Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Jenn-Ching Luo v. Baldwin Union Free School Dist., Slip Copy (2013)

2013 WL 4719090
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
JENN–CHING LUO, Plaintiff,
v.
BALDWIN UNION FREE SCHOOL
DISTRICT, James Mapes, Mary
Hobbs, and Jeltje deJong, Defendants.
No. 12–CV–6054 (JS)(AKT).

|

BACKGROUND 1

Sept. 3, 2013.

According to the Complaint, Defendant James Mapes, who
is the Superintendent of the District, is in possession of a
“purchase order” dated September 14, 2012, which states as
follows:

Attorneys and Law Firms
Jenn–Ching Luo, Bircheunville, PA, pro se.
Jeltje deJong, Esq., Devitt Spellman Barrett, LLP,
Smithtown, NY, for Defendants.
Opinion
MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 Plaintiff Jenn–Ching Luo (“Plaintiff” or “Luo”)
commenced this action pro se on December 10, 2012
against Defendants Baldwin Union Free School District (the

6.00EA

“District”), James Mapes, Mary Hobbs, and Jeltje deJong
(collectively, “Defendants”) asserting violations of the First
Amendment of the United States Constitution pursuant to 42
U.S.C. § 1983 and New York's Freedom of Information Law
(“FOIL”), N.Y. PUB. OFF. LAWW § 84, et seq. Pending
before the Court are Defendants' motion to dismiss and
Plaintiff's motion to amend the Complaint. For the following
reasons, Defendants' motion is GRANTED IN PART and
DENIED IN PART and Plaintiff's motion is DENIED.

The cost of the replacement was
$239.76.... This does not include
the cost of labor for measuring[,]
cutting, sanding and placing the table
cover. The labor cost to the district
to accomplish the installation was
$160.00. This work was done with
district personnel.
(Compl.¶ 10.) The purchase order also included the following
type-written items:

5x8x1/4 ABRASION/MAR RESISTANT TWO SIDES
POLYCARBONATE FOR * *LENOX* *
299.7100

10.00EA

1,798.26

4x8x1/4 ABRASION/MAR RESISTANT TWO SIDES
POLYCARBONATE * *DISTRICT OFFICE* *
239.7600

2,397.60

Total

4,195.86
(Compl.¶ 12.) And it included the following hand-written
payment information:

1/10/12

# 90453268

1,798.26

1/3/12

# 90451392

2,397.60
(Compl.¶ 12.)

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Jenn-Ching Luo v. Baldwin Union Free School Dist., Slip Copy (2013)

Plaintiff, believing that this purchase order was fabricated
(Compl.¶ 11), submitted a FOIL request to the District on
October 10, 2012, that stated:
please provide a copy of the district
record (e.g., bank statement or other
official document) that shows the
payment $160.00 and the date, and
also provide the name of the person(s)
who did the work and when the job was
done.
(Compl.¶ 14.) Before he received a response, he submitted
an identical request on October 18, 2012. (Compl.¶ 15.) The
District responded to his requests via letter dated October
19, 2012, which stated as follows: “I have been informed by
Mr. Edward Cullen, Assistant Superintendent of Business,
that such documents requested in both FOIL request [sic] do
not exist.” (Compl.¶ 16.) The letter was signed by Defendant
Mary Hobbs, the District's clerk, on behalf of the District.
(Compl.¶ 16.)
Plaintiff sent a follow-up letter on October 22, 2012, asking:
“Does your ‘no record’ mean no one did the job and
the job was never done and the District never paid the
$160.00?” (Compl.¶ 25 .) The District responded stating that:
“Your inquiry into why no record exists is an inappropriate
FOIL request which requires no response from the district
under FOIL.” (Compl.¶ 28.)
*2 Plaintiff submitted another request on October 25, 2012,
asking the District to “provide documents, records, or photos
that could show completion of the job and the approval of the
complete job. If you agree, I can send someone to take photos
of the table top. Please respond according to FOIL.” (Compl.¶
33.) The District never responded, so Plaintiff re-sent his
request on November 7, 2012. (Compl.¶ 34.) Plaintiff did not
receive a response to his November 7, 2012 request either.
(Compl.¶ 36.)
On November 14, 2012, Plaintiff submitted a fourth request,
asking the District to provide a copy of “records #
90453268 & # 90451392” and asked “who made the hand
writing.” (Compl.¶ 41.) The District never responded to
this request, so Plaintiff re-sent it on November 26, 2012.
(Compl.¶ 42.) Plaintiff did not receive a response to his
renewed request either. (Compl.¶ 43.)
On November 26, 2012, Plaintiff also called Superintendent
Mapes' office to find out why he had not received

