KENNETH M. KARAS, District Judge.
Robert Carnell ("Plaintiff") brings this Action, pursuant to 42 U.S.C. §§ 1981 and 1983, against Gene G. Myers ("Myers"), Senior Continuing Medical Education Representative for the New York State Department of Health ("DOH"); Thomas Fortune ("Fortune"), DOH Representative; Howard A. Zucker ("Zucker"), DOH Commissioner; and Lee Burns ("Burns"), then-Director of DOH's Bureau of Emergency Medical Services ("BEMS") (collectively, "Defendants"). Plaintiff alleges that Defendants violated his Fourteenth Amendment rights by coercing him into surrendering his Emergency Medical Technician — Paramedic ("EMT-P") license. Before the Court is Defendants' Motion To Dismiss (the "Motion"). (See Not. of Mot. (Dkt. No. 21).) For the following reasons, the Motion is granted.
The following facts are drawn from Plaintiff's Complaint, (Compl. (Dkt. No. 1)), and are taken as true for the purpose of resolving the instant Motion.
In 2000, Plaintiff obtained his EMT-P license and began working as a certified EMT-P. (Compl. § E, ¶ 1.)
In August 2014, Plaintiff received correspondence from Myers informing him that DOH was "conducting an investigation regarding the circumstances of [his] recent recertification." (Id.; see also Compl. Ex. B ("Myers Letter")).) The correspondence requested Plaintiff schedule an interview "to come to a fair and accurate conclusion regarding [his] certification." (Myers Letter.) Plaintiff called Myers, who informed Plaintiff that a signature was present in the place where the ALSA representative was supposed to sign, that Plaintiff was "in big trouble and that [DOH] was investigating" a possible forgery, and that Myers had "three statements from people indicating they knew that [the] signature was a forgery." (Compl. § E, ¶ 9.)
Plaintiff met with Myers and Fortune on October 7, 2014, in an interrogation room within the State Trooper Barracks in Liberty, New York. (Id. ¶¶ 10-11.) At the meeting, Myers and Fortune showed Plaintiff the suspected forged document. (Id. ¶ 11.) Plaintiff denied that he had engaged in a forgery, stated that he did not know whose signature was on the form, and speculated that someone in Myers's and Fortune's office might have signed the form. (Id. ¶¶ 12-13.) Fortune "became irate and screamed at [Plaintiff] that he `knew that [he] [was] lying' and that it was `pissing him off.'" (Id. ¶ 13.) Plaintiff asked Myers and Fortune to show him the three witness statements Myers had earlier claimed pointed the finger at Plaintiff. (Id. ¶ 14.) Myers and Fortune responded "that they did not have the statements with them." (Id.)
Myers and Fortune then stated that they would make the situation "very easy" on Plaintiff and "presented him with a form entitled `Voluntary Surrender of Emergency Medical Technician Certification.'" (Id. ¶ 15.) Myers and Fortune stated that, if Plaintiff signed the form and surrendered his EMT-P license "that day", then "nothing bad will be said about [him]," but that if Plaintiff "did not sign the form" and surrender his license, "he would `go to jail' that day." (Id.) Plaintiff signed the form "due to the duress and threats of immediate arrest," and "thereby surrendered his EMT-P license." (Id. ¶¶ 16-17; see also Compl. Ex. C. ("Pl.'s Surrender Form").)
Since surrendering his license and leaving his employment as an EMT-P, Plaintiff "has been unable to find other work and has been forced to survive without any significant income or support." (Compl. § E, ¶ 21.) Plaintiff seeks $1 million in damages as well as equitable relief in the form of the restoration of his EMT-P license. (Id. ¶¶ 26-27.)
