VAN WADE v. NITTI (2024)

DECISION AND ORDER

INTRODUCTION

Pro se plaintiff William Van Wade (“Plaintiff”) has sued numerous defendants for a variety of federal and state law claims, all purportedly arising out of a gas leak at his then-residence in 2019. (Dkt. 4). There are presently ten motions pending in this action: (1) a motion to dismiss filed by defendants Rory Fitzpatrick, Kerry Ivers, Gregory Merrick, John Nitti, Dave Seeley, and the Town of Irondequoit ¹ (collectively, the “Town Defendants”) (Dkt. 50); (2) a motion to dismiss filed by defendants Raymond Francis Trotta, personally and as an employee of The Holland Trotta Project, and Raymond Francis Trotta aka Ray Trotta d/b/a president of The Holland Trotta Project (collectively, the “Trotta Defendants”) (Dkt. 53); (3) a motion to dismiss filed by defendants Jay DeWitt, William Dyrland, Jim Shafer, James Turner, and Walt Wilczewski (collectively, the “Fire Department Defendants”) (Dkt. 56); (4) a motion to dismiss or in the alternative for summary judgment filed by defendants Gregory Carver, Heather Cook, Charlie Hetrick, and Terry Wallace (collectively, the “Hudson Ave. Defendants”) (Dkt. 58); (5) Plaintiff's motion to compel (Dkt. 99); (6) a cross-motion for an extension of time, filed by the Fire Department Defendants (Dkt. 100); (7) Plaintiff's motion to strike the Fire Department Defendants’ cross-motion for an extension of time (Dkt. 101); (8) Plaintiff's motion to amend the amended complaint (Dkt. 102); (9) Plaintiff's motion to stay (Dkt. 104); and (10) Plaintiff's motion to seal the case (Dkt. 115).

For the reasons that follow, Plaintiff's motion to amend (Dkt. 102) is denied as futile; Defendants’ motions to dismiss (Dkt. 50; Dkt. 53; Dkt. 56; Dkt. 58) are granted; the Fire Department Defendants’ cross-motion for an extension of time (Dkt. 100) is granted; and Plaintiff's motion to compel, motion to strike, motion to stay, and motion to seal (Dkt. 99; Dkt. 101; Dkt. 104; Dkt. 115) are denied.

FACTUAL BACKGROUND

The following factual allegations are taken from the amended complaint (Dkt. 4), which is presently the operative pleading in this matter.

Plaintiff alleges that he was injured between April 2019 and November 2019. (Id. at ¶ 29). At the time, Plaintiff was living in an apartment owned by defendant Gregory Carver (“Carver”), in the Eagle's Landing apartment complex. (Id. at ¶¶ 30, 42). Plaintiff claims that the gas lines at Eagle's Landing were “installed without industry standard and manufacturer required striker plates, safety straps and harnesses.” (Id. at ¶ 49). Plaintiff further alleges that Carver and defendant Heather Cook (“Cook”) (the property manager for Eagle's Landing) were aware that the gas lines lacked striker plates but failed to warn Plaintiff of the associated hazards. (Id. at ¶¶ 38, 60). According to Plaintiff, he noticed a strong smell of gas when he initially moved into his apartment and alerted Cook, but she “assured [him] that it was nothing to worry about and all is safe.” (Id. at ¶ 60). Plaintiff claims that Carver “verbally informed” him that “his maintenance staff were aware of the cause of the leak prior to plaintiff's arrival at said location.” (Id. at ¶ 62).

Plaintiff alleges that the “faulty and unsafe gas lines were installed by representatives of American Plumbing HVAC/Mechanical Inc.” (Id. at ¶ 56). Plaintiff claims that Mastrosimone, an employee of American Plumbing HVAC/Mechanical Inc., “went directly against safety codes and manufacturer guidelines” in installing the gas lines at Eagle's Landing. (Id. at ¶ 78). Plaintiff asserts that around February 9, 2018, defendant John Nitti (“Nitti”) approved the “Rough Plumbing inspection phase as being sufficient,” even though he was aware that the gas lines had been installed in a defective fashion. (Id. at ¶ 85). According to Plaintiff, an “Engineer Notice” from Scott Kantar, the construction project engineer, was issued around February 26, 2018, that noted outstanding issues with the gas lines, but these issues were omitted from the official inspection log. (Id. at ¶ 86). Plaintiff further alleges that defendant Dave Seeley (“Seeley”) did not sign an “environmental checklist used to grant the Town ordinance passed to allow the construction of the property” at a time when he was the acting town supervisor. (Id. at ¶ 50).

Plaintiff claims that the lack of striker plates resulted in a subfloor puncture of the gas line “in the HVAC closet located in the living room where [he] spent [the] majority of his time.” (Id. at ¶ 57). According to Plaintiff, excess gas consistently leaked out of the HVAC closet and traveled through the ventilation system in his apartment. (Id. at ¶ 59). Plaintiff claims to have sent a video to Carver and Cook “showing the gas coming out of the vents when the HVAC unit was activated.” (Id.). Plaintiff further claims to have made multiple attempts to discover the source of the gas, including by causing defendant Terry Wallace (“Wallace”), whom he describes as “apartment maintenance staff,” to “come and service the HVAC closet w[h]ere the leak and/or smell was located as strongest source.” (Id. at ¶ 61).

