Patrella v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARLENE D. PATRELLA,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-3722(JS)(AKT)

COUNTY OF SUFFOLK, EMPLOYEES OF

COUNTY OF SUFFOLK, JOHN DOE 1 and 2,

and JANE DOE 1 and 2,

Defendants.

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APPEARANCES

For Plaintiff: Joseph C. Stroble, Esq.

40 Main Street

P.O. Box 596

Sayville, New York 11782

For Defendants

County of Suffolk: Arlene S. Zwilling, Esq.

Suffolk County Attorney

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788

Employees of County

of Suffolk, John

Doe 1 and 2, and

Jane Doe 1 and 2: No appearance.

SEYBERT, District Judge:

On June 27, 2018, plaintiff Marlene D. Patrella

(“Plaintiff”) commenced this action against defendant County of

Suffolk (“the County”), Employees of County of Suffolk and four

John and Jane Does (collectively, “County Employees,”1 and together

1 The County Employees have not been identified and have not

otherwise appeared in this action.

with the County, “Defendants”) pursuant 42 U.S.C. § 1983, Title II

of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131

et seq., and New York State Public Officers Law § 87(2)(g),

alleging that the County has a policy of failing to consider or

seriously pursue Plaintiff’s reports of suspected criminal

activity due to her perceived and actual disabilities. (See

generally Am. Compl., D.E. 29.) Specifically, Plaintiff alleges

that the County engaged in discriminatory conduct by refusing to

provide her with an unredacted copy of a report that described

Plaintiff as having “possible psych issues.” (See generally Am.

Compl. and at 2.) Before the Court is the County’s motion pursuant

to Federal Rule of Civil Procedure Rule 12(b)(6) to dismiss

Plaintiff’s Amended Complaint for failure to state a claim and as

barred by the applicable statutes of limitations (“Motion”).

(Mot., D.E. 31; see generally Cty. Br., D.E. 31-1.) For the

reasons set forth below, the County’s Motion is GRANTED.

FACTUAL BACKGROUND2

Plaintiff alleges that she underwent chemotherapy for

cancer, and as a result, she is disabled with impaired verbal

expression abilities. (Am. Compl. ¶ 8.) On October 25, 2006,

Plaintiff lodged a complaint with the Suffolk County Police

2 The following facts are taken from the Amended Complaint and

are assumed to be true for purposes of this Memorandum and

Order.

Department (“SCPD”) that the pastor of the Blue Point Bible Church

was “using the offerings made by patrons, as well as reverse

mortgages, to not only improve the church, but also for his own

personal gain.” (Am. Compl., Redacted Field Report, Ex. A, D.E.

29-1; Am. Compl., Unredacted Field Report, Ex. B, D.E. 29-2.) A

SCPD officer memorialized Plaintiff’s complaint in a field report

wherein the officer marked the complaint as “unfounded” and

described Plaintiff as having “possible psych issues” (the “Field

Report”). (See Unredacted Field Report.)

Plaintiff first requested a copy of the Field Report on

October 13, 2011 and received a letter acknowledging her request

that stated she should receive a response “within 30-90 days.”3

(Am. Compl. ¶ 10.) On June 20, 2012, Plaintiff was examined at a

50-h hearing4 and thereafter, on June 29, 2012, Plaintiff received

a redacted copy of the Field Report that excluded the phrase “with

possible psych issues.” (Am. Compl. ¶ 10.) The Amended Complaint

does not explain the context or relevance of the 50-h hearing.

3 Plaintiff does not allege the entity, agency, or person from

whom she first requested the Field Report.

4 A “50-h hearing” is an examination provided for under New York

General Municipal Law § 50-h. See N.Y. Gen. Mun. Law § 50-h(1)

(“Wherever a notice of claim is filed against a . . . county . .

