Bartels v. Inc. Vill. of Lloyd Harbor

• Citation: 97 F.Supp.3d 198
• Decision Date: 31 March 2015
• Docket Number: No. 10 CV 5076PKCGRB.,10 CV 5076PKCGRB.
• Parties: Jeffrey BARTELS, Plaintiff, v. The INCORPORATED VILLAGE OF LLOYD HARBOR, Mayor Leland M. Hairr, Deputy Mayor Jean Thatcher, John Ritter, Jr., Robert Schwarz, Police Chief Charles Flynn, Sergeant Renald Difonzo, Police Officer Morrissey, Police Officer Muller, Police Officer Baffa, Police Officer Grimm, Police Officer Cortes, Police Officer O'Shaughnessy, Police Officer Donnaruma, Mary Mohrman, Brian Madsen, Thomas Scholl, and John Does No. 1 and 2, Defendants.
• Court: U.S. District Court — Eastern District of New York

97 F.Supp.3d 198

Jeffrey BARTELS, Plaintiff

v.The INCORPORATED VILLAGE OF LLOYD HARBOR, Mayor Leland M. Hairr, Deputy Mayor Jean Thatcher, John Ritter, Jr., Robert Schwarz, Police Chief Charles Flynn, Sergeant Renald Difonzo, Police Officer Morrissey, Police Officer Muller, Police Officer Baffa, Police Officer Grimm, Police Officer Cortes, Police Officer O'Shaughnessy, Police Officer Donnaruma, Mary Mohrman, Brian Madsen, Thomas Scholl, and John Does No. 1 and 2, Defendants.

No. 10 CV 5076PKCGRB.

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

Signed March 31, 2015.

James M. Maloney, Law Office of James M. Maloney, Port Washington, NY, for Plaintiff.

Carl S. Sandel, Drew William Sumner, Sean R. Strockkyj, Matthew Charles Weir, Morris Duffy Alonso & Faley, New York, NY, Frank A. Andrea, III, Andrea & Towsky, Esqs., Garden City, NY, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

GARY R. BROWN, United States Magistrate Judge.

Plaintiff Jeffrey Bartels initiated this action, pursuant to 42 U.S.C. § 1983, against Defendants the Incorporated Village of Lloyd Harbor (“Village”) and various Village officials and employees, including members of the Village's police department, alleging violations of his constitutional rights. On June 17, 2014, Defendants filed their motion for summary judgment on all of Plaintiff's claims. On July 1, 2014, Plaintiff moved for leave to file a Third Amended Complaint. Both motions were referred to the Honorable Gary R. Brown, United States Magistrate Judge, for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b).

In his Report and Recommendation (“Report”), issued February 18, 2015, Judge Brown recommended that Defendants' summary judgment motion be granted, that Plaintiff's motion to amend be denied, and that this action be dismissed in its entirety. (Report (Dkt. 57) at 205.) Plaintiff timely filed his objections to the Report, although he chose not to object to the denial of his motion to amend. (Plaintiff's Objections to Magistrate's Report and Recommendation (Dkt. 58) at 8 (“Plaintiff does not take issue with the denial of leave to amend the current pleading....”).) Defendants timely responded to Plaintiff's objections. As discussed below, the Court adopts the Report in its entirety, and dismisses this action.

I. STANDARD OF REVIEW

When a party objects to a magistrate judge's report and recommendation, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C). However, “[g]eneral or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error.”O'Diah v. Mawhir, 08–CV–322 (TJM)(DRH), 2011 WL 933846, at *1 (S.D.N.Y. March 16, 2011) (citing Farid v. Bouey, 554 F.Supp.2d 301, 306 n. 2 (N.D.N.Y.2008) ; Frankel v. N.Y.C., 06–CV–5450 (LTS)(DFE), 07–CV–3436 (LTS)(DFE), 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009) ). “After reviewing the report and recommendation, the Court may ‘accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.’ ” 28 U.S.C. § 636(b)(1)(C) ; O'Diah, 2011 WL 933846, at *2 (quoting 28 U.S.C. § 636(b)(1)(C) ).

Although Plaintiff has filed objections to Judge Brown's Report, his objections largely repeat the arguments he presented in his opposition to the Defendants' summary judgment motion.¹ The Court, therefore, reviews the Report for “clear error.” O'Diah, 2011 WL 933846, at *1.

II. DISCUSSION

The Court has reviewed Judge Brown's extremely thorough and well-reasoned Report, and finds that it is free of any error, no less clear error. With respect to Plaintiff's claim that Judge Brown erred in finding that Plaintiff's photo of the “swerving truck” disproved his claim that the truck drove at him (Dkt. 58 at ECF 4; Dkt. 57 at 206–10), the Court finds that the record fully supports Judge Brown's conclusion. As Judge Brown explained, Plaintiff's own testimony indicated that he took this photo as the truck was allegedly veering toward him. Plaintiff's argument that there is a factual dispute as to whether Plaintiff took the photo before the truck swerved toward him is belied not only by Plaintiff's own deposition testimony, as recounted in the Report (Dkt. 57 at 207), but by common sense. There would have been no reason for Plaintiff to photograph the truck unless he believed that it was coming at him, just as he testified. Id. And, as Judge Brown correctly found, this photo showed that at the moment Plaintiff claimed the truck was swerving toward him, it was actually driving away from Plaintiff and over the median line in the road, just as the truck driver and passenger had testified. All of Plaintiff's other assertions of error are amply addressed in Judge Brown's Report, and do not require further discussion.

