Williams v. FBI

• Court: District Court, N.D. New York
• Decided: November 7, 2024
• Docket: 3:24-cv-01090
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________

PRESIDENT THOMAS C. WILLIAMS. Director of Constituents,

Plaintiff, 3:24-CV-1090 v. (DNH/ML)

FBI; and NY STATE TROOPERS,

Defendants. ____________________________________________

APPEARANCES: OF COUNSEL:

THOMAS C. WILLIAMS Pro Se Plaintiff 001 Off-Ramp 7 South Base Masters Sector 7 Zone 7 Binghamton, New York 13901 (last known address)

MIROSLAV LOVRIC, United States Magistrate Judge

REPORT and RECOMMENDATION

Plaintiff Thomas C. Williams (“Plaintiff”), who is proceeding pro se, has commenced this action against defendants FBI and NY State Troopers (collectively “Defendants”). (Dkt. No. 1.) Despite ample notice, Plaintiff has failed to pay the filing fee to commence the litigation and failed to comply with court orders. (Dkt. No. 9.) For the reasons set forth below, I recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed. I. BACKGROUND A. Procedural History On September 10, 2024, Plaintiff commenced this action by the filing of a Complaint, accompanied by a motion for leave to proceed in forma pauperis (“IFP”), a motion for permission to file electronically in ECF, and a motion to appoint counsel. (Dkt. Nos. 1, 2, 4, 5.)

On September 16, 2024, the undersigned (1) denied Plaintiff’s motion to appoint counsel, (2) denied as incomplete Plaintiff’s IFP application, (3) directed Plaintiff to, within 30 days, either (a) pay the filing fee in full, or (b) submit a completed and signed IFP application, and (4) denied as moot Plaintiff’s motion to file electronically in ECF. (Dkt. No. 6). On September 20, 2024, the Court received as undeliverable the Pro Se Handbook (Dkt. No. 3) that was sent to Plaintiff via regular mail on September 10, 2024. (Dkt. No. 7.) On October 17, 2024, the undersigned directed Plaintiff to show cause on or before October 31, 2024, why this matter should not be dismissed for, among other things, failure to comply with the Court’s text order (Dkt. No. 6) and failure to pay the filing fee to commence the

litigation. (Dkt. No. 9.) To date, Plaintiff has not responded to this order. (See generally docket sheet.) B. Complaint The Complaint is on a form complaint for a civil case and appears to seek “commission for security services” (Dkt. No. 1 at 3) from Defendants in the amount of $60 quadruple Billion Dollars.” (See generally Dkt. No. 1; Dkt. No. 1 at 7 [also seeking “$20 quadruple Billion Dollars . . . from NY State Troopers . . . [and] $80 quadruple Billion Dollars . . . [and] $40 quadruple Billion Dollars . . . from the FBI.”].) II. LEGAL STANDARDS

A. Standard Governing Dismissal for Failure to Comply With a Court Order Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with an order of the court.1 Fed. R. Civ. P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be exercised when necessary to “achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition, it should be exercised with caution and restraint because dismissal is a particularly harsh remedy, especially when invoked against a pro se plaintiff. Baptiste, 768 F.3d at 216-17. A determination of whether to dismiss an action pursuant to Rule 41(b) is informed by consideration of the following five specific factors: (1) the duration of the plaintiff's failure to comply with court orders; (2) whether the plaintiff was on notice that failure to comply would

result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in a fair chance to be heard; and (5) whether the imposition of sanctions less drastic than dismissal is appropriate. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Jackson v. City

1 Although Rule 41(b) grants a defendant leave to move for dismissal based on a plaintiff’s failure to prosecute or comply with a court order (rather than grant the court explicit authority to dismiss sua sponte), “courts retain the ‘inherent power’ to sua sponte ‘clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief.’” Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J.) (quoting link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Indeed, the local rules of this Court recognize this authority and mandate that the Court exercise it under certain circumstances. See, e.g., N.D.N.Y. L.R. 41.2(a). of New York, 22 F.3d 71, 74 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)); see also Shannon v. Gen. Elec.Co.,186 F.3d 186, 193-94 (2d Cir. 1999). B. Standard Governing Review of the Complaint 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 or parties have been served and have 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, notwithstanding payment of the filing fee. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff’s retaliation claim sua sponte because those theories were so lacking in

arguable merit as to be frivolous). 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 (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). III. ANALYSIS Based upon careful consideration of the foregoing relevant factors related to dismissal pursuant to Fed. R. Civ. P. 41(b), I conclude that dismissal of Plaintiff's Complaint at this juncture is warranted. Plaintiff's failure to proceed in this action has a substantial injurious effect on the litigation, and there is no end to Plaintiff's inaction in sight. Given Plaintiff's manifest disinterest in pursuing his claims in this action, I find that the need to alleviate congestion on the Court’s docket and Defendants’ interest in defending against the claims asserted by Plaintiff, outweigh his right to receive a further opportunity to be heard in this matter. As required, I have considered less-drastic sanctions, but reject them as ineffective. For example, I am persuaded

that issuing an order reprimanding Plaintiff for his conduct would be futile, given that Plaintiff has ignored the Court’s orders on two prior occasions. (Dkt. Nos. 6, 9.) In addition, the undersigned notes that Plaintiff has failed to properly commence this action by either paying the filing fee or submitting a completed IFP application that reflects his current financial status. (See generally docket sheet); see, e.g., Walker v. Vill. Ct., 17-CV-0390, 2017 WL 4220415, at *2 (N.D.N.Y. Aug. 4, 2017) (Peebles, M.J.) (citing Waters v. Camacho, 288 F.R.D. 70, 71 (S.D.N.Y. 2013)) (recommending dismissal of the plaintiff’s complaint where he failed to either pay the required filing fee or demonstrate that he qualifies for leave to proceed without prepayment of fees), report and recommendation adopted by, 2017 WL 4221069

(N.D.N.Y. Sept. 20, 2017) (Hurd, J.). As a result, I recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed.2 ACCORDINGLY, it is respectfully

2 In the alternative, I recommend that Plaintiff’s Complaint be dismissed as frivolous. As the Complaint is currently drafted, the Court is unable to meaningfully analyze, whether, and to what extent, Plaintiff has pleaded any colorable claim against Defendants. (See generally Dkt. No. 1.) Plaintiff’s Complaint places an unjustified burden on the Court and, ultimately, on Defendants “‘to select the relevant material from a mass of verbiage.’” Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)). RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED in its entirety, pursuant to Fed. R. Civ. P. 41(b), based on his failure to comply with this Court’s orders and local rules of practice; and it is further ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.?> Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: November 7 _, 2024 Binghamton, New York | . □ Miroslav Lovric U.S. Magistrate Judge