. the . . . county . . . shall have the right to demand an

examination of the claimant relative to the occurrence and

extent of the injuries or damages for which claim is made, which

examination shall be upon oral questions unless the parties

otherwise stipulate. . . .”).

Plaintiff attempted to obtain an unredacted copy of the

Field Report for “five years” but was “blocked.” (See Am. Compl.

¶¶ 9, 13(b); see also Am. Compl. ¶¶ 8, 13(a)-(c).) On May 6, 2014,

Plaintiff spoke to a SCPD Internal Affairs Senior Officer and

requested information regarding the redaction but was informed

that “derogatory language is not redacted.” (Am. Compl. ¶ 13(a).)

On or around September 5, 2017, Plaintiff received an unredacted

copy of the Field Report after her acquaintance, Maria Catania,

requested and received a copy of the unredacted Field Report. (Am.

Compl. ¶¶ 7, 13(c).)

Prior to the commencement of this action, Plaintiff was

a party to a “related action against the [SCPD],” (Am. Compl. ¶ 7)

based on the theory that the SCPD “had a history of discriminatory

treatment against her, because they knew that [ ] [P]laintiff was

disabled and her verbal facilities were impaired” and therefore

did not take Plaintiff’s complaints of criminal activity seriously

(Am. Compl. ¶ 10). Plaintiff does not provide any information

with respect to the “related action” however Plaintiff references

this action as the “2012 STATE ACTION.” (Am. Compl. ¶¶ 7, 12(a)

and (b), at ECF p. 6.)5 According to Plaintiff, the SCPD provided

her with a redacted copy of the Field Report “because the [SCPD]

5 The Amended Complaint is incorrectly numbered and includes

paragraph 12 twice. The Court will identify which paragraph 12 it

cites where appropriate.

contemplated that if [Plaintiff] was in possession of the full

report, [she] would attempt to use it as evidence in a lawsuit to

show that the [SCPD] had prior knowledge of her disability.” (Am.

Compl. ¶¶ 9-10.) From what the Court can tell, Plaintiff sought

to “renew and reargue dismissal of the 2012 State Court action

based on new evidence,” which the Court interprets as the

unredacted Field Report. (Am. Compl. ¶ 12(a), at ECF p. 6.)

Procedural History

Plaintiff initiated this action on June 27, 2018

(Compl., D.E. 1.) and filed an Amended Complaint on January 6,

2019. (See Am. Compl.) Although not entirely clear, the Court

construes the Amended Complaint as asserting the following causes

of action based on the County’s alleged disability-based

discriminatory conduct: (1) a violation of Plaintiff’s Fourteenth

Amendment Procedural Due Process rights pursuant to 42 U.S.C.

§ 1983 (Am. Compl. ¶ 15); (2) a violation of Plaintiff’s Fourteenth

Amendment Equal Protection rights pursuant to 42 U.S.C. § 1983

under the “class of one” theory of liability (Am. Compl. ¶¶ 15,

18, 25-26, 31); (3) a violation of the ADA (Am. Compl. ¶¶ 15-16,

18, 23-25); and (4) a municipal liability claim against the County

based upon its alleged failure to train (Am. Compl. ¶ 32.)

DISCUSSION

I. Legal Standard

To withstand a motion to dismiss, a complaint must

contain factual allegations that “‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974, 167 L. Ed. 2d 929 (2007)). This plausibility standard is

not a “probability requirement” and requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (internal

quotation marks and citation omitted). “To survive a motion to

dismiss under Twombly, it is not enough to make allegations of an

antitrust conspiracy that are consistent with an unlawful

agreement; to be viable, a complaint must contain enough factual

matter (taken as true) to suggest that an agreement to engage in

anticompetitive conduct was made.” In re Elevator Antitrust

Litig., 502 F.3d 47, 50 (2d Cir. 2007) (internal quotation marks

and citation omitted).

