unless it makes specific factual allegations indicating deprivation of rights; insufficient to allege that defendant engaged in certain conduct "because of" race). As with the great majority of their discrimination claims against defendants, plaintiffs support this one with mere speculation, conjecture and inference.
In response to defendants' memorandum pointing out some of the flaws in their complaint, plaintiffs attempt to show that under Praprotnik and Pembaur, their complaint indeed states a claim under § 1983. However, the complaint mentions only one of the defendant's employees by name--Thomas Shepardson, assistant corporation council for the City--and contains no allegations about how he exercised any final decision-making authority he may have possessed to adopt unconstitutional municipal policies that the City applied to plaintiffs in violation of § 1983. See Compl. P 42. The complaint thus fails to state a claim based on the theory of liability espoused in Praprotnik and Pembaur.
In opposition to defendants' motions, plaintiffs filed an affidavit that specifies more of defendants' officials by name and attempts to link three of them to decisions that allegedly subject the City to § 1983 liability. Because plaintiffs filed their affidavit in opposition to defendants' motions and not as an amendment to their complaint, Fed. R. Civ. Pro. 12(b) prevents the Court from considering it for purposes of deciding defendants' 12(b)(6) motion. See Fonte, 848 F.2d at 25-26. The Court will assume for the sake of argument that the complaint states a claim and consider the affidavit only for purposes of deciding defendants' 56(c) motion for summary judgment.
Plaintiffs' affidavit again mentions Mr. Shepardson and claims that he engaged in a collusive bidding scheme during the public auction of the Hotel. The affidavit fails entirely to link Mr. Shepardson's role in the alleged scheme to any decision he may have made that triggered § 1983 liability for the City. These allegations therefore fail to raise a genuine issue of material fact.
The affidavit also mentions Vincent McArdle, Jr., Chief Corporation Counsel for both defendants. It states that Mr. McArdle interfered with plaintiffs' sale of the Hotel to a prospective buyer and opposed plaintiffs' Chapter 11 reorganization plan. Again, plaintiffs' allegations fail to raise a genuine issue with respect to the material facts of whether Mr. McArdle has final decision-making authority and if so, whether he exercised it to adopt unconstitutional municipal policies that defendants applied to plaintiffs in violation of § 1983.
Finally, plaintiffs' affidavit fleshes out the complaint by alleging that Keith McDonald, the City's Tax Commissioner, was the official who refused plaintiffs' request to reduce his property tax assessment of the Hotel, but granted the subsequent request of a white person representing the Hotel buyers. This is the closest plaintiffs come to sufficiently alleging, or to raising a genuine issue with respect to the material fact, that a City official with final decision-making authority exercised it in a manner that exposed the City to § 1983 liability.
However, plaintiffs fail to allege that state law accords Mr. McDonald final authority with respect to tax assessments. Therefore, in light of Monell's rules for municipal liability under § 1983, plaintiffs' complaint fails to state a claim on which relief can be granted and even if it did, the allegations in plaintiffs' complaint and affidavit fail to raise a genuine issue of material fact. Moreover, the Court lacks jurisdiction over this tax claim for the reasons cited in the earlier discussion of 42 U.S.C. § 1982.
Plaintiffs' affidavit names other officials employed by defendants, but fails to allege which of them had final decision-making authority and which of them who possessed it, if any, exercised it to adopt unconstitutional municipal policies that defendants applied to plaintiffs in violation of § 1983. See Brasch v. Koch, 1988 U.S. Dist. LEXIS 16395, 1988 WL 156812 (S.D.N.Y. 1988). Therefore, none of these allegations raises a genuine issue with respect to these material facts.
2. Abuse of Process
In 1992, Defendant AIDA sued plaintiffs in state court to recover on a debt they allegedly owed as guarantors of the Hotel mortgage note. The New York Supreme Court granted Defendant's motion for summary judgment pursuant to CPLR § 3213. Ps' Exs. W, X. Plaintiffs argue that by filing the action, Defendant AIDA committed "malicious abuse of wrongful legal proceedings," as opposed to malicious prosecution or malicious abuse of process. Ps' Mem. 13. As the Court is unfamiliar with any cause of action known as "malicious abuse of wrongful legal proceedings," it must treat plaintiffs' claim as one for abuse of process.
The Second Circuit recently stated that malicious abuse of process will not support a § 1983 claim. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.), cert. denied, 506 U.S. 819, 113 S. Ct. 66, 121 L. Ed. 2d 33 (1992). Prior to Spear, the Second Circuit held out the possibility that a civil suit might support a § 1983 claim if it subjected the plaintiff to a conscience-shocking "misuse of the legal process so egregious as to work a deprivation of a constitutional dimension." Easton v. Sundram, 947 F.2d 1011, 1018 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992).
Defendant AIDA filed a claim against plaintiffs to recover a debt. Plaintiffs failed to respond, allegedly because of their former lawyer's inaction, and the court granted defendants' motion for summary judgment. Even if malicious abuse of process supports a § 1983 claim and even if, as plaintiffs contend, defendant AIDA had already released its claims against plaintiffs before it filed the state court action, none of plaintiffs' allegations indicate that the suit subjected them to a conscience-shocking deprivation of any constitutional rights. Instead, plaintiffs assert in conclusory fashion that Defendant AIDA filed the state court action in bad faith and with the intent to deprive plaintiffs of their constitutional rights. Plaintiffs have thus failed to state a § 1983 claim based on malicious abuse of process on which relief can be granted.
D. § 1985(3)
Plaintiffs also argue that defendants have conspired against them to deprive them of rights or privileges that they enjoy as citizens of the United States. To state a claim under the relevant civil rights statute, 42 U.S.C. § 1985(3), the plaintiff must allege with specificity facts sufficient to show or raise a plausible inference of:
(1) a conspiracy between two or more persons for the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law, and
(2) an act by one of the conspirators in furtherance of the object of the conspiracy whereby another person was