3 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

2007 WL 4246443 REPORT-RECOMMENDATION Only the Westlaw citation is currently available. United States District Court, GEORGE H. LOWE, United States Magistrate Judge. N.D. New York. This pro se prisoner civil rights action, filed pursuant to Jose RODRIGUEZ, Plaintiff, 42 U.S.C. § 1983, has been referred to me for Report and v. Recommendation by the Honorable Frederick J. Scullin, Jr., Glen S. GOORD, et al, Defendants. Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice No. 9:04-CV-0358 (FJS/GHL). for this Court. Generally, Jose Rodriguez (“Plaintiff”) alleges | that, while he was an inmate at Oneida Correctional Facility Nov. 27, 2007. in 2003 and 2004, ten employees of the New York State Department of Correctional Services (“Defendants”) were Attorneys and Law Firms deliberately indifferent to his serious medical needs, and subjected him to cruel and unusual prison conditions, in Jose Rodriguez, Willard, NY, pro se. violation of the Eighth Amendment. (Dkt. No. 27 [Plf .'s Andrew M. Cuomo, Attorney General of the State of New Am. Compl.].) Currently pending is Defendants' motion to York, David L. Cochran, Esq., Assistant Attorney General, of dismiss for failure to provide notice to the Court of a change Counsel, Albany, NY, for Defendants. of address, pursuant to Local Rule 41.2(b) of the Local Rules of Practice for this Court. (Dkt. No. 86.) Plaintiff has not opposed the motion, despite having been given more than six weeks in which to do so. Under the circumstances, DECISION AND ORDER I recommend that (1) Defendants' motion to dismiss be FREDERICK J. SCULLIN, Senior District Judge. granted, and (2) in the alternative, the Court exercise its inherent authority to sua sponte dismiss Plaintiff's Amended *1 The above-captioned matter having been presented to Complaint for failure to prosecute and/or failure to comply me by the Report-Recommendation of Magistrate Judge with an Order of the Court. George H. Lowe filed November 6, 2007, and the Court having reviewed the Report-Recommendation and the entire file in this matter, and no objections to said Report- I. DEFENDANTS' MOTION TO DISMISS Recommendation having been filed, the Court hereby Under the Local Rules of Practice for this Court, Plaintiff has effectively “consented” to the granting of Defendants' motion ORDERS, that Magistrate Judge Lowe's November 6, 2007 to dismiss, since (1) he failed to oppose the motion, (2) the Report-Recommendation is ACCEPTED in its entirety for motion was properly filed, and (3) Defendants have, through the reasons stated therein; and the Court further the motion, met their burden of demonstrating entitlement to the relief requested in the motion. L.R. 7.1(b)(3). ORDERS, that Defendants' motion, pursuant to Local Rule 41.2(b), to dismiss for Plaintiff's failure to provide notice to In particular, with regard to this last factor (i.e., that the Court of a change of address, is GRANTED; and the Defendants have met their burden of demonstrating Court further entitlement to the relief requested), Defendants argue that their motion to dismiss should be granted because (1) Local ORDERS, that the Clerk of the Court enter judgment in favor Rule 41.2(b) provides that “[f]ailure to notify the Court of a of the Defendants and close this case. change of address in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action,” (2) on April 15, 2004, Plaintiff was specifically advised of this rule IT IS SO ORDERED. when (through Dkt. No. 5, at 4) the Court advised Plaintiff that “his failure to [promptly notify the Clerk's Office and all parties or their counsel of any change in his address] Center, (4) since that time, Plaintiff has failed to provide judge shall order it dismissed.”) [emphasis added]. notice to the Court (or Defendants) of his new address, as required by Local Rule 10.1(b)(2), and (5) as a result of this failure, Defendants have been prejudiced in that they A. Failure to Prosecute have been unable to contact Plaintiff in connection with this With regard to the first ground for dismissal (a failure to litigation (e.g., in order to depose him, as authorized by the prosecute the action), it is within the trial judge's sound Court on May 4, 2007). (Dkt. No. 86, Part 4, at 1-2 [Defs.' discretion to dismiss for want of prosecution.4 The Second Mem. of Law].) Circuit has identified five factors that it considers when reviewing a district court's order to dismiss an action for *2 Authority exists suggesting that an inquiry into the failure to prosecute: third factor (i.e., whether a movant has met its “burden to demonstrate entitlement” to dismissal under Local Rule 7.1[b][3] ) is a more limited endeavor than a review of [1] the duration of the plaintiff's failures, [2] whether a contested motion to dismiss.1 Specifically, under such plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be an analysis, the movant's burden of persuasion is lightened prejudiced by further delay, [4] whether the district judge such that, in order to succeed, his motion need only be has taken care to strike the balance between alleviating “facially meritorious.”2 Given that Defendants accurately court calendar congestion and protecting a party's right to cite the law and facts in their memorandum of law, I find due process and a fair chance to be heard and [5] whether that they have met their lightened burden on their unopposed the judge has adequately assessed the efficacy of lesser motion. Moreover, I am confident that I would reach the same sanctions.5 conclusion even if their motion were contested. *3 As a general rule, no single one of these five factors is For these reasons, I recommend that the Court grant dispositive.6 However, I note that, with regard to the first Defendants' motion to dismiss. factor, Rule 41.2 of the Local Rules of Practice for this Court provides that a “plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” II. SUA SPONTE DISMISSAL N.D.N.Y. L.R. 41.2(a). In addition, I note that a party's failure Even if Defendants have not met their burden on their motion to keep the Clerk's Office apprised of his or her current to dismiss, the Court possesses the inherent authority to address may also constitute grounds for dismissal under Rule dismiss Plaintiff's Amended Complaint sua sponte under 41(b) of the Federal Rules of Civil Procedure.7 the circumstances. Rule 41 of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a Here, I find that, under the circumstances, the above- proceeding for (1) failure to prosecute the action and/or (2) described factors weigh in favor of dismissal. The duration failure to comply with the Federal Rules of Civil Procedure of Plaintiff's failure is some six-and-a-half months, i.e., or an Order of the Court. Fed.R.Civ.P. 41(b).3 However, since April 22, 2007, the date of the last document that it has long been recognized that, despite Rule 41 (which Plaintiff attempted to file with the Court (Dkt. No. 85). speaks only of a motion to dismiss on the referenced grounds, Plaintiff received adequate notice (e.g., through the Court's and not a sua sponte order of dismissal on those grounds), above-referenced Order of April 15, 2004, and Defendants' courts retain the “inherent power” to sua sponte “clear their motion to dismiss) that his failure to litigate this action calendars of cases that have remained dormant because of (e.g., through providing a current address) would result in the inaction or dilatoriness of the parties seeking relief.” Link dismissal. Defendants are likely to be prejudiced by further v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 delays in this proceeding, since they have been waiting to L.Ed.2d 734 (1962); see also Saylor v. Bastedo, 623 F.2d take Plaintiff's deposition since May 4, 2007. (Dkt. No. 84.) 