In deciding a motion to dismiss, the Court is confined

to “the allegations contained within the four corners of [the]

complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71

(2d Cir. 1998), but this has been interpreted broadly to include

any document attached to the complaint, any statements or documents

incorporated in the complaint by reference, any document on which

the complaint heavily relies, and anything of which judicial notice

may be taken.6 See Chambers v. Time Warner, Inc., 282 F.3d 147,

152–52 (2d Cir. 2002); Kramer v. Time Warner, Inc., 937 F.2d 767,

773 (2d Cir. 1991).

II. Statute of Limitations

The County argues that Plaintiff’s federal claims are

time-barred and must be dismissed. (Cty. Br. at 9-10.) Plaintiff

does not respond or otherwise argue in opposition to the County’s

statute of limitations argument. Nonetheless, the Court agrees

with the County.

In this Circuit, claims brought under the ADA and Section

1983 are governed by New York’s three-year statute of limitations

6 In support of her opposition, Plaintiff provided the Court with

transcripts of taped conversations with various individuals,

including SCPD employees. (Pl. Br., D.E. 32, at 3-4.) These

transcripts were not attached to the Complaint and as such

cannot be properly considered by the Court in deciding the

Motion. See Paul v. Baily, No. 09–CV–5784, 2013 WL 2896990, at

*5 (S.D.N.Y. June 13, 2013) (“[A]s a general rule, . . . courts

should not consider factual allegations made for the first time

in opposition papers.”); Friedman v. MiraMed Revenue Grp., LLC,

No. 12–CV–5328, 2012 WL 5992163, at *3 (S.D.N.Y. Nov. 19, 2012)

(“[T]he [c]ourt declines to consider the additional facts set

forth in plaintiff’s opposition papers that are not in his

complaint.”); Kalin v. Xanboo, Inc., 526 F. Supp. 2d 392, 398–99

(S.D.N.Y. 2007) (holding that a court’s analysis under Rule

12(b)(6) “is limited to information contained within the four

corners of the complaint” and that “[w]hen material outside the

pleadings is presented in response to a motion to dismiss, the

court must either exclude the additional material and decide the

motion on the complaint alone or convert the motion to one for

summary judgment” (internal quotation marks and citations

omitted)).

for personal injury actions. Stropkay v. Garden City Union Free

Sch. Dist., 593 F. App’x 37, 41 (2d Cir. 2014) (noting plaintiffs’

claims under the “ADA . . . and § 1983 . . . have three year

statutes of limitations in these circumstances.”) (citing N.Y.

C.P.L.R. § 214(5) and collecting cases); Ortega v. Arnold, No. 13-

CV-9155, 2016 WL 1117585, at *3 (S.D.N.Y. Mar. 21, 2016)

(collecting cases). Under these “statutory regimes, claims accrue

‘when [a plaintiff] knew or had reason to know of the injury

serving as the basis for his claim.’” Stropkay, 593 F. App’x at

41 (quoting Harris v. City of N.Y., 186 F.3d 243, 247 (2d Cir.

1999)); see also Fahs Const. Grp., Inc. v. Gray, 725 F.3d 289, 292

(2d Cir. 2013) (citing Pearl v. City of Long Beach, 296 F.3d 76,

80 (2d Cir. 2002)); Ortega, 2016 WL 1117585, at *3 (“As for when

claims under these statutes accrue, federal law governs th[at]

question.”) (internal quotation marks and citation omitted;

alteration in original). With respect to determining “the timing

of accrual in the context of discrimination claims, the Supreme

Court has instructed that ‘the proper focus is on the time of the

discriminatory act, not the point at which the consequences of the

act become painful.’” Ortega, 2016 WL 1117585, at *3 (quoting

Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992)) (emphasis

in original).