any responses to his recent requests. (Compl.¶ 47.) A
woman answered the phone, “Mary speaking,” but “claimed
she was not [Defendant Mary] Hobbs, and refused to
identify herself.” (Compl.¶¶ 48–49.) “Mary” stated that the
District had been instructed by counsel not to respond to
Plaintiff's requests. (Compl.¶ 50.) She also stated that the
District demanded that Plaintiff “cease and desist” from
communicating with the District. (Compl.¶ 50.) 2
Plaintiff later wrote to Superintendent Mapes and received
a response from the District's lawyer, Defendant Jeltje
deJong. 3 (Compl.¶¶ 51–52.) According to the Complaint,
Defendant deJong “confessed she instructed Mary Hobbs,
district clerk, not to communicate with Luo and not to
respond to Luo's FOIL requests, and also demanded Luo
to ‘cease and desist’ from communicating with [the] school
district.” (Compl.¶ 52.)
Plaintiff filed a notice of claim on December 7, 2012
(Compl.¶ 55) and commenced this action on December 10,
2012. Plaintiff's Complaint asserts two causes of action:
(1) that the District, Mapes, and Hobbs violated FOIL by
failing to promptly and properly respond to his requests
and (2) that all Defendants violated the First Amendment's
freedom of petition and free speech clauses by demanding
that Plaintiff cease and desist from communicating with the
District. Plaintiff seeks only monetary relief.

DISCUSSION
Pending before the Court are Defendants' motion to dismiss
the Complaint in its entirety and Plaintiff's motion to amend
his Complaint to add an equal protection claim. The Court
will address each motion separately.

I. Defendants' Motion to Dismiss
Defendants move to dismiss Plaintiff's Complaint for failure
to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. 4 The Court will first discuss the
applicable standard of review under Rule 12(b)(6) before
addressing Defendants' arguments in support of dismissal.

A. Standard of Review
*3 In deciding a Rule 12(b)(6) motion to dismiss, the
Court applies a plausibility standard, which is guided by
“[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662,

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Jenn-Ching Luo v. Baldwin Union Free School Dist., Slip Copy (2013)

678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)); see also Harris v. Mills, 572 F.3d
66, 72 (2d Cir.2009). First, although the Court must accept
all of the allegations in the Complaint as true, this “tenet”
is “inapplicable to legal conclusions;” thus, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555); accord Harris, 572
F.3d at 72. Second, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Iqbal, 556 U.S.
at 679 (citing Twombly, 550 U .S. at 556). Although pro se
plaintiffs enjoy a somewhat more liberal pleading standard,
see Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
167 L.Ed.2d 1081 (2007) (“[A] pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” (internal quotation
marks and citation omitted)), they must still comport with the
procedural and substantive rules of law, see Colo. Capital v.
Owens, 227 F.R.D. 181, 186 (E.D.N.Y.2005).

