Spinks v. Orleans County
Filing
26
DECISION AND ORDER granting 6 Motion to Dismiss; granting 16 Motion to Dismiss. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 6/22/2011. (JMB)
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
CHARLES SPINKS,
Plaintiff,
DECISION AND ORDER
10-CV-745A
v.
ORLEANS COUNTY,
Defendant.
I.
INTRODUCTION
Pending before the Court is a motion by defendant Orleans County to
dismiss plaintiff’s amended complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (“FRCP”). In his amended complaint, plaintiff claims
equal-protection violations and federal civil-rights violations actionable under 42
U.S.C. § 1983. Plaintiff maintains that Orleans County singled him out for an
investigation under New York’s animal-cruelty laws, among other dog owners in
Orleans County, because he is black. Orleans County seeks dismissal of the
amended complaint because plaintiff entered a guilty plea in state court and has
not pled that county officials knew about similarly situated dog owners whom
they should have investigated.
With the consent of opposing counsel, plaintiff filed his amended
complaint in response to Orleans County’s motion to dismiss. The Court
permitted Orleans County to update its motion papers to account for any new
information in the amended complaint. The Court held oral argument on June 3,
2011. For the reasons below, the Court grants Orleans County’s motion.
II.
BACKGROUND
This case concerns whether racial animus cost plaintiff his dog kennel
license and prompted an investigation for animal cruelty that led to a guilty plea
in state court. Plaintiff lives in the Town of Gaines in Orleans County and owned
approximately 35 dogs that he kept at his residence. A number of these dogs
belonged to a breed known as “coon dogs,” and plaintiff was a coon dog
breeder. As part of his dog owning and breeding activities, plaintiff belonged to
two different organizations: the “Coon Club,” which promotes breeding of coon
dogs for shows and hunting; and the Orleans County Houndsmen, which is a
social group for coon dog owners. Plaintiff has been a member of the Coon
Club for 17 years; he also has held a kennel license to breed his coon dogs,
though he has not pled how many years he held that license.
Although the amended complaint lacks detail concerning the history of
plaintiff’s relations with Orleans County, the alleged problems that plaintiff
experienced and that gave rise to this action began in September 2007. First,
“Plaintiff attempted to renew his kennel license through the County of Orleans;
2
this request was arbitrarily denied.” (Dkt. No. 15 ¶ 14.) The amended complaint
contains no other information about plaintiff’s efforts to renew his kennel license
or about any communication between plaintiff and Orleans County concerning
the license.1
Second, plaintiff was prosecuted in state court on charges of animal
cruelty. On September 21 and 26, 2007, an Orleans County animal control
officer responded to animal-related complaints concerning plaintiff’s residence.
On October 12, 2007, an investigator from the Humane Society of Rochester
and Monroe County (“Humane Society”) visited plaintiff’s residence to
investigate an animal cruelty report. Based on these three visits to plaintiff’s
residence, the Humane Society applied to Gaines Town Court on October 16,
1
Unfortunately, the amended complaint also shows several signs of poor
cutting and pasting from other documents. The amended complaint states that,
among other statutes, this Court has jurisdiction under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, even though this case
has nothing to do with employment discrimination. The amended complaint also
claims jurisdiction under 29 U.S.C. § 1331, which does not exist; and 29 U.S.C.
§§ 206 and 216, which set and enforce the federal minimum wage and also have
nothing to do with this case. The amended complaint describes the Monroe
County Humane Society as a second defendant, even though Orleans County is
the only defendant that was named in the caption and served. Finally, the
amended complaint states that plaintiff has retained counsel “to enforce the terms
and conditions of the employment relationship with Defendants and each of them”
(Dkt. No. 15 ¶ 60), even though Orleans County never has employed plaintiff and
this case has nothing to do with employment discrimination. The poor
draftsmanship seen in the amended complaint has prompted the Court to note
approximately 40 cases that plaintiff’s counsel has had dismissed in this District
alone in the past few years. (See attached Appendix.)