CONCLUSION

Accordingly, for the reasons set forth in the Report, Defendants' motion for summary judgment is granted in its entirety, and Plaintiff's motion for leave to amend the complaint is denied. All of Plaintiff's claims are dismissed with prejudice. The Clerk is respectfully directed to terminate this case.

SO ORDERED.

REPORT AND RECOMMENDATION

GARY R. BROWN, United States Magistrate Judge.

On July 22, 2012, plaintiff Jeffrey Bartels (“plaintiff” or “Bartels”) filed a Second Amended Complaint against defendants Incorporated Village of Lloyd Harbor, Mayor Leland M. Hairr (“Hairr”), Deputy Mayor Jean Thatcher (“Thatcher”), John Ritter, Jr. (“Ritter”), Police Chief Charles Flynn, Sergeant Renald Difonzo (“Difonzo”), Police Officer Morrissey, Police Officer Muller, Police Officer Baffa (“Baffa”), Brian Madsen (“Madsen”), Thomas Scholl (“Scholl”), Robert Schwarz, Police Officer Grimm, Police Officer Cortes, Police Officer O'Shaughnessy, Police Officer Donnaruma, Mary Mohrman (“Mohrman”),¹ and John Does Nos. 1 and 2 (collectively “defendants”), pursuant to 42 U.S.C. § 1983 (“Section 1983 ”), alleging violations of his constitutional rights arising out of four incidents in the Village of Lloyd Harbor, New York.² See Second Amended Compl., Docket Entry (“DE”) [33]. The gravamen of plaintiff's claims is that defendants suppressed plaintiff's free speech under the First and Fourteenth Amendments by retaliating and engaging in a campaign to retaliate against him for his lawful exercise of those rights. Id. In addition, plaintiff asserts claims for violations of his rights to due process and equal protection under the Fifth and Fourteenth Amendments and a claim for assault under state law. Id. Presently before the Court are (1) defendants' motion for summary judgment dismissing all of plaintiffs' claims pursuant to Federal Rule of Civil Procedure (“Rule”) 56, DE [45], and (2) plaintiff's cross motion to file a third amended complaint pursuant to Rule 15, DE [54], which motions were referred to the undersigned for a Report and Recommendation by the Honorable Pamela K. Chen. See Electronic Order Referring Mot., dated December 11, 2014. For the reasons set forth below, the undersigned respectfully recommends that the defendants' motion be granted, the plaintiff's cross-motion be denied, and the action be dismissed in its entirety.

BACKGROUND

A. Factual Background

The following facts, drawn from the second amended complaint, the parties' Local Rule 56.1 Statements and other evidence of record in this action, are construed in the light most favorable to the non-moving party, except as otherwise noted. See Ayazi v. United Fed'n of Teachers Local 2, 487 Fed.Appx. 680, 681 (2d Cir.2012) ; Capobianco v. City of New York, 422 F.3d 47, 54–55 (2d Cir.2005).

For over 46 years, plaintiff has been a resident of the Village of Lloyd Harbor (the “Village”) and describes himself as a concerned resident who has documented and spoken out against, inter alia, environmental harm caused by the destruction of healthy trees by Village personnel and unsafe conditions on or near Village roadways. Second Amended Compl. ¶ 14, DE [33]. Plaintiff frequently makes complaints to the Lloyd Harbor Police Department for a variety of reasons. Defs.' 56.1 Stmt. ¶ 22, DE [48]. Between the years 2005 and 2012, plaintiff's complaints have resulted in the creation of over five hundred police complaint forms. Id. ¶ 23.

This action centers on the following four events.

1. The Parking Ticket

On May 7, 2009, while driving on a public road in the Village, plaintiff observed that a support bracket holding up the electric power line and other cables on one of the poles along Lloyd Harbor Road was crooked. Second Amended Compl. ¶ 19, DE [33]. Plaintiff pulled his vehicle over to the side of the road, put on the vehicle's emergency flashers and exited to examine the condition and photograph the pole. Id. ¶¶ 19, 24. While plaintiff was outside his vehicle on Lloyd Harbor Road taking pictures, defendant Police Officer Morrissey of the Lloyd Harbor Police Department arrived at the location, observed plaintiff and told Bartels that his vehicle was illegally parked. Defs.' 56.1 Stmt. ¶¶ 3–4, DE [48]. Plaintiff attempted to explain that, in his view, he was not parked illegally because he had not left his vehicle unattended. Id. ¶ 4. After both plaintiff and Morrissey drove away, plaintiff pulled over again to use a nearby public pay phone. Id. ¶ 5. At that point, Officer Morrissey also pulled over, approached plaintiff at that location and issued Bartels a summons for illegally parking, based upon plaintiff's vehicular conduct on Lloyd Harbor Road. Id.

The Village retained Andrew Ellsworth as Special Prosecutor to prosecute plaintiff's parking violation. Id. ¶ 6. John Ritter, the Village Attorney, had recommended the appointment of Ellsworth to the Board of Trustees because plaintiff had a pending action against Ritter and other Village employees.Id. ¶ 7. Ellsworth...