doctrine bars it from reviewing the decisions made by Justices Weber and Pitts in the State Court Actions.

Plaintiffs assert in their opposition papers that they "have been subjected to a continuing `temporary restraining order' that is now in its 15th month while the state court justice is still deciding the preliminary injunction matters. . . ." (Pls.' Opp'n at 7) (emphasis in the original). This is essentially a challenge to the effect of the state court-ordered TROs on these particular Plaintiffs, not a constitutional challenge to the procedure by which those TROs may be obtained. Thus, the Rooker-Feldman doctrine bars this Court from exercising jurisdiction over this issue.

C. Conclusion

For the reasons set forth above, the following claims contained in the Complaint are barred by the Rooker-Feldman doctrine and must be dismissed: (1) Count I to the extent Plaintiffs seek damages pursuant to Section 1983 and the Fourteenth Amendment based upon Defendants' "seiz[ure]" of the North Sea Road properties." (Compl. ¶ 73.) See Dockery v. Cullen Dykman, 90 F. Supp. 2d 233, 236 (E.D.N.Y. 2000) ("Thus, plaintiff cannot avoid dismissal of the complaint [pursuant to the Rooker-Feldman doctrine] by suggesting civil rights violations."); Fariello v. Campbell, 860 F. Supp. 54, 65 (E.D.N.Y. 1994) ("[A] plaintiff may not seek a reversal of a state court judgment simply by recasting his complaint in the form of a civil rights action pursuant to 42 U.S.C. § 1983."); (2) Count III to the extent Plaintiffs seek a declaration that "the manner in which Defendants have brought [] the TRO . . . is unconstitutional. . . ." (Compl. ¶ 85); and (3) Count VIII to the extent Plaintiffs seek a preliminary injunction (a) "halting the enforcement of the TOWN's manner of using the courts of the State of New York to issue TROs and preliminary injunctions pendente lite, without providing a full and fair opportunity . . . for the property owners to challenge and confront all of the municipal witnesses. . . ." ( id. ¶ 131), and (b) "staying the pending civil actions against Plaintiffs in the state court and canceling the TROs and preliminary injunctions in all such cases" ( id. ¶ 132).

Because Plaintiffs did not address Defendants' alternate argument that "Count VIII's demand for `a preliminary injunction staying the pending civil actions against Plaintiffs in the state court' (Complaint at ¶ 132) runs afoul of the basic principles of comity and federalism" (Defs.' Mem. at 9), and because the Court finds dismissal of this portion of Count VIII to be appropriate under the Rooker-Feldman doctrine, the Court will not address Defendants' alternative argument.

Paragraphs 127 and 128 of Count VII of the Complaint, which seek corresponding declaratory relief, are also dismissed.

II. Motion to Dismiss Plaintiffs' Remaining Claims Under 12(b)(6)

Defendants contend that Counts II, IV, V, VI, VII, and the remaining portions of Counts III and VIII should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Court considers each of Defendants' arguments in turn.

A. Legal Standard

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).

First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 555 (internal citations, alteration and quotation marks omitted).

More recently, in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S.ct. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. The Court defined plausibility as follows:

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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'"

Id. at 1949 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must look to the allegations on the face of the complaint, but may also consider "[d]ocuments that are attached to the complaint or incorporated in it by reference." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); see also Gillingham v. GEICO Direct, 2008 WL 189671, at *2 (E.D.N.Y. Jan. 18, 2008) (noting that a court considering a motion to dismiss "must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint") (citation and internal quotation marks omitted).

Defendants advance several arguments as to why Plaintiffs' remaining claims should be dismissed. The Court will address Defendants' arguments in turn.

B. Plaintiffs' Retaliation Claims are Dismissed

Plaintiffs contend that this action "was prompted by Defendants' conduct" following the commencement of the Initial Action. (Pls.' Opp'n at 8.) According to Plaintiffs, the Complaint in this action contains "a substantial First Amendment retaliation claim, which describes retaliatory state court litigation that the Town of Southampton and its Town Board commenced after the [Initial Action] was underway." ( Id.)

1. Legal Standard

"In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws." Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000). In particular, "[t]he Second Circuit has recognized that `a claim for relief may be stated under section 1983 if otherwise routine administrative decisions are made in retaliation for the exercise of constitutionally protected rights.'" Chernoff v. City of New York, 2009 WL 816474, at *5 (E.D.N.Y. Mar. 26, 2009) (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987)). To establish a prima facie case of retaliation under Section 1983, a plaintiff must demonstrate that: "(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right." Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)); Butler v. City of Batavia, 2009 WL 910194, at *1 (2d Cir. Apr. 6, 2009) (same); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (same).

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). The elements set forth in Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001), apply to suits, such as this one, brought by private citizens against public officials. See Williams, 535 F.3d at 76 (comparing the Curley standard with the prima facie requirements in cases brought by public employees and those brought in the "prison context").

In order to survive a motion to dismiss, a claim of retaliation under Section 1983 "must be `supported by specific and detailed factual allegations,' not stated `in wholly conclusory terms.'" Friedl, 210 F.3d at 85-86 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)); see also Eberling v. Town of Tuxedo, 2006 WL 278246, at *2 (S.D.N.Y. Feb. 3, 2006) (same). 2. MacPherson Has Adequately Alleged Protected Activity

The parties appear to assume ( see Compl. ¶ 77; Defs.' Mem. at 10), and the Court finds, that Plaintiffs have adequately alleged that MacPherson engaged in activity protected by the First Amendment by commencing the Initial Action. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002) ("The rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment."); Rosendale v. Brusie, 2009 WL 778418, at *8 (S.D.N.Y. Mar. 25, 2009) (finding plaintiff engaged in "First Amendment-protected activity" by, inter alia, commencing federal and state actions).

As Defendants point out, 1104 North Sea Co., Inc. and 1110 North Sea Co., Inc. were not named plaintiffs in the Initial Action and, therefore, cannot claim they engaged in protected activity by filing that lawsuit. ( See Cohen Decl., Ex. B.) The Complaint does not contain any allegations that 1104 North Sea Co., Inc. and 1110 North Sea Co., Inc. engaged in activity protected under the First Amendment.

