Vaher v. Town of Orangetown

• Decision Date: 02 January 2013
• Docket Number: No. 10 Civ. 1606(ER).,10 Civ. 1606(ER).
• Citation: 916 F.Supp.2d 404
• Parties: Valdo VAHER, Plaintiff, v. TOWN OF ORANGETOWN, NEW YORK, Town of Orangetown Police Department, Kevin Nulty, James Nawoichyk, Thomas Hoffman, “John” Sullivan, and John Does 1–10, their identities not currently known, jointly, severally and individually, Defendants.
• Court: U.S. District Court — Southern District of New York

916 F.Supp.2d 404

Valdo VAHER, Plaintiff,

v.TOWN OF ORANGETOWN, NEW YORK, Town of Orangetown Police Department, Kevin Nulty, James Nawoichyk, Thomas Hoffman, “John” Sullivan, and John Does 1–10, their identities not currently known, jointly, severally and individually, Defendants.

No. 10 Civ. 1606(ER).

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

Jan. 2, 2013.

Alan Edward Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff.

John J. Walsh, II, Paul Edward Svensson, Hodges, Walsh & Slater, L.L.P., White Plains, NY, for Defendants.

OPINION AND ORDER

RAMOS, District Judge.

Defendants Town of Orangetown, New York (the “Town”), Town of Orangetown Police Department (“OPD”), Kevin Nulty, James Nawoichyk, Thomas Hoffman and “John” Sullivan (“Defendants”) bring this Motion to Dismiss Plaintiff's Amended Complaint in its entirety pursuantto Fed.R.Civ.P. 12(b)(6).¹ Doc. 33. Also before the Court is Plaintiff's Motion to Compel Defendants to identify the individual sued herein as “John” Sullivan ² and to produce the last known addresses for Defendants Hoffman, and Nawoichyk. Doc. 28. For the reasons set forth below, Plaintiff's Motion is DENIED in full and Defendants' Motion is GRANTED in part and DENIED in part.

I. Background

Plaintiff Valdo Vaher commenced this action against Defendants on March 1, 2010, alleging seven causes of action under the First, Second, Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution pursuant to 42 U.S.C. § 1983. Doc. 1. On October 26, 2010, Plaintiff filed an Amended Complaint which asserts the same seven causes of action against the same Defendants for the same constitutional violations as are alleged in the original Complaint. Doc. 10. (“Am. Compl.”). Plaintiff seeks compensatory and punitive damages as well as an order compelling Defendants to return all property that was confiscated from him as a result of the March 2007 Search described below.

A. Factual Background

The following facts have been taken from the allegations in the Amended Complaint, which the Court accepts as true for purposes of this motion. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010).

At all times relevant to the Amended Complaint, Defendants James Nawoichyk (“Nawoichyk”), Thomas Hoffman (“Hoffman”) and “John” Sullivan (“Sullivan”) were employed by the Town as officers of the OPD. Am. Compl. ¶¶ 10–12. Defendant Kevin Nulty (“Nulty”) was employed by the Town as the Police Chief for the OPD. Id. ¶ 9. Plaintiff has resided in the Town since 1974. Id. ¶ 17. At all times relevant to the allegations set forth in the Amended Complaint, he lived at 254 Betsy Ross Drive, Orangeburg, New York, located within the Town of Orangetown (the “residence”), and was a police officer employed by the United States Department of Veterans Affairs. Id. ¶¶ 17–18.³ Plaintiff was also the holder of various valid firearms licenses and firearms collectors' licenses. Id. ¶ 21. Pursuant to said licenses, Plaintiff collected military firearms and ammunition, and maintained a shop at the residence for the repair and reconditioning of military firearms. Id. ¶ 22.

Plaintiff asserts that, during the years prior to 2007, he was regularly the target of harassment and intimidation by Town officials and members of the OPD. Id. ¶ 24. While Plaintiff does not describe any incidents that occurred prior to 2007, said incidents are alleged to be part of an ongoing pattern and practice of harassment and intimidation by Defendants, which constituted the official policy and custom of the Town. Id. ¶¶ 16, 24.

Beginning in 1999, Plaintiff was a member of the New York Army National Guard's 442nd Military Police Company. Id. ¶ 19. Defendant Nawoichyk was also a member of the 442nd Military Police Company. Id. ¶ 20. At an unspecified time and for unspecified reasons, Nawoichyk became suspicious about Plaintiff's background and began to ask personal questions about what Plaintiff had done in Estonia, where he had been deployed as a member of the United States Army. Id. ¶¶ 19, 20. Plaintiff would not answer Nawoichyk's questions, because the information was classified. Id. ¶ 20. As a result, Nawoichyk became enraged and would thereafter threaten Plaintiff in an intimidating fashion. Id.

