Razzano v. County of Nassau
| Decision Date | 14 February 2009 |
| Docket Number | No. 07-CV-3983.,07-CV-3983. |
| Parties | Gabriel RAZZANO, Plaintiff, v. COUNTY OF NASSAU, Nassau County Police Department, Police Commissioner Lawrence W. Mulvey, Detective Samango, Police Officer Mistrotta, Police Officer Limeaux, Anthony Rocco, Representative Carolyn McCarthy, and Mary Ellen Mendelsohn, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
La Reddola, Lester & Associates, LLP by Robert James La Reddola, Esq., Wendy C. Pelle-Beer, Esq., Of Counsel, Garden City, NY, for Plaintiff.
Nassau County Attorney's Office by Esther D. Miller, Deputy County Attorney, Karen Schmidt, Deputy County Attorney, Liora M. Ben-Sorek, Deputy County Attorney, Of Counsel, Mineola, NY, for Nassau County and the NCPD Defendants.
Office of the General Counsel by John Filamor, Assistant Counsel, Of Counsel, Washington, DC, for Representative Carolyn McCarthy and Mary Ellen Mendelsohn.
On September 19, 2008, Gabriel Razzano ("the Plaintiff" or "Razzano") filed a second amended complaint against the County of Nassau, the Nassau County Police Department ("NCPD"), Police Commissioner Lawrence W. Mulvey, Police Officers Alfred Samaniego, Salvatore Mistretta, William Lemieux, and Anthony Rocco ("the NCPD Defendants"), as well as United States Representative Carolyn McCarthy ("McCarthy"), and Mary Ellen Mendelsohn (collectively "the Defendants"), alleging, among other things, that the Defendants are liable under 42 U.S.C. 1983 for violating his First and Fourteenth Amendment rights. Presently before the Court are motions by the Defendants to dismiss the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
The following facts are drawn from the Plaintiffs second amended complaint. The Plaintiff is a member of the Minutemen Civil Defense Corps, an organization that purports to be concerned with securing "the borders and coastal boundaries of the United States ... against the unlawful and unauthorized entry of all individuals, contraband, and foreign military." From March of 2002 until March of 2007, the Plaintiff alleges that he wrote no fewer than fifteen letters to McCarthy concerning his views on illegal immigration. According to the Plaintiff, he was one of McCarthy's constituents throughout this period.
In the early part of 2003, the Plaintiff began writing to McCarthy about the increasing number of undocumented persons living in his community. McCarthy responded to several of the Plaintiffs letters and forwarded to his attention several letters that she had written to the United States Department of Homeland Security and United States Immigration and Customs Enforcement regarding his concerns. The Plaintiff also alleges that he had several conversations about this issue with Jim Hart, McCarthy's former chief of staff.
The Plaintiff alleges that in early March of 2007, he called McCarthy's office in an effort to reach Jim Hart. When the Plaintiff was informed that Hart no longer worked for McCarthy, the Plaintiff requested a return call from the Congresswoman's new chief of staff. On March 12, 2007, the Plaintiff went to McCarthy's office in person to request an appointment with her. McCarthy's staff informed the Plaintiff that he was not a member of her congressional district. Nevertheless, the Plaintiff returned to Representative McCarthy's office on March 19, 2007 again seeking an appointment with the Congresswoman.
The Congresswoman's staff again told the Plaintiff that he was not one of her constituents and suggested that he inquire with the Nassau County Board of Elections to clarify any confusion about his appropriate congressional district. According to the Plaintiff, the Nassau County Board of Elections provided him with a Certificate of Registration indicating that he was, in fact, a member of McCarthy's congressional district. The Plaintiff alleges he then returned to McCarthy's office with the intention of requesting an appointment with the Congresswoman.
The Plaintiff alleges that while he was waiting in the reception area of McCarthy's office, he was approached by Detective Alfred Samaniego of the NCPD. According to the Plaintiff, Detective Samaniego told the Plaintiff to stop "annoying" McCarthy, asked him not to contact the Congresswoman's office, and then escorted the Plaintiff to the elevator.
Razzano alleges that, after he and Detective Samaniego encountered McCarthy in the lobby, Razzano told her "Ms. McCarthy, I have been trying to meet with you". The Plaintiff alleges that he received a phone call later that day from Detective Samaniego who informed him that the Nassau County Board of Elections erred in telling the Plaintiff that he was a member of McCarthy's district and that he should cease all communications with the Congresswoman and her staff.
The following day, on March 20, 2007, the Plaintiff received a phone call from his mother who informed him that NCPD officers Salvatore Mistretta and William Lemieux were at his home to confiscate his nine rifles and fifteen handguns. Officers Mistretta and Lemieux allegedly informed the Plaintiff that the weapons were being seized because the NCPD had received a 911 call about the incident at McCarthy's office. The Plaintiff alleges that the call to 911 was made by Mary Ellen Mendelsohn, a member of McCarthy's staff. The NCPD officers informed him that, under such circumstances, it was departmental policy to seize the weapons for a 90 day "cooling" period. One week after the weapons were confiscated, the Plaintiff received a receipt for the weapons seized.
Thereafter, the Plaintiff received a letter dated April 24, 2007, in which Nassau County Department Chief Anthony Rocco informed the Plaintiff that his license to carry a weapon was being revoked after the NCPD reviewed the incident at McCarthy's office. Rocco's letter noted that the Plaintiff had become "increasingly obsessed with the day laborer situation," and that the Plaintiffs "actions [caused] great concern over [his] suitability to possess a pistol license." The Plaintiff alleges that, in light of the Defendants' actions, he no longer engages in various forms of expressive activity—such as attending antiimmigration demonstrations and writing letters to the editor—because he fears retaliation from the Defendants.
In considering a 12(b)(6) motion to dismiss, "`[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In this regard, the Court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Starr v. Georgeson S'holder, Inc., 412 F.3d 103, 109 (2d Cir.2005).
A complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has interpreted Twombly to require that a complaint "allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.2007).
The Plaintiff has asserted several causes of action against the NCPD, including claims for violations of Section 1983 as well as common law claims for conversion and replevin. However, the NCPD must be removed from this action because, as this Court has observed, "under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued." Davis v. Lynbrook Police Dept., 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002). Accordingly, the second amended complaint is dismissed in its entirety as against the NCPD.
In order to state a valid claim under 42 U.S.C. § 1983, a plaintiff must show that the conduct in question deprived him of a right, privilege, or immunity secured by the Constitution or the laws of the United States, and that the acts were attributable at least in part to a person acting under color of state law. Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir.2004). It is well-settled that Section 1983 "is not itself a source of substantive rights." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). In this sense, Section 1983 merely provides "a method for vindicating federal rights elsewhere conferred," such as those conferred by the First or Fourteenth Amendments to the Constitution. Patterson, 375 F.3d at 225 (citing Baker, 443 U.S. at 144 n. 3, 99 S.Ct. 2689). Here, in addition to alleging violations of his right to due process under the Fourteenth Amendment, the Plaintiff also alleges that the Defendants deprived him of his First Amendment rights to free speech and to petition government for the redress of grievances.
The Plaintiff's claim, in essence, is that the Defendants retaliated against him by confiscating his weapons because he sought to meet with McCarthy and discuss with her his views about illegal immigration. A plaintiff asserting a retaliation claim under the First Amendment must allege that (1) he has an interest protected by the First Amendment; (2) the defendant's actions were motivated by or substantially caused by the...
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