3. MacPherson Has Not Alleged Any Chilling Effect on His Speech

An essential element of a Section 1983 claim, including a claim of retaliation in violation of the First Amendment, is 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." Williams v. Town of Greenburgh, 535 F.3d 71, 78 (2d Cir. 2008) (quoting Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir. 2002)) (internal quotation marks omitted). The Second Circuit has "explained that plaintiffs who allege a violation of their right to free speech must prove that official conduct actually deprived them of that right." Id. (citing Colombo, 310 F.3d at 117). Therefore, "to properly allege a claim for First Amendment retaliation, a plaintiff must show that his First Amendment rights were `actually chilled.'" Balaber-Strauss v. Town/Vill. of Harrison, 405 F. Supp. 2d 427, 433 (S.D.N.Y. 2005) (quoting Curley, 268 F.3d at 73) (internal quotation marks omitted).

Here, MacPherson has not alleged that any of Defendants' conduct actually chilled the exercise of his First Amendment rights. Although Plaintiffs allege that "[t]he Rental Law operates as a prior restraint of Plaintiffs' protected right of speech" (Compl. ¶ 78), the Complaint does not contain any allegations that Defendants' actions deprived MacPherson of his rights under the First Amendment. Plaintiffs' opposition papers state that Defendants' procurement of the TROs, as well as Defendants' subsequent attempt to discourage Justice Pitts from "holding any evidentiary hearing so that the Plaintiffs here could challenge the statements in the submitted affidavits" in support of the TROs, "were intended to chill — and did in fact chill — the exercise of all Plaintiffs' constitutionally protected rights." (Pls.' Opp'n at 9.) In fact, MacPherson, through his counsel, appeared before Justice Pitts to oppose the extension of the TROs in the State Court Actions and has vigorously litigated not only the instant action, but also the Initial Action before this Court. See Rosendale, 2009 WL 778418 at *11 (finding insufficient allegations of First Amendment retaliation when Complaint alleged that plaintiff continued to speak out against defendants' failure to enforce zoning regulations, brought a state court action, and commenced a federal action). The Court finds, therefore, that the Complaint does not contain any factual allegations setting forth specific instances in which MacPherson "desired to exercise [his] First Amendment rights but was chilled by" Defendants' alleged conduct. Mangano v. Cambariere, 2007 WL 2846418, at *2 (S.D.N.Y. Sept. 27, 2007); see also Balaber-Strauss, 405 F. Supp. 2d at 433 ("Allegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.") (quoting Curley, 268 F.3d at 73) (internal quotation marks omitted).

Accordingly, because MacPherson has not alleged that his "speech was either silenced or chilled — i.e., that his right to speech was actually violated," MacPherson's First Amendment retaliation claim fails as a matter of law. See Williams, 535 F.3d at 78; see also Kuck, 600 F.3d at 168 (finding plaintiff's First Amendment retaliation claim was properly dismissed when "nothing in the complaint suggests that [plaintiff's] speech was `actually chilled' as a result of" defendants' alleged conduct); Curley, 268 F.3d at 73 ("Where a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech."); Rosendale, 2009 WL 778418, at *11 ("Because the Complaint shows that Plaintiff continued to exercise his First Amendment rights despite Defendants' alleged retaliatory conduct, Plaintiff fails to allege actual chilling of his speech."); Balaber-Strauss, 405 F. Supp. 2d at 433 (dismissing First Amendment retaliation claim when Complaint failed to allege that plaintiff refrained from speaking at the public Town meeting after defendants engaged in "smear campaign"); Ford v. Reynolds, 326 F. Supp. 2d 392, 403 (E.D.N.Y. 2004) ("Because Plaintiffs have failed to allege any actual chill or deterrence, this Court must conclude that [plaintiffs] did not suffer the harm necessary to support their retaliation claim."). Therefore, Count II of the Complaint is dismissed.

Because MacPherson has failed to allege that his First Amendment rights have actually been chilled, the Court need not address the parties' extensive arguments regarding the existence of a causal link between MacPherson's protected activity and Defendants' conduct.

C. Plaintiffs' Equal Protection Claims Are Dismissed

The Complaint alleges that "[a]s a result of the aforesaid Defendants' bad faith motives, and through those Defendants' conjoined, conspiratorial conduct, Plaintiffs have been treated differently from other persons who are similarly situated in numerous respects. . . ." (Compl. ¶ 84.) First, Plaintiffs allege that Defendants "targeted" MacPherson and commenced the State Court Actions against him because he "frequently rented out his residential properties to those individuals whom Defendants have unlawfully discriminated against in violation of the Equal Protection Clause." ( Id.) Second, Plaintiffs contend that Defendants, including at least one of the Town's councilmembers, issued press releases and made statements to the media with the intention of "portray[ing] MacPHERSON in a derogatory and false manner and as a `slum landlord' in order to cover up their own misdeeds, thus demonstrating malice and ill will and spite." ( Id.) Finally, Plaintiffs allege that Lombardo made "derogatory statements" regarding Plaintiffs to the press. ( Id.)

1. Legal Standard

To state a claim for an equal protection claim based upon selective enforcement of the law, Plaintiffs must plead that: "(1) they were `treated differently from other similarly situated' individuals and (2) this `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.'" Butler, 2009 WL 910194, at *1 (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)); Mattison v. Black Point Beach Club Ass'n, 2010 WL 1838705, at *1 (2d Cir. May 10, 2010) (summary order).

In the alternative, "failing proof of selective treatment based on impermissible considerations," Plaintiffs must plead a "class of one" equal protection claim. See Everitt v. DeMarco, 2010 WL 1286940, at *10 (D.Conn. Mar. 30, 2010). "The Supreme Court has `recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

"[C]lass-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves." Ruston, 610 F.3d at 59 (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)) (internal quotation marks and alteration omitted). "Accordingly, to succeed on a class-of-one claim, a 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. at 59-60 (quoting Clubside, Inc., 468 F.3d at 159) (internal quotation marks omitted).