On March 8, 2007, a locksmith who had been called to the residence by Plaintiff's mother (who lived with Plaintiff) observed old military rifles and ammunition cases in Plaintiff's garage and subsequently reported his observations to the OPD. Id. ¶¶ 23, 25–28. The following day, Nawoichyk and Hoffman arrived at the residence and questioned Plaintiff's mother about his firearms. Id. ¶ 29. Nawoichyk and Hoffman also “severely pressured” Plaintiff's mother to permit them to enter the residence without a warrant. Id. ¶ 30. Plaintiff was not at the residence when Nawoichyk and Hoffman arrived; however, his mother told Nawoichyk and Hoffman that Plaintiff had valid licenses for “all firearms and related accessories.” ⁴Id. ¶¶ 29–30.

Plaintiff's mother told him about her interaction with Nawoichyk and Hoffman on the evening of March 8, 2007. Id. ¶ 31. Plaintiff then called Nawoichyk who told him that OPD had received a complaint about guns and ammunition in Plaintiff's garage. Id. ¶ 32. In response, Plaintiff told Nawoichyk that he held that appropriate licenses for all of his firearms and that he was a police officer with the U.S. Department of Veteran Affairs. Id. Nawoichyk tried to intimidate and pressure Plaintiff into permitting him to return to the residence, but Plaintiff refused, and Nawoichyk responded in a threatening fashion by saying: “If I feel something is in there I will break your door down.” Id. ¶ 33.

On March 19, 2007, Plaintiff went to the OPD to show Defendants his licenses and his police and military identifications in an effort to end any further investigation into his lawfully owned firearms; however, Nawoichyk was not satisfied with the information Plaintiff provided. Id. ¶ 34. Accordingly, on March 26, 2007, Nawoichyk, Hoffman and other, unidentified OPD employees, members of the Rockland County Sheriffs' Department and agents of the United States Bureau of Alcohol, Tobacco & Firearms Enforcement (“ATFE”) executed a search warrant at the residence that had been issued by the Justice Court of the Town of Orangetown at the request of Defendants.⁵Id. ¶¶ 35–36. The search warrant authorized Defendants to search for and seize “a large capacity ammunition feeding device that consists of ammunition, linked together by belt and links that it [sic] can be readily restored and converted to accept more than ten rounds of ammunition.” Id. ¶ 35.

In executing the warrant, Defendants and other law enforcement officials searched Plaintiff's property “in an abusive and disrespectful manner,” damaging his property, and rummaging through his personal belongings for several hours. Id. ¶¶ 40–46. For example, one member of the OPD, identified as Police Officer Sila, “menaced” Plaintiff by starting to draw his firearm; an unidentified ATFE agent threatened to handcuff Plaintiff and his mother, causing members of the Rockland County Sheriffs' Department to laugh; and Nawoichyk and Hoffman made ridiculing and sarcastic statements to Plaintiff. Id. ¶¶ 41, 42, 46. During the search, Plaintiff complained to an unidentified detective supervisor that Nawoichyk and Hoffman were harassing him, but the supervisor ignored his complaint. Id. ¶ 38. Plaintiff also attempted to contact Nulty twice on the day of the search, but Nulty did not return his telephone calls. Id. ¶ 39.

At the conclusion of the search, Defendants seized certain property, including property that Plaintiff asserts was not covered by the search warrant. Id. ¶¶ 42–43. Defendants then left the residence without providing Plaintiff with any receipt or inventory of the items taken. Id. ¶ 47. Plaintiff did subsequently receive an inventory of the property that was seized; however, the inventory did not include certain items that were seized, including a 20? barrel length AR15 rifle kit and a green military ammunition box with hinges. Id. ¶ 43. Plaintiff was never arrested and the seized property, which was lawfully owned, has never been returned. Id. ¶ 48. Plaintiff alleges that Defendants failed to provide him with notice or an opportunity to seek the return of the seized property, “nor have they provided [him] with any process whatsoever.” Id. ¶ 49.

Defendants, including Nawoichyk, told various third parties, including officials of the 442nd Military Police Company and supervisors at the Department of Veterans Affairs, about the facts and circumstances surrounding the search. Id. ¶ 50. Nawoichyk told such third parties that he thought Plaintiff was a “foreign spy,” and that Plaintiff's property had been turned over to Homeland Security and would never be returned. Id. ¶ 51. As a result of Defendants' statements to third parties, Plaintiff “has been stigmatized and his reputation diminished.” Id. ¶ 52. Approximately ten months later, on January 28, 2008, Plaintiff filed a Notice of Claim relating to the events of March 26, 2007 (the “March 2007 Search”). Id. ¶ 53.

Approximately one year later, Plaintiff had another encounter with members of the OPD (the “2009 Incident”) that is alleged to be part of the same ongoing pattern of harassment and intimidation. Id. ¶¶ 54–61. On March 3, 2009, Plaintiff called the OPD to request their assistance in resolving an altercation between himself and the son of a contractor whom Plaintiff had hired to perform certain work. Id. ¶¶ 54–56. The altercation related to Plaintiff's refusal to pay the contractor until certain deficiencies were addressed. Id. During the altercation, the contractor's son became enraged, threatened Plaintiff with violence, and swung a large piece of wood near Plaintiff's head while cursing at Plaintiff. Id. ¶ 55. In order to protect himself and because he felt threatened, Plaintiff displayed his firearm. Id. The contractor's son...