Segreto et al v. The Town of Islip et al
Filing
46
MEMORANDUM & ORDER granting 16 Motion to Dismiss; granting 17 Motion to Dismiss for Failure to State a Claim; denying 22 Motion for Summary Judgment; granting 25 Motion to Dismiss. Defendants' motions to dismiss (Docket Entries 16, 17, 25) are GRANTED. Defendants' motions are GRANTED with respect to the following claims, which are DISMISSED WITH PREJUDICE: (1) Claims that Plaintiffs were injured by the actions and judgments in state court proceedings; (2) Claims aga inst the DEC and against Scully and Rail in their official capacities; (3) Claims regarding any alleged age discrimination; and (4) Claims that the Town or the County violated the Takings Clause. Defendants' motions are also GRANTED with res pect to the following claims, which are DISMISSED WITHOUT PREJUDICE: (1) Claims of a regulatory taking against the State Defendants; (2) Claims of illegal searches against the State Defendants; (3) Claims of denial of procedural due process against the State Defendants; and (4) Claims that the Defendants conspired against Plaintiffs pursuant to 42 U.S.C. § 1985. With respect to those claims dismissed without prejudice, the Court is mindful that pro se litigants should gener ally be afforded leave to file an amended complaint unless their claims are frivolous. Accordingly, Plaintiffs may file an amended complaint on or before April 1, 2013. Plaintiffs are also ORDERED TO SHOW CAUSE on or before March 15, 2013 why the ir claims of substantive due process and equal protection against the State Defendants should not also be dismissed for the reasons outlined in this Memorandum and Order. If Plaintiffs fail to do so, their claims will be dismissed. The State Defendan ts shall file a response on or before March 29, 2013. Finally, Plaintiffs' motion for summary judgment (Docket Entry 22) and letter request for a class action (Docket Entry 42) are DENIED. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiffs. So Ordered by Judge Joanna Seybert on 2/12/13. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ANTHONY J. SEGRETO and LINDA M.
SEGRETO,
Plaintiffs,
-againstTHE TOWN OF ISLIP, THE COUNTY OF
SUFFOLK, NEW YORK STATE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION,
PETER A. SCULLY as director of
NYSDEC Region 1, PETER A. SCULLY,
individually, VERNON RAIL, as
attorney for NYSDEC Region 1, and
VERNON RAIL, individually,
MEMORANDUM & ORDER
12-CV-1961(JS)(WDW)
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Anthony J. Segreto, pro se
135 Bluepoint Road
Oakdale, NY 11769
Linda M. Segreto, pro se
512 Third Street
Troy, NY 12182
For Defendant Town:
John Ryan DiCioccio, Esq.
Islip Town Attorney’s Office
655 Main Street
Islip, NY 11751
For Defendant County:
Leonard G. Kapsalis, Esq.
Suffolk County Department of Law
100 Veterans Highway
P.O. Box 6100
Hauppauge, NY 11788
For Defendants DEC,
Scully, and Rail:
Issac C. Cheng, Esq.
N.Y.S. Attorney General’s Office
120 Broadway, 26th Floor
New York, NY 10271
SEYBERT, District Judge:
Pro
se
Plaintiffs
Anthony
J.
Segreto
and
Linda
M.
Segreto (collectively “Plaintiffs”) bring this action against
the
Town
of
“County”),
New
Conservation
official
Islip
(the
York
(“DEC”),
capacity
“Town”),
State
Peter
as
DEC
the
County
Department
A.
Scully
Region
in
1
of
of
Suffolk
(the
Environmental
his
individual
Director
and
(“Scully”
or
“Director”), and Vernon Rail (“Rail” and together with the DEC
and
Scully
the
“State
Defendants”)
in
his
individual
and
official capacity as counsel for DEC Region 1 seeking relief
under 42 U.S.C. §§ 1983 and 1985 and the Racketeer Influenced
and Corrupt Organizations Act of 1970 (“RICO”), as codified by
18 U.S.C. § 1961 et seq.
The Town, the County, and the State
Defendants
“Defendants”)
(collectively
have
each
moved
to
dismiss the Complaint for lack of jurisdiction and failure to
state a claim.
For the reasons that follow, Defendants’ motions
are GRANTED.
BACKGROUND1
On February 14, 2006, Plaintiffs purchased a home and
approximately 3.2 acres2 of surrounding water-front property at
1
The following facts are taken from Plaintiffs’ Complaint and
the documents referenced therein and are presumed to be true for
the purposes of this Memorandum and Order.
2
135
Bluepoint
(Compl. ¶ 9.)
Road
in
Oakdale,
New
York
(the
“Property”).
Plaintiffs allege that for about the last seven
years, the Town has been flooding the Property with contaminated
cesspool water and toxic liquids causing pollution and erosion.
(Compl.
¶¶
11-13.)
Slow
but
steady
erosion
eventually
culminated in a “washout” during a heavy rainfall in October
2005.
(Id. ¶ 31.)
the erosion.
Now, saltwater tides also have accelerated
(Id.)
Furthermore, Plaintiffs claim that the Town “created”
a
parcel
of
land
(“Parcel
#37”
or
“Deer
improperly exercised ownership over it.
Lake”)
and
then
Plaintiffs allege that
under the “Patent Law of August 26, 1930 - Liber 1524” a nonbuildable
lot
contained
within
surrounding
buildable
properly belongs to the owners of the buildable lots.
¶ 24.)
(Id.
A map from 1909 shows that Deer Lake was a 1/3-acre non-
buildable
lot
Property.
“Parcel
lots
surrounded
(Id. ¶ 32.)
#37,”
determined
transferred
ownership
to
Patent Law.
by
eight
buildable
lots
of
the
In 1977, the Town named Deer Lake
that
the
the
County
parcel
in
was
un-owned,
contravention
of
and
the
(Id. ¶ 50.)
Moreover, the County has also contributed to flooding
through its creation of a toxic recharge basin which empties
2
It is unclear from the face of the Complaint how much land
Plaintiffs currently own versus how much has been subject to
erosion.
3
onto the Property.
(Id. ¶ 14.)
The recharge basin consists of
a five-pond ecosystem created by the County which, rather than
filtering
toxic
out
toxins,
recharge
¶ 25.)
essentially
water
directly
spreads
onto
water
Plaintiff’s
and
directs
land.
(Id.
The Town and the County refuse to sample the soil, and
Plaintiffs believe that the toxins may be carcinogenic.
(Id.
¶¶ 27-28.)
Plaintiffs further allege that due to the continual
state of flooding, the DEC has determined that portions of the
Property are “wetlands” under the New York Tidal Wetlands Act.
This, they claim, is erroneous, as the land is not “wetlands,”
but instead the Town and the County have artificially created a
state of perpetually wet land on the Property.
As
a
result
of
the
DEC’s
(Compl. ¶ 17.)
determination
that
the
Property is “wetlands,” it will not permit Plaintiffs to repair
.
.
