Opinion

Sausa v. Village of West Hampton Dunes

Court
District Court, E.D. New York
Filed
Sep 30, 2019
Cited by
0 cases
Authority
More cited than 26.5%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARIA SAUSA,

Plaintiff,

ORDER

18-CV-3802 (SJF)(AYS)

- against-

VILLAGE OF WEST HAMPTON DUNES; GARY

VEGLIANTE, Mayor of the Village of West Hampton

Dunes, ROBERT KALFUR, Building Inspector for the

Village of West Hampton Dunes, JOSEPH PROKOP,

Village Attorney for the Village of West Hampton

Dunes, JOHN AND JANE DOES #1-10, Employees/

Agents of the Village of West Hampton Dunes,

Defendants.

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FEUERSTEIN, District Judge:

Plaintiff Maria Sausa (“Plaintiff”) commenced this action alleging, inter alia, violations

of her constitutional rights by Defendants Village of West Hampton Dunes (the “Village”),

Robert Kalfur (“Kalfur”), and Gary Vegliante (“Vegliante”) (collectively the “Village

Defendants”), and Defendant Joseph Prokop (“Prokop”). Motions to dismiss the complaint

were submitted by both the Village Defendants, see Motion, Docket Entry (“DE”) [20], and

Prokop. See Motion, DE [21]. Pending before the Court are all defendants’ objections to the

Report and Recommendation of the Honorable Anne Y. Shields, United States Magistrate Judge,

dated June 10, 2019 (the “Report”), see DE [26], recommending, inter alia, that (1) the motions

to dismiss Plaintiff’s First Amendment retaliation claim and the abuse of process claim be

denied; (2) the motions to dismiss the claims for violation of her rights under the Equal

Protection Clause, malicious prosecution, and municipal liability be granted; and (3) Plaintiff be

granted leave to amend to replead the dismissed claims. For the reasons set forth below,

Magistrate Judge Shields’ Report is adopted, as modified.

I. STANDARD OF REVIEW

Any party may serve and file written objections to a report and recommendation of a

magistrate judge within fourteen (14) days after being served with a copy thereof. 28 U.S.C. '

636(b)(1); FED. R. CIV. P. 72(b)(2). Any portion of such a report and recommendation to which

a timely objection has been made is reviewed de novo. 28 U.S.C. ' 636(b)(1); FED. R. CIV. P.

72(b)(3). However, the Court is not required to review the factual findings or legal conclusions

of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474

U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2 435 (1985). In addition, general objections or

“objections that are merely perfunctory responses argued in an attempt to engage the district

court in a rehashing of the same arguments set forth in the original papers will not suffice to

invoke de novo review.” Owusu v. New York State Ins., 655 F. Supp. 2d 308, 312-13 (S.D.N.Y.

2009) (internal quotation marks, alteration, and citation omitted); see also Trivedi v. New York

State Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 726 (S.D.N.Y. 2011)

(“[W]hen a party makes only conclusory or general objections . . . the Court will review the

Report strictly for clear error. . . Objections to a Report must be specific and clearly aimed at

particular findings in the magistrate judge’s proposal.” (internal quotation marks and citation

omitted; alterations in original)), aff’d sub nom Seck v. Office of Court Admin., 582 F. App’x 47

(2d Cir. 2014). Any portion of a report and recommendation to which no specific timely

objection is made, or to which only general, conclusory or perfunctory objections are made, is

reviewed only for clear error. Owusu, 655 F. Supp. 2d at 312-13.

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II. OBJECTIONS

A. Defendant Prokop’s Objections

Prokop objects, arguing, inter alia, that Magistrate Judge Shields erred in finding that he

was not entitled to absolute immunity by accepting Plaintiff’s argument that her allegations

concern Prokop’s actions in representing the Village in connection with its interactions with the

New York Department of State (“NYDOS”), actions which she claims were not taken in his role

as a prosecutor. Prokop Objections, at 4-6, DE [29]. Plaintiff opposes Prokop’s objections.

She points to the numerous correspondence and email exchanges between the NYDOS and the

Village regarding building design calculations and the location of liquid propane tanks on

properties located in the Village and observes that “smack in the middle of this battle . . . the

[Appearance Tickets] were issued and Plaintiff was ordered to appear in court.” Plaintiff’s

Response at 5-6. She does not contend in her response, however, that the issuance of the

Appearance Tickets was not a prosecutorial action, in fact, she does not mention the tickets at all.

The focus on the allegations concerning Prokop’s exchanges with NYDOS is misplaced.

