Madden v. Town of Hempstead, 16-CV-6835(SJF)(AKT)

Decision Date29 March 2019
Docket Number16-CV-6835(SJF)(AKT)
PartiesDIANE MADDEN, Plaintiff, v. TOWN OF HEMPSTEAD, ANTHONY SANTINO, KATE MURRAY, MICHAEL PASTORE, GERRY MARINO, KEVIN DENNING, GARRETT GORTON and RAYCHEL RYCKMAN-MARTINO, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

DIANE MADDEN, Plaintiff,
v.
TOWN OF HEMPSTEAD, ANTHONY SANTINO,
KATE MURRAY, MICHAEL PASTORE, GERRY MARINO,
KEVIN DENNING,
GARRETT GORTON and RAYCHEL RYCKMAN-MARTINO, Defendants.

16-CV-6835(SJF)(AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 29, 2019


ORDER

FEUERSTEIN, District Judge:

I. Introduction

On December 12, 2016, plaintiff Diane Madden ("plaintiff") commenced this civil rights action against defendants Town of Hempstead (the "Town"), Anthony Santino ("Santino"), Kate Murray ("Murray"), Michael Pastore ("Pastore"), Gerald Marino s/h/a Gerry Marino ("Marino"), Kevin Denning ("Denning") and Garrett Gorton ("Gorton") (collectively, the "Town Defendants") pursuant to 42 U.S.C. § 1983, alleging that the Town Defendants violated her First Amendment rights to freedom of speech, access to the government and peaceable assembly and her Fourteenth Amendment right to equal protection of the laws. On September 18, 2017, plaintiff filed an amended complaint, inter alia, adding Raychel Ryckman-Martino ("Ryckman-Martino") as a defendant. Pending before the Court is the Town Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing

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plaintiff's claims in their entirety.1 For the reasons set forth below, the Town Defendants' motion is granted to the extent set forth below.

II. Background

A. Factual Allegations2

Plaintiff resides in East Meadow, New York, which is located in the Town of Hempstead. (Defendants' Statement of Material Facts pursuant to Local Civil Rule 56.1 ["Def. 56.1"], ¶ 1). Plaintiff is an animal rights advocate who has been vocal and active in regard to the operations of the Town of Hempstead Animal Shelter ("TOHAS") and the programs attendant thereto. (Defendants' Reply to Plaintiff's Counterstatement Pursuant to Local Rule 56.1 ["Def. Reply"], ¶ 156).

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The Town is a municipal corporation and political subdivision of the State of New York. (Def. 56.1, ¶ 2). At all relevant times, (i) Murray was the Town Supervisor until January 2016 and Santino was the Town Supervisor from January 2016-2017, (id., ¶¶ 6, 9); (ii) Denning was Santino's executive assistant and the liaison with TOHAS, (id., ¶ 3); (iii) Gorton was the chief investigator with the Town Attorney's Office, (id., ¶ 4; Def. Reply, ¶ 193); (iv) Marino was the Commissioner of General Services for the Town, (Def. 56.1, ¶ 5); (v) Pastore was the director of TOHAS, and reported to Marino and Denning3, (id., ¶¶ 7-8); and (vi) Ryckman-Martino was a volunteer at TOHAS. (Id., ¶ 10).

Plaintiff does not hold any degrees or certifications in the care, control, custody or medical treatment of domesticated animals, (Def. 56.1, ¶ 11), although she once took a seminar offered at Animal Welfare Association, a local New Jersey organization, related to adoption promotion, (id., ¶ 12), and is aware that as a municipal corporation in the State of New York, the Town is required to maintain an animal control function pursuant to the New York State Agriculture and Markets Laws. (Id., ¶ 13). Section 123 of the Agriculture and Markets Law requires the Town to take into custody dogs that are strays and/or deemed to be dangerous, and prescribes conditions under which municipalities are required to euthanize dangerous dogs, see N.Y. Agric. & Mkts. §123; and Sections 117 and 374 provide municipalities with the procedure for the humane destruction of animals, see Id. §§117, 374. (Def. 56.1, ¶¶ 14-15). The Town also provides euthanasia services to private citizens who wish to have their pets euthanized. (Id., ¶ 16). Nonetheless, plaintiff believes that TOHAS can be a "no-kill shelter" due to its significant budget and ability to "hire countless amount of people that are professionals that can rehabilitate

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animals, that can work with the public to prevent the surrender of animals, that can work with the public who are adopters, who are having problems with animals, and before those animals are surrendered again, to rehabilitate them further." (Id., ¶ 17).

When Murray was the Town Supervisor, she made public comments that TOHAS would be "adoption friendly," (Def. 56.1, ¶ 18), which plaintiff believes means holding more adoption events, promoting adoptions, forming relationships with adoption entities and placing animals into rescue. (Id., ¶ 19).

