Norton v. Town of Brookhaven

47 F.Supp.3d 152

Jerome NORTON, Plaintiff

v.TOWN OF BROOKHAVEN, County of Suffolk, Robert Quinlan, David J. Moran, Jennifer Lutzer, Justin Folber, formerly known as Jason Folber, William Powell, and Valerie Biscardi, all individually and in their official capacity, Defendants.

No. 13–CV–3520 ADSGRB.

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

Signed Sept. 18, 2014.

Leeds Brown Law, P.C., by: Rick Ostrove, Esq., Bryan L. Arbeit, Esq., Of Counsel, Carle Place, NY, for the Plaintiff.

Devitt Spellman Barrett LLP, by: Jeltje deJong, Esq., Joshua S. Shteierman, Esq., Of Counsel, Smithtown, NY, for Defendants Town of Brookhaven, Robert Quinlan, David J. Moran, Jennifer Lutzer, Justin Folber, William Powell, and Valerie Biscardi.

The Suffolk County Attorney's Office, by: Brian C. Mitchell, Assistant County Attorney, Of Counsel, Hauppauge, NY, for the Defendant County of Suffolk.

DECISION AND ORDER

SPATT, District Judge.

Familiarity with the factual and procedural background of this case is presumed.

However, by way of background, on January 14, 2014, the Plaintiff Jerome Norton (the “Plaintiff”) filed a Second Amended Complaint against the Defendants the Town of Brookhaven (the “Town”), plus Robert Quinlan, David J. Moran, Jennifer Lutzer, Justin Folber, formerly known as Jason Folber, William Powell, Valerie Biscardi (the “Individual Defendants,” and collectively the “Brookhaven Defendants”) and the County of Suffolk (the “County”) pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201, the United States Constitution, the New York State Constitution, New York State statutory law, and the common law.

The Plaintiff brought the following fourteen causes of action: (1) a First Amendment intimate association claim under § 1983 ; (2) a retaliation claim for a First Amendment speech/right to petition claim under § 1983 ; (3) a malicious prosecution claim under New York State Law; (4) a respondeat superior liability claim for the malicious prosecution claim under New York State Law; (5) a substantive due process claim under § 1983 ; (6) an equal protection claim under § 1983 ; (7) a procedural due process claim under § 1983 ; (8) a Fourth Amendment claim under § 1983 ; (9) a claim under the New York Civil Rights Law § 8 ; (10) a claim against the Town under Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) for violating the Plaintiff's Fourth Amendment rights under § 1983 ; (11) a Monell liability claim for violating the Plaintiff's First Amendment rights, and also based on substantive due process, equal protection, and procedural due process; (12) a claim for declaratory judgment and injunctive relief against the Town; (13) a claim for declaratory judgment and injunctive relief against the County; and (14) a claim for attorney's fees under 42 U.S.C. § 1988. The only claim against the County was the claim for declaratory and injunctive relief.

On February 21, 2014, the Brookhaven Defendants moved, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6), to dismiss the Second Amended Complaint for failure to state a claim upon which relief can be granted. On March 24, 2014, the County separately moved, pursuant to Fed.R.Civ.P. 12(b)(6), for similar relief.

In opposition to the motions to dismiss, the Plaintiff withdrew his claim based on substantive due process.

On July 30, 2014, in a Memorandum of Decision and Order (the “July 30, 2014 Order”), the Court granted in part and denied in part the motion to dismiss by the Brookhaven Defendants and granted the motion to dismiss by the County. Norton v. Town of Brookhaven, 33 F.Supp.3d 215, 13–CV–3520 (ADS)(GRB), 2014 WL 3746484 (E.D.N.Y. July 30, 2014). Relevant portions of the July 30, 2014 Order are described in more detail throughout this opinion.

In sum, as to the motion to dismiss by the Brookhaven Defendants, the Court denied the motion with respect to (1) the Section 1983 First Amendment intimate association, Fourth Amendment, and procedural due process claims; (2) the corresponding Monell claims against the Town; (3) the claim under Section 8 of the New York Civil Rights Law ; and (4) the request for declaratory relief as against the Town. The Court otherwise granted the motion to dismiss by the Brookhaven Defendants.

