Ellis v. Wilkinson

Decision Date28 January 2015
Docket NumberNo. 14–CV–3538 JFBAKT.,14–CV–3538 JFBAKT.
Citation81 F.Supp.3d 229
PartiesHarry J. ELLIS, Plaintiff, v. William WILKINSON, Defendant.
CourtU.S. District Court — Eastern District of New York

James S. Henry, SAG Harbor Group, Inc., SAG Harbor, NY, Victor John Yannacone, Jr., Yannacone & Yannacone PC, Patchogue, NY, for Plaintiff.

Steven C. Stern, Mark A. Radi, Sokoloff Stern LLP, Carle Place, NY, for Defendant.


JOSEPH F. BIANCO, District Judge:

On June 5, 2014, plaintiff Harry J. Ellis (plaintiff) filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (“Section 1983 ”) and New York law against William Wilkinson (“Wilkinson” or defendant), the former supervisor of the Town of East Hampton (“the Town”). The gravamen of plaintiff's complaint is that Wilkinson retaliated against him for reporting environmental concerns.

Presently before the Court is the defendant's motion to dismiss the amended complaint. For the following reasons, the Court grants the motion and dismisses the federal claims in the amended complaint with leave to re-plead. Furthermore, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims at this juncture, and dismisses them without prejudice. Finally, the Court denies defendant's request for an award of attorney's fees.

I. Background

A. Facts

The following facts are taken from the amended complaint, and are not findings of fact by the Court. Instead, the Court will assume these facts to be true and, for purposes of the pending motion to dismiss, will construe them in a light most favorable to plaintiff, the non-moving party.

This action arises from the Town of East Hampton's efforts to construct a storm-water retention pond on a .76 acre of wetlands adjacent to plaintiff's home. Plaintiff claims that the Town initiated this project to retaliate against plaintiff for acting as an environmental whistleblower against a Keith Grimes (“Grimes”), who is a friend of Wilkinson. Wilkinson was the Town Supervisor from January 2010 to January 2014. (Am. Compl. at ¶ 2–7.)

Specifically, plaintiff claims that, in the spring of 2010, plaintiff investigated Grimes for “illegal dredging and other environmentally-destructive activities on Lake Montauk,” and reported these findings to the New York State Department of Environmental Conservation (“DEC”). (Id. at ¶ 4–5.) Plaintiff claims that the DEC issued notices of violation to Grimes on June 15, 2010, and that Wilkinson took action against the plaintiff immediately thereafter. (Id. at ¶ 6–7.) Plaintiff claims that on September 22, 2010, Wilkinson ordered plaintiff to cease using the wetlands adjacent to his home, and asserted Town ownership over this property. (Id. at ¶ 8–9.) Plaintiff also claims that from June 2010 to October 2010 Wilkinson coordinated a Town effort to submit “a detailed plan and formal application for a DEC permit to construct a massive, costly, environmentally-dubious project on this narrow strip of wetlands.” (Id. at ¶ 10.)

In October 2010, plaintiff filed a petition in New York State Supreme Court, Suffolk County, contesting the Town's title to the strip of wetlands at issue. The wetlands project has been stayed pending the resolution of that action, because on February 7, 2011, the parties entered into a stipulation,1 under which the Town agreed not to take any action with respect to the construction project, and further agreed not to ‘interfere’ in any way with Plaintiff's present use” of the wetlands parcel. (See Docket Entry 19–6.) The state court lawsuit remains pending, however, and plaintiff alleges that the Town has evaded discovery, in bad faith and at a substantial litigation cost to plaintiff. (Id. at ¶ 142–48.)

Plaintiff filed this action on June 5, 2014, seeking monetary damages and injunctive and declaratory relief. On July 10, 2014, plaintiff filed an amended complaint. Defendant filed a motion to dismiss the amended complaint on August 25, 2014, and plaintiff filed an opposition to that motion on September 25, 2014. Defendant filed a reply on October 9, 2014, and the Court heard oral argument on October 31, 2014.

This matter is fully submitted, and the Court has fully considered the submissions of the parties.

II. Motion to Dismiss
A. Standard of Review

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006) ; Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). “In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right to relief above the speculative level.’ Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth two principles for a district court to follow in deciding a motion to dismiss. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, district courts must “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. “While 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 entitlement to relief.” Id.

B. Discussion

First, the Court considers defendant's argument that plaintiff's Section 1983 claims are time-barred. Defendant contends that plaintiff's claims against him are untimely because the last alleged act of retaliation occurred in October 2010; the statute of limitations for a Section 1983 claim is three years; and plaintiff did not commence this action until June 5, 2014. (See Def. Mem., at 7.) In his opposition, plaintiff argues that his claims are timely under the continuing violation doctrine. (See Pl.'s Opp., at 7.) Second, the Court considers whether plaintiff's remaining claims are ripe for adjudication.

For the following reasons, the Court concludes that plaintiff's claims arising from the events in 2010 are time-barred, and that all claims relating to the Town's future intention to proceed with the project are unripe.

1. Statute of Limitations

There exists no federal statute of limitations for Section 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 266–67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), superseded by statute on other grounds as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377–81, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). [W]here state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249–50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). In New York, Section 214 of the New York Civil Practice Law and Rules sets forth a three year statute of limitations for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute.” N.Y. C.P.L.R. § 214(2). New York law also determines “whether the limitations period has been tolled, unless state tolling rules would ‘defeat the goals' of section 1983.” Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir.2007) (citing Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002) ). Federal law determines when such claims accrue, and the Second Circuit has held that accrual of a Section 1983 claim occurs when the plaintiff “knows or has reason to know of the injury which is the basis of his action.” Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980) ; see also Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.2009) (“A Section 1983 claim ordinarily accrues when the plaintiff knows or has reason to know of the harm.” (internal citation and quotation marks omitted)).

Although the statute of limitations is an affirmative defense, it “may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir.1998) (citing, inter alia, Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir.1989) ).

Here, it is clear from the face of the complaint that plaintiff's claims relating to events predating the state court lawsuit are untimely. Plaintiff's claims for retaliation and discrimination accrued when the Town first took action on the project, which plaintiff claims occurred in September 2010. Cf. Wash v. Cnty. of Rockland, 211 F.Supp.2d 507, 511–12 (S.D.N.Y.2002) (holding that § 1983 claim for retaliation based on commencement of disciplinary hearings accrued on the date of the earliest hearing). Because plaintiff filed the complaint in this action on June 5, 2014—more than three years after the project was initiated—his claims against Wilkinson are untimely. The Court notes that, even if plaintiff's claims accrued as late February 2011, the date the Town stipulated to hold the wetlands project in abeyance, plaintiff's claims would still be untimely.

Moreover, plaintiff's invocation of the continuing violation doctrine is unavailing. Under this theory, a claim that challenges a “continuous practice and policy of discrimination” may not accrue until the last discriminatory act in furtherance of the policy. See Fahs Construction Group, Inc. v. Gray, 725 F.3d 289, 292 (2d Cir.2013). “To trigger such a delay, the plaintiff must allege both...

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