Mateo v. Dawn et al
Filing
69
OPINION & ORDER re: 61 FIRST MOTION to Dismiss the second amended complaint under FRCP 12(c), filed by Mason Dawn, Jean King, Cheryl Morris. The Motion is granted with prejudice. The Clerk of the Court is respectfully requested to terminate the pending Motion (Dkt. No. 61) and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/28/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CESAR MATEO,
Plaintiff,
v.
No. 14-CV-2620 (KMK)
MASON DAWN, Family Services
Coordinator, CHERYL MORRIS, Director of
Ministerial Family and Volunteer Services,
and JEAN KING, Deputy Superintendent for
Programs, all in their personal and individual
capacities,
OPINION & ORDER
Defendants.
Appearances:
Cesar Mateo
Woodbourne, NY
Pro Se Plaintiff
Kruti D. Dharia, Esq.
Jeb Harben, Esq.
State of New York Office of the Attorney General
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Cesar Mateo (“Plaintiff”), proceeding pro se, filed the instant Second Amended
Complaint (the “SAC”) against Defendants Dawn Mason, Cheryl Morris, and Jean King
(collectively, “Defendants”), alleging that Defendants violated his rights under the Equal
Protection Clause by failing to properly process his lawfully obtained marriage license and by
disallowing him enrollment in the Family Reunion Program (the “FRP”).1 (See Second Am.
Compl. (Dkt. No. 35).) Defendants bring this Motion for Judgment on the Pleadings (the
“Motion”) pursuant to Federal Rule of Civil Procedure 12(c). (See First Mot. To Dismiss the
Second Am. Compl. (Dkt. No. 61).) For the reasons below, the Court grants the Motion and
dismisses the SAC with prejudice.
I. Background
A. Factual Allegations
The following facts are based on the allegations in the SAC, which are taken as true for
purposes of the Motion.
On June 16, 2012, Plaintiff, while incarcerated at Sing Sing Correctional Facility, and his
then-fiancé attended a marriage ceremony organized by Defendant Dawn Mason (“Mason”).
(See Second Am. Compl. ¶¶ 9, 13.) Plaintiff and his fiancé presented a marriage license and
obtained the signatures of all necessary parties. (See id. ¶¶ 10, 13.) While the other inmates
participating in the ceremony had obtained their marriage licenses from the Ossining Town Clerk
(where Sing Sing Correctional Facility is located), Plaintiff and his fiancé obtained their
marriage license from the New York City Marriage Bureau. (See id. ¶¶ 10, 11.) At the end of
the marriage ceremony, Mason collected the completed marriage licenses to be sent to the town
clerk so that marriage certificates could be issued. (See id. ¶ 16.) Plaintiff and his fiancé
informed Mason that their marriage license would need to be sent to the New York City
Marriage Bureau, and their marriage license contained instructions on the back to the same
1
The SAC lists the first Defendant as “Mason Dawn,” (see Second Am. Compl. (Dkt.
No. 35)), but Defendants refer to her as “Dawn Mason,” (see Defs.’ Mem. in Supp. of Defs.’
Mot. To Dismiss (Dkt. No. 62)), and Plaintiff appears to adopt that nomenclature, (see Pl.’s
Affirmation in Opp’n to Defs.’ Mot. To Dismiss (Dkt. No. 64)). The Court will do the same.
2
effect. (See id. ¶ 15.) Mason, however, did not send Plaintiff’s signed marriage license to the
New York City Marriage Bureau, but instead sent it to the Ossining Town Clerk along with the
rest of the marriage licenses. (See id. ¶ 17.) Shortly thereafter, the Ossining Town Clerk
returned Plaintiff’s marriage license to Mason, saying it was not valid. (See id. ¶ 18.) Mason
returned the marriage license to Plaintiff’s fiancé and attached the correspondence from the
Ossining Town Clerk indicating that the license was not valid. (See id.) Mason also met with
Plaintiff on one occasion and verified that the marriage license had been mailed back to
Plaintiff’s fiancé and that she would need to contact the New York City Marriage Bureau. (See
id. ¶ 21.) About two months later, Plaintiff learned that the other inmates who had participated
in the marriage ceremony had received their marriage certificates from the Ossining Town Clerk.
(See id. ¶ 20.) Sometime in 2012, Plaintiff’s fiancé obtained a marriage certificate from the New
York City Marriage Bureau certifying that Plaintiff and his wife were married on June 16, 2012.
(See id. ¶ 22.) Plaintiff alleges that this course of conduct violated Plaintiff’s rights under the
Equal Protection Clause because Mason failed to return Plaintiff’s marriage license to the issuing
agency, as she had done for his peers. (See id. ¶ 24.)
In October 2012, Plaintiff was transferred to Woodbourne Correctional Facility. (See id.
¶ 25.) In January 2013, he applied to participate in the FRP, which would allow him to
consummate his marriage and visit with his relatives, and indicated on the FRP application that
he was married. (See id. ¶ 25; see also id. at unnumbered 20.) Plaintiff’s application was denied
in May 2013 on the grounds that he had not completed a substance abuse program. (See id.
