Bachman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

TINA BACHMAN, INFANT ONE, and

INFANT TWO,

DECISION AND ORDER

Plaintiffs,

v. 6:25-CV-06086 EAW

TOWN OF GREECE,

Defendant.

INTRODUCTION

Plaintiffs Tina Bachman (“Bachman”) and her minor children (Infant One and

Infant Two) (collectively “Plaintiffs”) commenced an action under 42 U.S.C. § 1983

against defendant Town of Greece (“Town” or “Defendant”) on February 7, 2025, alleging

violations of their rights under the First, Fourth, and Fourteenth Amendments. (Dkt. 1).

Pending before the Court is Defendant’s motion to dismiss Plaintiffs’ amended

complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. 10).

For the reasons set forth below, the motion is granted in part and denied in part.

BACKGROUND

The instant facts are taken from Plaintiffs’ amended complaint. (Dkt. 9). As

required at this stage of the proceedings, Plaintiffs’ well-pleaded factual allegations are

taken as true.

William Reilich (“Reilich”) and Michelle Marini (“Marini”) are the former

Supervisor and Deputy Supervisor of the Town, respectively. Bachman is a part-time house

cleaner who, in September 2022, began cleaning a house in Penfield, New York, that was

owned by Marini’s daughter. (Id. at ¶¶ 21-22). Bachman later learned that Town officials

were being investigated for misconduct, which included an investigation into renovations

at the Penfield house. (Id. at ¶¶ 27-28). The investigation included an alleged “pay-to-

play” scheme in which contractors employed by the Town were awarded work only if they

agreed to perform personal services for Town officials. (Id. at ¶ 31). Because of her

position cleaning the Penfield house, Bachman understood that a vendor employed by the

Town was required to buy and install a heating system in the house without compensation.

(Id. at ¶ 30).

Bachman’s husband, Matthew Bachman (“Mr. Bachman”), served as an officer in

the Town of Greece Police Department (“GPD”) for 17 years. (Id. at ¶ 24). Bachman told

her husband information about the renovations that she observed in the Penfield house.

(Id. at ¶ 33). Mr. Bachman then communicated that information to law enforcement. (Id.

at ¶ 34). Town officials learned about the Bachmans’ communications and believed that

they were assisting in the investigation. (Id. at ¶ 35).

On October 27, 2023, Cass & Morales Investigative Services, LLC (“Cass &

Morales”) entered into an Investigative Servies Retainer Agreement with Bolaños Lowe

PLLC in the firm’s capacity as legal counsel to the Town. (Id. at ¶¶ 47-48). Karlee Bolaños

reported directly to Reilich in his capacity as Town Supervisor. (Id. at ¶ 63). On that same

date, Cass & Morales, under the direction of Reilich, placed a GPS tracker on the

Bachmans’ personal vehicle. (Id. at ¶¶ 46, 63). At the time, Mr. Bachman was on forced

medical leave after being injured in a physical altercation while performing his job

responsibilities. (Id. at ¶¶ 44-46). Cass & Morales opened a file entitled “Workers Comp

Case M. Bachman.” (Id. at ¶ 50).

On January 3, 2023,1 Cass & Morales spent four hours replacing the GPS tracking

device on the Bachmans’ personal vehicle. (Id. at ¶ 56). Afterward, Jennifer Morales had

a telephone conference with GPD Chief Michael Wood (“Wood”), in which, upon

information and belief, she relayed to Wood that the tracker had been installed. (Id. at

¶ 57).

Cass & Morales, under the direction of Wood, placed the Bachman family under

“around the clock surveillance.” (Id. at ¶ 61). The Bachmans also had their vehicle

followed by employees of Cass & Morales. (Id. at ¶ 70). GPD Deputy Chief Aaron

Springer (“Springer”) interviewed people with whom the Bachmans interacted regularly,

including neighbors, friends, family, and Bachman’s former employer, to ask questions

about Bachman’s housekeeping business and marriage. (Id. at ¶¶ 58, 65-66). Springer told

one or more of those people that the Bachmans were under criminal investigation. (Id. at

¶ 59).

On February 7, 2025, Plaintiffs filed the original complaint. (Id. at ¶ 76; see Dkt.

1). Within weeks, Wood filed formal disciplinary charges against Mr. Bachman. (Id. at

¶ 78). Mr. Bachman was never afforded a due process hearing under GPD policy. (Id. at

¶¶ 79-80). Wood publicly released information about the disciplinary charges and

1 Although the amended complaint alleges that the replacement of the GPS tracking

device occurred in early 2023 (Dkt. 9 at ¶ 56), this is likely a typographical error and based

on the other allegations in the amended complaint, it allegedly occurred in early 2024.

informed news outlets that he would be making a criminal referral for Mr. Bachman. (Id.

at ¶¶ 82-83). The Town then ceased reimbursing Mr. Bachman’s necessary medical

expenses in connection with his workers’ compensation claim. (Id. at ¶ 86).

On May 6, 2025, Plaintiffs filed an amended complaint.2 (Dkt. 9). Plaintiffs’

amended complaint sets forth four causes of action pursuant to 42 U.S.C. § 1983: (1)

retaliation under the First and Fourteenth Amendments; (2) unlawful search and seizure

under the Fourth Amendment; (3) an equal protection claim under the Fourteenth

Amendment; and (4) a substantive due process claim under the Fourteenth Amendment.

Defendant filed a motion to dismiss the amended complaint on May 20, 2025. (Dkt.

10). Plaintiffs’ response was filed on June 11, 2025 (Dkt. 12), and Defendant’s reply was

filed on June 18, 2025 (Dkt. 13).