Plaintiff alleges that defendant Kerry Ivers (“Ivers”) refused to release relevant information to Plaintiff about Eagle's Landing, “such as the application used to construct the building of the hazardous gas line[.]” (Id. at ¶¶ 42, 55). According to Plaintiff, he delivered “a detailed complaint of hazards” to Ivers, Seeley, and defendants Gregory Merrick (“Merrick”), William Dyrland (“Dyrland”), and James Turner (“Turner”), and they refused to inspect or cause an inspection of his apartment. (Id. at ¶ 74). Plaintiff also claims that employees under the direction of defendant Rory Fitzpatrick (“Fitzpatrick”), the Supervisor for the Town of Irondequoit, provided site inspections in response to complaints brought by other individuals, but not in response to his complaints. (Id. at ¶ 41).

According to Plaintiff, on October 24, 2019, Carver sent technician Bryan Doktor (“Doktor”) to use sealant on the gas connection. (Id. at ¶ 68). Plaintiff claims that the use of sealant on the gas connection was contrary to both the manufacturer's guidelines and the New York State Uniform Fire Prevention and Building Code. (Id. at ¶ 70).

Plaintiff claims to have again notified Cook of the gas leak on November 7, 2019, and that Cook replied, “I will contact maintenance; however, in the future, this is considered an emergency and you should call the emergency maintenance number[.]” (Id. at ¶ 96). Plaintiff alleges that he contacted the emergency maintenance line around November 13, 2019, and that Doktor and other maintenance staff again used sealant on the gas line. (Id. at ¶¶ 97-99).

Plaintiff alleges that around November 21, 2019, he again called the emergency line and also “sent clear videos of the gas leak via email” to Carver and Cook. (Id. at ¶ 100). Cook allegedly promised that maintenance staff “would be there to fix the gas leak the next morning at 7am.” (Id. at ¶ 102). Wallace and other individuals “appeared around 9am” the next morning, and employees of the St. Paul Boulevard Fire Department and Rochester Gas & Electric were later called to the property. (Id. at ¶¶ 104, 107).

Plaintiff claims that firefighter Barry Lamendola (“Lamendola”) was asked by Eagle's Landing staff to wear foot coverings when he entered Plaintiff's apartment, but that Lamendola entered with his boots uncovered. (Id. at ¶ 112). Plaintiff alleges that he twice asked Lamendola to cover his boots and offered him foot coverings, but that Lamendola refused and ordered Plaintiff out of his way, and “walked across with his wet soiled boots damaging the floor.” (Id.). Plaintiff claims that when he “tried to discuss the trespass with the wet soiled boots with” Lamendola and his supervisor defendant Jay DeWitt (“DeWitt”), Lamendola and DeWitt “taunted, verbally attacked and humiliated” Plaintiff in front of maintenance staff, other firefighters, and other people present in the parking lot. (Id.).

On November 22, 2019, Plaintiff claims to have “experienced an obvious and unbearable amount of chest pains before, during and after maintenance staff and Fire Fighters with St. Paul Boulevard Fire Department arrived at” Plaintiff's apartment. (Id. at ¶ 66). Plaintiff alleges that he told Carver and Wallace “about the inception of the chest pains being linked to the gas leaks.” (Id. at ¶ 67)

In a somewhat confusing fashion, Plaintiff asserts that Dyrland “simulated events that never occurred via incident report that a 911 call was made on 11/22/19” to the apartment and that he “relied on this simulation of legal process via his incident report to be used as a means to perpetrate actual fraud by misleading any third party accessing the totality of circumstance as to the substance and nature of what actually occurred.” (Id. at ¶¶ 71-72). Plaintiff further alleges that Carver was aware that no 911 call had actually been made regarding the gas leak, but that Plaintiff “was led to believe it did and did in fact relied [sic] on this belief for several weeks,” causing him to delay taking other action to deal with the gas leak. (Id. at ¶ 73).

Plaintiff alleges that he requested a copy of the incident report from DeWitt and that DeWitt provided him with “a false report contrary to the intent of the report, notating no harm[.]” (Id. at ¶ 53). Plaintiff further claims that DeWitt deliberately delayed preparation of the incident report and knowingly misaddressed it. (Id.). Plaintiff alleges that DeWitt, Dyrland, and Turner refused to correct the incident report despite having been put on notice that it was inaccurate. (Id. at ¶ 42). Plaintiff also alleges that DeWitt caused Lamendola not to “assess plaintiff for harm due to the gas leak.” (Id. at ¶ 76).

Plaintiff asserts that between January 28, 2020, and December 31, 2021, he “began requesting documents in relation to the construction of Eagle's Landings gas pipes by way of FOIL and requested other related matters.” (Id. at ¶ 122). Plaintiff claims that his various information requests were improperly handled and denied. (Id. at ¶¶ 123-46).

Plaintiff claims to have suffered significant health issues as a result of gas exposure from the leak. (Id. at ¶¶ 87-91).

PROCEDURAL BACKGROUND

The Court assumes the parties’ familiarity with the history and background of this case, which is laid out in the undersigned's previous Decision and Order dated February 6, 2023 (hereinafter, the “February 6, 2023 Decision and Order”). (See Dkt. 45). However, the Court will summarize the salient procedural background below.