230, 238 (2d Cir.1980); Theilmann v. Rutland Hospital, Inc., I find that the need to alleviate congestion on the Court's 455 F.2d 853, 855 (2d Cir.1972). Indeed, Local Rule 41.2(a) docket outweighs Plaintiff's right to receive a further chance not only recognizes this authority but requires that it be to be heard in this action.8 Finally, I have considered all exercised in appropriate circumstances. See N.D.N.Y. L.R. less-drastic sanctions and rejected them, largely because they due to his failure to provide a current address). Plaintiff violated this Order, resulting in delays in the action. (See Dkt. Nos. 47, 48, 49, 50, 54, 59, 72, 78, 79 & Dkt. Entry for 12/15/06 [indicating that mail from the Court to Plaintiff B. Failure to Comply with Order of Court was returned as undeliverable].) With regard to the second ground for dismissal (a failure to comply with an Order of the Court), the legal standard *4 As a result, I recommend that, should the Court decide governing such a dismissal is very similar to the legal standard to deny Defendants' motion to dismiss, the Court exercise governing a dismissal for failure to prosecute. “Dismissal ... its authority to dismiss Plaintiff's Amended Complaint sua for failure to comply with an order of the court is a matter sponte for failure to prosecute and/or failure to comply with committed to the discretion of the district court.”9 The an Order of the Court. correctness of a dismissal for failure to comply with an order of the court is determined in light of five factors: ACCORDINGLY, for the reasons stated above, it is RECOMMENDED that Defendants' motion to dismiss (Dkt. (1) the duration of the plaintiff's failure to comply with No. 86) be GRANTED%; and it is further the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the RECOMMENDED that, in the alternative, the Court defendants are likely to be prejudiced by further delay in exercise its inherent authority to SUA SPONTE DISMISS the proceedings, (4) a balancing of the court's interest in Plaintiff's Amended Complaint for failure to prosecute and/or managing its docket with the plaintiff's interest in receiving failure to comply with an Order of the Court. a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten dismissal.10 (10) days within which to file written objections to the Here, I find that, under the circumstances, the above- foregoing report. Such objections shall be filed with the described factors weigh in favor of dismissal for the same Clerk of the Court. FAILURE TO OBJECT TO THIS reasons as described above in Part II.A. of this Report- REPORT WITHIN TEN (10) DAYS WILL PRECLUDE Recommendation. I note that the Order that Plaintiff has APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, violated is the Court's Order of April 15, 2004, wherein the 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Court ordered Plaintiff, inter alia, to keep the Clerk's Office Servs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b)(1); apprised of his current address. (Dkt. No. 5, at 4.) Specifically, Fed.R.Civ.P. 72, 6(a), 6(e).. the Court advised plaintiff that “[p]laintiff is also required to promptly notify the Clerk's Office and all parties or their All Citations counsel of any change in plaintiff's address; his failure to do same will result in the dismissal of this action.” (Id.) I Not Reported in F.Supp.2d, 2007 WL 4246443 Footnotes 1 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8, 2003 WL 22143709 (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before an unopposed motion to dismiss may be granted under Local Rule 7.1[b][3], “the court must review the motion to determine whether it is facially meritorious ”) [emphasis added; citations omitted]; Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-10 (N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); see also Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M .J.) (applying prior version of Rule 7.1 [b][3], but recommending dismissal because of plaintiff's failure to Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95- CV-0989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.). 2 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625 at *8. 3 Fed.R.Civ.P. 41(b) (providing, in pertinent part, that “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant”). 4 See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981). 5 See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Rule 41[b] dismissal of plaintiff's claims by U.S. District Court for Northern District of New York based on plaintiff's failure to prosecute the action) [citation and internal quotation marks omitted]. 6 See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir.1994). 7 See, e.g., Robinson v. Middaugh, 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at *2-3, 1997 WL 567961 (N.D.N.Y. Sept. 11, 1997) (Pooler, J.) (dismissing action under Fed.R.Civ.P. 41[b] where plaintiff failed to inform the Clerk of his change of address despite having been previously ordered by Court to keep the Clerk advised of such a change); see also N.D.N.Y. L.R. 41.2(b) (“Failure to notify the Court of a change of address in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action.”). 8 It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without impermissibly burdening the Court and unfairly tipping the scales of justice against Defendant. 9 Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) [citations omitted]. 10 Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) [citations omitted]. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2016 WL 865296 of ethical violations against Defendant Bertram, she (a) Only the Westlaw citation is currently available. “collaborated with and supported” the Town's Fire Chief United States District Court, N.D. New York. to deny and/or threaten to deny fire protection to Plaintiff, (b) “supported and encouraged” various Town employees William PFLAUM, Individually and as a Citizen, to “illegal[ly] revo[ke] ... Plaintiff's permit to operate his Resident and Taxpayer of Town of Stuyvesant, Plaintiff, business,” and (c) “supported and encouraged” the Town v. Assessor's “campaign to intimidate Plaintiff by linking [his] TOWN OF STUYVESANT, COLUMBIA CTY., political speech [with his] real estate assessment.” (Dkt. No. 1, ¶¶ 20-23, 116 [Pl.'s Compl.].) N.Y.; and Valerie Bertram, Individually and as Supervisor of Town of Stuyvesant, Defendants. Second, Plaintiff alleges that, in retaliation for writing 1:11-CV-0335 (GTS/DJS) columns on his Internet blog regarding corruption among the | Town's public officials, the Town filed false criminal charges Signed 03/02/2016 against him. (Id., ¶ 116.) Attorneys and Law Firms Third, and finally, Plaintiff alleges that, in retaliation for criticizing Bertram, the Town Assessor, and the Town, the WILLIAM PFLAUM, Plaintiff, Pro Se1, 3 Rybka Road, Box Town Assessor used his authority to raise taxes in order to 40, Stuyvesant Falls, NY 12174. intimidate Plaintiff into silence. (Id., ¶¶ 23, 39, 47, 116.) BRYAN D. RICHMOND, ESQ., THOMAS J. MORTATI, ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP, B. Defendants' Motion for Summary Judgment Attorneys for Defendants, 9 Washington Square, Suite 201, *2 In their motion for summary judgment, Defendants P.O. Box 15085, Albany, NY 12212-5085. request the dismissal of Plaintiff's Complaint in its entirety. (Dkt. No. 59.) In support of their motion, Defendants make the following four arguments. First, Defendants argue that DECISION and ORDER there was no adverse action against Plaintiff in that there was no actual chilling of Plaintiff's First Amendment speech GLENN T. SUDDABY, Chief United States District Judge or any other damages. (Dkt. No. 61, at 3-8 [Defs.' Mem. of