(Item 1, P 114), and retaliation against lessees who disapproved SILA's actions. Plaintiffs also claim that SILA refused to provide information about the lease negotiations to the lessees. According to Plaintiffs, these activities constitute "violation" of unidentified "state and federal law" (Item 1, P 136).
Plaintiffs characterize this claim as both a civil rights claim under 42 U.S.C. § 1983 and a direct constitutional claim under the fourteenth amendment. Plaintiffs also argue that this claim states a first amendment violation for retaliation against Plaintiffs.
Relief under 42 U.S.C. § 1983 is premised upon a showing, first, that the defendant has denied the plaintiff a constitutional or federal statutory right and, second, that such denial was effected under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985), cert. denied, 474 U.S. 1100, 88 L. Ed. 2d 916, 106 S. Ct. 879 (1986). Defendants dispute that the conduct complained of on the part of SILA and its officials amounted to state action or occurred under color of state law for the purposes of this lawsuit. Defendants also contest whether the conduct alleged resulted in a denial of Plaintiffs' rights to substantive or procedural due process under the fourteenth amendment, freedom of speech under the first amendment, or some other denial of a federal constitutional or statutory right.
The initial inquiry in a § 1983 action is whether the Plaintiff has been deprived of a right "secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983; Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). A suit under § 1983 "does not automatically convert potential contract and tort liability under state law into contract and tort liability under federal law whenever the defendant is the state" or is alleged to be acting under color of state law. Stewart v. Hunt, 598 F. Supp. 1342, 1353 (E.D.N.C. 1984); see also Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985)(violation of state law not cognizable under § 1983); Powers v. Coe, 728 F.2d 97, 105 (2d Cir. 1984)(violations of state law alone insufficient to state § 1983 claim). Section 1983 imposes liability for violations of rights protected by the constitution and laws of the United States, not for violations arising solely out of state or common-law principles. Stewart v. Hunt, supra, 598 F. Supp. at 1353. Thus, while some official conduct may clearly violate state law, it may not rise to the level of constitutional injury. The proper remedy in those instances is a suit in state court under traditional contract, tort, agency or other common-law theory. Id.; Baker v. McCollan, supra, 443 U.S. at 146.
It is clear from reviewing this claim that the various wrongs alleged constitute, at most, state law violations. Nowhere in the seventh count is any federal constitutional or 1983 claim described. Nor does the claim identify any constitutionally protected interest. The conduct complained of, and the resulting harm, is insufficient to "raise an ordinary tort by a government agent to the stature of a violation of the constitution." Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019, 69 L. Ed. 2d 391, 101 S. Ct. 3009 (1981). Accordingly, this claim, like the fifth claim, should be dismissed insofar as it purports to state a federal claim.
As far as SILA's authority to continue to act after the master lease concept was rejected, this has already been discussed in previous sections and need not be repeated here. As far as the alleged retaliation relating to SILA's November 14, 1990 letter to the Nation purporting to reject the 40/40 lease for those lessees who revoked their authorizations to SILA, the record shows that the Nation did not follow SILA's recommendation. The Nation has not treated any individual revocation of SILA's authority as a withdrawal of the proposed lease. See, e.g., Item I, Exh. Q; Joint Appendix 265-66. Accordingly, there has been no harm resulting from the alleged retaliation. In the absence of any injury, there can be no claim. Valley Forge College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Lamont v. Woods, 948 F.2d 825, 829 (2d Cir. 1991).
Plaintiffs claim that the City and Defendant Carbone have violated their constitutional rights by permitting SILA to use City funds and by permitting SILA "to control all aspects of the lease negotiations with" the Nation (Item 1, P 146). For the reasons already discussed, this conduct does not give rise to a federal claim against SILA. A fortiori, it cannot give rise to a federal claim against the City and Defendant Carbone based on the same conduct. Accordingly, the ninth claim should be dismissed insofar as it purports to state a federal claim.