.
bulkheads
and
Defendant
Scully
Plaintiffs’ bulkhead permit for 7 years.”
has
“held
up
(Id. ¶ 39.)
the
The
bulkheads were permitted to fall into disrepair by the elderly
former
owners
of
the
Property.
(Id.
¶
16.)
Rather
than
understanding that the former owners were unable to remedy the
situation and maintain the bulkheads, the DEC has discriminated
against
the
former
owners
wrongdoing against Plaintiffs.
and
continued
(Id. ¶ 52.)
4
this
pattern
of
In addition, Plaintiffs must now apply for permits to
take particular actions on the Property, and the DEC has issued
various violations against Plaintiffs for “putting a shovel in
the soil” and filling in land where trees uprooted.
(Id. ¶ 51.)
In fact, as more fully described below, the DEC brought suit
against Plaintiffs in an administrative action for violating the
New York State Tidal Wetlands Act.
(Id.; Cheng Decl. Ex. A.)
In the process of prosecuting these claims, the State Defendants
have denied Plaintiffs’ hearings (Compl. ¶ 57), Scully has made
every effort to deny Plaintiffs their day in court (id. ¶ 59),
and Rail has repeatedly moved to forego a hearing (id. ¶ 60).
Plaintiffs
also
allege
that
the
DEC
has
conducted
several
illegal searches of the Property and on one occasion the “NYSDEC
CEO” entered the Property, conducted a search, and issued a
citation
for
putting
wood
chips
down.
(Id.
¶
55.)
In
conducting these actions, the State Defendants have acted in an
arbitrary
and
capricious
manner,
singling
out
Plaintiffs’
Property while allowing similarly situated neighbors permits.
(Id. ¶ 64.)
Finally,
Plaintiffs
allege
that
Defendants
have
conspired to violate their constitutional rights (id. ¶ 34) and
that the State Defendants’ actions demonstrate a RICO operation
requiring this Court to order an investigation (id. ¶¶ 47, 6163).
5
PROCEDURAL PROCESS
There
have
been
several
actions
and
proceedings
in
various courts pertaining to the Property and the parties which
bear particular relevance to Plaintiffs’ claims in the case at
bar.
First, the DEC commenced an administrative action against
Plaintiffs in 2007 charging Plaintiffs with violating the New
York State Tidal Wetlands Act by clearing vegetation and causing
“the placement of fill.”
(Cheng. Decl. Ex. A.)
The DEC sought
an order without a hearing, pursuant to 6 N.Y.C.R.R. 622.12,
which the Commissioner of the DEC granted on February 1, 2008.
(Id.)
Plaintiffs
then
commenced
an
action
in
the
Supreme
Court of the State of New York, County of Suffolk pursuant to
N.Y.C.P.L.R. Article 78 against the Town, the County, Scully and
Rail on February 15, 2008.
(DiCioccio Decl. Ex. B.)
In that
action, Plaintiffs sought to obtain “relief from flooding of
their property which they contend has been caused by actions of
the Respondents” and to challenge the DEC’s decisions to enforce
the wetlands regulations.
the
action,
finding
that
(Id.)
The Supreme Court dismissed
Article
78
was
not
the
proper
proceeding for the relief sought and that “the Petitioners have
failed
to
identify
determination.
any
basis
(Id. Ex. C.)
6
to
disturb”
the
DEC’s
On February 4, 2009, Plaintiffs commenced a similar
action,
again
in
the
New
York
State
Supreme
Court,
Suffolk
County, this time against the Town and the County only.
Ex. D.)
(Id.
Plaintiffs re-alleged their claims regarding flooding
of the property, including flooding from saltwater, and claimed
that
the
was
through
Property
County
a
Plaintiffs
also
artificially
faulty
alleged
sewer
that
the
diverting
water
drainage
system.
Town
the
and
committed theft by claiming ownership of Deer Lake.
onto
the
(Id.)
County
had
(Id.)
The Town and the County separately moved for summary
judgment.
The Supreme Court granted summary judgment in favor
of the County on March 14, 2011, finding that Mr. Segreto’s
deposition testimony in that case and the County’s submissions
established that Plaintiffs did not have any cognizable claims
against the County.
Supreme
Court
also
(Id. Ex. E.)
denied
In that same Order, the
Plaintiffs’
motion
for
declaratory
judgment in which it declared that the Plaintiffs own Deer Lake
because their deed at the time of purchase did not include said
parcel.
(Id.)
On
November
11,
2011,
the
Supreme
Court
granted
summary judgment in favor of the Town, holding that the Town was
immune
from
claims
regarding
negligent
design
of
the
sewer
system, that claims regarding flooding from saltwater were timebarred, and that Plaintiffs’ claims with respect to Deer Lake
7
were without merit because Plaintiffs did not have an ownership
interest in it.3
(Id. Ex. F.)
DISCUSSION
Liberally
construing
the
Complaint,
Plaintiffs
have
alleged: (1) injury by the state court; (2) the Town and the
County violated the Takings Clause by wrongfully flooding the
property and transferring ownership of Deer Lake; (3) the State
Defendants violated the Takings Clause by wrongfully flooding
the property, denying Plaintiffs of procedural due process, and
acting arbitrarily and capriciously in regulating Plaintiffs’
Property;
(4)
the
State
Defendants
have
conducted
illegal
searches on the Property; (5) the State Defendants have engaged
in age discrimination; (6) the State Defendants have potentially
violated RICO and thus the Court should order an investigation;
and (7) the Defendants have conspired to violate Plaintiffs’
constitutional rights.
Defendants have each moved to dismiss the Complaint,
arguing
that
this
Court
lacks
jurisdiction;
that
Plaintiffs’
claims are barred by the Eleventh Amendment and the doctrines of
res judicata and collateral estoppel; and that Plaintiffs have
otherwise failed to state a claim.
3
The Court will first address
Plaintiffs’ subsequent submissions to this Court and exhibits
in support of the DEC’s motion to dismiss indicate that
Plaintiffs have sought to appeal the Supreme Court’s decisions.
(See, e.g., Docket Entry 30; see generally Cheng Decl.)
8
the standards of review before turning to the jurisdictional and
substantive claims.4
I. Standards of Review
A.
Standard of Review under Rule 12(b)(1)
“A
case
is
properly
dismissed
for
lack
of
subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
resolving
a
motion
jurisdiction,
materials
questions.
to
the
Court
beyond
the
dismiss
may
for
lack
consider
pleadings
to
of
subject
affidavits
resolve
In
matter
and
other
jurisdictional
See Morrison v. Nat’l Australia Bank Ltd., 547 F.3d
167, 170 (2d Cir. 2008).
The Court must accept as true the
factual allegations contained in the Complaint, but it will not
draw
argumentative
inferences
in
favor
of
Plaintiff
because
subject matter jurisdiction must be shown affirmatively.
See
id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1998); Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
A plaintiff asserting subject matter jurisdiction has
the burden of proving by a preponderance of the evidence that it
4
The State Defendants have filed only a partial motion to
dismiss.
