singular application of zoning use variance and restriction to topless bar stated claim for selective enforcement) (quotations and citations omitted).
E. Bullock's and Scott's Qualified Immunity Defenses
The Court agrees with defendants Bullock and Scott that they are shielded from suit for damages on the basis of their qualified immunity defenses. Although certain of the constitutional rights that these defendants allegedly violated may have been clearly established at the time of the conduct in question, the Court nevertheless finds that even upon viewing the allegations of the Complaint in the light most favorable to the plaintiffs, "'no reasonable jury could conclude that it was objectively unreasonable for [these] defendants to believe that they were acting in a fashion that did not violate an established federally protected right.'" Quartararo v. Catterson, 917 F. Supp. 919, 959 (E.D.N.Y. 1996) (quoting Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993)). In addition, because the various policy alternatives presented to these defendants rendered their conduct discretionary, the Court rejects the plaintiffs' contention that the qualified immunity doctrine is inapplicable on the basis that Bullock's and Scott's conduct was ministerial. Cf. Walz v. Town of Smithtown, 46 F.3d 162, 168-69 (2d Cir.) (Public official was not exercising a discretionary function but simply refusing to perform a ministerial act where he declined to issue an excavation permit which, under state law, he was required to issue.), cert. denied, 132 L. Ed. 2d 810, 115 S. Ct. 2557 (1995).
Accordingly, to the extent that the Complaint asserts claims against defendants Bullock and Scott in their individual capacities, the Complaint is hereby DISMISSED. Such dismissal, however, shall be without prejudice to file an amended complaint. In addition, the Court observes that to the extent that the Complaint asserts claims against these defendants in their official capacities (i.e., claims seeking equitable relief as opposed to money damages), these defendants remain parties to this litigation. See Quartararo, 917 F. Supp. at 948 ("'The personal privileges of absolute or qualified immunity are available to governmental officials only with respect to damage claims asserted against them in their individual capacities.'") (quoting Pinaud v. County of Suffolk, 52 F.3d 1139, 1146 (2d Cir. 1995)).
F. Statement of Claim for Failure to Issue Miranda Warnings
To the extent that the Complaint purports to assert a claim based upon Detective Faulhaber's failure to administer Miranda warnings to Judah Johns prior to subjecting him to custodial interrogation, defendants' motion for partial dismissal is GRANTED. This result obtains because Miranda warnings are merely procedural safeguards, and not constitutional rights. Therefore, a law enforcement official's failure to administer Miranda warnings prior to subjecting a person to custodial interrogation does not give rise to a constitutional deprivation provided that no involuntary statements made by the declarant are used against him in a criminal proceeding. See Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995) (per curiam), cert. denied, 134 L. Ed. 2d 214, 116 S. Ct. 1267 (1996); Weaver v. Brenner, 40 F.3d 527, 534-36 (2d Cir. 1994).
In the case at bar, the Complaint does not plead that Judah Johns' Fifth Amendment rights were violated through the use of a compelled statement against him at some criminal proceeding. See Weaver, 40 F.3d at 535 ("Use or derivative use of a compelled statement at any criminal proceeding against the declarant violates that person's Fifth Amendment rights . . . ."); Pls.' Compl. Count II. Further, the Complaint does not allege that Detective Faulhaber's conduct involved coercive interrogation techniques which produced an involuntary incriminating statement. See id. at 536. Accordingly, Count II of the Complaint is hereby DISMISSED, although such dismissal shall be with leave to replead in accordance with the Second Circuit's analysis in Weaver.
G. Statement of Claim for Violation of Procedural Due Process
The Court agrees with the defendants that the Complaint fails to plead a claim for a violation of procedural due process in connection with the defendants' manner of handling complaints against police officers. In this regard, the plaintiffs have failed to plead, in accordance with established Supreme Court doctrine, the existence of a property or liberty interest which may serve as a basis for the assertion of a procedural due process claim. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989) ("An individual claiming a protected interest must have a legitimate claim of entitlement to it."); see Quartararo, 917 F. Supp. at 960. "The deprivation of a procedural right to be heard . . . is not actionable when there is no protected right at stake." Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). The plaintiffs do not allege that state law required their civilian complaint against Detective Faulhaber to be reviewed in any prescribed manner so as to confer upon them "a legitimate claim of entitlement" to said manner of review. Kentucky Dep't of Corrections, 490 U.S. at 460, 109 S. Ct. at 1908; see Gagliardi, 18 F.3d at 192. Accordingly, plaintiffs' procedural due process claims are hereby DISMISSED.
