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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