Plaintiff filed his Complaint on October 6, 2017. (Compl.) On January 12, 2018, Defendants filed a letter seeking a pre-motion conference in anticipation of moving to dismiss. (Dkt. No. 17.) Plaintiff responded on February 16, 2028. (Dkt. No. 19.) The Court thereafter set a briefing schedule. (Dkt. No. 20.) On April 2, 2018, Defendants filed their Motion To Dismiss and accompanying papers. (Not. of Mot.; Mem. of Law in Supp. of Mot. ("Defs.' Mem") (Dkt. No. 24); Decl. of Bradford S. Glick, Esq. in Supp. of Mot. (Dkt. No. 25).) Plaintiff filed his response on May 18, 2018. (Decl. of John Janusas, Esq. in Opp'n to Mot. (Dkt. No. 31); Mem. of Law in Opp'n to Mot. ("Pl.'s Mem.") (Dkt. No. 32).) On June 4, 2018, Defendants filed their reply. (Reply Mem. of Law in Supp. of Mot. ("Defs.' Reply") (Dkt. No. 33).)
Defendants move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Defs.' Mem. 1.)
"The standards of review under Rules 12(b)(1) and 12(b)(6) . . . are substantively identical." Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (quotation marks omitted) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)), aff'd, 591 F. App'x 28 (2d Cir. 2015). "In deciding both types of motions, the Court must accept all factual allegations in the complaint as true, and draw inferences from those allegations in the light most favorable to the plaintiff." Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3, 2014) (citation and quotation marks omitted)). However, "[o]n a Rule 12(b)(1) motion, . . . the party who invokes the Court's jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule 12(b)(6)." Id. (citing Lerner, 318 F.3d at 128); see also Sobel v. Prudenti, 25 F.Supp.3d 340, 352 (E.D.N.Y. 2014) ("In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." (citation and quotation marks omitted)). This allocation of the burden of proof is the "only substantive difference" between the standards of review under these two rules. Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F.Supp.2d 441, 446-47 & n.7 (S.D.N.Y. 2009).
"A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint." Bryant v. Steele, 25 F.Supp.3d 233, 241 (E.D.N.Y. 2014) (quotation marks omitted) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008), vacated and superseded on reh'g on other grounds, 585 F.3d 559 (2d Cir. 2009) (en banc)). "Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation and quotation marks omitted), aff'd, 561 U.S. 247 (2010); see also United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (describing subject matter jurisdiction as the "threshold question" (quotation marks omitted) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998)). "In adjudicating a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the court may consider matters outside the pleadings." JTE Enters., Inc. v. Cuomo, 2 F.Supp.3d 333, 338 (E.D.N.Y. 2014) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (quotation marks and alteration omitted). Rather, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, and a plaintiff need allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, if a plaintiff has not "nudged [his or her] claim[] across the line from conceivable to plausible, the[] complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679 ("Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79 ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
In considering a motion to dismiss, the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). Further, "[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the plaintiff." Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)).
Defendants move to dismiss the Complaint on grounds that Plaintiff fails to state a procedural due process, substantive due process, or equal protection claim; that Plaintiff fails to allege the personal involvement of Zucker and Burns; that Defendants are immune from damages claims brought against them in their official capacities; and that Defendants are entitled to qualified immunity from damages claims brought against them in their individual capacities. (See Defs.' Mem. 7-20.) The Court addresses each argument separately to the extent necessary.
Plaintiff sues Defendants in both their official and individual capacities, (Compl. § A, ¶¶ 2(a)-(d); id. § E, ¶¶ 20-25), and seeks both compensatory damages and prospective equitable relief in the form of the restoration of his license, (id. § E, ¶¶ 26-27).
A suit for damages against a state official in his or her official capacity "is deemed to be a suit against the state." Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against an official but rather is a suit against the official's office." (citation omitted)). Accordingly, an official sued in his or her official capacity is "entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529. Under the Eleventh Amendment, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "Although by its terms the Amendment applies only to suits against a State by citizens of another State, [the Supreme Court has] extended the Amendment's applicability to suits by citizens against their own States." Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (citations omitted). In other words, "the Eleventh Amendment means that, as a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (citation, quotation marks, and alterations omitted). No waiver or abrogation of immunity is present here. Plaintiff brings suit under 42 U.S.C. §§ 1981 and 1983, neither of which operate as waivers of sovereign immunity. See Ying Jing Gan, 996 F.2d at 536 ("[A]lthough § 1983 imposes liability on every `person' who, under color of state law or custom deprives another of a federal right, neither a state nor a state official sued in his official capacity is a `person' within the meaning of this section." (citing Will, 491 U.S. at 64, 71)); Murray v. Thomason, No. 17-CV-7004, 2018 WL 5113955, at *4 (S.D.N.Y. Oct. 19, 2018) ("Courts have routinely held that New York has not waived, and Congress has not abrogated, sovereign immunity with respect to claims for constitutional violations under Sections 1981, 1983, or 1985." (collecting cases)); Goonewardena v. New York, 475 F.Supp.2d 310, 329 (S.D.N.Y. 2007) ("[S]overeign immunity also extends to bar claims for monetary damages brought against state officers sued under [§] 1983 in their official capacities." (citing Will, 491 U.S. at 64)); see also Bamba v. Fenton, ___ F. App'x ____, 2018 WL 6331611, at *3 (2d Cir. Dec. 4, 2018) ("[S]overeign immunity bars [the plaintiff's] § 1981 claim against [the state defendant]."). Accordingly, Plaintiff's claims for damages against Defendants in their official capacities are dismissed with prejudice.