Plaintiff commenced the instant action on November 29, 2021 (Dkt. 1), and he filed an amended complaint on April 1, 2022 (Dkt. 4). Plaintiff's amended complaint includes the following causes of action, predicated on both violations of his constitutional rights and violations of the New York Penal Law: (1) violation of the Eighth Amendment of the United States and New York Constitutions for cruel and unusual punishment and deliberate indifference, against defendants Nitti, Ivers, Seeley, DeWitt, Dyrland, and Turner (Dkt. 4 at 35); (2) violation of the First Amendment of the United States and New York Constitutions, based on his right to petition, right to grievance, freedom of speech, and freedom of information, against all defendants (id. at 37-38); (3) violation of his substantive due process rights under the Fourth and Fifth Amendments of the United States and New York Constitutions, against all defendants (id. at 38-41); (4) assault in the third degree, against all defendants (id. at 41-43); (5) conspiracy in the sixth degree, against all defendants (id. at 43-45); (6) criminal nuisance in the second degree, against all defendants (id. at 45-47); (7) disorderly conduct, against all defendants (id. at 47-49); and (8) assault in the first degree, against all defendants (id. at 49-51).

Several defendants previously filed dispositive motions challenging Plaintiff's service of the amended complaint, as well as the adequacy of the allegations in the amended complaint. (Dkt. 17 (motion to dismiss/for summary judgment, filed by defendant Rodney Mastrosimone); Dkt. 21 (motion for summary judgment, filed by defendants Carver and Cook); Dkt. 39 (cross-motion to dismiss, filed by defendants Fitzpatrick, Ivers, Merrick, Nitti, and Seeley)). In the February 6, 2023 Decision and Order, with the exception of the motion filed by defendant Mastrosimone, the Court granted these motions in part based on Plaintiff's failure to properly serve the amended complaint—which resulted in a lack of personal jurisdiction—but extended Plaintiff's time to properly serve the defendants until March 10, 2023. (See Dkt. 45 at 25-26). The Court otherwise denied the motions without prejudice to renewal, in the event Plaintiff properly served the defendants. (Id.). For defendant Mastrosimone, who had waived service of process, the Court found that Plaintiff had failed to plausibly allege any claim against him, and therefore it dismissed those claims with prejudice. (Id. at 21-25).

The Town Defendants filed their motion to dismiss on March 16, 2023. (Dkt. 50). Plaintiff filed a response on April 24, 2023 (Dkt. 64), and with leave of Court (Dkt. 66), he filed a further response on May 15, 2023 (Dkt. 81). The Town Defendants filed reply papers on May 24, 2023. (Dkt. 92; Dkt. 93).

The Trotta Defendants filed their motion to dismiss on March 20, 2023. (Dkt. 53). Plaintiff filed response papers on April 24, 2023 (Dkt. 63), and with leave of Court (Dkt. 66), he filed a further response on May 15, 2023 (Dkt. 82). The Trotta Defendants filed reply papers on May 24, 2023. (Dkt. 90).

The Fire Department Defendants filed their motion to dismiss on March 23, 2023. (Dkt. 56). Plaintiff filed response papers on April 28, 2023 (Dkt. 67), and with leave of Court (Dkt. 66), he filed a further response on May 15, 2023 (Dkt. 83). The Fire Department Defendants filed reply papers on May 24, 2023. (Dkt. 91).

The Hudson Ave. Defendants filed their renewed motion for summary judgment on March 28, 2023. (Dkt. 58). Plaintiff filed response papers on May 15, 2023 (Dkt. 84), and the Hudson Ave. Defendants replied on May 24, 2023 (Dkt. 88).

Plaintiff filed a motion to compel on October 16, 2023 (Dkt. 99), after which the Fire Department Defendants filed a cross-motion for an extension of time to answer (Dkt. 100). On October 23, 2023, Plaintiff filed a motion to strike that cross-motion. (Dkt. 102).

At the same time Plaintiff filed response papers to Defendants’ dispositive motions, on May 15, 2023, Plaintiff also filed a proposed second amended complaint. (See Dkt. 87). The Court had previously granted Plaintiff permission to file a motion to amend his complaint (see Dkt. 66), but because Plaintiff's filing failed to meet the requirements of Local Rule of Civil Procedure 7(a) pertaining to motion practice, the Court rejected the filing of the proposed second amended complaint and directed Plaintiff to file a formal motion to amend, in compliance with the Local Rules on or before October 25, 2023 (Dkt. 98). The Court also specifically directed that Plaintiff clarify in any motion to amend the basis for attempting to invoke this Court's diversity jurisdiction, including by defining his alleged status as a “national of the State of Tennessee” as set forth in his proposed second amended complaint, and explain how, if at all, that differed from being a citizen of the State of Tennessee. (Id.). Plaintiff subsequently filed a motion to amend his complaint. (Dkt. 102). Defendants filed response papers on November 27, 2023. (Dkt. 105; Dkt. 106; Dkt. 107; Dkt. 109; Dkt. 111; Dkt. 112).

On November 8, 2023, Plaintiff filed a motion to stay, asking that the case be stayed because he had contracted Covid-19 and required time to recover. (See Dkt. 104). Thereafter, on February 28, 2024, Plaintiff filed a motion to seal the case. (Dkt. 115). The Fire Department Defendants, the Trotta Defendants, the Town Defendants, and the Hudson Ave. Defendants have opposed the motion to seal. (Dkt. 117; Dkt. 119; Dkt. 120; Dkt. 121).