The State Defendants have not addressed Plaintiffs’
equal protection claims or their claims regarding a violation of
the Takings Clause through wrongful flooding.
9
exists.
Makarova, 201 F.3d at 113.
Pro se plaintiffs, although
entitled to a more liberal pleading standard, must still comport
with the procedural and substantive rules of law.
See Jedrejcic
v. Croatian Olympic Comm., 190 F.R.D. 60, 69 (E.D.N.Y. 1999).
B.
Standard of Review under Rule 12(b)(6)
In
Court
deciding
applies
a
Rule
12(b)(6)
“plausibility
“[t]wo working principles.”
motions
standard,”
to
which
dismiss,
is
the
guided
by
Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court
must
accept
“inapplicable
all
to
allegations
legal
as
First, although the
true,
conclusions;”
this
thus,
“tenet”
is
“[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.
Iqbal, 556 U.S. at 678;
Second, only complaints that
state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.
Iqbal, 556 U.S. at 679.
Determining whether
a complaint does so is “a context-specific task that requires
the
reviewing
common sense.”
court
to
draw
on
its
judicial
experience
and
Id.; accord Harris, 572 F.3d at 72.
Furthermore,
in
deciding
a
motion
to
dismiss,
the
Court is confined to “the allegations contained within the four
corners of [the] complaint.”
Shield,
152
F.3d
67,
71
Pani v. Empire Blue Cross Blue
(2d
10
Cir.
1998).
This
has
been
interpreted
Complaint,
broadly
any
Complaint
by
to
include
statements
reference,
or
any
any
document
document
on
to
the
incorporated
documents
attached
in
the
which
the
Complaint
heavily relies, and anything of which judicial notice may be
taken.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53
(2d Cir. 2002) (citations omitted); Kramer v. Time Warner, Inc.,
937 F.2d 767, 773 (2d Cir. 1991).
II.
Jurisdiction and Standing
Before the Court may address the substantive issues of
this
case,
it
is
necessary,
first,
to
determine
whether
Plaintiffs have standing to bring their claims and whether the
Court has subject matter jurisdiction to hear them.5
A.
Rooker-Feldman
The Town and County Defendants argue that this Court
does not have subject matter jurisdiction over many, if not all,
of
Plaintiffs’
claims
against
them
because
Plaintiffs
have
previously litigated their case in state court and Plaintiffs’
federal
claims
judgment.
they
say,
state
court
(Docket Entries 16-9 at 14-15, 17-8 at 9-10.)
Thus,
the
essentially
seek
Rooker-Feldman
5
to
appeal
doctrine
the
bars
this
action.
Defendant County asserts that this Court lacks subject matter
jurisdiction because Plaintiffs have not adequately alleged any
facts constituting deprivation of a federal right pursuant to 42
U.S.C. § 1983. However, such an argument is more appropriately
categorized as failure to state a claim than a lack of subject
matter jurisdiction.
See HBP Assocs. v. Marsh, 893 F. Supp.
271, 275 (S.D.N.Y. 1995).
11
Plaintiffs
counter
that
this
case
is
about
Defendants’
violations of Plaintiffs’ constitutional rights, which have not
previously been addressed by any court.
(Docket Entry 24 at 4.)
The Rooker-Feldman doctrine “establishes the principle
that federal district courts lack jurisdiction over suits that
are,
in
substance,
appeals
from
state-court
judgments.”
MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 362
(E.D.N.Y. 2010).
Courts in this Circuit typically apply four
factors to determine whether Rooker-Feldman bars a federal suit,
namely that: (1) plaintiff is a state court loser; (2) plaintiff
complains of injuries caused by the state court judgment; (3)
plaintiff seeks review of the state court judgment; and (4) the
state
court
judgment
proceedings began.
was
rendered
before
district
court
Id.
Here, there is no question that the first and fourth
elements have been satisfied.
statements
that
Plaintiffs
The Complaint is replete with
previously
brought
Article
78
and
state court actions, that Plaintiffs lost in those actions, and
that the state court rendered judgments which are now on appeal.
(Compl. ¶¶ 68, 71.)
final,
even
an
Rooker-Feldman.
Further, and although the judgments were
interlocutory
decision
would
be
MacPherson, 738 F. Supp. 2d at 363.
subject
to
Thus, the
fact that Plaintiffs are currently in the process of appealing
12
their state court losses does not prevent application of the
Rooker-Feldman doctrine.
The more nuanced inquiry in this case pertains to the
element of complaining of injuries caused by the state court
judgment.
Near the very beginning of the Complaint, Plaintiffs
allege that “the New York State Court System . . . denied the
Plaintiffs’ their basic U.S. Constitutional Rights.”
¶ 5.)
(Compl.
Later, they claim that a state court employee discarded
important and relevant information necessary for it to make a
proper determination regarding their claims of trespass.
¶¶ 69-71.)
(Id.
These allegations raise direct issues with the state
court judgment, and fairly explicitly ask that this Court remedy
these injuries.
This is the very type of claim that the Rooker-
Feldman doctrine bars.
(court
lacked
improperly
MacPherson, 738 F. Supp. 2d at 363-64
jurisdiction
issued
temporary
to
hear
claims
restraining
violated plaintiffs’ due process rights).
that
the
address
Complaint
injuries
raises
caused
by
that
orders
state
and
court
thereby
Thus, to the extent
any
allegations
that
this
Court
the
state
judgments,
these
court
claims are DISMISSED WITH PREJUDICE for lack of subject matter
jurisdiction.
However, Plaintiffs also raise a wide range of other
claims against Defendants.
Certainly, Plaintiffs’ claims and
factual assertions have some apparent overlap with those they
13
brought
before
the
state
court.
For
instance,
in
both
proceedings, Plaintiffs brought claims against the Town and the
County relating to flooding of their property.
court
action,
Plaintiffs
however,
have
in
alleged
the
action
constitutional
U.S.C. § 1983 (“Section 1983”).
Unlike the state
before
this
violations
Court
under
42
The case law is clear that
“recasting [a] complaint in the form of a civil rights action
pursuant to 42 U.S.C. § 1983” does not avoid the Rooker-Feldman
bar.
Fariello v. Campbell, 860 F. Supp. 54, 65 (E.D.N.Y. 1994).
Whether the doctrine bars the subsequent Section 1983 federal
action
depends
upon
whether
the
Section
1983
claims
“inextricably intertwined” with the state court judgment.
are
Id.
While some courts have defined particular standards to
determine the meaning of “inextricably intertwined,” id., others
have found that the phrase has no independent meaning, Hoblock
v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 86-87 (2d Cir.
2005).
