Massari v. Ryerse

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DENNIS MASSARI, Plaintiff, v. PAUL RYERSE, et al., Defendants.

No. 1:23-CV-446 JLS (MJR)

United States District Court, W.D. New York

March 27, 2024

REPORT AND RECOMMENDATION

This case has been referred to the undersigned pursuant to Section 636(b)(1) of Title 28 of the United States Code, by the Honorable John L. Sinatra, Jr. (Dkt. No. 12) Before the Court is defendants' motion to dismiss the complaint for failure to state a claim (Dkt. No. 10) and plaintiff's cross-motion to amend the complaint (Dkt. No. 13). For the following reasons, it is recommended that defendants' motion to dismiss be granted in part and denied in part. It is further recommended that plaintiff's motion to amend be granted.

BACKGROUND

Plaintiff commenced this lawsuit on May 18, 2023, alleging that defendants, in their individual capacities and in their capacities as employees or officers of the Town of Evans violated his constitutional rights by issuing numerous false criminal charges against him with the intent to harass and to force him to take certain action regarding the construction of drainage both on and off his property. (Dkt. No. 1) On July 24, 2023, defendants moved to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim. (Dkt. No. 10)

On August 23, 2023, plaintiff filed a response in opposition to the motion to dismiss and included a proposed amended complaint seeking to add the Town of Evans as an additional defendant pursuant to a Monell claim. (Dkt. Nos. 13 13-2) Plaintiff further requested that, should the Court find that plaintiff failed to state a claim, plaintiff be granted “leave to amend the complaint to make any clarifications requested by the Court.” (Id.)

Defendants filed a response in further support of the motion to dismiss and in opposition to plaintiff's motion to amend the complaint. (Dkt. No. 18) Defendants' response includes arguments as to why the proposed amended complaint fails to state a claim. (Id.) In accordance with Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, and because defendants' reply addresses the allegations of the proposed amended complaint, including the Monell claim, the Court will treat the proposed amended complaint (Dkt. No. 13-2) as the operative pleading in deciding the instant motion to dismiss.

APPLICABLE LEGAL STANDARD

In order to state a claim on which relief can be granted, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663, (2009); quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). When evaluating a motion to dismiss, a court must accept as true the factual allegations contained in a complaint and draw all inferences in plaintiff's favor. See Allaire Corp. v. Okumus 433 F.3d 248, 249-50 (2d Cir. 2006). "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." Iqbal, 556 U.S. at 662. “Determining whether a complaint states a plausible claim for relief...requires the...court to draw on its judicial experience and common sense.” Id. at 679.

THE COMPLAINT

The facts set forth in the complaint, which the Court must accept as true for purposes of the instant motion, are as follows. In 2009, plaintiff Dennis Massari purchased property at 1492 Wisconsin Road, Derby, New York, 14047, and began construction of a home. (Dkt. No. 13-2, ¶ 17) In or around April of 2011, defendant Charles LaBarbera, a Code Enforcement Officer for the Town of Evans, threatened Massari that he would not renew Massari's building permit unless Massari allowed water to flowthrough his property via existing ditches. (Id. at ¶ 9, ¶ 18) The Town of Evans (the “Town”) possesses no easement or other legal right to the ditches located on Massari's property. (Id. at ¶ 18)

Approximately two years later, on or around May 1,2013, defendant Paul Ryerse, a Code Enforcement Officer for the Town, notified Massari of a “possible violation' for “changing topography and related drainage issues” on his property. (Id. at ¶ 8, ¶ 19) On February 9, 2015, over a year and a half later, defendant Richard Vacile, a Code Enforcement Officer for the Town issued Massari a violation for “changing topography of land causing flooding.” (Id. at ¶ 12, ¶ 20)

On July 16, 2016, approximately a year and a half after Officer Vacile issued the violation, Officer Ryerse reported Massari to the U.S. Army Corps of Engineers (the “USACE”) for an alleged violation of the Clean Water Act. (Id. at ¶ 21) Ryerse indicated that support for the violation was provided by neighbors. (Id.) To that end, on May 26, 2016, Jason Sardina, Massari's neighbor, sent an email to Ryerse complaining about fill delivered to Massari and stating that he was concerned that the fill “will make the water drainage issue worse.” (Id.) Communication ensued between Massari and the USACE and a USACE agent later visited Massari's property to take samples. (Id.) No further action was taken by the USACE with regard to Massari or his property. (Id.)