¶ 27.) Plaintiff filed an appeal of the denial of his FRP application, alleging that his peers were
admitted to the FRP while they were on the waiting list for the substance abuse program, but
before they completed or were enrolled in the program. (See id. ¶ 31; see also id. ¶ 29.) In
3
January 2014, Defendant Cheryl Morris (“Morris”) upheld the denial of Plaintiff’s FRP
application on the ground that he had misrepresented his marriage status. (See id. ¶ 31; see also
id. at unnumbered 26.) Plaintiff alleges that Morris never requested a copy of his marriage
certificate before determining that Plaintiff had falsely represented his marriage status. (See id.
¶ 33.) Plaintiff alleges that this conduct violated his rights under the Equal Protection Clause
because other inmates were requested to produce a marriage certificate after applying for the
FRP, and Morris treated Plaintiff differently in denying him the opportunity to consummate his
marriage and visit his relatives. (See id.)
On March 14, 2014, Plaintiff obtained a copy of his marriage certificate from the New
York City Marriage Bureau. (See id. ¶ 37; see also id. at unnumbered 21.) He included this
certificate in his new application to the FRP, submitted on March 18, 2014. (See id. ¶¶ 36–37;
see also id. at unnumbered 27.) Defendant Jean King (“King”) responded to Plaintiff’s
application shortly thereafter, saying that Morris had already determined that Plaintiff’s marriage
license was invalid and that King was “in no way able to supersede that determination.” (See id.
¶¶ 38–39; see also id. at unnumbered at 23.) Plaintiff alleges that this conduct violated his rights
under the Equal Protection Clause because King allowed similarly situated couples with valid
marriage certificates to participate in the FRP. (See id. ¶ 41.)
B. Procedural History
In his original complaint (the “Original Complaint”), filed on April 11, 2014, Plaintiff
brought claims against Mason, Morris, and King, as well as Mary Ann Robert (the Ossining
Town Clerk) and Jeff McKoy (the Deputy Commissioner of Program Services), alleging due
process and equal protection violations arising from the same conduct identified in the SAC.
(See Compl. (Dkt. No. 2).) Then-Chief Judge Loretta A. Preska issued an Order to Amend on
4
May 13, 2014 (the “Order to Amend”), dismissing Plaintiff’s due process claims against Mason
and Mary Ann Robert for failing to forward his marriage license to the New York City Marriage
Bureau, dismissing Plaintiff’s due process and equal protection claims against the remaining
defendants for rejecting Plaintiff’s first FRP application, and instructing Plaintiff to amend his
complaint should he wish to include a claim under the Equal Protection Clause relating to the
denial of his second FRP application. (See Order to Amend (Dkt. No. 5).)
On June 9, 2014, Plaintiff filed his amended complaint, naming only King as a defendant
and alleging that King violated his rights under the Equal Protection Clause in denying his
second FRP application. (See Am. Compl. (Dkt. No. 7).) Plaintiff also stated his belief that the
difference in treatment arose from his history of filing lawsuits against officers of the
correctional institutions where he has been housed. (See id. ¶ 23.) Following execution of
service on December 9, 2014, (see Marshal’s Process Receipt & Return of Service Executed
(Dkt. No. 17)), Plaintiff filed a Motion for Preliminary Injunction, (see Pl.’s Mot. for Prelim. Inj.
(Dkt. No. 19)). The injunction was denied as moot after King’s counsel indicated that Plaintiff’s
marriage had been recognized by the New York State Department of Corrections and
Community Supervision (“DOCCS”). (See Dkt. No. 28; see also Decl. of Robert F.
Cunningham in Opp. to Pl.’s Mot. for a Prelim. Inj. (Dkt. No. 26).) Following a conference with
the Court, Plaintiff filed the SAC on May 14, 2015. (See Dkt. No. 35.) Defendants thereafter
moved under Federal Rule of Civil Procedure 12(c) for a judgment on the pleadings, (see Dkt.
No. 61), arguing that Plaintiff’s claims against Mason and Morris are barred by the Order to
Amend, that Plaintiff fails to state a claim upon which relief can be granted, and that Defendants
5
are protected by qualified immunity, (see Defs.’ Mem. of Law in Supp. of Defs.’ Mot. To
Dismiss (“Defs.’ Mem.”) (Dkt. No. 62)).2
II. Discussion
A. Standard of Review
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is
appropriate where material facts are undisputed and where a judgment on the merits is possible
merely by considering the contents of the pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842
F.2d 639, 642 (2d Cir. 1988). “[T]he standards for dismissal pursuant to Rule 12(c) are the same
as for a dismissal pursuant to Rule 12(b)(6).” Ideal Steel Supply Corp. v. Anza, 652 F.3d 310,
324 (2d Cir. 2011). To survive a motion to dismiss under Rule 12(c), therefore, “a complaint
must allege sufficient facts which, taken as true, state a plausible claim for relief.” Keiler v.
Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014). In reviewing a complaint, the Court
“accept[s] all factual allegations as true and draw[s] every reasonable inference from those facts
in the plaintiff’s favor.” In re Adderall XR Antitrust Litig., 754 F.3d 128, 133 (2d Cir. 2014)
(internal quotation marks omitted). Moreover, along with the complaint itself, the Court “may
consider . . . any written instrument attached to the complaint as an exhibit, any statements or
documents incorporated in it by reference, and any document upon which the complaint heavily
relies.” ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014) (internal quotation marks
omitted).
2
Although motions under Federal Rule of Civil Procedure 12(c) are termed “Motion[s]
for Judgment on the Pleadings,” see Fed. R. Civ. P. 12(c), Defendants have titled their moving
papers “Motion To Dismiss.” (see Dkt Nos. 61, 62, 65). This imprecision in terminology is
immaterial for purposes of resolving the Motion.
6
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss,” and by extension a Rule 12(c) motion for judgment on the pleadings, “does
not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (second alteration in original) (citations omitted). Instead, the Supreme Court has
emphasized that the “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” id., and that “once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint,” id. at 563. A plaintiff
must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
But if a plaintiff has “not nudged [his] claims across the line from conceivable to plausible, the[]
complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))). Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks omitted).
7
B. Analysis
1. Effect of the Order to Amend
Defendants contend that in the Order to Amend, Judge Preska dismissed all claims
against Mason and Morris, and granted Plaintiff leave to amend the Original Complaint only
with respect to his allegations under the Equal Protection Clause related to the denial of his
second FRP application. (See Defs.’ Mem. 6–7.) Defendants argue that, accordingly, Plaintiff’s
claims against Mason and Morris, which were removed in the First Amended Complaint but
revived in the SAC, should be dismissed. (See id.)
In the Order to Amend, Judge Preska dismissed Plaintiff’s claim under the Due Process
Clause regarding the failure of Mason and the Ossining Town Clerk to forward his marriage
license to the New York City Marriage Bureau. (See Order to Amend 4–5.) Plaintiff had not
alleged, and thus Judge Preska did not address, a claim against Mason under the Equal Protection
Clause. In the SAC, by contrast, Plaintiff alleges that Mason “treated [him] differently from
[his] peer inmates who obtained their marriage certificate[s] because Mason return[ed] their
marriage license[s] to the[] issuing agency.” (Second Am. Compl. ¶ 24.) And Plaintiff makes
clear in the SAC that the basis for his claims is the Equal Protection Clause. (See id. ¶ 5.)
Therefore, Defendants are incorrect in contending that the claim against Mason under the Equal
Protection Clause has been dismissed.
Less clear is whether Plaintiff was permitted to amend his complaint to include an equal
protection claim against Mason given the limited scope of the Order to Amend. However,
because the Court concludes below that Plaintiff has not stated a claim against Mason under the
Equal Protection Clause, the Court declines to consider whether Plaintiff’s inclusion of the claim
in the SAC was impermissible.
8
Defendants are correct, however, that Plaintiff’s equal protection claim against Morris
should be dismissed. In the Order to Amend, Judge Preska held that “Plaintiff . . . fail[ed] to
state a claim that the denial of participation in the FRP violates his right to [e]qual [p]rotection.”
(Order to Amend 5.) Judge Preska pointed out that “Plaintiff ha[d] not alleged that his [first]
application was denied because of his membership in a protected class, and there is no
fundamental right to participate in FRP,” (id.), and went on to hold that Plaintiff could not
sustain a “class-of-one” equal protection claim because he did “not allege that he was treated
differently from similarly situated prisoners who were unable to document a legal marriage,” (id.
at 6). Judge Preska concluded that Plaintiff had failed “to state an [e]qual [p]rotection claim
based on the denial of his first FRP application.” (Id. at 6–7.) This claim has thus already been
dismissed.
Even assuming Plaintiff was permitted to amend his complaint with regard to his equal
protection claim against Morris, Judge Preska’s finding that Plaintiff failed to state a claim is the
law of the case and informs the outcome here. See Fermin v. United States, 859 F. Supp. 2d 590,
600 n.12 (S.D.N.Y. 2012) (“[W]hen a court has ruled on an issue, that decision should generally
be adhered to by that court in subsequent stages in the same case unless cogent and compelling
reasons militate otherwise.” (quoting Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009))); Am.
Hotel Int’l Grp., Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 378 (S.D.N.Y. 2009) (“Under
the law of the case doctrine, ‘a decision on an issue of law made at one stage of a case becomes
binding precedent to be followed in subsequent stages of the same litigation.’” (quoting In re
PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991))), aff’d, 374 F. App’x 71 (2d Cir. 2010).
