Weinberg v. Vill. of Clayton, 5:17-cv-00021 (BKS/ATB)

• Decision Date: 02 November 2018
• Docket Number: 5:17-cv-00021 (BKS/ATB)
• Parties: JAIME H. WEINBERG, ESQ.; BRADFORD J. MINNICK; THOUSAND ISLANDS INN HOLDINGS, LLC; and THOUSAND ISLANDS ENTERPRISES, LLC, Plaintiffs, v. VILLAGE OF CLAYTON, NEW YORK; NORMA ZIMMER, Mayor, Village of Clayton; BOARD OF TRUSTEES OF THE VILLAGE OF CLAYTON, NEW YORK; RICHARD INGERSON, Code Enforcement Officer; and PETER BEATTIE, as administrator of the ESTATE OF BRUCE BEATTIE, Defendants.
• Court: U.S. District Court — Northern District of New York

JAIME H. WEINBERG, ESQ.; BRADFORD J. MINNICK;

THOUSAND ISLANDS INN HOLDINGS, LLC;and THOUSAND ISLANDS ENTERPRISES, LLC, Plaintiffs, v. VILLAGE OF CLAYTON, NEW YORK;

NORMA ZIMMER, Mayor, Village of Clayton;

BOARD OF TRUSTEES OF THE VILLAGE OF CLAYTON,

NEW YORK; RICHARD INGERSON,

Code Enforcement Officer; and PETER BEATTIE,

as administrator of the ESTATE OF BRUCE BEATTIE, Defendants.

5:17-cv-00021 (BKS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 2, 2018

Appearances:

For Plaintiffs:

Law Office of Jaime H. Weinberg, Esq.

Jaime H. Weinberg

20128 Carr Road Extension

Wellesley Island, NY 13640

For Defendants:

Goldberg Segalla LLP

Molly M. Ryan

John P. Coghlan

5786 Widewaters Parkway

Syracuse, NY 13214

Jonathan M. Bernstein

8 Southwoods Boulevard, Suite 300

Albany, NY 12211 Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Jaime H. Weinberg, Bradford J. Minnick, Thousand Islands Inn Holdings, LLC ("TI Inn Holdings"), and Thousand Islands Enterprises, LLC ("TI Enterprises") bring this § 1983 action alleging that Defendants Village of Clayton (the "Village"), Village Mayor Norma Zimmer, the Board of Trustees of the Village (the "Board"), Code Enforcement Officer Richard Ingerson, and Peter Beattie, as administrator of the estate of Bruce Beattie,¹ violated Plaintiffs' free speech, equal protection, and due process rights under the First and Fourteenth Amendments of the United States Constitution. (Dkt. No. 80, ¶ 1). Plaintiffs seek compensatory and punitive damages, as well as injunctive and declaratory relief. (Id.). In accordance with this Court's March 21, 2018 decision, (Dkt. No. 79), Plaintiffs filed a Second Amended Complaint (the "SAC") on April 20, 2018, (Dkt. No. 80), and Defendants subsequently moved to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, (Dkt. No. 81). For the reasons set forth below, the motion to dismiss is granted in part and denied in part.

II. FACTS

The Court presumes the parties' familiarity with its March 21, 2018 decision, which recites the factual background of this case. (See Dkt. No. 79, at 2-16). To the extent that the SAC adds any relevant factual allegations, the Court addresses any such additional facts in the course of discussing the parties' arguments below.²

III. DISCUSSION

A. Equal Protection Claim (Count 1)

1. Legal Standard

"The Equal Protection Clause of the Fourteenth Amendment is 'essentially a direction that all persons similarly situated should be treated alike.'" Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). The "prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class." Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). As is relevant here, the Second Circuit has held that gays and lesbians are a "quasi-suspect" class, and classifications based on sexual orientation are subject to "heightened scrutiny." Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), aff'd, 570 U.S. 744 (2013).

"Where the plaintiff does not allege he is a member of a protected class, his Equal Protection claim may only be based on two theories: selective enforcement or 'class of one.'" Chizman v. Scarnati, 218 F. Supp. 3d 175, 181 (E.D.N.Y. 2016). Both require a showing that the plaintiff was treated differently than others similarly situated. See Harlen, 273 F.3d at 499. A selective enforcement claim is established if the plaintiff was: (1) "treated differently from other similarly situated individuals, and (2) that such differential treatment was based on 'impermissible considerations, such as race or religion, intent to inhibit or punish the exercise ofconstitutional rights, or malicious or bad faith intent to injure the person.'" Id. (quoting LaTrieste Rest. & Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)).³