What
doctrine
is
has
become
independent
clear
from
estoppel and res judicata.
is
that
doctrines
the
such
Rooker-Feldman
as
collateral
Hoblock, 422 F.3d at 92; see also
McKithen v. Brown, 481 F.3d 89, 97-98 (2d Cir. 2007) (“[T]he
applicability of the Rooker-Feldman doctrine turns not on the
similarity
between
the
party’s
state-court
and
federal-court
claims . . . but rather on the causal relationship between the
state-court judgment and the injury of which the party complains
14
in federal court.”) (emphasis in original).
In Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., the United States Supreme
Court narrowed the previously broad applicability of the RookerFeldman doctrine and explained that it “is confined to cases of
the
kind
from
which
the
doctrine
acquired
its
name:
cases
brought by state-court losers complaining of injuries caused by
state-court
proceedings
judgments
commenced
rendered
and
before
inviting
rejection of those judgments.”
the
district
district
court
court
review
and
544 U.S. 280, 284, 125 S. Ct.
1517, 161 L. Ed. 2d 454 (2005).
Thus, where, as here, Plaintiffs re-raise a number of
the
claims
complaining
previously
of
injuries
raised
in
caused
state
by
the
court,
state
but
court
are
not
judgment,
collateral estoppel and res judicata may present a bar, but the
Rooker-Feldman doctrine does not.
See Glatzer v. Barone, 614 F.
Supp. 2d 450, 465 (S.D.N.Y. 2009); see also McKithen, 481 F.3d
at 98 (“[A] party is not complaining of an injury ‘caused by’ a
state-court judgment when the exact injury of which the party
complains in federal court existed prior in time to the statecourt proceedings, and so could not have been ‘caused by’ those
proceedings.”) (emphasis in original).
will address these issues infra.
15
Accordingly, the Court
B.
Eleventh Amendment
The
State
Defendants
assert
that
this
Court
lacks
subject matter jurisdiction over several of Plaintiffs’ claims
against them pursuant to the Eleventh Amendment of the United
States
Constitution.
Under
the
Eleventh
Amendment,
“[t]he
Judicial Power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or
by
Citizens
or
Subjects
of
any
Foreign
State.”
Thus,
“[p]rivate citizens may not maintain an action in federal court
against a State itself, or against a state agency, unless the
State has waived its sovereign immunity.”
Baker v. Dep’t of
Envtl. Conservation of State of N.Y., 634 F. Supp. 1460, 1462
(N.D.N.Y. 1986).
The
State
Defendants
argue
that
Plaintiffs’
claims
under 42 U.S.C. §§ 1983 and 1985 against the DEC and for damages
against Defendants Scully and Rail in their official capacities
are barred by the Eleventh Amendment.
To begin, the DEC is an
arm of the state, and thus, the Eleventh Amendment applies to
the DEC with the same force as though Plaintiffs had asserted
the claims directly against New York State.
See Salvador v.
Lake George Park Comm’n, No. 98-CV-1987, 2001 WL 1574929, at *2
(N.D.N.Y.
Mar.
28,
2001);
Baker,
634
F.
Supp.
at
1462-63.
Likewise, the Eleventh Amendment bars suits for monetary damages
16
against a state official acting in his or her official capacity.
Salvador,
2001
WL
1574929,
at
*2.
As
such,
the
Eleventh
Amendment may also present a bar to some of Plaintiffs’ claims
against Scully and Rail.
Further,
the
State
has
not
waived
its
sovereign
immunity for claims pursuant to 42 U.S.C. §§ 1983 and 1985.
See
id. at *2 (“The United States Supreme Court has expressly held
that Congress did not intend 42 U.S.C. § 1983 to abrogate the
sovereign immunity of states.”); Baker, 634 F. Supp. at 1463
(same); see also Baird v. N.Y.S. Exec. Dep’t, No. 95-CV-0686,
1998
WL
690951,
at
*2
(N.D.N.Y.
Sept.
28,
1998)
(Eleventh
Amendment presents a bar to a claim under § 1985); Estes-El v.
Town of Indian Lake, 954 F. Supp. 527, 536 (N.D.N.Y. 1997) (same
regarding § 1983).
Therefore, Plaintiffs’ Section 1983 and 1985
claims for monetary damages against the DEC and against Scully
and
Rail
in
their
official
capacities
are
DISMISSED
WITH
PREJUDICE for lack of subject matter jurisdiction.
C.
Standing to Assert Age Discrimination Claim
The State Defendants also assert that Plaintiffs do
not have standing to assert their age discrimination claims.
The Court agrees.
Plaintiffs have essentially sought to allege an age
discrimination
suit
on
behalf
example, the Complaint states:
17
of
the
former
owners.
For
The former owners were in their 80’s and
90’s with Alzheimer’s.
That does not give
the NYSDEC permission to take control and
create natural wetlands and enforce natural
wetland’s laws, because people are too old
to fix bulkheading that was damaged.
That
is discrimination against the elderly; their
property becomes worthless because they
cannot fix the problem and the new owners
can fix the problem, so that the state gets
ownership without paying for the property.
Classic Age Discrimination by the state.
(Compl. ¶ 52.)
However, to properly assert Article III standing to
bring
a
federal
suit,
the
Plaintiffs
must
personal to them for each claim asserted.
allege
to
Accordingly,
bring
they
a
do
claim
for
not
have
injury
to
standing,
injury
Mahon v. Ticor Title
Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012).
attempt
an
Here, Plaintiffs
the
and
former
owners.
Plaintiffs’
age
discrimination claim against the State Defendants is DISMISSED
WITH PREJUDICE.
D.
Standing to Assert RICO Claim
The State Defendants also argue that the Court should
dismiss Plaintiffs’ RICO claim because the Court cannot grant
the relief requested.
Plaintiffs request a “court investigation
of the NYSDEC Region 1 as operating as a RICO” (Compl. ¶ 1) and
that the Court initiate a federal RICO investigation of NYSDEC
Region 1. (Id. ¶¶ 46-47.)
18
Although Defendants have not presented the issue as
such, this is a matter of standing.
See Linda R.S. v. Richard
D., 410 U.S. 614, 619, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973)
(“[A] private citizen lacks a judicially cognizable interest in
the
prosecution
or
nonprosecution
of
another.”);
see
also
Esposito v. New York, 355 F. App’x 511, 512–3 (2d Cir. 2009).
Accordingly, Plaintiffs lack standing to ask this Court to order
the
investigation
against
or
Defendants.
prosecution
See,
e.g.,
of
Tia
a
v.
RICO
criminal
Criminal
action
Investigating
Demand as Set Forth, No. 10–00383, 2010 WL 3064472, at * 3 (D.
Haw. Aug. 5, 2010) (holding that the plaintiff lacked “standing
to ask the court to order the investigation or prosecution of
any individual under the criminal provisions of the RICO Act”).
Therefore,
Plaintiffs’
claim
seeking
the
appointment
of
a
special prosecutor to investigate the RICO criminal action of
all
Defendants
is
DISMISSED
WITHOUT
PREJUDICE
for
lack
of
subject matter jurisdiction.
E.
