16-490-cv
Norton v. Town of Islip et al.

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of February, two thousand seventeen.

PRESENT:             JOSÉ A. CABRANES,
                     ROSEMARY S. POOLER,
                     GERARD E. LYNCH,
                                  Circuit Judges.


HOWARD J. NORTON,

                                 Plaintiff-Appellant,           16-490-cv

                                 v.

TOWN OF ISLIP, COUNTY OF SUFFOLK, ALICIA S.
O’CONNOR, ERIN A. SIDARAS, PATRICIA A. WAITE,
MICHAEL P. WALSH, DANIEL C. ECKERT, JASON
MISTRETTA, all individually and in their official
capacity,

                                 Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                     RICK OSTROVE, Leeds Brown Law, P.C.,
                                                             Carle Place, NY.

FOR TOWN DEFENDANTS-APPELLEES:                               ROBERT CALICA, (Edward M. Ross and
                                                             Judah Serfaty on the brief), Rosenberg
                                                             Calica & Birney LLP, Garden City, NY.


                                                         1
FOR DEFENDANT-APPELLEE COUNTY OF SUFFOLK:

                                                             Brian C. Mitchell, Assistant County
                                                             Attorney, Suffolk County Department of
                                                             Law, Hauppauge, NY

       Appeal from an order of the United States District Court for the Eastern District of New
York (Pamela K. Chen, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the District Court are AFFIRMED.

         Plaintiff-Appellant Howard J. Norton appeals from two orders of the District Court entered
in his action brought under 42 U.S.C. § 1983, the Declaratory Judgment Act, and state law.
Specifically, Norton contends that the District Court erred in granting judgment on the pleadings
under Federal Rule of Civil Procedure 12(c) in favor of defendants-appellees the Town of Islip (the
“Town”) and five Town employees1 and in granting defendant-appellee the County of Suffolk’s (the
“County”) motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Norton also asserts
that the District Court erred in denying his motion to reconsider its dismissal of his action. We
assume the parties’ familiarity with the underlying facts and the procedural history of the case.

         We review de novo the District Court’s grant of relief under Rules 12(c) and 12(b)(6),
“accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the
plaintiff's favor.” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012); see Cleveland v. Caplaw Enters.,
448 F.3d 518, 521 (2d Cir. 2006) (explaining that “[t]he standard for addressing a Rule 12(c) motion
for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to
state a claim”). A plaintiff will survive a Rule 12(c) or 12(b)(6) motion if his complaint contains
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (internal quotation marks
and citation omitted). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). We review the denial of a
motion for reconsideration for abuse of discretion. Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015).




    1
     Because Norton voluntarily dismissed his claims against Town employee Patricia Waite, the
District Court granted the Rule 12(c) motion in favor of the five remaining Town employees: Alicia
S. O’Connor, Erin A. Sidaras, Michael P. Walsh, Daniel C. Eckert, and Jason Mistretta.

                                                    2
          1. Norton’s Claims Against the Town Employees

         Norton brought claims against Town employees O’Connor, Sidaras, Walsh, Eckert, and
Mistretta for First Amendment retaliation2 and malicious prosecution stemming from the filing of
multiple sets of accusatory instruments against Norton for alleged violations of Town regulations.
The District Court dismissed the claims against Town Attorney O’Connor, Deputy Town Attorney
Sidaras, and Assistant Town Attorney Walsh on the basis of absolute immunity. Norton v. Town of
Islip, 97 F. Supp. 3d 241, 254–56, 261–62 (E.D.N.Y. 2015) (holding that O’Connor and Walsh were
entitled to absolute immunity from malicious prosecution claim and that Walsh and Sidaras were
entitled to absolute immunity from First Amendment retaliation claim); Norton v. Town of Islip, No. 12
CV 4463 (PKC), 2016 WL 264930, at *3 (E.D.N.Y. Jan. 21, 2016) (holding, in order denying
reconsideration, that Sidaras was entitled to absolute immunity from malicious prosecution claim). It
dismissed both claims against Eckert, who was an investigator in the Town’s Division of Code
Enforcement, in the alternative, on the basis of qualified immunity. Norton, 2016 WL 264930, at *6
(holding that “it was not manifestly unreasonable for [Eckert] to charge [Norton]” (alterations
added, internal quotation marks omitted)). And, it dismissed the claims against Mistretta, a senior
investigator in the Town’s Division of Code Enforcement, on the ground that Norton failed to
plausibly allege Mistretta’s personal involvement in the filing of the accusatory instruments against
Norton. Norton, 97 F. Supp. 3d at 256–57 (addressing First Amendment retaliation claim); Norton,
2016 WL 264930, at *3 (addressing malicious prosecution claim).

