(b) Plaintiffs' first cause of action.
In order to prevail on a claim alleging a violation of
42 U.S.C. § 1983, a plaintiff must demonstrate that the conduct
complained of was committed by a "person", acting under color
of state law, and that such conduct deprived the plaintiff of a
right, privilege or immunity secured by the Constitution or
laws of the United States. See Oberlander v. Perales,
740 F.2d 116, 119 (2d Cir. 1984); Weg v. Macchiarola, 729 F. Supp. 328,
333 (S.D.N.Y. 1990); Di Giovanni v. City of Rochester,
680 F. Supp. 80, 83 (W.D.N.Y. 1988); Ross v. Coughlin, 669 F. Supp. 1235,
1238 (S.D.N.Y. 1987).
Initially, the defendant contends that the County of Cayuga
is not a "person" within the meaning of § 1983. However, the
cases which the defendant cites in support of this contention
are no longer authoritative statements of the law since the
landmark case of Monell v. Department of Social Services,
436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978).
In Monell, the Supreme Court held that Congress intended
municipalities and other local governmental units to be
included among those persons to whom § 1983 applies. Id. at
690, 98 S.Ct. at 2035. Subsequent decisions by numerous courts
have specifically held that counties are "persons" under §
1983. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112,
108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Lucas v. O'Loughlin,
831 F.2d 232, 234 (11th Cir. 1987), cert. denied 485 U.S. 1035, 108
S.Ct. 1595, 99 L.Ed.2d 909 (1988); Lake Nacimiento Ranch Co. v.
County of San Luis Obispo, 841 F.2d 872 (9th Cir. 1987), cert.
denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988);
Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989); Hammond v.
County of Madera, 859 F.2d 797, 801 (9th Cir. 1988); Anderson
v. Gutschenritter, 836 F.2d 346, 349 (7th Cir. 1988), citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292,
1298-99, 89 L.Ed.2d 452 (1986); Fiacco v. City of Rensselaer,
783 F.2d 319, 326 (2d Cir. 1986), cert. denied,
480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987); Doe v. New York
City Dep't of Social Services, 670 F. Supp. 1145, 1184 (S.D.N Y
1987); Arancibia v. Berry, 603 F. Supp. 931, 936 (S.D.N Y
1985). Thus, the defendant's contention that it is not a person
within the meaning of § 1983 is wholly without merit.
Turning to the substantive elements of a claim alleging
violations of the equal protection clause of the U.S.
Constitution, it is well established that a law which is fair
on its face may be applied so arbitrarily and unfairly as to
amount to a violation of constitutional rights. Cook v. City of
Price, 566 F.2d 699, 701 (10th Cir. 1977), citing Yick Wo v.
Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1887).
In the present case, the plaintiffs allege that the County has
chosen to enforce these laws against the plaintiffs while
choosing not to enforce these ordinances against other
individuals. To support a claim of selective enforcement,
however, a plaintiff must allege purposeful discrimination.
Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988); Tarkowski
v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir.
1980); Cook, 566 F.2d at 701, citing Snowden v. Hughes,
321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); Friedlander
v. Cimino, 520 F.2d 318, 320 (2d Cir. 1975); Birnbaum v.
Trussell, 347 F.2d 86, 90 (2d Cir. 1965); Whelehan v. County of
Monroe, 558 F. Supp. 1093, 1100 (W.D.N.Y. 1983). Such purposeful
discrimination is demonstrated when it is shown that the
defendant selected or reaffirmed a particular course of action
at least in part "because of", not merely "in spite of", its
adverse effects upon the plaintiff. Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282,
2296, 60 L.Ed.2d 870 (1979); McCleskey v. Kemp, 481 U.S. 279,
298, 107 S.Ct. 1756, 1770, 95 L.Ed.2d 262 (1987), reh'g denied
482 U.S. 920, 107 S.Ct. 3199, 96 L.Ed.2d 686 (1987). In
addition to proving purposeful discrimination, a plaintiff
alleging selective enforcement as the basis for an equal
protection cause of action must specify instances in which he
has been singled out for unlawful oppression in contrast to
others similarly situated. Albert, 851 F.2d at 573; University
Club v. City of New York,
655 F. Supp. 1323, 1328 (S.D.N.Y. 1987), aff'd 842 F.2d 37 (2d
Cir. 1988), quoting United States v. Berrios, 501 F.2d 1207,
1211 (2d Cir. 1974). Moreover, a plaintiff must demonstrate
that the government's prosecution has been invidious, in bad
faith or based upon a government's desire to prevent the
exercise of constitutional rights. University Club, 655 F. Supp.
at 1328. The conscious exercise of some selectivity in
enforcement does not, by itself, deny equal protection.
