Platt v. The Incorporated Village of Southampton et al

Filing 26

ORDER granting 9 Motion to Dismiss; denying 20 Motion to Amend/Correct/Supplement. For the reasons stated herein, Dfts' motion to dismiss is granted. All of plff's claims are dismissed with prejudice. Additionally, the Court denies plff's cross-motion to amend the complaint. The Clerk of the Court is directed to mark this matter closed. SO ORDERED. Ordered by Judge Joanna Seybert on 9/21/2009. (Brienza, Lauren)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X BRIAN PLATT, Plaintiff, - against THE INCORPORATED VILLAGE OF SOUTHAMPTON, THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, ROBERT MARK EPLEY, Individually and as Mayor of The Incorporated Village of Southampton, BONNIE M. CANNON, Individually and as Trustee of The Incorporated Village of Southampton, NANCY C. MCGANN, Individually and as Trustee of The Incorporated Village of Southampton, PAUL L. ROBINSON, Individually and as Trustee of The Incorporated Village of Southampton, WILLIAM F. BATES, Individually and as Trustee of The Incorporated Village of Southampton, and WILLIAM WILSON JR., Individually and as Chief of Police of The Incorporated Village of Southampton, MEMORANDUM & ORDER 08-CV-2953 (JS)(ARL)

Defendants. -------------------------------------X APPEARANCES: For Plaintiff: Steven A. Morelli, Esq. Anthony Christopher Giordano, Esq. Law Offices of Steven A Morelli, P.C. One Old County Road, Suite 347 Carle Place, New York 11514 For Defendants: Steven C. Stern, Esq. Miranda, Sokoloff, Sambursky, Slone, Verveniotis, LLP 240 Mineola Boulevard Mineola, New York 11501

SEYBERT, District Judge: INTRODUCTION On July 21, 2008, Plaintiff, Brian Platt ("Platt"), filed

a Complaint against the Incorporated Village of Southampton (the "Village"), the Board of Trustees of the Village (the "Board"), Mayor Robert Mark Epley, Bonnie M. Cannon, Nancy C. McGann, Paul L. Robinson, William F. Bates, and William Wilson Jr. ("Wilson") (collectively, "Defendants"). The Complaint alleges that the

Defendants discriminated and retaliated against him in violation of his rights to free speech, equal protection, and substantive due process under the 14th Amendment. Plaintiff brings his claims

pursuant to 42 U.S.C. § 1983, the American with Disabilities Act of 1990, 42 U.S.C. §§ 12112(b) and 12203(a), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), and supplemental New York State law claims under the Human Rights Law, N.Y. Exec. Law § 290, et seq. Pending before the Court is Defendants' motion to dismiss based on (1) Plaintiff's failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (2) Plaintiff's lack of standing, and (3) the statute of limitations. also seeks permission to amend the Complaint. Plaintiff

For the reasons

stated below, Defendants' motion to dismiss is GRANTED in part and DENIED in part, and Plaintiff's cross-motion for permission to amend is DENIED.

2

BACKGROUND1 Plaintiff is a resident and domiciliary of Suffolk

County, New York, and was a Village employee at the time of the Complaint. (Pl's Comp. ¶ 5.) Plaintiff was a full-time police

officer at the Southampton Village Police Department (the "Police Department"), and was also a member of the Southampton Village Police Benevolent Association Inc. ("PBA"). (Id. at ¶¶ 10, 13.)

Plaintiff alleges that from 2003 through 2006, then Lieutenant, William Wilson ("Wilson") was having an affair with seasonal police officer Kim McMahon ("McMahon"). (Id. at ¶ 16.) Plaintiff claims

that, as a result of his engaging in protected activity, including his reporting of the affair between Wilson and McMahon, he was subjected to a host of civil rights violations. In November 2004, Plaintiff, along with two fellow police officers, met with Village Trustee Harold Steudte ("Steudte"), and informed Steudte about the purported affair between Wilson and McMahon. (Id. at ¶ 17.) The officers complained that because of Id.

this affair Wilson gave McMahon preferential treatment.