Defendants argue that Plaintiff fails to state a procedural due process claim because he "had adequate opportunity to challenge the purportedly coerced surrender of his EMT-P license in a state court CPLR Article 78 proceeding, but failed to utilize that constitutionally adequate procedure." (Defs.' Mem. 7.) The Court agrees.
The Fourteenth Amendment's Due Process Clause provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The Due Process Clause thus "bars arbitrary, wrongful government actions, and guarantees procedural fairness when a state action deprives a citizen of a protected interest in life, liberty, or property." Wiesner v. Rosenberger, No. 98-CV-1512, 1998 WL 695927, at *3 (S.D.N.Y. Oct. 6, 1998) (citing Daniels v. Williams, 474 U.S. 327, 330-32 (1986)). "The fundamental requirement of the Due Process Clause is that an individual be given the opportunity to be heard at `a meaningful time and in a meaningful manner.'" Patterson v. City of Utica, 370 F.3d 322, 336 (2d Cir. 2004) (quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970)). "To plead a violation of procedural due process, . . . a plaintiff must first identify a property right, second show that the government has deprived him of that right, and third show that the deprivation was effected without due process." J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir. 2013) (citation, alterations, and quotation marks omitted). "The appropriate process depends on the balancing of three factors: (1) `the private interest that will be affected by the official action;' (2) `the risk of erroneous deprivation of such interest through the procedures used;' and (3) `the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" Panzella v. Sposato, 863 F.3d 210, 218 (2d Cir. 2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Defendants do not argue that Plaintiff lacks a property interest to which a due process right attaches. (See Defs.' Mem. 7-9.) Indeed, because Plaintiff's EMT-P license "had already been issued at the time of" the revocation and resignation, and because the State "does not have unfettered discretion to revoke or suspend [EMT-P] licenses," Plaintiff has "a protected property interest" in his EMT-P license. Nnebe v. Daus, 184 F.Supp.3d 54, 65 (S.D.N.Y. 2016); see also 10 N.Y.C.R.R. § 800.16 (providing that an EMT-P license may be revoked only "if [DOH] finds that the certificate holder" has violated one of fourteen specified requirements).