2. Plaintiffs Have Failed to Allege That Similarly Situated Individuals or Entities Were Treated Differently

Defendants contend that the "Complaint is devoid of factual allegations from which it could reasonably be inferred that any of these plaintiffs have been treated differently from similarly situated persons." (Defs.' Opp'n at 19.) In fact, as Defendants point out, the Complaint does not identify any comparators or similarly situated entities at all. ( See id.) For this reason, Plaintiffs' equal protection claim — whether pled as a selective enforcement claim or a class-of-one claim — is deficient as matter of law. See Ruston, 610 F.3d at 60 (dismissing equal protection claim when plaintiffs failed to allege "that properties sufficiently similar to theirs were treated more favorably" by defendants); Cassidy v. Scoppetta, 365 F. Supp. 2d 283, 290-91 (E.D.N.Y. 2005) (finding plaintiffs "failed to allege the most fundamental aspect of an equal protection claim" when they did not compare themselves to similarly situated individuals); Izzo v. City of Syracuse, 2000 WL 1222014, at *5 (N.D.N.Y. Aug. 3, 2000), aff'd, 11 Fed. Appx 31 (2d Cir. June 8, 2001) (holding that plaintiff failed to plead selective enforcement claim when the "pleadings do not contain any references to other landlords, similarly situated, who were not, in fact, fined by the City"). Therefore, to the extent that Count III contains an equal protection claim (Compl. ¶ 84), that claim is dismissed. D. Plaintiffs' Claim Based Upon Common Law Indemnification Is Dismissed

Plaintiffs' request for leave to amend their equal protection claim in the event of that claim's dismissal ( see Pls.' Opp'n at 14) is addressed in Section III.A, infra.

Plaintiffs allege that MacPherson is "entitled to reimbursement for all legal expenses and costs which he incurred in connection with his legal defense of any [Town] Justice Court criminal prosecution and state court civil actions brought by the TOWN BOARD under the theory of common law indemnification." (Compl. ¶ 122, 113.) According to Plaintiffs, the Town and Town Board "did not fulfill their duties to provide justice for Plaintiffs." ( Id. at ¶ 119.) Plaintiffs argue that "the Town has taxed real property while prohibiting its use through an unconstitutional procedure." (Pls.' Opp'n at 15.) As such, Plaintiffs allege that it became necessary for MacPherson "to pay for certain expenses associated with investigation and

presentment of facts to the Court. . . ." (Compl. ¶ 121.)

"Under New York law, the common law right to indemnification `arises when one party is compelled to pay for the wrong of another.'" Fagan v. AmerisourceBergen Corp., 356 F. Supp. 2d 198, 221 (E.D.N.Y. 2004) (quoting Mallouris v. Re Spec Corp., 2003 WL 22966287, at *2 (S.D.N.Y. Dec. 15, 2003)). "Accordingly, the common law right to indemnification arises only where a party's liability is based upon the wrongdoing of the party from whom indemnification is sought." Id. (citing Mallouris, 2003 WL 22966287 at *2). As currently framed, Count VI does not state a cognizable claim for relief under a theory of common law indemnification. Accordingly, Count VI of the Complaint is dismissed.

E. Plaintiffs' Claims Based Upon Violations of the Due Process Clause of the Fifth Amendment Are Dismissed

To the extent that Counts III, IV, and V of the Complaint contain causes of action based upon Defendants' alleged deprivation of Plaintiffs' due process rights under the Fifth Amendment, those claims must be dismissed because Plaintiffs "have not named the United States government or any agency or employee thereof as a defendant in this matter." Cassidy, 365 F. Supp. 2d at 286; see also Balaber-Strauss, 405 F. Supp. 2d at 434-35 (same). "The Fifth Amendment `governs the conduct of the federal government and federal employees, and does not regulate the activities of state officials or state actors.'" Cassidy, 365 F. Supp. 2d at 286 (quoting Dawkins v. City of Utica, 1997 WL 176328, at *4 (N.D.N.Y. Apr. 4, 1997)). Accordingly, to the extent that Counts III, IV, and V seek relief based upon alleged violations of Plaintiffs' Fifth Amendment due process rights, those claims are dismissed. See Guadagni v. New York City Transit Auth., 2009 WL 1910953, at *7 (E.D.N.Y. June 30, 2009) ("The right to due process guaranteed by the Fifth Amendment, however, applies only with regard to the federal government. . . .").

F. Defendants' Motion to Dismiss Certain of Plaintiffs' Claims as Duplicative is Granted in Part

Defendants contend that Counts IV and V as well portions of Counts III and VII should be dismissed as duplicative of the claims filed by MacPherson in the Initial Action.

"As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit." Curtis v. Citibank, 226 F.3d 133, 138 (2d Cir. 2000) (citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). "The complex problems that can arise from multiple federal filings do not lend themselves to a rigid test, but require instead that the district court consider the equities of the situation when exercising its discretion." Id. "[T]hough no precise rule has evolved, the general principle is to avoid duplicative litigation." James v. AT T Corp., 334 F. Supp. 2d 410, 411 (S.D.N.Y. 2004) (quoting Colo. River Water Conservation Dist., 424 U.S. at 817) (internal alteration and quotation marks omitted). "Dismissal of duplicative actions, however, is not appropriate for claims that bear only a `rough resemblance' between each other." Flemming v. Wurzberger, 322 Fed. Appx 69, 71 (2d Cir. Apr. 16, 2009) (quoting Curtis, 226 F.3d at 136).

For the reasons set forth below, the Court finds that while certain portions of Count IV are duplicative of claims filed in the Initial Action, the remainder of Count IV and Count V should not be dismissed as duplicative. Because Defendants have not addressed whether these claims should be dismissed on the merits, Defendants will be given an opportunity to do so, as set forth below. 1. Count IV is Dismissed in Part

Defendants contend that Counts IV and V of the Complaint in this action are "virtually identical to Counts IV and V asserted by [MacPherson] in the Initial Action, and should be dismissed as duplicative." (Defs.' Mem. at 23-24.)

