(i) As to the claim for violation of due process
In order to state a claim under Section 1983 for violation of
due process, a plaintiff must first show that a government entity
deprived it of a right secured by the constitution or by law.
Finley v. Giacobbe, 79 F.3d 1285, 1286 (2d Cir. 1996), citing
Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d
572 (1980). A plaintiff must have a property interest in a
benefit that is "more than an abstract need or desire for [the
benefit . . . The plaintiff] must, instead, have a legitimate
claim of entitlement to it" under state or federal law in order
to state a Section 1983 claim. Id.,citing Board of Regents v.
Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Here, ReSource's Section 1983 claim is based on an argument
that, by being the lowest bidder on the hauling contract, it has
obtained a property right to have the contract awarded to it.
However, New York law is clear that the lowest bidder on a public
works contract does not obtain a vested interest in a public
works contract. Impact Shipping, Inc. v. City of N.Y., 1997 WL
297039 (S.D.N.Y. 1997) citing Conduit & Foundation Corp. v.
Metropolitan Transp. Authority, 66 N.Y.2d 144, 495 N.Y.S.2d 340,
485 N.E.2d 1005 (1985). This is especially true where the
contract is awarded pursuant to a state statute like the one
here, N.Y.Gen.Mun.L. § 102-w, which, as ReSource acknowledges,
does not simply require the contract to be automatically awarded
to the lowest bidder, but vests discretion in the Town to
exercise its discretion in selecting the most beneficial bid.
When official action is discretionary, "one's interest in a
favorable decision does not rise to the level of a property right
entitled to procedural due process protection." Walentas v.
Lipper, 862 F.2d 414, 419 (2d Cir. 1988), cert. denied,
490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d 183 (1989) quoting RR
Village Ass'n, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1202
(2d Cir. 1987); see also Transcontrol Corp. v. Metropolitan
Tran. Auth., 1987 WL 12090 (S.D.N.Y. 1987) (holding that rules
and regulations requiring Transportation Authority to award
contract to lowest responsible bidder contemplated exercise of
discretion and thus did not confer protected property interest on
the low bidder).
While ReSource acknowledges that the Town had the statutorily
granted discretion to subjectively evaluate the bids, it
nevertheless argues that the Town abused that discretion, and
that, absent such abuse, ReSource would certainly have been
awarded the contract. Citing Sullivan v. Town of Salem,
805 F.2d 81 (2d Cir. 1986) (claim of entitlement exists where, absent
the alleged denial of due process, there is a certainty that the
benefit would have been granted to the plaintiff). Both premises
of this argument are flawed. Although ReSource alleges that the
Town acted arbitrarily in selecting BSSCI, the New York State
Supreme Court in Matter of Resource, N.E. of Long Island, Index
No. 95-01795 (Sup.Ct. Suffolk County 1996) found in an Article 78
proceeding that the Town's evaluation of the bids was not
arbitrary or capricious and that the award of the contract to
BSSCI was supported by facts in the record. ReSource's failure to
appeal this decision prevents it from contending here that the
Town's decision was arbitrary. While this Court previously held
that the issues in the Article 78 case and the broad issues in
the instant case were not sufficiently similar to apply
collateral estoppel principles, see 28 F. Supp.2d at 792,
ReSource's argument here that the Town's decision was arbitrary
is precisely the issue that the state court ruled on, and
ReSource is estopped from contending otherwise.
In any event, even if ReSource could show that the Town
arbitrarily rejected its bid, under the broad discretion vested
in the Town by Gen.Mun.L. § 120-w, ReSource cannot show with
"certainty" that its bid would have been selected if the
Town had acted properly. N.Y.Gen. Mun.L. § 120-w(4) states that
"the municipality may make a contract award to any responsible
proposer . . . based on a determination by the municipality that
the selected proposal is most responsive to the request for
proposals. . . ." Given the broad discretion conferred on the
Town by section 120-w, and additional allegations in the
complaint such as the fact that BSSCI and its owners already have
existing contracts with the Town for sanitation services,
ReSource cannot demonstrate with certainty that, had the Town
properly exercised the discretion, it would have been awarded the
contract. See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59
(2d Cir. 1985) (dismissing Section 1983 claim by auto junkyard
owner seeking zoning variance where zoning board could properly
have used the substantial discretion afforded it by statute to
deny a variance).
(ii) As to the claim of violation of equal protection
To state a valid cause of action under the Equal Protection
Clause of the Fourteenth Amendment, a plaintiff must allege that:
(1) compared with others similarly situated, the plaintiff was
selectively treated; and (2) 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. Crowley v.
Courville, 76 F.3d 47, 52-53 (2d Cir. 1996) (citations omitted);
FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992).
Second Circuit decisions have been careful to apply each prong of
the test separately, finding the failure to satisfy either
inquiry fatal to the plaintiff's claim. See e.g. Zahra, 48 F.3d
at 684 (recognizing that even where the plaintiff presents
evidence of selective treatment, failure to demonstrate malice or
bad faith requires dismissal of the claim). A mere demonstration
of different treatment from persons similarly situated, without
more, does not establish malice or bad faith. Id. at 684 ("The
evidence suggesting that [plaintiff] was `treated differently'
from others does not, in itself, show malice.")
Here, even assuming that ReSource could show that it was
treated differently from others similarly situated, the Amended
Complaint fails to contain any facts suggesting that such
treatment resulted from the Town's malicious intent to injure it.
To the contrary, the theme of the Amended Complaint is that the
Defendants' actions were done with the intention of aiding BSSCI,
not intentionally injuring ReSource. There are no facts in the
Amended Complaint from which the Court could infer that the
Defendants' actions were done with the deliberate purpose of
injuring ReSource. Therefore, ReSource's Section 1983 claim
grounded in equal protection must be dismissed, with leave to
replead within 10 days of the date of this order.
ReSource's third cause of action is therefore dismissed.
Because the Court is dismissing all of ReSource's Section 1983
claims, the arguments by Defendants Schaffer, Jacob, and
Kluesener that they are protected against such claims by the
doctrine of qualified immunity are moot.
C. As to the RICO claims
A basic civil RICO claim has seven elements. 18 U.S.C. § 1962.
A plaintiff must allege:
(1) that the defendant (2) through the commission of
two or more acts (3) constituting a "pattern" (4) of
"racketeering activity" (5) directly or indirectly
invests in, or maintains an interest in, or
participates in (6) an "enterprise" (7) the
activities of which affect interstate or foreign
Pinnacle Consultants v. Leucadia Natl. Corp., 101 F.3d 900 (2d
Cir. 1996); Moss v. Morgan Stanley, Inc.,