Morton v. County of Erie et al
Filing
48
DECISION AND ORDER denying 31 Motion for Summary Judgment and granting in part 36 Motion for Summary Judgment. The Court denies Plaintiff's motion for summary judgment, grants Defendant's motion for summary judgment as to Plaintiff 039;s federal due process claim, and declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. The Clerk of Court is directed to close the case. Signed by Hon. Elizabeth A. Wolford on 09/26/2018.(CDH)-CLERK TO FOLLOW UP-
fILEC
UNITED STATES DISTRICT COURT
/^/
WESTERN DISTRICT OF NEW YORK
.
TED MORTON,
\'A
SEP 26 201?
D i STR^c
Plaintiff,
DECISION AND ORDER
V.
1:I6-CV-006I7EAW
COUNTY OF ERIE,
Defendant.
INTRODUCTION
Plaintiff Ted Morton ("Plaintiff), the former elected Legislator for the Eighth
District of Erie County, fded this action on July 29, 2016, bringing claims against
Defendant the County of Erie("Defendant" or the "County")related to the imposition of a
$500 fine upon him by the Erie County Board of Ethics (the "Board"). (Dkt. I). Plaintiff
asserts a claim pursuant to 42 U.S.C. § 1983 ("§ 1983") for alleged violations of his due
process rights, and he also requests a declaratory judgment that, among other things, his
state and federal civil rights were violated and Erie County Local Law 10-1989 ("Local
Law 10-1989") is ultra vires, invalid, and unenforceable. (Dkt. 25).
Presently before the Court are Plaintiffs motion for summary judgment (Dkt. 31)
and Defendant's cross motion for summary judgment (Dkt. 36). For the reasons set forth
below. Plaintiffs motion for summary judgment (Dkt. 31) is denied, Defendant's motion
for summary judgment (Dkt. 36) is granted with respect to Plaintiffs federal due process
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claim, and the Court declines to exercise supplemental jurisdiction over Plaintiffs
remaining state law claims.
BACKGROUND
I.
Procedural Background
Plaintiff filed this action on July 29, 2016, bringing claims for violation of due
process, violation of equal protection. First Amendment retaliation, state law defamation
and negligence, and seeking a declaratory judgment. (Dkt. 1). On October 14, 2016,
Defendant filed a motion to dismiss Plaintiffs complaint. (Dkt. 6). Plaintiff filed an
amended complaint on November 4, 2016, alleging the same causes of action as the
original complaint with the exception of the equal protection claim. (Dkt. 8). Defendant
filed a motion to dismiss the amended complaint on November 18, 2016. (Dkt. 11).
The Court held oral argument on June 28, 2017, and issued a ruling from the bench
granting in part and denying in part Defendant's motion to dismiss. (See Dkt. 24 at 37-46).
The Court dismissed Plaintiffs First Amendment retaliation claim without prejudice but
denied the motion to dismiss as to all other claims. (Id.). The Court issued a Text Order
on June 29, 2017, confirming its ruling from the bench, and noting that Plaintiff had been
granted leave to file a second amended complaint on or before July 17, 2017. (Dkt. 21).
The Court subsequently extended this deadline (Dkt. 23), and Plaintiff filed a second
amended complaint on October 5,2017(Dkt. 25). Plaintiffrepleaded his First Amendment
retaliation claim and again alleged due process violations, negligence, and defamation, and
sought a declaratory judgment with respect to his state and federal causes of action. (Id.).
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On January 19, 2018, the Court entered a stipulation dismissing Plaintiffs First
Amendment retaliation, defamation, and negligence claims with prejudice, pursuant to
Federal Rule of Civil Procedure 41(a)(1). (Dkt. 34). The same day. Plaintiff filed the
instant motion for summary judgment. (Dkt. 31). On February 20, 2018, Defendant filed
a cross motion for summary judgment and response to Plaintiffs motion. (Dkt. 36).
Plaintiff filed a reply in support of his motion on March 6, 2018 (Dkt. 38), and filed a
response to Defendant's cross motion on March 20, 2018 (Dkt. 39). Defendant filed a
reply in support of its cross motion on April 3, 2018. (Dkt. 40).
This Court held oral argument on the parties' motions for summary judgment on
May 24, 2018. (See Dkt. 44). The Court reserved decision and requested additional
briefing on the issue of whether the County's alleged violation of its own internal rules
rises to the level of a constitutional violation under the Due Process Clause of the United
States Constitution. Plaintiff submitted additional briefing on June 1, 2018 (Dkt. 45), and
Defendant submitted its response on June 15, 2018(Dkt. 47).
II.
Factual Background
The essence of this case is a dispute over a $500 fine imposed on Plaintiff by the
Board for Plaintiffs failure to correctly fill out a financial disclosure form. (See Dkt. 8 at
7). Plaintiff was formerly an Erie County Legislator, representing Erie County's Eighth
District. (PI. Stmt. at ^ 2; Def. Stmt. at ^ 2).' In May 2014, Plaintiff submitted his annual
'
"PI. Stmt." refers to Plaintiffs Rule 56 Statement of Material Facts Not in Dispute.