DISCUSSION

I. Legal Standards

A. Rule 12(b)(1)

“A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack

of subject matter jurisdiction if the court lacks the statutory or constitutional power to

adjudicate it, such as when . . . the plaintiff lacks constitutional standing to bring the

action.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.á.r.l, 790 F.3d 411, 416-17

(2d Cir. 2015) (quotation and citation omitted). “Standing is a federal jurisdictional

2 Defendant moved to dismiss Plaintiffs’ initial complaint on April 7, 2025. (Dkt. 6).

The Court issued a Text Order allowing Plaintiffs to elect to file an amended complaint in

response (Dkt. 7), which they did (Dkt. 9), thus mooting the initial motion to dismiss (Dkt.

11).

question ‘determining the power of the court to entertain the suit.’ ‘[A] plaintiff must

demonstrate standing for each claim and form of relief sought.’” Carver v. City of New

York, 621 F.3d 221, 225 (2d Cir. 2010) (alteration in original) (citations omitted).

When standing is challenged on the basis of the pleadings, a court must “accept as

true all material allegations of the complaint, and must construe the complaint in favor of

the complaining party.” Carver, 621 F.3d at 225 (quoting W.R. Huff Asset Mgmt. Co. v.

Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008)). Thus, when a Rule 12(b)(1)

motion is facial, i.e., based solely on the pleadings, a plaintiff has no evidentiary burden

and the “task of the district court is to determine whether the Pleading ‘allege[s] facts that

affirmatively and plausibly suggest that [the plaintiff] has standing to sue.’” Carter v.

HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (alterations in original) (citation

omitted); see also Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017) (when

a standing challenge is facial, a plaintiff has no evidentiary burden, “for both parties can

be said to rely solely on the facts as alleged” in the complaint).

“Standing doctrine embraces several judicially self-imposed limits on the exercise

of federal jurisdiction, such as the general prohibition on a litigant’s raising another

person’s legal rights, the rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches, and the requirement that a

plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Allen

v. Wright, 468 U.S. 737, 751 (1984) (emphasis added), abrogated on other grounds

by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). “A party

must assert his own legal rights and interests, and cannot rest his claim to relief on the legal

rights or interests of third parties.” In re Bernard L. Madoff Inv. Sec. LLC., 721 F.3d 54,

58 (2d Cir. 2013) (quotation omitted).

“To satisfy the requirements of Article III standing, plaintiffs must demonstrate ‘(1)

[an] injury-in-fact, which is a concrete and particularized harm to a legally protected

interest; (2) causation in the form of a fairly traceable connection between the asserted

injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-

speculative likelihood that the injury can be remedied by the requested relief.’” Hu v. City

of N.Y., 927 F.3d 81, 89 (2d Cir. 2019) (quoting Selevan v. N.Y. Thruway Auth., 711 F.3d

253, 257 (2d Cir. 2013)) (alteration in original).

“Where, as here, the defendant moves for dismissal under Rule 12(b)(1), Fed. R.Civ.

P., as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first

since if it must dismiss the complaint for lack of subject matter jurisdiction, the

accompanying defenses and objections become moot and do not need to be

determined.” Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir.

1990) (quotation omitted); see also Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820

F. Supp. 2d 490, 499 (S.D.N.Y. 2011), aff’d 496 F. App’x 131 (2d Cir. 2012) (“When a

defendant moves to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, and

also moves to dismiss on other grounds such as Rule 12(b)(6) for failure to state a claim

upon which relief can be granted, the Court must consider the Rule 12(b)(1) motion first.”).

“A court faced with a motion to dismiss . . . must decide the jurisdictional question first

because a disposition of a Rule 12(b)(6) motion is a decision on the merits and, therefore,

an exercise of jurisdiction.” Sikhs for Justice Inc. v. Indian Nat’l Cong. Party, 17 F. Supp.

3d 334, 338 (S.D.N.Y 2014) (quotation omitted). In other words, if a court lacks subject

matter jurisdiction, it cannot reach the merits of the case.

B. Rule 12(b)(6)

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546

(2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). “To state a

plausible claim, the complaint’s ‘[f]actual allegations must be enough to raise a right to

relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d

Cir. 2014) (quoting Twombly, 550 U.S. at 555).

II. First Amendment—First Cause of Action

Plaintiffs’ first cause of action is a First Amendment retaliation claim premised on

two allegations: one, that Bachman’s report of the renovations in the Penfield house caused

Defendant to engage in a pattern of harassment against the Bachman family, including

placing a GPS tracking device on the family vehicle, interviewing the Bachmans’

neighbors, friends, and family, interrogating Bachman’s former employer, informing those

people that the Bachmans were under a criminal investigation, surveilling the Bachman

home, and having the Bachman vehicle followed by private investigators (Dkt. 9 at ¶¶ 87-

88, 90, 95-99, 109); and two, that after Plaintiffs commenced this lawsuit, Defendant took

retaliatory action against Mr. Bachman in his capacity as an employee of GPD by opening

an investigation into Mr. Bachman, filing disciplinary charges against him, making a

criminal referral, publicly releasing information about the disciplinary charges, and ceasing

to reimburse his medical expenses in connection with his workers’ compensation claim (id.

at ¶¶ 87-88, 91, 94, 103, 104-105). The Court will address these allegations in turn.

A. Speech Regarding Renovations

To state a First Amendment retaliation claim in the context of a private citizen, a

plaintiff must plausibly allege: “(1) he has a right protected by the First Amendment; (2)

the defendant’s actions were motivated or substantially caused by his exercise of that right;

and (3) the defendant’s actions caused him some injury.” Dorsett v. Cnty. of Nassau, 732

F.3d 157, 160 (2d Cir. 2013).