On November 29, 2016, Massari was issued a stop work order and was charged with various violations of the Town of Evans Code by Officer Ryerse. (Id. at ¶ 22)

The Town issued Massari a storm water permit on July 14, 2017, to be in effect until August 8, 2018. (Id. at ¶ 23) The permit allowed Massari to remove large piles of topsoil and fill, and to install storm water drainage piping as well as a ditch system. (Id.) Massari undertook the drainage project in an attempt to reach a resolution with the Town and to stop code enforcement officers from issuing further charges against him. (Id.) However, while the drainage project on Massari's property was ongoing, Officer Ryerse attempted to force Massari to build additional swales on neighboring properties, maintaining that it was Massari's responsibility to remedy the flooding with respect to the neighboring land. (Id. at ¶ 24) Ten days after issuance of the permit, on July 24, 2017, Ryerse charged Massari with additional violations of the Town of Evans Code. (Id. at ¶ 25)

In a pre-trial conference on January 2, 2018, the Town agreed to dismiss the then-pending violations against Massari subject to the effectiveness of the drainage system he had agreed to build. (Id. at¶26) The Town agreed to direct owners of adjoining properties on Wisconsin Road to take certain steps to facilitate the natural flow of water into the drainage pipe. (Id.) On September 24, 2018, Massari accepted an adjournment in contemplation of dismissal (“ACD”) as to the violation charges issued against him on November 29, 2016 and July 24, 2017.^[1] (Id. at ¶ 27)

Over a year later, on October 31, 2019, Officer Vacile and Sardina, plaintiff's neighbor, inspected Massari's property without his permission. (Id. at ¶ 28) The next day, on November 1, 2019, Sardina unlawfully entered Massari's property carrying a shovel. (Id. at ¶ 29) Massari's surveillance camera shows Sardina give a “thumbs up” sign in the direction of the camera and then start to dig on Massari's property. (Id.) Sardina also frequently allows his dogs to enter Massari's property without Massari's consent. (Id. at ¶ 30) Massari has filed trespassing charges against Sardina, but no action has been taken. (Id. at ¶¶ 30-31)

On November 6, 2019, Jesse Gilbert, a Code Enforcement Offcer for the Town, charged Massari with violations of the Town of Evans Code. (Id. at ¶ 10, ¶ 32) Officer Gilbert charged Massari with additional violations on November 8, 2019 and December 18, 2019. (Id. at ¶ 33, ¶ 34) On December 27, 2019, Officer Gilbert sent a letter to Massari withdrawing the November 8 and December 18 charges and notifying Massari of new violation charges. (Id. at ¶ 35) Gilbert included a “violation list” stating that the charges included therein were the only pending violations against Massari regarding his property at 1492 Wisconsin Road.^[2] (Id.)

On June 29, 2020, Massari filed a complaint against Sardina on the Building and Code Enforcement Web Portal. (Id. at ¶ 36) The complaint reported an electrical cord in an area known to contain standing water and drainage running on the wrong side of a fence. (Id.) Massari is unaware of any action, by defendants, taken with respect to his complaint against Sardina. (Id.)

On February 23, 2022, over a year after Officer Gilbert sent the list of violations to Massari, defendant Joseph Boberg, a Code Enforcement Officer for the Town, issued more code violations against Massari. (Id. at ¶ 11, ¶ 37)

Massari appeared in Evans Town Court with counsel on July 19, 2022. (Id. at ¶ 38) At that time, he learned that the charges in the “violation list” sent by Officer Gilbert had been dismissed on March 29, 2022. (Id. at ¶ 35, ¶ 38) According to Massari, “it was at [the July 19, 2022] court appearance, along with conversations that took place there, that it became clear to [him] that the Town of Evans [would] continue to employ the tactic of filing criminal charges against him, only for the charges later to be dismissed, in a persistent manner to manipulate [him] into compliance with the Town's and [Sardina's] unauthorized wishes for drainage uses on and off [his] property.” (Id. at ¶ 38) The February 23, 2022 charges filed by Officer Boberg were dismissed on or about August 26, 2022, for facial insufficiency. (Id. at ¶ 37, ¶ 40)

Massari alleges that defendants have...