(Dkt. 31-3). "Def. Stmt." refers to Defendant's response to Plaintiffs statement of
undisputed facts. (Dkt. 36-1).
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financial disclosure form for calendar year 2013, as required by Local Law 10-1989, which
establishes a code of ethics for Erie County. (PI. Stmt. at Tf 23; Def. Stmt at Tf 23).
Plaintiffs financial disclosure form contained erroneous information. (PI. Stmt. at Tf 23;
Def. Stmt. at ^ 23). Plaintiff maintains that he mistakenly listed the debts he owed as of
the date of filing rather than the end of the previous year, as required by the form. (PI.
Stmt. at TI23). Plaintiff filed an amended financial disclosure form on October 13, 2015,
in an attempt to correct his mistake. (PI. Stmt. at ^ 25; Def. Stmt. at T| 25). Before filing
the corrected statement. Plaintiff had paid off several debts that he owed as of December
31, 2013. (PI. Stmt. at ^ 26; Def. Stmt. at ^ 26(denying knowledge)).
Plaintiffs financial disclosure form became an issue during his 2015 re-election
campaign. (PI. Stmt. at ^ 24; Def. Stmt. at ^ 24). The Board's Chair, Steven Schwartz
("Schwartz"), met with Plaintiffs legislative assistant, Robert Matthews("Matthews"), in
November 2015,and informed Matthews that the Board was "look[ing] into"the erroneous
financial disclosure statement. (Dkt. 25 at
27-28).
Schwartz then sent a letter to
Plaintiff on December 7, 2015, requesting information concerning the debts noted in
Plaintiffs form, as well as the dates of any repayment, among other things. (PI. Stmt. at
^ 27; Def. Stmt. at
27 (referring to the letter (Dkt. 14-5 at 2) for its contents)). In the
letter, the Board took "no position . . . with respect to accepting any revised form and
whether any violations ofthe Code ofEthics exist[]." (Dkt. 14-5 at 2). Plaintiffresponded
by letter on January 14, 2016. (Dkt. 14-6 at 2-3), In that letter. Plaintiff explained that he
had misread the "when-as" dates on the form regarding any debts outstanding. {Id.).
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On February 1, 2016, the Board sent a letter to Plaintiff informing him that it was
imposing a $500 fine because it had "determined that a violation of the Ethics Code has
occurred to the extent that you should have known that the statements made on the form
were erroneous." (Dkt. 14-7 at 2). The Board's letter further stated that Plaintiff could file
a request for reconsideration within 30 days. {Id.). By letter dated February 29, 2016,
Plaintiff objected to and sought reconsideration ofthe Board's decision to impose the fine.
(Dkt. 14-8 at 2). In his letter. Plaintiff argued that his error was not made "knowingly and
willingly" or "with intent to deceive" and stated that Local Law 10-1989 provides a
prescribed disclosure form that requires disclosure of debts "as ofthe date ofthe filing," a
requirement with which Plaintiffs submission complied. {Id.). The Board affirmed its
decision by letter on April 4, 2016. (Dkt. 14-9 at 2).
Plaintiff again requested
reconsideration. (Dkt. 25-1 at 56-57). The Board refused to alter its original decision, and
Plaintiff informed the Board by letter that he would pursue legal action due to the Board's
alleged violation of his state and federal rights. {Id. at 59).
DISCUSSION
I.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita
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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Once the moving
party has met its burden, the opposing party "must do more than simply show that there is
some metaphysical doubt as to the material facts.... [T]he nonmoving party must come
forward with specific facts showing that there is a genuine issue for trial." Caldarola v.
Calabrese, 298 F.3d 156, 160(2d Cir. 2002)(quoting Matsushita Elec., 475 U.S. at 58687). "[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment. .. ." Anderson v.
Liberty Lobby, Inc., All U.S. 242, 247-48 (1986).
II.
PlaintifPs § 1983 Due Process Claim
A.
Legal Standard
Section 1983 provides a federal cause of action for an alleged deprivation of a
federal right by a person acting under color of state law. Wimmer v. Suffolk Cty. Police
Dep't, 176 F.3d 125, 136-37 (2d Cir. 1999). To prevail on a § 1983 claim, the plaintiff
must prove that the challenged conduct was attributable to a person acting under color of
state law, and that the conduct deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws ofthe United States. Id. A municipality or other local
government may be liable under § 1983 only "if the governmental body itself'subjects' a
person to a deprivation ofrights or 'causes' a person 'to be subjected' to such deprivation."