Although Plaintiff has added more detail to his complaint, he has not alleged additional facts that
would persuade this Court to veer from Judge Preska’s determination that Plaintiff has failed to
9
state an equal protection claim against Morris. (Compare Second Am. Compl. ¶¶ 26–34, with
Compl. ¶¶ 26–33.) There are accordingly no grounds to revisit Judge Preska’s determination,
and Plaintiff’s claim against Morris should be dismissed.
However, Judge Preska’s holding was limited only to the first FRP application. She gave
Plaintiff leave to file an amended complaint related to the second FRP application. (See Order to
Amend 7.) Accordingly, Plaintiff’s claims against King relating to the second FRP application
are properly before the Court and will be addressed below.
2. Equal Protection Claims
Defendants next contend that Plaintiff fails to state a claim upon which relief can be
granted. (See Defs.’ Mem. 8–10.) The SAC purports to make claims under the Equal Protection
Clause, and the Court will construe Plaintiff’s pleadings accordingly.
The Equal Protection Clause requires the government to treat all similarly situated
persons alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). While
the Equal Protection Clause is typically invoked to bring lawsuits claiming discrimination based
on membership in a protected class, where a plaintiff does not allege membership in a protected
class, he may still prevail on a “class-of-one” theory of equal protection. See Neilson v.
D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other grounds by Appel v. Spiridon,
531 F.3d 138 (2d Cir. 2008) (per curiam). A class-of-one claim arises when a plaintiff claims
that he was “intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000).
In order to succeed on such a claim, the plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff to differ from
those of a comparator to a degree that would justify the differential treatment on
10
the basis of a legitimate government policy; and (ii) the similarity in circumstances
and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.
Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (quoting Neilson,
409 F.3d at 104). Class-of-one plaintiffs must show “an extremely high degree of similarity
between themselves and the persons to whom they compare themselves.” Ruston v. Town Bd.
for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (internal quotation marks omitted).
“Because of the particular posture of a ‘class of one’ claim, the comparator’s circumstances must
be ‘prima facie identical.’” Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp.
2d 679, 693 (S.D.N.Y. 2011) (quoting Neilson, 409 F.3d at 105). The comparison to similarly
situated individuals should “provide an inference that the plaintiff was intentionally singled out
for reasons that so lack any reasonable nexus with a legitimate government policy that an
improper purpose—whether personal or otherwise—is all but certain.” Neilson, 409 F.3d at 105.
“It is well established that this pleading standard is demanding.” Hampshire Recreation, LLC v.
Village of Mamaroneck, No. 14-CV-7228, 2016 WL 1181727, at *6 (S.D.N.Y. Mar. 25, 2016)
(internal quotation marks omitted).
Plaintiff has not adequately alleged a class-of-one claim with respect to Mason because
he has not alleged that any other inmates who obtained marriage licenses from New York City
were treated differently. Plaintiff alleges, in fact, that all of his peer inmates obtained their
marriage licenses from the Ossining Town Clerk, (see Second Am. Compl. ¶ 11), and that Mason
mailed all of the marriage licenses to the Ossining Town Clerk, (see id. ¶ 16). Plaintiff attempts
to identify a broader class of comparators, alleging that Mason returned the marriage licenses of
his peer inmates “to the[] issuing agency where they purchased them,” but failed to do so for
Plaintiff. (See id. ¶ 17.) But plaintiffs seeking to make a class-of-one claim must show “an
11
extremely high degree of similarity between themselves and the persons to whom they compare
themselves.” Ruston, 610 F.3d at 59 (internal quotation marks omitted). Plaintiff’s comparison
to his peer inmates is insufficiently specific; he does not allege that any of his peers obtained
marriage licenses from anywhere other than Ossining, and thus the circumstances of Plaintiff and
his peers are not “prima facie identical.” Mosdos, 815 F. Supp. 2d at 693 (internal quotation
marks omitted); see also MB v. Islip Sch. Dist., No. 14-CV-4670, 2015 WL 3756875, at *10
(E.D.N.Y. June 16, 2015) (“[The] [p]laintiffs’ conclusory statement that [the comparator] is . . .
similarly situated to [the claimant], without any supporting facts to suggest an extremely high
degree of similarity between [the two] is insufficient to establish that no rational person could
regard [the claimant’s] circumstances to differ from those of [the comparator] to a degree that
would justify the differential treatment.” (alteration and internal quotation marks omitted)).
Moreover, as Plaintiff admits, (see Second Am. Compl. ¶ 16), and as the relevant DOCCS
Directive provides, see New York State DOCCS Directive 4201 (Mar. 15, 2012),
http://www.doccs.ny.gov/Directives/4201.pdf, Mason was under no obligation to accommodate
Plaintiff’s desire to have a marriage certificate issued by the New York City Marriage Bureau.3
If anything, Mason’s conduct in both mailing the marriage license to Plaintiff’s fiancé and
meeting with Plaintiff to discuss the next necessary steps, (see Second Am. Compl. ¶¶ 19, 21),
evinced a genuine effort to assist Plaintiff in finalizing his marriage. That Mason declined to
take the additional step of sending the marriage license to the New York City Marriage Bureau
3
That directive provides that “[t]he Offender Rehabilitation Coordinator shall conduct an
initial interview with the inmate to explain the entire marriage procedure emphasizing that while
[DOCCS] will assist the inmate, the primary responsibility for making all arrangements and
securing the necessary documents rests with the inmate and the intended spouse.” New York
State DOCCS Directive 4201, ¶ IV.B.1 (Mar. 15, 2012),
http://www.doccs.ny.gov/Directives/4201.pdf.