3
2007 for a warrant “directing a search for and seizure of the following property:
Any animal(s) found to be in violation of Section 373(2) and 353 of the New York
State Agriculture and Markets Law.” (Dkt. No. 16-2 at 3.)2 The Humane Society
presented the following information to Gaines Town Court in support of its
application:3
2
The Humane Society had authority under New York law to apply for a
search warrant. See N.Y. Agric. & Mkts. Law § 371 (“[A]ny agent or officer of any
duly incorporated society for the prevention of cruelty to animals may issue an
appearance ticket . . . , summon or arrest, and bring before a court or magistrate
having jurisdiction, any person offending against any of the provisions of article
twenty-six of the agriculture and markets law.”); id. § 372 (“Upon complaint under
oath or affirmation to any magistrate authorized to issue warrants in criminal
cases, that the complainant has just and reasonable cause to suspect that any of
the provisions of law relating to or in any wise affecting animals are being or
about to be violated in any particular building or place, such magistrate shall
immediately issue and deliver a warrant to any person authorized by law to make
arrests for such offenses, authorizing him to enter and search such building or
place, and to arrest any person there present found violating any of said laws,
and to bring such person before the nearest magistrate of competent jurisdiction,
to be dealt with according to law.”).
3
Although plaintiff has pled that his “dogs, at all times, were in good
condition, well fed, well provided and cared for” (Dkt. No. 15 ¶ 9.), the Court notes
the details of plaintiff’s prosecution because of his allegation that Orleans County
unlawfully searched his house and seized his dogs “without a finding of guilt.” (Id.
¶ 47.) The details come from documents that Orleans County has attached to its
motion papers and whose authenticity plaintiff has not challenged. “In
considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint. W here a document is not incorporated by reference,
the court may neverless consider it where the complaint relies heavily upon its
terms and effect, thereby rendering the document ‘integral’ to the complaint.
However, even if a document is ‘integral’ to the complaint, it must be clear on the
record that no dispute exists regarding the authenticity or accuracy of the
document. It must also be clear that there exist no material disputed issues of
4
A.
“On October 12, 2007 at approximately 11:00 a.m. I responded to
[plaintiff’s] location to investigate an animal cruelty report. From the
street the smell of dog feces was evident. 8-10 dogs with
dilapidated wooden doghouses were also visible from the road.
With the permission of the next door neighbor, Beverly Kramer, I
entered her property and was able to see 30–35 dogs. Some of the
dogs were chained to old wooden doghouses and others were in
raised coops. The coops are old, decrepit, and full of feces.
Several dogs are thin and unable to get out of their own feces. The
accumulation of feces under the coops is at least 2 feet deep.” (Id.)
B.
“The owner is in violation of the New York State Ag. & Markets law,
Section 353 subsection B. The dogs are being left outside exposed
to the elements without proper shelter. The doghouses are not
insulated or properly waterproofed.” (Id.)
C.
“On September 21, 2007 at approximately 12:00 P.M. I responded
to 14739 Ridge Rd., Town of Gaines, on a complaint of loose dogs
in roadway, and check the welfare of dogs at the Spinks home. I
checked the area and located an unidentified beagle at the property.
I knocked and rang the doorbell. No one answered door. I saw a
small puppy in a crate inside the residence. I called the beagle to
the rear of the residence to try to contain it as a courtesy to the
owner. When I entered the back yard, I encountered approximately
34 dogs (hunting breeds—beagles, red ticks, blue ticks, etc.)
chained to dog houses (not insulated) or in wire pens elevated off
the ground with plywood houses attached. Pens and dog houses
were in poor condition. Feces were in piles under wire pens,
creating an offensive odor. Two hounds were extremely thin with
hip bones protruding. One beagle had a young litter of pups.
Another beagle was birthing pups in an elevated pen. One of these
had fallen out of pen and onto the ground. I placed it back in pen.
Another pup from this litter was dead in pen. I was unable to secure
the loose beagle.” (Id. at 4.)
fact regarding the relevance of the document.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010) (internal quotation marks and citations omitted).
5
Justice C. Eugene Leigh of Gaines Town Court issued the requested
search warrant on October 16, 2007. In the search warrant, Justice Leigh
described plaintiff’s residence and limited the search to the hours between 6:00
a.m. and 9:00 p.m. Justice Leigh also authorized a search and seizure for the
following: “Any animal(s) found to be in confined, crowded or unhealthy
condition, or in unhealthy or unsanitary surroundings, in violation of Section
373(2) of the Agriculture and Markets Law or in the opinion of said officer, not
properly cared for or without sustenance, food or drink. Also any such evidence
which tends to demonstrate that an offense was committed or that a particular
person participated in the commission of an offense pursuant to Section 373(2)
and 353 of the Agriculture and Markets Law of the State of New York.” (Id. at 6.)
The Humane Society executed the warrant on October 16, 2007 and seized 35
dogs, 5 live puppies, and 3 recently dead puppies.