Connick v. Thompson,563 U.S. 51,60(2011)(citing Monell v. Dep't ofSocial Servs.,436
U.S. 658 (1978)). "[T]o establish municipal liability under § 1983, a plaintiff must prove
that 'action pursuant to official municipal policy' caused the alleged constitutional injury."
Cash V. County ofErie, 654 F.3d 324, 333 (2d Cir. 2011)(quoting Connick, 563 U.S. at
-6-
60). Official municipal policy includes "the decisions of a government's lawmakers, the
acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law." Connick, 563 U.S. at 61.
Here, Plaintiff alleges that the County violated his Fourteenth Amendment
procedural due process rights by imposing the fine without sufficient notice and
opportunity to be heard. (Dkt. 25 at 24). The parties agree that the County imposed the
fine pursuant to official municipal policy—Local Law 10-1989. (Dkt. 31-5 at 17; Dkt. 36-
3 at 21).^ Accordingly, the Court must determine whether the procedures used by the
County (through its agency, the Board) in imposing the fine comported with the basic
requirements of due process.
The Due Process Clause of the Fourteenth Amendment was "intended to secure the
individual from the arbitrary exercise of the powers of government ...[and] serves to
prevent governmental power from being used for purposes of oppression." Daniels v.
Williams, 474 U.S. 327, 331 (1986)(quotations and citations omitted). To succeed on a
due process claim, a plaintiff must establish that "he or she possesses a constitutionally
protected interest in life, liberty, or property, and that state action has deprived him or her
of that interest." Valmonte v. Bane, 18 F.3d 992,998(2d Cir. 1994).
^
In his second amended complaint. Plaintiff styles his due process claim as a claim
under § 1983 for violation of state and federal due process. (Dkt. 25 at 24), Section 1983
provides a cause of action for deprivations of federal, and not state, rights. See Wimmer,
176 F.3d at 136. To the extent that Plaintiff seeks to bring a cause of action under Article
I, section 6, ofthe New York State Constitution, for the reasons explained below,the Court
declines to exercise supplemental jurisdiction over that claim.
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"An essential principle ofdue process is that a deprivation oflife, liberty, or property
be preceded by notice and opportunity for hearing appropriate to the nature of the case."
ClevelandBd. ofEduc v. Loudermill,470 U.S. 532,542(1985)(quotation omitted). Notice
must be "reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their objections."
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314(1950). "If a party receives
actual notice that apprises it of the pendency of the action and affords an opportunity to
respond, the due process clause is not offended." Baker v. Latham Sparrowbush Assocs.,
72 F.3d 246, 254(2d Cir. 1995).
In determining the sufficiency of pre-deprivation procedures, courts consider:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see, e.g.. Chase Grp. All. LLC v. City of
N.Y. Dep't ofFin., 620 F.3d 146, 150(2d Cir. 2010). "A predeprivation hearing has been
required when 'the deprivation of property was pursuant to some established state
procedure and 'process' could be offered before any actual deprivation took place to serve
as a check on the possibility that a wrongful deprivation would occur." Burtnieks v. N.Y.C.,
716 F.2d 982, 987 (2d Cir. 1983)(quotation omitted). Here, the parties agree that the
deprivation was pursuant to an established state procedure—^the Board's statutory mandate
under Local Law 10-1989. (Dkt. 31-5 at 21; Dkt. 36-3 at 21).
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B.
No Due Process Violation Occurred
The fine at issue in this case was imposed under Local Law 10-1989, which
establishes a code of ethics for Erie County. Among other things, it requires elected
officials to "file with the Erie [C]ounty board of ethics an annual statement of financial
disclosure . . . relat[ing] to the calendar year immediately preceding the year of filing."
Erie County Local Law 10-1989, § 4. It also provides for penalties for a reporting
individual who "knowingly and willfully fails to file an annual statement of financial
disclosure or who knowingly and willfully with intent to deceive makes a false statement
or gives information which such individual knows or should have known to be false." Id.
at § 9. Such penalty may not exceed $10,000. Id.
Plaintiff claims that prior to imposing the contested fine, the Board never:
(A)provided Plaintiff with written notice of the charge being considered
against him or the complaint that was purportedly filed against him;
(B)... docketed this matter as required by the Board's own Rules and
Regulations;(C)interviewed Plaintiff or any other witnesses that Plaintiff is
aware of;(D)provided Plaintiff with a hearing or an opportunity to provide
witnesses or to confront accusers;(E)provided Plaintiff with a copy of the
Board's Rules and Regulations(as is required by the Board's own Rules and
Regulations); or(F)informed Plaintiffthat he had the right to engage counsel
or to appeal....
(Dkt. 25 at ^ 36). Plaintiff argues that the County violated his due process rights by failing
to provide him with(1) notice ofthe charges against him or(2)a pre-deprivation hearing.
(Dkt. 31-5 at 15).