12
herself, a service she provided for no other inmate, does not suffice to establish a class-of-one
equal protection claim.
Nor has Plaintiff stated a class-of-one equal protection claim against King. As
Defendants note, (Defs.’ Mem. 9–10), there is an initial question of whether class-of-one equal
protection claims alleging differential treatment resulting from discretionary state action are
viable after Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), and Analytical
Diagnostic, 626 F.3d 135. In Engquist, the Supreme Court noted that “[t]here are some forms of
state action . . . which by their nature involve discretionary decisionmaking based on a vast array
of subjective, individualized assessments.” 553 U.S. at 603. “In such cases the rule that people
should be treated alike, under like circumstances and conditions is not violated when one person
is treated differently from others, because treating like individuals differently is an accepted
consequence of the discretion granted.” Id. (internal quotation marks omitted). The Court went
on to say that this principle applied “clearly in the employment context,” and therefore held that
“the class-of-one theory of equal protection . . . is simply a poor fit in the public employment
context.” Id. at 604–05. The Court concluded that “the class-of-one theory of equal protection
has no application in the public employment context.” Id. at 607.
Shortly after Engquist was decided, some courts in the Second Circuit interpreted
Engquist to hold that class-of-one equal protection claims were precluded for any government
actions that were discretionary, regardless of whether the issue involved public employment.
See, e.g., Catcove Corp. v. Heaney, 685 F. Supp. 2d 328, 333 (E.D.N.Y. 2010) (“[P]ost Engquist,
a plaintiff who proceeds on a class of one claim must allege that the differential treatment
resulted from non-discretionary state action.” (internal quotation marks omitted)); DeFabio v. E.
Hampton Union Free Sch. Dist., 658 F. Supp. 2d 461, 495 (E.D.N.Y. 2009) (noting that Engquist
13
“appears to foreclose as a matter of law a ‘class[]of[]one’ claim to the discretionary decisions”
made by school personnel), aff’d, 623 F.3d 71 (2d Cir. 2010); Siao-Pao v. Connolly, 564 F.
Supp. 2d 232, 245 (S.D.N.Y. 2008) (“[T]he Supreme Court . . . limit[ed] class of one claims in
contexts characterized by individualized and subjective determinations where allowing a
challenge based on the arbitrary singling out of a particular person would undermine the very
discretion that such state officials are entrusted to exercise.” (internal quotation marks omitted)).
But then the Second Circuit decided Analytical Diagnostic and held that “Engquist does not bar
all class-of-one claims involving discretionary state action.” 626 F.3d at 142. The court
highlighted the distinction in Engquist between “the government exercising the power to regulate
or license, as lawmaker, and the government acting as proprietor, to manage its internal
operations.” Id. (internal quotation marks omitted) (quoting Engquist, 553 U.S. at 598). The
Second Circuit found persuasive the reasoning of Judge Seybert in the Eastern District of New
York, who interpreted Engquist to prohibit only those “discretionary decisions . . . that involve
discretion that is actually exercised on a day-to-day basis, rather than decisions that are
theoretically discretionary but—as a practical matter—actually depend on de facto standards.”
Id. at 141 (internal quotation marks omitted) (quoting Alfaro v. Labrador, No. 06-CV-1470,
2009 WL 2525128, at *9 (E.D.N.Y. Aug. 14, 2009)).
The Second Circuit went on to hold that the plaintiff, a private clinical testing laboratory
that alleged that the New York Department of Health maliciously subjected the plaintiff to an
“intense and unwarranted degree of regulatory scrutiny” during inspections prior to revoking the
plaintiff’s operating permit, was not barred from bringing a class-of-one equal protection claim.
Id. at 137–38, 142–43. The court reasoned that the New York Department of Health “[did] not
possess unfettered discretion” in revoking or suspending existing operating permits, and that the
14
agency was required to “operate within the regulatory framework set forth in [New York law].”
Id. at 142. The court concluded that “[e]specially where the state is exercising its regulatory and
licensing power, we are loath to read Engquist as broadly as [the] defendants urge.” Id. at 142–
43. “Accordingly, in the wake of Analytical Diagnostic, class-of-one claims are not ipso facto
barred simply because the government’s conduct was discretionary.” Aliberti v. Town of
Brookhaven, 876 F. Supp. 2d 153, 162 (E.D.N.Y. 2012) (italics omitted).