In response to what it perceived when executing the search warrant, the
Humane Society filed an Information in Gaines Town Court on or about October
24, 2007. The Information charged plaintiff with 38 misdemeanor counts of
cruelty to animals in violation of N.Y. Agriculture and Markets Law (“A&ML”)
§ 353 and 38 misdemeanor counts of failing to provide shelter in violation of
A&ML § 353b(2)(a). Accompanying the Information was a supporting deposition
from a Humane Society veterinarian who attended the execution of the search
warrant. The supporting deposition contained the following information:
6
All the dogs lived outside with small wood structures for
shelter. Some of the dogs were tethered on chains 6 (six) to 8
(eight) foot in length. Other dogs were confined inside the
structures.
The wood structures were in a state of disrepair with broken,
splintered wood floors, rusted broken wire floors and sides. Some
shelters lacked a solid roof thus exposing the dogs to the elements.
Many of these shelters housed 3 (three) to 4 (four) dogs,
clearly more than could comfortably fit causing the dogs to not have
the ability to easily move about. Most of the shelters also had more
than a few days worth of waste accumulated causing the dogs to
have to continually walk and stay in the waste leading to soiled and
urine soaked feet and bodies. Many of these shelters also had
weeks of stool accumulated between the wire floors rising up
several feet from the ground to just below the flooring. Some of the
shelters that had solid roofs were full of debris and appeared ready
to collapse.
The water buckets and troughs were dirty and moldy. Some
were contaminated with fecal matter and were unfit to drink from.
One dog tethered at it’s [sic] own shelter had 3 (three) dead
pups with it on the ground (one headless) that appeared to have
died approximately a day previous.
The dogs were transported back to the Humane Society
where physical exams were preformed on 35 (thirty five) dogs and 5
(five) puppies.
(Dkt. No. 16-2 at 12–13.) On October 3, 2008, plaintiff, his attorney Richard
Dever, and Orleans County prosecutor Joseph S. Sansone entered an
agreement to adjourn the case in contemplation of dismissal (“ACD”), pursuant
to N.Y. Criminal Procedure Law (“CPL”) § 170.55, with respect to the animalcruelty charges and to plead guilty to the improper-shelter charges. As part of
this agreement, plaintiff agreed to repay the Humane Society for costs incurred
and to consent to all searches of his property during the term of the ACD.
Plaintiff also agreed to waive any right to appeal the disposition of his case. At
7
no time did plaintiff take any action in state court to challenge the validity of the
search warrant or to suppress any evidence gathered when it was executed.
Nearly two years after his criminal case concluded, plaintiff decided to file
his complaint on September 15, 2010. Plaintiff filed an amended complaint on
January 12, 2011 in response to Orleans County’s pending motion. Orleans
County appears to have had no involvement in plaintiff’s criminal case other than
having one of its animal-control officers submit a deposition in support of the
Humane Society’s application for a warrant; and having one of its district
attorneys arrange the final disposition. Nonetheless, plaintiff named Orleans
County as the sole defendant.
The amended complaint contains four causes of action. In the first cause
of action, plaintiff accuses Orleans County of a “class of one” equal-protection
violation. According to plaintiff, no other member of the Orleans County
Houndsmen has insulated dog houses for his dogs, and yet no other member
has been prosecuted for improper shelter. Plaintiff further has named four other
individuals in Orleans County who allegedly did not have insulated dog houses
and yet have not been prosecuted. Orleans County wants this cause of action
dismissed because plaintiff’s prosecution stemmed from a search warrant that
state court issued upon a finding of probable cause. Plaintiff never challenged
the warrant and eventually pled guilty to some of the charges filed against him.
Additionally, plaintiff has not pled that Orleans County was aware of any other
8
dog owners who maintained their dogs in similar conditions that would prompt
the issuance of a search warrant.
In the second cause of action, plaintiff accuses Orleans County of
“selective and discriminatory prosecution” in violation of the Fourteenth
Amendment. According to plaintiff, Orleans County could have prosecuted the
other individuals that he mentions in his amended complaint but chose not to do
so on racial grounds—they are white in a county that is 94% white, while plaintiff
is black. Orleans County wants this cause of action dismissed because, again,
plaintiff has not pled that either he or anyone else has made Orleans County
aware of any other violations that should be prosecuted.
In the third cause of action, plaintiff accuses Orleans County of unlawfully
searching his premises and seizing his dogs in violation of the Fourth
Amendment. Plaintiff further accuses Orleans County of violating his Fourteenth
Amendment due-process rights by requiring a seizure bond to be posted to
avoid adopting out the dogs, and of ultimately sterilizing and adopting out the 28
dogs for which plaintiff could not afford to post a seizure bond. Orleans County
wants this cause of action dismissed because the search and seizure occurred
pursuant to a warrant issued by state court upon that court’s finding of probable
cause. Additionally, plaintiff never challenged the warrant in state court and
eventually chose to plead guilty to some of the charges filed against him.