Berrios, 501 F.2d at 1211; University Club, 655 F. Supp. at
1328, citing Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501,
505-06, 7 L.Ed.2d 446 (1962). Such enforcement without
malicious intent may be justified when a test case is needed to
clarify a doubtful law; Cook 566 F.2d at 701, citing MacKay
Telegraph Co. v. Little Rock, 250 U.S. 94, 100, 39 S.Ct. 428,
430, 63 L.Ed. 863 (1919), or when officials seek to prosecute a
particularly egregious violation and thereby deter other
violators. Cook, 566 at 701, citing People v. Utica Daw's Drug
Co., 225 N.Y.S.2d 128, 16 A.D.2d 12 (1962).
In the present case, plaintiffs' complaint fails to allege
any factual instances which support their claim that the
defendant has not enforced Local Laws # 4 and # 5 against other
individuals who are violating these ordinances. Nor does the
complaint state any facts indicating that such individuals and
business entities possessed waste similar to that of the
plaintiffs. Additionally, the plaintiffs do not allege any
facts indicating that the defendant purposefully discriminated
against them, or that the government's prosecution of them was
based upon impermissible considerations. Such allegations are
necessary for a claim alleging selective enforcement. See,
e.g., Berrios, supra, 501 F.2d at 1211. The plaintiffs do
allege that the defendant's failure to enforce Local Laws # 4
and # 5 against individuals other than the plaintiffs has been
intentional, discriminatory, purposeful and arbitrary.*fn3
However, purposeful discrimination in claims alleging selective
enforcement must be directed towards the plaintiffs in such
actions. See Tarkowski, 644 F.2d at 1206, citing Ellentuck v.
Klein, 570 F.2d 414, 430 (2d Cir. 1978).
Therefore, as alleged, the plaintiffs' first cause of action
fails to sufficiently state a claim upon which relief may be
granted.*fn4 Accordingly, the defendant's motion to dismiss
plaintiffs' first cause of action must be granted without
prejudice to the plaintiffs to file and serve an amended
complaint which alleges such claims with the requisite
(c) Plaintiffs' second cause of action.
In their second cause of action, plaintiffs contend that some
of the solid waste and sludge materials which they were to
landspread and/or compost are derived from sources outside of
New York and are in the stream of interstate commerce.*fn5
After the plaintiffs' composting operations are completed, some
of the solid waste and sludge will allegedly be put back into
the stream of commerce as fertilizer.*fn6 Plaintiffs allege
that by enacting Local Laws # 4 and # 5 the defendant created
an unreasonable burden on interstate commerce.
The County initially argues that the plaintiffs' allegation
that its legislation created an unreasonable burden on
interstate commerce is not redressable under § 1983. In doing
so, the defendant relies heavily on Consolidated Freightways
Corp. of Delaware
v. Kassel, 730 F.2d 1139, 1144 (8th Cir. 1984), cert. denied
469 U.S. 834, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984), which held
that claims under the Commerce Clause are not cognizable under
§ 1983 because among other things, "the Commerce Clause does
not establish individual rights against the government, but
instead allocates power between state and federal governments."
Id. at 1144.
However, the Supreme Court has recently held that suits
alleging violations of the Commerce Clause may be brought under
42 U.S.C. § 1983. Dennis v. Higgins, ___ U.S. ___, 111 S.Ct.
865, 867, 112 L.Ed.2d 969 (1991). In Dennis, the Supreme Court
held that a broad construction of § 1983 is required by the
statutory language, "which speaks of deprivations of any
rights, privileges, or immunities secured by the Constitution
and laws." Id. at ___, 111 S.Ct. at 868 (emphasis in original).
The Court concluded by finding that the Supreme Court of
Nebraska erred in holding that petitioner's Commerce Clause
claim could not be brought under 42 U.S.C. § 1983. Id. 111
S.Ct. at 873. Thus, plaintiff's second cause of action may not
be dismissed simply because it was brought under § 1983.