Law].) *1 Currently before the Court, in this civil rights action filed by William Pflaum (“Plaintiff”) against the Town of Second, Defendants argue that, in any event, any such adverse Stuyvesant (“Town”) and Valerie Bertram, Town Supervisor action was not motivated or substantially caused by Plaintiff's (“Bertram”) (collectively, “Defendants”), is Defendants' First Amendment speech. (Id. at 5-6.) motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 59.) For the reasons set forth below, Defendants' Third, in the alternative, Defendants argue that Bertram was motion is granted. not personally involved in any deprivation of fire protection services to Plaintiff. (Id. at 5, 8-10.) I. RELEVANT BACKGROUND Fourth, and finally, Defendants argue that Bertram is entitled A. Plaintiff's Complaint to qualified immunity. (Id.) As a result of the Court's prior decisions (Dkt. Nos. 17, 26), Plaintiff's sole remaining claim in this action is his C. Plaintiff's Opposition Memorandum of Law First Amendment retaliation claim. More specifically, as Generally construed, Plaintiff makes five arguments in articulated in his Complaint (which was drafted by Plaintiff, opposition to Defendants' motion. First, Plaintiff argues that pro se, and therefore must be construed with special he engaged in protected speech by creating an Internet blog solicitude), that claim alleges three separate ways he was on which he publicly criticized Town officials and exposed retaliated against for publicly criticizing Town officials.2 of Law].) No. 74, at 2-6 [Defs.' Reply Mem. of Law].) Second, Plaintiff argues that Town officials took adverse *3 Second, Defendants argue that the record is devoid of any action against him by issuing noise violations against him admissible evidence that Bertram was personally involved in with respect to loud dog barking on his property, retaining an alleged deprivation of fire protection services with regard special prosecutors to pursue civil suits and criminal charges to Plaintiff's residence. (Id. at 6-7.) Furthermore, Defendants against him, encouraging harassment and extra-judicial argue that Plaintiff cannot demonstrate that any adverse action threats against him, and treating him differently from other was taken because he was never actually deprived of fire residents. (Id. at 4-5.) As a result, Plaintiff argues that he protection services and his subjective belief that the fire suffered a chilling effect on his blogging as well as monetary department may not respond to a fire at his residence is damages due to the expense required to oppose the Town's insufficient to create a genuine dispute of fact. (Id. at 7-8.) retaliatory activities. (Id. at 6-8.) Third, Plaintiff argues that the timing of these adverse actions, E. Statement of Material Facts i.e., that they began after he created his blog, establishes the causal connection between his protected speech and the 1. Plaintiff's Failure to Comply adverse actions. (Id. at 5.) with N.D.N.Y. Local Rule 7.1 Fourth, Plaintiff argues that Bertram is not entitled to qualified Before reciting the material facts of this case, the Court immunity because it was not objectively reasonable to believe must address Plaintiff's response to Defendant's Rule 7.1 that her actions did not violate Plaintiff's First Amendment Statement of Material Facts. Local Rule 7.1(a)(3) of the Local rights. (Id. at 5-6.) According to Plaintiff, these actions Rules of Practice for this Court requires a party moving for consisted of (1) threatening to fire the Town's Dog Control summary judgment to submit a statement of material facts Officer if he did not serve Plaintiff with a criminal charge supported by specific citations to the record where those facts related to dog barking, and (2) retaining special prosecutors are established. N.D.N.Y. L.R. 7.1(a)(3). The non-moving to pursue this charge against Plaintiff without first obtaining party's subsequent response must mirror the moving party's the Town's approval. (Id. at 9.) statement of material facts by (1) admitting and/or denying each of the moving party's factual assertions in matching Fifth, Plaintiff argues that municipal liability extends to numbered paragraphs and (2) supporting any denials with the Town because of the actions of Bertram, the Town's specific citations to the record where the factual issues supervisor, and her position as a policymaker. (Id. at 8-9.) arise. Id. Importantly, “[t]he Court shall deem admitted any properly supported facts set forth in the [moving party's] Finally, the Court notes that Plaintiff spends considerable Statement of Material Facts that the [non-moving] party does time in his opposition papers arguing the merits of issues not not specifically controvert.” Id. raised by Defendants in their motion. For example, Plaintiff discusses the Town's denial of his FOIL requests, the Town's This Court's “Local Rule requirements are not empty failure to respond appropriately to alleged vandalism of his formalities.” Bombard v. Gen. Motors Corp., 238 F. Supp. property, and the sufficiency of the evidence that led to the 2d 464, 467 (N.D.N.Y. 2002) (Munson, J.) (stating that issuance of noise violations related to dog barking. (See “[t]he courts of the Northern District have adhered to a strict generally id., at 3-4, 6-9; Dkt. No. 67, ¶¶ 4, 14, 25, 27, 36, application of Local Rule 7.1[a][3]'s requirement on summary 56-107 [Pl.'s Decl.].) judgment motions”); accord, Cross v. Potter, 09-CV-1293, 2013 WL 1149525, at *3 (N.D.N.Y. Mar. 19, 2013) (McAvoy, J.). Indeed, the underlying purpose of this rule “is to assist D. Defendants' Reply Memorandum of Law the court in framing the issues and determining whether In reply to Plaintiff's opposition memorandum of law, there exist any triable issues of fact that would preclude the Defendants make two arguments. First, Defendants argue entry of summary judgment.” Youngblood v. Glasser, 10- that, because Plaintiff has not complied with Local Rule 7.1(a) CV-1430, 2012 WL 4051846, at *4 (N.D.N.Y. Aug. 22, 2012) (3) in his response to their statement of material facts, their (Peebles, M.J.); see also N.Y. Teamsters Conference Pension Cir. 2005) (noting that “Rules governing summary judgment time was producing noise levels that exceeded those normally practice are essential tools for district courts, permitting them produced by a resident and, accordingly, [Plaintiff] was in to efficiently decide summary judgment motions by relieving violation of his Permit.” (Id., ¶ 48.) them of the onerous task of 'hunt[ing] through voluminous records without guidance from the parties'”) (quoting Holtz v. On December 7, 2009, Mr. Ennis issued Plaintiff a notice Rockefeller & Co., 258 F.3d 62, 74 [2d Cir. 2001]). of violation, which informed Plaintiff that the Town had received several complaints about the noise coming from In the present case, Plaintiff has failed to respond his property and directed Plaintiff to remedy the violation appropriately to Defendants' Rule 7.1 Statement of Material by December 23, 2009. (Id., ¶ 49.) Subsequently, Plaintiff Facts. Specifically, Plaintiff has failed to admit and/or deny contacted Mr. Ennis and requested that his phone number each of Defendants' factual assertions in matching numbered be given to those who had complained with instructions that paragraphs. Indeed, Defendants' Rule 7.1 Statement contains they contact Plaintiff directly when there are noise issues 71 paragraphs of factual assertions, while Plaintiff's 7.1 so he can rectify any problems. (Id., ¶ 50.) However, after Response contains only 11 paragraphs. (Compare Dkt. No. a few months had passed, Plaintiff stopped answering his 62 [Defs.' Rule 7.1 Statement] with Dkt. No. 66 [Pl.'s Rule neighbors' phone calls; and, as a result, his neighbors