B. FOIL Claim
Under FOIL, “[e]ach agency shall, in accordance with its
published rules, make available for public inspection and
copying all records, except that such agency may deny access
to records or portions thereof that [fall within one of the listed
exceptions].” N.Y. PUB. OFF. LAWW § 8 7(2). An agency
“within five business days of the receipt of a written request
for a record reasonably described, shall make such record
available to the person requesting it, deny such request in
writing or furnish a written acknowledgement of the receipt
of such request and a statement of the approximate date ...
when such request will be granted or denied....” Id. § 89(3)
(a). Here, the Complaint asserts that the District, Mapes, and
Hobbs' failure to timely and properly respond to Plaintiff's
requests is a violation of FOIL and entitles him to monetary
relief. Defendants argue that this fails to state a claim. The
Court agrees.
“FOIL does not give rise to a private cause of action to recover
money damages.” Sank v. City Univ. of N.Y., No. 94–CV–
0253, 2002 WL 523282, at *9 (S.D.N.Y. Apr. 5.2002) (citing
Warburton v. State, 173 Misc.2d 879, 881–82, 662 N.Y.S.2d
706, 708 (Ct.Cl.1997)); see also Yip v. Bd. of Trs. of the
State Univ. of N.Y., No. 03–CV–0959, 2004 WL 2202594,
at *7 (W.D.N.Y. Sept. 29, 2004), aff'd, 150 F. App'x 21 (2d
Cir.2005). Accordingly, as Plaintiff is seeking only monetary
damages, the Court cannot grant Plaintiff the relief that he
seeks, and his claim must be dismissed.

*4 Further, “[t]he appropriate vehicle for challenging
denials 5 of access guaranteed by the New York Freedom
of Information [L]aw is a state court proceeding pursuant to
N.Y. C.P.L.R. Article 78 upon exhaustion of administrative
remedies.” Schuloff v. Fields, 950 F.Supp. 66, 67–68
(E.D.N.Y.1997); see also Posr v. City of N.Y., No. 10–
CV–2551, 2013 WL 2419142, at *14 (S.D.N.Y. June 4,
2013) (“Under New York state law, if an agency or
government official fails to comply with the provisions of
FOIL, the person submitting the FOIL request must pursue an
administrative appeal or seek remedies in state court pursuant
to N.Y. C.P.L.R. Article 78.” (citing N.Y. PUB. OFF. LAWW
§ 89)); Sonds v. Cuomo, No. 11–CV–0895, 2012 WL 952540,
at *3 (N.D.N.Y. Feb. 3, 2012) (“Plaintiff's state FOIL request
cannot be the basis of a federal action.”), adopted by 2012 WL
952416 (N.D.N.Y. Mar. 20, 2012). Thus, Plaintiff's claim is
not appropriately before this Court.
Therefore, Defendants' motion to dismiss Plaintiff's FOIL
claim is GRANTED, and this claim is hereby DISMISSED
WITH PREJUDICE. 6

C. First Amendment Claim
Defendants argue that Plaintiff's First Amendment claim
must be dismissed because “[t]he District's alleged failure to
comply with FOIL procedures does not violate [P]laintiff's
First Amendment rights.” (Defs.Mot.6.) Defendants are
correct, see, e.g., Schuloff, 950 F.Supp. at 68 (dismissing
a First Amendment claim arising out of an alleged FOIL
violation, stating that the plaintiff “cannot rely on her right
to receive information and ideas to compel the government
to produce the records in question”); Simpson v. Town of
Southampton, No. 06–CV–6743, 2007 WL 1755749, at *4
(E.D.N.Y. June 15, 2007) (dismissing a First Amendment
claim arising out of an alleged FOIL violation, finding
that “[a] failure to comply with FOIL procedures does
not, in and of itself, violate any rights protected by the
First Amendment”), and to the extent that Plaintiff's First
Amendment claim arises out of Defendants' failure to comply
with FOIL and respond to his FOIL requests, Defendants'
motion is GRANTED and those claims are DISMISSED
WITH PREJUDICE.
The Court, however, also reads Plaintiff's Complaint liberally
(as it must, see Erickson, 551 U.S. at 94) to assert a First
Amendment claim arising out of Defendants' demand that
Luo “cease and desist” communicating with the District

