Fusco v. Cnty. of Nassau

492 F.Supp.3d 71

Peter FUSCO, Plaintiff,

v.COUNTY OF NASSAU, Nassau County Police Department, Nassau County Police Commissioner Patrick Ryder, Christopher V. Todd Esq., individually and in his official capacity, "John Doe #1-3", individually and in his official capacity, "Jane Doe #1-3", individually and in her official capacity, the last three names being fictitious and unknown to the plaintiff, but intended to designate parties with an interest and knowledge of in the facts herein, Defendants.

19-CV-04771 (DRH)(AKT)

United States District Court, E.D. New York.

Signed September 30, 2020

For Plaintiff: La Reddola, Lester & Associates, LLP, 600 Old Century Road, Suite 230, Garden City, New York 11530, By: Robert J. La Reddola, Esq.

For Defendant: Nassau County Attorney, 1 West Street, Mineola, New York 11501, By: Ralph J. Reissman, Esq.

MEMORANDUM & ORDER

HURLEY, Senior District Judge:

Plaintiff Peter Fusco ("Plaintiff" or "Fusco") brought this action against Defendants County of Nassau ("County"), Nassau County Police Department ("Police Department"), Nassau County Police Commissioner Patrick Ryder, Christopher V. Todd, Esq, "John Doe #1-3", and "Jane Doe # 1-3," (collectively, "Defendants"). Plaintiff seeks a declaratory judgment, monetary damages and injunctive relief related to Defendants’ alleged violation of Plaintiff's Second and Fourteenth Amendment rights under 42 U.S.C. § 1983, including Monell liability. Plaintiff also seeks punitive damages under 42 U.S.C. § 1983 and legal fees under 42 U.S.C. § 1988(b). Presently before the Court is Defendants’ motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motion is granted in part and denied in part.

BACKGROUND

The following allegations are taken from the Complaint ("Compl."), including the documents attached thereto,¹ and are assumed true for purposes of this motion.

I. Confiscation of Plaintiff's Firearms and Pistol License

Plaintiff retired from the Nassau County Police Department ("NCPD") on January 14, 2010. (Compl. [ECF No. 1] ¶ 14.) Upon retirement from NCPD, he received a "retired member's pistol license" and " ‘good guy’ letter." Id. Concurrent with Plaintiff's retirement, Plaintiff and his then-wife, Natalie Fusco, were experiencing "matrimonial difficulties." (Id. ¶ 13.) Thereafter, in 2014, Plaintiff and Natalie Fusco were involved in seven "domestic incidents" that arose "out of the matrimonial difficulties between Plaintiff and his wife...."² (Id. ¶ 15.) Plaintiff alleges four of these "incidents" occurred at his "request" "for ‘documentation purposes.’ "³ (Id. ) Following the incident on March 10, 2014, Plaintiff voluntarily surrendered his firearms and pistol license.⁴ (Compl. ¶ 23; Compl. Ex. 1 (Notice of Claim) [ECF No. 1-1] at 2.) His pistol license was suspended on May 5, 2014. (Id. ¶ 16.)

II. Plaintiff's Efforts to Reinstate his Pistol License

On or about October 6, 2014, five months after Plaintiff's pistol license had been suspended, Hon. Ellen R. Greenberg vacated a Family Offense Petition and Temporary Orders of Protection that had previously been entered against Plaintiff.⁵ (Compl. ¶ 17.). Approximately two days later, on October 8, 2014, "Plaintiff wrote to the NCPD requesting his pistol license suspension be lifted so that he could seek ‘numerous employment opportunities that require [him] to possess [his] licensed firearms.’ " (Compl. ¶ 18.) Plaintiff allegedly received no response to this letter and asserts that no investigation took place. (Id. ¶ 19.)

On or about May 8, 2017, Plaintiff's divorce from his wife was finalized, and Plaintiff "received sole custody of their son."⁶ (Id. ¶¶ 20-21.) Approximately a week later, on or about May 15, 2017, Plaintiff made "a formal, written request for the return of the surrendered firearms" and the reinstatement of his pistol license. (Id. ¶ 23.) Following Plaintiff's request, in June 2017, an employee of the NCPD Pistol License Section called Natalie Fusco on the telephone "to inquire if she consented to the return of the pistol license, and such consent was refused." (Id. ¶ 24.) Plaintiff alleges "it is the policy of NCPD Pistol License Section to seek the approval of the ex-wife prior to returning a pistol license." (Id. ¶¶ 25-26.)