In the complaint, Plaintiff alleges that Prokop was the Village Attorney with the

“authority for the initiation of process and prosecution of Village Code.” Compl. ¶29. The

question of whether Prokop’s communications with the NYDOS constituted administrative or

investigatory conduct, for which he would be entitled only to qualified immunity, or

prosecutorial acts, for which he would be entitled to absolute immunity, is not material to

Plaintiff’s claims as set forth in the complaint. Plaintiff has no constitutional claim arising

directly from the “battle” between the Village and the NYDOS, but rather her claims arise from

the manner in which the Village allegedly retaliated against her for her whistleblowing conduct

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that led to the Village’s dispute with the NYDOS. The method of retaliation is expressly

identified in the Complaint as the issuance of the two Appearance Tickets: “[b]ecause Plaintiff

spoke out and blew the whistle on the Village’s failure to comply with the Code, the Village

maliciously retaliated against Plaintiff by issuing Appearance Tickets against her and

prosecuting her.” Compl. ¶71; see also id. ¶15 (alleging that the retaliatory conduct by

Defendants “began by maliciously issuing process against” her); id. ¶66 (first paragraph under

the heading “Defendants Retaliate” concerns issuance of the Appearance Tickets). While

Plaintiff’s allegations regarding Prokop’s conduct are focused on his actions in representing the

Village in correspondence with the NYDOS, her causes of action and claims of constitutional

violations arise from the issuance of the Appearance Tickets and subsequent prosecution. These

acts constitute the initiation and prosecution of an action against Plaintiff, plainly prosecutorial

conduct, and as such, Prokop is immunized from suit arising therefrom.

Plaintiff points to language in Prokop’s communications with NYDOS including his

contention that NYDOS was “allowing its offices to be used by the property owner [Plaintiff] as

leverage in a private dispute,” Compl., Ex. 5, suggesting that Prokop has displayed his animus

against Plaintiff. Absolute immunity is intended to further the “greater societal goal in

protecting the judicial process by preventing perpetual suits against prosecutors for the

performance of their duties.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994). In furtherance of

this objective, absolute immunity shields a prosecutor from liability “for virtually all acts,

regardless of motivation, associated with his function as an advocate.” Dory, 25 F.3d at 83

(citing Imbler v. Pachtman, 424 U.S. 409, 426-28, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976)).

Even were Prokop’s communications to be construed as evidence of some sort of animus or bias

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against her, such information does not bear upon his entitlement to absolute immunity.

Accordingly, Prokop’s objection to the Report’s finding that he is not entitled to absolute

immunity is sustained, and his motion to dismiss on this basis is granted. As his entitlement to

absolute immunity results in dismissal of the action as against Prokop, the Court declines to

address his remaining objections to the Report.

B. Village Defendants’ Objections

The Village Defendants object to Magistrate Judge Shields’ recommendation that their

motion to dismiss Plaintiff’s causes of action for First Amendment retaliation and abuse of

process be denied, see Village Defendants’ Objections, DE [27], on the basis that, inter alia, (1)

the claims are barred by the applicable statute of limitations, id. at 5; (2) the individual

defendants are entitled to qualified immunity, id. at 3, 9; (3) the complaint fails to state a First

Amendment retaliation claim because (a) it fails to allege that there was chilling of Plaintiff’s

speech or that she suffered a concrete loss, id. at 13, and (b) there was probable cause to

prosecute Plaintiff, which would serve as a defense to the claim, id.; and (4) the complaint fails

to state a cause of action for abuse of process because (a) it fails to allege in improper purpose

for the prosecution, id. at 14; and (b) there was probable cause to issue the Appearance Tickets.

Id. at 16. The Village Defendants further object to the recommendation that Plaintiff be given

leave to replead those claims for which Magistrate Judge Shields recommended dismissal.

Plaintiff opposes the Village Defendants’ objections.

Upon de novo review of the Report and consideration of the parties’ respective objections

and responses thereto, the Village Defendants’ objections are overruled and that portion of the

Report pertaining to resolution of their motion is accepted in its entirety.

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III. CONCLUSION

Accordingly, the Report is modified to the extent that Prokop’s motion to dismiss the

complaint, DE [21], is granted on the grounds that Prokop is entitled to absolute immunity from

suit. The Clerk of the Court is directed to terminate Prokop as a party to the action.

The Village Defendants’ objections are overruled and the remainder of the Report is

accepted in its entirety. For the reasons set forth therein, the Village Defendants’ motion to

dismiss, DE [20], is granted in part and denied in part: the motion to dismiss the equal protection

and municipal liability claims is granted; the motion to dismiss the First Amendment retaliation

and abuse of process claims is denied. Plaintiff is granted leave to file an amended complaint in

accordance with the Report provided that she serve and file the amended complaint by no later

than October 31, 2019, or she will be deemed to have waived her right to file an amended

complaint.

SO ORDERED.

/s/

Sandra J. Feuerstein

United States District Judge

Dated: Central Islip, New York

September 30, 2019

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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