Subject Matter Jurisdiction over Plaintiff’s Takings
Claims
The Town and the State Defendants also argue that this
Court lacks subject matter jurisdiction over Plaintiffs’ claims
that
Defendants
violated
the
Takings
Clause
of
the
Fifth
Amendment because Plaintiffs’ claims are not ripe for review.
The Takings Clause provides that private property shall not “be
19
taken for public use, without just compensation.”
agrees
that
Plaintiffs’
claims
of
regulatory
The Court
taking
are
not
ripe.
Reading the Complaint liberally, Plaintiffs allege a
number of ways in which Defendants have violated the Takings
Clause.
State
Briefly, they allege that the Town, the County, and the
Defendants
wrongfully
illegally
claimed
flooded
ownership
over
their
Deer
property;
Lake;
and
the
the
Town
State
Defendants’ regulations and enforcement of the New York Tidal
Wetlands Act has prevented them from taking particular action on
their property or using their property as they wish.
Regulatory takings claims, such as those Plaintiffs
raise against the State Defendants in the instant case, are not
ripe
until
two
elements
have
been
satisfied:
(1)
the
state
regulatory “entity charged with implementing the regulations has
reached
a
final
decision
regarding
the
application
of
the
regulations to the property at issue,” Williamson Cnty. Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,
186,
105
S.
Plaintiffs
Ct.
have
3108,
87
sought
L.
Ed.
just
2d
126
(1985),
compensation
(2)
means
by
and
of
“reasonable, certain and adequate” state procedures, id. at 194
(internal quotation marks and citation omitted).
of
land
use,
the
doctrine
of
ripeness
is
intended
premature adjudication of administrative action.”
20
“In the area
to
avoid
Sunrise Dev.,
Inc. v. Town of Huntington, 62 F. Supp. 2d 762, 770 (E.D.N.Y.
1999) (internal quotations omitted).
The
parties
do
not
dispute
the
finality
element.
Rather, the primary inquiry in this case is whether Plaintiffs
have sought just compensation through state procedures.
State
provides
an
adequate
procedure
for
“[I]f a
seeking
just
compensation, the property owner cannot claim a violation of the
Just Compensation Clause until it has used the procedure and
been denied just compensation.”
Comm’n, 473 U.S. at 195.
Williamson Cnty. Reg’l Planning
Further, “[i]t is well-settled that
New York State has a ‘reasonable, certain and adequate provision
for obtaining compensation.’”
Country View Estates @ Ridge LLC
v. Town of Brookhaven, 452 F. Supp. 2d 142, 156 (E.D.N.Y. 2006)
(quoting R-Goshen LLC v. Village of Goshen, 289 F. Supp. 2d 441,
449 (S.D.N.Y. 2003)).
Here, the Complaint makes clear that Plaintiffs have
not
previously
(Compl.
¶
sought
66.)
just
compensation
Accordingly,
before
Plaintiffs’
any
regulatory
court.
takings
claims, i.e., their claims that the State Defendants have gone
“too far” in regulating their property under the New York Tidal
Wetlands Act, are not ripe and this Court does not have proper
jurisdiction
over
these
claims.
See
Clark
v.
Town
of
East
Hampton, 757 F. Supp. 2d 121, 123 (E.D.N.Y. 2010) (federal court
lacks
jurisdiction
over
unripe
21
takings
claims).
Therefore
Plaintiffs’
regulatory
taking
claims
against
the
State
Defendants are DISMISSED WITHOUT PREJUDICE.
To
be
clear,
a
ripeness
regulatory takings claims.
inquiry
applies
only
to
Plaintiffs’ claims that the DEC has
violated a substantive due process claim based on “arbitrary and
capricious government conduct” require only finality to be ripe;
they
do
not
require
that
remedy for compensation.
Plaintiffs
initially
seek
a
state
See Rivervale Realty Co., Inc. v. Town
of Orangetown, N.Y., 816 F. Supp. 937, 943 (S.D.N.Y. 1993).
The
Complaint
and
here
capriciously
in
alleges
that
selectively
the
DEC
prosecuting
acted
arbitrarily
Plaintiffs.
(Compl.
¶ 64.)
The DEC has not raised any argument with respect to this
claim.
Although the Court questions, based on finality, whether
its exercise of subject matter jurisdiction in this case may be
appropriate, the parties have not yet sufficiently addressed the
claim.
assert
Accordingly,
a
substantive
to
the
due
extent
process
that
claim
Plaintiffs
against
seek
the
to
State
Defendants for injunctive relief, or against Scully and Rail in
their
individual
capacities,
Plaintiffs
are
directed
to
show
cause why their claims of a substantive due process violation
against the State Defendants are ripe such that this Court has
subject matter jurisdiction.
Plaintiffs shall file a response
on or before March 15, 2013.
22
III.
Preclusion
With respect to those takings claims that are properly
before
the
Court,
Defendants
have
further
alleged
that
Plaintiffs are precluded from bringing such arguments in federal
court under the doctrines of both collateral estoppel and res
judicata.6
A.
Collateral Estoppel
“The
doctrine
of
collateral
estoppel
or
issue
preclusion applies when a litigant in a prior proceeding asserts
an issue of fact or law in a subsequent proceeding, and the
issue
has
been
necessarily
decided
in
the
prior
action,
is
decisive of the present action, and the litigant had a full and
fair opportunity in the prior action to contest the decision.”
33 Seminary LLC v. City of Binghamton, 869 F. Supp. 2d 282, 298
(N.D.N.Y. 2012).
6
Although it may seem counter-intuitive to apply preclusion
doctrines to instances in which the plaintiffs may have been
required to initially bring the action in state court, the
United States Supreme Court has made clear that plaintiffs may
be precluded from bringing a takings claim in federal court
despite the ripeness requirements of Williamson County. See San
Remo Hotel, L.P. v. City and Cnty. of San Francisco, Cal., 545
U.S. 323, 338, 125 S. Ct. 2491, 162 L. Ed. 2d 315 (2005)
(“Federal courts . . . are not free to disregard 28 U.S.C.
§ 1738 [the Full Faith and Credit Clause] simply to guarantee
that all takings plaintiffs can have their day in federal
court.”). In any event, the Court here has found that
Plaintiffs’ regulatory takings claims are not ripe, and thus
will analyze only whether the remaining takings claims are
precluded.
23
Defendant Town asserts that Plaintiffs’ claim of an
unconstitutional
court
action,
opportunity
premise
taking
and
that
previously
their
was
Plaintiffs
to
takings
necessarily
had
litigate
claim
the
against
allegations regarding Deer Lake.
decided
a
in
the
state
full
and
fair
issue.
the
Plaintiffs
Town
on
their
According to Plaintiffs, in
1977 the Town “wrongfully and illegally” designated Deer Lake as
“Parcel #37,” determined that Parcel #37’s owner was unknown,
and then transferred ownership of the parcel to the County.
(Compl. ¶ 50.)
In the previous state court action, Plaintiffs brought
suit against the Town, seeking monetary damages for the “theft”
of Plaintiffs’ property.