The only question, then, is whether the process Plaintiff was afforded was sufficient. Plaintiff maintains that Myers and Fortune violated his procedural due process rights by coercing him into resigning without first offering him a formal pre-termination hearing pursuant to New York law. (Pl.'s Mem. 9-15; Compl. § E, ¶¶ 18-19 (citing 10 N.Y.C.R.R. § 800.16 (providing that an EMT-P "certification . . . may be . . . revoked . . . after a hearing conducted pursuant to section 12-a of the Public Health Law")). That Plaintiff was not offered a pre-termination hearing in violation of applicable law, however, does not necessarily state a constitutional violation. "When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees." Hellenic Am. Neighborhood Action Comm. (HANAC) v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citing, inter alia, Hudson v. Palmer, 468 U.S. 517, 532 (1984)). The Complaint does not allege that Defendants acted pursuant to established state procedures in allegedly coercing Plaintiff into surrendering his license without first offering him a formal hearing; to the contrary, the Complaint alleges Defendants violated such procedures. (See Compl. § E, ¶¶ 18-19.) Plaintiff's claim must, then, be based on Defendants' "random, unauthorized acts." HANAC, 101 F.3d at 880. The Second Circuit has held that, for such claims, "the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy." Id. (citing Hudson, 468 U.S. at 531). Put differently, where a state employee's random, unauthorized act makes "a predeprivation hearing . . . impractical and a post-deprivation hearing is meaningful, the State satisfies its constitutional obligations by providing the latter." Stokes v. City of Mount Vernon, No. 11-CV-7675, 2012 WL 3536461, at *9 (S.D.N.Y. Aug. 14, 2012) (quoting Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984)), modified in part on reconsideration, 2012 WL 6691078 (S.D.N.Y. Dec. 17, 2012). That is because "it is hard to visualize what sort of prior hearing the Constitution would require the employer to conduct." Weslowski v. Zugibe, 14 F.Supp.3d 295, 315 (S.D.N.Y. 2014) (quoting Giglio, 732 F.2d at 1135). "When an employee resigns, the only possible dispute is whether the resignation was voluntary or involuntary, and this cannot be determined in advance." Giglio, 732 F.2d at 1135.
Here, New York law provides that state employees may contest adverse employment determinations pursuant to an Article 78 proceeding in state court. See N.Y. C.P.L.R. §§ 7801-7806. The Second Circuit has squarely held that a post-deprivation hearing via the Article 78 process satisfies constitutional due process requirements. Giglio, 732 F.2d at 1135 ("Where, as here, Article 78 gave the employee a meaningful opportunity to challenge the voluntariness of his resignation, he was not deprived of due process simply because he failed to avail himself of the opportunity."); see also Locurto v. Safir, 264 F.3d 154, 175 (2d Cir. 2001) ("An Article 78 proceeding therefore constitutes a wholly adequate post-deprivation hearing for due process purposes."); HANAC, 101 F.3d at 881 ("[A]n Article 78 proceeding is a perfectly adequate postdeprivation remedy." (citation omitted)). Further, district courts in this Circuit "have subsequently applied Giglio's holding that the availability of an Article 78 proceeding satisfies procedural due process in a case where a New York state employee claims a coerced resignation." Dodson v. Bd. of Educ. of the Val. Stream Union Free Sch. Dist., 44 F.Supp.3d 240, 248-49 (E.D.N.Y. 2014) (collecting cases). That is so even where the employee did "not. . . avail himself of the process he was due." Paterno v. City of New York, No. 17-CV-8278, 2018 WL 3632526, at *6 (S.D.N.Y. July 31, 2018); see also Cole-Hatchard v. Hoehmann, No. 16-CV-5900, 2017 WL 4155409, at *7 (S.D.N.Y. Sept. 18, 2017) ("An Article 78 proceeding adequately serves as a post-deprivation name-clearing hearing. Plaintiff's failure to avail himself of [the Article 78] proceeding means he was not denied due process." (citations, quotation marks, and alteration omitted)); Attallah v. N.Y. Coll. of Osteopathic Med., 94 F.Supp.3d 448, 458 (E.D.N.Y. 2015) ("[B]ecause an adequate post-deprivation remedy exists for review of plaintiff's expulsion, there can be no Fourteenth Amendment violation to support a [§] 1983 claim." (citing HANAC, 101 F.3d at 880-82)), aff'd, 643 F. App'x 7 (2d Cir. 2016). Plaintiff had adequate opportunity to challenge the voluntariness of his resignation. Therefore, "it is quite clear that the availability of an Article 78 proceeding precludes Plaintiff's procedural due process claim." Dodson, 44 F. Supp. 3d at 249.
In an effort to avoid dismissal, Plaintiff raises three principal arguments.
Second, Plaintiff argues that, because he seeks "damages for . . . civil rights violations," which may not be available to him in an Article 78 proceeding, (Pl.'s Mem. 10 (collecting New York state cases)), he was excused from not pursuing such a remedy. Yet, the Second Circuit has squarely held that "[a]n Article 78 proceeding is adequate for due process purposes even though the petitioner may not be able to recover the same relief in a § 1983 suit." HANAC, 101 F.3d at 881 (citing Hudson, 468 U.S. at 535); see also Kubicek v. Westchester County, No. 08-CV-372, 2013 WL 5423961, at *7 n.11 (S.D.N.Y. Sept. 27, 2013) (applying HANAC to reject argument that a damages claim "would have faced tough sledding" in an Article 78 proceeding).
