The opinion of the court was delivered by: GERARD L. GOETTEL
The present action concerns an alleged violation of plaintiff's Fourteenth Amendment due process rights by parties acting under color of state law, brought under 28 U.S.C. § 1983, and a claim that 9 NYCRR § 4117.4(p) is unconstitutional. Plaintiff William Parker, Jr. is a New York State licensed harness race driver. Defendant New York State Racing and Wagering Board ("the Board") is an administrative agency, created by New York State law, with licensing and disciplinary authority over its horse-racing licensees. Defendant Richard Corbisiero chairs the Board, and defendants Joseph Neglia and Bennett Liebman are members of the Board. Defendants Corbisiero, Neglia and Liebman are being sued in both their individual and official capacities.
On April 26, 1990, plaintiff participated in the seventh race at Yonkers Raceway, finishing last out of a pack of eight horses. Three track judges witnessed the race as it occurred and found plaintiff to have raced with "lack of effort" in violation of 9 NYCRR § 4117.4(p). For this violation, the judges ruled unanimously to suspend plaintiff's racing license for thirty days. The suspension was to begin on May 1, 1990, but it was stayed pending plaintiff's appeal of the decision to the Board.
At the Board proceeding, testimony was given by Presiding Track Judge James Michaels on behalf of the defendants and by Parker himself and the horse's trainer, Frank Bisaccia, for the plaintiff. The race videotape, programs and charts were introduced as additional evidence. Based on the evidence presented, on June 21, 1991 the hearing officer issued his report, recommending that the suspension of plaintiff's license be confirmed. The Board subsequently confirmed the suspension, by Order dated July 1, 1991.
During the pendency of the case, plaintiff allegedly asked defendants' counsel to file the videotape of the race with the Appellate Division for their review in connection with the case. plaintiff further alleges that defendant "failed and refused" to provide the Appellate Division with the videotape.
Plaintiff contends that defendants' failure to provide the Appellate Division with the videotape of the race violated plaintiff's right to the meaningful review of his case necessary to satisfy due process of law. Additionally, plaintiff argues that the Appellate Division's affirmation of the Board's Order in the absence of its prior review of the videotape constituted a denial of his due process rights.
Plaintiff next moved to reargue his case before the Appellate Division, but the court denied the motion. Finally, plaintiff moved before the New York State Court of Appeals for leave to appeal to that court. Plaintiff indicates that he raised the issues involved in the present action before said Court in his motion, but that the Court denied the motion by an Order dated May 4, 1993. Plaintiff contends that the Court of Appeals' denial of leave also constitutes a violation of plaintiff's right to due process under the facts of this case.
Plaintiff now sues for $ 500,000.00 in incidental, consequential, and compensatory damages, and for plaintiff's costs, disbursements, and attorney's fees in connection with this action pursuant to 42 U.S.C. § 1988. In addition to these monetary remedies, plaintiff seeks to have 9 NYCRR § 4117.4(p) declared unconstitutional and to have the Board's allegedly repetitive practice of failing to provide courts with videotapes of races in cases similar to the present action declared unconstitutional as violating the rights of horse racing licensees to have the degree of meaningful review necessary to satisfy due process of law.
Before the court today are plaintiff's motion for a preliminary injunction, brought by Order to Show Cause, and defendants' cross-motion to dismiss plaintiff's case for lack of subject matter jurisdiction, brought under Fed.R.Civ.P. 12(b)(1). We first address defendants' motion to dismiss.
A. Defendants' Motion to Dismiss
Defendants bring a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Defendants basic position is that plaintiff's state court proceedings preclude him from bringing the present action in this court. Before discussing defendants' position in greater detail, we note that federal courts, in adjudicating claims, must give state court judgments the same preclusive effect they would have received under the laws of their own state, "regardless of whether or not the issues in the federal action had actually been litigated in a prior state action." Gargiul v. Tompkins, 790 F.2d 265, 269 (2d Cir. 1986) (citing Migra v. Warren City School District, 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). See also Collard v. Incorporated Village of Flower Hill, 759 F.2d 205, 207 (2d Cir.) (per curiam) (1985), cert. denied, 474 U.S. 827, 88 L. Ed. 2d 72, 106 S. Ct. 88 (1985) (giving a state judgment preclusive effect in a subsequent federal suit seeking relief under 28 U.S.C. § 1983); 28 U.S.C. § 1738. The present federal action follows a prior New York judgment against plaintiff. Hence, in the remainder of our discussion, New York law will govern our determination of whether plaintiff's prior state actions will preclude his litigation of the claims presently before this court.