Plaintiff has not plead that any retaliatory action was taken by Defendants at that time. Approximately one year later, on November 13, 2005, Plaintiff took medical leave from the Police Department because of a back injury and Post Traumatic Stress Syndrome that he

The Court deems the factual allegations in Plaintiff's Complaint as true for the purposes of this motion. 3

1

acquired during an on-duty incident.

(Id. at ¶ 24.)

On or about

December 27, 2005, Sergeant Christopher Broich filed an EEOC Charge against the Village of Southampton and Lars King, the Chief of Police at the time, alleging discrimination (Id. ¶ 21.) based on race,

disability, and national origin.

The EEOC Charge,

specifically named Plaintiff as a witness stating that "he is an `excellent witness' because he is `privy to information shared in the department concerning promotion opportunities.'" Defendants were served with this Charge. (Id.) (Id. ¶ 22.)

On August 25, 2006, approximately nineteen months after Plaintiff's meeting with Steudte regarding the alleged affair, Wilson, who had been appointed Chief of Police six weeks prior, issued General Order #83 ("Order 83"). (Id. at 25). Order 83 set

operational guidelines for officers on leave from duty for various reasons, including as a result of injury. (Id. at ¶ 25.) It

required officers to report to a supervisor via telephone and remain at home unless permission to leave was granted by the Police Department Administration. claims that this action (Id. at ¶ 26.) by Wilson ¶ 25]. the Plaintiff Collective

violated

Bargaining Agreement ("CBA") between the Village and the PBA, discriminated against him based on his disability, and retaliated against him for being named a witness in Broich's complaint and for reporting Wilson's affair. Although Order (Id. at ¶¶ 25, 27, 28.) 83 was 4 issued on August 25, 2006,

Plaintiff was directed to comply with it commencing on September 7, 2006. Subsequently, on September 12, 2006, Order 83 was amended In connection with the original Order 83,

("Amended Order 83").2

on September 13, 2006, Plaintiff sent Wilson a formal grievance claiming that Order 83 confined him to his home and his Post Traumatic Stress Syndrome was "greatly exacerbated" as a result. (Id. at ¶¶ 38, 39.) Amended Order 83. Wilson provided Plaintiff with a copy of Plaintiff, in addition to the

(Id. at ¶ 42.)

grievance, filed a Charge of Discrimination with the EEOC. (Id. at ¶ 40.) Plaintiff also served grievances to Mayor Epley on

September 18, 2006, and to the Board on September 22, 2006, to which the Mayor denied and the Board never responded. 44, 45.) (Id. at ¶¶

Accordingly, Plaintiff has filed this action seeking Defendants have

relief based on retaliation and discrimination.

moved to dismiss the Complaint in its entirety (1) for failure to set forth a First Amendment, due Process violation, discrimination, or Title VII claim, (2) because Section 1983 claims are timebarred, and (3) because Plaintiff lacks standing. Plaintiff, in

the contrary, has cross-moved to amend the Complaint. DISCUSSION I. Defendant's Motion to Dismiss A. Standard of Review for a Rule 12(b)(6) Motion In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
2

Amended Order 83 was approved by both the Village and the PBA. 5

1955, 167 L. Ed. 2d 929 (2007), the Supreme Court disavowed the half-century old standard set forth in Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.

Ed. 2d 80 (1957), (overruled by Bell Atl. Corp., 127 S. Ct. 1955 (2007). Holding that "Conley's `no set of facts' language has been questioned, criticized, and explained away long enough," the

Supreme Court expressly rejected the standard in favor of a requirement that the plaintiff plead enough facts "to state a claim for relief that is plausible on its face." Bell Atl. Corp., 127 S.