Here, the alleged discriminatory acts giving rise to

Plaintiff’s claims--the failure to provide Plaintiff with an

unredacted copy of the Field Report--took place between

October 13, 2011 and 2014. (Am. Compl. ¶¶ 10, 13(a)-(c).) The

Amended Complaint does not allege any facts that Plaintiff sought

and was denied, or otherwise made any effort to obtain, the

unredacted Field Report after 2014. Accordingly, “any ADA, . . .

and § 1983 claims arising from these events accrued, at the

latest,” in 2017. Ortega, 2016 WL 1117585, at *4. Plaintiff

initiated this action on December 18, 2018, more than three years

after any alleged discriminatory conduct occurred. Thus,

Plaintiff’s claims are clearly barred by the applicable statutes

of limitations. Ortega, 2016 WL 1117585, at *4.

Moreover, to the extent Plaintiff argues that the

statute of limitations was somehow tolled to September 5, 2017--

the date Ms. Catania received the unredacted Field Report--that

argument necessarily fails. See Am. Compl. ¶ 13(c) (“Discovery of

the improperly redacted [F]ield [R]eport could only be made after

it was given to Ms. Maria Catania, . . . [t]hat was the time that

the statute of limitations accrued.” (emphasis added). Plaintiff

knew “or had reason to know of the injury serving as the basis

for” her claim between 2012 and 2014. Stropkay, 593 F. App’x at

41 (internal quotation marks and citation omitted). Indeed, the

Amended Complaint alleges that Plaintiff was a party to another

action against the SCPD premised “on the notion that the [SCPD]

had a history of discriminatory treatment against her, because

they knew that [ ] [Plaintiff] was disabled.” (Am. Compl. ¶ 9.)

Plaintiff alleges the SCPD provided her with a redacted copy of

the Field Report “because the [SCPD] contemplated that if

[Plaintiff] was in possession of the full report, [Plaintiff] would

attempt to use it as evidence in a lawsuit to show that the [SCPD]

had prior knowledge of her disability.” (Am. Compl. ¶ 9.) Thus,

Plaintiff was aware of the circumstances that “gave rise to [her]

claims as early as” 2012, when, as alleged, she was provided with

the redacted Field Report and at the latest, in 2014, when

Plaintiff was told “derogatory language is not redacted.” Banushi

v. City of N.Y., No. 05-CV-1805, 2006 WL 2811898, at *4 (E.D.N.Y.

Sept. 28, 2006); Am. Compl. ¶¶ 13(a)-(c); see also May 6, 2014

Tr., Am. Compl., Ex. F, D.E. 29-6, at ECF p. 2:9-13 (Plaintiff

stating “I think I’ve been discriminated against because on a

police report it’s redacted and I’m pretty sure it’s a derogatory

remark about me because I’m disabled.”).

Plaintiff does not argue or present “any facts to suggest

that the doctrine of equitable tolling should be applied here to

extend the limitations period for Plaintiff’s claims.” Ortega,

2016 WL 1117585, at *4 (citing Diaz v. Kelly, 515 F.3d 149, 153

(2d Cir. 2008) (explaining that equitable tolling is only warranted

where a plaintiff establishes “(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance

stood in his way” (citation omitted))). In any event, the doctrine

of equitable tolling is inapplicable for the same reasons

articulated above, mainly that between 2012 and 2014, Plaintiff

had reason to believe that the SCPD improperly withheld the

unredacted Field Report, because, for example, she initiated the

2012 State court action based on the SCPD’s “history of

discriminatory treatment against her.” (Am. Compl. ¶¶ 9-11, 12(a)-

(b) at ECF p. 6, 13(a)-(c).) Thus, the fact that Plaintiff did

not obtain the unredacted Field Report prior to September 5, 2017

“did not [ ] deprive Plaintiff[ ] of information needed to file a

law suit” within the applicable time frame. Harrison v. Harlem

Hosp., No. 05-CV-8271, 2007 WL 2822231, at *3 (S.D.N.Y. Sept. 28,

2007), aff’d, 364 F. App’x 686 (2d Cir. 2010); MacFarlane v. Ewald,

No. 10-CV-2877, 2016 WL 4076585, at *4 (E.D.N.Y. Aug. 1, 2016).7

Therefore, Plaintiff’s claims are time-barred and must

be dismissed.