There is no factual dispute regarding the notice that Plaintiff received—^the parties
only dispute whether Schwartz's verbal communication with Matthews and the Board's
letters to Plaintiff were sufficient to satisfy due process requirements. Plaintiff contends
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that he was entitled to receive "notice of the charges against him, an explanation of the
evidence supporting those charges, and an opportunity for him to present his version of
those events." {Id. at 17 (quoting Mordukheav v. Daus, 457 F. App'x 16, 21 (2d Cir.
2012)). Plaintiff also argues that the process he should have received is set forth in New
York General Municipal Law § 813. (Dkt. 39 at 18-19). That statute provides that, in the
event of a possible ethics violation, the authority policing ethical violations "shall notify
the reporting person in writing, describe the possible or alleged violation of such code of
ethics, local law, ordinance or resolution . . . and provide the person with a fifteen day
period in which to submit a written response setting forth information relating to the
activities cited ...." N.Y. Gen. Mun.Law("GML")§ 813(12). Plaintiff argues that GML
§ 813 is incorporated by reference in Local Law 10-1989, which provides that "[i]t is the
intent of this code to establish reporting standards at least as high as those established in
[GML § 813]."^ (Dkt. 39 at 10). Additionally, Plaintiff contends that the Board violated
due process in failing to comply with its own internal rules. (Dkt. 31-5 at 23; Dkt. 45 at
8).
Defendant responds that Plaintiff had actual notice ofthe Board's investigation, and
a pre-deprivation hearing was not required under Second Circuit case law. (Dkt. 36-3 at
16, 19). Defendant also argues that any failure to follow state law procedures and/or the
^
As Defendant notes, GML § 813 was repealed in 2014. (Dkt.40 at 7 n.3). However,
because the Court concludes that the claimed violation of GML § 813 does not rise to the
level ofa due process violation, the Court does not need to resolve the issue ofwhat impact,
if any, the repeal of GML § 813 had on its purported incorporation by reference into Local
Law 10-1989.
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County's internal guidelines is not equivalent to a federal constitutional injury. (Dkt.47 at
1).
1.
Plaintiff had Actual Notice of the Pendency of the Action
The Court agrees with Defendant that, based on the undisputed factual record, a
reasonable factfinder would necessarily conclude that Plaintiff had actual notice of the
pendency of the action. Plaintiff acknowledges that his legislative assistant was informed
in November 2015 that the Board was "look[ing] into" his erroneous financial disclosure
form. (Dkt.25 at
27-28). Plaintiff also received a letter from Schwartz, dated December
7, 2015, requesting information regarding Plaintiffs ethics disclosure forms. (PI. Stmt. at
^ 27; Def. Stmt. at ]| 27). That letter advised Plaintiff that the Board was investigating his
2013 ethics disclosure form, and that the Board took "no position... with respect
to ... whether any violations ofthe Code ofEthics exist[ed]." (Dkt 25-1 at 2). The Board
provided Plaintiff an opportunity to respond and to have any questions answered. {Id.).
Plaintiff exchanged a number of letters with the Board before the Board's final
determination was made. {See Dkt. 14-6; Dkt. 14-7; Dkt. 14-8; Dkt. 14-9; Dkt. 25-1 at 5657; Dkt. 25-1 at 59).
Plaintiffs assertion that the Board's December 7,2015, letter provided him "at best
... notice of a nonspecific inquiry" but failed to apprise him ofthe charges that were being
considered is not supported by the evidence. {See Dkt. 31-5 at 17). Before the Board's
December 7, 2015, letter to Plaintiff, Plaintiff filed an amended 2013 financial disclosure
form. (PI. Stmt. at ^ 25; Def. Stmt. at ^ 25). The Board's December 7, 2015, letter is
unmistakably related to this issue, inasmuch as it specifically states that"issues were raised
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by a third-party with respect to [Plaintiffs financial disclosure form's] accuracy." (Dkt.
14-5 at 2). Furthermore, in Plaintiffs January 14, 2016, letter to the Board in response to
its December 7, 2015, letter. Plaintiff stated that he "learned of the error in [his] 2013
Disclosure Filing... during [his] reelection campaign." (Dkt. 14-6(Ex. 6)). Plaintiff went
on to explain that he "had misread the 'when-as' dates regarding [his] debts outstanding."
{Id.). In other words. Plaintiff clearly understood that the Board was investigating the
accuracy of his 2013 financial disclosure form and was afforded an opportunity to submit
all relevant information to the Board.