H. Statement of Claim for Violation of Substantive Due Process
The Court agrees with the defendants that the Complaint fails to state a claim for a violation of the substantive due process component of the Fourteenth Amendment, although for different reasons than those which the defendants assert. Specifically, it appears to the Court that the same state conduct which the Complaint regards as arbitrary and conscience shocking--and therefore allegedly violative of the plaintiffs' substantive due process rights--also may be analyzed to allege claims under, inter alia, the First Amendment (retaliatory conduct for the exercise of First Amendment rights), the Fourth Amendment (unreasonable search and seizure), and the Equal Protection Clause of the Fourteenth Amendment (selective treatment due to an impermissible purpose). Under Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), "where a particular amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" 114 S. Ct. at 813 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989)). Thus, substantive due process analysis generally may not be employed absent a showing of government interference with a fundamental constitutional right (e.g., matters relating to marriage, family, procreation, and the right to bodily integrity). See id. at 812. Accordingly, defendants' motion to dismiss plaintiffs' substantive due process claims is GRANTED.
I. Statement of Claim for Violation of Plaintiffs' First Amendment Right to Petition for Redress of Grievances
The Court agrees with the plaintiffs' contention that the Complaint states a claim of retaliation for the exercise of First Amendment rights, to wit, Mrs. Johns' filing of a civilian complaint against Detective Faulhaber. See Gagliardi, 18 F.3d at 194 ("The rights to complain to public officials and to seek administrative and judicial relief are protected by the First Amendment.").
J. Statement of Claim for Violation of Equal Protection Clause of the Fourteenth Amendment
The Court agrees with the plaintiffs that the Complaint states a claim under the Equal Protection Clause of the Fourteenth Amendment. This claim is premised upon the plaintiffs' selective exposure to harassment by law enforcement officials in order to punish them for Mrs. Johns' exercise of her First Amendment rights by filing a civilian complaint against Detective Faulhaber. See LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980) (To state a claim for selective application of a facially lawful state regulation, a plaintiff must allege that "(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person."), cert. denied, 450 U.S. 959 (1981); see also FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992) (citations omitted); see, e.g., LaTrieste Restaurant and Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (village's singular application of zoning use variance and restriction to topless bar stated claim for selective enforcement) (quotations and citations omitted).
K. Statement of Claim Based Upon Failure of Certain Defendants to Intercede
In Count X, the plaintiffs allege claims under 42 U.S.C. § 1983 against unspecified members of the Town of East Hampton Police Department who were aware of the constitutional violations visited upon the plaintiffs, but did nothing to prevent their occurrence and repetition. Although this count incorporates by reference the other allegations of the Complaint, it nevertheless is deficient because it fails to allege the personal involvement of these unnamed defendants in a constitutional violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Accordingly, this count is DISMISSED with leave to replead.
IV. Plaintiffs' Pendent State Claims
Finally, Counts III, V and XI of the Complaint allege pendent claims under state law for violations of New York statutes governing the treatment of juveniles upon their arrest and detention, violations of the Town of East Hampton Police Department's own policies and procedures, and negligent infliction of emotional distress. Defendants contend that these causes of action must be dismissed because the plaintiffs have failed to comply with the statutory prerequisites for bringing these claims, as set forth in sections 50-e and 50-i of the General Municipal Law. See N.Y. Gen. Mun. Law §§ 50-e, 50-i (McKinney 1986). Section 50-e generally requires that a notice of claim be served upon the municipality within 90 days of the date that the claim arose. See N.Y. Gen. Mun. Law § 50-e(1)(a) (McKinney 1986).
Plaintiffs' principal response to defendants' contention--which defendants in fact concede--is that the condition precedent imposed under the New York General Municipal Law applies solely to state tort claims, and not to federal civil-rights claims under 42 U.S.C. § 1983. Plaintiffs further contend that the claim for negligent infliction of emotional distress (Count XI) is not barred by section 50-e to the extent that it is asserted against the individual defendants in their individual capacities, or is premised upon other New York statutes. This assertion, however, is contrary to the weight of authority. See Ruiz v. Herrera, 745 F. Supp. 940, 944-46 (S.D.N.Y. 1990) (notice of claim must be served on municipality as a condition precedent to filing a civil action based upon negligent conduct against an on-duty police officer).
Upon consideration of the parties' contentions, the Court agrees with the defendants' assertion that all of plaintiffs' pendent state-law claims must be DISMISSED for failure to file a notice of claim with the Town of East Hampton. See Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61-62, 484 N.Y.S.2d 533, 534-35, 473 N.E.2d 761 (1984) (per curiam) (notice of claim requirement is a condition precedent to bringing suit under New York law). The plaintiffs, however, are granted leave to amend their complaint to the extent that the factual allegations underlying these pendent claims may be used in support of plaintiffs' federal claims under 42 U.S.C. § 1983.
For the foregoing reasons, the Court enters the following orders in this action:
1. Defendants' motion for partial dismissal of plaintiffs' complaint is granted in part and denied in part in accordance with the analysis stated herein.
2. Plaintiffs' cross-motion for leave to file an amended complaint is granted in accordance with the analysis stated herein.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
September 20, 1996