Although historically there has been “tension” in this circuit regarding what injury

is needed to establish a plausible claim for First Amendment retaliation, see, e.g., Gill v.

Pidlypchak, 389 F.3d 379, 381-84 (2d Cir. 2004), the Second Circuit clarified in Dorsett

that silencing of the plaintiff’s speech is not the only sufficient injury, 732 F.3d at 160

(“Chilled speech is not the sine qua non of a First Amendment claim.”). Rather, “[a]

plaintiff has standing if he can show either that his speech has been adversely affected by

the government retaliation or that he has suffered some other concrete harm.” Id. So long

as a plaintiff can plausibly demonstrate that “defendant’s actions caused him some injury,”

including “[v]arious non-speech related harms,” the plaintiff has satisfied the injury

requirement to withstand a motion to dismiss. Id. Although not definitively resolved by

the Second Circuit, other courts have concluded that injury “based on embarrassment,

humiliation, and emotional distress” is enough to allege injury in the First Amendment

retaliation context. Doe v. City of New York, No. 18-CV-670 (ARR) (JO), 2018 WL

3824133, at *13 (E.D.N.Y. Aug. 9, 2018) (citations omitted); see Stridiron v. Newburgh

Enlarged City Sch. Dist., No. 20-CV-6823 (CS), 2023 WL 5586680, at *9 (S.D.N.Y. Aug.

29, 2023) (“It is an unsettled question in this Circuit whether emotional damages are

sufficient, standing alone, to give rise to a First Amendment retaliation claim. Some district

judges in this Circuit have answered that question in the affirmative, holding that

allegations as to ‘severe and extreme emotional distress . . . [are] sufficient to plausibly

allege a claim of First Amendment retaliation.’” (citations omitted)); see also Gully v. Nat’l

Credit Union Admin. Bd., 341 F.3d 155, 161 (2d Cir. 2003) (“The Supreme Court has long

recognized that an injury to reputation will satisfy the injury element of standing.”);

Bernheim v. Litt, 79 F.3d 318, 325-26 (2d Cir. 1996) (“It is a basic principle of . . . civil

rights law . . . that compensable injuries may include not only monetary losses such as out-

of-pocket expenses but also injuries such as . . . mental anguish.” (quoting Henry v. Gross,

803 F.2d 757, 768 (2d Cir. 1986)).

Defendant challenges whether Plaintiffs have Article III standing to bring the First

Amendment retaliation claim. (Dkt. 10-3 at 11-16; Dkt. 13 at 5-8). Defendant claims that

because Plaintiffs have not pleaded that their speech was effectively chilled by Defendant’s

actions or that Plaintiffs suffered some other concrete harm, they have failed to establish

injury-in-fact. (Id.). The Court disagrees. “[S]tanding is no issue whenever the plaintiff

has clearly alleged a concrete harm independent of First Amendment chilling.” Zherka v.

Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (quoting Gill, 389 F.3d at 383 (2d Cir. 2004)

(“[S]tanding . . . is only a problem where no harm independent of the First Amendment is

alleged. For there, the only injury is the chilling itself.”)). Here, Plaintiffs allege that they

were injured because of the Town’s retaliatory actions. Bachman alleges that because of

the Town’s harassment committed in retribution for her disclosures, she lives in constant

fear that something will happen to her or a member of her family, and believes her home

and vehicle are under constant surveillance, causing severe emotional distress. (Id. at

¶¶ 88, 109). She further alleges that the Town’s interrogation of the people in her life,

including her former employer, and the Town’s statements that the Bachmans were under

criminal investigation, have caused her difficulty in sustaining employment. (Id.) Infant

One and Infant Two similarly allege that they have suffered psychological injury; since

they learned of the GPS tracking device that was allegedly installed on the family vehicle,

they have become withdrawn and less trusting and are showing signs of stress and anxiety.

(Id.). Based on this, the Court concludes that each Plaintiff has plausibly pleaded

economic, reputational, and/or emotional harm sufficient to establish injury-in-fact for

standing purposes.

On the merits, Defendant contends that the amended complaint fails to plausibly

allege a First Amendment retaliation claim premised on Bachman’s communications about

renovations in the Penfield house. (Dkt. 10-3 at 20-21; Dkt. 13 at 10-11). Defendant argues

that Bachman did not plead facts supporting the plausible inference that the Town’s actions

effectively chilled her speech, and that she failed to demonstrate that any actions by the

Town were motivated or substantially caused by Bachman exercising any right. (Id.)

Moreover, Defendant submits that because there are “no allegations that the children

engaged in any protected speech,” Infant One and Infant Two have not stated a viable claim.

(Dkt. 10-3 at 14).

The Court agrees that Infant One and Infant Two have failed to allege that they

engaged in any First Amendment speech—or any speech at all—for the purpose of this

claim. The sole communication that gives rise to this First Amendment retaliation claim

based on the harassment and other acts directed toward Plaintiffs, is Bachman’s alleged

disclosure relating to the renovations in the Penfield house. (Dkt. 9 at ¶ 95). But that was

Bachman’s speech. Without an allegation that Infant One and Two engaged in protected

speech, they cannot assert a viable First Amendment claim.

As for Bachman, the Court rejects Defendant’s arguments that she has failed to

allege concrete harm under Dorsett, for the reasons discussed above concerning standing.

Bachman has stated two types of injury—both economic damages in the form of difficulty

in sustaining employment as a result of reputational harm caused by the Town’s

interrogation of her former employer and the Town’s statements that the Bachmans were

under criminal investigation (Dkt. 9 at ¶ 88), and severe emotional distress (id.).