With respect to Count IV, the Court agrees that Paragraphs 86 through 95 appear to have been copied verbatim from the complaint in the Initial Action, in which the Town and Town Board are also named as Defendants. ( Compare Compl. ¶¶ 86-95, with Cohen Decl., Ex. B ¶¶ 94-104.) Accordingly, these allegations are dismissed as duplicative. Count IV also contains, however, two additional allegations not present in the Initial Action. Specifically, Plaintiffs allege a due process violation based upon Defendants' use of the same Town Attorney (presumably, Lombardo) to prosecute MacPherson in the Southampton Town Justice Court and to pursue the State Court Actions against Plaintiffs. (Compl. ¶ 96.) According to Plaintiffs, the Town Attorney has "claimed an `attorney-client' privilege with the TOWN's official and employees and refused to provide documents during the discovery process on that basis." ( Id.) Plaintiffs allege that their due process rights have been further violated by Defendants' "fail[ure] to fulfill their investigative and administrative functions by adequately reviewing the TOWN's Building Department files before requesting search warrant[s] and making specious false statements in court papers." ( Id. ¶ 97.) Defendants have not addressed the viability of these allegations as part of their motion to dismiss and the Court declines to dismiss these allegations at this time.

2. Count V is Not Dismissed

While some of the language in Count V of the Complaint appears to have been taken from the complaint filed in the Initial Action, there are significant differences between the two pleadings. ( Compare Compl. ¶¶ 99-111, with Cohen Decl., Ex. B ¶¶ 105-16.) Defendants argue that Count V, which alleges a violation of Plaintiffs' Fourth and Fourteenth Amendment rights based upon the Town and Town Board's "deliberate [] and intentional [] failure to train and supervise their governmental employees not to violate civil rights of Plaintiffs. . . ." (Compl. ¶ 100), "pertain[s] to the processes by which criminal matters are prosecuted in the Town's Justice Court." (Defs.' Mem. at 23.) According to Defendants, the "corporate plaintiffs here do not allege they were subjected to the Town's Justice [Criminal] Court system," and MacPherson has already set forth identical allegations in the Initial Action. ( Id. at 23-24.) The Court finds, however, that, while somewhat repetitive of the allegations made in the Initial Action, Count V also alleges different civil rights violations stemming from the Town and Town Board's failure to adequately train "individuals who are involved in code enforcement matters." ( See Compl. ¶¶ 105, 107c, 109.) Defendants have not addressed the legal sufficiency of the allegations contained in Count V. Accordingly, the Court declines to dismiss Count V, or Paragraph 130 of Count VII of the Complaint (which seeks corresponding injunctive relief), at this time. 3. Paragraph 83 of Count III of the Complaint is Dismissed

As noted in Section II.E, supra, to the extent that the remaining portions of Count IV and Count V attempt to assert claims based upon a violation of Plaintiffs' Fifth Amendment due process rights, those claims are dismissed.

Defendants assert that Paragraph 83 of Count III of the Complaint, which alleges "violations of plaintiffs' right to `fair criminal process,'" have "been lifted wholesale from the Initial Action, [and] are entirely irrelevant to this action, which relates to the civil enforcement of other Town Code provisions." (Defs.' Mem. at 24 (quoting Compl. ¶ 83).) The Court finds that Paragraph 83 of the Complaint has been copied, almost verbatim, from the complaint filed in the Initial Action. ( Compare Compl. ¶ 83, with Cohen Decl., Ex. B ¶ 91.) The only new allegation present in Paragraph 83 of the Complaint is that Defendants violated Plaintiffs' due process rights by failing to provide them with "a curative period in which to address and remedy any perceived violation of the State's or TOWN's fire, safety, health or property maintenance laws." (Compl. ¶ 83.) The Court finds, however, that Plaintiffs have not set forth sufficient facts to support an allegation of a due process violation on this basis and, to the extent Plaintiffs are challenging the TROs, such a claim would be barred by the Rooker-Feldman doctrine for the reasons described above. Accordingly, Paragraph 83 of Count III of the Complaint is dismissed.

4. Paragraphs 125 and 126 of Count VII of the Complaint Are Dismissed

Count VII seeks, inter alia, a declaration that Chapter 270 of the Town's rental permit law is "unconstitutional on its face and as written and as being applied. . . ." (Compl. ¶¶ 125, 126.) Defendants contend that "Plaintiff MacPherson admits, however, that he is already challenging the constitutionality of that law in the Initial Action [], and so this aspect of Count VII is clearly duplicative of claims advanced in the Initial Action." (Defs.' Mem. at 24 (citing Compl. ¶¶ 37, 38).) The Court agrees that MacPherson has raised an identical constitutional challenge to this rental law in the Initial Action. ( Compare Compl. ¶¶ 125-26, with Cohen Decl., Ex. B ¶¶ 129-30.) Furthermore, because the corporate Plaintiffs in this action have never alleged that they were denied a rental permit pursuant to the provisions of that rental law, they would lack standing to challenge its constitutionality in any event. See Palmieri v. Town of Babylon, 2006 WL 1155162, at *6 (E.D.N.Y. Jan. 6, 2006) (finding plaintiff lacked standing to assert due process challenge to rental permit law when he had never applied for a rental permit). Accordingly, Paragraphs 125 and 126 of Count VII of the Complaint are dismissed as duplicative.

G. Remaining Fourth Amendment Claim Not Addressed by Defendants

Count I of the Complaint also contains an allegation that Defendants violated Plaintiffs' Fourth Amendment rights when the "TOWN and its employees came onto Plaintiffs' properties on or about September 10, 2008 and `searched' without probable cause and without a search warrant and without consent to go on the property." (Compl. ¶ 72.) Defendants have not addressed this claim as part of their motion to dismiss, and the Court declines to dismiss it sua sponte. Should Defendants wish to move to dismiss this claim, they will be given an opportunity to do so, as set forth below.