DISCUSSION

I. Plaintiff's Motion to Amend

The Court turns first to Plaintiff's motion to file a second amended complaint. (Dkt. 102). Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the court should “freely give leave [to amend] when justice so requires.” See Fed. R. Civ. P. 15(a)(2). However, “it is within the sound discretion of the district court whether to grant or deny leave to amend,” and “[u]ndue delay and futility of the amendment, among other factors, are reasons to deny leave.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (citation and quotations omitted). Further, the Court will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks omitted); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) (pro se plaintiffs, whether proceeding in forma pauperis or those who have paid the filing fee, should be permitted to amend the complaint at least once when it “gives any indication that a valid claim might be stated”). However, leave to amend pleadings is properly denied where amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (“Where it appears that granting leave to amend is unlikely to be productive, ․ it is not an abuse of discretion to deny leave to amend.”); Ezeh v. McDonald, No. 13-CV-6563, 2016 WL 1254012, at *3 (W.D.N.Y. Mar. 14, 2016) (“Notwithstanding the generally liberal standards for amending a complaint, the Court may properly deny a motion to amend if the amendment would be futile.”), adopted, 2016 WL 1271513 (W.D.N.Y. Mar. 30, 2016).

Plaintiff seeks to amend his amended complaint “to invoke diversity jurisdiction.” (Dkt. 102 at 3; see also id. at 1 (stating that the “current complaint is vague [and] requires brief but detailed averments with the proper subject matter jurisdiction invoked”)). Plaintiff further acknowledges that he has “erroneously procured this [42 U.S.C. § 1983] suit against some private Citizens to whom the U.S. Constitutional claims do not apply.” (Id. at 2 n.1). Plaintiff attaches the proposed second amended complaint to his motion papers. (See Dkt. 102-1).

Plaintiff's proposed second amended complaint states that he is “a Free Inhabitant in Tennessee,” clarifying that statement as follows:

I am a peaceful man, indigenous to the land Tanasi that is now commonly known as Tennessee (the Republic), not the State of Tennessee; a free inhabitant per Article IV of the Articles of Confederation 1781. For illustrative and defining purposes only: State and United States is defined at Tenn. Code Ann. 1-3-105 (32) and Tenn. Code Ann. 1-3-105 (36) respectively.”

(Dkt. 102-1 at ¶¶ 2, 5 & n.1). He states that the Defendants are citizens of New York State. (Id. at ¶¶ 2, 6-31).

These allegations are insufficient to invoke this Court's jurisdiction. “Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds $75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455 (W.D.N.Y. 2011). “ ‘[C]itizens of different States’ means that there must be complete diversity, i.e., that each plaintiff's citizenship must be different from the citizenship of each defendant.” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir. 2009); see Doctor's Assocs., Inc. v. Distajo, 66 F.3d 438, 445 (2d Cir. 1995) (“It is a long-settled rule that in order to invoke diversity jurisdiction, the petitioner must show ‘complete diversity’—that is, that it does not share citizenship with any defendant.”). “A person's citizenship for purposes of diversity is based upon his domicile.” Ceglia, 772 F. Supp. 2d at 455.

Here, Plaintiff has failed to allege that he is a citizen of a state different than the state of New York. Rather, he explicitly states that he is indigenous to place called “Tanasi,” and “not the State of Tennessee” (emphasis added). Further, despite being specifically advised by the Court that he needed to clarify the basis for attempting to invoke diversity jurisdiction with any proposed second amended complaint (Dkt. 98), Plaintiff has failed to allege or otherwise explain the difference between his alleged status as a “national of the State of Tennessee” and how, if at all, this differs from being a citizen of the State of Tennessee. “[I]t is well established that [t]he party seeking to invoke jurisdiction under 28 U.S.C. § 1332 bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete.” Herrick Co., Inc. v. SCS Commc'ns, Inc., 251 F.3d 315, 322-23 (2d Cir. 2001) (quotations and citation omitted). It was Plaintiff's burden to establish diversity jurisdiction and he has failed to do so, despite that he had several opportunities to make such allegations. (See, e.g., Dkt. 1; Dkt. 4; Dkt. 98; Dkt. 102-1). Indeed, Plaintiff has already filed one amended complaint. For those reasons, permitting Plaintiff to file a second amended complaint would be futile, because the amendments still fail to invoke the Court's diversity jurisdiction.² Accordingly, Plaintiff's motion to amend (Dkt. 102) is denied.

II. Defendants’ Dispositive Motions (Dkt. 50; Dkt. 53; Dkt. 56; Dkt. 58)

A. Relevant Legal Standards

1. Motion to Dismiss

“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 plaintiff 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). While the Court is “obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after Twombly, though, we remain obligated to construe a pro se complaint liberally.”).

2. Claims brought pursuant to 42 U.S.C. § 1983

Plaintiff brings his claims pursuant to 42 U.S.C. § 1983. A party may assert a violation of his federal constitutional rights pursuant to 42 U.S.C. § 1983. “To prevail on a claim under § 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law.” Young v. Suffolk Cnty., 705 F. Supp. 2d 183, 195 (E.D.N.Y. 2010). In other words, “[i]n order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law,” and “[b]ecause the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.’ ” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citations omitted).

