Bar-Levy v. Gerow

Background

Jorge A. Bar-Levy and Lenis Pagan, both proceeding without lawyers, brought claims under 42 U.S.C. § 1983, a federal law that permits claims against people acting under state authority for violating constitutional rights. They sued Joanne Gerow, the Town of Liberty, and seven unidentified town officers. They alleged violations of the Fourth and Fourteenth Amendments based on conduct they said was motivated by their Jewish faith.

The complaint alleged that Gerow and others took Bar-Levy’s two German Shepherds; planted evidence and poisonous or other substances; caused Pagan’s arrest without probable cause; and seized more than 200 of Pagan’s farm animals. The plaintiffs also alleged that Liberty had policies, practices, or customs of ignoring unlawful conduct by town officers and targeting Jewish residents. Neither plaintiff opposed the motion to dismiss, so the court treated the motion as unopposed.

Rule 12(b)(6) standard

The court applied Rule 12(b)(6), which asks whether a complaint alleges enough factual matter to make a claim legally plausible. The court was required to read the pro se complaint liberally, but it was not required to rewrite the complaint or assume facts that were not alleged. The court also declined to consider factual statements and documents submitted with defendants’ motion that were outside the complaint.

Fourth Amendment claims against the individual defendants

The court construed the complaint as asserting Pagan’s false-arrest claim and claims by both plaintiffs involving unreasonable searches or seizures.

For the false-arrest claim, the court held that the complaint did not plausibly allege that Gerow or the officers affirmatively caused or instigated Pagan’s arrest. The complaint alleged that Gerow made false accusations, but it did not establish that the accusations or other information caused the arrest. The court therefore granted defendants’ motion to dismiss the false-arrest claims.

For Bar-Levy’s dogs, the court held that the complaint did not provide facts about where the seizure occurred, whether Bar-Levy was present, or whether Gerow knew he owned the dogs. Without those facts, the court could not reasonably infer that the seizure involved a situation protected by the Fourth Amendment. The court granted defendants’ motion to dismiss Bar-Levy’s search-and-seizure claims.

For Pagan’s farm animals, the court noted that the complaint did not allege that Gerow or the officers were involved in the seizure. The court further held that, even if they were involved, the complaint did not say whether the seizure occurred without a warrant, under a defective warrant, or identify who conducted it. The court granted defendants’ motion to dismiss Pagan’s wrongful-search-and-seizure claim.

The court separately dismissed the claims arising from the alleged spreading of poisonous substances because the allegations did not raise a right to relief above the speculative level. The opinion does not attach a prejudice qualifier to that dismissal.

Fourteenth Amendment claims against the individual defendants

The court construed the complaint as asserting a selective-enforcement claim under the Equal Protection Clause. It held that the plaintiffs did not identify a similarly situated person who received more favorable treatment. The court therefore granted defendants’ motion to dismiss the selective-enforcement claims.

The court also addressed the plaintiffs’ due-process allegations. It held that, to the extent those allegations duplicated the Fourth Amendment claims, the due-process claims were dismissed with prejudice.

Claims against the Town of Liberty

The plaintiffs alleged that Liberty was responsible for the constitutional violations because of its policies, practices, or customs. Under the rule commonly called municipal liability under Monell, a plaintiff must plausibly allege that an official municipal policy or custom caused the constitutional injury.

The court held that the plaintiffs offered only two alleged incidents and conclusory statements that Liberty had a policy or custom of intimidation, threats, false accusations, failure to prevent unlawful conduct, and false charges against Jewish residents. The court found no factual support establishing such a policy or custom and granted defendants’ motion to dismiss the claims against Liberty.

Leave to amend and disposition

Judge Nelson S. Roman granted defendants’ motion to dismiss. The plaintiffs were granted leave to file an amended complaint by April 6, 2020, as to claims that had not been dismissed with prejudice. If they did not timely amend without good cause, the remaining complaint would be dismissed with prejudice. The opinion directed defendants to answer or otherwise respond to any amended complaint by May 6, 2020.