Filed: Jun. 14, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3246-cv Emmerling v. Town of Richmond UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMM
Summary: 10-3246-cv Emmerling v. Town of Richmond UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMA..
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10-3246-cv
Emmerling v. Town of Richmond
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14th day of June, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judge,
10 JED S. RAKOFF,*
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 CRAIG J. EMMERLING,
15
16 Plaintiff-Appellant,
17
18 -v.- 10-3246-cv
19
20 TOWN OF RICHMOND, RALPH ANGELO,
21 individually and in his official
22 capacity as TOWN BOARD SUPERVISOR, JOHN
23 LUTHER, individually and in his
*
The Honorable Jed S. Rakoff of the United States
District Court for the Southern District of New York,
sitting by designation.
1
1 official capacity as TOWN BOARD MEMBER,
2 DOUGLAS DULEN,
3
4 Defendants-Appellees.**
5 - - - - - - - - - - - - - - - - - - - -X
6
7 FOR APPELLANT: Christina A. Agola
8 Rochester, NY
9
10 FOR APPELLEES: Gerard E. O’Connor
11 Lippman O’Connor
12 Buffalo, NY
13
14
15 Appeal from an judgment by the United States District
16 Court for the Western District of New York (Siragusa, J.),
17 denying Appellant’s motion for leave to amend his complaint
18 and granting Appellees’ motions to dismiss the complaint.
19
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21 AND DECREED that the district court’s judgment is AFFIRMED.
22
23 Emmerling appeals the dismissal of his four claims:
24 (1) substantive due process violation, (2) stigma-plus
25 procedural due process violation, (3) selective enforcement
26 equal protection violation, and (4) conspiracy to violate
27 his constitutional rights. He also appeals the denial of
28 his motion for leave to amend his complaint. We assume the
29 parties’ familiarity with the underlying facts, the
30 procedural history, and the issues presented for review.
31
32 We review de novo a district court’s dismissal of a
33 complaint under Federal Rule of Procedure 12(b)(6). Kiobel
34 v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.
35 2010). We review for abuse of discretion a district court’s
36 denial of a plaintiff’s request for leave to amend a
37 complaint. Green v. Mattingly,
585 F.3d 97, 104 (2d Cir.
38 2009).
39
40
**
The Clerk of Court is respectfully instructed to
amend the official case caption as shown above.
2
1 “To establish a violation of substantive due process
2 rights, a plaintiff must demonstrate that the state action
3 was so egregious, so outrageous, that it may fairly be said
4 to shock the contemporary conscience.” Okin v. Vill. of
5 Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir.
6 2009) (internal quotation marks omitted). Emmerling failed
7 to allege any behavior by Appellees that could reasonably be
8 considered egregious, outrageous, or conscience-shocking.
9 We therefore affirm the district court’s dismissal of his
10 substantive due process claim.
11
12 To state a valid “stigma-plus” claim, a plaintiff must
13 plausibly allege: (1) a defamatory statement; (2) “some
14 tangible and material state-imposed burden in addition to
15 the stigmatizing statement”; and (3) a lack of process
16 adequate to justify the state’s action. Velez v. Levy, 401
17 F.3d 75, 87-88 (2d Cir. 2005) (internal quotation marks and
18 ellipsis omitted). To allege a defamatory statement, a
19 plaintiff must allege a public statement injurious to the
20 plaintiff that is capable of being proven false and that was
21 false.
Id. at 87. We agree with the district court that
22 Emmerling failed to plausibly allege a defamatory statement
23 or a lack of adequate process. We therefore affirm the
24 dismissal of his stigma-plus claim.
25
26 To state a valid selective enforcement claim under the
27 Equal Protection Clause, a plaintiff must plausibly allege:
28 (1) He was treated differently than others similarly
29 situated; and (2) The selective treatment was “based on
30 impermissible considerations such as race, religion, intent
31 to inhibit or punish the exercise of constitutional rights,
32 or malicious or bad faith intent to injure a person.”
33 Freedom Holdings, Inc. v. Spitzer,
357 F.3d 205, 234 (2d
34 Cir. 2004). This Circuit has not yet decided whether
35 selective enforcement claims are still viable in the public
36 employment context after Engquist v. Or. Dep’t of Agric.,
37
553 U.S. 591 (2008). We need not answer this question here,
38 however, because we agree with the district court that
39 Emmerling failed to plausibly allege that he was similarly
40 situated to any of the individuals he points to as having
41 received more favorable treatment. On this basis, we affirm
42 the district court’s dismissal of his selective enforcement
43 claim.
44
3
1 To state a valid conspiracy claim under 42 U.S.C.
2 § 1985(3), a plaintiff must, among other things, plausibly
3 allege the existence of a conspiracy to deprive him of his
4 constitutional rights. A complaint containing “only
5 conclusory, vague, or general allegations of conspiracy to
6 deprive a person of constitutional rights cannot withstand a
7 motion to dismiss.” Gyadu v. Hartford Ins. Co., 197 F.3d
8 590, 591 (2d Cir. 1999) (per curiam). We agree with the
9 district court that Emmerling provided only vague and
10 conclusory allegations of conspiracy and thereby failed to
11 allege a plausible § 1985(3) claim. We therefore affirm the
12 district court’s dismissal of Emmerling’s conspiracy claim.
13
14 A district court may deny a plaintiff’s request for
15 leave to amend his complaint when it believes that such
16 leave would be futile. Acito v. IMCERA Grp., Inc.,
47 F.3d
17 47, 55 (2d Cir. 1995). Here, Emmerling’s proposed
18 amendments are merely stylistic and fail to amend his
19 complaint in a manner that would survive dismissal. See
20 Hayden v. Cnty. of Nassau,
180 F.3d 42, 53 (2d Cir. 1999).
21 We therefore conclude that the district court did not abuse
22 its discretion in denying Emmerling leave to amend his
23 complaint.
24
25 We hereby AFFIRM the district court’s judgment denying
26 Appellant’s motion to amend his complaint and granting
27 Appellees’ motions to dismiss Appellant’s complaint with
28 prejudice.
29
30
31 FOR THE COURT:
32 CATHERINE O’HAGAN WOLFE, CLERK
33
4