Ct. at 1969, 1974. The Court explained that the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. To be clear, Bell Atlantic does not require

"heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." 1974. The Supreme Court offered further clarification of this standard in a recent decision, explaining that "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 1940 (2009). Ashcroft v. Iqbal, 129 S. Ct. 1937, Id. at

However, "[w]hen there are well-pleaded factual 6

allegations,

a

court

should

assume

their

veracity

and

then

determine whether they plausibly give rise to an entitlement to relief." Id. In applying this standard, the district court must

still accept the factual allegations set forth in the Complaint as true and draw all reasonable inferences in favor of Plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). In deciding a 12(b)(6) motion, the Court is confined to "the allegations contained within the four corners of the

complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998.) instrument Additionally, the Court may examine "any written to [the complaint] or any statements or

attached

documents incorporated in it by reference" as well as any document on which the complaint relies heavily. Chambers v. Time Warner, "Of course, it may

Inc., 282 F.3d 147, 152-153 (2d Cir. 2002).

also consider matter of which judicial notice may be taken under Fed. R. Evid. 201." (2d Cir. 1991). Kramer v. Time Warner, Inc., 837 F.2d 767,773 Consideration of materials beyond those just

enumerated requires conversion of the 12(b)(6) motion to dismiss to one for summary judgment under Rule 56. B. Initial Matters As outlined later in this Order, Plaintiff must See id.

demonstrate that any retaliation or discriminatory treatment that 7

he suffered occurred as a result of his protected activity.

Even

if Plaintiff engaged in protected activity, he can only rely on alleged discriminatory or retaliatory treatment that occurred after he engaged in protected activity to establish his retaliation claims. Defendants correctly point out, however, that at least on

two occasions, Plaintiff pleads allegedly retaliatory treatment that arose before he engaged in protected activity. According to

the Complaint, Plaintiff first engaged in protected activity in November 2004. Therefore, by definition, any alleged mistreatment

by Defendants that occurred before this time could not have been retaliatory. Thus, the Court will not consider as part of

Plaintiff's prima facie case the following: [(1)] On or about October 13th 2003, Wilson accused Plaintiff of throwing out McMahon's reports and threatened to fire him." [and] [(2)] "On or about October 14th 2004, Wilson held a staff meeting. When Plaintiff arrived at the meeting, he was told that he, a senior officer, would be working the midnight shifts because McMahon was reassigned to his shifts. Sergeant Robert Romeo had an intense discussion with Plaintiff about McMahon taking his shifts. After the discussion, Romeo compiled a report stating that Plaintiff started a fight with him; however, no such fight took place. As a result, Wilson removed Plaintiff from the SWAT team, which not only precluded him from receiving at least eight hours of overtime per week, but prevented him from completing the entire in-service SWAT team training course." (Compl. ¶¶ 19-20.) 8

After Defendants filed their motion to dismiss and pointed out the discrepancy in time-frame, Plaintiff filed his memorandum in opposition and attempted to supplement, if not alter, the facts: In May 2003, Plaintiff approached Wilson about the purported extra-marital affair. (Platt Aff. ¶ 2). Plaintiff expressed his concerns of police scheduling, and indicated that Wilson's discretionary authority involving matters of police staffing was clouded by his personal relationship with McMahon, rather than being based on objective criteria, which would be in the best interest of the public and officers under Wilson's control. (Platt Aff. ¶ 3.) (Pl.'s Mem. in Opp'n 16.) Generally, a district court should

decide a motion to dismiss on the complaint alone, excluding additional evidence, affidavits, exhibits, and factual allegations contained in legal briefs or memoranda. York, 210 F.3d 79, 83 (2d Cir. 2000). Friedl v. City of New However, the following

materials may be considered on a Rule 12(b)(6) motion to dismiss: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. In re Merrill Lynch & Co. Research Reports Sec. Litig., 273 F. 9

