Hurley v. Town of Southampton

• Decision Date: 13 August 2018
• Docket Number: CV 17-5543 (JS) (AKT)
• Parties: MICHAEL JOHN HURLEY, Pro Se Plaintiff, v. TOWN OF SOUTHAMPTON, SOUTHAMPTON TOWN CODE ENFORCEMENT OFFICER KENNETH GLOGG, SOUTHAMPTON TOWN CODE ENFORCEMENT OFFICER RICARDO LARIOS, SOUTHAMPTON TOWN LICENSE REVIEW BOARD MEMBERS, JOHN and JANE DOES 1-5, Defendants.
• Court: U.S. District Court — Eastern District of New York

MICHAEL JOHN HURLEY, Pro Se Plaintiff, v. TOWN OF SOUTHAMPTON, SOUTHAMPTON TOWN CODE ENFORCEMENT OFFICER KENNETH GLOGG,SOUTHAMPTON TOWN CODE ENFORCEMENT OFFICER RICARDO LARIOS,SOUTHAMPTON TOWN LICENSE REVIEW BOARD MEMBERS, JOHNand JANE DOES 1-5, Defendants.

CV 17-5543 (JS) (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 13, 2018

REPORT AND RECOMMENDATION

A. KATHLEEN TOMLINSON, Magistrate Judge:

I. PRELIMINARY STATEMENT

Pro se Plaintiff Michael John Hurley ("Plaintiff") brings this civil rights action against Defendants Town of Southampton ("the Town"), Southampton Town Code Enforcement Officer Kenneth Glogg ("Glogg"), Southampton Town Code Enforcement Officer Ricardo Larios ("Larios"), and Southampton Town License Review Board ("the Board") Members John and Jane Does 1-5 (collectively, "Defendants"). Plaintiff asserts various constitutional claims under 42 U.S.C. § 1983, including violations of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as well as myriad other claims, arising from Defendants' alleged conduct in enforcing a Town ordinance that regulates the ability of property owners to rent out their property. See generally Plaintiff's Complaint ("Compl.") [DE 1].

On February 26, 2018, Defendants filed a motion to dismiss Plaintiff's Complaint in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally Defendants' Motion to Dismiss ("Defs.' Mot.") [DE 20]; Memorandum of Law in Support of Defendants' Motion to Dismiss ("Defs.' Mem.") [DE 20-17]. Plaintiff opposes the motion. See generally Plaintiff's Memorandum in Opposition ("Pl.'s Opp'n.") [DE 22]; Plaintiff's "Preliminary Statement" in Opposition ("Pl.'s Prelim. Stat. in Opp'n.") [DE 22-1].¹ Judge Seybert has referred the motion to this Court for a Report and Recommendation as to whether it should be granted. See DE 25. For the reasons which follow, the Court respectfully recommends to Judge Seybert that Defendants' motion to dismiss be GRANTED, in part, and DENIED, in part.

II. BACKGROUND

A. Facts Alleged in the Complaint²

The Court takes the following allegations from Plaintiff's Complaint and accepts them as true for purposes of the instant motion. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013). The allegations in the Complaint are not presented chronologically. The Court summarizes and distills the allegations based on its review of the Plaintiff's submissions.

1. Plaintiff Obtains a Rental Permit

Plaintiff is a 56 year-old disabled carpenter who owns property located at 28 Club Lane in the Town of Southampton, New York ("the Property"). Compl. at 2. The Property was designed to bring Plaintiff rental income in his retirement. Id. at 8. Between 1996 and 2010, Plaintiff successfully (and apparently without incident) rented the Property to an individual named David Smith and his family as a summer rental. Id. at 2. However, Plaintiff alleges that in August 2011, after a tenant called the Town Building Department to complain about construction noise emanating from a neighbor's property,³ a Town building inspector named Sean McDermott informed Plaintiff that he needed to obtain a rental permit from the Town in order to continue to rent out his property. Id. In 2012, Plaintiff filed an application for a rental permit, which he received at the end of 2013. Id. Plaintiff states that around the same time, he completed interior and exterior upgrades of the Property at a cost of $10,000.00. Id. The Complaint alleges that in "December of 2015 Southampton Town Code Enforcement Officer Ken Glogg inspected [the Property] and Plaintiff renewed the rental permit in 2016 that remain[ed] valid until January of 2018."⁴ Id.