Since Analytical Diagnostic, courts in the Second Circuit have attempted to delineate
between those claims prohibited by Engquist (and Analytical Diagnostic) and those claims left
unaffected. Compare Johnson v. Pallito, No. 12-CV-138, 2014 WL 2000369, at *3 (D. Vt. Apr.
21, 2014) (“Given that [the plaintiff’s] employment in a correctional facility is analogous to the
public employment at issue in Engquist, the holding of that case controls here and bars [the
plaintiff’s] class-of-one equal protection claim against [the defendant].”), adopted by 2014 WL
1922728 (D. Vt. May 14, 2014), and Barnes v. Abdullah, No. 11-CV-8168, 2013 WL 3816586,
at *6 (S.D.N.Y. July 22, 2013) (dismissing a class-of-one claim where “the conduct of [the
defendants] in deciding which inmates may participate in [drug rehabilitation programs] is more
akin to the state acting as a proprietor or employer than as a regulator”), with Aliberti, 876 F.
Supp. 2d at 163 (“[The] plaintiffs’ claim is not barred by Engquist because [the] plaintiffs were
not government employees and the [defendant] was exercising its regulatory power.”), and
Lexjac, LLC v. Incorporated Village of Muttontown, No. 07-CV-4614, 2011 WL 1059122, at *7
n.5 (E.D.N.Y. Mar. 18, 2011) (“Here, too, the [d]efendant did not manage its internal relations so
much as it exercised its regulatory, plat-approving power. Thus, to the extent that the Analytical
Diagnostic . . . court extended Eng[q]uist outside of the employment context, that ruling does
not apply here.”). In Barnes, the court held that a prisoner could not bring a class-of-one claim
15
based on his removal from a drug rehabilitation program. See 2013 WL 3816586, at *1, *6.
Finding that “the alleged differential treatment . . . resulted from state action that is within the
state’s discretion,” id. at *6, the court reasoned that “prison officials are vested with considerable
discretion concerning inmates’ participation in prison programs such as [the program at issue],”
and that “the conduct of prison officials in deciding which inmates may participate in such
programs is more akin to the state acting as a proprietor or employer than as a regulator,” id.
The court therefore concluded that the plaintiff was “unable to assert a class-of-one [e]qual
[p]rotection claim to challenge his removal from the [drug rehabilitation] program.” Id.
While the reasoning in Barnes is persuasive, the context here yields a different result. In
contrast to Barnes, whatever discretion prison officials may have exercised in denying Plaintiff’s
first application to the FRP, King made clear in her denial of Plaintiff’s application that she was
not exercising her discretion, but, in fact, was “in no way able to supersede [Mason’s]
determination.” (Second Am. Compl. at unnumbered 23.) Thus, King did not enjoy
“considerable discretion,” but instead was constrained by the procedures of which Plaintiff now
complains. And even if admission to the FRP is “theoretically discretionary,” “as a practical
matter,” admission in this circumstance was not a matter of discretion. Analytical Diagnostic,
626 F.3d at 141 (internal quotation marks omitted). Because King did not “possess unfettered
discretion,” id. at 142, Engquist does not bar Plaintiff’s class-of-one equal protection claim
against King related to her denial of Plaintiff’s second application to the FRP.4
However, Plaintiff has again failed to identify similarly situated comparators sufficient to
plead a class-of-one claim under the Equal Protection Clause. Plaintiff has not identified any
4
By contrast, Morris’s decision to deny Plaintiff’s first FRP application was arguably
discretionary, and thus may be barred by Engquist and Analytical Diagnostic. However, as set
forth above, that claim has already been dismissed by Judge Preska. (See Order to Amend 6–7).
16
inmates whose applications were denied by Morris and subsequently approved by King. Plaintiff
only argues that King treated his peers differently in “allow[ing] them to participate in the FRP,
process[ing] their application[s] and . . . investigating their process and marriage legality.” (Pl.’s
Affirmation in Opp. to Defs.’ Mot. To Dismiss (“Pl.’s Opp’n”) ¶ 9 (Dkt No. 64).) As above, this
generalized assertion of unequal treatment falls short of identifying “extremely” similar
comparators as required by the law of the Second Circuit. See Ruston, 610 F.3d at 59 (internal
quotation marks omitted). Plaintiff has therefore failed to state a claim against King under the
Equal Protection Clause.
3. Retaliation Claim
In his opposition papers, Plaintiff suggests that the motivation for Defendants’ alleged
misconduct is Plaintiff’s “history of filing complaints in court against their fellow employees.”
(Pl.’s Opp’n ¶ 10.) Although this allegation of retaliation was raised in Plaintiff’s First Amended
Complaint, (see Am. Compl. ¶ 23), Plaintiff removed it in the SAC, (see generally Second Am.