The Board completed its investigation, notified Plaintiff of its conclusion that a
violation of Local Law 10-1989 had occurred by reason ofPlaintiffs false filing, assessed
a $500 fine, and advised Plaintiff of his right to request reconsideration of that
determination (which Plaintiff then did). (Dkt. 14-7; Dkt. 14-8). These undisputed facts
conclusively demonstrate that Plaintiff had actual notice of the pendency of the action
against him and was provided a way to respond (and he did so respond). Thus, Plaintiffs
notice was constitutionally sufficient. See, e.g.. United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260,272(2010)(actual notice "more than satisfie[s]" a party's right to
due process); Reed v. Medford Fire Dep't. Inc., 806 F. Supp. 2d 594,615(E.D.N.Y. 2011)
("[I]fa party receives actual notice that apprises it ofthe pendency ofthe action and affords
an opportunity to respond, the due process clause is not offended.")(quoting Baker, 72
F.3d at 254); Lopes v. United States, 862 F. Supp. 1178, 1188(S.D.N.Y. 1994)("[W]here
actual notice ofthe impending forfeiture is found there is no due process violation.").
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2.
No Pre-Deprivation Hearing was Required
The Court turns next to the question of whether Plaintiff was entitled to a predeprivation hearing prior to the imposition of the fine. Plaintiff argues that "when [a]
deprivation is pursuant to an established state procedure, the state can predict when it will
occur and is in the position to provide a pre-deprivation hearing." (Dkt.31-5 at 19(quoting
Rivera-Powell v. NYC Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006)). However,
Plaintiff misreads Rivera-Powell in arguing that a pre-deprivation hearing is required when
a deprivation occurs pursuant to an established state procedure. Rather, Rivera-Powell
addressed the distinct question of whether "the existence of a meaningful post-deprivation
remedy .. . would automatically satisfy procedural due process." 470 F.3d at 465. The
Second Circuit explained that when a deprivation is pursuant to state procedure, "the
availability of post-deprivation procedures will not, ipsofacto, satisfy due process." Id. at
465 (quoting Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d
877, 880 (2d Cir. 1996)). However, that does not mean that a pre-deprivation hearing is
required in every case involving established state procedures. Instead, in the event ofsuch
a deprivation, courts must determine what process was due by balancing the factors
outlined in Mathews. See id. at 466 (if the court "were to find that the Board's decision
was part of an established state procedure,... [it] would merely go on to determine what
process was due"). Indeed, even where "the alleged deprivation occurred as a result of
established state procedures," in certain circumstances,"the plaintiffs ability to pursue an
Article 78 proceeding may provide him or her with all the process that is required." Yaman
V. D'Angelo, 206 F. Supp. 2d 394, 399(W.D.N.Y. 2002).
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Defendant argues that it is well-settled that a pre-deprivation opportunity to make
written submissions on disputed issues of fact and law, in conjunction with a postdeprivation opportunity for Article 78 review,satisfies due process. (Dkt.36-3 at 19(citing
Interboro Inst, Inc. v. Foley, 985 F.2d 90(2d Cir. 1993)). In Interboro, a junior college
claimed that its due process rights were violated when the President of the Higher
Education Services Corporation ("HESC") adopted, without an evidentiary hearing, the
findings of the Office of the Comptroller of the State of New York ("OSC")that certain
students had not met the school's entrance requirements. Id. at 91. As a result, the
President disallowed more than $200,000 ofInterboro's requested funds. Id. The Second
Circuit held that the procedures provided were "more than ample under the Mathews test."
Id. at 93.
Interboro had an opportunity to submit a written response at every level of
the OSC audit and HESC review.
Interboro availed itself of each
opportunity. Its responses included submissions to the OSC after the
preliminary audit and the draft audit, a submission to [the President ofHESC]
after the final audit report and before [the President] had made a
determination, and written submissions invited by [the President] in his letter
demanding repayment. Moreover, as the OSC's reports indicate, Interboro's
submissions were considered and responded to in subsequent reports.
Finally, Interboro... could have commenced an Article 78 proceeding in the
New York courts, but declined to do so.
Id.
The Court agrees with Defendant that in this case, as in Interboro, the procedures
used were sufficient to satisfy the requirements set forth in Mathews. Mathews requires
the Court to balance Plaintiffs interest, the risk oferroneous deprivation under the Board's
procedures, the probable value of additional safeguards, and Defendant's interest. See
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Mathews,424 U.S. at 335; Chase Grp. All,620 F.3d at 150. Plaintiff had the opportunity
to present evidence to the Board regarding his ethics disclosure form. (PI. Stmt. at ^ 27;
Def. Stmt. at 27). Plaintiff responded to the Board's December 7, 2015, letter, arguing
that he merely "misread the 'when-as' dates regarding any outstanding debts" in
completing the contested financial disclosure form. (Dkt. 14-6 (Ex. 6)). The Board then
assessed the fine and provided Plaintiff an opportunity to request reconsideration. (Dkt.
14-7(Ex. 7)). The Board rejected Plaintiffs requests for reconsideration. (Dkt. 14-9(Ex.
9); Dkt. 25-1 at 56-57(Ex. G)). Although Plaintiff did not do so, he could have then filed
a special proceeding under Article 78 of the New York Civil Practice Law & Rules.