It is clear that in the absence of federal preemption of
specific subject matter, states may, in the exercise of their
police power, regulate matters of legitimate local concern even
though such legislation has a concomitant effect upon
interstate commerce. Loretto Winery, Ltd. v. Gazzara,
601 F. Supp. 850, 857 (S.D.N.Y. 1985), modified 761 F.2d 140 (2d
Cir. 1985), citing Lewis v. BT Investment Managers Inc.,
447 U.S. 27, 35, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980). Where
a State acts evenhandedly to promote a legitimate local
concern, such as protecting the environment, and the effect
upon interstate commerce is merely incidental, the state
regulation will be upheld unless "the burden on such commerce
is clearly excessive in relation to the putative local
benefits." Loretto, 601 F. Supp. at 857, quoting Pike v. Bruce
Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d
174 (1970); see also Norfolk Southern Corporation v. Oberly,
822 F.2d 388, 405 (3rd Cir. 1987).
The court in Evergreen Waste Systems, Inc. v. Metropolitan
Service District, 820 F.2d 1482 (9th Cir. 1987) was faced with
an issue similar to that before this court. In Evergreen,
Oregon waste haulers sought to enjoin the enforcement of an
ordinance which prevented individuals from depositing waste
obtained from an out of a state district in a landfill owned
and operated by a metropolitan service district and the City of
Portland. Id. at 1483. The ordinance in question was designed
to restrict the flow of waste going into the landfill, thereby
extending its useful life. Id. at 1484. The statute in
Evergreen applied to only one of Oregon's many landfills and
banned waste from most of Oregon's counties in addition to
out-of-state waste. Id. The Evergreen court found that the
ordinance regulated evenhandedly because "evenhandedness
requires simply that most out-of-state waste be treated no
differently than in-state waste." Id. at 1484, citing
Washington State Trades Council v. Spellman, 684 F.2d 627, 631
(9th Cir. 1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77
L.Ed.2d 282 (1983).
Because the ordinance regulated waste disposal evenhandedly,
the Evergreen court applied the Pike balancing test, noted
supra, which provides that where a State acts evenhandedly to
promote a legitimate local concern, and the effect on
interstate commerce is merely incidental, the state regulation
will be upheld unless the burden on such commerce is clearly
excessive in relation to the putative local benefits. Pike, 397
U.S. at 142, 90 S.Ct. at 847; Evergreen, 820 F.2d at 1485. In
applying this test to the facts before it, the Evergreen court
held that the ordinance served a legitimate public purpose
because it extended the useful life of the landfill. Id. The
court also found that the ordinance placed a minimal burden on
interstate shipments of waste, and that the burden was
outweighed by the putative benefit to the defendants —
extending the useful life of the landfill so as to give the
area time to find a new site for a landfill. Id.
Like Evergreen, Local Laws # 4 and # 5 treat most in-state
waste in the same manner as out-of-state solid waste by
prohibiting the deposit of either in the County. Since the
defendant's legislation, on its face, regulates waste disposal
in an evenhanded manner, it is subject to the Pike balancing
test. See id.; Evergreen, 820 F.2d at 1484; Washington, 684
F.2d at 631; Loretto, 601 F. Supp. at 857. Local Laws # 4 and #
5 may serve a legitimate local purpose by addressing the
depletion of the County's resources and its capacity for the
disposal of solid waste generated within the boundaries of
Cayuga County. Evergreen, 820 F.2d at 1485; Bill Kettlewell
Excavating, Inc. v. Michigan Dep't Nat'l Resources, 732 F. Supp. 761,
766 (E.D.Mich. 1990), aff'd 931 F.2d 413 (6th Cir. 1991).
The burden the ordinance places on interstate commerce may not
be "clearly excessive in relation to the putative local
benefits" if there are alternative landfill sites widely
available in the State, thereby resulting in a minimal burden
on such commerce. Evergreen, 820 F.2d at 1485; Bill Kettlewell,
732 F. Supp. at 766. The plaintiffs' complaint does not allege
facts which indicate that the burden on interstate commerce
imposed by the subject ordinances is clearly excessive in
relation to the putative local benefits to the County of
Cayuga. However, such may be the case. Accordingly, the
defendant's motion to dismiss the plaintiffs' second cause of
action is granted without prejudice to the plaintiffs to file
and serve an amended complaint on the defendant which details
specifically any burden on interstate commerce the subject
ordinances allegedly impose.
The defendant's motion to dismiss the plaintiffs' first and
second causes of action is granted without prejudice.
Plaintiffs may file and serve an amended complaint on the
defendant which alleges their claims with sufficient
specificity within thirty days of the date of this order.
IT IS SO ORDERED.