7 To the extent it can be inferred that Plaintiff argues the

continuing violation doctrine extends the limitations period,

the Court finds its application unwarranted because Plaintiff’s

claims are based on discrete acts, rather than a continuing

violation. Gregory v. Inc. Vill. of Ctr. Island, No. 14-CV-

2889, 2015 WL 5093623, at *5 (E.D.N.Y. Aug. 28, 2015) (“[T]he

continuing violation doctrine does not apply to a claim (or

series of claims) arising from discrete actions, even if those

actions have long-lasting effects.”) (internal citations

omitted); Albritton v. Morris, No. 13-CV-3708, 2016 WL 1267799,

at *11 (S.D.N.Y. Mar. 30, 2016); MacFarlane, 2016 WL 4076585, at

*3. Even if the doctrine were applicable, there is no basis to

delay the limitations period because “the only differential

treatment alleged in the complaint took place outside the

limitations period.” Fahs, 753 F.3d at 292.

III. Plaintiff’s Fourteenth Amendment Due Process Claim

Although all of Plaintiff’s claims are time-barred,

Plaintiff puts forth conflicting arguments as to whether she

asserts a Due Process claim. As such, the Court finds it prudent

to briefly address this issue.

Defendant argues that Plaintiff’s Due Process claim must

be dismissed because (1) Plaintiff has no constitutionally

protected property or liberty interest and (2) Plaintiff failed to

exhaust post-deprivation remedies. (Cty. Br. at 4-5.) Plaintiff

responds that “arguments and authority cited in relation to state

claims, notices of claim requirements, Article 78 proceeding

requirements” are irrelevant because she has “not ple[ ]d nor seeks

redress for a FOIL violation related to a FOIL response in the

ordinary course of business.” (Pl. Br., at 1, 5-6.) However,

Plaintiff alleged that she “had and has a liberty interest and/or

property interest” in a “FOIL REQUEST RESPONSE.” (Am. Compl.

¶ 15.) Plaintiff further argues that “police personnel . . . did

not follow the [SCPD] policies and procedures applicable to”

(1) complaints from disabled persons and (2) “processing and

providing FOIL requests.” (Pl. Br. at 1-2.)

This claim, to the extent it is alleged, must fail.

First, Plaintiff does not have a protected property interest in

the requested FOIL documents. See Simpson v. Town of Southampton,

No. 06-CV-6743, 2007 WL 1755749, at *4 (E.D.N.Y. June 15, 2007)

(collecting cases) (internal quotation marks and citations

omitted) (noting that an “overwhelming majority of courts in this

Circuit” find that “a plaintiff has no property interest in

obtaining FOIL documents.”); Jenn-Ching Luo v. Baldwin Union Free

Sch. Dist., No. 12-CV-6054, 2013 WL 4719090, at *4, n.6 (E.D.N.Y.

Sept. 3, 2013) (citing Papay v. Haselhuhn, No. 07–CV–3858, 2010 WL

4140430, at *7 (S.D.N.Y. Oct. 21, 2010) (finding that the plaintiff

did not have a protected property interest in requested FOIL

documents because “access to [those] documents constitutes a mere

expectation of Plaintiff, not an entitlement that would establish

a property interest under the Due Process Clause”)).

Assuming arguendo that Plaintiff had a protected

property interest in FOIL documents, Plaintiff’s claim fails as a

matter of law because Plaintiff did not pursue “an Article 78

proceeding in New York State court to remedy an improper denial of

plaintiff’s FOIL requests.”8 Simpson, 2007 WL 1755749, at *5

(collecting cases); Blount v. Brown, No. 10-CV-1548, 2010 WL

1945858, at *2 (E.D.N.Y. May 11, 2010) (collecting cases); Lawrence

v. Antonucci, No. 04-CV-356, 2005 WL 643457, at *4 (W.D.N.Y.

