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January 16, 1996

WILLIAM M. GREENE, SR. and KAREN M. GREENE, by and on behalf of themselves and WILLIAM M. GREENE, JR., and PATRICIA M. DONNELLY, both minors, Plaintiffs, against BARBARA HAWES, CHRISTINA NORTON, JANET RENNELL, ROXANNE DAY, PAUL MAROUN, DEAN LEFEBVRE, and DANIEL McCLELLAND, in their individual, corporate, and official capacities, Defendants.

The opinion of the court was delivered by: MCAVOY


 Plaintiffs William M. Greene, Sr., Karen M. Greene, William M. Greene, Jr., and Patricia Donnelly commenced this action by filing a complaint on July 28, 1995. They generally allege pursuant to 42 U.S.C. §§ 1983 and 1985(3) that defendants Barbara Hawes, Christina Norton, Janet Rennell, Clarence Marsh ("State Defendants"), Roxanne Day ("Day"), Paul Maroun, Dean Lefebvre and Daniel McClelland ("Local Defendants"), acting collectively and individually, have committed fraud against plaintiffs and violated the Constitution, federal law, and state law. Each defendant now moves to dismiss the Complaint -- State and Local Defendants pursuant to Fed. R. Civ. P. 12(b)(6) and defendant Day pursuant to Fed. R. Civ. P. 12(b)(1), (5), & (6).


 Plaintiff William M. Greene, Sr. ("Mr. Greene"), is an employee at Sunmount Developmental Center ("Sunmount") in Tupper Lake, New York, part of the New York State Office of Mental Retardation and Developmental Disabilities. He brings this action pro se on behalf of himself, his wife Karen M. Greene ("Mrs. Greene"), who also has worked at Sunmount, and his two dependent children, William M. Greene, Jr., and Patricia M. Donnelly. According to the statement of the case contained in the Complaint, plaintiffs' action arises "from State and Local Government Officials, Union Officials, and their representatives, acting in "bad faith" to commit "fraud" or "silence as fraud", followed by a series of constitutional and statutory deprivations . . . ." (Pls' Comp. P 1.)

 Plaintiffs initially contend that they were fraudulently induced into moving to Tupper Lake by representations that Sunmount was an "expansion" facility and was not slated for closure like many other state developmental centers. Plaintiffs claim that after they moved to Tupper Lake they learned that Sunmount was in fact scheduled to close. Such closure would, in plaintiffs' eyes, have a severe and adverse economic impact on plaintiffs themselves and the surrounding community. The State Defendants contend, however, that "contrary to this assertion plaintiffs' own exhibits show that Sunmount is not closing. Instead of closing, Sunmount's clients will be relocated to community residences throughout the catchment area encompassed by the Sunmount Developmental Disabilities Service Office." (State Defs' Mem. Supp. Dism. at 2.)

 Notwithstanding the parties' dispute over whether Sunmount is closing, Mr. Greene alleges that after he became aware of the pending changes he became actively involved in seeking alternatives to the closure. These actions included engaging in a dialogue with defendant Hawes, Director at Sunmount, lobbying the New York State Legislature, posting petitions at local businesses, and forming "The Citizens Action Group for Tupper Lake Jobs" ("Action Group") to campaign locally. Mr. Greene next asserts that because of his activities, Sunmount management and local officials retaliated against him and his family. Allegedly, the health and safety of his wife and unborn child were intentionally jeopardized in January or February of 1994 by Mrs. Greene's supervisors, defendants Norton and Rennell, who required the pregnant Mrs. Greene to supervise additional, assaultive clients in the swimming pool at Sunmount. Plaintiffs also contend that State Defendants attempted to establish a system of "fear and reprisal" with the intention of hindering Mr. Greene's lobbying activities and his constitutional rights to protest. For example, plaintiffs allege that defendant Marsh denied them their rights because he would not submit one of their petitions to the Office of Equal Opportunity. Mr. Greene also claims that State defendants would not allow him to take vacation time to lobby the Legislature.

