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