made 7.1 Response].) Moreover, many of Plaintiff's responses new complaints to Mr. Ennis. (Id., ¶ 51.) After receiving are conclusory in nature and/or contain legal arguments. these complaints and personally observing the loud noise The Court notes that, when he responded to Defendants' emanating from Plaintiff's property, Mr. Ennis issued a second motion, Plaintiff was represented by counsel. Accordingly, notice of violation to Plaintiff on April 26, 2010. (Id., ¶¶ the Court will accept the factual assertions in Defendants' 52-53.) In response, Plaintiff advised Mr. Ennis that he would 7.1 Statement as true to the extent that the evidence in the erect a sound barrier to remedy the issue. (Id., ¶ 54.) record supports these facts. See Davis v. Cumberland Farms, Inc., 10-CV-0480, 2013 WL 375477, at *4 (N.D.N.Y. Jan. According to Mr. Ennis, he waited “some time” for Plaintiff 29, 2013) (Scullin, J.) (accepting the defendant's statement to erect, or apply for a permit to construct, a sound barrier of material facts as true where plaintiff neither admitted nor but neither action was taken. (Id., ¶¶ 55-56.) After continuing denied defendant's factual assertions); Aktas v. JMC Dev. Co., to receive noise complaints, Mr. Ennis issued a third notice Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D'Agostino, of violation to Plaintiff on August 9, 2010. (Id., ¶ 56.) On J.) (accepting the third-party defendants' statement of material the same day, Mr. Ennis met with Bertram and the Town facts as true because the defendant/third-party plaintiff failed Attorney to discuss the noise issue on Plaintiff's property. (Id., to respond to it in accordance with Local Rule 7.1[a][3] ). ¶ 57.) The Town Attorney advised Bertram that Mr. Ennis had the authority to revoke Plaintiff's home occupation permit if he determined that Plaintiff was in violation of the permit's conditions. (Id., ¶ 37.) As a result, Bertram advised Mr. Ennis 2. Undisputed Material Facts that he may revoke Plaintiff's permit if he determined that the *4 For purposes of this motion, the undisputed material permit's conditions had been violated. (Id., ¶ 38.) Later that facts are as follows. Gerald Ennis has served as the Zoning same day (August 9, 2010), Mr. Ennis made the decision to Enforcement Officer for the Town of Stuyvesant continuously revoke Plaintiff's permit and notified Plaintiff of that fact. (Id., since 2003. (Dkt. No. 62, ¶ 43 [Defs.' Rule 7.1 Statement].) ¶¶ 39, 59.) Neither Plaintiff's statements concerning various In this capacity, Mr. Ennis issued Plaintiff a Class 2 Home issues in the Town nor his postings on various Internet sites Occupation Permit in August, 2009. (Id., ¶ 44.) Under had any bearing on the decision to revoke Plaintiff's permit. this permit, “[n]o unusual appearances, noise, vibration, (Id., ¶¶ 40, 61.) smoke, dust, odors, heat, glare or electrical disturbances that exceed those normally produced by a resident shall Plaintiff testified at his deposition that the basis for his claim be permitted.” (Id., ¶ 45.) Following the issuance of this that he was deprived of fire protection services is that, “in permit, Mr. Ennis received numerous noise complaints from 2011, or perhaps late 2010,” a local fire department chief, Plaintiff's neighbors in regard to increasingly loud barking Steve Montie, posted an online statement that Plaintiff should from dogs on Plaintiff's property. (Id., ¶¶ 46-47.) Following an move out of town. (Id., ¶ 14.) Plaintiff testified that the post investigation into these complaints, Mr. Ennis concluded that was made in response to one of his earlier posts on a local of alleged ethical violations committed by Bertram. (Id., ¶¶ II. STANDARD GOVERNING A MOTION FOR 15-16.) The alleged post by Mr. Montie states in its entirety SUMMARY JUDGMENT as follows: Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to William, any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of How much more of this are you going to do ? ? ? ? You fact is “genuine” if “the [record] evidence is such that a are wasting more tax payer dollars than its worth. Man up reasonable jury could return a verdict for the nonmoving correct your problems and move on, or better yet move party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 out. (1986). As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of S fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (Id., ¶ 19.) The author of this post is not identified by name (citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the but only by the email address stuyvesantchief@fairpoint.net; Supreme Court has famously explained, “[the non-moving and, as indicated above, the post is signed only as “S.” (Id., party] must do more than simply show that there is some ¶ 18.) metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 *5 Plaintiff testified that the statements in the alleged post (1986). As for the materiality requirement, a dispute of fact is amounted to a threatened denial of fire department services “material” if it “might affect the outcome of the suit under the because “the fire chief told me I should move out of town, governing law.” Anderson, 477 U.S. at 248. “Factual disputes which makes me wonder if there was a fire at my house that are irrelevant or unnecessary will not be counted.” Id. would he come.” (Id., ¶ 20.) However, Plaintiff testified that no one has ever told him that the fire department would not In determining whether a genuine issue of material fact respond if there was a fire at his house. (Id., ¶ 22.) In addition, exists, the Court must resolve all ambiguities and draw all Plaintiff testified that there are two distinct fire departments in reasonable inferences against the movign party. Anderson, the Town, Stuyvesant Company 1 and Stuyvesant Company 477 U.S. at 255. In addition, “[the moving party] bears the 2, which divide their responses to emergency calls in the initial responsibility of informing the district court of the Town geographically. (Id., ¶ 23.) Steve Montie is the Chief basis for its motion, and identifying those portions of the of Stuyvesant Company 1 and a different chief controls ... [record] which it believes demonstrate[s] the absence of Company 2. (Id., ¶ 25.) Plaintiff's property is located in any genuine issue of material fact.” Celotex v. Catrett, 477 the geographic area covered by Company 2. (Id., ¶ 24.) U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c), According to Bertram, she did not “in any way direct any fire (e). However, when the moving party has met this initial department to deprive or threaten to deprive [Plaintiff] of fire burden of establishing the absence of any genuine issue services.” (Id., ¶ 33.) of material fact, the nonmoving party must come forward with specific facts showing a genuine dispute of material Finally, Plaintiff testified that there was “never” a time that he fact for trial. Fed. R. Civ. P. 56(c), (e). Where the non- did not publicize or speak out against some issues based upon movant fails to deny the factual assertions contained in the any actions by the Town and the alleged efforts to silence him movant's Rule 7.1 Statement of Material Facts in matching did not work. (Id., ¶ 26.) In fact, following the alleged actions numbered paragraphs supported by a citation to admissible by the Town, Plaintiff did more blogging and increased record evidence (as required by Local Rule 7.1[a][3] of the his “political activities against the Town.” (Id., ¶ 27.) With Court's Local Rules of Practice), the court may not rely solely respect to his business, Plaintiff testified that, despite losing on the movant's Rule 7.1 Statement; rather, the court must be his business permit in August, 2010, he continued to operate satisfied that the citations to evidence in the