Plaintiffs claim that Defendant Franz breached his duty of representation to Plaintiffs by, among other things, acting in a dual capacity as attorney for the City and for SILA and by advising his clients incorrectly as to the constitutionality of their actions. Plaintiffs also allege that Franz participated in the retaliatory action against the lessees. For the same reasons discussed above finding no federal claim against SILA or the City for the alleged constitutional violations, the eleventh claim should be dismissed insofar as it purports to state a federal claim.
Twelfth Cause of Action
Plaintiffs claim that the individual SILA members continued to act as SILA despite their lack of authority to do so, and wrongfully attempted to reject the 40/40 lease on behalf of the revoking lessees, in violation of Plaintiffs' constitutional rights. For the same reasons set forth above finding no constitutional violation caused by SILA's conduct, it is recommended that summary judgment be entered in favor of Defendants dismissing the twelfth cause of action as a matter of law.
Additional Claims Not Appearing in the Pleadings
At oral argument of this motion, and in supplemental submissions following oral argument, Plaintiffs raise several new claims which do not appear in the pleadings. First, Plaintiffs argue that they had a right to negotiate directly with the Nation under the 1990 Act and that SILA, in conspiracy with the Nation, denied them that right. Second, Plaintiffs claim that SILA has interfered with their interest in the continued occupancy of their homes and business, and their ownership of leasehold improvements. Finally, Plaintiffs argue that the Nation and SILA conspired to compel the lessees to accept the 40/40 lease, which was prejudicial to Plaintiffs' property interests.
These claims are an effort to revive a complaint which was effectively extinguished by (1) the dismissal of the Nation from the case on the ground of sovereign immunity, and (2) the holding that the 99-year leases were not renewable. Since these claims are outside of the pleadings, they cannot provide a basis for continuing the complaint. See, e.g., Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985) (complaint, even liberally construed, failed to set forth grounds upon which § 1983 claim was based); 2A Moore's Federal Practice P 12.07[2.-5]. But even if these claims were in the complaint, they would not survive this motion. Each shall be discussed in turn.
A. Plaintiffs "right to negotiate "
Plaintiffs argue that the Nation has an obligation to negotiate with individual lessees and that SILA interfered with that obligation. Plaintiffs further argue that this claim amounts to a constitutional violation cognizable under 42 U.S.C. § 1983.
Even if this claim were alleged in the complaint, it would not survive Defendants' motion to dismiss or for summary judgment. Absent some contract, or statute to the contrary, Plaintiffs have no constitutional "right to negotiate" with the Nation. The Nation can choose to negotiate with no one, or anyone.
As far as statutory obligations to negotiate, the Act of 1875 and the Act of 1890 give the lessees the right to negotiate a lease in accordance with the terms set forth in these Acts. But the Second Circuit has determined that no further renewals are available. Fluent v. Salamanca Indian Lease Authority, supra, 928 F.2d at 546.
As far as a contractual obligation to negotiate, the Second Circuit also determined that the leases did not provide for renewal:
Nor do the terms of the expired leases provide that the Nation must accede to the appellants proposals for renewal.
Id. at 847.
The only other possible source of a "right" or obligation "to negotiate" is in the 1990 Act. However, the 1990 Act expressly endorses the 40/40 Agreement, and does not create any right to negotiate a different lease arrangement. The 1990 Act states only that the Nation "is solely responsible for negotiation of the leases under the Agreement in its own interest and approval of any such lease by the United States is not required." 25 U.S.C. § 1774c(a) (emphasis added). "The Agreement" is defined as "the document executed by the Seneca Nation and the city entitled 'Agreement between the Seneca Nation of Indians and the City of Salamanca'. . . ." 25 U.S.C. § 1774a(2).
Contrary to Plaintiffs' argument, the 1990 Act does not place any obligation on the Nation to negotiate new or renewed lease terms with individual lessees, other than the 40/40 lease referred to as the "Agreement." The 1990 Act simply states that the Nation, acting on its own, is responsible for obtaining 40/40 leases from the individual lessees and need not obtain Congressional approval. Nothing in the statute places a duty on the Nation to negotiate any lease arrangement other than the 40/40 lease approved by Congress, the City and SILA.
The 1990 Act also provides as follows:
The Congress finds that --