The Court similarly rejects Defendant’s arguments that the alleged causal

connection is insufficiently alleged. The amended complaint alleges that Town officials

knew that Bachman shared information about the renovations in the Penfield house, and

that Town officials believed that the Bachmans were assisting in the investigation of

corruption in the Town government. (Dkt. 9 at ¶¶ 33-35). That allegation supports an

inference that the Town placed the Bachman family under surveillance and investigation

as a result of Bachman’s communications. See, e.g., Tretola v. D’Amico, No. 13-CV-5705

JS AKT, 2014 WL 2957523, at *5 (E.D.N.Y. July 1, 2014) (allegation that defendants

“essentially began an investigation and a campaign to target [plaintiffs] as a form of

retribution” for plaintiffs’ speech was sufficient to plausibly allege causation for First

Amendment retaliation). Bachman has therefore plausibly established a causal connection

to support her retaliation claim.

B. Commencement of Lawsuit

Plaintiffs also assert a cause of action for First Amendment retaliation premised on

the Town’s actions in response to the filing of this lawsuit. (Dkt. 9 at ¶¶ 87-88, 91, 94, 103,

104-105). Defendant contends that Plaintiffs lack standing because they have not

themselves experienced injury caused by the Town and are instead seeking legal recourse

on behalf of Mr. Bachman. (Dkt. 10-3 at 11-16; Dkt. 13 at 5-8).

Plaintiffs do not appear to contest that Mr. Bachman is the only person who has

experienced harm stemming from the commencement of this lawsuit. (Dkt. 12 at 16-18).

Instead, Plaintiffs rely on the Second Circuit’s decision in Adler v. Pataki, 185 F.3d 35 (2d

Cir. 1999) and suggest that under that precedent, injury to Mr. Bachman, as Bachman’s

spouse and the father of Infant One and Two, establishes injury-in-fact. (Id. at 16). The

Court is not persuaded by this argument.

In Adler, the Second Circuit considered whether a public employee had a cause of

action under the First Amendment arising from his retaliatory discharge after his wife sued

state officials. The Court determined that the husband could pursue a claim based on

retaliatory action taken against him because of his wife’s speech, but that “a spouse’s claim

that adverse action was taken solely against that spouse in retaliation for conduct of the

other spouse should be analyzed as a claimed violation of a First Amendment right of

intimate association,” not a violation of his freedom of speech. Adler, 185 F.3d at 44; see

Trask v. Town of Alma, No. 1:19-cv-01192, 2020 WL 6390091, at *5 (W.D.N.Y. Oct. 30,

2020) (considering whether plaintiff pleaded a claim of violation of the right to intimate

association when plaintiff was allegedly terminated for wife’s conduct); Talley v.

Brentwood Union Free Sch. Dist., No. 08 CV 790(DRH)(ETB), 2012 WL 3841396, at *7-

8 (E.D.N.Y. Sept. 5, 2012) (First Amendment intimate association analysis applied to

daughter’s claim that she was not hired for a teaching position because of animus toward

her father’s conduct as school board member); Garten v. Hochman, No. 08 Civ.

9425(PGG), 2010 WL 2465479, at *3 (S.D.N.Y. June 16, 2010) (“Courts in this circuit

have acknowledged that a First Amendment right of intimate association is implicated

where a plaintiff is allegedly retaliated against for the First Amendment activities of a

family member.” (internal quotations and citations omitted)).

Thus, while Adler recognizes the right of a plaintiff to pursue claims based on

allegedly retaliatory acts taken based on the speech of an intimate family member, it does

not help Plaintiffs here. Plaintiffs are not alleging that they have been retaliated against

because of Mr. Bachman’s speech—rather, they are alleging that Mr. Bachman has been

retaliated against because of their speech commencing this lawsuit. But it is Plaintiffs—

not Mr. Bachman—who have brought this lawsuit and among other things, must plausibly

allege an injury-in-fact to establish standing.

Plaintiffs cannot establish standing to pursue a First Amendment retaliation claim

based on the commencement of this lawsuit. The injury asserted by Plaintiffs is that the

Town retaliated by investigating Mr. Bachman, entering disciplinary charges against him,

recommending a criminal referral, publicly releasing that information, and refusing to

reimburse Mr. Bachman’s medical expenses under his workers’ compensation claim. (Dkt.

9 at ¶¶ 87-88, 104). None of those allegations support an inference of harm to Plaintiffs

themselves. Because those injuries have not affected Plaintiffs “in a personal and

individual way,” Harty v. West Point Realty, Inc., 28 F.4th 435, 442 (2d Cir. 2022) (quoting

Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)), Plaintiffs have failed to demonstrate that

any injury is sufficiently particularized. Accordingly, Plaintiffs cannot establish standing

to pursue a First Amendment retaliation claim based on commencement of this lawsuit.

III. Standing as to Remaining Causes of Action

On Plaintiffs’ second, third, and fourth causes of action, Defendant contends that

the amended complaint lacks allegations of concrete harm suffered by Plaintiffs because

of any actions by the Town. (Dkt. 10-3 at 15-16). The Town submits that absent concrete

injury directed at or experienced by Plaintiffs, Plaintiffs cannot use a general claim of

emotional distress to establish standing. Id.

Although general allegations of emotional distress may be insufficient to amount to

a concrete constitutional injury, “great stress, mental anguish, anxiety, and distress” are the

sort of harm that may support Article III standing. Maddox v. Bank of N.Y. Mellon Trust

Co., N.A., 19 F.4th 58, 65 (2d Cir. 2021) (first citing TransUnion LLC v. Ramirez, 594 U.S.

