Mazzone v. Town of Southampton

283 F.Supp.3d 38

Robert A. MAZZONE, Jr., Plaintiff,

v.TOWN OF SOUTHAMPTON, Southampton Town Code Enforcement Officer Donald P. Kauth, Southampton Town Code Enforcement Officer Ricardo Larios, Southampton Town Code Enforcement Officer Kenneth Glogg, Southampton Town Code Enforcement Officer Michael Chih, Southampton Town Fire Code Marshal John J. Rankin and Does 1–5, Defendants.

CV 16–4515 (JFB) (ARL)

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

Signed July 26, 2017

Patricia A. Weiss, Sag Harbor, NY, for Plaintiff.

David H. Arntsen, John M. Shields, Devitt Spellman Barrett, LLP, Anne C. Leahey, Smithtown, NY, for Defendants.

REPORT AND RECOMMENDATION

LINDSAY, Magistrate Judge:

Plaintiff Robert A. Mazzone, Jr. ("Plaintiff") brings this action under 42 U.S.C. § 1983 (" Section 1983") against defendants Town of Southampton (the "Town"); Town Code Enforcement Officers Donald P. Kauth ("Officer Kauth"), Ricardo Larios ("Officer Larios"), Kenneth Glogg ("Officer Glogg") and Michael Chih ("Officer Chih"); and Town Fire Code Marshal John J. Rankin ("Marshall Rankin") (collectively, "Defendants") alleging, inter alia , that Defendants maliciously charged him with a multitude of violations and/or misdemeanors. Before the Court, on referral from District Judge Bianco, is the motion by Defendants to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons that follow, the Court respectfully recommends that Defendants' motion be granted in part and denied in part.

BACKGROUND

The following facts are drawn from the complaint, exhibits attached thereto, and matters of which judicial notice may be taken, and with the exception of the latter category, are accepted as true for purposes of the instant motion.¹ Samuels v. Air Transp. Local 504 , 992 F.2d 12, 15 (2d Cir. 1993).

Plaintiff is a "real estate professional" with Hampton Sales and Rentals and assists consumers in finding rentals in the Town. Compl. ¶ 20. In an 82–page complaint, inclusive of exhibits, Plaintiff alleges that the Defendants maliciously targeted him for years by filing several charges and misdemeanors against him related to properties he rented. Plaintiff alleges that Defendants pursued these charges without probable cause and despite awareness of case law that "doomed any success on the charges," instead deciding to "sort it out later." Id. ¶¶ 19, 35 and page 12. Plaintiff claims that he was singled out and targeted because he rented houses to "hard-working Hispanic immigrants with low-paying jobs." Id. ¶ 86. The Court discusses the charges below.

I. The 2012 Charges

Plaintiff alleges that in 2012, he was served with 61 charges and given appearance tickets directing his attendance in the Town's Justice Court in order to avoid arrest. Id. ¶ 36. The only details regarding the charges are found in a Certificate of Disposition, which is attached as Exhibit 1 to the complaint. It lists charges such as "property maintenance/litter," "carbon monoxide alarm required," "smoke detector required," "area for sleeping purposes," "change of use," "rental permit required," "electrical equipment installation," "bldg. permit required," and "no required barrier for pool." Id. Ex. 1.

The 61 charges were docketed in four separate cases and reassigned to the Riverhead Town Justice Court after all four Town Justices recused themselves. Id. ¶¶ 37–38. After multiple appearances by Plaintiff, Justice Smith of the Riverhead Town Justice Court dismissed all 61 charges. Id. ¶ 39. Fifty-nine charges were dismissed as a result of Plaintiff's motions to dismiss. Id. The remaining two charges were terminated after the Town was unable to proceed to trial. Id. ¶ 43. The Certificate of Disposition indicates that all of these charges were dismissed. Id. ¶¶ 16, 56 and Ex. 1.

According to Plaintiff, Justice Smith's first decision was issued on May 5, 2015 in one of the four cases. Id. ¶ 40. Even though it was apparent from this decision that the remaining charges in the three other cases were without merit, Defendants did not seek to discontinue these charges. Id. ¶¶ 40–41. Specifically, Plaintiff alleges that the Town both lacked any evidence that Plaintiff had an ownership interest in the properties at issue and failed to retain any exculpatory information as required. Id. ¶ 44.