9
In the fourth cause of action, plaintiff accuses Orleans County of violating
his civil rights under 42 U.S.C. § 1981 through its racially motivated decisions in
denying him a kennel license, seizing his dogs, and prosecuting him for animal
cruelty and improper sheltering of dogs. Orleans County wants this cause of
action dismissed because, as with the other causes of action, it is undermined
by plaintiff’s decisions not to challenge the search warrant and to plead guilty.
This cause of action is undermined further by plaintiff’s failure to plead that
Orleans County knew of similarly situated violators and chose not to act on that
knowledge.
III.
DISCUSSION
A.
FRCP 12(b)(6) Generally
In general, Orleans County challenges whether plaintiff has set forth any
legally sufficient claims. “A pleading that states a claim for relief must contain . . .
a short and plain statement of the claim showing that the pleader is entitled to
relief.” FRCP 8(a)(2). “A short and plain statement of the claim” does not mean a
short and plain statement of the eventual jury charge for that claim, or a short and
plain recitation of the legal elements for that claim. FRCP 8(a)(2) requires a
plaintiff to state, in concise but plausible fashion, what he currently thinks a
defendant actually did to him, subject to revision during later discovery. “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim
10
has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (internal quotation
marks and citations omitted). Courts assess the legal sufficiency of a claim while
“accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff’s favor.” Peter F. Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 61 (2d Cir. 2010) (internal quotation marks and
citation omitted).
B.
Lack of Conduct by Orleans County
As an initial matter, the Court cannot ignore that plaintiff has failed to
plead Orleans County’s connection to any of the unlawful conduct that he
describes in the last three causes of action of his amended complaint.4 “A
complaint is fatally defective on its face if it fails to allege that the defendants
were directly and personally responsible for the purported unlawful conduct.”
Cummings-Fowler v. Suffolk County Comm. Coll., No. 09-CV-3593, 2010 WL
4
Orleans County was willing to assume, for purposes of its motion, that it
seized plaintiff’s dogs, but it did raise this issue in its memorandum of law. (See
Dkt. No. 16-6 at 4 n.8.) Even if Orleans County had not raised the issue,
however, “[t]he district court has the power to dismiss a complaint sua sponte for
failure to state a claim.” Leonhard v. U.S., 633 F.2d 599, 609 n.11 (2d Cir. 1980)
(citations omitted).
11
4568987, at *4 (E.D.N.Y. Nov. 2, 2010) (citations omitted). Here, plaintiff’s
neighbors appear to have submitted complaints about plaintiff’s residence. The
Humane Society applied for a search warrant of plaintiff’s residence. A Gaines
Town Court justice made a finding of probable cause and issued the warrant.
The Humane Society executed the warrant and filed the Information against
plaintiff. In short, everyone except Orleans County initiated the investigation and
prosecution of plaintiff. The only involvement of Orleans County in this case
seems to be that an Orleans County animal control officer submitted a
deposition in support of the Humane Society’s application for a warrant, and that
an Orleans County prosecutor signed plaintiff’s plea agreement. “Having failed
to allege, as [plaintiff] must, that [Orleans County was] directly and personally
responsible for the purported unlawful conduct, [his] complaint is ‘fatally
defective’ on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.
1987) (citations omitted); accord Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir.
1989) (“Without any allegations that [Orleans County] was ‘directly and
personally responsible for the purported unlawful conduct,’ [plaintiff] failed to
assert a distinct claim against [it], rendering [his] complaint as to [Orleans
County] ‘fatally defective’ on its face.”) (quoting Alfaro Motors). This basis alone
suffices to dismiss the last three causes of action of the amended complaint.
12
The Court will proceed to assess the merits of Orleans County’s motion
assuming that, in the alternative, plaintiff’s amended complaint has no facial
defects.
C.