413, 436 n. 7 (2021) (“[A] plaintiff's knowledge that he or she is exposed to a risk of future

physical, monetary, or reputational harm could cause its own current emotional or

psychological harm.”); and then citing Denney v. Deutsche Bank AG, 443 F.3d 253, 265

(2d Cir. 2006) (“[A]esthetic, emotional or psychological harms also suffice for standing

purposes.”)). Plaintiffs “must plead enough facts to make it plausible that they did indeed

suffer the sort of injury that would entitle them to relief,” and “[a] perfunctory allegation

of emotional distress, especially one wholly incommensurate with the stimulant, is

insufficient to plausibly allege constitutional standing.” Id. at 65-66 (quoting Harry v. Total

Gas & Power North Am., Inc., 889 F.3d 104, 110 (2d Cir. 2018)).

That said, the Court does not agree with Defendant’s assertion that the amended

complaint fails to contain specific allegations of actions taken by the Town that were

directly aimed at or experienced by Plaintiffs that resulted in injury to Plaintiffs. Plaintiffs

allege that the Town violated their rights under the Fourth Amendment, the Equal

Protection Clause, and Substantive Due Process by subjecting them to harassment and

illegal surveillance. Plaintiffs further allege that these actions by the Town caused them

severe emotional distress, including anxiety that they are being watched and that their home

and vehicles are under surveillance, fear that the Town will physically harm someone in

their family, and stress over whether Mr. Bachman will lose his job with the Town as a

result of the surveillance. (Dkt. 9 at ¶ 88). Furthermore, the children have become

withdrawn and less trusting, and are showing signs of stress and anxiety. (Id.)

The Court finds these allegations more than a “perfunctory allegation of emotional

distress,” Denney, 443 F.3d at 265, and sufficient for purposes of standing for the second,

third and fourth causes of action.

IV. Municipal Liability

The Town moves to dismiss all of Plaintiffs’ § 1983 claims pursuant to Monell v.

New York City Dep’t Soc. Servs., 436 U.S. 658, 690 (1978). The Town contends that

Plaintiffs have failed to identify any custom, policy, or final policymaker responsible for

the alleged actions that violated Plaintiffs’ constitutional rights. (Dkt. 10-3 at 16-20; Dkt.

13 at 8-10).

“Section 1983 itself creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,

519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). “To

state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing

Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).

“[T]o establish municipal liability under § 1983, a plaintiff must prove that ‘action

pursuant to official municipal policy’ caused the alleged constitutional injury.” Cash v.

Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S.

51, 60 (2011)). “[T]o hold a [municipality] liable under § 1983 for the unconstitutional

actions of its employees, a plaintiff is required to plead and prove three elements: (1) an

official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a

constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). “[O]fficial

municipal policy includes the decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically have

the force of law.” Connick, 563 U.S. at 61. To survive a motion to dismiss, the plaintiff

“cannot merely allege the existence of a municipal policy or custom, but must allege facts

tending to support, at least circumstantially, an inference that such a municipal policy or

custom exists.” Triano v. Town of Harrison, N.Y., 895 F. Supp. 2d 526, 535 (S.D.N.Y. 2012)

(cleaned up). A plaintiff may satisfy the “policy or custom” requirement by alleging one

of the following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken

by government officials responsible for establishing the municipal policies

that caused the particular deprivation in question; (3) a practice so consistent

and widespread that, although not expressly authorized, constitutes a custom

or usage of which a supervising policy-maker must have been aware; or (4)

a failure by policymakers to provide adequate training or supervision to

subordinates to such an extent that it amounts to deliberate indifference to

the rights of those who come into contact with the municipal employees.

Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010) (citations

omitted).

As relevant here, “[a] municipality may . . . be liable for even a single

unconstitutional act of an official who has final policy-making authority.” Taylor v. City of

New York (Dep’t of Sanitation), No. 17 CV 1424-LTS-SDA, 2019 WL 3936980, at *5

(S.D.N.Y. Aug. 20, 2019). “If an official’s decision was, at the time it was made, for

practical or legal reasons the municipality’s final decision, then they are a final

policymaker.” Id. (cleaned up); see also Rookard v. Health & Hosps. Corp., 710 F.2d 41,

45 (2d Cir. 1983) (“A single unlawful discharge, if ordered by a person whose edicts or

acts may fairly be said to represent official policy, may support an action against the

municipal corporation. . . . Where an official has final authority over significant matters

involving the exercise of discretion, the choices he makes represent government policy.”

(cleaned up)); Barzilay v. City of New York, 610 F. Supp. 3d 544, 618 (S.D.N.Y. 2022) (to

determine whether an individual has the requisite policy-making authority, “a court must

consider ‘proof of the official’s scope of employment and his role within the municipal or

corporate organization.’” (citation omitted)). “Mayors may be treated as policy-makers

without proof of their specific powers and responsibilities. Lesser officials, however,

cannot similarly be presumed to embody plenary municipal power.” Donovan v. Norwich

City Sch. Dist., No. 3:19-CV-1638, 2022 WL 623904, at *11 (N.D.N.Y. Mar. 3, 2022)

(quoting Rookard, 710 F.2d at 45, n. 4). At the pleading stage, a plaintiff must allege

sufficient facts to support a fair inference for such a conclusion. Taylor, 2019 WL 3936980,

at *5; Morizio v. Town of Oyster Bay, No. CV 14-1241 (LDW) (SIL), 2015 WL 13721649,

at *7 (E.D.N.Y. Apr. 24, 2015) (“Notably, [a]t the pleadings stage, it is sufficient for the

complaint to allege facts suggesting that Defendants may be determined to have final

policymaking authority as a matter of law.” (cleaned up)).