On August 13, 2014, the Plaintiff moved, pursuant to Local Civil Rule 6.3 and Fed.R.Civ.P. 54(b), for an order granting reconsideration of the July 30, 2014 order, and upon reconsideration, reversing the dismissal of (1) the Plaintiff's First Amendment retaliation claim; (2) the New York State malicious prosecution claims against the Town and Individual Defendants; and (3) the declaratory judgment claim against the County.

For the following reasons, the Court grants the motion for reconsideration.

I. DISCUSSION

A. The Legal Standard for a Motion for Reconsideration

Fed.R.Civ.P. 54(b) provides that a court is permitted “at any time before the entry of judgment adjudicating all the claims and rights and liabilities of all the parties,” to revise “any order or other form of decision.” Fed.R.Civ.P. 54(b). Local Civil Rule 6.3 sets forth this District's procedural rules with respect to reconsideration motions.

A motion for reconsideration is the proper vehicle for bringing to the Court's attention matters it may have overlooked in its initial ruling or order. See Local Civ. Rule 6.3. The grounds for reconsideration are “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992). “The standard for granting [a reconsideration motion] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (citations omitted). “It is well-settled that [a motion for reconsideration] is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.), as amended (July 13, 2012) (quotation marks omitted).

Furthermore, arguments raised for the first time on reconsideration are not proper grounds for reconsideration. See Image Processing Techs., LLC v. Canon Inc., No. 10 Civ. 3867(SJF) (ETB), 2012 WL 253097, at *1 (E.D.N.Y. Jan. 26, 2012) (“[A] party is not permitted to ‘advance new facts, issues or arguments not previously presented to the Court’ on a motion for reconsideration.”) (citing Caribbean Trading & Fid. Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir.1991) ). “[A] party requesting [reconsideration] is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use Rule [6.3] to advance new facts and theories in response to the court's rulings.” Church of Scientology Int'l v. Time Warner, Inc., No. 92 Civ. 3024(PKL), 1997 WL 538912, at *2 (S.D.N.Y. Aug. 27, 1997). “ ‘The purpose of the rule is to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.’ ” Woodard v. Hardenfelder, 845 F.Supp. 960, 966 (E.D.N.Y.1994) (quoting McMahan & Co. v. Donaldson, Lufkin & Jenrette,

727 F.Supp. 833, 833 (S.D.N.Y.1989) ).

B. The First Amendment Retaliation Claims: Speech and Petition

In the July 30, 2014 Order, the Court dismissed the Plaintiff's First Amendment retaliation claim, reasoning in part that the Plaintiff failed to allege that his exercise of his First Amendment rights was “chilled” or discouraged by the Brookhaven Defendants. In so ruling, the Court relied on Second Circuit case law, including Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir.2010) ; Ford v. Reynolds, 167 Fed.Appx. 248, 250 (2d Cir.2006) ; and Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir.2005), each of which stands for the proposition that an allegation of a “chill” is indispensable for a First Amendment retaliation claim by private plaintiffs.

However, a further review of the case law indicates that, while it was once well-settled law that a private citizen who alleged retaliation for criticism of public officials had to “prove that ... [the] defendants' actions effectively chilled the exercise of [his or her] First Amendment right,” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir.2001) ), the Second Circuit has recently “clarified, ... that ‘[c]hilled speech is not the sine qua non of a First Amendment claim.’ ” Prince v. Cnty. of Nassau, 563 Fed.Appx. 13, 17 (2d Cir.2014) (quoting Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir.2013) ). Thus, “[a] plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.”Dorsett, 732 F.3d at 160 (emphasis added); see also Glacken v. Inc. Vill. of Freeport, 09 CV 4832(DRH)(AKT), 2014 WL 1836143, at *7 (E.D.N.Y. May 8, 2014) (citing Prince and Dorsett ).

Further, the Court finds that, contrary to the contention of the Brookhaven Defendants, a criminal prosecution is a sufficient form of concrete harm for purposes of a First Amendment retaliation claim. Brink v. Muscente, No. 11 Civ. 4306(ER), 2013 U.S. Dist. LEXIS 137880, at *23–24, 2013 WL 5366371, at *8 (S.D.N.Y. Sept. 25, 2013) (accepting that the plaintiff suffered “harm in the form of retaliatory charges brought against her” because it is “well-settled that the First Amendment ‘prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.’ ”) (quoting ...