Dean et al v. The Town of Hempstead et al

Filing 95

ORDER as to 71 Plaintiffs' motion to set aside the Court's 65 February 18, 2016 Decision. During the pre-motion conference held on July 20, 2016, the Court reserved decision on whether to hold the dismissed claims in abeyance until the y are ripe. For the reasons discussed in the attached Memorandum and Order, the Court denies Plaintiffs' motion to hold in abeyance the as-applied claims dismissed on February 18, 2016. Ordered by Judge Margo K. Brodie on 8/17/2016. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------WILLIAM STEPHEN DEAN (a/k/a BILLY
DEAN), RORI LEIGH GORDON, GREEN 2009
INC., ONE55DAY INC. and LOOK
ENTERTAINMENT, LTD.,
Plaintiff,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
14-CV-4951 (MKB)

v.
THE TOWN OF HEMPSTEAD, KATE
MURRAY, JOHN E. ROTTKAMP, DAVID P.
WEISS, GERALD C. MARINO, KATURIA E.
D’AMATO, JOHN F. RAGANO, FRANK A.
MISTERO, JOSEPH F. PELLEGRINI and
KIMBERLY A. PERRY,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On August 20, 2014, Plaintiffs Billy Dean and Rori Leigh Gordon, along with their
affiliated entities, brought this action against Defendants Town of Hempstead (the “Town”), the
Town’s Building Inspector, the Town’s Supervisor, and individual members of the Town’s
Board of Appeals pursuant to 42 U.S.C. § 1983, alleging numerous constitutional violations
stemming from Defendants’ refusal to grant Plaintiffs the necessary authorizations to open and
operate two cabarets. (Compl., Docket Entry No. 1.) On September 24, 2015, Defendants
moved to dismiss the case for lack of subject matter jurisdiction. (Def. Mot. to Dismiss, Docket
Entry No. 43.) Judge John Gleeson granted Defendants’ motion in part and denied it in part,
dismissing Plaintiffs’ as-applied claims without prejudice and reserving decision on the

remaining claims asserting facial constitutional challenges. 1 Dean v. Town of Hempstead, --- F.
Supp. 3d. ---, ---, 2016 WL 660884, at *1 (E.D.N.Y. Feb. 18, 2016). On March 17, 2016,
Plaintiffs filed a motion for reconsideration, styled as a “Motion for Reconsideration or to Set
Aside Pursuant to Fed. R. Civ. P. 60(b),” claiming that recently disclosed evidence necessitated
reconsideration of Judge Gleeson’s decision to dismiss the as-applied claims. (Pls. Mot. for
Reconsideration (“the Reconsideration Motion”), Docket Entry No. 71.) The Court held a
conference on July 20, 2016, at which it denied the Reconsideration Motion and reserved
decision on whether to hold Plaintiffs’ dismissed claims in abeyance until they are ripe. (Minute
Order dated July 20, 2016.) For the reasons set forth below, the Court declines to hold Plaintiffs’
dismissed claims in abeyance.
I.

Background
At the July 20, 2016 conference, Plaintiffs requested that the Court hold in abeyance the

as-applied claims that the Court dismissed in the February 18, 2016 decision.2 (See Minute
Order dated July 20, 2016; see also Transcript dated July 20, 2016 (“T.”) at 10, 11.) Plaintiffs
argued at the conference that Defendants have demonstrated a pattern of delay in addressing
Plaintiffs’ applications and that, by the time Plaintiffs’ as-applied claims under section 1983 are
ripe for review by the Court, Defendants likely will argue that those claims are time-barred by
the statute of limitations applicable to section 1983 claims. (T. at 11.) The Court agreed to
review the two cases Plaintiffs cited in support of their argument — Wheaton College v.
Sebelius, 703 F.3d 551 (D.C. Cir. 2012), and Giulini v. Blessing, 654 F.2d 189 (2d Cir. 1981) —
1

The case was reassigned to this Court on March 11, 2016.