Plaintiffs have alleged sufficient facts to support a fair inference that Reilich, in his

capacity as Town Supervisor, and Wood, in his capacity as GPD Chief, were policymakers

with final authority over the decision to hire Cass & Morales to investigate the Bachman

family and ultimately place a GPS tracking device on the Bachman family vehicle.

Plaintiffs allege that an “Investigative Services Retainer Agreement” was entered into

between Cass & Morales and Bolaños Lowe PLLC, in the firm’s capacity as legal counsel

to the Town. (Dkt. 9 at ¶¶ 47-48). Plaintiffs further allege that Karlee Bolaños reported

directly to Reilich and acted under his authority when she retained Cass & Morales to

investigate the Bachman family and place a GPS device on their vehicle. (Id. at ¶ 63).

Additionally, Plaintiffs allege that Jennifer Morales had a telephone call with Wood after

placing the GPS device on the Bachman family car in which she communicated to Wood

that the device had been installed, and that Wood issued press releases in which he asserted

that he was in charge of the investigation of Mr. Bachman. (Id. at ¶¶ 57, 62). These facts

plausibly allege that retaining Cass & Morales to investigate the Bachman family, and the

actions taken by Jennifer Morales pursuant to that agreement, resulted from decisions made

by policymakers with final authority. Thus, the Town’s motion to dismiss Plaintiffs’ § 1983

claims on the theory that Plaintiffs failed to plausibly establish the Town’s liability under

Monell is denied.

V. Fourth Amendment—Second Cause of Action

Plaintiffs allege that Defendant violated their Fourth Amendment rights by installing

a GPS tracking device on the family vehicle and subjecting them to 24/7 monitoring. (Dkt.

9 at ¶¶ 113-28). Defendant seeks to dismiss this claim under Cunningham v. New York

State Dep’t of Labor, 21 N.Y.3d 515 (2013), in which the New York Court of Appeals

determined that a public employer’s installation of a GPS tracking device on an employee’s

vehicle fell within the “workplace” exception to the warrant requirement recognized in

O’Connor v. Ortega, 480 U.S. 709 (1987). (Dkt. 10-3 at 22; Dkt. 13 at 11-12). According

to Defendant, because the alleged installation of a GPS tracking device on the Bachmans’

car did not require a warrant under the workplace exception, and Plaintiffs do not allege

that the search was unreasonable, Plaintiffs’ claim should be dismissed. (Id.)

“The Fourth Amendment prohibits unreasonable searches and seizures.” United

States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007). “A ‘search’ occurs for purposes of

the Fourth Amendment if the police seek information by intruding on a person’s reasonable

expectation of privacy or by means of trespassing upon one’s person, house, papers, or

effects.” United States v. Smith, 967 F.3d 198, 205 (2d Cir. 2020). Therefore,

warrantless searches are permissible only in certain circumstances and “[i]n the usual case,

a warrantless search . . . is ‘presumptively unreasonable.’” Alexander v. City of Syracuse,

573 F. Supp. 3d 711, 730 (N.D.N.Y. 2021) (citing Harris v. O’Hare, 770 F.3d 224, 231 (2d

Cir. 2014)).

Defendant’s reliance on Cunningham fails for at least two reasons. First, the New

York Court of Appeals held, based in part on the exception for the warrant requirement for

work-related searches recognized by the Supreme Court in O’Connor, that “when an

employee chooses to use his car during the business day, GPS tracking of the car may be

considered a workplace search.” 21 N.Y.3d at 521. But here, it is far from clear that a

warrant was not required for installation of a GPS tracking device on the Bachman family

vehicle. The amended complaint alleges that the GPS tracking device was installed after

Mr. Bachman was placed on medical leave for being injured on the job, meaning that he

was not actively reporting to work at the time that the tracking supposedly began. (Dkt. 9

at ¶¶ 44-46). Cunningham does not definitively establish that the workplace exception

applies under those facts; rather, Cunningham specifically applied the exception to the

search of an employee’s car who “was required to report his arrival and departure time to

his employer,” which “surely diminished any expectation he might have had that the

location of his car during the hours he claimed to be at work was no one’s concern but his.”

21 N.Y.3d at 521. The same cannot be said for an employee who was specifically instructed

not to report to work.

Second, even if a warrant was not required, Defendant overlooks that the court in

Cunningham determined that the use of the tracking device constituted an illegal search.

21 N.Y.3d at 522. In other words, just because a warrant is not required does not mean that

the scope of a search is reasonable, and contrary to Defendant’s claims, Plaintiffs

specifically allege that the search here was unreasonable. (Dkt. 9 at ¶ 124 (“At the time of

the events in question, the law was clear that 24/7 monitoring of members of the Bachman

family was excessively intrusive, unreasonable and a constitutional violation.”)). In

Cunningham, the court held that because the device “examined much activity with which

the [defendant] had no legitimate concern – i.e., it tracked [plaintiff] on all evenings, on all

weekends and on vacation,” conducting “seven day, 24-hour surveillance for a full month,”

the search was “excessively intrusive” and therefore unreasonable. (Id.). Almost identical

allegations are pleaded in the amended complaint. (Dkt. 9 at ¶¶ 116-17).

Therefore, the Court concludes that Plaintiffs have plausibly alleged that the search

violated the Fourth Amendment, and the motion to dismiss is denied.

VI. Equal Protection Clause—Third Cause of Action

Plaintiffs’ third cause of action is a claim under the Equal Protection Clause.