In Pyke v. Cuomo, the Second Circuit held that a plaintiff may establish racial discrimination in violation of the Equal Protection Clause without "show[ing] a better treated, similarly situated group of individuals of a different race" by "pointing to [1] a law that expressly classifies on the basis of race, [2] a facially neutral law or policy that has been applied in an unlawfully discriminatory manner, or [3] a facially neutral policy that has an adverse effect and that was motivated by discriminatory animus." 258 F.3d 107, 110 (2d Cir. 2001); see also Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) (explaining that "it is not necessary to plead the existence of a similarly situated non-minority group when challenging a law or policy that contains an express, racial classification" because "[t]hese classifications are subject to strict judicial scrutiny" and "strict scrutiny analysis in effect addresses the question of whether people of different races are similarly situated with regard to the law or policy at issue"). The Pyke court explained, however, that a plaintiff advancing "a claim of selective prosecution in violation of the Equal Protection Clause must plead and establish the existence of similarly situated individuals who were not prosecuted . . . because courts grant special deference to the executive branch in the performance of the 'core' executive function of deciding whether to prosecute." Id. at 109.

2. Application

Defendants argue that the equal protection claim fails because of Plaintiffs' "failure to identify similarly situated comparators," which a plaintiff must allege to state an equal protectionclaim under a selective enforcement theory. (Dkt. No. 81-1, at 10). Plaintiffs respond that they are not proceeding under a selective enforcement theory but instead allege an equal protection claim "based on discrimination due to [Plaintiffs'] membership in a protected class"—that is, "Minnick's and Weinberg's sexual orientation." (Dkt. No. 83, at 12). Defendants have not responded to Plaintiffs' assertion that they do not need to identify comparators to proceed on their claim that facially neutral laws have been applied against them in an unlawful discriminatory manner. Defendants instead argue that Plaintiffs have failed to plausibly allege discriminatory animus. (Dkt. No. 86, at 3-5).⁴

Defendants further contend that the claim should be dismissed against Zimmer, Beattie, and the Board because the allegations against them are based "on secondhand statements of unidentified individuals and anonymous internet commentators" and are therefore speculative. (Id. at 8-9). With regard to Ingerson, Defendants note that the antigay statement attributed to him by a municipal employee⁵ "was made in September 2015, more than two months after Ingerson initiated the enforcement action on July 2, 2015"; based on the lack of a "temporal relationship" between the comment and the enforcement action, Defendants assert that Plaintiffs' allegations "do not go beyond raising the sheer possibility that his actions were motivated by discriminatory animus." (Dkt. No. 86, at 4-5). In response, Plaintiffs point to the antigay statement attributed to Ingerson by a municipal employee; disclosure by a family member of Ingerson's that he harbored antigay bias; "Beattie's outing of Plaintiffs' cook to the newspaper as a gay sex offender"; Zimmer's mention at a public meeting that Plaintiffs' cook was a sex offender and hercomment that Minnick "doth protested [sic] too much";⁶ and "the sense of the community that Defendants were motivated by anti-gay bias." (Id. at 14, 16 (quoting Dkt. No. 80, ¶¶ 147, 263-269)).

The Court agrees with Defendants that Plaintiffs have failed to state an equal protection claim against Zimmer, Beattie, the Village, or the Board. Statements made concerning the cook's sex-offender status and Zimmer's retort to Minnick that he "protested too much" do not plausibly raise an inference that Beattie or Zimmer harbored antigay animus against Weinberg and Minnick. Likewise, the Court cannot infer antigay animus based on speculative opinions of community members. However, with regard to Ingerson, at this stage of the proceeding and drawing all reasonable inferences in Plaintiffs' favor, the Court finds that they have plausibly alleged that his actions were motivated by antigay animus, given the municipal employee's September 2015 message to Weinberg that Ingerson did "not speak kindly" of Plaintiffs, "being gay either." (Dkt. No. 80, ¶ 147). It is not unreasonable to infer that Ingerson harbored antigay animus against Weinberg and Minnick in July 2015, even if the municipal employee disclosed that fact a couple of months later.

Further, although the Complaint lacks allegations about similarly situated comparators, Defendants have not responded to the argument that the Complaint sufficiently states a Pyke claim that does not require comparator allegations. Specifically, Plaintiffs claim that Ingerson discriminated against them on the basis of sexual orientation by refusing to apply facially neutral procedural safeguards, such as "mandatory inspection, notice, cure period, and hearing provisions related to treatment of unsafe buildings and structure" and "exceptions to buildingpermit requirements." (Dkt. No. 83, at 13). At this stage of the proceeding, the Court denies Defendants' motion to dismiss the equal protection claim against Ingerson. As explained above, however, the claim is dismissed as against Zimmer, Beattie, the Village, and the Board; given that Plaintiffs have already amended their pleading twice and do not seek leave to amend again, the dismissal is with prejudice.

B. Due Process Claims (Counts 2, , and 4)

The procedural component of the Fourteenth Amendment's Due Process Clause applies where there is an alleged deprivation by government action of a constitutionally protected interest without sufficient procedural...