First Cause of Action: “Class of One” Discrimination
The standard for “class of one” equal-protection violations applies to the
claim in plaintiff’s first cause of action that Orleans County irrationally denied him
a kennel license.5 Supreme Court cases “have recognized successful equal
protection claims brought by a ‘class of one,’ where the plaintiff alleges that she
has been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment. In so doing, we have
explained that the purpose of the equal protection clause of the Fourteenth
Amendment is to secure every person within the State’s jurisdiction against
intentional and arbitrary discrimination, whether occasioned by express terms of
a statute or by its improper execution through duly constituted agents.” Village
5
The first cause of action also contains a selective-enforcement claim, but
that claim is distinct from the class-of-one claim and will be addressed with the
second cause of action. See Casciani v. Nesbitt, 659 F. Supp. 2d 427, 444–45
(W.D.N.Y. 2009) (Larimer, J.) (“While the Second Circuit has not resolved the
question of whether there is truly a distinction between selective enforcement
and class of one equal protection theories, courts in this circuit have repeatedly
treated them as distinct theories with distinct elements of proof and have
accordingly evaluated them as separate claims.”) (internal quotation marks and
citations omitted); id. at 435 n.2 (“Although the complaint uses the term
‘selective prosecution,’ for the purposes of this case there is no practical
difference between a claim of selective prosecution and a claim of selective
enforcement, and the two will be used interchangeably.”).
13
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (internal
quotation marks, alteration, and citations omitted). Class-of-one claims must
satisfy two elements. “[T]o succeed on a class-of-one claim, a 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 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) (internal block
quoting and citations omitted). These two elements, when pled early in a case
or proven at trial, emphasize that what makes a class-of-one equal-protection
violation offensive “is not simply the act of singling out, but rather that the
singling out is done in such an arbitrary way.” Flying J Inc. v. City of New
Haven, 549 F.3d 538, 547 (7th Cir. 2008) (citation omitted).
Even though plaintiff need only plead a complete class-of-one claim this
early in his case, he has not crossed even this minimal threshold. After
separating the details of plaintiff’s narrative concerning selective enforcement
and unlawful search and seizure, his narrative about his kennel license consists
of one sentence: “In September 2007, Plaintiff attempted to renew his kennel
license through the County of Orleans; the request was arbitrarily denied.” (Dkt.
No. 15 ¶ 14.) Plaintiff has not pled that anyone else in Orleans County has a
14
kennel license. Plaintiff has not pled that any other holders of kennel licenses
successfully renewed their licenses when Orleans County denied his renewal.
Cf. Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)
(“[T]he Rustons do not allege specific examples of the Town’s proceedings, let
alone applications that were made by persons similarly situated. The equal
protection claim as to the Town defendants therefore fails for lack of factual
allegations to support the legal conclusion.”). Plaintiff also has not pled any
information that would allow the Court to compare him to other license holders,
such as, for example, Orleans County’s stated rationale to each license holder
compared to each holder’s eligibility for a renewal. See Clubside, Inc. v.
Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (“We have held that class-of-one
plaintiffs must show an extremely high degree of similarity between themselves
and the persons to whom they compare themselves.”) (citation omitted).
Plaintiff’s one-sentence assertion of an arbitrary license denial is so conclusory
that the Court would have to go beyond making favorable inferences and
assume an entire factual background to sustain plaintiff’s claim. The Court
declines to do so, and accordingly grants Orleans County’s motion as to the first
cause of action.
D.
Second Cause of Action: Selective Enforcement / Prosecution
“Whereas a class-of-one claim typically focuses on the sheer irrationality
of the manner in which the plaintiff was treated, a selective-enforcement plaintiff
15
must show that, compared with others similarly situated, he was selectively
treated, and that ‘such selective 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.’”
Casciani, 659 F. Supp. 2d at 435 (quoting Miner v. Clinton County, 541 F.3d
464, 474 (2d Cir.2008)) (other citations omitted); see also Lisa’s Party City, Inc.
v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999) (setting forth the two
elements of a selective-enforcement claim). Selective treatment by a
governmental entity implies some sort of conscious decision to take action
against some people but not others against whom the same action could be
taken. Accordingly, the first element of a selective-enforcement claim contains
the implicit requirement that the governmental entity in question have some
awareness of others against whom it could take the same action. Cf. LaTrieste
Rest. v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir. 1999) (“While there is
no doubt that the previous occupants of the premises violated the zoning
restriction and that the Village did not enforce the restriction against them,
LaTrieste failed to show that the Village knew about these violations. Absent
such proof, LaTrieste would be hard-pressed to show that it was singled out for
selective treatment.”); Christian v. Town of Riga, 649 F. Supp. 2d 84, 94
(W.D.N.Y. 2009) (Telesca, J.) (“Further, the Second Circuit has held that, to the
extent a municipality is selectively enforcing land use restrictions, a plaintiff
16
would be ‘hard pressed’ to demonstrate selective treatment without also
demonstrating the municipality’s knowledge of the other, unenforced violations.”)
(citing LaTrieste).