Supp. 2d 351, 356-57 (S.D.N.Y. 2003) (citations omitted), aff'd on other grounds, Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161 (2d Cir. 2005), cert. denied, 546 U.S. 935, 126 S. Ct. 421, 163 L. Ed. 2d 321 (2005). Neither Plaintiff's memorandum in opposition to the motion or his affidavit fall within these categories. It

escapes the Court how Plaintiff could omit such an integral fact from the Complaint, but it nonetheless, cannot consider it for purposes of deciding this motion. C. Plaintiff's First Amendment Claim In order to establish a First Amendment claim of

retaliation, a public employee must show that "(1) his speech addressed a matter of public concern, (2) he suffered an adverse employment action, and (3) a casual connection existed between speech and adverse employment action, so that it can be said that his speech was a motivating factor in the determination." Pozzi, 363 F.3d 89, 102 (2d Cir. 2003). Cobb v.

Whether speech addresses

a matter of public concern is a question of law to be "`determined by the content, form, and context of a given statement . . . .'" Johnson v. Ganim, 342 F.3d 105, 113 (2d Cir. 2003) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983)). Although reporting a purported affair is, on its face, not a matter for public concern, Plaintiff offers that a closer examination of the statement reveals a different intention. 10

Plaintiff alleges that in the November 2004 meeting in which he informed Steudte about the affair, that he also voiced his concern about McMahon being permitted to work as a plainclothes officer, which was prohibited because she had not yet graduated from the police academy. (Compl. ¶ 5.) Plaintiff argues that this presents an issue of public concern sufficient for the First Amendment claim because an officer serving in such capacity, who has not completed adequate training, poses a threat to public safety. (Pl.'s Mem. in Opp'n 13.) Recently, in Garcetti v. Ceballos, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 547 U.S. 410, 421, 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689 (2006). To determine

whether public employee speech is protected from retaliation under the First Amendment entails two inquiries: (1) "whether the

employee spoke as a citizen on a matter of public concern" and, if so, (2) "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Ruotolo v. City of New York, 514

F.3d 184, 189 (2d Cir. 2008) (quoting Garcetti, 547 U.S. at 418.) Ruotolo involved an NYPD Sergeant with 20 years service when he retired in 2004. In October 1999, Plaintiff was serving as the 11

Training and Safety Officer for the 50th Precinct in the Bronx. When a local newspaper reported possible contamination and health risks at the precinct from underground gasoline storage tanks, Ruotolo was assigned-in his capacity as Safety Officer-to survey employee illnesses and deaths that might be related to this potential environmental hazard. Id. at 186. Shortly thereafter,

Plaintiff submitted his two-page report (the "October 1999 Report") titled "Survey Pursuant to Request," identifying a seemingly large number of cancers, miscarriages, birth defects and other health problems afflicting individuals working at the precinct. Id.

Ruotolo recommended a thorough environmental evaluation, which was later performed. Id. After submitting the report, Ruotolo alleged that he experienced retaliation. The retaliation included:

"frequent reassignments to undesirable shifts and to duties he considered beneath his rank and tenure, denial of use of leave time, transfer to a less desirable precinct, and discipline for trivial or fabricated reasons." Id. at 187. After Ruotolo brought his lawsuit, Plaintiff alleged in amended complaints that the retaliation took additional forms, including "verbal harassment by superior officers, denial of overtime assignments, his first

negative performance review of his career, and excessive discipline for a minor infraction." Id. On Defendant's motion to dismiss

pursuant to Rule 12(b)(6), the court determined that the speech sought to redress personal grievances and did not seek to advance 12

a public purpose; thus, Ruotolo's speech did not constitute speech on a matter of public concern, and the claim was dismissed. id. Similarly, here, Plaintiff's meeting with Steudte, in which he claimed that Wilson gave McMahon preferential treatment in terms of more favorable shifts and overtime hours, primarily sought to address personal grievance with Wilson's conduct rather than advance public safety concerns. Notwithstanding the Court's duty See

to interpret the facts in a light most favorable to Plaintiff, the Court finds that Plaintiff was not acting as a private citizen, but was reporting to his superiors as part of his job as a police officer. Accordingly, the Court DISMISSES Plaintiff's First

Amendment claim. D. Plaintiff's Due Process Claim Plaintiff claims that Order 83 violated his substantive due process rights under the United States Constitution because it infringed on his right to travel, right of free access, right of privacy, right of liberty, freedom of bodily restraint to

compulsion, and freedom to walk or stroll.