Finally, Plaintiff argues that, in signing the surrender form, he agreed — without being notified by Myers and Fortune — to a provision stating that he "voluntarily surrender[s]" his license, "accept[s] the terms and conditions herein[,] and waive[s] the right to challenge the terms of this surrender pursuant to [an] Article 78" or other proceeding, and was thereby denied "a meaningful opportunity to contest the allegations made against him." (Pl.'s Mem. 13-14 (citing Pl.'s Surrender Form).) Defendants argue in response that the surrender form's waiver provision is in fact narrower than Plaintiff contends because, by its plain language, the waiver applies only to challenges to the "terms of this surrender" itself — terms such as the immediate effectiveness of surrender, that Plaintiff "shall not seek re-certification" of his license or "any other patient care related license," that the "Department will report any final disposition of this matter" to other agencies, and that "the Department will not publish . . . any information" about the surrender. (Defs.' Reply 4 (quoting Surrender Form).) The Court need not, however, resolve the scope of the waiver provision. Even assuming the waiver is as broad as Plaintiff maintains, in an Article 78 proceeding challenging the voluntariness of his surrender, Plaintiff could have litigated the closely related question of the voluntariness of signing the waiver provision. See CPLR § 7803(3) (providing that, in an Article 78 proceeding, a petitioner can raise the question whether "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including an abuse of discretion as to the measure or mode of penalty or discipline imposed"). Put differently, in an Article 78 proceeding in which Defendants had raised the waiver provision as a defense, the two questions — whether the surrender itself was voluntary and whether the signing of the surrender form with the waiver provision was voluntary — merge. See Giglio, 732 F.2d at 1132 (noting that, "[w]hen an employee resigns, the only possible dispute is whether the resignation was voluntary or involuntary"). Finally, Plaintiff cites to no case, and the Court has found none, in which a New York state court dismissed an Article 78 proceeding on grounds that the petitioner had waived his right to one.
In sum, Plaintiff was not meaningfully deprived access to a post-deprivation Article 78 proceeding. That Plaintiff failed to avail himself, or attempt to avail himself, of that process is immaterial. See Anemone v. Metropolitan Transp. Auth., 629 F.3d 97, 121 (2d Cir. 2011) ("An Article 78 proceeding provides the requisite post-deprivation process — even if [the plaintiff] failed to pursue it."). Accordingly, Plaintiff's procedural due process claim is dismissed with prejudice. See Dodson, 44 F. Supp. 3d at 249 (dismissing procedural due process claim with prejudice where an Article 78 proceeding was available and unutilized).
"Substantive due process protects against government action that is arbitrary, conscienceshocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill advised." Cunney v. Bd. of Trs. of Vill. of Grand View, 660 F.3d 612, 626 (2d Cir. 2011) (citation and quotation marks omitted); see also Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (same) (collecting cases in each category). "To state a claim for substantive due process a plaintiff must allege that: (1) he had a valid property interest and (2) `defendants infringed on that . . . right in an arbitrary or irrational manner.'" Cherry v. N.Y.C. Hous. Auth., No. 15-CV-6949, 2017 WL 4357344, at *28 (E.D.N.Y. Sept. 29, 2017) (quoting Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 545 (2d Cir. 2014)). Conduct shocks the conscience where it is "truly brutal and offensive to human dignity." Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (citation, quotation marks, and alteration omitted).
However, "where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process." Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005); see also Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) ("Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (citation and quotation marks omitted)); Ratajack v. Brewster Fire Dep't, Inc. of the Brewster-Se. Joint Fire Dist., 178 F.Supp.3d 118, 147 (S.D.N.Y. 2016) (same); Miller v. N.Y.C. Dep't of Educ., 71 F.Supp.3d 376, 385 (S.D.N.Y. 2014) (same), aff'd, 622 F. App'x 38 (2d Cir. 2015). That is, "substantive due process claims must be dismissed where they are merely duplicative of claims explicitly protected under other constitutional sources." Roman v. Velleca, No. 11-CV-1867, 2012 WL 4445475, at *10 (D. Conn. Sept. 25, 2012) (citation omitted).