record support his business uninterrupted without a permit as he had before the movant's assertions. See Giannullo v. City of N.Y., 322 it was issued in 2009. (Id., ¶ 29.) Accordingly, there was F.3d 139, 143, n.5 (2d Cir. 2003) (holding that not verifying in no interruption to Plaintiff's business as a result of his home the record the assertions in the motion for summary judgment business permit being revoked. (Id., ¶¶ 28, 30.) “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”). III. ANALYSIS chilling effect where, after an arrest, the plaintiff continued to publish his newspaper through which he criticized the village A. Whether Plaintiff Suffered an Adverse Action government); Spear v. Town of W. Hartford, 954 F.2d 63, *6 After carefully considering the matter, the Court answers 67 (2d Cir. 1992) (finding no chilling effect where, after the this question in the negative for the reasons set forth in filing of a lawsuit, the plaintiff continued to write criticizing Defendants' memorandum of law and reply memorandum of editorials in the same manner as before the lawsuit). law. (Dkt. No. 61, at 3-8 [Defs.' Mem. of Law]; Dkt. No. 74, at 6-8 [Defs.' Reply Mem. of Law].) To those reasons, the Court Second, to the extent that Plaintiff argues that he perceived adds the following two points. the online post regarding the loss of fire protection as a real threat, he is still required to show that his perception was As this Court noted in its prior decisions, in order to objectively reasonable, i.e., “that the defendant[s'] actions state a claim for retaliation under the First Amendment, “a had some actual, non-speculative chilling effect.” Colombo v. plaintiff must prove (1) his conduct was protected by the O'Connell, 310 F.3d 115, 117 (2d Cir. 2002); see also Laird v. First Amendment, (2) the defendants' actions were motivated Tatum, 408 U.S. 1, 13-14 (1972) (holding that “[a]llegations or substantially caused by the exercise of that right, and of a subjective 'chill' are not an adequate substitute for a (3) defendants' actions effectively 'chilled' the exercise of claim of specific present objective harm or a threat of specific plaintiff's First Amendment right.” Pflaum, 937 F. Supp. 2d future harm”). Plaintiff's subjective belief that the online at 303 (citing Dillon v. Morano, 497 F.3d 247, 251 [2d Cir. post constituted a real threat, without more, is insufficient to 2007]). “In cases 'involving criticism of public officials by demonstrate an actual chilling effect on his First Amendment private citizens,' the Second Circuit has generally 'impose[d] rights. Indeed, as discussed above in Point I.E.2. of this an actual chill requirement for First Amendment retaliation Decision and Order, Plaintiff admitted that no one had told claims[,]' i.e., a requirement that the plaintiff allege and him that the fire department would not respond if there was ultimately prove an 'actual chill' of his First Amendment a fire at his house. Moreover, a different fire chief than the rights.” Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 221 one who allegedly authored the online post is responsible for (N.D.N.Y. 2012) (D'Agostino, J.) (quoting Gill v. Pidlypchak, responding to fire calls in the location of Plaintiff's residence. 389 F.3d 379, 381 [2d Cir. 2004]). “To establish this element, it is not enough for the plaintiff simply to show that he changed his behavior in some way; he must show that the B. Whether There Was a Causal Connection Between defendant intended to, and did, prevent or deter him from Plaintiff's Speech and Any Adverse Action exercising his rights under the First Amendment.” Hafez, 894 *7 After carefully considering the matter, the Court answers F. Supp. 2d at 221. “However, 'where the retaliation is alleged this question in the negative for the reasons set forth below. to have caused an injury separate from any chilling effect, such as a job loss or demotion, an allegation as to a chilling To establish the second element of his First Amendment effect is not necessary to state a claim.'” Id. (quoting Puckett v. retaliation claim, “plaintiff must provide specific proof of City of Glen Cove, 631 F. Supp. 2d 226, 239 [E.D.N.Y. 2009]); defendants' improper motivation with either circumstantial or see also Brink v. Muscente, 11-CV-4306, 2013 WL 5366371, direct evidence.” Media All., Inc. v. Mirch, 09-CV-0659, 2011 at *7 (S.D.N.Y. Sept. 25, 2013) (noting that, in private citizen WL 3328532, at *5 (N.D.N.Y. Aug. 2, 2011) (D'Agostino, cases, “various forms of concrete harm have been substituted J.) (citing Curley, 285 F.3d at 73). “Circumstantial evidence for the 'actual chilling' requirement”). includes close temporal proximity between plaintiff's speech and the alleged retaliatory act.” Mirch, 2011 WL 3328532, at First, it is clear from Plaintiff's deposition testimony that there *5. was no actual chilling of his protected speech as a result of Defendants' actions. As discussed above, Plaintiff admitted “Regardless of the presence of retaliatory motive, however, that he increased his political activities and continued to a defendant may be entitled to summary judgment if he publicize his opinions against the Town in the face of its can show dual motivation, i.e., that even without the alleged efforts to silence him. “Where a party can show no improper motivation the alleged retaliatory action would have change in his behavior, he has quite plainly shown no chilling occurred.” Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. of his First Amendment right to free speech.” Curley v. Vill. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, in defendant's action. The burden then shifts to defendant to activities of Town officials. (Dkt. No. 67, ¶ 15 [Pl.'s Decl.].) show it would have taken exactly the same action absent the improper motive.” Scott, 344 F.3d at 288. For example, on January 1, 2011, Plaintiff wrote about the alleged inflation of billable time by the Town Attorney that was spent on work paid for by the Town. (Id. at 65:8-11.) Around the same time, Plaintiff met with Bertram to discuss 1. Revocation of Plaintiff's Business Permit his discovery of specific instances of corruption by public In denying Defendants' underlying motion to dismiss officials, including the alleged inflation of billable work by Plaintiff's First Amendment claim, this Court held that the Town Attorney. (Dkt. No. 59, Attach. 7, at 62:13-15; Plaintiff had sufficiently alleged a concrete harm through 64:9-15 [Pl.'s Dep. Tr.].) On January 15, 2011, a few days the loss of his business permit, and consequently, the loss after this meeting occurred, Plaintiff was issued a criminal of business income, as a result of Defendants' alleged summons for the offense of “habitual loud barking,” in retaliatory actions. Pflaum, 937 F. Supp. 2d at 308. Having violation of N.Y. Local Law § 1. (Id. at 61:19-22; Dkt. No. carefully reviewed the record, the Court finds that Plaintiff 68, Attach. 7 [Criminal Summons]; Dkt. No. 67, ¶ 15 [Pl.'s has failed to create a genuine dispute of material fact Decl.].) Plaintiff testified at his deposition that the Town regarding Defendants' alleged improper motive. Specifically, Attorney went to great lengths to research the Local Law that with respect to the revocation of his business permit, the he was charged under and assisted one of Plaintiff's neighbors undisputed facts establish that the Town received complaints in drafting an affidavit upon which the criminal summons regarding the noise emanating from Plaintiff's property. was based. (Dkt. No. 59, Attach. 7, at 65:17-21 [Pl.'s Dep. Plaintiff was given two3 noise violations over the course of Tr.]; Dkt. No. 67, ¶ 107 [Pl.'s Decl.].) Plaintiff argues that he is the first Town resident to be charged under this section approximately one year and ample opportunity to rectify the of the Local Law. (Dkt. No. 67, ¶¶ 100, 106 [Pl.'s Decl.].) problem. (Dkt. No. 67, Attach. 