B. Plaintiff's Claims against the Trotta Defendants and the Hudson Ave. Defendants

Plaintiff asserts the second through eighth causes of action in the amended complaint against the Trotta Defendants and the Hudson Ave. Defendants. The Trotta Defendants argue that the claims against them must be dismissed, including because the amended complaint does not make any specific allegations against them, and also because the Trotta Defendants are not state actors. (Dkt. 53). The Hudson Ave. Defendants argue that dismissal of the claims asserted against them is proper because they are not state actors, and also because Wallace was not properly served with the amended complaint. (See Dkt. 58-7). As explained below, Plaintiff's claims against the Trotta Defendants and the Hudson Ave. Defendants are dismissed, including because Plaintiff has failed to allege that they were acting under color of state law.

1. The Trotta Defendants

The Court first notes that the amended complaint does not make any specific allegations against the Trotta Defendants with respect to their involvement in the events that transpired in connection with the alleged gas leak. Rather, Plaintiff refers only to “defendants” collectively, without specifying how the Trotta Defendants participated in the alleged constitutional deprivations. Such vague and conclusory allegations are insufficient to survive a motion to dismiss. See, e.g., Zimnicki v. Krysiak Constr. Corp., No. 21-CV-4634-RPK-JRC, 2022 WL 17820105, at *4-5 (E.D.N.Y. Sept. 14, 2022) (vague and conclusory allegations about individuals’ involvement are not sufficient to survive a motion to dismiss); Gym Door Repairs, Inc. v. Young Equipment Sales, Inc., 206 F. Supp. 3d 869, 911 (S.D.N.Y. 2016) (“Conclusory allegations are insufficient to survive a motion to dismiss.”), reconsideration denied, 2010 WL 6652733 (S.D.N.Y. Nov. 10, 2016). The claims against the Trotta Defendants may be dismissed on this basis alone.

Further, Plaintiff has failed to allege that the Trotta Defendants acted under color of state law. In other words, Plaintiff does not allege that the Trotta Defendants are state actors, nor has he plausibly alleged that they were otherwise acting under color of state law. See, e.g., Kochan v. Kowalski, 431 F. Supp. 3d 130, 140-41 (W.D.N.Y. 2019) (dismissing First Amendment retaliation claim because Plaintiff failed to plausibly allege that the defendants were acting under color of state law), reconsideration denied, 478 F. Supp. 3d 440 (W.D.N.Y. 2020). Plaintiff's claims brought pursuant to the New York State Constitution suffer from the same problem, because the New York Constitution does not “generally restrict the actions of private parties.” Brown v. State, 89 N.Y.2d 172, 182 (1996). Indeed, it is clear that the freedom of speech and due process provisions of the New York Constitution do not apply absent state action. See Hernandez v. United States, 939 F.3d 191, 205 (2d Cir. 2019) (due process provision); SHAD All. v. Smith Haven Mall, 66 N.Y.2d 496, 503 (1985) (free speech provision). Accordingly, Plaintiff's second and third claims, which are based on alleged violations of the federal and state constitutions, are hereby dismissed with prejudice as against the Trotta Defendants.

Finally, as to Plaintiff's claims based on alleged violations of the New York Penal Law—claims four through eight—those claims also lack merit. A private individual such as Plaintiff “cannot bring a claim under state criminal law.” Wilson v. Neighborhood Restore Dev., No. 18-CV-1172 (MKB), 2020 WL 9816020, at *5 (E.D.N.Y. Sept. 28, 2020) (collecting cases); see also Peterec v. Hilliard, No. 12-CV-3944 CS, 2013 WL 5178328, at *8 (S.D.N.Y. Sept. 16, 2013) (dismissing claim premised on violation of New York Penal Law because “private citizens do not have a private cause of action for criminal violations” (citation omitted)); Rzayeva v. United States, 492 F. Supp. 2d 60, 84 (D. Conn. 2007) (“private citizens do not have a private cause of action for criminal violations”).

In his response papers, Plaintiff contends that the Trotta Defendants’ motion is based on hearsay and is speculative, and that the Trotta Defendants’ attorney has no right to defend against the case.³ (Dkt. 63; Dkt. 82). Notably, Plaintiff does not appear to dispute that the Trotta Defendants were not acting under color of state law. Because Plaintiff has failed to allege that the Trotta Defendants were acting under color of state law, and further because he does not have standing to assert criminal violations, the Trotta Defendants’ motion to dismiss is granted, and Plaintiff's claims against them are dismissed with prejudice.

2. The Hudson Ave. Defendants

With respect to the Hudson Ave. Defendants, Plaintiff alleges that defendant Carver was the owner of the property at which his injury occurred, and that he informed Plaintiff that his maintenance staff was aware of the cause of the gas leak. (Dkt. 4 at ¶¶ 30, 62). Plaintiff alleges that defendants Carver and Cook sanctioned the Eagle's Landing property with full awareness of the gas leak conditions, which they failed to properly address and inspect (id. at ¶¶ 79, 97-99, 102-03, 115), and that defendant Carver told Plaintiff that 911 was called about the gas leak, which was false (id. at ¶ 73). Plaintiff further alleges that Wallace, an employee of Hudson Ave, LLC, left a hole in the apartment, which subjected him to “hazard and physical injuries or fall risks” for two months. (Id. at ¶ 39). Plaintiff does not appear to make any specific allegations against defendant Hetrick, who is identified by Plaintiff as “Charlie Doe (last name unknown)” in the amended complaint. (See id. at ¶ 15).

In response to the motion to dismiss, Plaintiff contends that the Hudson Ave. Defendants’ arguments are hearsay and speculation, that they failed to serve the appropriate “Notice to Pro Se Litigant” for purposes of their summary judgment motion, and that their documents should be disregarded. (Dkt. 84). Notably, Plaintiff does not dispute that he has failed to allege that the Hudson Ave. Defendants are state actors or were otherwise acting under color of state law.