Approximately two months after this correspondence between Natalie Fusco and the NCPD Pistol License Section, on or about August 31, 2017, Plaintiff received a Revocation Letter, which changed the status of his pistol license from "suspended" to "revoked." (Id. ¶ 27.) The Revocation Letter stated he must wait a minimum of five years before reapplying for a new license, "effectively prohibit[ing] him from owning a handgun for an additional five (5) years." (Id. ¶ 28.) The Revocation Letter also stated Plaintiff was prohibited from possessing firearms, rifles, and shotguns, "effectively barring him from owning any handgun or rifle or shotgun for five years minimum." (Id. ¶ 29.)

The Revocation Letter noted Plaintiff's opportunity for an administrative appeal of the revocation decision with an Appeals Officer, which Plaintiff filed in writing on or about September 26, 2017. (Id. ¶¶ 28-30.) "On or about August 24, 2018, nearly a year later, the NCPD reached a decision and denied the appeal." (Id. ¶ 31.) The Appeals Officer in charge of Plaintiff's appeal, Christopher V. Todd, Esq., found that "sufficient evidence exists to support the Pistol License Section's Determination to revoke Appellant's Nassau County Retired Police Officer pistol license." (Id. ¶ 33 (internal citation and quotations omitted).) He went on to state "[e]ven if his wife's allegations are not true, at a minimum they establish that the relationship between Appellant and his wife is a deteriorating, emotionally-volatile one," and that the "volume of domestic incidents and their underlying facts and circumstances, inter alia , provided the Pistol License section with ‘good cause’ as defined by New York State Pen[al] Law § 400.00." (Id. ¶¶ 34-37 (internal citation and quotations omitted).) Plaintiff alleges he "was not given a hearing prior to the Defendants making any of these determinations with regard [to] his license revocation or the surrender of his firearms." (Id. ¶¶ 36.)

III. Revocation of Plaintiff's Pistol License

According to the NCPD Pistol License Handbook, there are instances which trigger automatic revocation of a pistol license, such as when "a licensee is named as the respondent in a permanent Order of Protection." (Id. ¶ 45.) The NCPD Pistol License Handbook also lists circumstances that prompt immediate suspension of a pistol license and the commencement of "an investigation to determine whether or not the license should be revoked." (Id. ¶ 46.) One such circumstance is a "[r]eport of any domestic [dispute] involving a licensee where violence is threatened or alleged to have occurred or the existence of a volatile domestic situation." (Id. ¶ 46.)

According to Plaintiff, "no good cause exists to revoke Plaintiff's pistol license as a matter of law," and "the County and the Police Department were incorrect in applying the ‘good cause’ standard to a revocation." (Id. ¶¶ 38-47.) "Rather, the County and the Police Department are more broad in their issuance of a revocation [than] Penal Law § 400 provides." (Id. ¶ 49.) Plaintiff contends "[a]s there was no current Court Order, and the ‘volatile domestic situation’ had subsided long ago following the divorce, and amounted to nothing after all, there were no circumstances upon which the County and Police Department could issue the revocation to Plaintiff under Penal Law § 400...." (Id. ¶ 50.) Plaintiff also asserts NCPD acted improperly when it "suspend[ed] his right to own and possess a rifle or shotgun," for five years. (Id. ) Therefore, Plaintiff contends, Defendants infringed his constitutional rights under the Second and Fourteenth Amendments of the United States Constitution.⁷

DISCUSSION

I. Rule 12(b)(6) Legal Standard

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action, a court should "draw all reasonable inferences in Plaintiff[’s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co. , 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); accord Harris v. Mills , 572 F.3d 66, 71–72 (2d Cir. 2009).

First, the principle that a court must accept all allegations as true is inapplicable to legal conclusions. Thus, "threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Although "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937. A plaintiff must provide facts sufficient to allow each named defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

Second, only complaints that state a "plausible claim for relief" can survive a motion to dismiss. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. "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 asks for more than a sheer possibility that defendant 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 ...