Opinion
1:06-CV-1139 (GLS/DRH).
April 30, 2007
FOR THE PLAINTIFFS: MICHAEL JULIANO Plaintiff, Pro Se Murrells Inlet, South Carolina.
FOR THE DEFENDANTS: Patricia DeAngelis, Rensselaer County District Attorney, Rebecca Bauscher, William Roberts, Joseph Ahern, Rensselaer County, Ken Bruno, GOLDBERG, SEGALLA LAW FIRM, Albany, New York, WILLIAM J. GREAGAN, ESQ., Shelia Wilson, Megan Wilson, Donna Clark, City of Rensselaer Court, Kathleen Leahey-Robichaud, Patricia Weisemann, HON. ANDREW CUOMO New York Attorney General The Capitol Albany, New York, KRISTA A. ROCK Assistant Attorney General, Andrew S. Jacobs, Andrew, C. Jacobs, OFFICE OF E. STEWART JONES Office of E. Stewart Jones, Jr. Troy, New York, GEORGE E. LaMARCHE III., ESQ., Mark Pratt, John Hicks Daniel Stewart, Frederick Fusco, James Frankowski, Joseph Normandin, Matthew McCoy, Paul Martell, City of Rensselaer, CARTER, CONBOY LAW FIRM JAMES A. RESILA, ESQ., Albany, New York, Daniel Zukowski (Concerned Rensselaer Resident Website), DANIEL ZUKOWSKI Pro Se Rensselaer, New York, Town of East Greenbush Court, Eileen Donahue, Linda Kennedy, Kevin Engle, Town of East Greenbush, OFFICE OF M. RANDOLPH BELKIN Century Hill Drive Latham, New York M. RANDOLPH BELKIN, ESQ., Mediation Matters PHELAN, PHELAN LAW FIRM Albany, New York, TIMOTHY S. BRENNAN, ESQ.
MEMORANDUM-DECISION and ORDER
I. Introduction
Pro se plaintiffs Michael, Reban and James Juliano (Julianos) have filed a complaint containing broad allegations against multiple public and private parties in Rensselear County. See Dkt. No. 1. The events giving rise to their complaint originated from an ongoing neighbor dispute with defendants Megan and Shelia Wilson. See id. In essence, the Julianos now claim that their constitutional rights were violated during the criminal prosecution of the Wilsons. See id. However, at this juncture, there are simply no discemable facts alleged thus far that trigger constitutional protection. For the reasons that follow, the currently pending motions to dismiss are denied with leave to renew, and the Julianos are directed to file an amended complaint within thirty days to avoid the dismissal of this action. See Dkt. Nos. 15, 17, 20, 24, 29 36.
The court declines to recite a detailed facts section given the incomprehensible nature of the complaint. See Dkt. No. 1. In sum, the dispute at the heart of this action began with what the Julianos characterize as ongoing harassment on behalf of their neighbors, the Wilsons. The Wilsons' conduct included, inter alia, stealing private property from their front yard, verbal attacks, and unwanted videotaping. The Julianos claim that this harassment was part of a conspiracy against them due to their familial relation to Frederick Fusco, the City of Rensselear Police Chief. Following several police interventions, the presiding County Judge did not issue an arrest warrant for the Wilsons but instead ordered both parties (the Julianos and Wilsons) to enter into mediation. A resolution was not reached through mediation, and the Julianos continued to seek prosecution of the Wilsons. The Julianos now contend that the court-ordered mediation and subsequent criminal prosecution of the Wilsons violated their rights due to the defendants' conspiracy against them.
Specifically, the Julianos claim that the defendants' conduct violated the following constitutional rights: (1) equal protection, (2) freedom from unlawful search and seizure, (3) freedom from unlawful retention of property, (4) freedom from unlawful arrest or imprisonment, (5) right to due process, (6) freedom from excessive force, (7) denial of liberty, and (8) right to counsel. See Dkt. No. 1.