As in the case at bar, Plaintiffs
alleged that the Town wrongfully “parcelized” Deer Lake, even
though the rightful owners were the owners of the surrounding
land.
Town,
(DiCioccio Decl. Ex. D, ¶¶ 17-19.)
the
state
court
necessarily
decided,
According to the
in
granting
the
County summary judgment, that the Town had not robbed Plaintiffs
of Deer Lake because Plaintiffs’ deed had clearly reflected that
the property did not include Deer Lake at the time of purchase.
In ruling on the County’s motion for summary judgment, the Court
also
denied
Plaintiffs’
motion
regarding ownership of Deer Lake.
for
a
declaratory
judgment
(DiCioccio Decl. Ex. E.)
The
state court held that “the record reflects that Deer Lake was
24
not included in the residential real property purchased by the
plaintiffs, a fact actually known to the plaintiffs prior to the
February
2005
closing
by
which
residential real property.”
they
took
title
to
their
(Id.)
The state court’s determination that Plaintiffs do not
own Deer Lake collaterally estops their current takings claim
based on any wrongdoing with respect to Deer Lake against the
Town,
the
County,
and
the
State
Defendants.
By
denying
Plaintiffs’ request for a declaratory judgment, the state court
necessarily determined that Plaintiffs do not own Deer Lake.
To
decide Plaintiffs’ federal claim of an unconstitutional taking
of Deer Lake, this Court would first have to determine whether
Plaintiffs’ have a proprietary interest in Deer Lake.
Home
Loan
Mortg.
Corp.
v.
N.Y.S.
Div.
of
Hous.
See Fed.
and
Cmty.
Renewal, 83 F.3d 45, 47 (2d Cir. 1996) (“[A] taking occurs where
governmental
action
compels
an
owner
to
endure
physical occupation’ of its property.”).
a
‘permanent
Thus, “[t]o decide
plaintiffs’ claims related to these issues, the Court would need
to
revisit
court.”
issues
that
have
already
been
decided
in
state
Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt, P.C.,
701 F. Supp. 2d 340, 350 (E.D.N.Y. 2010).
Plaintiffs also had a full and fair opportunity to
litigate this issue.
“In collateral proceedings, inquiries into
the full and fair ability to litigate focus properly on the
25
litigant’s incentive and ability to present his claims to the
judicial tribunal, rather than on the court’s conduct of the
prior proceeding.”
Bonilla v. Brancato, No. 99-CV-10657, 2002
WL 31093614, at *6 (S.D.N.Y. Sept. 18, 2002).
Plaintiffs not
only had incentive in the previous action, but filed a motion
for
declaratory
judgment.
The
state
court
found
that
the
evidence did not support a claim of ownership of Deer Lake.
(DiCioccio Decl. Ex. E.)
The Town argues that, like Plaintiffs’ takings claim,
collateral estoppel also bars their claims that the Town has
wrongfully flooded Plaintiffs’ property amounting to a taking.
The state court ultimately granted the Town’s motion for summary
judgment and dismissed Plaintiffs’ claims for negligence due to
diversion of surface waters from a negligently designed sewer
system.
The court held that the Town was immune from such suit
and that Plaintiffs “failed to demonstrate that the their [sic]
claims
of
negligent
design
diversion are meritorious.”
went
on
saltwater
to
say
were
that
and/or
(Id. Ex. F.)
Plaintiffs’
time-barred
negligent
and
claims
that
surface
water
However, the Court
of
flooding
Plaintiffs’
claims
from
of
nuisance and trespass were not included in the Notice of Claim,
requiring dismissal.
(Id.)
The County also asserts collateral estoppel, but only
generally cites to the state court’s order granting it summary
26
judgment.
The state court had determined that the County did
not “own[ ], control[ ] or maintain [ ] the public improvements
targeted
by
the
plaintiffs
as
a
cause
of
the
injuries
and
damages to their property” and therefore Plaintiffs could not
maintain an action in negligence, trespass, or nuisance against
the County.
(Id. Ex. E.)
In other words, the state court found
that the County had no involvement in the sewer system which
Plaintiffs claimed had diverted water onto their property.
The state court orders make clear that the only issue
it decided in this regard pertained to whether the Town and
County had acted negligently or tortiously in its design of the
sewer system and flooding of Plaintiffs’ property from surface
water.
The state court did not address saltwater flooding by
the Town, and found that the County was not involved in the
design of the sewer system.
While these issues apparently have
some overlap with the allegations made in Plaintiffs’ federal
complaint,
it
is
not
entirely
clear
whether
Plaintiffs
base
their federal takings claim on flooding from surface water from
the
sewer
allegations
system,
system
in
there
saltwater.
alone.
the
That
Complaint
are
also
(Compl.
¶
is
say,
regarding
allegations
31.)
to
while
the
regarding
Further,
the
there
relevant
flooding
federal
are
sewer
from
Complaint
continually references flooding resultant from an ill-designed
“recharge basin.”
(Id. ¶¶ 14, 26, 45.)
27
Defendants do not make
clear whether the recharge basin is part of, or separate from,
the sewer system Plaintiffs claimed were negligently designed in
the
state
preclusion
court
due
action.
to
In
collateral
showing identity of issue.
any
event,
estoppel
a
bears
party
the
seeking
burden
of
See 33 Seminary LLC, 869 F. Supp. 2d
at 298; Caldwell, 701 F. Supp. 2d at 350.
Neither the Town nor
the County has sufficiently established an identity of issue in
this regard.
court
order
In fact, the County simply cites to the state
without
any
analysis,
failing
to
overcome
its
burden.
Moreover, identity of issue also requires sameness of
legal standards.
See Macfarlane v. Village of Scotia, 86 F.
Supp. 2d 60, 65 (N.D.N.Y. 2000) (“Issues are not identical if
the legal standards governing their resolution are significantly
different.”).
“To establish a takings claim under 42 U.S.C.
§ 1983, [plaintiff] must show (1) a property interest; (2) that
has been taken under the color of state law; (3) without just
compensation.”
court
rulings
HBP Assoc., 893 F. Supp. at 277.
regarding
the
sewer
system,
The state
therefore,
do
not
collaterally estop Plaintiffs’ federal takings claim.
B.
Res Judicata
The preclusion inquiry does not end with collateral
estoppel,
however.
The
Town
28
and
County
also
assert
that
Plaintiffs’ claims are barred by the doctrine of res judicata.
In this respect, the Court agrees.
Res judicata, or claim preclusion, has an even broader
preclusive effect than collateral estoppel.
Supp. 2d at 351.
Caldwell, 701 F.
“Under the doctrine of res judicata, . . . ‘a
final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could
have
been
raised
in
actually litigated.”
that
action’
not
just
those
that
were
Id. (quoting Flaherty v. Lang, 199 F.3d
607, 612 (2d Cir. 1999).
Since the previous action took place in New York State
court, New York law applies.