"Substantive due

process protects against government action that is arbitrary, conscience shocking, or oppressive in a constitutional sense, but not against a government action that is `incorrect or ill-

advised.'"

Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d

Cir. 1996) (quoting Lowrance v. Achtyl, 20 F.3d 529, 538 (2d Cir. 13

1994)).

To show a violation of substantive due process, plaintiff

must: (1) identify the constitutional right at stake, and (2) demonstrate that the government action was conscience-shocking or arbitrary in the constitutional sense. Little v. City of New York, 487 F. Supp. 2d 426, 443 (S.D.N.Y. 2007) (quoting Lowrance, 20 F.3d at 537). Government actions that have risen to the level of

conscious-shocking behavior typically meet a high bar. Id. (citing Riggins v. Nevada, 504 U.S. 127, 135, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992) (forced administration of antipsychotic drugs absent overriding justification and determination of medical

appropriateness); Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 96 L. Ed. 183 (1952) (forcibly pumping a suspect's stomach); Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 252 (2d Cir. 2001) (gym teacher choking, punching in face, and ramming student's head into bleachers and against metal fuse box). In this case, Plaintiff essentially argues that the Police Department Administration was granted too much discretion under Order 83 to decide when and if to grant permission for an officer to leave his own home. With this unchecked power,

Plaintiff argues, "there was potential for wholly arbitrary and capricious rights." denial of an officer's constitutionally protected

(Compl. ¶ 29 (emphasis added).) Again, interpreting the facts in a light most favorable

to Plaintiff, Plaintiff has failed to demonstrate that the level of 14

discretion granted in Order 83, or its successor Amended Order 83, shocks the conscience of the Court. Certainly, this case cannot be compared to the cases cited by the Court which involved very serious deprivations of constitutional rights. Most important to

the Court's decision, however, is that Plaintiff's arguments are, without exception, speculative. Plaintiff does not allege that he He simply

attempted to leave his home and was denied permission.

argues that the rule could have lead to an arbitrary and capricious decision. Therefore, Plaintiff has failed to demonstrate that he

has suffered any deprivation in violation of his substantive due process rights. E. Accordingly, his due process claim is DISMISSED.

Plaintiff's Claim of Discrimination Under the ADA In order to establish a prima facie case under the ADA,

a plaintiff must show that: "(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability." City of New York, 274 F.3d 740, 747 (2d Cir. 2001). The only disputed issue here is whether Plaintiff, as a result of being subject to Order 83 for approximately one week, and subsequently Amended Order 83, suffered an adverse employment action. What constitutes an adverse employment action depends on Giordano v.

the facts of the particular case; however, it has been determined 15

that an adverse employment action is one in which a "materially adverse change [has occurred] in the terms and conditions of employment." 1997). See Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.

The Second Circuit has suggested that adverse employment

actions specifically include "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand," Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999), none of which Plaintiff has suffered here. Order 83 was issued nine months after Plaintiff took medical leave from the Police Department and applied to all officers on leave of duty. The guidelines of Order 83 required

officers to report via telephone to a supervisor at the beginning and end of each shift time, and to remain available to the supervisor throughout the allotted period. If there was a desire

to leave home for any reason, the officer was required to notify a Department supervisor. Officers on medical leave are paid full

salary as if they were on active duty, and Order 83 merely required that such officers remain in contact with the Department during the designated shift time. Although these requirements may have altered the

characteristics of Plaintiff's duties while on leave, in no way can such be considered "materially adverse." Plaintiff has pled no

facts that a supervisor refused to allow him to leave his home, nor is there any indication that the Order applied differently to 16