Applying the elements of a selective-enforcement claim to the issue of
animal-cruelty laws here, plaintiff must plead sufficiently two elements: (1) that
Orleans County enforced A&ML §§ 353, 353b(2)(a), and 373(2) against plaintiff
and not against other dog owners whom it knew was violating those statutes
similarly; and (2) that race or some other malicious intent drove Orleans County
to enforce those statutes against only plaintiff and not against any other
violators.
A review of the factual assertions in the amended complaint shows that
plaintiff has not pled the first element of his selective-enforcement claim
sufficiently. Plaintiff has pled that he is a member of the 27-member Orleans
County Houndsmen, that every other member of this group owns dogs, and that
no other member owns insulated dog houses. Plaintiff also has named four
other residents of Orleans County who own hunting dogs but do not have
insulated dog houses.6 The amended complaint is missing three important
6
Plaintiff has pled most of the facts concerning similarly situated dog
owners “upon information and belief.” Facts pled upon information and belief
are permitted by FRCP 11(b) and are permitted in opposition to a motion to
dismiss. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)
(“The Twombly plausibility standard, which applies to all civil actions, does not
prevent a plaintiff from pleading facts alleged upon information and belief where
17
pieces of information, however. Plaintiff has not pled that any of the allegedly
similarly situated people mentioned in the amended complaint are breeders, as
he is. Although plaintiff has pled that others have been keeping dogs outside in
inadequate shelters, he has not pled that anyone mentioned in the amended
complaint also was observed keeping 35 dogs in unsanitary conditions. Finally,
and most importantly, plaintiff has not pled anywhere in the amended complaint
that Orleans County had any reason to know of any ongoing violations similar to
the violations alleged against him. For example, the amended complaint implies
that Orleans County began investigating plaintiff after receiving a tip from a nextdoor neighbor with whom plaintiff has an antagonistic relationship. Plaintiff has
not pled that Orleans County has received similar tips about anyone else and
has chosen not to act on them. If plaintiff cannot make even an initial assertion
that Orleans County had potential violators from whom to “select” then its
enforcement against plaintiff cannot be seen as “selective.” The Court thus
grants Orleans County’s motion as to the second cause of action.
E.
Third Cause of Action: Search and Seizure / Due Process
The unlawful conduct that plaintiff has alleged in his third cause of action
all flowed from the decision by Gaines Town Court to grant the Humane
the facts are peculiarly within the possession and control of the defendant, or
where the belief is based on factual information that makes the inference of
culpability plausible.”) (internal quotation marks and citations omitted);
18
Society’s application for a search warrant. Plaintiff’s third cause of action, then,
reduces to an attack on the validity of that search warrant. “Under 28 U.S.C.
§ 1738 a federal court must, in according full faith and credit, give to a State
court judgment the same preclusive effect as would be given to the judgment
under the law of the State in which the judgment was rendered. This rule
applies with equal force to actions brought under 42 U.S.C. § 1983.” Johnson v.
Watkins, 101 F.3d 792, 794 (2d Cir. 1996) (citations omitted). In addition to the
full faith and credit doctrine, plaintiff’s belated attack on the search warrant
implicates the doctrine of collateral estoppel. “The ‘fundamental notion’ of the
doctrine of collateral estoppel, or issue preclusion, is that an issue of law or fact
actually litigated and decided by a court of competent jurisdiction in a prior action
may not be relitigated in a subsequent suit between the same parties or their
privies.” Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (internal quotation
marks and citation omitted); see also Singleton v. City of N.Y., 632 F.2d 185,
205 (2d Cir. 1980) (“Accrual of the civil rights claim at the conclusion of the
criminal proceeding achieves a more efficient allocation of judicial resources
since the identical issues determined in the state court proceeding need not be
relitigated in the federal court.”) (citations omitted).
Here, plaintiff’s inaction in state court and his eventual guilty plea
undermine his efforts now to declare the search of his residence unlawful. The
Gaines Town Court received a facially meritorious application for search warrant
19
and decided that probable cause existed to issue the warrant. Plaintiff never
challenged the warrant in state court and never sought to suppress any
evidence obtained when it was executed. Plaintiff’s decision is important
because when a suppression order from a state court “excludes tangible
property unlawfully taken from the defendant’s possession, and when such
property is not otherwise subject to lawful retention, the court may, upon request
of the defendant, further order that such property be restored to him.” CPL
§ 710.70(1) (Westlaw 2011). Since the time to conduct any such state court
proceedings almost certainly passed a long time ago, the state court’s issuance
of the search warrant is final and deserves full faith and credit from this Court.
