to the defendants' intent, the complaint alleges, "That the actions of the defendants was [sic] wanton, wilful, and malicious in that even when I brought a lawsuit against them they continued to pursue their illegal conduct." Complaint P 30. This allegation is wholly conclusory. Neither the complaint nor the plaintiff's submissions contain any allegations of fact that would support any inference of wanton or malicious intent. The Court finds that the possibility of any inference of a malicious or bad faith intent on the part of the defendants is precluded by the fact that the videotape of the July 29 hearing reveals that the Board attempted to verify service of the specifications by reading the proof of service provided by Mahon's lawyer and that Cornett affirmed that the allegedly incorrect address listed on the notice was in fact his own.
On a motion for summary judgment, if a defendant demonstrates that there is an absence of evidence supporting an essential element of the claim on which the plaintiff has the burden of proof, the plaintiff, to avoid summary judgment, must show a genuine issue by presenting evidence that would be sufficient, if all reasonable inferences were drawn in his favor, to establish the existence of that element at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); FRCP 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). A plaintiff cannot rely on conclusory statements in the pleadings or insupportable allegations made by affidavit. Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983).
The fact that discovery is not complete is no excuse for a plaintiff to rest his or her defense against a summary judgment motion on conclusory allegations. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 251 (2d Cir. 1985) ("A bare assertion that evidence to support a fanciful allegation lies within the exclusive control of the defendants, and can be obtained only through discovery, is not sufficient to defeat a motion for summary judgment.") (citations omitted).
If a plaintiff needs to make additional inquiries to defend against the motion, the plaintiff may obtain a continuance under Federal Rule of Civil Procedure 56(f). Wyler, 725 F.2d at 160 ("If facts essential to support such opposition are not available, the plaintiff may obtain a continuance under Rule 56(f) to permit affidavits to be obtained or discovery to be had. He cannot rely simply on conclusory statements or on contentions that the affidavits in support of the motion are incredible.")
Cornett has not sought a continuance under Rule 56(f) and has thus waived any right to further discovery. See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985) ("A memorandum is not a substitute for an affidavit under Rule 56(f), and it has been held that the failure to file such an affidavit under Rule 56(f) is by itself enough to reject a claim that the opportunity for discovery was inadequate.") (citations omitted).
Moreover, the Court of Appeals for the Second Circuit has instructed the district courts to be "particularly cautious to protect public officials from protracted litigation involving specious claims." Contemporary Mission, 648 F.2d at 107; see also Johnson v. United States, 680 F. Supp. 508, 517 (E.D.N.Y. 1987) ("Bare allegations of malice should not be enough to subject government officials to the burdens of broad-reaching discovery and its disruption of effective government.") (citing Harlow v. Fitzgerald, 457 U.S. 800, 817, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). In this case, there is no evidence -- even construing all of the evidence in the light most favorable to Cornett -- that the defendants acted with malicious or bad faith intent to injure him. Indeed, the evidence of the hearing shows that they did no such thing.
For the foregoing reasons, the Court grants the defendants summary judgment on the plaintiff's claim that his right to the equal protection of the laws guaranteed by the United States Constitution was violated by the defendants.
Cornett alleges that the defendants violated his constitutional right to due process by failing to give him notice of the specifications to Mahon's objections to his petition prior to the July 29, 1994 Board of Elections hearing. The Fourteenth Amendment provides that "no state shall. . . deprive a person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. A threshold question in determining whether Cornett has suffered a deprivation of procedural due process is whether he possessed a liberty or property interest in being on the ballot. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1060-61 (2d Cir.) ("In order to succeed on a claim of deprivation of procedural due process, a plaintiff must establish that state action deprived him of a protected property or liberty interest.") (citing Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976)), cert. denied, 114 S. Ct. 185, 126 L. Ed. 2d 144 (1993).
Property interests are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Luck v. Mazzone, 52 F.3d 475, 477 (2d Cir. 1995) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). Often, the question of whether a plaintiff possesses a property interest entitled to the protection afforded by constitutional due process is answerable by reference to state law. See, e.g., Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976) ("A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.") (footnotes omitted). The defendants argue that New York courts have held that under New York law a person cannot possess a property interest in a public office. However, the decisions the defendants rely on have not involved federal offices and some have noted the relevance of this distinction. See, e.g., Lanza v. Wagner, 11 N.Y.2d 317, 324, 183 N.E.2d 670, 673, 229 N.Y.S.2d 380, 385 (N.Y.) ("The office held by each of the plaintiffs was concededly created by the Legislature, not by the Constitution, and there is no constitutional inhibition against the mere shortening of the term of an existing statutory office by legislation aimed at the office rather than at its incumbent. Public offices are created for the benefit of the public, and not granted for the benefit of the incumbent, and the office holder has no contractual, vested or property right in the office.") (citations omitted), appeal dismissed, 371 U.S. 74, 9 L. Ed. 2d 163, 83 S. Ct. 177, cert. denied, 371 U.S. 901, 9 L. Ed. 2d 164, 83 S. Ct. 205 (1962). Nonetheless, if the question of whether there is a property interest in an office created by the Constitution is properly one of federal rather than state law, a person still can not possess a property interest in the federal office, because, "Property interests, of course, are not created by the Constitution." Board of Regents v. Roth, 408 U.S. at 577 (1972). The plaintiff has no property interest at issue in this litigation.
Cornett has not argued that he possesses a liberty interest in running for public office. Although, "in a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed," the parties point to no authority for the proposition that the concept of liberty includes the right to run for public office. See generally, Roth, 408 U.S. at 577.
Even if Cornett did have a protected property or liberty interest in running for the House of Representatives he was afforded due process by the Board in this case. The Supreme Court has held that:
'Due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands. . . .