Defendants argue both that Plaintiff fails to identify facts that are "offensive to human dignity" or otherwise sufficient to state a substantive due process claim, (Defs.' Mem. 10), and that Plaintiff's substantive due process claim "overlaps entirely" with his procedural due process claim, (Defs.' Reply 7). The Court need only address the latter point. "Putting aside whether there is any plausible theory under which [Defendants'] alleged conduct could be considered `conscience-shocking,'" Cronin v. St. Lawrence, No. 08-CV-6346, 2009 WL 2391861, at *8 (S.D.N.Y. Aug. 5, 2009) (citation omitted), Plaintiff's substantive due process claim is entirely duplicative of his procedural due process claim. That is, the substantive due process claim "seek[s] to remedy the same harm and challenge the same conduct" as in his procedural due process claim. Rother v. N.Y. State Dep't of Corr. & Cmty. Supervision, 970 F.Supp.2d 78, 100 (N.D.N.Y. 2013). The Complaint alleges that Plaintiff was unable to get the proper signature for his EMT-P recertification form, asked Myers for advice, and was told to submit the form without the signature, (see Compl. § E, ¶¶ 4-6); that, some months later, Myers called Plaintiff to inform him of an investigation into a suspected forged signature on the form, (id. ¶¶ 7-9); that Plaintiff thereafter met with Myers and Fortune in an interrogation room at the State Trooper Barracks, (id. ¶¶ 10-11); that at the meeting Plaintiff denied forging a signature, causing Fortune to yell that Plaintiff was lying, (id. ¶¶ 12-13); that Myers and Fortune did not show Plaintiff the witness statements accusing him of forgery because they stated they did not have them in their possession, (id. ¶ 14); that Myers and Fortune presented Plaintiff with a surrender form and stated that, if he did not sign it, he would "go to jail" immediately, (id. ¶¶ 15-16); and that, under intense duress, Plaintiff signed the form and surrendered his license, (id. ¶¶ 16-17). In other words, Plaintiff's substantive due process claim is premised on precisely the same set of facts and seeks to remedy the same conduct as in his procedural due process claim; the Complaint alleges no facts that separate the two claims.
Defendants argue that Plaintiff fails to state an equal protection claim. (See Defs.' Mem. 12-15.) The Court agrees.
"The Equal Protection Clause of the Fourteenth Amendment requires that all persons similarly situated be treated in the same manner." Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996). In other words, "the Equal Protection Clause bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if 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." Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (citation, quotation marks, and emphasis omitted). Put succinctly, to state an equal protection violation, a plaintiff must allege "that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (citation omitted).
While the Equal Protection Clause is typically invoked to bring lawsuits claiming discrimination based on membership in a protected class such as race, religion, or national origin, where, as here, there is no allegation of membership in a protected class, the plaintiff may still prevail on either a "class of one" or "selective enforcement" theory. Vaher v. Town of Orangetown, 916 F.Supp.2d 404, 433 (S.D.N.Y. 2013). A "class-of-one" claim requires the plaintiff allege that he was "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citation omitted). That is, the plaintiff must allege 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." Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (citation and quotation marks omitted). A class-of-one plaintiff must show "an extremely high degree of similarity between [himself] and the persons to whom [he] compare[s] [himself]." Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (quotation marks omitted). "[T]his pleading standard is demanding." Hampshire Recreation, LLC v. Village of Mamaroneck, No. 14-CV-7228, 2016 WL 1181727, at *6 (S.D.N.Y. Mar. 25, 2016) (citation and quotation marks omitted), aff'd, 664 F. App'x 98 (2d Cir. 2016).