Caldwell,
701
F.
Supp.
2d
McKithen, 481 F.3d at 103-04;
at
351.
New
York
uses
the
“transactional approach” to res judicata, “barring a later claim
arising out of the same factual grouping as an earlier litigated
claim
even
if
the
later
claim
is
based
on
different
theories or seeks dissimilar or additional relief.”
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
legal
Burgos v.
Thus, “[t]he doctrine
applies only if ‘(1) there is a previous adjudication on the
merits; (2) the previous action involved [the party against whom
res
judicata
is
invoked]
or
its
privy;
and
(3)
the
claims
involved were or could have been raised in the previous action.”
Caldwell, 701 F. Supp. 2d at 351.
29
Here, of course, Plaintiffs brought their state court
action against the Town and the County.
(Dioccio Decl. Ex. D.)
Accordingly, res judicata can only preclude Plaintiffs’ federal
claims
against
these
parties,
not
as
against
the
State
Defendants.
The requirements of res judicata are otherwise met and
Plaintiffs’ takings claim for wrongful flooding is precluded.
Certainly this case arises from the same factual grouping as the
previous case.
See Forjone v. Federated Fin. Corp. of Am., 816
F. Supp. 2d 142, 150 (N.D.N.Y. 2011) (finding that state and
federal cases had same factual grouping); Deng v. Aramark Educ.
Group, Inc., No. 04-CV-0453, 2006 WL 752826, at *5 (E.D.N.Y.
Mar. 23, 2006) (element satisfied where factual allegations in
both complaints were the same).
As the collateral estoppel
analysis demonstrates Plaintiffs have brought essentially the
same
action
as
in
state
constitutional violations.
court,
though
this
time
claiming
Further, the state court’s decision
granting the Town and the County summary judgment were final
adjudications on the merits.
Rodriguez by Rodriguez v. Abbott
Labs., 151 F.R.D. 529, 532 (S.D.N.Y. 1993) (finding that grant
of summary judgment was a final decision on the merits); Deng,
2006 WL 752826, at *4 (same).
Finally, Plaintiffs could have brought their takings
claim
when
they
first
brought
30
their
state
court
action.
Plaintiffs allege that the wrongful flooding from surface water
began as early as the 1970s (Compl. ¶ 25) and that the County’s
errors regarding the recharge basin began in 1983 (Id. ¶ 45).
Furthermore,
Plaintiffs
allege
began in October 2005.
that
(Id. ¶ 31.)
flooding
saltwater
Plaintiffs commenced their
state court action on February 1, 2009.
D.)
from
(DiCioccio Decl. Ex.
Thus, any and all issues relating to Plaintiffs’ taking
claim existed well before Plaintiffs commenced their state court
action.
Accordingly,
Plaintiffs’
takings
claims
against
the
Town and the County regarding wrongful flooding are barred by
res judicata and are DISMISSED WITH PREJUDICE.
IV.
Failure to State a Claim7
As a result of the foregoing adjudications, the only
remaining
claim
conspiracy,
against
which
the
the
Town
Court
will
and
the
County
discuss
below.
is
that
The
of
only
remaining claims against the State Defendants are those that are
not
barred
by
the
Eleventh
Amendment
(because
they
seek
injunctive relief or are alleged against Scully and Rail in
their individual capacities) and are not otherwise precluded -i.e., Plaintiffs’ claims regarding illegal searches, violations
of procedural due process, and violations of their right to
7
The County has raised several arguments regarding Plaintiffs’
failure to state a claim.
The Court has already found that
Plaintiffs’ takings claims against the County are precluded
under collateral estoppel and/or res judicata, and therefore the
Court will not address the County’s additional arguments.
31
equal protection.
The Court will first address the conspiracy
claim
Defendants,
against
all
and
then
turn
to
each
of
the
remaining claims against the State Defendants.
A.
Conspiracy
The Complaint appears to allege a conspiracy by all
Defendants
pursuant
to
42
U.S.C.
§
1985(3).
According
to
Plaintiffs, “it is clear that the three Defendants in essence
have a conspiracy to destroy the Plaintiffs’ home and property
and take control and ownership the residence [sic] and land
without due process.”
As
the
(Compl. ¶ 34.)
court
in
R-Goshen
v.
Village
of
Goshen
explained
To state a claim under 42 U.S.C. § 1985(3),
[a] [p]laintiff must allege, at a minimum,
that Defendants engaged in (1) a conspiracy;
(2) for the purpose of depriving, either
directly or indirectly, any class of persons
of the equal protection of the law, or of
equal privileges and immunities under the
laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a member of the
class is either injured in his person or
property or deprived of any right or
privilege [of] a citizen of the United
States.
289
F.
Supp.
Plaintiffs
2d
must
441,
allege
454
that
(S.D.N.Y.
the
2003).
Defendants
In
addition,
somehow
had
“meeting of the minds” to accomplish this end.
a
See Webb v.
Goord, 340 F.3d 105, 110 (2d Cir. 2003); Manbeck v. Micka, 640
F. Supp. 2d 351, 379 (S.D.N.Y. 2009).
32
Here,
conclusory
the
Complaint
allegations
sets
regarding
forth
any
only
alleged
vague
and
agreement
and
therefore, Plaintiffs’ conspiracy claim pursuant to 42 U.S.C.
§ 1985(3) is DISMISSED WITHOUT PREJUDICE.
See Manbeck, 640 F.
Supp. 2d at 379 (dismissing conspiracy claim based on vague
assertions).
B.
Illegal Searches
Plaintiffs claim that the DEC has conducted multiple
illegal searches, and reference a particular incident in which
the
“NYSDEC
CEO”
entered
Plaintiffs’
Property,
executed
a
search, and cited Plaintiffs for dropping wood chips on the
Property along Ludlow Way.
(Compl. ¶ 55.)
To overcome a motion to dismiss on a claim under 42
U.S.C. § 1983, a plaintiff must sufficiently allege deprivation
of a constitutional right and that the defendant acted “under
color of state law.”
Longo v. Suffolk Cnty. Police Dep’t Cnty.
of Suffolk, 429 F. Supp. 2d 553, 557 (E.D.N.Y. 2006); Pierce v.
Marano, No. 01-CV-3410, 2002 WL 1858772, at *4 (S.D.N.Y. Aug.
13, 2002).
In addition, in order to state a claim for relief
under Section 1983 against an individual defendant, a plaintiff
must allege the personal involvement of the defendant in the
alleged constitutional deprivation.
558.
1983
Longo, 429 F. Supp. 2d at
Thus, a complaint based upon a violation under Section
that
does
not
allege
the
33
personal
involvement
of
a
defendant fails as a matter of law.
See Johnson v. Barney, 360
F. App’x 199, 201 (2d Cir. 2010).
In the case at bar, Plaintiffs allege that the “NYSDEC
CEO” entered and illegally searched the property.
At other
points in the brief, Plaintiffs refer to Scully and Rail by name
or by their respective titles of “Director” and “legal counsel.”