5.) Because the noise problem Finally, Plaintiff argues that Bertram retained outside counsel and complaints continued, Mr. Ennis revoked Plaintiff's to pursue this charge against him, which was later dismissed. permit.4 Even if Plaintiff were able to establish that an (Dkt. No. 67, ¶¶ 5, 19, 21 [Pl.'s Decl.]; Dkt. No. 59, Attach. improper motive played a part in this decision, it is clear 7, at 57:16-18 [Pl.'s Dep. Tr.].) to the Court that, under these circumstances, the revocation would have still occurred. Indeed, Plaintiff challenged the Thereafter, in October 2011, Plaintiff filed an Article 78 decision to revoke his permit in appeals made to the Town's petition in New York State Supreme Court challenging Zoning Board of Appeals and in two actions filed in New the Town's denial of Plaintiff's FOIL requests. (Dkt. No. York State Supreme Court. (Dkt. No. 67, Attachs. 1 & 2.) 59, Attach. 7, at 67:7-12 [Pl.'s Dep. Tr.].) Plaintiff sought Although Plaintiff was successful in his state court actions, disclosure of the information in the FOIL requests to those decisions were based, in part, upon the Town's failure to substantiate his belief that Town officials were engaging follow proper procedure, rather than the merits of the Town's in illegal activities. (Dkt. No. 67, ¶¶ 43-44 [Pl.'s Decl.].) decision. (Id.) One week after commencing that action, Plaintiff received a second criminal summons for the same offense related to loud dog barking. (Dkt. No. 68, Attach. 7 [Appearance Ticket]; 2. Criminal Charges Dkt. No. 59, Attach. 7, at 56:16-19; 67:7-12 [Pl.'s Dep. Tr.].) Plaintiff testified that he had “almost no dogs” on his property *8 Plaintiff has also failed to demonstrate an improper in October 2011. (Dkt. No. 59, Attach. 7, at 67:8-10 [Pl.'s Dep. motive with respect to his claim that he received false criminal Tr.].) According to Plaintiff, that charge was neither dismissed charges in retaliation for comments on his website about nor withdrawn, but “vanished.” (Id., at 57:19-58:9.) corruption among public officials. Plaintiff relies on the temporal proximity of these charges with a meeting he had While Plaintiff's allegations may plausibly suggest that an with Bertram and his filing of an Article 78 petition in New improper motive played a role in the charges brought York State Supreme Court. More specifically, Plaintiff argues against him, Defendants have submitted admissible record that he began an Internet blog on or about January 1, 2011, evidence that establishes otherwise. (Dkt. No. 59, Attach. 17.) Specifically, the criminal information in question is signed part, that “my complaint is that the dogs at Glencadia Dog filings before a town hall meeting as threatening in nature Camp exhibit ongoing habitual barking/howling at any given due to the “timing and manner of the interaction.” (Id.) time of day or night. This has been an issue since the Fall of This is because Plaintiff “had announced [his] intention to 2009.” (Id.) Furthermore, an affidavit filed by Wes Powell, the call for a referendum frequently and in many forums prior Town's Dog Control Officer, states that he received repeated to appearing for the meeting.” (Id.) Furthermore, Plaintiff complaints from Mr. Platt throughout 2010, culminating in requested that, in order to “avoid the impression that you the noise complaint that served as the basis for the criminal coordinate your tax-related activities with other people in charge. (Dkt. No. 59, Attach. 16, ¶¶ 3-5 [Powell Aff.].) Mr. government in order to intimidate free speech, please do not Powell states that the complaint was written by Mr. Platt in present important information to me in such an information his presence and that no Town official directed Mr. Powell to [sic] and unverifiable way.” (Id.) serve Plaintiff with the criminal summons. (Id., ¶¶ 7-10.) However, Mr. Gleason's response to Plaintiff's letter suggests *9 Conversely, Plaintiff has not submitted any admissible that their interaction was not meant as a threat to record evidence supporting his claim that the Town Attorney raise Plaintiff's taxes or “was in any way politically (who is not a party) played any role in the charge being motivated.” (Dkt. No. 69, Attach. 18, at 4 [Letter from Pl. filed against him or that he is the only resident to have to Gleason].) More specifically, Mr. Gleason explains that ever been charged under this section of the Local Law. he needed to re-assess Plaintiff's property in light of the fact Similarly, Plaintiff's contention that the Town pressured Mr. that Plaintiff was now running a kennel (business) on his Platt to file a complaint against him (Dkt. No. 67, ¶ 7[Pl.'s property and decided to hand deliver his letter knowing that Decl.] ) is unsubstantiated. While the timing of the charge Plaintiff would be present for the town hall meeting. (Id.) may appear suspicious, the Town cannot control when its Moreover, Mr. Gleason reassured Plaintiff that politics do not residents decide to file a complaint and, in light of the record dictate how he performs his job and promised that all future evidence demonstrating that there was a preexisting noise communication will be transmitted through mail rather than problem on Plaintiff's property, the complaint is unsurprising. in-person. (Id.) Moreover, the fact that Plaintiff believes the Town shored up its criminal charge against him is of little, if any, materiality. Plaintiff has failed to submit any additional evidence with Finally, because the second charge seemingly “vanished,” no respect to his tax assessment, that his taxes were improperly documentation or evidence (other than the appearance ticket raised or that Mr. Gleason acted with a retaliatory animus.5 itself) has been submitted with respect to that charge. In any Similarly, no evidence has been submitted to substantiate event, because the charge was never prosecuted, Plaintiff Plaintiff's claim that Bertram encouraged Mr. Gleason to use has failed to support his claim that he suffered any harm. his authority as Town Assessor to intimidate Plaintiff. In sum, Accordingly, the Court finds that Plaintiff has failed to meet Plaintiff has wholly failed to satisfy his burden demonstrating his burden in demonstrating an improper motive with respect that he suffered harm as a result of any action taken by Mr. to this charge. Gleason and that Mr. Gleason acted with an improper motive. *10 For all of these reasons, the Court finds that Plaintiff 3. Town Assessor Gleason has failed to create a genuine dispute of material fact with respect to his First Amendment claim. Because the Court has Plaintiff claims that Town Assessor Howard Gleason (also not reached this conclusion, it need not, and does not, consider the a party) threatened to raise his property taxes for engaging in merits of Defendant Bertram's alternative qualified immunity political activities when Mr. Gleason hand delivered a letter to argument. Plaintiff before a public meeting. (Dkt. No. 69, Attach. 18, at 3 [Letter from Pl. to Gleason]; Dkt. No. 67, ¶ 29 [Pl.'s Decl.].) ACCORDINGLY, it is The only evidence submitted with respect to this claim is not the original letter from Mr. Gleason to Plaintiff but letter ORDERED that Defendants' motion for summary judgment correspondence from Plaintiff to Mr. Gleason. (Dkt. No. 69, (Dkt. No. 59) is GRANTED. The Clerk of the Court is Attach. 18, at 3 [Letter from Pl. to Gleason].) Plaintiff's letter directed to enter judgment in favor of the Defendants and to Mr. Gleason, dated October 5, 2010, states that Plaintiff close this case. All Citations Not Reported in Fed. Supp., 2016 WL 865296

