Homere v. Inc. Vill. of Hempstead, 17-CV-3173 (JFB) (AKT)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: JOSEPH F. BIANCO, District Judge
• Citation: 322 F.Supp.3d 353
• Decision Date: 22 March 2018
• Docket Number: 17-CV-3173 (JFB) (AKT)
• Parties: Darlene F. HOMERE and Gerald Jean Baptiste, Plaintiffs, v. INCORPORATED VILLAGE OF HEMPSTEAD and Stephanie Valder, Defendant.

322 F.Supp.3d 353

Darlene F. HOMERE and Gerald Jean Baptiste, Plaintiffs,
v.
INCORPORATED VILLAGE OF HEMPSTEAD and Stephanie Valder, Defendant.

17-CV-3173 (JFB) (AKT)

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

Signed March 22, 2018

322 F.Supp.3d 358

Darlene F. Homere, Hempstead, NY, pro se.

Gerald Jean-Baptiste, Hempstead, NY, pro se.

Debra Ann Urbano-DiSalvo, Village of Hempstead Attorney's Office, Hempstead, NY, Jeffrey V. Basso, Campolo Middleton & McCormick, LLP, Ronkonkoma, NY, for Defendant.

ORDER

JOSEPH F. BIANCO, District Judge:

Pro seplaintiffs Darlene F. Homere and Gerald Jean Baptiste ("plaintiffs") bring this action against the Incorporated Village of Hempstead ("the Village") and Stephanie Valder ("Valder" and, with the Village, "defendants"). Plaintiffs allege that, from 2008 through 2017, the Village conspired with Valder and other individuals to harass plaintiffs and to deprive plaintiffs of residential property. The first amended complaint¹ appears to assert claims against the Village for (1) malicious prosecution; (2) malicious abuse of process; (3) double jeopardy; (4) violations of substantive due process; (5) conspiracy; and (6) fraud.² With respect to Valder, the complaint appears to assert claims for conspiracy and fraud. On August 14, 2017, the Village moved to dismiss the complaint. (ECF No. 22.) Shortly thereafter, on August 18, 2017, Valder moved to dismiss the complaint as well. (ECF No. 23.) On October 18, 2017, the Court referred the motions to the Magistrate Judge Tomlinson. (ECF No. 28.)

Presently before the Court is a Report and Recommendation ("R&R") from Magistrate Judge Tomlinson advising the Court to dismiss the complaint. (ECF No. 30.) For the reasons explained below, after a de novoreview, the Court adopts the thorough and well-reasoned R&R in its entirety. However, the Court will grant plaintiffs leave to amend the complaint.

I. Standard of Review

12 A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. SeeDeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994) ; Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y. 1988). As to those portions of a report to which no "specific written objections" are made, the Court may accept the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. SeeFed. R. Civ. P. 72(b) ; Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997). When "a party submits a timely objection to a report and recommendation, the district judge will review the parts of the report

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and recommendation to which the party objected under a de novostandard of review." Jeffries v. Verizon, 10-CV-2686 (JFB) (AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012) ; see also28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").

II. Analysis

3 Having reviewed the full record and the applicable law, and having reviewed the R&R de novo, the Court adopts the thorough and well-reasoned R&R in its entirety. As an initial matter, Magistrate Judge Tomlinson properly disregarded the materials attached to plaintiffs' oppositions to defendants' motions to dismiss, (R&R 10), and the Court likewise declines to consider those materials. To the extent those materials contain facts pertinent to successfully alleging claims against defendants, plaintiffs should incorporate those facts in their second amended complaint.³

A. The Claims against the Village

45 As a threshold matter, Magistrate Judge Tomlinson correctly explained that, in order to state a claim against the Village, a municipal corporation, plaintiffs must allege (1) the existence of a municipal policy, practice, or custom (2) that caused the deprivation of their constitutional rights. (R&R 14-15.) Magistrate Judge Tomlinson concluded that plaintiffs have failed to allege either element. (R&R 16-20.) Plaintiffs object, and point to their allegations that "[t]he three main movers (Judge Brantley, Village Attorney DiSalvo, and Special Prosecutor Feinberg) of the Village of Hempstead have collaborated in what is stated in the Plaintiff's complaint." (Pls.' Obj. 8.) However, as correctly explained by Magistrate Judge Tomlinson, (R&R 16-20), such conclusory allegations are insufficient for this Court to conclude that it is plausible that a municipal policy, practice, or custom existed. Further, plaintiffs' objections fail to point to any factual allegations to support a plausible claim that the Village deprived them of their constitutional rights. Accordingly, the Court concludes that plaintiffs have failed to plausibly allege that the Village had a policy, practice, or custom that resulted in the deprivation of their constitutional rights, and dismisses the claims against the Village on that ground.

67 Magistrate Judge Tomlinson also determined that plaintiffs' claims suffer from additional pleading deficiencies. With respect to the malicious prosecution and abuse of process claims, Magistrate Judge Tomlinson concluded that the complaint failed to allege a lack of probable cause (for the malicious prosecution claim) or an excuse or justification (for the abuse of process claim). (R&R 20-21.) In objecting, plaintiffs point to an allegation that states, "Without probable cause – we were subjected to years of harassment by the Court." (Pls.' Obj. 11.) However, simply including the phrase "without probable

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cause" is insufficient, and plaintiffs cannot point to any factual allegations to support a plausible claim that there was a lack of probable cause or a lack of an excuse or justification. With respect to the malicious prosecution claim, Magistrate Judge Tomlinson further concluded that the complaint does not allege that the prosecution ended favorably to plaintiffs. In response, plaintiffs point to allegations that the charges against them were dismissed in April 2014. (Pls.' Obj. 10.) However, as plaintiffs point out in their objections (id.), the complaint also includes allegations that a trial on the charges against them "took place and ended on April 11, 2016 and as of today no decision has been received." Accordingly, the Court agrees with Magistrate Judge Tomlinson that the complaint fails to plausibly allege that the prosecution against plaintiffs ended favorably to plaintiffs.

8 With respect to plaintiffs' claims for double jeopardy violations, Magistrate Judge Tomlinson concluded that plaintiffs "have failed to plead facts that plausibly support the theory that they have been either acquitted or convicted of criminal charges in the Village Court, that they have been prosecuted a second time following any conviction or acquittal, or that they have suffered multiple punishments for the same offense." (R&R 22-23.) The Court agrees. Plaintiffs' objections again fail to point to any factual allegations in the complaint that sufficiently allege double jeopardy violations.

9 As for the conspiracy claim against the Village, Magistrate Judge Tomlinson concluded that the claim should be dismissed because the supporting allegations are "entirely speculative and conclusory." (R&R 25.) The Court again agrees. Plaintiffs have failed to plausibly allege that there was any agreement between the Village and a private party to act in concert to inflict constitutional injury on plaintiffs. In their objections, plaintiffs point to the exact allegations that Magistrate Judge Tomlinson correctly found insufficient to establish a Section 1983 conspiracy claim. Accordingly, the conspiracy claim against the Village is dismissed.

Plaintiffs also appear to assert violations of their substantive due process rights. Magistrate Judge Tomlinson concluded that plaintiffs have failed to state a claim for substantive due process violations because the allegations, even taken as true, do not allege conduct that shocks the conscience. The Court agrees. Plaintiffs' objections are purely rhetorical, and fail to point to any allegations in the complaint. Accordingly, the Court dismisses the claims asserting violations of plaintiffs' substantive due process rights.

10 Finally, Magistrate Judge...