Like his allegations against the Trotta Defendants, Plaintiff has failed to allege that the Hudson Ave. Defendants were acting under color of state law with respect to the issues concerning the alleged gas leak.⁴ Accordingly, Plaintiff's federal and state constitutional claims (the second and third causes of action) must be dismissed as to the Hudson Ave. Defendants. Further, Plaintiff's state law criminal claims (the fourth through eighth causes of action) are likewise dismissed against the Hudson Ave. Defendants because, as explained above, a private citizen may not bring a cause of action under the state criminal law. Accordingly, the Court grants the Hudson Ave. Defendants’ motion to the extent that they are seeking dismissal of the amended complaint, and Plaintiff's claims against them are dismissed with prejudice. Because the Court has granted the motion to dismiss, the Hudson Ave. Defendants’ motion in the alternative for summary judgment is denied as moot.

C. Plaintiff's Claims against the Town Defendants and the Fire Department Defendants

Plaintiff brings his first through eighth claims against the Town Defendants and against the Fire Department Defendants. The Town Defendants argue that dismissal is appropriate because Plaintiff has failed to state a claim for which relief can be granted, including that he has failed to allege the deprivation of a constitutional right, and also that Plaintiff lacks standing to bring claims under the New York Penal Law. (See Dkt. 50-4). Similarly, the Fire Department Defendants argue that Plaintiff's claims must be dismissed because Plaintiff has failed to allege that they deprived him of any right protected by the Constitution, no special duty exists to hold the individual defendants accountable, there is no private right of action for criminal violations, and Plaintiff's claims are untimely. (Dkt. 56-2). The Fire Department Defendants also request that costs and sanctions be levied against Plaintiff because he has failed to state any cause of action against them. (See id. at 11).

Before turning to the merits of the motion, the Court notes that, on October 16, 2023, Plaintiff filed a motion to compel, requesting that the Clerk of Court enter default against the Fire Department Defendants, arguing that they were served with the summons and amended complaint on February 27, 2023, and they failed to appear in the case. (Dkt. 99). The Fire Department Defendants responded by filing a cross-motion for an extension of time (Dkt. 100), and Plaintiff filed a motion to strike that cross-motion (Dkt. 101). In support of their motion for an extension of time, the Fire Department Defendants contend that they appeared in the case and filed a motion to dismiss on March 23, 2023. (Dkt. 100-1 at 1-2; see also Dkt. 56). They further request that, to the extent their motion was untimely, the Court extend their time to respond to the amended complaint until March 23, 2023. (Dkt. 100-1 at 2).

The Fire Department Defendants were served with the summons and amended complaint on February 27, 2023, and therefore their answer was due within 21 days, i.e., on or before March 20, 2023. However, they filed their motion on March 23, 2023, or three days late. Defendants have vigorously defended against Plaintiff's claims since the inception of this lawsuit (see, e.g., Dkt. 6 (May 2022 motion to dismiss, filed by the Fire Department Defendants)), and Plaintiff has failed to articulate how he has suffered any prejudice by the three-day delay. Further, as explained below, the Fire Department Defendants have meritorious defenses to Plaintiff's claims. For those reasons, the Court grants the motion for an extension of time (Dkt. 100), extends the Fire Department Defendants’ time to respond, nunc pro tunc, until March 23, 2023, and accepts their motion to dismiss as timely. Plaintiff's motion to compel entry of default (Dkt. 99) and his motion to strike (Dkt. 101) are denied.

Because Plaintiff has brought the same claims against them and his factual allegations against each group of defendants is substantially similar, the Court considers Plaintiff's claims against the Town Defendants and the Fire Department Defendants together. The Court addresses each of Plaintiff's claims in turn.

The Court turns first to Plaintiff's Eighth Amendment deliberate indifference and cruel and unusual punishment claim. Plaintiff alleges that Defendants were deliberately indifferent to his safety and engaged in cruel and unusual punishment when they willfully failed to ensure the proper installation of gas lines in his apartment, and failed to properly address the broken gas lines, which caused him to experience excessive humiliation. (See Dkt. 4 at 35). The Eighth Amendment prohibits the infliction of cruel and unusual punishment. U.S. Const., Amend. VIII. However, as relevant to Plaintiff's claims, the Eighth Amendment does not apply prior to an individual's conviction and sentence. See, e.g., Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (because individual was not being “punished” at the time of the alleged incidents of which she complained, “the ‘cruel and unusual punishment’ proscription of the Eighth Amendment to the Constitution does not apply”); see also Logan v. City of Schenectady, No. 1:18-CV-01179 BKS CFH, 2019 WL 3803631, at *4 n.6 (N.D.N.Y. Aug. 13, 2019) (explaining that the New York Constitution's prohibition on cruel and unusual punishment does not apply where there has not been a criminal conviction (citing Powlowski v. Wullich, 102 A.D.2d 575, 583-84 (4th Dep't 1984))). Here, Plaintiff is not a convicted prisoner, and therefore he cannot pursue a claim for cruel and unusual punishment under the Eighth Amendment.