 State Defendants counter plaintiffs' allegations by noting that "plaintiffs' own exhibits show that plaintiff Karen Greene did not have to supervise additional clients [in the swimming pool]." (State Defs' Mem. Supp. Dism. at 4.) Apparently, when Mrs. Greene brought her concerns to her supervisors and submitted a note from her physician, she was relieved of the swimming pool assignment without penalty. In regard to the "system of fear and reprisal," State Defendants argue that "the allegations are totally conclusory and . . . there were no threats of reprisal witnessed by the plaintiff or made to [the] plaintiff." (Id.) According to State Defendants, Mr. Greene actually was allowed to take vacation time to go to Albany and lobby the Legislature, and his other accusations are based on rumor and rumor alone. Finally, State Defendants argue that the alleged adverse economic impact on the community from the Sunmount changes is a "speculative and premature" claim by plaintiffs because they have yet to suffer any adverse affects on themselves or their property.

 Plaintiffs' claims against defendant Day are in her capacity as "Leader" of the Public Employees Federation Local 242 ("PEF 242"), (Pls' Comp. P 21), the union of which Mr. Greene is a member. Plaintiffs' specific allegations against defendant Day appear to arise out of two incidents. The first event involves a promotion that Day is claimed to have been offered by defendant Hawes for running for an elected position in PEF 242. Apparently, Mr. Greene believes that defendant Day was on friendly terms with State Defendants and would not challenge their alleged decision to close Sunmount. The second incident involves the publication of a certain memorandum by defendant Day in conjunction with defendant Hawes and others. Plaintiffs assert that this memorandum establishes that Day and PEF 242 conspired with State Defendants because the document fails to note that the changes at Sunmount would violate both the contract between the state and PEF 242 and New York law.

 With respect to Local Defendants, plaintiffs allege that defendant McClelland "violated [their] Right To Petition by telling the owner and another employee of one local business that [plaintiffs'] petition was not approved by the Task Force and it was therefore an 'illegal petition', which resulted in the petition being withdrawn from public access." (Pls' Comp. at P 40.) Plaintiffs also claim that defendants Maroun and Lefebvre violated their rights by allegedly deceiving him with "fraudulent information . . . about Sunmount's closure." (Id. at P 45.) Finally, plaintiffs argue that defendants McClelland and Lefebvre have engaged in character assassination and further violation of plaintiffs' rights by failing to support the Action Group and speaking against the group and Mr. Greene's petitions.

 Plaintiffs have raised eleven causes of action against individual defendants or combinations thereof, including claims of "endangerment of health and welfare," negligence, "suppression of investigation," "willful interference with family relations," intentional infliction of mental distress, misrepresentation, "deceit as fraud and silence as fraud," violation of plaintiffs' First Amendment rights, "character assassination," and statutory vagueness. Plaintiffs base jurisdiction for their claims on 42 U.S.C. §§ 1983 and 1985(3), 28 U.S.C. §§ 1331, 1343(1), 1367(a), 2201, and 2202, and "the Plaintiffs' intrinsic human rights," (Pls' Comp. at PP 3-11). Among the relief requested by plaintiffs is trial by jury, $ 1.4 million in compensatory damages, a court order directing defendants to return programs and services to plaintiff Patricia Donnelly and other children in the Tupper Lake public school system, and a declaratory judgment that the practices of defendants violated the constitutional and statutory rights of plaintiffs.

 Each group of defendants now moves to have the Complaint dismissed as to them for failure to state a cause of action under Fed. R. Civ. P. 12(b)(6). Moreover, defendant Day and Local Defendants also move to have the Complaint dismissed for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1). Finally, defendant Day moves for dismissal based on improper service of process, Fed. R. Civ. P. 12(b)(5), and Local Defendants move for dismissal because plaintiffs lack standing to sue. Each group of defendants also argues that the Court should decline to exercise supplemental jurisdiction over any remaining state law claims once the federal claims are dismissed.


 When a party moves for dismissal both because a court lacks subject-matter jurisdiction and for failure to state a cause of action, the court typically should address the jurisdictional question first. In other words, the determination of whether the merits of a complaint are sufficiently substantial is a threshold question that must be addressed by a court before it can exercise jurisdiction and proceed to the legal determination under Rule 12(b)(6) of whether the complaint states a claim. See Bell v. Hood, 327 U.S. 678, 682-83, 90 L. Ed. 939, 66 S. Ct. 773 (1946). It may be impossible in a 42 U.S.C. § 1983 action, however, to determine the jurisdictional issue without essentially determining whether a plaintiff has stated a cause of action. As the Court will explain below, jurisdiction to adjudicate a Section 1983 ...

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