Any reasonable application of the Mathews factors demonstrates that a full
evidentiary hearing was not required on these facts. While Plaintiff indisputably has an
interest in the deprivation of his money, there is a low risk of erroneous deprivation
attendant with the procedures used by the Board. Plaintiff was afforded multiple
opportunities to present evidence and arguments on his own behalf and has not identified
any information that the Board should have had before it but did not. Indeed, beyond
conclusory assertions. Plaintiff fails to elucidate any risk of erroneous deprivation which
would suggest that a hearing, or an opportunity to "confront [his] accusers"{see Dkt. 25 at
^36) was necessary. The Court notes that it is undisputed that Plaintiff admitted to the
Board he had erred in filling out the financial disclosure form. {See Dkt. 14-6). Indeed,
the heart of the disagreement between Plaintiff and the Board has nothing to do with the
underlying facts, but with the mens rea required for imposition of a fine under Local Law
10-1989, which is a legal dispute.
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Plaintiff had ample opportunity to engage with the Board prior to being fined, and
was permitted to submit his factual and legal arguments on multiple occasions. These
procedures satisfied Plaintiffs right to due process. Under these circumstances, no
reasonable factfmder could conclude that additional procedural safeguards would have
enhanced the quality ofthe decision-making. Cf. Langton v. Town ofChester, 168 F. Supp.
3d 597, 607 (S.D.N.Y. 2016)(finding a high risk of erroneous deprivation because the
plaintiff was not permitted to address the board before being terminated, and
"[cjonsequently,
[the
plaintiffs]
interests
were
not
represented
during
the ... deliberations").
Moreover, Defendant has a significant interest in the speedy and efficient
determination of ethical violations by the Board. This interest would be substantially
hampered by requiring full evidentiary hearings in every instance. See Interboro,985 F.2d
at 92("To require an evidentiary hearing that would be entirely duplicative and essentially
meaningless would impair the review procedures."). "The purpose of a pre-deprivation
hearing is to ensure that decision-makers have before them the claimant's legal arguments
and do not act on a one-sided or otherwise incomplete factual presentation." Id. The
Board's procedures provided Plaintiff "a meaningful opportunity to be heard" through
written submissions. See id. Thus, a full evidentiary hearing was not required. See id.
(refusing to "attach a talismanic significance to the ability of a pre-deprivation evidentiary
hearing" and holding the plaintiffs ability to make pre-deprivation written submissions
sufficient to comply with due process).
16
3.
Failure to Comply with State Law and Internal Regulations is not
a Constitutional Injury
The Court also rejects Plaintiffs argument that the Board violated his due process
rights because it did not adhere to the process outlined in GML § 813,Local Rule 10-1989,
and the County of Erie Board of Ethics Rules and Regulations (the "Rules and
Regulations"). With respect to GML § 813 and Local Law 10-1989, the failure to follow
state law procedures is not equivalent to a federal constitutional injury. Tallman v. Cty. of
Chautauqua, 335 F. App'x 92, 94 (2d Cir. 2009)("[A] public official's failure to follow
state law procedures . .. is not equivalent to a federal constitutional injury."). As the
Second Circuit stated in Tallman, such a claim "is properly pursued in state court." Id. at
94;
also Hyman v. Holder,No.96 CIV.7748(RCC),2001 WL 262665,at *6(S.D.N.Y.
Mar. 15, 2001)(holding claims that defendants failed to follow prison regulations were
claims for violations ofstate law and did not give rise to a federal constitutional claim); cf
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106(1984)("[I]t is difficult to
think of a greater intrusion on state sovereignty than when a federal court instructs state
officials on how to conform their conduct to state law.").
With respect to the Rules and Regulations, the Court agrees with Defendant that,
assuming that the Board did ignore its internal rules, there was no due process violation.
In support of his position. Plaintiff cites a number of cases for the proposition that a
government agency that violates its own internal regulations may violate due process.
However, the cases Plaintiff relies on do not compel the conclusion he urges the Court to
reach.
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In McDarby v. Dinkins,901 F.2d 1334(2d Cir. 1990),a retired police officer alleged
that the pension fund Board of Trustees violated due process when it allegedly failed to
follow the applicable provisions of the Administrative Code in determining the level of
disability pension to which he was entitled. Id. at 1337. Although the court questioned
whether the Board had satisfied the Administrative Code, it concluded that "[a] breach of
procedural requirements does not create a due process violation unless an individual was
'denied a fair forum for protecting his state rights.'" Id.(quoting Atencio v. Bd. ofEduc.,
658 F.2d 774, 779-80 (10th Cir. 1981)). The court explained that "a contrary rule would
bring within the scope of section 1983 myriad claimed violations of local laws, thus
confusing the separate provinces of state and national laws that are central to our federal
system." Id. The McDarby court concluded that the procedures employed by the Board
of Trustees satisfied the minimal due process requirements of notice and hearing. Id. at
1338 ("[T]he Medical Board physically examined [the plaintiff], received written
submissions that were proffered on his behalf, reviewed his medical records, and
reconsidered its original adverse determination upon his request. Due process requires no
more."). The decision in McDarby fully supports the conclusion that due process was
satisfied in the instant case, where similar procedures(namely,the consideration of written
submissions and the opportunity for reconsideration) were followed.