III. Plaintiffs' Request for Leave to Amend the Complaint is Granted

A. Plaintiffs' Request for Leave to Amend the Equal Protection Claim is Granted to a Limited Extent

Plaintiffs request leave to amend their equal protection claim in the event that Defendants' motion is granted. (Pls.' Opp'n at 14.) In addition, Plaintiffs request that the Court require Defendants "to permit Plaintiffs' inspection [of] their criminal and civil prosecution files, so that Plaintiffs can state their amended claims with greater precision." ( Id.) Plaintiffs cite A.B.C. Home Furnishing v. Town of East Hampton, 947 F. Supp. 635 (E.D.N.Y. Dec. 14, 1996) as support for this request. ( See Pls.' Opp'n at 14.) In that case, the plaintiff brought an action under Section 1983 asserting various constitutional violations after the defendant town revoked the plaintiff's permit to hold a tent sale. See A.B.C. Home Furnishing, 947 F. Supp. at 640. All of the plaintiff's claims were dismissed except for its equal protection claim, which the plaintiff was granted leave to replead. Id. at 647. Plaintiffs assert that the court in A.B.C. Home Furnishing "allowed [the plaintiff] sufficient time to obtain all of the [defendant] Town's records on the permits granted and denied, so as to demonstrate that [the plaintiff] was similarly situated [and] treated differently." (Pls' Opp'n at 14.) After reviewing the court's decision in A.B.C. Home Furnishing, however, the Court finds no mention of any intention to allow the plaintiff time to review the defendant's records. See A.B.C. Home Furnishing, 947 F. Supp. at 647 ("If the plaintiff is able to allege that similarly situated entities were treated differently, naming such entities, and that it was treated differently as a result of malice, bad faith or intentional discrimination, ABC could allege an equal protection claim sufficient to pass Rule 12(b)(6) muster."). Therefore, the Court declines to order Defendants to produce any documents for inspection at this time. However, Plaintiffs' request for permission to amend their equal protection claim is granted.

Plaintiffs provide a citation to a subsequent decision issued by the court in A.B.C. Home Furnishing. ( See Pls.' Opp'n at 14.) The citation listed above is the A.B.C. Home Furnishing court's decision permitting the plaintiff to amend its equal protection claim.

B. Plaintiffs' Request for Leave to Amend the Remainder of the Complaint is Granted

In addition to Plaintiffs' specific request to amend their equal protection claim, discussed above, Plaintiffs' opposition papers contain a general request for "an opportunity to amend their pleading as Rule 15 permits, in the event that the Court finds anything lacking." (Pls.' Opp'n at 5.) While the Court is skeptical that Plaintiffs can cure the deficiencies in certain of their claims, the Court finds it would not be futile to permit Plaintiffs the opportunity to amend other portions of their pleading. Given that, as well as the fact that in this Memorandum and Order the Court has relied upon case law and arguments not advanced by the parties, Plaintiffs' request is granted. Plaintiffs are cautioned, however, that any amendment is subject to scrutiny under Rule 11.

CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss the Complaint is GRANTED in part and DENIED in part. Defendants' motion is GRANTED to the extent that: (1) Counts II, III, VI, and VII are dismissed in their entirety; and (2) Counts I, IV, V, and VIII are dismissed in part, as described above. In all other respects, Defendants' motion is DENIED.

Should Defendants wish to move to dismiss the Fourth Amendment claim contained in Count I of the Complaint, or the claims not previously addressed on the merits in Counts IV and V, they should so advise the Court, via letter to be filed on or before November 1, 2010, so the Court may set a briefing schedule.

Plaintiffs shall advise the Court, via letter filed on or before November 1, 2010, whether or not they intend to move for leave to amend the Complaint, so the Court may set a briefing schedule.

SO ORDERED.

Dated: Central Islip, New York

September 7, 2010

irected only at `discriminat[ion] . . .because of . . .sex.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (quoting 42 U.S.C. § 2000e-2(a) (1991)) (emphasis in original). "`The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).) Hostile Environment

To establish a claim of hostile work environment discrimination, a plaintiff must show that

the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered. Proving such a claim involves showing both objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.

In addition, the plaintiff must show that a specific basis exists for imputing the objectionable conduct to the employer. Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action.

Fairbrother v. Morrison, 412 F.3d 39, 48-49 (2d Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199 (2nd Cir. 2006).

The principles for determining whether conduct was sufficiently severe and pervasive to support a hostile environment claim are clear:

Although isolated incidents ordinarily will not rise to the level of a hostile work environment, even a single incident of sufficient severity may so alter the terms and conditions of employment as to create such an environment. The matter of whether the conduct alleged was so severe or pervasive as to create an objectively hostile or abusive work environment, is to be decided based on the totality of the circumstances, in light of such factors as the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Where reasonable jurors could disagree as to whether alleged incidents of . . .harassment would have adversely altered the working conditions of a reasonable employee, the issue of whether a hostile work environment existed may not properly be decided as a matter of law.

Patterson v. County of Oneida, N.Y., 375 F.3d 206, 227 (2d Cir. 2004) (citations and internal quotations omitted).

New York Human Rights Law

New York Executive Law § 296 provides in pertinent part as follows:

1. It shall be an unlawful discriminatory practice:

(a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

N.Y. Exec. Law § 296(1) (2007). The Court notes that the elements of Title VII and New York Executive Law § 296 claims "can be analyzed, for purposes of determining sufficiency of the evidence, in a manner virtually identical to those under Title VII." Gallagher v. Delaney, 139 F.3d 338, 345 (2d Cir. 1998).