Mar. 16, 2005) (“[The plaintiff] never sought to commence an

Article 78 proceeding to challenge [d]efendants’ refusal to honor

8 Plaintiff fails to allege that she appealed the denial of her

FOIL requests for the unredacted Field Report and the Amended

Complaint lacks any allegation that she sought to initiate an

Article 78 proceeding relating to her FOIL requests.

his FOIL letter. Plaintiff thus willfully failed to take advantage

of the due process afforded to him under New York law, and he

cannot now complain that he has been denied such process.”).

Therefore, to the extent it is alleged, Plaintiff’s Due Process

claim must be dismissed with prejudice.

IV. ADA Claims against Individual County Employees

The Court also finds it prudent to also briefly address

Plaintiff’s ADA-based claims against individual County Employees.

Insofar as Plaintiff is suing “individual defendants in their

individual capacities, Title II of the ADA . . . [does not]

provide[ ] for individual capacity suits against state officials.”

Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107

(2d Cir. 2001) (collecting cases) (citations omitted). Thus,

Plaintiff’s ADA claim against individual County Employees must

also be dismissed with prejudice.

V. State Law Claims

The County points out that the “[C]omplaint includes

what appears to be a state law cause of action.” (Cty. Br. at

10.) Plaintiff responds that she “has not plead nor intended to

plead any state court claims in this action.” (Pl. Br. at 1.)

Thus, this portion of the County’s Motion is moot.

VI. Leave to Amend

Although Plaintiff has not requested leave to replead,

the Second Circuit has stated that “[w]hen a motion to dismiss is

granted, the usual practice is to grant leave to amend the

complaint.” Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d Cir.

1999); see also FED. R. CIV. P. 15(a)(2) (“The court should freely

give leave [to amend] when justice so requires.”). Leave to amend

should be granted unless there is evidence of undue delay, bad

faith, undue prejudice, or futility. See Milanese v. Rust–Oleum

Corp., 244 F .3d 104, 110 (2d Cir. 2001).

Here, Plaintiff’s claims against Defendants are

untimely. “Better pleading would not cure this defect in these

claims, and leave to amend is therefore denied.” Bastien v.

Samuels, No. 14-CV-1561, 2014 WL 5306016, at *5 (E.D.N.Y. Oct. 15,

2014) (citing Cuoco v. Moritsugu, 222 F.3d 9, 112 (2d Cir. 2000)

(holding that leave to amend should be denied where “better

pleading will not cure” the defects in a plaintiff’s complaint);

Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (“Amendment

would likely be futile if, for example, the claims the plaintiff

sought to add would be barred by the applicable statute of

limitations.”); Bridgeforth v. U.S. Navy Recruitment Off., No. 11–

CV–0431, 2011 WL 5881778, at *2 (N.D.N.Y. Nov. 23, 2011)

(“Amendment would be futile here because Plaintiffs claims arise

from events, which he was aware of, that occurred more than three

years before he commenced this Section 1983 action. Thus, his

claims are time barred, and amendment would be futile because

repleading would not cure the timeliness deficiency.” (internal

citation omitted)); Vargas v. Ciarletta, No. 09–CV–8981, 2010 WL

4447636, at *1 (S.D.N.Y. Nov. 4, 2010) (“[I]f the claims the

plaintiff seeks to add would be barred by the applicable statute

of limitations, amendment would be futile and leave to amend should

be denied.”)).

CONCLUSION

For the reasons stated above, the County’s Motion

(D.E. 31) is GRANTED in its entirety and Plaintiff’s Amended

Complaint is DISMISSED with prejudice.

The Clerk of the Court is directed to mark this case

CLOSED.

SO ORDERED.

_/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: December 3 , 2019

Central Islip, New York