See also CPL § 710.70(3) (“[A] defendant who does not make such a motion
before or in the course of a criminal action waives his right to judicial
determination of any such contention.”). Additionally, plaintiff ratified the
decision to issue the warrant and all of the criminal proceedings that occurred in
state court by taking a guilty plea. As for any allegations about due process,
plaintiff similarly ratified the actions of the Humane Society by choosing not to
contest the requirement of a seizure bond in state court. Under these
circumstances, there is no way to sustain plaintiff’s allegations without directly or
indirectly attacking the validity of the search warrant that set in motion all of the
events underlying this case. The Court declines plaintiff’s invitation to do just
20
that. Accordingly, the Court grants Orleans County’s motion with respect to
plaintiff’s third cause of action.
F.
Fourth Cause of Action: Section 1981 Claim
Plaintiff’s failure, in the first three causes of action of his amended
complaint, to state a claim upon which relief could be granted requires dismissal
of the fourth cause of action as well. In his fourth cause of action, “Plaintiff
claims he was subject to discriminatory treatment motivated by Plaintiff’s race
under 42 U.S.C. § 1981 as set forth in the above stated paragraphs.” (Dkt. No.
15 ¶ 57 (emphasis added).) By making reference to the “above stated
paragraphs,” plaintiff bases his Section 1981 claim entirely on his prior
allegations of equal-protection violations, of unlawful search and seizure, and of
due-process violations.
“To establish a claim under § 1981, a plaintiff must allege facts in support
of the following elements: (1) the plaintiff is a member of a racial minority; (2) an
intent to discriminate on the basis of race by the defendant; and (3) the
discrimination concerned one or more of the activities enumerated in the statute
(i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” Mian
v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)
(citations omitted); see also Phillip v. Univ. of Rochester, 316 F.3d 291, 297–98
(2d Cir. 2003) (“Because both contracts and torts are areas of particular state
concern, there is no persuasive reason why racially motivated torts that deprive
21
a plaintiff of the equal benefit of laws or proceedings for the security of persons
and property should be outside the ambit of federal authority while racially
motivated breaches of contract are not.”). As explained elsewhere in this
Decision and Order, plaintiff has not pled that anyone else in Orleans County
has a kennel license and that he is similarly situated to them, so as to sustain his
“class of one” discrimination claim. Plaintiff has not pled that Orleans County
was aware of other ongoing violations of A&ML §§ 353, 353b, and 373, so as to
sustain his selective-enforcement claim. Plaintiff also has not pled that he
successfully vacated the search warrant issued for his residence, suppressed
evidence obtained pursuant to it, defeated any criminal charges filed against
him, or otherwise challenged any proceedings occurring against him in state
court. Plaintiff would have needed to make such a pleading to sustain his third
cause of action. To the contrary, plaintiff took a guilty for one set of charges
against him, took an ACD for the other set, and promised to reimburse the
Humane Society for costs that it incurred. Without the first three causes of
action, there is no conduct described in the amended complaint that would
constitute a violation of Section 1981 attributable to Orleans County. The Court
accordingly grants Orleans County’s motion with respect to plaintiff’s fourth
cause of action.
22
G.
No Further Re-pleading Warranted
The final issue that the Court will consider is whether plaintiff should have
leave to file another amended complaint. “It is the usual practice upon granting
a motion to dismiss to allow leave to replead. Although leave to replead is within
the discretion of the district court, refusal to grant it without any justifying reason
is an abuse of discretion. Of course, where a plaintiff is unable to allege any fact
sufficient to support [his] claim, a complaint should be dismissed with prejudice.”
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (citations
omitted). The circumstances of this case make any further re-pleading
unnecessary. Plaintiff’s original complaint contained the same four causes of
action as the amended complaint. Orleans County’s original motion papers (Dkt.
No. 6) put plaintiff on notice of all of the legal arguments that the Court has
addressed here. In response, plaintiff filed his amended complaint, which left all
four causes of action intact and added only a few extra paragraphs in an attempt
to address Orleans County’s arguments. Plaintiff thus has had one opportunity
already to defeat the pending motion through an amended pleading.
Additionally, no amount of pleading can change this Court’s obligation to give full
faith and credit to the final disposition of plaintiff’s criminal case in state court.
Under these circumstances, the Court finds that no further re-pleading is
warranted and that dismissal of the amended complaint can be with prejudice.
23
IV.
CONCLUSION
For all of the foregoing reasons, the Court grants Orleans County’s motion
(Dkt. Nos. 6, 16). The amended complaint is hereby dismissed in its entirety.
The Clerk of the Court shall close this case.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: June 22, 2011
24
APPENDIX
The following are cases that plaintiff’s counsel, Christina A. Agola, litigated
in this District but that were dismissed on a Rule 12 or Rule 56 motion:
Case No.