Compl.). As Defendants point out, “a party is not entitled to amend its complaint through
statements made in motion papers.” Shetiwy v. Midland Credit Mgmt., 980 F. Supp. 2d 461, 477
n.88 (S.D.N.Y. 2013) (internal quotation marks omitted) (quoting Wright v. Ernst & Young LLP,
152 F.3d 169, 178 (2d Cir. 1998)); see also LaFlamme v. Societe Air Fr., 702 F. Supp. 2d 136,
140 n.5 (E.D.N.Y. 2010) (“[T]he court declines to consider those documents submitted by [the]
plaintiffs to support allegations first raised in their motion papers and found nowhere in the
[c]omplaint.”). Application of that rule is particularly apt here, where Plaintiff removed the
allegation from an earlier amended complaint. And while Plaintiff is permitted to amend his
complaint once as a matter of right, see Fed R. Civ. P. 15(a)(1), and any time thereafter with
leave of the court, see id. at 15(a)(2), Plaintiff has already amended his complaint twice, and his
17
voluntary removal of the retaliation claim in the SAC militates against granting leave yet again
to include allegations already raised and withdrawn.
Even were the Court to entertain, however, Plaintiff’s scattered allusions to a retaliatory
motive on the part of Defendants, nothing in the SAC or in Plaintiff’s opposition papers suffices
to state a claim for retaliatory action in violation of the First Amendment. In order to survive a
motion to dismiss, a plaintiff asserting a First Amendment retaliation claim must allege “(1) that
the speech or conduct at issue was protected, (2) that the defendant took adverse action against
the plaintiff, and (3) that there was a causal connection between the protected speech and the
adverse action.” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal quotation marks
omitted). Courts are instructed to “approach prisoner retaliation claims with skepticism and
particular care, because virtually any adverse action taken against a prisoner by a prison official
. . . can be characterized as a constitutionally proscribed retaliatory act.” Davis v. Goord, 320
F.3d 346, 352 (2d Cir. 2003) (internal quotation marks omitted). Accordingly, First Amendment
retaliation claims brought by prisoners must “be ‘supported by specific and detailed factual
allegations,’ not stated ‘in wholly conclusory terms.’” Dolan v. Connolly, 794 F.3d 290, 295 (2d
Cir. 2015) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other
grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
Plaintiff’s filing of lawsuits against prison officials is indisputably a protected First
Amendment activity. See Espinal, 558 F.3d at 128–29; see also Tirado v. Shutt, No. 13-CV2848, 2015 WL 4476027, at *4 (S.D.N.Y. July 22, 2015) (“Inmates are . . . protected when they
file lawsuits against prison officials.”); Baskerville v. Blot, 224 F. Supp. 2d 723, 731 (S.D.N.Y.
2002) (same). In determining whether an adverse action has been taken against Plaintiff, the
Court conducts an objective inquiry, asking whether the alleged conduct “would deter a similarly
18
situated individual of ordinary firmness from exercising constitutional rights.” Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (alteration and internal quotation marks omitted).
It is unclear whether Defendants’ conduct rises to such a level. Even assuming it does, however,
Plaintiff has not alleged sufficient facts showing “a causal connection between the protected
conduct and the adverse action.” Espinal, 558 F.3d at 128 (internal quotation marks omitted).
Plaintiff’s history of filing lawsuits against prison officials is well documented. See, e.g.,
Mateo v. Bristow, No. 12-CV-5052, 2015 WL 925933 (S.D.N.Y. Mar. 4, 2015); Mateo v.
Gundrum, No. 10-CV-1103, 2013 WL 5464722 (N.D.N.Y. Sept. 30, 2013); Mateo v. O’Connor,
No. 10-CV-8426, 2012 WL 1075830 (S.D.N.Y. Mar. 29, 2012); Mateo v. Fischer, 682 F. Supp.
2d 423 (S.D.N.Y. 2010). But none of the Defendants here was named as a defendant in any of
those cases, and “[a]s a general matter, it is difficult to establish one defendant’s retaliation for
complaints against []other defendant[s].” Hare v. Hayden, No. 09-CV-3135, 2011 WL 1453789,
at *4 (S.D.N.Y. Apr. 14, 2011); see also Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009)
(dismissing retaliation claim where “the only individual defendants named in the . . . [c]omplaint
were Goord, McDermott, and Dirie, none of whom was alleged to have participated in th[e]
[retaliatory] event”); Henson v. Gagnon, No. 13-CV-590, 2015 WL 9809874, at *12 (N.D.N.Y.
Dec. 10, 2015) (“The record is devoid of evidence . . . that supports [the] [p]laintiff’s conclusory
assertion that [the defendant] planted evidence and issued the [m]isbehavior [r]eport based upon
evidence in retaliation for grievances [the] [p]laintiff had filed against other corrections
officers.”), adopted by 2016 WL 204494 (N.D.N.Y. Jan. 15, 2016). Plaintiff’s claim is similarly
handicapped by its failure to allege or otherwise suggest that Defendants even knew of the
complaints filed against other correction officers. See Wesley v. Kalos, No. 97-CV-1598, 1997
WL 767557, at *5 (S.D.N.Y. Dec. 11, 1997) (“To establish a claim of retaliatory transfer
19
requires [the plaintiff], at a minimum, to assert facts to show that the [d]efendants knew of [the
plaintiff’s] complaints prior to the transfer.”); see also Alston v. Pafumi, No. 09-CV-1978, 2016
WL 81785, at *7 (D. Conn. Jan. 7, 2016) (granting partial summary judgment where the plaintiff
identified “no record evidence from which a reasonable jury could infer that any other defendant
was aware of [the plaintiff’s] complaint”), reconsideration denied, 2016 WL 447423 (D. Conn.