II. Discussion
The Julianos seek to vindicate their constitutional rights through 42 U.S.C. § 1983. See German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (citation omitted) ("§ 1983 establishes a cause of action `for the deprivation of any rights, privileges, or immunities secured by the Constitution[.]'"). Specifically, they claim violations of their Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. They name thirty-two defendants in their complaint. However, the vast majority of these defendants are not state actors and therefore cannot be sued for constitutional violations under § 1983. See Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994) (parties may not be held liable under 42 U.S.C. § 1983 unless they have acted under the color of state law). Moreover, even if some of these defendants could be sued under § 1983, the Julianos' complaint fails to state a claim upon which relief may be granted. Simply put, even when broadly construed given their pro se status, the facts alleged are insufficient to rise to the level of a constitutional violation. The court will now briefly address some of the constitutional deficiencies present in the complaint.(1) Monell Claim
The Julianos' claims against the City of Rensselaer are deficient because they have not alleged a custom or policy that caused a deprivation of their constitutional rights. See Monell v. Dep't of Social Services, 436 U.S. 658 (1978). The mere conclusory assertion that a municipality has such a custom or policy in the absence of supporting factual allegations is itself insufficient to establish a Monell claim. See Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993). Here, the Julianos have not alleged that the City of Rensselaer promulgated a custom or policy that violated their constitutional rights. For these reasons, at this juncture, the Julianos have failed to state a viable Monell claim.
The court also notes that the many of the officials named as defendants are entitled to immunity. See Gan v. City of New York, 996 F.2d 522 (2d Cir. 1993).
(2) Fourth Amendment Claims
The Julianos also broadly assert violations of their Fourth Amendment rights. The Fourth Amendment protects against unreasonable seizures of property. See Soldal v. Cook County, Ill., 506 U.S. 56, 62 (1992). Moreover, "reasonableness is still the ultimate standard under the Fourth Amendment." Id. at 71 (internal quotation marks and citation omitted). To determine what is reasonable, the court must carefully balance the governmental and private interests at stake. See id. Here, the Julianos have alleged no facts to suggest that the government seized their property, resulting in a violation of their Fourth Amendment rights. For these reasons, at this juncture, the Julianos have failed to state a viable Fourth Amendment claim
(3) Fourteenth Amendment Claims
Under § 1983, a due process claim "must allege the deprivation of a constitutionally protected interest." Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002). To have a protected interest, a person must have a "legitimate claim of entitlement to it." Id. (internal quotation marks and citation omitted). "An abstract need, desire or expectation is not enough." Id. Specifically, "to state a claim for violation of due process, a plaintiff must allege that there was deprivation of life, liberty, or property without proper notice and an opportunity to be heard." Luessenhop v. Clinton County, N.Y., 378 F. Supp. 2d 63, 67 (N.D.N.Y. 2005). Due process requires that notice is "reasonably calculated" under the circumstances to apprise interested parties of the pendency of the action. See id. Here, the Julianos have failed to allege a deprivation of life, liberty or property by a state actor. Therefore, at this juncture, they have failed to state a viable claim under the Fourteenth Amendment.
(4) Fifth Amendment
The complaint alleges violations of the Fifth Amendment. However, the Fifth Amendment applies to federal, not state actors. See Snow v. Vill. of Chatham, 84 F. Supp. 2d 322, 326-27 (N.D.N.Y. 2000). Here, the Julianos have not named federal officers as defendants in this action. For these reasons, at this juncture, the Julianos have failed to state a viable Fifth Amendment claim.
(5) Sixth Amendment
The Julianos allege that they were denied right to counsel. However, Sixth Amendment rights are only held by accused persons subject to criminal prosecutions. See Gatson v. Selsky, 94-CV-292, 1997 WL 159258, at *5 (N.D.N.Y. Apr. 4, 1997). Here, the Julianos were never the subject of any criminal charges. Therefore, at this juncture, they have failed to state a viable claim under the Sixth Amendment.
(6) Eighth Amendment
Likewise, the Julianos claim that their Eighth Amendment rights have been violated. However, there are no facts alleged in the complaint to support this claim. See generally Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 262 (1989) (Eighth Amendment protects against excessive bail and cruel and unusual punishment primarily in the criminal context). For these reasons, at this juncture, the Julianos have failed to state a viable Eighth Amendment claim.
III. Conclusion
For the reasons stated herein, and because the Julianos are pro se plaintiffs, the court will allow the Julianos an additional thirty days to amend their complaint. At that time, defendants may renew their motions to dismiss on the same or supplemental papers.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Julianos may AMEND their complaint (Dkt. No. 1) within THIRTY DAYS (30) of this Order's filing date or face dismissal; and it is further
ORDERED that the defendants' motions to dismiss (Dkt. No. 15, 17, 20, 24, 29, 36) are DENIED with leave to renew on the same or supplemental papers; and it is further
ORDERED that the Clerk of the Court provide copies of this Order to the parties.