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Jenn-Ching Luo v. Baldwin Union Free School Dist., Slip Copy (2013)

and/or filing requests under FOIL. Whether this restriction
infringed on Plaintiff's First Amendment rights to free speech
and freedom to petition was not addressed by Defendants, 7
and the Court cannot sua sponte dismiss a claim without
giving Plaintiff notice and an opportunity to respond, see
Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir.1994).
Accordingly, to the extent that Defendants seek dismissal of
Plaintiff's First Amendment claim in its entirety, their motion
is DENIED.
Defendants further argue that Plaintiff's First Amendment
claim against the District must be dismissed because the
Complaint “has failed to allege a Monell claim against the
District.” (Defs.Mot.7.) The Court disagrees. To prevail on
a Section 1983 claim against a municipality, a plaintiff must
plead and prove that the unconstitutional acts of its employees
are attributable to a municipal policy or custom. See Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). To plead an official policy or custom, a
complaint must allege the existence of, inter alia, “a formal
policy which is officially endorsed by the municipality” or
“actions taken or decisions made by government officials
responsible for establishing municipal policies which caused
the alleged violation of the plaintiff's civil rights.” Moray v.
City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y .1996) (citing
Monell, 436 U.S. at 690; Pembaur v. City of Cincinnati,
475 U.S. 469, 483–84, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986)). The allegations in the Complaint here-namely,
that the District, through its superintendent, demanded that
Plaintiff cease all communications-are sufficient at this
stage of the litigation to state a claim against the District.
See Pembaur, 475 U.S. at 480 (finding that “municipal
liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances”); see also
Konits v. Valley Stream Cent. High Sch. Dist., No. 01–CV–
6763, 2006 WL 224188, at *4 (E.D.N.Y. Jan. 28, 2006)
(“[E]ven one decision by a school superintendent, if acting as
a final policymaker, could render his or her decision district
policy.”). Accordingly, to the extent that Defendants seek
dismissal of Plaintiff's First Amendment claim against the
District, their motion is DENIED.

II. Plaintiff's Motion to Amend
*5 Also pending is Plaintiff's motion to amend his
Complaint to add an equal protection claim. 8 The Court
will first discuss the applicable standard of review before
addressing the merits of Plaintiff's request.

A. Standard of Review
Courts should grant leave to amend “when justice so
requires.” FED.R.CIV.P. 15(a)(2). Leave to amend should be
granted “unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.” Milanese v.
Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d
222 (1962)). To determine whether an amended claim is
futile, courts analyze whether the proposed pleading would
withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Dougherty v. Town of N. Hempstead
Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002).

B. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall deny to any person within
its jurisdiction the equal protection of the laws, which is
essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d
313 (1985) (internal quotation marks and citation omitted).
Because Plaintiff has not alleged that he is a member of
a suspect class, to plead an equal protection claim, he
must assert that he was treated differently from similarly
situated individuals and either (i) that “such differential
treatment was based on impermissible considerations such
as race, religion, intent to inhibit or punish the exercise
of constitutional rights, or malicious or bad faith intent to
injure a person” (“selective prosecution” equal protection)
or (ii) that there was “no rational basis for the difference
in treatment” (“class-of-one” equal protection). Cobb v.
Pozzi, 363 F.3d 89, 110 (2d Cir.2004) (internal quotation
marks and citations omitted). As Plaintiff's motion does not
identify any similarly-situated individuals (i.e., any other
individuals with litigation pending against the District and/
or who have submitted numerous, allegedly frivolous FOIL
requests)-let alone any similarly-situated individuals that
were treated differently-Plaintiff's equal protection claim
fails as a matter of law. See, e.g., MacPherson v. Town
of Southampton, 738 F.Supp.2d 353, 371 (E.D.N.Y.2010)
(dismissing the plaintiffs' equal protection claim-“whether
pled as a selective enforcement claim or a classof-one claim”because the complaint failed to “identify any comparators
or similarly situated entities at all”). Accordingly, the Court
finds that leave to amend would be futile, and Plaintiff's
motion to amend is DENIED.