2. 2015 Prosecution of Plaintiff

Plaintiff states that beginning in August 2011 and extending through 2017, Defendants "knowingly and unconstitutionally charged Plaintiff with numerous offenses," despite Plaintiff's good faith efforts to comply with Town rules and regulations and allowing "no less than ten physical inspections to obtain the rental permit." Compl. at 5-6. According to the Complaint, "[t]he main thrust of the Town's prosecution of the Plaintiff [was] for the violation of the Town's transient rental law, Chapter 270 Sub-division 9C which prohibits rentals of less than 14 days." Id. at 14. Plaintiff states that in October 2015, he entered into a settlement agreement with the Town to settle the Town's criminal prosecution of him for "the transient rental violations alleged by the Town up to October of 2015. The Plaintiff agreed to pay a 27,000 dollar fine to Southampton town to settle all charges." Id. at 9. In November 2015, Plaintiff states he was arrested without cause when a Town Police Officer and Code Enforcement Officers Glogg and Larios appeared at his home. Id. He was detained until the Town Attorney ordered his release without charging him. Id. According to the Plaintiff, Glogg and Larios "raced to the Police Department to gloat in the parking lot as the Plaintiff was led into the Police Department in handcuffs." Id.

3. 2017 Prosecution of Plaintiff

Although it is not clear exactly when the conduct began, or whether it was a continuation of his previous prosecution, Plaintiff complains of mistreatment and unlawful prosecution by the Town in 2017. Plaintiff states that on May 5, 2017, the Town Attorney demanded that Plaintiff plead guilty to two appearance tickets, numbers 4672 and 4673, threatening to revoke Plaintiff's rental permit if he did not do so. Compl. at 10. On that day, Plaintiff did not plead guilty, and "the valid Rental Permit of the Plaintiff was revoked by the Town Attorney's Office withoutadjudication." Id. Around this time, the Town Attorney also "explained to the Plaintiff that he was going to face 4 counts and that he could face 2 years in jail if convicted." Id. at 12.

In June 2017, a settlement conference was held between Plaintiff and the Town. Compl. at 10. At this conference, Plaintiff alleges he was "denied relevant legal counsel" because the court did not allow his "legal consultant," in addition to his attorney, to attend the conference via speakerphone. Id. The court also denied Plaintiff's request to have his property manager present at the conference. Id. Despite this, Plaintiff states that he and his attorney felt confident that he and the Town had reached a settlement as a result of the conference. Id. at 11. To Plaintiff's dismay, shortly after the conference, the Town Attorney indicated the deal "was off the table" and the case would be prosecuted to trial. Id. Plaintiff states the Town Attorney was "determined to take the Plaintiff to trial while denying the Plaintiff full discovery of evidence held by the prosecution." Id.

According to the Plaintiff, "Glogg and Larios continuously and constantly trespassed on the Plaintiff's private property without reason or probable cause over the course of the last 6 years. There is only one Police report from the [P]roperty in the last twenty years of summer rentals." Compl. at 11. Plaintiff asserts that the only evidence the Town had to prosecute him consisted of the "coerced" affidavits signed by his tenants while under duress, which, Plaintiff claims, were not notarized. Id. In support of these allegations, Plaintiff states that on July 16, 2017, while he was engaged in his defense against the Town, Code Enforcement Officer Larios "forced his way into [the Property]" while Plaintiff was installing a stove for his tenant and "coerced [his tenant] into signing a preformed affidavit by threatening her with eviction." Id. at 9.

Plaintiff states that on June 27, 2017, he and his attorney faxed to the Town Court a request to adjourn his trial. Compl. at 12. This request was allegedly "ignored" by the Town Attorney. Id. Two days later on June 29, 2017, the Town Court issued a bench warrant for Plaintiff's non-appearance at a hearing related to his case. Id. Plaintiff appears to blame the Town Attorney for his non-appearance, stating the Town Attorney's office failed to "fulfill their duty to update [Plaintiff] on the status of his case in a timely fashion." Id. The Court declined to withdraw the warrant despite a request by Plaintiff's attorney. Id.

Plaintiff claims that on July 11, 2017, he served on the Town two motions to dismiss all of the pending charges, which were allegedly "ignored by the Court and the Town Attorney." Compl. at 11. On July 17, 2017, Plaintiff was allegedly "arrested in court next to his attorney for the second time in 3 years. The first time Plaintiff was able to post the 4,000 dollar bail which is still held by the town for the last 3 years. On July 17, 2017 due to the revocation of his valid rental permit the Plaintiff was not offered bail and was not able to provide bail to the Court." Id. at 13. As a result, he served 15 days in the Suffolk County Correctional Facility. Id. The Complaint also appears to assert that, as a result of this series of events, he paid a fine of $15,000. See id. at 4. According to Plaintiff, while he was incarcerated, his sister's family stayed at the Property, during which time Code Enforcement Officer Glogg appeared at the Property to harass them. Id. at 6, 13. Glogg allegedly appeared again for the same purpose on September 2, 2017. Id.

Plaintiff claims that the Town's pattern of prosecutorial harassment has continued until as recently as September 18, 2017, when Plaintiff received two additional "vague" summonses in the mail, stating that he must appear in court on October 13, 2017 to answer more charges forrental violations.⁵ Compl. at 13. Plaintiff asserts that the Town's repetitive harassment and prosecution of him for violating the Town's transient rental law amounts to "selective enforcement." Id. at 14. Plaintiff's conclusion is based on his belief that there are numerous other rentals available on various websites that offer short term rentals in...