Equal Protection

In a 1994 decision, the Second Circuit held that the Equal Protection Clause of the Constitution could provide a basis for a claim of sexual harassment in a public employment setting, writing that:

The Supreme Court declared fifteen years ago that individuals have a constitutional right under the equal protection clause to be free from sex discrimination in public employment. Davis v. Passman, 442 U.S. 228, 234-35 (1979). Defendants argue that Annis's complaint really pleads sexual harassment, and that such a claim (i) is distinct from sex discrimination and (ii) is purely a creation of Title VII. Circuit courts that have considered this question have rejected the argument. Beardsley v. Webb, 30 F.3d 524, 1994 WL 386866 at * 4 (4th Cir. 1994); Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986) ("Sexual harassment of female employees by a state employer constitutes sex discrimination for purposes of the equal protection clause of the fourteenth amendment."). While we do not subscribe to a categorical view that sexual harassment equals sex discrimination, we do agree that harassment that transcends coarse, hostile and boorish behavior can rise to the level of a constitutional tort. See Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir. 1994) ("In some circumstances a § 1983 claim may be properly grounded on a violation of the Equal Protection Clause of the Fourteenth Amendment based on sexual harassment in the workplace."). When — as alleged here — sexual harassment includes conduct evidently calculated to drive someone out of the workplace, the harassment is tantamount to sex discrimination.

Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994).

ANALYSIS Pleading Standard

Plaintiff contends that the pleading standard for an employment discrimination case was set by the Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The Southern District of New York, though, in Barbosa v. Continuum Health Partners, Inc., 09 Civ. 6572 (SAS), 2010 U.S. Dist. LEXIS 21052 (S.D.N.Y. Mar. 5, 2010), observed that:

The Twombly court held that Swierkiewicz remains good law.n40 However, some courts and commentators have concluded that Twombly and Iqbal repudiated Swierkiewicz, at least to the extent that Swierkiewicz relied upon pre-Twombly pleading standards.n41 Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, "the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim."n42

Barbosa, 2010 U.S. Dist. LEXIS 21052, at *8 (footnotes omitted). The Court is persuaded by the reasoning in Barbosa and will review Plaintiff's claims to determine whether they are facially plausible and give fair notice to Defendants as to their bases.

Hostile Environment

Plaintiff argues, "it is clear that the Complaint alleges a gender-based hostile work environment claim." (Pl.'s Mem. of Law, at 4.) The single incident on which Plaintiff bases her claim consisted of acts by a non-employee (the female visitor) and the following comments by co-equal employees: "Plaintiff was compelled to watch as there was no supervisor present and was told by male co-workers to `just sit there'; . . .she was subject to lewd comments by her co-workers who stated, inter alia, `wow, she must have her whole fist up there' and `wonder if she has any female hygiene problems.'" (Compl. ¶¶ 17-18.) Plaintiff interprets the situation to have required her to watch, though nothing in the Kleehammer report suggests that. In fact, Plaintiff reported that at one point, she heard someone say, "`Why don't you go take a walk to the ODR." The report shows that she was free to move around, and did so:

I went to the back observation window where Stirpe, Schauber and McCarthy were standing (closest to booth #21) in an attempt to see if she may have been attempting to pass contraband to Brown. . . . I, at that point, walked back around the corner and back to the table in observation (still behind the glass) closest to the timer desk. . . . As I went to and opened the entry door to the timer desk I said, "It's offensive and filthy and I'm going to say something to her and perhaps end the visit if she couldn't comply with the rules of keeping her hands on the table. I had the entry door partially open when I heard from staff, "No, no, just wait, she'll stop." I do not know who made this comment because they were around the corner from where I was standing. . . . I did not address this issue with Brown's visitor, instead sat at the table behind the glass, next to the entry door to the timer desk. I tried to eat and monitor the female that had a visit scheduled on the other side. Brown's visitor continued her actions throughout the visit and then I heard come from around the corner, "She's really going to town" "She better be careful she's going to bruise that thing" She's got damn near her whole fist in there" "Maybe she has a feminine hygiene problem?" A comment was directed at me "Why don't you go take a walk to the ODR." But to me, I'm in my assigned area, why should I have to leave? I heard Deputy Stirpe call via radio for Deputy Heh (working in property) and tell him there was property in visits waiting for him. Deputy Heh came into observation briefly then left. I continued to sit at the table, I said to them that it was filthy and they were filthy and called them savages. . . . I again said that they needed to say something to her because there are kids and other civilians in the room and it wasn't fair for them to have to by chance witness that. The visit time was almost expired, at which point they told me "do whatever you want" as far as ending the visit. I went out to the timer because the round was expiring and glared at her for the remainder 5 minutes of the visit.

(Kleehammer Report, at 2-4.)

As indicated above, rarely will a single incident amount to a basis for a hostile work environment. Here, the offensive utterances are not alleged to have been frequent, severe, or physically threatening or humiliating. The Court finds that the allegations do not present a situation where "reasonable jurors could disagree as to whether alleged incidents of . . .harassment would have adversely altered the working conditions of a reasonable employee." Patterson, 375 F.3d at 227. Nothing shows that the comments made by the co-employees were made because of Plaintiff's sex. Moreover, since none of the employees, whom Plaintiff alleges caused the hostile environment, was a supervisor, Plaintiff was required to show that "a specific basis exists for imputing the objectionable conduct to the employer." Fairbrother, 412 F.3d at 48-49.

In that regard, where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action." Id. Plaintiff alleges, in conclusory fashion, that, "[m]anagement failed to take any remedial action with regard to Plaintiff's good faith complaints." (Compl. ¶ 22.) However, as the Second Circuit stated in Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712 (2d Cir. 2010):

the failure to investigate did not by itself alter the terms and conditions of Fincher's employment; rather, it preserved the very circumstances that were the subject of the complaint. Therefore the failure to investigate Fincher's complaint could not itself have contributed to or constituted a hostile work environment. Cf. Robles v. Argonaut Rest. Diner, Inc., No. 05 Civ. 5553, 2009 WL 3320858 at *8, 2009 U.S. Dist. LEXIS 96949, at *27-28 (S.D.N.Y. Oct. 9, 2009) ("A hostile work environment claim can succeed only if plaintiff demonstrates that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of his employment were thereby altered") (citing Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001)).