Oladokun v. Ryan, No.06 CV 2330 KMW,2010 WL 3910578(S.D.N.Y. Sept. 30,
2010), and D'Alessandro v. Mukasey, 628 F. Supp. 2d 368(W.D.N.Y. 2009) also do not
compel the conclusion that Plaintiff was entitled to process that he did not receive. In
Oladokun,the plaintiff, a Nigerian citizen, was disenrolled from a state university and then
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deported for failure to maintain his student status. 2010 WL 3910578, at * 1. The plaintiff
challenged the disciplinary procedure employed by the university, arguing that he was
deprived of due process by the university's failure to provide him sufficient notice in
convening the disciplinary hearing board. Id. at * 6. The court agreed that the plaintiffs
due process rights were violated when the board advised him that a hearing would occur
on a particular date but then held the hearing two days after that date. Id. at *7. The court
concluded that the university "failed to provide as much notice as is practicable to inform
[the plaintiff] of the date of the proceedings against him." Id. (internal quotation marks
omitted). The court additionally held that the university deprived the plaintiff ofsufficient
process by violating its own internal regulations, insofar as it failed to provide sufficient
notice and disenrolled the plaintiff absent any evidentiary basis. Id. at *9. However, the
Oladokun court noted that "not every deviation from a state agency's regulations is of
constitutional significance" and that "[ojnce the constitutional minima have been satisfied
... a state agency's non-compliance with promised, yet 'gratuitous procedural protections'
does not constitute a due process violation." Id. at *8(quoting LeviY? v. Univ. ofTex. at El
Paso, 759 F.2d 1224, 1231 (5th Cir. 1985)).
In D'Alessandro, the petitioner filed a petition for a writ of habeas corpus
challenging his continued detention. 628 F. Supp. 2d at 373. Among other things, the
petitioner argued that the government had violated his due process rights by failing to
comply with its internal regulations and procedures. Id. at 388. The court agreed,
explaining that the regulations at issue "were drafted to reflect the concerns ofthe[Supreme
Court in Zadvydas v. Davis, 533 U.S. 678 (2001)] and provide necessary procedural
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safeguards to ensure the detention of an alien beyond the removal period comports with
due process requirements." Id. at 394(quotation omitted). The regulations at issue in that
case "d[id] not merely facilitate intemal agency housekeeping, but rather afford[ed]
important and imperative procedural safeguards to detainees." Id.(quotation omitted).
This case differs from Oladokun and D'Alessandro in that any violation of the
Board's Rules and Regulations did not deprive Plaintiff ofhis rights under the Due Process
Clause, for all the reasons previously discussed. Failure to follow intemal mles does not,
in and of itself, give rise to a federal due process violation. As set forth above, the record
demonstrates that regardless of whether the Board adhered to the Rules and Regulations, it
provided Plaintiff with the requisite notice and opportunity to be heard. No reasonable
trier offact could find to the contrary. Therefore,Plaintiffs motion for summaryjudgment
is denied with respect to his federal due process claim, and Defendant's motion for
summary judgment is granted with respect to that claim.''
''
Plaintiff argues in his post-argument submission that should the Court deny his
motion for summary judgment, it should permit the parties to engage in discovery and
allow Plaintiff an opportunity to amend his pleading to assert an equal protection claim.
(Dkt. 45 at 7). As to discovery, the record before the Court is sufficient to conclude that
summary judgment is appropriate at this stage ofthe proceedings. Furthermore,Plaintiffs
belated request to amend the complaint is procedurally defective under the Local Rules of
Civil Procedure. See Wi3, Inc. v. Actiontec Elecs., 71 F. Supp. 3d 358, 363 (W.D.N.Y.
2014)(finding request for leave to amend defective for failure to comply with Local Rules
of Civil Procedure); see also Food Holdings Ltd. v. Bank ofAm. Corp., 423 F. App'x 73,
16 (2d Cir. 2011)(finding district court did not abuse its discretion in denying leave to
amend complaint when request to amend was made "on the final page of their brief in
opposition to defendants' motion to dismiss, in boilerplate language and without any
explanation as to why leave to amend was warranted" and collecting cases). Local Rule
15(a) provides that "[a] movant seeking to amend or supplement a pleading must attach an
unsigned copy of the proposed amended pleading as an exhibit to the motion," and Local
Rule 15(b) requires parties represented by counsel to identify the proposed amendments
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III.