Defendant contends that Plaintiffs have failed to state a cause of action because the

amended complaint contains no allegations that Plaintiffs are members of a protected class,

nor does it provide examples of similarly situated individuals who were treated differently.

(Dkt. 10-3 at 22-24; Dkt. 13 at 12-13). Defendant further contends that Plaintiffs have not

demonstrated the high level of similarity between themselves and the persons they compare

themselves to, which is required to succeed on a “class of one” claim. (Dkt. 10-3 at 23-

24).

The Equal Protection Clause of the United States Constitution mandates equal

protection under the law, and that similarly situated persons are treated equally. “To

establish an Equal Protection claim, a plaintiff must show that he was treated differently

than other persons who were similarly situated and that such differential treatment was

either without a rational basis (a class of one claim) or was motivated by an intent to

discriminate on an impermissible basis (a selective enforcement claim).” Richard v.

Dignean, No. 6:11-CV-06013 EAW, 2023 WL 2480585, at *4 (W.D.N.Y. Mar. 13, 2023)

(cleaned up).

To prevail on a selective enforcement equal protection claim, “a plaintiff must prove

that: (1) he was treated differently from similarly situated individuals and (2) that the

difference in or discriminatory treatment was based on ‘impermissible considerations such

as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious

or bad faith intent to injure a person.’” Burton v. Salerno, No. 3:20-CV-1926 (VAB), 2023

WL 184238, at *15 (D. Conn. Jan. 13, 2023) (quoting Diesel v. Town of Lewisboro, 232

F.3d 92, 103 (2d Cir. 2000)). “A plaintiff generally must satisfy both elements to establish

a claim of selective enforcement.” Carminucci v. Pennelle, No. 18 CV 2936 (LMS), 2020

WL 4735172, at *22 (S.D.N.Y. Aug. 14, 2020) (quoting LaTrieste Restaurant v. Village of

Port Chester, 188 F.3d 65, 70 (2d Cir. 1999)).

Initially, Plaintiffs make clear, both in their amended complaint and opposition

papers, that their equal protection cause of action is a selective enforcement claim. (Dkt.

9 at 21 (“Equal Protection/Selective Enforcement Claim Against Town of Greece”); Dkt.

12 at 21 (“The case at bar is not a ‘class of one’ claim.”)). As such, insofar as Defendant

contends that Plaintiffs have failed to state a “class of one” equal protection claim, there is

no dispute on that point as Plaintiffs concede they are not pursuing such a claim.

In order to satisfy the first prong of a selective enforcement claim, Plaintiffs must

identify comparators with whom they are “similarly situated in all material respects.” Hu,

927 F.3d at 96 (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).

Although the standard does not require Plaintiffs and the comparators to be identical, their

“circumstances must bear a reasonably close resemblance.” Id. (quoting Brown v. Daikin

Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)).

Plaintiffs have not met that burden here. The sole allegation of comparators in the

amended complaint is one paragraph that alleges “[s]imilarly situated individuals who are

not whistleblowers or who otherwise do not criticize the Town are not subject to

surveillance and retaliation.” (Dkt. 9 at ¶ 133). That conclusory allegation is not enough

to identify who the alleged comparators are, let alone to establish similarities between

Plaintiffs and the comparators. See Servidio Landscaping, LLC v. City of Stamford, No.

3:19-CV-01473 (KAD), 2020 WL 7246441, at *4 (D. Conn. Dec. 9, 2020) (dismissing

selective enforcement claim because plaintiffs “d[id] not identify a single specific

comparator, individual or corporation that is allegedly similarly situated to the

[p]laintiffs”). The most generous reading of Plaintiffs’ allegation is that the proper

comparators are residents of the Town who do not engage in whistleblowing activities, but

that bald assertion is equally insufficient because it fails to plausibly allege that the

residents are similar to Plaintiffs “in all material respects” beyond being Town residents.

Although courts are “cautioned against deciding whether two comparators are similarly

situated on a motion to dismiss,” Hu, 927 F.3d at 97, a general allegation that Plaintiffs

were treated differently from those similarly situated is not enough to survive a motion to

dismiss, Rushton v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010). To

allow an equal protection claim to proceed based on the vague, wholly conclusory

allegation of similarly situated comparators like the one in Plaintiffs’ amended complaint,

would strip away the plausibility standard required by Iqbal and Twombly. Because

Plaintiffs have failed to provide more than a general allegation of comparators, their equal

protection claim is dismissed.3

VII. Substantive Due Process—Fourth Cause of Action

Plaintiffs’ final cause of action is a substantive due process claim. Plaintiffs assert

that Defendant “began a deliberate and conscience-shocking campaign of retaliati[on]”

against Plaintiffs for their association with the investigation against the Town and

commencing a related lawsuit. (Dkt. 9 at ¶ at 146).

Defendant contends that the claim warrants dismissal because the amended

complaint fails to identify a fundamental right that Defendant infringed, nor does it

plausibly allege any action by Defendant that could reasonably be considered “conscience-

shocking.” (Dkt. 10-3 at 24-26). More persuasively, Defendant contends that Plaintiffs’

substantive due process claim is subsumed in more particularized constitutional claims.

(Dkt. 10-3 at 25; Dkt. 13 at 13-14).