Case Name
Dismissed
Appeal?
07-CV-6008T
Szarzynski v. Roche Labs., Inc.
03/04/2010
No
07-CV-6056T
Barnhart v. Town of Parma
09/23/2010
No*
02/19/2010
Affirmed*
04/19/2011
(* = Motion for reconsideration
pending)
07-CV-6149L
Johnson v. Univ. of Rochester
Med. Ctr.
(* = Denial of reconsideration and
award of sanctions affirmed, 2011
WL 1466522)
07-CV-6159T
General v. Ctr. for Disability
Rights
04/12/2011
Pending
07-CV-6163T
Alessi v. Monroe County
01/14/2010
No
07-CV-6191T
Ikejiaku v. Rochester City Sch.
Dist.
03/23/2011
No
07-CV-6250S
Rojas v. Roman Catholic Diocese
of Rochester
10/13/2010
Pending
07-CV-6270S
Colombo v. E. Irondequoit Cent.
Sch. Dist.
12/23/2010
No
07-CV-6298L
Mack v. Rochester City Sch. Dist.
08/19/2010
No
07-CV-6430T
Claffey v. Wegman’s Food Mkts.,
Inc.
03/04/2010
Withdrawn
07-CV-6483L
Rivera v. Rochester Genesee
Reg’l Transp. Auth.
01/27/2011
Pending
25
07-CV-6500S
Vito v. Bausch & Lomb, Inc.
03/04/2010
Affirmed
12/17/2010
(Unpublished affirmance at 403
Fed. App’x 593)
07-CV-6544T
Lawson v. Rochester City Sch.
Dist.
10/22/2010
Pending
07-CV-6553T
Ikewood v. Xerox Corp.
01/19/2011
No
08-CV-6017S
Meggison v. Paychex, Inc.
01/11/2010
No
08-CV-6063T
Williams v. City of Rochester
03/26/2010
Dismissed
by default
08-CV-6166L
Heaphy v. Webster Cent. Sch.
Dist.
01/31/2011
Pending
08-CV-6191S
10-CV-6345S
Garner v. DII Indus., LLC
02/08/2010
02/16/2011
No
Pending
08-CV-6300L
09-CV-6421L
Malcolm v. Honeoye Falls Lima
Cent. Sch. Dist.
05/20/2011
09/15/2010
Pending
Pending
08-CV-6463T
Thomas v. N.Y. State Dep’t of
Transp.
07/01/2010
No
08-CV-6565S
Johnson v. Xerox Corp.
03/21/2011
No
08-CV-6572T
Avgerinos v. Palmyra-Macedon
Cent. Sch. Dist.
03/11/2010
No
09-CV-6061L
Stein v. Churchville-Chili Cent.
Sch. Dist.
01/21/2011
No
09-CV-6075L
Zembiec v. County of Monroe
02/23/2011
Pending
09-CV-6079L
Virgil v. Town of Gates
11/05/2010
Pending
09-CV-6083T
Flint v. Tucker Printers, Inc.
01/11/2011
No
09-CV-6178L
Sullivan v. Chappius
05/06/2010
No
09-CV-6181S
Garside v. Hillside Family of
Agencies
01/06/2011
No
26
09-CV-6251L
Hoffmann v. Airquip Heating & Air
Conditioning
01/28/2011
Pending
09-CV-6259T
Andersen v. Rochester City Sch.
Dist.
04/18/2011
Pending
09-CV-6404L
Thomsen v. Stantec, Inc.
05/20/2011
Pending
09-CV-6418S
Emmerling v. Town of Richmond
08/04/2010
Affirmed
06/14/2011
(Unpublished affirmance at 2011
WL 2315167)
09-CV-6569L
Foster v. Humane Society of
Rochester & Monroe County, Inc.
07/23/2010
No
09-CV-6571S
Renzoni v. Finger Lakes Dev’l
Disabilities Serv. Office
06/08/2010
No
10-CV-6337S
Perry v. Wayne Arc
11/24/2010
Affirmed
05/27/2011
(Unpublished affirmance at 2011
WL 2117950)
10-CV-6357T
Turner v. Nazareth Coll.
02/03/2011
Withdrawn
10-CV-6427L
Drumm v. SUNY Geneseo Coll.
05/19/2011
Pending
10-CV-6630T
Woodworth v. Shinseki
06/06/2011
Not yet
11-CV-6098T
Tiberio v. Allergy Asthma
Immunology of Rochester
05/27/2011
Not yet
27
P:\ArcaraOrder\Spinks D&O Dismiss class of one no similarly situated.wpd
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?