(Compl.
¶¶
59-60.)
sufficiently
pled
Accordingly,
an
Plaintiffs
unconstitutional
Defendants Scully and Rail.
search
have
as
not
against
Plaintiffs’ claim under 42 U.S.C.
§ 1983 for an illegal search is DISMISSED WITHOUT PREJUDICE.
C.
Procedural Due Process
Plaintiffs allege that the Scully and Rail violated
their constitutional right to procedural due process.
¶ 59-60.)
In
violations
Rail
of
moved,
the
the
during
course
of
Environmental
prosecuting
Conservation
administrative
(Compl.
Plaintiffs
Law,
proceedings,
for
Scully
for
an
and
order
without a hearing.
“When
terminated,
a
person
‘procedural
has
due
a
property
process
is
interest
that
is
satisfied
if
the
government provides notice and a limited opportunity to be heard
prior to termination, so long as a full adversarial hearing is
provided afterwards.’”
DeMasi v. Benefico, 567 F. Supp. 2d 449,
454 (S.D.N.Y. 2008) (quoting Locurto v. Safir, 264 F.3d 154, 171
(2d Cir. 2001)).
34
Plaintiffs
here
have
procedural due process claim.
that
the
DEC
had
commenced
not
sufficiently
pled
a
Plaintiffs were provided notice
an
action
against
them,
the
DEC
submitted a motion for an order without a hearing, as they are
entitled
to
pursuant
to
6
N.Y.C.R.R.
622.12,
and
Plaintiffs
submitted a total of five responses to that motion.
Decl. Ex. A.)
(Cheng
The DEC commissioner considered the parties’
submissions and granted the DEC’s motion for an order without a
hearing.
(Id.)
Plaintiffs then challenged the Commissioner’s decision
in an Article 78 proceeding.
is
well
established
that
(Cheng Decl. Ex. B.)
“[a]n
Article
78
The case law
proceeding
perfectly adequate post [-]deprivation remedy.”
‘is
a
DeMasi, 567 F.
Supp. 2d at 454 (quoting Hellenic Am. Neighborhood Action Comm.
v. City of N.Y., 101 F.3d 877, 881 (2d Cir. 1996)); see also
Campo v. N.Y.C. Employees’ Retirement Sys., 843 F.2d 96, 102-03
(2d Cir. 1988) (“[W]e hold that the State of New York, through
Article 78, offered to Mrs. Campo a due process hearing at a
meaningful time and in a meaningful manner.”).
Thus,
Plaintiffs’
procedural
due
process
claims
against the State Defendants are DISMISSED WITHOUT PREJUDICE.
D.
Equal Protection
In addition to the aforementioned claims, Plaintiffs
also
allege
an
equal
protection
35
claim
against
the
State
Defendants.
Plaintiffs
contend
that
the
State
Defendants
refused to address wrongful flooding by the Town (Compl. ¶ 15)
and
have
selectively
prosecuted
Plaintiffs
(id.
¶
64).
Plaintiffs explicitly state that Defendant Scully has singled
out Plaintiffs’ property and selectively refuses to prosecute
the Town.
(Id. ¶¶ 39, 51.)
The State Defendants do not address
the aforementioned allegations, and therefore Plaintiffs’ may
proceed
with
their
equal
protection
claims
against
the
DEC
insofar as they seek injunctive relief, and against Scully and
Rail in their individual capacities.
V.
Plaintiffs’ Motions
Finally,
judgment
summary
Plaintiffs
(Docket
have
filed
22)
Entry
also
and
a
motion
have
for
requested
“permission to add a class action lawsuit” (Docket Entry 42).
Plaintiffs’
summary
judgment
motion
essentially
reiterates the same arguments made in their response briefs to
Defendants’
motions
to
dismiss
and
additional to the Court’s analysis.
dismissed
most
of
Plaintiffs’
does
not
add
anything
Given that the Court has
claims,
Plaintiffs’
motion
for
summary judgment is DENIED.
Furthermore, Plaintiffs’ request to add a class action
lawsuit
seeks
to
bring
suit
on
behalf
of
those
community who were affected by a recent hurricane.
assert
that
after
the
hurricane,
36
the
Town
and
in
their
Plaintiffs
the
County’s
faulty engineering became apparent, and a number of homes and
businesses in the area were greatly affected.
42.)
(Docket Entry
Putting aside the merits of this issue, Plaintiffs, as pro
se litigants, cannot bring a class action on behalf of their
neighbors.
See Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010)
(“A person who has not been admitted to the practice of law may
not represent anybody other than himself.”); Nwanze v. Philip
Morris
Inc.,
100
F.
Supp.
2d
215,
218
n.3
(S.D.N.Y.
2000)
(recognizing “the well established federal rule forbidding pro
se
plaintiffs
from
conducting
class
action
litigation”).
Therefore, any such request is DENIED.
CONCLUSION
Defendants’ motions to dismiss (Docket Entries 16, 17,
25) are GRANTED.
Defendants’ motions are GRANTED with respect to the
following claims, which are DISMISSED WITH PREJUDICE:
(1) Claims that Plaintiffs were injured by
the actions and judgments in state court
proceedings;
(2) Claims against
Scully
and
Rail
capacities;
the
in
(3)
Claims
regarding
discrimination; and
DEC and against
their
official
any
(4) Claims that the Town
violated the Takings Clause.
37
alleged
or
the
age
County
Defendants’ motions are also GRANTED with respect to
the following claims, which are DISMISSED WITHOUT PREJUDICE:
(1) Claims of a regulatory taking against
the State Defendants;
(2) Claims of illegal searches against the
State Defendants;
(3) Claims of denial of procedural due
process against the State Defendants; and
(4) Claims that the Defendants conspired
against Plaintiffs pursuant to 42 U.S.C.
§ 1985.
With
respect
to
those
claims
dismissed
without
prejudice, the Court is mindful that pro se litigants should
generally be afforded leave to file an amended complaint unless
their claims are frivolous.
See Benitez v. Wolff, 907 F.2d
1293, 1295 (2d Cir. 1990); Zeigler v. DeMarco, No. 12-CV-0785,
2012 WL 928285, at *3 (E.D.N.Y. Mar. 13, 2012).
Accordingly,
Plaintiffs may file an amended complaint on or before April 1,
2013.
Plaintiffs are also ORDERED TO SHOW CAUSE on or before
March 15, 2013 why their claims of substantive due process and
equal protection against the State Defendants should not also be
dismissed for the reasons outlined in this Memorandum and Order.
If Plaintiffs fail to do so, their claims will be dismissed.
The State Defendants shall file a response on or before March,
29, 2013.
38
Finally,
Plaintiffs’
motion
for
summary
judgment
(Docket Entry 22) and letter request for a class action (Docket
Entry 42) are DENIED.
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to pro se Plaintiffs.
SO ORDERED.
Dated:
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
February 12, 2013
Central Islip, NY
39
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