Fincher, 604 F.3d at 724. No allegations are made that "management's" failure resulted in an adverse employment action. Further, although Plaintiff alleges that a "Board" determined she suffered from a hostile work environment, Plaintiff does not specify the "Board," nor argue that the "Board's" determination is binding on this Court. If the "Board" is the New York Workers' Compensation Board, Plaintiff has not argued that any findings made should be given res judicata effect. Cf. Heroux v. Ingrassio, 612 F. Supp. 2d 236, 240 (W.D.N.Y. 2009) ("Any Workers' Compensation Board determination must be given res judicata effect [on the Workers' Compensation claim] by this court where, as here, the findings by the Board are made in adjudicatory proceedings and `where the board makes discrete findings of fact.'" Tran v. Antoine Aviation Co., Inc., 624 F.Supp. 179, 180 (S.D.N.Y. 1985)."). The Court determines that Plaintiff has not plead a plausible hostile environment claim. Consequently, the First and Second causes of action must be dismissed.

42 U.S.C. § 1983

Although Plaintiff's fifth and sixth causes of action are confusingly plead, she claims that pursuant to 42 U.S.C. § 1983, the County and Sheriff O'Flynn are liable to her for a violation of her rights under the Fourteenth Amendment's Equal Protection clause and the Fourth Amendment. (Pl.'s Mem. of Law, at 9.) In Bellamy v. Mount Vernon Hosp., 07 Civ. 1801 (SAS), 2009 WL 1835939 (S.D.N.Y. Jun. 26, 2009), the district court observed that:

The Fourth Amendment reads, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It is not clear from Plaintiff's papers exactly how she pleads a claim under this Amendment.

The Supreme Court's decision in Iqbal v. Ashcroft abrogates several of the categories of supervisory liability enumerated in Colon v. Coughlin. Iqbal's "active conduct" standard only imposes liability on a supervisor through section 1983 if that supervisor actively had a hand in the alleged constitutional violation. Only the first and part of the third Colon categories pass Iqbal's muster — a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminated-situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate.

Bellamy v. Mount Vernon Hosp., 2009 WL 1835939, *6. Thus, in order to plausibly plead a claim against the County and Sheriff O'Flynn, Plaintiff must allege either that O'Flynn, the Monroe County Sheriff, had a hand in the alleged constitutional violation, or created a policy or custom under which the unconstitutional practices occurred. Case law guidance in this area is plentiful. As the district court in Sash v. United States, 674 F. Supp. 2d 531 (S.D.N.Y. 2009), pointed out:

To survive a motion for summary judgment, Sash cannot just echo the legal standard for supervisory liability, but rather must submit evidence, and he has failed to do so. See, e.g., Cicio v. Graham, No. 08-CV-534, 2009 WL 537534 at *7 (N.D.N.Y. Mar. 3, 2009) ("Vague and conclusory allegations that a supervisor has failed to train or properly monitor the actions of subordinate employees will not suffice to establish the requisite personal involvement and support a finding of liability."); Hallock v. Bonner, 567 F.Supp.2d 334, 339 (N.D.N.Y. 2008) (granting summary judgment for federal customs officials where the record was "devoid of any evidentiary support" that they created a relevant custom or policy, or acted negligently in their supervisory roles), aff'd 343 Fed.Appx. 633 (2d Cir. 2009). FN19 FN19. See also, e.g., Santiago v. City of N.Y., 98 Civ. 6543, 2000 WL 1532950 at *7 (S.D.N.Y. Oct. 17, 2000) (granting summary judgment where there was no evidence that supervisor created a custom or policy under which the alleged constitutional violation occurred); Reid v. Artus, 984 F.Supp. 191, 195 (S.D.N.Y. 1997) (dismissing a prisoner's section 1983 claim against a supervisory official when the pleadings failed to establish "any factual basis upon which a fact finder could reasonably conclude personal involvement by the supervisory official defendant. . . . that [defendant] created or continued a policy or custom which allowed the violation to occur, or that [defendant] was grossly negligent in managing the subordinates who caused the unlawful condition."); Pravda v. City of Albany, 956 F. Supp. 174, 182 (N.D.N.Y. 1997) (granting summary judgment for supervisory officers in excessive force case because "Plaintiff [did] not allege any facts from which the Court could reasonably infer that Defendants . . . participated in [the] alleged mistreatment, were present when it allegedly occurred, knew about it, or were grossly negligent in any way."); Show v. Patterson, 955 F. Supp. 182, 188 (S.D.N.Y. 1997) (dismissing case against supervisory defendants where plaintiffs failed to submit evidence indicating that supervisory defendants created or were aware of a policy of violating prisoners' rights by using excessive force, and because the complaint was devoid of any allegations that the defendants were negligent in supervising subordinates).

Sash, 674 F. Supp. 2d at 546 n. 19.

Plaintiff argues that, "O'Flynn, knew or should have known that the aforesaid failure to properly train or supervise his subordinates, the failure to adopt proper policies, procedures or standards, the failure to properly investigate Plaintiff's complaints, and his reckless disregard or gross negligence would result in the deprivation of the rights secured to the Plaintiff. . . ." (Pl.'s Mem. of Law, at 10.) Clearly, Plaintiff is not alleging that the Sheriff had a hand in the alleged violation. The complaint states:

That as a result of defendants County of Monroe and O'Flynn's failure to take remedial action with regard to Plaintiffs complaints, and/or defendant County of Monroe's failure to properly investigate prior similar incidents, and/or the reckless disregard or gross indifference by defendant County of Monroe for the gross negligence of those Deputies who stood in a managerial role to Plaintiff, in particular defendant O'Flynn, the County of Monroe had a policy, practice or custom which encouraged or permitted its deputies to engage in such gross misconduct that subjected its female employees to a hostile environment. That defendants County of Monroe and O'Flynn intentionally, knowingly, maliciously and/or recklessly permitted and/or allowed the continuation of such a policy, practice or custom.

(Compl. ¶ 61.) First, since the complaint does not plausibly plead a hostile environment or retaliation, the Court is unaware of what Plaintiff alleges required "remedial action." Second, Plaintiff's vague reference to "prior similar incidents," "reckless disregard or gross indifference," or the "gross negligence of those [unnamed] Deputies who stood in a managerial role to Plaintiff," does not meet the requirements of Twombly. Plaintiff was obligated to, "provide the grounds of [her] entitlement to relief" which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. . . ." Twombly, 550 U.S. at 555; see also, ATSI Communications, Inc., 493 F.3d at 98 ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient `to raise a right to relief above the speculative level.'"). Plaintiff's allegations do not raise anything more than vague conclusions and speculation. Consequently, her claims under the Equal Protection Clause cannot stand, and the Fifth and Sixth causes of action must be dismissed.