Footnotes 1 Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel when preparing his response to Defendant's motion for summary judgment. Accordingly, no need exists to construe Plaintiff's response with the special solicitude ordinarily afforded to pro se litigants. 2 The Court notes that, while it did not previously (i.e., in its prior decisions) liberally construe Plaintiff's retaliation claim as arising under three separate theories, it does so now. The Court further notes that it has the power to address these two additional theories for each of two alternative reasons: (1) because Defendants moved for dismissal of Plaintiff's retaliation claim in its entirety, Plaintiff has had sufficient notice and an opportunity to be heard with respect to the two theories in question; and (2) in any event, even if Plaintiff cannot be said to have had such notice and an opportunity to be heard, he filed his Complaint pro se and the Court finds the two theories to be so lacking in arguable merit as to be frivolous, see Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee). 3 As discussed above, Plaintiff was actually given three noise violations. However, because his permit was revoked on the same day that he received the third violation, the Court will disregard the third violation for purposes of this analysis. 4 The Court notes that Plaintiff spends considerable time in his opposition papers disputing the sufficiency of the evidence and procedures that were followed that led to the issuance of noise violations. (See generally Dkt. No. 67, ¶¶ 56-95 [Pl.'s Decl.].) However, this Court is not the proper forum for that dispute. Furthermore, to the extent that the New York Supreme Court observed that there appeared “to have been a disproportionate amount of time and money spent on [the noise violation] notice,” and that the records did not “reveal a real issue with dog-barking,” those observations are not binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.) Setting aside the fact that the observations constitute dicta, Defendants have submitted admissible record evidence demonstrating that Mr. Ennis acted upon complaints made to him by residents of the Town, which Plaintiff has failed to properly dispute. 5 For example, with regard to this lack of additional evidence regarding retaliatory animus, Plaintiff has failed to adduce admissible record evidence establishing that, even assuming Mr. Gleason knew of Plaintiff's intent to engage in protected speech, the so-called “manner of the interaction” by Mr. Gleason (i.e., the hand delivery of the letter) was in fact unusual for Mr. Gleason given the date of the letter and the date of the public meeting. Moreover, Plaintiff has failed to adduce admissible record evidence that the so-called “timing ... of the interaction” is significant, given his rather constant exercise of his First Amendment rights during the time in question. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 4220415 issued an order on May 10, 2017, denying plaintiff's IFP Only the Westlaw citation is currently available. application, without prejudice, and requiring plaintiff to either United States District Court, N.D. New York. pay the statutory filing fee of $400.00 or submit a proper application for leave to proceed without prepayment of fees Alfred Marion WALKER, Plaintiff, on or before June 2, 2107. Dkt. No. 6. Despite the passage of v. that deadline, plaintiff has taken no further action in this case. VILLAGE COURT, et al., Defendants. Civil Action No. 3:17-CV-0390 (DNH/DEP) II. DISCUSSION | Upon commencement of an action in a federal district court, Signed 08/04/2017 the statutory filing fee, currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, Attorneys and Law Firms to permit a litigant to proceed IFP if it determines that he is unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).1 ALFRED MARION WALKER, c/o 60 Saratoga Avenue, Apartment 114, Binghamton, NY 13901, Pro se. Notwithstanding the reference in the document's title to “Application for In Forma pauperis,” plaintiff's most recent submission fails to contain any information concerning his REPORT AND RECOMMENDATION financial status. See generally Dkt. No. 4. Instead, plaintiff insists that courts lack the authority to require payment of David E. Peebles, U.S. Magistrate Judge filing fees for court access, citing Crandall v. State of Nevada, *1 Plaintiff Alfred Marion Walker, who is proceeding pro 73 U.S. 35 (1867). Id. at 2. That case, however, does not se, has commenced this action against the State of New so hold, and Congress has specifically authorized district York and various agencies and individuals associated with courts to require payment of filing fees in order to commence Broome County and/or the City of Endicott, New York. actions. See 28 U.S.C. § 1914(a) (“The clerk of each district Despite ample notice of the requirement that he either pay a court shall require the parties instituting any civil action ... to statutory filing fee or submit a properly supported application pay a filing fee[.]” (emphasis added)). As was noted above, for leave to proceed in forma pauperis, he has failed to do district courts do retain the discretion, upon a proper showing, either. Accordingly, I recommend that plaintiff's complaint be to excuse the payment of the filing fee and grant IFP status to dismissed. a plaintiff. 28 U.S.C. § 1915(a)(1); see Fridman, 195 F. Supp. 2d at 536 & n.1. In this instance, however, due to plaintiff's failure to provide any information concerning his finances, I. BACKGROUND the court is unable to make any meaningful assessment of his Plaintiff commenced this action on April 6, 2017. Dkt. No. 1. financial status and determine whether he qualifies for leave Plaintiff's complaint names the State of New York and sixteen to proceed without prepayment of fees. other defendants of varying descriptions as defendants, and sets forth five enumerated causes of action for trespass or *2 Having failed to comply with this court's May 10, “trespass on the case.” See generally id. Upon receiving 2017 order, I now recommend that plaintiff's complaint be plaintiff's complaint, District Judge David N. Hurd issued dismissed for failure to pay the required filing fee or to obtain an order on April 11, 2017, directing administrative closure leave to proceed IFP. See, e.g., Waters v. Camacho, 288 F.R.D. of the case in light of plaintiff's failure to pay the requisite 70, 71 (S.D.N.Y. 2013). statutory filing fee or file an application to proceed in the action in forma pauperis (“IFP”). Dkt. No. 3. III. SUMMARY AND RECOMMENDATION Plaintiff thereafter submitted to the court a document entitled Despite being placed on notice of the court's requirements, “Writ Re: Amended Action And Application for In forma plaintiff has failed to either pay the required filing fee in this pauperis” and “Writ of Error Qua Corum Nobis Residant.” case or to demonstrate that he qualifies for leave to proceed Dkt. No. 4. That document, as well as plaintiff's complaint, without prepayment of fees. Accordingly, it is hereby DISMISSED without prejudice. It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties accordance with this court's local rules. may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within All Citations FOURTEEN days of service of this report.2 FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE Not Reported in Fed. Supp., 2017 WL 4220415 APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993). Footnotes 1 The language of that section is ambiguous, in that it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). Courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); see also Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 2 If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 4221069 against various state and local agencies and employees. On Only the Westlaw citation is currently available. August 4, 2017, the Honorable David E. Peebles, United United States District Court, N.D. New York. States Magistrate Judge, advised by Report-Recommendation that plaintiff's complaint be dismissed for failing to pay Alfred Marion WALKER, Plaintiff, either a statutory filing fee or submit a properly supported v. application for leave to proceed in forma pauperis, despite Village COURT; the State of New York; Village of multiple opportunities to do so and advisement of same. No Endicott; Endicott Police Department; Officer Dunham, objections to the Report-Recommendation have been filed. Badge # 470; Officer J Wanka, Badge # 478; Captain Based upon a careful review of the entire file and the Collins; Judge Alfonso Ortega; David Stokes; Karen recommendations of the Magistrate Judge, the Report- Micalizzi Tautero; C.O. Zachary Moor; Sgt Bixby, C.O.; Recommendation is accepted in whole. See 28 U.S.C. § C.O. Rick Borchardt; C.O. Dennis Rowd; C.O. Sean Bell; 636(b)(1). Broome County Jail; and Broome County, Defendants. Therefore, it is 3:17-CV-390 (DNH/DEP) | ORDERED that Signed 09/20/2017 1. This action is DISMISSED without prejudice; and Attorneys and Law Firms 2. The Clerk is directed to enter judgment accordingly and ALFRED MARION WALKER, c/o 60 Saratoga Avenue, close the file. Apartment 114, Binghamton, NY 13901, Plaintiff pro se. IT IS SO ORDERED. DECISION and ORDER All Citations DAVID N. HURD, United States District Judge Not Reported in Fed. Supp., 2017 WL 4221069 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.