Plaintiffs State Law Claims
The Court, having dismissed Plaintiffs federal claims, declines to adjudicate
Plaintiffs state law due process claim and his declaratory judgment claim. When a district
court has "dismissed all claims over which it had original jurisdiction," then "the district
court may, at its discretion, exercise supplemental jurisdiction over state law
claims ...[even though] it cannot exercise supplemental jurisdiction unless there is first a
proper basis for original federal jurisdiction." Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). Supplemental jurisdiction "is a doctrine of
flexibility, designed to allow courts to deal with cases involving pendant claims in the
manner that most sensibly accommodates a range of concerns and values." CarnegieMellon Univ. V. Cohill, 484 U.S. 343, 350(1988). The Court's exercise of this discretion
is governed by 28 U.S.C. § 1367("§ 1367"):
[I]n any civil action of which the district courts have originaljurisdiction,the
district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that
they form part ofthe same case or controversy under Article III ofthe United
States Constitution. Such supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.
28 U.S.C. § 1367(a). Under § 1367(c):
The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a)if—
"through the use of a word processing 'redline' function or other similar markings ...."
L.R. Civ. P. 15(a), (b). Because Plaintiff has failed to comply with the Local Rules, the
Court exercises its discretion in denying this "cursory or boilerplate request[] .. . made
solely in a memorandum in opposition" to the motion for summary judgment. Malin v. XL
Capital, Ltd., 312 F. App'x 400,402(2d Cir. 2009)(citation omitted).
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(1)
the claim raises a novel or complex issue of State law,
(2)
the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3)
the district court has dismissed all claims over which it has original
jurisdiction, or
(4)
in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
Id. § 1367(c). "[T]he discretion implicit in the word 'may' in subdivision (c) of § 1367
permits the district court to weigh and balance several factors ...." Purgess v. Sharrock,
33 F.3d 134, 138(2d Cir. 1994). After dismissing all federal claims, the district court must
"reassess its jurisdiction over the case by considering ...judicial economy, convenience,
fairness, and comity." Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).
Therefore,
[i]f... the dismissal of the federal claim occurs late in the action, after there
has been substantial expenditure in time, effort, and money in preparing the
dependent claims, knocking them down with a belated rejection of
supplemental jurisdiction may not be fair. Nor is it by any means necessary.
Purgess, 33 F.3d at 138 (intemal quotation marks omitted).
In this case, the Court has dismissed the sole remaining claim over which it has
original jurisdiction—Plaintiffs federal due process claim.^ Plaintiff is a citizen of New
^
Plaintiffs declaratory judgment claim cannot be the basis for federal jurisdiction.
"[T]he Declaratory Judgment Act does not—and cannot—confer subject matter
jurisdiction." U.S. Dep't ofTreasury v. Official Comm. of Unsecured Creditors ofMotors
Liquidation Co., 475 B.R. 347, 357 (S.D.N.Y. 2012)(citing E.R. Squibb & Sons, Inc. v.
Lloyd's & Cos., 241 F.3d 154, 177 (2d Cir. 2001)). Moreover, other than incorporating
Plaintiffs federal due process claim. Plaintiffs request for a declaratory judgment relates
solely to the adjudication of claims based on state law.
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York; Defendant is a municipal corporation in New York. (Dkt. 8 at 1). In the absence of
the federal claims, the Court lacks original subject matter jurisdiction over the remaining
claims because there is no diversity of citizenship between the parties. See 28 U.S.C.
§ 1332. Defendant asks this Court to decline to hear Plaintiffs state law claims because
those claims would require the Court to "engage in the interpretation of a novel and
complex issue of first impression under New York state law." (Dkt. 36-3 at 22).
Judicial economy weighs in favor of dismissing the supplemental state law claims.
This case is in its early stages. No discovery has occurred. Thus, the parties have not
expended substantial time, money, or effort in preparing the state law claims. See Purgess,
33 F.3d at 138 (citation omitted). The Court's refusal to exercise supplementary
jurisdiction is also not "belated" in any way. See id. And, given this Court's significant
civil and criminal dockets, the parties may be better served by a state court which can
decide the case in a timely and efficient manner.
Additionally, as Defendant argues, the principle of comity suggests that this case
should be resolved in state court. Plaintiff asks the Court to decide, inter alia, whether
Local Law 10-1989 is ultra vires, invalid, and unenforceable because it deviates from
state law." (Dkt. 25 at T| 136). This determination involves complex issues of state law,
better addressed by state courts in the first instance.
No factor weighs in favor of an exercise of supplemental jurisdiction. Therefore,
the Court declines to exercise such jurisdiction over Plaintiffs state law and declaratory
judgment claims.
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CONCLUSION
For the foregoing reasons, Plaintiffs motion for summary judgment (Dkt. 31) is
denied, Defendant's motion for summary judgment (Dkt. 36) is granted as to Plaintiffs
federal due proeess claim, and the Court declines to exercise supplementaljurisdiction over
the remaining causes of action. The Clerk of Court is directed to close this ease.
SO ORDERED.
)RD
States District Judge
Dated: September 26, 2018
Rochester, New York
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