        On appeal, Norton does not contest the District Court’s decision affording O’Connor,
Sidaras, Walsh, and Eckert immunity from suit. Nor does Norton challenge the District Court’s
holding that he failed to plausibly allege Mistretta’s personal involvement in the allegedly
unconstitutional conduct.3 Norton, therefore, fails to articulate any basis for reviewing the District
Court’s dismissal of his claims against the individual defendants.




    2
        Norton did not allege a First Amendment retaliation claim against O’Connor.
    3
     Norton’s reply brief on appeal states that “the Complaint and moving brief discuss Mistretta’s
personal involvement for Monell liability.” Appellant’s Reply Br. 2. Even if we construe Norton’s
argument as challenging the District Court’s holding that there was no factual basis for concluding
that Mistretta was individually liable, our independent review of Norton’s Second Amended
Complaint confirms that Norton failed to plausibly allege Mistretta’s personal involvement in the
investigation of Norton or the filing of accusatory instruments against Norton. See Farid v. Ellen, 593
F.3d 233, 249 (2d Cir. 2010) (“It is well settled in this Circuit that personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983.”).

                                                   3
        2. Norton’s Claims Against the Town and County

        Norton asserted municipal liability claims against the Town for due process violations,
Fourth Amendment violations, and malicious prosecution. See Monell v. Department of Soc. Servs., 436
U.S. 658, 691 (1978). And, he asserted a municipal liability claim against the County for malicious
prosecution.4 See id. The District Court dismissed each of Norton’s municipal liability claims. Unlike
his claims against the individual defendants, Norton challenges the District Court’s dismissal of his
Monell claims. We address each claim in turn.

        a. Procedural Due Process Claim

       Norton alleged that the Town violated his right to procedural due process by prosecuting
him based on facially inadequate accusatory instruments. The District Court dismissed Norton’s
claim on the ground that he failed to allege the deprivation of a protected liberty interest. We agree.

         In reviewing Norton’s procedural due process claim, “we must determine (1) whether
[Norton] possessed a liberty or property interest and, if so, (2) what process he was due before he
could be deprived of that interest.” Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002)
(alterations added). Norton asserts that he was deprived of a liberty interest established by state law.
Namely, Norton claims that New York’s Criminal Procedure Law prohibits the use of accusatory
instruments that are based on hearsay allegations. See N.Y. Crim. Proc. Law § 100.15(3) (“[I]n order
for an information or a count thereof to be sufficient on its face, every element of the offense
charged and the defendant’s commission thereof must be supported by non-hearsay allegations of
such information and/or any supporting depositions.”). While state law may, under certain
circumstances, establish a liberty interest protected by the Fourteenth Amendment’s Due Process
Clause, “[a]mple precedent establishes that a state rule of criminal procedure . . . does not create a
liberty interest that is entitled to protection under the federal Constitution.” Watson v. City of N.Y., 92
F.3d 31, 37–38 (2d Cir. 1996). Because Norton failed to allege a protected liberty interest, the
District Court properly dismissed his due process claim.

        b. Fourth Amendment Claim

       Norton also alleged that the Town is liable for a violation of his Fourth Amendment rights
because Town employee Eckert allegedly trespassed on Norton’s property when conducting an


    4
     In his reply brief on appeal, Norton claims that the District Court “acknowledged that the
Complaint asserted Section 1983 First Amendment relation claims against the Town and County.”
Appellant Reply Br. 1. That is incorrect. Not only did the District Court not acknowledge that
Norton brought First Amendment retaliation claims against the Town and County, but Norton’s
Complaint clearly asserts a First Amendment retaliation claim only against individual defendants
Sidaras, Walsh, Eckert, Mistretta.

                                                    4
investigative search. The District Court initially dismissed Norton’s claim on the ground that he
alleged only a single incident of trespass, which is insufficient to establish a municipal policy or
custom. On reconsideration, the District Court recognized that Norton’s Complaint plausibly
alleged a second trespass but nevertheless held that Norton failed to allege other facts tending to
support the existence of a Town policy or custom of ordering its employees to trespass on private
property. It also held that Norton failed to allege that Deputy Town Attorney Sidaras was a “final
policymaker” with respect to Eckert’s investigative search. We agree that Norton failed to state a
plausible Monell claim based on a Fourth Amendment violation.