A "selective enforcement" claim requires the plaintiff show both (1) that "he, compared with others similarly situated, was selectively treated" and (2) that "the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, or to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the plaintiff." Vaher, 916 F. Supp. 2d at 433 (quotation marks and alterations omitted) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)); see also LaTrieste Rest v. Village of Port Chester, 188 F.3d 65, 70 (2d Cir. 1999) (noting that "both elements" generally must be satisfied to state a selective enforcement claim). Although "there is some disagreement within the Second Circuit regarding the degree of similarity necessary to adequately allege an equal protection claim under this theory," with "some courts evaluat[ing] whether a comparator is similarly situated under the same standard used in `class of one' equal protection claims" and other courts "apply[ing] a less demanding standard to selective enforcement claims," Panzella v. City of Newburgh, 231 F.Supp.3d 1, 7-8 (S.D.N.Y. 2017) (citations omitted) (collecting cases), it is clear that, at a minimum, some showing of comparison with others similarly situated is required.
Here, Plaintiff "has failed to allege or identify a single similarly situated individual who was treated differently" by Defendants. Bishop v. Best Buy, Co., No. 08-CV-8427, 2010 WL 4159566, at *12 (S.D.N.Y. Oct. 13, 2010) (citation, alteration, and quotation marks omitted), modified in part on reconsideration, 2011 WL 4011449 (Sept. 8, 2011), aff'd, 518 F. App'x 55 (2d Cir. 2013). The Complaint identifies no other EMT-P — or indeed any other individual — who was investigated for recertification issues, coerced into resigning, or is otherwise similarly situated to Plaintiff. Plaintiff thus offers no basis with which to evaluate his class-of-one or selective enforcement claim. Accordingly, his equal protection claim must fail. See C-Tech of New Haven, Inc. v. Univ. of Conn. Health Ctr., No. 15-CV-1058, 2016 WL 3620713, at *3 (D. Conn. June 29, 2016) (dismissing equal protection claim where the complaint "refer[red] to no comparators"); Walzer v. Town of Orangetown, No. 13-CV-7971, 2015 WL 1539956, at *6 n.5 (S.D.N.Y. Apr. 7, 2015) (holding that the plaintiff had not stated an equal protection claim where "he ha[d] provided no comparators"); Bishop, 2010 WL 4159566, at *11 (dismissing equal protection claim where the plaintiff failed to allege any similarly situated individuals were treated differently).
Plaintiff appears to bring a claim of intentional racial discrimination under 42 U.S.C. § 1981. (See Compl. § B, ¶ 1.) "In order to establish a claim under § 1981, a plaintiff must allege facts, which if proven to be true, would establish the following three elements: (1) that the plaintiff is a member of a racial minority; (2) that the defendant intended to discriminate against the plaintiff on the basis of his or her race; and (3) that the defendant discriminated in connection with one of the statute's enumerated activities." Evans-Gadsden v. Bernstein Litowitz Berger & Grossman, LLP, 332 F.Supp.2d 592, 595-96 (S.D.N.Y. 2004) (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)). These "enumerated activities" include the rights "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property." 42 U.S.C. § 1981(a). Plaintiff fails to allege any facts whatsoever supporting a § 1981 claim. Plaintiff does not allege that he is a member of a racial minority, that Defendants discriminated against him on the basis of his race, or that such discrimination was intentional. Accordingly, Plaintiff fails to state a § 1981 claim.
For the reasons stated above, Defendants' Motion To Dismiss is granted.
Plaintiffs procedural due process claim, as well Plaintiffs claims seeking damages against Defendants in their official capacities, are dismissed with prejudice.
Plaintiffs substantive due process, equal protection, and§ 1981 claims are dismissed without prejudice. If Plaintiff wishes to file an amended complaint, Plaintiff must do so within 30 days of the date of this Opinion. Plaintiff should include within that amended complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the amended complaint will replace, not supplement, the instant Complaint. The amended complaint must contain all of the claims and factual allegations that Plaintiff wishes the Court to consider. If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice.
The Clerk is respectfully directed to terminate the pending Motion. (See Dkt. No. 21.)
SO ORDERED.
Yet, although the court's conclusion was not altered by the broad waiver provision, this case appears to be of only limited utility here. In dismissing the procedural due process claim, the court did not squarely consider how the waiver provision affected its analysis. See id. at *8-9. That may have been because the teacher "[did] not contest that she could have sought relief through an Article 78 proceeding." Id. at *9. Here, however, Plaintiff does raise the argument that he could not have sought relief through an Article 78 proceeding.