2

The Court assumes familiarity with the record as detailed in Judge Gleeson’s February
18, 2016 decision, Dean, 2016 WL 660884, at *1, and describes only the facts necessary to
address Plaintiffs’ request to hold the dismissed claims in abeyance.

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in deciding whether to hold the dismissed claims in abeyance. (Id. at 13.)
II. Discussion
This case involves the interaction of two analytically distinct concepts: first, that a claim
must be timely filed, and second, that a claim must be ripe for adjudication.
A cause of action accrues under section 1983 “when the plaintiff has ‘a complete and
present cause of action,’” Wallace v. Keto, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry
& Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)), that is,
when “the plaintiff can file suit and obtain relief,” id. (internal quotation marks omitted) (quoting
same). In addition, “[t]o be justiciable, a cause of action must be ripe — it must present a real,
substantial controversy, not a mere hypothetical question.” Kurtz v. Verizon N.Y., Inc., 758 F.3d
506, 511 (2d Cir. 2014). A claim is not ripe “if it depends upon contingent future events that
may or may not occur as anticipated, or indeed may not occur at all.” Id.
Where constitutional claims involve land use issues, the Supreme Court’s decision in
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S.
172 (1985), causes the issues of ripeness and claim accrual to functionally converge. 3 See
Asociación de Suscripción Conjunta del Seguro de Responsabilidad Obligatorio v. JuarbeJiménez, 659 F.3d 42, 50–51 (1st Cir. 2011) (exploring the relationship between ripeness and
accrual in the context of a takings claim). The Court in Williamson held that a land use decision
is not ripe until it is “final,” and clarified that the concept of finality “is concerned with whether
the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual,
3

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), the U.S. Supreme Court established a test to govern the ripeness of
as-applied takings challenges, irrespective of whether those challenges were brought pursuant to
a statute, such as § 1983, that applies a limitations period to the claims. Williamson Cty., 473
U.S. at 193.

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concrete injury.” Williamson Cty., 473 U.S. at 193; see also Dean, 2016 WL 660884, at *13
(noting that the Second Circuit has extended the application of the Williamson “final decision”
requirement to land use disputes involving substantive due process claims, equal protection and
procedural due process claims, and First Amendment claims).
Although the Court finds no perfectly congruous Second Circuit authority, other circuit
courts of appeals considering accrual and ripeness in the takings context have “consistently held
that a cause of action does not accrue until a party has a right to enforce the claim.” Norco
Constr., Inc. v. King Cty., 801 F.2d 1143, 1146 (9th Cir. 1986) (holding that the plaintiff “was
entitled, indeed required, to await the final decision of the county without commencement of the
statute of limitations”); Hensley v. City of Columbus, 557 F.3d 693, 696–97 (6th Cir. 2009)
(holding that the statute of limitations accrues when the takings claim becomes ripe); New Port
Largo, Inc. v. Monroe Cty., 985 F.2d 1488, 1496–97 (11th Cir. 1993) (“When Williamson’s twoprong test is met, the injury is complete, and the claim accrues for purposes of the statute of
limitations.”); Biddison v. City of Chicago, 921 F.2d 724, 728 (7th Cir. 1991) (noting that
“[s]ince Williamson County was decided . . . several regulatory taking cases hold that a taking
accrues at the same time that it ripens”); Corn v. City of Lauderdale Lakes, 904 F.2d 585, 588
(11th Cir. 1990) (holding that the plaintiff’s action accrued when the state appellate court issued
a decision invalidating the zoning ordinance in question); McMillan v. Goleta Water Distr., 792
F.2d 1453, 1457 (9th Cir. 1986) (holding that district court erred in calculating the limitations
period from date water service was interrupted rather than date water district rendered final
decision not to restore service); cf. Asociación de Suscripción Conjunta, 659 F.3d at 51
(“[G]iven the way the Court has formulated the Williamson County ripeness requirements, and
the takings law on facial attacks, a facial takings challenge generally both ripens and accrues for