        A municipality can be liable for a constitutional violation under the Supreme Court’s
decision in Monell in several ways. Two of those bases are relevant here. First, a plaintiff can establish
that “the violation of his constitutional right resulted from a municipal custom or policy.” DeCarlo v.
Fry, 141 F.3d 56, 61 (2d Cir. 1998) (internal quotation marks omitted). Second, a plaintiff can
establish that his constitutional right was violated because of a single decision by a municipal official
who is “responsible for establishing final policy with respect to the subject matter in question.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).

        Assuming arguendo that a Fourth Amendment violation occurred, Norton failed to allege any
plausible basis for municipal liability. Norton did not set forth sufficient factual content capable of
establishing the existence of any Town “custom or policy” of facilitating trespass. Norton failed to
plausibly allege that Town Attorney O’Connor, whom Norton explains is “chief policy maker of the
Town Attorney’s Office,” Appellant Br. 55, was involved in directing Eckert’s investigation. And
Norton failed to plausibly allege that Deputy Town Attorney Sidaras had final policymaking
authority over Town inspections of private property. For those reasons, the District Court was
correct to dismiss Norton’s Fourth Amendment claim against the Town.

        c. Malicious Prosecution Claim

        Norton brought a claim against the Town and County alleging that they were liable for
malicious prosecution. The District Court dismissed those Monell claims on the ground that Norton
had failed to allege an underlying act of malicious prosecution. For purposes of our review, we need
not determine whether Norton plausibly alleged an underlying act of malicious prosecution, because,
even if he did, he failed to allege any basis for holding the Town and County liable. See Millares
Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (explaining that a Court is free to
affirm an appealed decision on any ground which finds support in the record, regardless of the
ground upon which the trial court relied (internal quotation marks omitted)).

         Norton asserts the same arguments for municipal liability on his malicious prosecution claim
as he did on his Fourth Amendment claim. Again, each argument fails. Norton did not plausibly
allege the existence of any Town “custom or policy” of prosecuting individuals for violations of the
Town code in the absence of probable cause and with malice. Norton failed to allege any facts

                                                    5
connecting Town Attorney O’Connor to the decision to prosecute Norton. And, Norton failed to
allege that Deputy Town Attorney Sidaras, whom Norton claims instigated Eckert’s investigation,
had final policymaking authority over whether or not to bring prosecutions. Norton asserts that the
Town and Deputy Town Attorney Sidaras had a vendetta against him because of prior litigation, but
he fails to allege facts showing how such a vendetta influenced his investigation and prosecution.
Norton also fails to articulate any independent basis for holding the County liable for malicious
prosecution. Thus, Norton’s Monell claims stemming from the purported malicious prosecution were
properly dismissed.

        3. Norton’s Claims Under the Declaratory Judgment Act and State Law

         Having determined that the District Court properly dismissed all of Norton’s section 1983
claims, we also agree that it properly dismissed Norton’s claims brought under the Declaratory
Judgment Act and New York law. To the extent that Norton’s requests for a declaratory judgment
raise issues of federal constitutional law that are separate from the claims dismissed above, he does
not allege sufficient facts to render those claims plausible. Otherwise, because the Declaratory
Judgment Act “is procedural only . . . and does not create an independent cause of action,” Chevron
Corp. v. Naranjo, 667 F.3d 232, 244 (2d Cir. 2012), and because no other federal claims survived the
pleading stage, the District Court did not have subject matter jurisdiction to hear Norton’s argument
for declaratory relief and it properly dismissed those claims. Similarly, in the absence of any
surviving federal claims, we have observed that “the balance of factors to be considered under the
pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point
toward declining to exercise jurisdiction over the remaining state-law claims.” Valencia ex rel. Franco v.
Lee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988)) (internal quotation marks omitted). Seeing no reason to depart from the logic of our prior
decisions, the District Court did not err by declining to exercise “pendent” or supplemental
jurisdiction over Norton’s remaining state law claims.

                                           CONCLUSION

        We have considered all of the arguments raised by appellant and find them to be without
merit. For the foregoing reasons, we AFFIRM the orders of the District Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




                                                    6