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Jenn-Ching Luo v. Baldwin Union Free School Dist., Slip Copy (2013)

CONCLUSION

from communicating with the District and from filing future
FOIL requests. It is further ORDERED that:

For the foregoing reasons, it is hereby ORDERED that:
(1) Defendants' motion to dismiss (Docket Entry 5) is
GRANTED IN PART and DENIED IN PART, and
Plaintiff's FOIL claim and First Amendment claim arising
out of purported FOIL violations are DISMISSED WITH
PREJUDICE. The only surviving claim is Plaintiff's First
Amendment claim arising out of the District's barring Plaintiff

*6 (2) Plaintiff's motion to amend (Docket Entry 16) is
DENIED.
Counsel for Defendants is ORDERED to serve a copy of this
Memorandum and Order on the pro se Plaintiff and file proof
of service forthwith.
SO ORDERED.

Footnotes

1
2

3
4

5
6

7
8

The following facts are drawn from Plaintiff's Complaint and are presumed to be true for the purposes of this Memorandum and Order.
The Court takes judicial notice of the fact that Plaintiff previously sued the District to redress perceived infirmities in the way that
the District was addressing the educational needs of his disabled child. Luo v. Baldwin Union Free Sch. Dist., No. 10–CV–1985(JS)
(AKT) (E.D.N.Y.). The action was dismissed in its entirety on March 5, 2012, and judgment was entered on March 7, 2012. Plaintiff
moved for reconsideration on March 8, 2012, and that motion was denied on March 21, 2013. Plaintiff filed a notice of appeal on
April 12, 2013. That appeal is still pending.
Ms. deJong is representing all defendants, including herself, in the present action.
Defendants also assert that they are moving to dismiss for improper service pursuant to Rule 12(b)(5) and for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). (Defs.Mot.1.) However, Defendants did not brief their service of process argument (and, thus,
the Court need not and will not address it), and the Court clearly has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,
1367(a), as Plaintiff is alleging a violation of his constitutional rights.
An agency's failure to respond to a FOIL request “constitute[s] a denial” of that request. N.Y. PUB. OFF. LAWW § 89(4)(a)-(b).
To the extent that Plaintiff is attempting to assert a constitutional due process violation arising out of Defendants' failure to comply
with the procedural requirements of FOIL, his claim also fails. An individual is only entitled to “due process” if he is deprived of a
protected liberty or property interest, see Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir.2002), and, here, Plaintiff does not
have a protected property interest in the requested FOIL documents, see Papay v. Haselhuhn, No. 07–CV–3858, 2010 WL 4140430,
at *7 (S.D.N.Y. Oct. 21, 2010) (finding that the plaintiff did not have a protected property interest in requested FOIL documents
because “access to [those] documents constitutes a mere expectation of Plaintiff, not an entitlement that would establish a property
interest under the Due Process Clause”).
Although Plaintiff raised this omission in his opposition brief (Pl. Opp. 10 (“DeJong's Open Brief failed to defend the cause ‘refusing
communicating’ and ‘demand to cease and desist.’ ”)), Defendants chose not to submit a reply brief.
The Court notes that Plaintiff did not attach a proposed amended complaint to his motion papers. Although failure to submit a
proposed pleading is grounds for denying a motion to amend, see, e.g., Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y.1993)
(“Where the proposed amended complaint does not accompany the motion to amend, ... the Court may deny the motion without
prejudice.” (citations omitted)); Schwasnick v. Fields, No. 08–CV–4759, 2010 WL 2679935, at *11 (E.D.N.Y. June 30, 2010) (“The
court may also deny leave to amend where the Plaintiff[ ] fails to submit a proposed pleading and does not explain why.”), given
Plaintiff's pro se status, the Court will nonetheless consider the merits of his application.

End of Document

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