II. The 2013 Charges

Plaintiff alleges that in December 2013, he was charged by Officer Chih with two misdemeanor offenses "pertaining to property maintenance matters, in a single docket for alleged violations of codes concerning a house on North Sea Road and its ‘pool fence’ and ‘weeds.’ " Id. ¶¶ 47, 54. Attached to the complaint as Exhibit 2 is a Certificate of Disposition regarding these charges indicating that the charges were for "no pool enclosure" and "prop maint/weeds." Id. Ex. 2. Plaintiff alleges that Chih charged him even though (1) he lacked probable cause to believe Plaintiff was liable because Chih based his complaints on a September 2013 inspection of the premises and had two months to investigate and determine that Plaintiff was not the homeowner; (2) Chih failed to provide Plaintiff with the required pre-prosecution notice pursuant to N.Y. Executive Law § 382(2) giving Plaintiff notice and an opportunity to cure; and (3) the factual allegations were patently insufficient to charge. Id. ¶¶ 50–54. After at least two court appearances, the charges were dismissed by Acting Town Justice Solomon in 2015, after motion practice. Id. ¶ 48. The Certificate of Disposition indicates that these two charges were dismissed. Id. ¶¶ 16, 49 and Ex. 2.

III. The 2015 Charges

Plaintiff alleges that in April 2015, Defendants launched a third set of charges against him despite the fact that Defendants know that all, or nearly all, of the previous charges filed against Plaintiff would be dismissed. Id. ¶¶ 58–60. More specifically, on April 22, 2015, Plaintiff was given an additional 22 appearance tickets written by Officers Larios and Glogg for alleged violations of Southampton Town Law § 270 –3(A) and (B), which prohibit (1) an owner from renting a dwelling without a valid rental permit; and (2) a person from occupying a rental property without a valid rental permit being issued for the dwelling. Id. ¶¶ 61, 68. Based on these tickets, 21 separate criminal dockets were commenced on various dates in May 2015, at which time the accusatory instruments—unclassified misdemeanor informations—were filed with the Clerk of the Town Justice Court. Id. ¶ 63. As of the time of the complaint, these criminal actions were still pending before Justice Schiavoni, and Plaintiff faces a jail term of over 10 days per offense as well as substantial fines. Id. ¶¶ 67–68.

Plaintiff alleges that Officers Larios and Glogg knew or should have known that Plaintiff was neither the owner nor occupant of any of the 21 houses involved in the charges. Id. ¶ 72. Instead, Officers Larios and Glogg caused Plaintiff's liberty interests to be infringed by arresting him and maliciously prosecuting the 21 criminal charges. Id. ¶ 74. According to Plaintiff, he "was singled out and targeted because he assisted in renting houses to hard-working Hispanic immigrants with low-paying jobs," id. ¶ 86, and that "[s]uch selective treatment by these Defendants was based on impermissible considerations such as race, religion, national origin, gender, familial status, and the intent to inhibit and interfere with [Plaintiff's] exercise of his legal rights," id. ¶ 85; see also id. ¶¶ 75–77.

IV. Alleged Media Ride–Alongs

Lastly, Plaintiff alleges that Defendants' "media ride-alongs" are unconstitutional:

At one or more times during the days immediately before and/or around a pre-trial conference held before Justice Schiavoni on August 8, 2016 in connection with the trials of the 21 dockets ... both Glogg and Larios deliberately and intentionally reached out to a news and video crew of one or more local news channels for the purpose of authorizing the participation of such television news crew ... to participate in unconstitutional "media ride-along" inside certain homes occupied by immigrant Hispanic tenants who had sought [Plaintiff's] assistance in finding them rental housing.

Id. ¶ 107. Plaintiff alleges that "[b]y their actions, Glogg and Larios exposed the TOWN and themselves to the possibility of multiple lawsuits by occupants seeking compensatory damages for Fourth Amendment violations of their rights protected in their homes." Id. ¶ 112.

V. The Instant Action

Based on the foregoing, the complaint asserts four causes of action: (1) violation of Plaintiff's "and others" Fifth and Fourteenth Amendment rights to due process and equal protection; (2) violation of Plaintiff's "and others" Fourth and Fourteenth Amendment rights to property and liberty interests and equal protection; (3) federal malicious prosecution, federal false arrest, and federal malicious abuse of criminal process; and (4) a state law claim under New York Judiciary Law § 487. The complaint seeks compensatory and punitive damages as well as injunctive relief. Defendants filed their motion to dismiss on October 17, 2016, and the motion was fully briefed as of December 9, 2016. ECF Nos. 18–22, 24. Judge Bianco referred the motion to the undersigned on May 10, 2017.

DISCUSSION

I. Standard of Law

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in which the court set forth a two-pronged approach to be utilized in analyzing a motion to dismiss. District courts are to first "identify [ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an...