Retaliation

As the Second Circuit discussed in White v. Eastman Kodak Co., 368 Fed. Appx. 200, 201-202, 2010 WL 726629, 1 (2d Cir. 2010):

To establish a prima facie case of retaliation, a plaintiff must present evidence sufficient to permit a rational trier of fact to find that (1) he engaged in an activity protected by Title VII, (2) the employer was aware of this activity, (3) the employer took adverse action against the employee, and (4) there is a casual connection between the protected activity and the adverse action. [Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006)] at 205-06. If the plaintiff establishes his prima facie case, the burden shifts to the employer, who must then articulate a legitimate, non-retaliatory reason for the adverse action. See, e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498-99 (2d Cir. 2009). If the employer carries that burden, "the burden shifts back to the plaintiff to demonstrate by competent evidence that the legitimate reasons offered" by the employer was a mere pretext for discrimination. Id. at 499 (quotation marks omitted).

White, 368 Fed. Appx. at 201-02. Here, Plaintiff has alleged she was engaged in a protected activity: reporting an incident of hostile work environment to her employer. Thus, as Defendants concede (Def.'s Mem. of Law, at 14), she had sufficiently plead facts to meet the first two requirements of a claim for retaliation. However, the parties disagree on whether the complaint meets the third and fourth requirements.

With regard to an adverse action, Plaintiff alleges that after January 14, 2008, when she left work as the result of what she alleges was a compensable injury, she states: "Plaintiff was subject to a continuous pattern of retaliation, including denial of work related leave ("Z time"), and has been compelled to return to work under the threat of discipline, despite her condition. (Dkt. No, ¶¶ 24)." (Pl.'s Mem. of Law, at 6.) As the Sommers Letter to Kleehammer states, however, Plaintiff was not denied leave; she was merely required to properly apply for it: "There will be no ruling on your eligibility for GML 207-c benefits until you complete and forward the MB#4 as mandated, directed, and ordered. If you have any questions or wish to discuss this matter further, please contact me." (Sommers Letter, at 3.)

Though this citation refers to paragraphs [sic] 24 of some unidentified document, the Court assumes Plaintiff's counsel meant to cite to the complaint's paragraph 24, which states, "Thereafter, Plaintiff was subject to a continuous pattern of retaliation, including denial of work related leave ("Z time"), and has been compelled to return to work under the threat of discipline, despite her condition." (Compl. ¶ 24.)

The law is clear that, "the key inquiry is whether the effect of defendants' decision was `materially adverse,' i.e., ``harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.''" (Ragusa v. Malverne Union Free Sch. Dist., 2010 U.S. App. LEXIS 12640 (2d Cir. 2010) (quoting Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington N. Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006)) (analyzing retaliation claim under Title VII, 42 U.S.C. § 2000e et seq.)) (other citations omitted). Nothing in the letter suggests that Plaintiff's employer was going to terminate her, significantly decrease her pay, see Holowecki v. FedEx, 2010 U.S. Appl LEXIS 12954 (2d Cir.) ("A significant decrease in pay may constitute an adverse employment action."), adversely change her assignment, see Ragusa, or take any action other than not rule on her eligibility for benefits, until she completed a required form.

At oral argument, however, Plaintiff's counsel represented that the basis for her client's claim was not the letter from Sommers, but something else. Defense counsel was unaware of anything other than the Sommers letter that could be construed as retaliatory and the Court determined that the Sommers letter is too remote in time and insufficiently adverse to for a plausible basis for a retaliation complaint under either Federal or State law. In the complaint, Plaintiff alleges that, "defendant [sic] has denied Plaintiff Z time and has otherwise compelled her to return to work under the threat of discipline despite the fact that she remains on leave due to a compensable worker's [sic] compensation claim." (Compl. ¶ 45.) The Court inquired of Plaintiff's counsel about any further factual information, since she denied that the Sommers letter formed any basis for this retaliation claim, but counsel knew nothing but what was alleged in the complaint. Though bare of amplifying factual allegations, Plaintiff's complaint, does allege that she engaged in a protected activity, and does allege that as a result of engaging in a protected activity she suffered an adverse action through the denial of Z time and through being required to return to work notwithstanding her alleged disability. Therefore, the complaint meets the standard set by Twombly and Iqubal with regard to the Third and Fourth causes of action. Accordingly, Defendants' motion to dismiss must be denied with regard to the Third and Fourth causes of action.

Fed.R.Civ.P. 11

The Court cautioned counsel on the record that she needed a good faith basis for pleading the retaliation claim, especially since she denied that the Sommers letter was the basis for that claim. The Court repeats that Federal Rule of Civil Procedure 11 requires all counsel, as officers of the court, to make only those claims that are supported by a good faith factual basis. In that regard, the Court reminds counsel that:

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed.R.Civ.P. 11(b). After the 1983 amendment, which added the language requiring a reasonable inquiry on the part of an attorney, the Second Circuit, in Eastway Const. Corp. v. City of New York, 762 F.2d 243 (2d Cir. 1985), wrote that,

[i]n light of the express intent of the drafters of the new Rule 11, and the clear policy concerns underlying its amendment, we hold that a showing of subjective bad faith is no longer required to trigger the sanctions imposed by the rule. Rather, sanctions shall be imposed . . .against an attorney and/or his client when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.

Eastway Const. Corp., 762 F.2d at 254. The Court will not hesitate to consider sanctions if warranted.

CONCLUSION

For the reasons stated above, the Court grants Defendants' application (Docket No. 9) is granted in part and denied in part. The Third and Fourth causes of action alleging retaliation under Federal and State law may go forward. The remaining causes of action are dismissed.

IT IS SO ORDERED.