Further, even if Plaintiff could pursue such a claim, Plaintiff's allegations are not sufficient, since he has failed to allege that Defendants acted with the requisite state of mind, which is “ ‘wantonness’ in light of the particular circumstances surrounding the challenged conduct.” Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (citation omitted). Plaintiff's allegations with respect to Defendants do not rise to the level of being wonton or intentional, and his conclusory allegations that their actions were “willful,” without more, is insufficient to state an Eighth Amendment violation.⁵

The Court turns next to Plaintiff's First Amendment claim, which is based on Defendants’ delaying and denying Plaintiff's request for records, which he alleges violated his right to petition, right to information, right to grievance, and freedom of speech. (Dkt. 4 at 37). The First Amendment protects a person's freedom of speech, exercise of religion, and right to peacefully assemble. See U.S. Const., Amend I. To state a First Amendment violation, 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).

To the extent Plaintiff's First Amendment claim is premised on his FOIL requests regarding the construction of the gas pipes at Eagle's Landing, any alleged failure by the Town Defendants to comply with these requests does not amount to a violation of Plaintiff's rights under the First Amendment. See, e.g., Jenn-Ching Luo v. Baldwin Union Free Sch. Dist., No. 12-CV-6054 (JS)(AKT), 2013 WL 4719090, at *4 (E.D.N.Y. Sept. 3, 2013) (collecting cases, and dismissing the plaintiff's First Amendment claim because the district's alleged failure to comply with FOIL procedures did not amount to violation of the plaintiff's First Amendment rights); Simpson v. Town of Southampton, No. 06-CV-6743 (JFB)(WDW), 2007 WL 1755749, at *4 (E.D.N.Y. June 15, 2007) (“A failure to comply with FOIL procedures does not, in and of itself, violate any rights protected by the First Amendment.”).

Plaintiff has failed to plead any other violation of his rights under the First Amendment. For example, Plaintiff's allegations that the Fire Department's incident report resulting from the gas leak complaint was not correct, or was not furnished to him quickly enough, do not rise to a First Amendment violation, including because Plaintiff has failed to allege that Defendants interfered with his right to engage in protected speech or to petition them. See, e.g., Simpson, 2007 WL 1755749, at *4 (“Plaintiff has failed to allege any facts that, if proven, could support a claim that plaintiff's ability to express himself in a public forum was limited by defendants.”). To the extent Plaintiff alleges an infringement on his religious rights, the amended complaint is devoid of allegations suggesting that Defendants impeded his ability to practice his religion.

As to Plaintiff's due process claims based on a violation of the Fourth and Fifth Amendments ⁶ , Plaintiff alleges that those are based on the Defendants’ concealment of crucial facts, denial of access to information, and their use of a sealant on the gas connection in his apartment ⁷ , which injured Plaintiff. (Dkt. 4 at 38-39). To succeed on a due process claim, a plaintiff must establish that “he or she possesses a constitutionally protected interest in life, liberty, or property, and that state action has deprived him or her of that interest.” Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).

Plaintiff's substantive due process claim is denied because he has not alleged any facts that would give rise to him having a discernable protected property interest in the accuracy of the contents of the Fire Department's own incident report, nor does he have a property interest in obtaining what he deems to be a corrected version of the record via a FOIL request. See Patrella v. Cty. of Suffolk, No. 18-CV-3722(JS)(AKT), 2019 WL 6525650, at *5 (E.D.N.Y. Dec. 3, 2019) (“Plaintiff does not have a protected property interest in the requested FOIL documents.”); Lawrence v. Antonucci, No. 04-CV-356S, 2005 WL 643457, at *3 (W.D.N.Y. Mar. 16, 2005) (“As several courts in this Circuit have held, a plaintiff has no property interest in obtaining FOIL documents.” (quotation and citation omitted)), aff'd, 144 F. App'x 193 (2d Cir. 2005). Further, even if Plaintiff had such a property interest in receipt of the FOIL documents, such claims would be more properly addressed under New York law. Blount v. Brown, No. 10-CV-01548 (ARR), 2010 WL 1945858, at *2 (E.D.N.Y. May 11, 2010) (“In this case, even assuming arguendo that plaintiff had a protected property interest in the FOIL documents, his due process claim would still fail as a matter of law because he has not shown that the state post-deprivation process is inadequate. New York law provides a remedy for the improper denial of a FOIL request.”); Schmiege v. New York, No. 21-CV-418-LJV, 2021 WL 3492924, at *1 n.1 (W.D.N.Y. Aug. 9, 2021) (“If [Plaintiff] wishes to bring a claim for the denial of his FOIL requests, that claim is not cognizable in this section 1983 case. The appropriate vehicle for challenging denials of access to freedom of information requests is a state court Article 78 proceeding.”). Accordingly, Plaintiff's due process claim is also dismissed.

Finally, as to Plaintiff's claims based on alleged violations of the New York Penal Law—claims four through eight—as explained above, those claims lack merit, since a private individual such as Plaintiff cannot bring a claim under state criminal law.

For those reasons, the motions to dismiss brought by the Town Defendants and the Fire Department Defendants are granted, and Plaintiff's claims against them are dismissed with prejudice. However, the Court declines to levy sanctions against Plaintiff, or require him to pay the Fire Department Defendants’ costs associated with defending against this case. Plaintiff has proceeded pro se in this matter, and the Fire Department Defendants have failed to offer any specific argument, aside from the fact that Plaintiff has failed to state a claim against them, as to why sanctions are warranted in this instance. See, e.g., Fariello v. Rodriguez, 148 F.R.D. 670, 688-89 (E.D.N.Y. 1993) (explaining that “[a]lthough Rule 11 applies to pro se litigants, a pro se plaintiff's papers are held to less stringent standard than papers submitted by attorneys,” and declining to assess sanctions against the pro se plaintiff for not discontinuing action against certain defendants), aff'd, 22 F.3d 1090 (2d Cir. 1994). Accordingly, the Fire Department Defendants’ request for sanctions is denied.

