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)

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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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