Plaintiff than it did to the other officers on leave at that time. The fact that Plaintiff may have been inconvenienced by the Order does not constitute an employment action that is adverse. See

Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) ("To be `materially adverse' a change in working conditions must be `more disruptive than a mere inconvenience or an

altercation of job responsibilities.'" (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993))). As

a result, Plaintiff's ADA claim fails as a matter of law and is DISMISSED. F. Plaintiff's Title VII Claim Among its provisions, Title VII prohibits discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. United States code states: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 17 Section 2000e-3(a) of title 42 of the

42 U.S.C. § 2000e-3 (2000). To establish a prima facie case for retaliation under Title VII, a "plaintiff must demonstrate that `(1) []he was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiff's protected Mack v.

activity and the adverse action taken by the employer.'"

Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003) (quoting Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)). For the same reasons as discussed above, the issuance of Order 83 did not constitute any adverse employment action suffered by the Plaintiff. and is DISMISSED. G. Plaintiff's Equal Protection Claim A violation of the Equal Protection Clause under the Fourteenth Amendment requires that "(1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective 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." Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996) As a result, Plaintiff's Title VII claim fails

(quoting LaTrieste Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)). 18 There is no basis for

such claim here.

Order 83 and Amended Order 83 applied to every Plaintiff was not the only officer

officer on leave from duty.

subject to Order 83, nor was he treated any differently than the others to whom it applied. As a result, Plaintiff's claim alleging an Equal Protection violation must be DISMISSED. H. Standing for Injunctive Relief Plaintiff seeks a permanent injunction preventing

Defendants from requiring him to abide by Order 83. "[A] plaintiff seeking injunctive relief cannot rely on the existence of a past injury, but must show that he or she is likely to suffer future injury." White v. First American Registry, 230 F.R.D. 365, 367

(S.D.N.Y. 2005) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). Defendants argue

that Plaintiff does not have standing to obtain the injunctive relief. The Court agrees. Because Plaintiff is retired from the

Police Department, the Order is no longer applicable to him. Given that Plaintiff is no longer employed by the Defendants, the requested relief is moot, as Plaintiff cannot show that he is likely to suffer future injury from the restrictions of Order 83 or the Department; therefore, Plaintiff lacks standing to obtain injunctive relief. DISMISSED. I. Individual Defendants Defendants argue that all claims against the Board, Mayor 19 Plaintiff's claim for injunctive relief is

Epley, and the individually named board members must be dismissed. The Court agrees. Plaintiff's sole allegation against Epley is Likewise, the claim against the

that he denied his grievance.

Board, based on failure to respond to a grievance which the Plaintiff submitted, carries with it no additional allegations whatsoever. Plaintiff fails to plead any facts that support

potential wrongdoing by the Board or any individual member of the board. As a result, Plaintiff's claims against Mayor Epley and the Board members are DISMISSED. II. Plaintiff's Cross-motion to Amend Plaintiff seeks to amend his Complaint because "newly discovered evidence has come to light that was unavailable at the time of the original complaint." Federal Rule of Civil Procedure (Pl.'s Aff. in Opp'n ¶ 9.) 15(a) generally governs the

amendment of pleadings.

Rule 15(a) provides that

[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given as justice so requires. Fed. R. Civ. P. 15(a); see also Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 259 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). Leave to amend should be denied only because

of undue delay, bad faith, futility, or prejudice to the non-moving party, and the decision to grant or deny a motion to amend rests 20

within the sound discretion of the district court.3

Aetna Cas. and

Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir. 2005); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A. Undue Delay It is well established that courts will grant leave to amend where the moving party can demonstrate that they have not unduly delayed in proposing the amendment, and provide a valid justification for any such delay. See Assam v. Deer Park Spring The Second

Water, Inc., 163 F.R.D. 400, 406 (E.D.N.Y. 1995).