TOHAS maintains a Facebook page, promotes certain animals and continues to hold adoption events. (Def. 56.1, ¶ 20). During her deposition, plaintiff testified that between 2013 and 2017, she started seeing "an increase in adoptions due to the behavior portion of the [TOHAS]," (Declaration of Donna A. Napolitano, Esq. ["Napolitano Decl."], Ex. Y at 22-23); and "a decline of animals being euthanized." (Id., Ex. Y at 23). The Outcome Summary Report for TOHAS indicates, inter alia, that the percentage of adoptions between 2013 and 2017 slightly increased from approximately twenty-three percent (23%) of the total intake of "Unique Animals" to approximately twenty-five percent (25%) thereof, (see id., Ex. E), and that the percentage of animals that were euthanized during that time period declined from approximately fifteen percent (15%) to approximately four percent (4%) of the total intake of "Unique Animals."4 (Id.).

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Pastore met plaintiff after he became employed by the Town in 2014. (Def. 56.1, ¶ 27). Pastore testified that before he actually met plaintiff, Iacopella told him that plaintiff had filed a prior lawsuit against the Town5 and "would come to the shelter but with no specific purpose, just to take pictures and make records." (Napolitano Decl., Ex. CC at 105). Pastore inquired of Cheryl Petri ("Petri"), a Deputy Town Supervisor and Denning's predecessor as the Town's shelter liaison, about permitting plaintiff to take photographs of the animals at TOHAS, (Def. 56.1, ¶ 35), and how he should handle the situation when plaintiff did so "because there didn't seem to be a specific purpose of coming to the shelter for the services that the shelter offered." (Napolitano Decl., Ex. CC at 138-139). According to Pastore, "[a]t some point [TOHAS] did distribute a photo policy . . . to ensure that the animals came across in a good light[,]" but they "were not able to figure out how to police citizens from coming in to take photos that may have presented animal [sic] in a bad light, so [they] weren't really able to enforce it anyway." (Id. at 140). Pastore testified that he could not recall witnessing any individual take photographs of the animals at TOHAS other than plaintiff and the volunteers and staff members of TOHAS. (Id. at 142-143).

Pastore met with plaintiff at TOHAS sometime in 2014, and again at Town Hall in 2015. (Def. 56.1, ¶ 33). Although Pastore also saw plaintiff at TOHAS approximately once every couple of weeks, he would not interact with her. (Id., ¶ 34).

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Plaintiff openly discussed changes she had observed at TOHAS at Town Board meetings and appeared and spoke at the Town Board meetings on numerous occasions over the years. (Def. 56.1, ¶¶ 23-24; Def. Reply, ¶ 170). Plaintiff testified that Petri was present during the meetings in which she openly discussed the changes she had observed at TOHAS. (Napolitano Decl., Ex. Y at 43-45). Plaintiff would also email Petri, (Def. 56.1, ¶ 26; Def. Reply, ¶ 171), as well as the Town Attorney, Joseph Ra ("Ra"). (Def. 56.1, ¶ 31). Plaintiff made many complaints about Pastore to Petri at the Town Board meetings and in her emails. (Id., ¶ 79). At Murray's request, plaintiff (i) met with Petri and Pastore in an effort to resolve issues about which she publicly spoke at Town Board meetings, (id., ¶ 29), and (ii) met with Ra several times in order to create new legislation in an effort to decrease "puppy mills" doing business in the Town. (Id., ¶ 32).

On approximately six (6) or seven (7) occasions between the period from 2013 to 2017, Ra sought plaintiff out at the Town Board meetings to solicit her views on what was occurring at TOHAS; to respond to something that was said at the Town Board meeting; or to discuss a complaint to which he was responding, something they had spoken about or planned on speaking about, legislation that they were working on together, some expected changes that were going to take place, or FOIL requests he received. (Napolitano Decl., Ex. Y at 75-77).

On August 27, 2015, plaintiff and others held a protest at TOHAS in an effort to replace its leadership. (Def. 56.1, ¶ 37).

Plaintiff visited TOHAS three (3) to four (4) times a month during 2016 and was never prevented from entering the shelter. (Def. 56.1, ¶ 84). Pastore testified that he could not think of any reason why plaintiff should be refused access to TOHAS. (Napolitano Decl., Ex. CC at 140).

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Although, as set forth below, plaintiff claims that she was escorted out of TOHAS on February 18, 2017, she was never refused access to TOHAS after that date. (Id., Ex. Y at 192-93, 195). Moreover, the security video recording from TOHAS on February 18, 2017 does not show plaintiff ever being escorted out of TOHAS on that date, (id., Ex. V-16); nor does plaintiff identify any specific details regarding her claim, e.g., who allegedly escorted her out of the building, when they did so, etc.

Plaintiff met with Santino after he was elected as Town Supervisor. (Def. 56.1, ¶ 38). Specifically, plaintiff attended meetings with Santino; Marino; Stephen D'Esposito ("D'Esposito"), Santino's chief of staff; William Mueller ("Mueller"), Santino's counsel; and the secretary for Michael Deery ("Deery"), Santino's communications director, on at least five (5) occasions (the "Santino Meetings"), beginning in the first week of February 2016. (Def. 56.1, ¶¶

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44-45; Def. Reply, ¶ 173). Denning, who succeeded Petri as the liaison to TOHAS, (Def. 56.1, ¶ 30), was also present during all of the Santino Meetings except the first one; and Deery was present at some of the Santino Meetings. (Napolitano Decl., Ex. Y at 53-54)...

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