Feb. 4, 2016); Tirado v. Shutt, No. 13-CV-2848, 2015 WL 774982, at *10 (S.D.N.Y. Feb. 23,
2015) (“Absent evidence that any defendant knew about his . . . grievance, [the plaintiff] has
failed to provide any basis to believe that they retaliated against him for a grievance in which
they were not named.”), adopted in relevant part by 2015 WL 4476027 (S.D.N.Y. July 22,
2015). In light of the absence of any facts suggesting that Defendants were involved in the prior
lawsuits, knew of the prior lawsuits, or had any involvement with defendants named in the prior
lawsuits, Plaintiff has failed to establish a plausible causal connection between the filing of his
prior lawsuits and the allegedly retaliatory actions taken here. Cf. Olutosin v. Lee, No. 14-CV685, 2016 WL 2899275, at *11 (S.D.N.Y. May 16, 2016) (denying motion to dismiss retaliation
claim where adverse actions occurred within ten months of the filing of the first lawsuit, one of
the defendants in the prior lawsuit worked closely with named defendants in the current lawsuit,
and one unnamed officer made a comment to the plaintiff regarding his earlier lawsuit). Thus,
even construing Plaintiff’s filings liberally, Plaintiff has failed to state a claim for retaliatory
action in violation of his First Amendment rights.5
5
As Plaintiff has failed to state a claim against any of Defendants, the Court declines to
address whether Defendants are entitled to qualified immunity.
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4. Dismissal With Prejudice
Because this is Plaintiff’s third attempt to plead a cause of action against Defendants, the
Court dismisses the SAC with prejudice.
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that [s]he has inadequately or inartfully pleaded and that
[s]he should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794, 795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better
pleading will not cure [them],” “[s]uch a futile request to replead should be denied.” Id. (citing
Hunt v. All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Even pro se plaintiffs
are not entitled to file an amended complaint if the complaint “contains substantive problems
such that an amended pleading would be futile.” Lastra v. Barnes & Noble Bookstore, No. 11CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff’d, 523 F. App’x 32 (2d Cir. 2013).
Courts are especially wary of giving plaintiffs multiple “bites at the apple” where a plaintiff has
already been granted leave to amend. See Anthony v. Brockway, No. 15-CV-451, 2015 WL
5773402, at *3 (N.D.N.Y. Sept. 30, 2015) ([The] [p]laintiff has already been given one
opportunity to amend his complaint . . . , and there is nothing in his second amended complaint
suggesting that [he] could do better given another opportunity.”); Al-Qadaffi v. Servs. for the
Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015)
(denying leave to amend where “[the plaintiff] has already had one chance to amend his
[c]omplaint, and there is still no indication that a valid claim might be stated if given a second
chance”), aff’d, 632 F. App’x 31 (2d Cir. 2016); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp.
2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended complaint with prejudice where the
21
plaintiff failed to cure the deficiencies identified in his initial complaint despite "being given
ample opportunity to do so").
Here, Plaintiff is on his third complaint. The Original Complaint was dismissed on all
grounds by Judge Preska, with leave to amend in a limited respect. (See Order to Amend.)
Plaintiff did so, (see Am. Com pl.), but after reviewing the grounds for Defendants' proposed
Motion To Dismiss, (see Letter from Kruti Dharia, Esq., to Court (Feb. 26, 20 15) (Dkt. No. 29)),
Plaintiff opted to file a third complaint, attempting to cure the deficiencies identified by
Defendants, (see Second Am . Compl.). At no point in these pleadings has Plaintiff successfully
stated a claim for relief. And Plaintiffs failure to do so is not a consequence of inartful pleading
or lack of legal acumen ; rather, Plaintiffs claims lack substance in the law. Indeed, the SAC is
detailed in its factual allegations, and provides documentary support for many of Plaintiffs
allegations. There is little question that Plaintiff has presented the Court with all ofthe facts
pertinent to his claims, yet even construing Plaintiffs pleadings liberally, Plaintiff has failed
again to state a claim . Accordingly, the dismissal of the SAC is with prejudice.
III. Conclusion
For the foregoing reasons, the Motion is granted with prejudice. The Clerk of the Court
is respectfully requested to terminate the pending Motion (Dkt. No. 61) and close the case.
SO ORDERED.
DATED:
Septembed ~ , 2016
White Plains, New York
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