D. Plaintiff's Remaining Motions

Also pending before the Court is Plaintiff's motion to stay (Dkt. 104) and his motion to seal (Dkt. 115). Because the Court concludes that Plaintiff's claims must be dismissed, his motion to stay and his motion to seal are denied as moot.⁸ See Van Wade v. St. Paul's Boulevard Fire Dist., No. 6:21-CV-06218 EAW, 2022 WL 486911, at *7 (W.D.N.Y. Feb. 17, 2022) (granting motion to dismiss and denying motion to seal as moot).

CONCLUSION

For the foregoing reasons, Plaintiff's motion to amend (Dkt. 102) is denied as futile, Defendants’ motions to dismiss (Dkt. 50; Dkt. 53; Dkt. 56; Dkt. 58) are granted, the Fire Department Defendants’ cross-motion for an extension of time (Dkt. 100) is granted, and Plaintiff's motion to compel, motion to strike, motion to stay, and motion to seal (Dkt. 99; Dkt. 101; Dkt. 104; Dkt. 115) are denied.

SO ORDERED.

FOOTNOTES

1.   Although this motion is also brought on behalf of the Town of Irondequoit, which was named as a defendant in Plaintiff's original complaint, Plaintiff omitted the Town as a defendant in the amended complaint, and therefore the Town has already been terminated as a party on the docket.

2.   The factual allegations contained in the amended complaint and second amended complaint are largely the same; however, Plaintiff's proposed second amended complaint attempts to assert claims based solely on alleged violations of state law. (See Dkt. 102-1 at 22-25). Because Plaintiff has failed to adequately plead diversity, the Court would lack subject matter jurisdiction over these causes of action.

3.   Plaintiff previously sought the disqualification of various attorneys from the case, including the attorney for the Trotta Defendants, which the Court denied. (See Dkt. 66). As the party seeking disqualification, Plaintiff bears the “heavy burden” of showing that disqualification is warranted, and disqualification should only be imposed upon a finding that the presence of a particular attorney “poses a significant risk of trial taint.” Gabayzadeh v. Taylor, 639 F. Supp. 2d 298, 301 (E.D.N.Y. 2009) (quoting Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981)). Plaintiff has again failed to articulate any legitimate basis upon which counsel should be disqualified, such as a legitimate conflict of interest.

4.   As explained above, the Hudson Ave. Defendants contend that Plaintiff failed to serve Wallace with the summons and complaint. Following the filing of their motion, Plaintiff filed proofs of service, including for Wallace. (See Dkt. 59 at 5-6 (proof of service filed on March 28, 2023)).

5.   Even applying the less demanding standard for a claim of deliberate indifference by a pretrial detainee under the Fourteenth Amendment, i.e., that the defendant-official “acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed” see Darnell, 849 F.3d at 35, Plaintiff's allegations still fall short of stating a claim. Viewed in the light most favorable to him, Plaintiff's allegations that Defendants did not properly fix the gas piping, at most, amount to mere negligence, and not intentional or reckless conduct. See id. at 36 (“[A]ny § 1983 claim for a violation of due process requires proof of a mens rea greater than mere negligence.”).

6.   Plaintiff's due process claim is more properly brough to pursuant to the Fourteenth Amendment. Bussey v. Phillips, 419 F. Supp. 2d 569, 586 (S.D.N.Y. 2006) (“[Plaintiff's] due process claims are against state, not federal, actors, and thus the Fourteenth Amendment, rather than the Fifth Amendment, applies to these claims.”) (citing Dusenbery v. United States, 534 U.S. 161, 167 (2002)).

7.   To the extent Plaintiff's due process claim is premised on his right a particular standard of housing, any such claim is also dismissed, as “a local agency's failure to remedy potentially hazardous living conditions does not amount to a substantive due process violation.” See Carter v. City of New York, No. 13-cv-1839-RA, 2014 WL 4953641, at *3 (S.D.N.Y. Sept. 30, 2014).

8.   Even if it addressed the merits of Plaintiff's motion to seal, the Court notes that Plaintiff has failed make the requisite showing to support the sealing of the case. “To overcome the First Amendment right of access, the proponent of sealing must ‘demonstrat[e] that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ” Bernstein v. Bernstein Litowitz Berger& Grossmann LLP, 814 F.3d 132, 144 (2d Cir. 2016) (citation omitted); see also Collado v. City of New York, 193 F. Supp. 3d 286, 289 (S.D.N.Y. 2016) (explaining that the presumption of public access is strong, and therefore the rationale for sealing must be “compelling”). In support of his motion to seal, Plaintiff states that the case should be sealed “to support [his] private right of action,” that he wishes “to not engage further in a public controversy and to handle this matter privately with every man and woman [he has] claims against,” and also that one of the defendants is a convicted sex offender. (See Dkt. 115 at 5). These reasons are not sufficiently compelling in light of the strong presumption of public access, nor has Plaintiff explained why sealing the entire case is necessary.

ELIZABETH A. WOLFORD, Chief Judge