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statute of limitations purposes at the same moment in time.”).
As Judge Gleeson’s decision explains, ripeness is a threshold question absent which the
Court lacks jurisdiction to act on the claims before it, Dean, 2016 WL 660884, at *13, including
by holding them in abeyance. Contrary to Plaintiffs’ claim, Wheaton College and Giulini do not
suggest otherwise.
In Wheaton College, religious colleges challenged the Affordable Care Act’s
contraception requirement after the Department of Health and Human Services issued an interim
final rule but before it issued a final rule. 703 F.3d at 552. The question on appeal was whether
the exemption from the contraception requirement that was afforded to religious organizations
would apply equally to the religious colleges. Id. The government promised the D.C. Circuit
that religious colleges would be exempt from its contraception requirement under a year-long
exemption period and assured the court that it would soon be promulgating a new rule that would
apply to religious colleges after that exemption period expired. Id. The D.C. Circuit held the
government at its word, noting that it had made a “binding commitment” to issue a new rule in
the first quarter of 2013, mere months later. Id. The court concluded that the consolidated cases
before it were “not fit for review at this time” and based its decision “expressly upon the
understanding that the government w[ould] not deviate from its considered representations to
th[e] court.” Id. Thus, in Wheaton College, the appellants’ case would have been ripe but for the
government’s anticipated new rule, and in clear “reliance on the [government’s] binding
representations,” the court held the cases in abeyance on appeal pending the issuance of that new
rule. Id. at 553.
Giulini involved a similarly circumscribed set of facts. See Giulini, 654 F.2d at 192–93.
The plaintiffs in Giulini were homeowners who had challenged a zoning ordinance on

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constitutional grounds. Id. at 190. The plaintiffs had requested declaratory, injunctive and
pecuniary relief, and were concurrently embroiled in state court criminal proceedings for
violating the same ordinances under review in federal court. Id. at 191. The Second Circuit held
that, in view of the pending criminal action in which the plaintiffs had asserted constitutional
defenses, the district court judge should have retained jurisdiction over the plaintiffs’ damages
claims, although the judge could reasonably deny the plaintiffs’ request for declaratory and
injunctive relief. Id. at 193. The Court noted that “a federal court is not precluded, in the
exercise of its discretion, from staying proceedings in the action before it, pending a decision by
the state court, with a view to avoiding wasteful duplication of judicial resources and having the
benefit of the state court’s views.” Id. It further held that a stay as to the damages claims was
appropriate where “the identical constitutional issues have been decided against [the plaintiffs]
by the Pelham Justice Court and a ruling on the constitutional issues by the Appellate Term of
the Supreme Court, to which [the plaintiffs] have appealed, is expected in their state case.”
Id. at 194.
Neither Wheaton College nor Giulini supports Plaintiffs’ contention that this Court can
hold in abeyance unripe claims that were previously dismissed. Wheaton College was decided
on narrow factual grounds, see Wheaton College, 703 F.3d at 553, and Giulini stands for the
principle that a federal court cannot dismiss a federal action over which it has mandatory subject
matter jurisdiction, except in certain circumstances, see Giulini, 654 F.2d at 193.
Here, Judge Gleeson found that Plaintiffs’ as-applied equal protection, takings, due
process, and First Amendment claims were predicated on the same facts relating to the Town’s
land-use decisions, which were not yet final. Dean, 2016 WL 660884, at *17. In finding that
Plaintiffs’ as-applied claims were not ripe for adjudication and would not be ripe until the Town

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issued a final decision as to Plaintiffs’ properties, Judge Gleeson effectively held that the Court
had no jurisdiction over Plaintiffs’ claims until they have ripened. Thus, the considerations that
rendered Plaintiffs’ claims premature — namely, that the scope of Plaintiffs’ constitutional
injuries have yet to be defined — similarly prevent accrual of their claims for limitations
purposes.
Because Plaintiffs’ as-applied claims are not yet ripe for judicial review, the Court is
without authority to hold them in abeyance.
III. Conclusion
For the foregoing reasons, the Court denies Plaintiffs’ motion to hold in abeyance the
as-applied claims dismissed on February 18, 2016.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: August 17, 2016
Brooklyn, New York

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