3 Although not raised by Defendant, the equal protection claim also fails because it is

duplicative of the First Amendment retaliation cause of action. “Courts in the Second

Circuit have dismissed equal-protection claims that merely restate First Amendment

retaliation claims.” Salvana v. New York State Dep’t of Corr. and Cmty. Supervision, 621

F. Supp. 3d 287, 313 (N.D.N.Y. 2022) (quoting Best Payphones, Inc. v. Dobrin, 410 F.

Supp. 3d 457, 484 (E.D.N.Y. 2019) (dismissing an equal protection claim “based on . . .

protected First Amendment activity” as duplicative: “courts should not unnecessarily

stretch sections of the Constitution to reach wrongs already covered by other sections”)).

Here, the equal protection claim is based on the assertion that “Defendant’s true reason for

harassing, surveilling and investigating the Bachman family was animus and ill will arising

from their desire to retaliate and silence Tina Bachman.” (Dkt. 9 at ¶ 135). Furthermore,

Plaintiffs state in their opposition papers that “the selective treatment was motivated by an

intention to punish or inhibit the exercise of constitutional rights.” (Dkt. 12 at 21). Thus,

Defendant’s alleged retaliation in response to protected speech is the basis for the alleged

selective treatment, rendering the equal protection claim duplicative of any First

Amendment retaliation claim.

“Substantive due process protects individuals against government action that is

arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against

government action that is ‘incorrect or ill-advised.’” Lowrance v. Achtyl, 20 F.3d 529, 537

(2d Cir. 1994) (cleaned up). “To establish a violation of substantive due process rights, a

plaintiff must demonstrate that the state action was ‘so egregious, so outrageous, that it

may fairly be said to shock the contemporary conscience.’” Okin v. Village of Cornwall-

On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Cnty. of Sacramento

v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).

That said, “[w]here a particular [constitutional] Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular sort of government behavior,

‘that Amendment, not the more generalized notion of “substantive due process,” must be

the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994)

(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Schachtler Stone Prods. LLC v.

Town of Marshall, No. 6:21-CV-001100 (AMN/MJK), 2024 WL 4025862, at *13

(N.D.N.Y. Sept. 3, 2024) (“It is ‘well established’ that ‘[w]here another provision of the

Constitution provides an explicit textual source of constitutional protection, a court must

assess a plaintiff’s claims under that explicit provision and not the more generalized notion

of substantive due process.’” (quoting Hu, 927 F.3d at 104)).

Here, Plaintiffs allege that Defendant’s “conscience-shocking” behavior involves

retaliating against them for engaging in protected speech by engaging in a campaign of

harassment that included installing a GPS tracker on their family vehicle. But as Plaintiffs

concede in opposition to the pending motion, this is the “same underlying conduct” that

serves as the basis for their claims based on the First and Fourth Amendment. (Dkt. 12 at

24). And as made clear above, Plaintiffs have stated plausible claims for violations of the

First and Fourth Amendment. “[W]here a claim can be characterized as a violation of the

Fourth Amendment, it should be analyzed as such, and not as a substantive due process

claim.” Green-Page v. United States, No. 1:20-CV-00837, 2024 WL 3584194, at *13

(W.D.N.Y. July 30, 2024) (quoting Lauro v. Charles, 219 F.3d 202, 208 (2d Cir. 2000));

see Ovalle v. Suffolk Cnty., No. 21-CV-5371 (BMC), 2024 WL 3986720, at *4 (E.D.N.Y.

Aug. 29, 2024) (“The Supreme Court disfavors relying on substantive due process where,

as here, the Fourth Amendment affords protection.”). The same is true for claims that

allege a violation of the First Amendment.4 See Collins v. Putt, 979 F.3d 128, 136 (2d Cir.

2020) (plaintiff’s substantive due process claim subsumed by the alleged First Amendment

violations); see also Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (same); Brown v. Wagner,

No. 12-CV-736S, 2014 WL 234821, at *6 (W.D.N.Y. Jan. 22, 2014) (“Because the

remaining claims sound in the First Amendment . . . [plaintiff’s] substantive due process

claim . . . must be dismissed.”).

4 This is true even though the Court has dismissed Infant One and Infant Two’s claims

for First Amendment retaliation. In other words, “whether a plaintiff may bring a

substantive due process claim does not turn on the success of a claim alleging a violation

of a more specific constitutional provision; it turns on whether another provision of the

Constitution ‘provides an explicit textual source of constitutional protection.’” 20

Dogwood LLC v. Village of Roslyn Harbor, No. 23-930, 2024 WL 1597642, at *2 (2d Cir.

Apr. 12, 2024) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); see also Collins v.

Putt, 979 F.3d 128, 136 (2d Cir. 2020) (concluding substantive due process claim was

subsumed by First Amendment claim, even after affirming the dismissal of the First

Amendment claim).

“In other words, what would serve to raise [Defendant’s] actions beyond the

wrongful to the unconscionable and shocking are facts which, if proven, would constitute,

in themselves, specific constitutional violations.” Velez, 401 F.3d at 94. Under these

circumstances, Plaintiffs’ substantive due process claim is “subsumed in [their] more

particularized allegations,” and subject to dismissal. Id. For these reasons, Defendant’s

motion to dismiss Plaintiffs’ substantive due process claim is granted.

CONCLUSION

For the foregoing reasons, the Court grants the Town’s motion to dismiss the First

Amendment retaliation claim based on commencement of this lawsuit without prejudice

pursuant to Rule 12(b)(1), and pursuant to Rule 12(b)(6) it grants the Town’s motion to

dismiss the Equal Protection and Substantive Due Process claims, and Infant One and

Infant Two’s claim for First Amendment retaliation based on Bachman’s speech about the

house renovations. The Town’s motion is denied as to Bachman’s First Amendment

retaliation claim based on her speech about the house renovations and as to Plaintiffs’

Fourth Amendment claim.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Judge

Dated: December 9, 2025

Rochester, New York