Circuit has stated that "Rule 15(a) requires courts to grant leave freely . . . where justice so requires, and [] have held repeatedly that mere delay is not, of itself, sufficient to justify denial of a Rule 15(a) motion . . . ." Parker v. Columbia Pictures Indus.,

204 F.3d 326, 339 (2d Cir. 2000) (internal citations omitted). With regard to Plaintiff's amendment here, the Court finds that Plaintiff did not unduly delay in seeking leave to amend. Less than five months passed between the filing of the Such a delay,

original Complaint and Plaintiff's motion to amend.

although not insignificant, is much less than other cases where courts have permitted amendment. See Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d at 653 n.6 (citing, for example, State The Court observes that bad faith is not seriously at issue in this case. Therefore, the Court will only discuss undue delay, prejudice to the Defendant, and futility. 21
3

Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 845-46 (2d Cir. 1981) (amendment allowed after three-year interval); Howey v. United States, 481 F.2d 1187, 1188-89 (9th Cir. 1973) (amendment allowed after five-year interval and on second day of trial); Middle Atl. Utils. Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 383 (2d Cir. 1968) (amendment allowed after three-year interval and notice of trial readiness); Zeigan v. Blue Cross and Blue Shield, 607 F. Supp. 1434, 1438 (S.D.N.Y. 1985) (amendment allowed after

three-year interval); Green v. Wolf Corp., 50 F.R.D. 220, 223 (S.D.N.Y. 1970) (amendment allowed after four-year interval). Furthermore, Plaintiff has offered reasonable justification for the desire to amend, offering that new evidence has been discovered since the original complaint. demonstration of undue delay. B. Prejudice to Defendant Defendants do not argue that they would be prejudiced if Plaintiff is permitted to amend his Complaint at this time. Plaintiff offers additional facts in the Proposed Amended Complaint that, at most, would compel additional discovery by Defendants. As a general matter, "the adverse party's burden of undertaking discovery, standing alone, does not suffice to warrant denial of a motion to amend a pleading." United States v. Continental Ill. Accordingly, the Court finds no

Nat'l Bank & Trust of Chicago, 889 F.2d 1248, 1255 (2d Cir. 1989). Therefore, the Court finds that granting Plaintiff's motion to 22

amend would not unfairly prejudice Defendant. C. Futility of the Amendment Leave to amend a complaint need not be granted when amendment would be futile. (2d Cir. 2003). See Ellis v. Chao, 336 F.3d 114, 126

"In this Circuit, an amendment is considered

futile if the amended pleading fails to state a claim, or would be subject to a motion to dismiss on some other basis." Horvath v.

Daniel, 423 F. Supp. 2d 421, 423 (S.D.N.Y. 2006) (quoting Tri-State Judicial Servs., Inc. v. Markowitz, 624 F. Supp. 925, 926 (E.D.N.Y. 1985) (internal quotation marks omitted)). When determining

whether amendment would be futile, a court must accept as true all well-leaded allegations and draw all inferences in favor of the pleader. See Id. at 423. Defendants argue that, even taking the Proposed Amended Complaint as true, Plaintiff still fails to assert a valid claim, and the amendment is "legally deficient." 1.) (Defs.' Mem. in Reply

After reviewing the Proposed Amended Complaint in detail, the Even presuming all of the asserted

Court agrees with Defendants.

facts to be true, Plaintiff's Proposed Amended Complaint could not withstand a motion to dismiss pursuant to Rule 12(b)(6). As a

result, it is futile to allow Plaintiff to amend his Complaint, and his motion to amend is DENIED. CONCLUSION For the reasons stated herein, Defendants' motion to 23

dismiss is GRANTED.

All of Plaintiff's claims are DISMISSED with

prejudice. Additionally, the Court DENIES Plaintiff's cross-motion to amend the Complaint. this matter CLOSED. The Clerk of the Court is directed to mark

SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: September 21 , 2009 Central Islip, New York

24