plaintiff is currently seeking compensation in the New York state
courts. See Goldfine v. City of New York, Index No. 98/486.
Because plaintiff's action in state court is still pending, this
action in federal court is premature.
For the reasons stated above, plaintiff's claims for an
unconstitutional taking, violations of equal protection and due
process, found in Counts 1, 2, 3, 5, 6, 9, 10, 13, and 16 of the
Complaint, are not ripe and must be dismissed.
III. Plaintiff's Supervisory Liability Claims
Plaintiff asserts claims against defendants Lloyd and Polesi
based on an alleged failure to adequately supervise Kelly. Under
§ 1983, a supervisor may be liable for the acts of subordinates,
"but only where an act or omission of the supervisor himself can
be affirmatively linked to the subordinate's behavior." Sanchez
v. Figueroa, 996 F. Supp. 143, 146 (D.Puerto Rico 1998). The
doctrine of respondeat superior may not be invoked to impose §
1983 liability on a supervisor for conduct of a subordinate. See
Monell v. Department of Social Services, 436 U.S. 658, 691, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Supervisory liability under § 1983 requires that defendant (1)
participated directly in an alleged constitutional violation; or
(2) failed to remedy a wrong after being informed of the
violation through a report or appeal; or (3) created a policy or
custom under which unconstitutional practices occurred; or (4)
was grossly negligent in supervising subordinates; or (5)
exhibited deliberate indifference to the rights of the plaintiff.
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
However, "for a supervisor to be liable under § 1983, there must
have been an underlying constitutional violation." Blyden v.
Mancusi, 186 F.3d 252, 265 (2d Cir. 1999). Here, plaintiff's §
1983 claims are not ripe. Because this Court cannot determine
whether plaintiff has adequately alleged constitutional
violations, plaintiff's supervisory liability claims against
Lloyd and Polesi are premature. Therefore, defendants' motion to
dismiss is granted as to plaintiff's supervisory liability
claims, Counts 8 and 12 of the Complaint.
IV. Municipal Liability Claim
To hold a municipality liable in a § 1983 cause of action, a
plaintiff must show an official policy or custom that causes the
plaintiff to be subjected to a denial of a constitutional right.
See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
In the case at bar, plaintiff has alleged that the City has by
a custom or policy induced the DEP "to use whatever tactics it
deems necessary to protect its water supply even though the
federally guaranteed rights of property owners in upstate
counties might be violated." (Compl. ¶ 225). However, "the mere
assertion . . . that a municipality has such a custom or policy
is insufficient in the absence of allegations of fact tending to
support . . . such an inference." Zahra v. Town of Southold,
48 F.3d 674, 685 (2d Cir. 1995). In addition to allegations of the
custom or policy, Plaintiff has alleged that defendants Kelly and
Lloyd made arbitrary and capricious decisions as to water courses
and attempted to delay the development of Lakepointe Woods.
Further, plaintiff alleges that as part of the DEP's custom or
policy to protect its water supply at all costs, defendant
Sciabbarrasi violated procedures for the acquisition of
plaintiff's property by failing to furnish a second appraisal and
failing to make a written offer for the purchase of the property.
Considering these allegations in the light most favorable to
plaintiff, they are sufficient to support an inference that the
City had a custom or policy to "use whatever tactics it deems
necessary to protect its water supply."
To survive a motion to dismiss on this claim, plaintiff must
also adequately allege that the City's custom or policy caused
plaintiff to be subjected to the denial of a constitutional
right. Plaintiff's Complaint is unclear as to what constitutional
violations are alleged to have been caused by the City's custom
or policy, therefore this Court will consider the Complaint to
allege both a violation of equal protection and a violation of
Plaintiff alleges that the City's custom or policy "deprives
owners within DEP's `critical acquisition zone' of equal
protection under the zoning laws . . ." (Compl. ¶ 228.) A
selective enforcement equal protection claim is proper when
plaintiff alleges that:
(1) the person, compared with others similarly
situated, was selectively treated, and
(2) the selective treatment was motivated by an
intention to discriminate on the basis of
impermissible considerations, such as race or
religion, to punish or inhibit the exercise of
constitutional rights, or by a malicious or bad faith
intent to injure the person.
Zahra, 48 F.3d at 684.
As discussed above, the ripeness doctrine developed in
Williamson for takings claims also applies to equal protection
claims. See Southview Assocs., 980 F.2d at 96-97. Because the
City has not made a final decision regarding plaintiff's
development of the Lakepointe Woods property, plaintiff's
allegation that the City violated his right to equal protection
under the zoning laws is not ripe for review.
Plaintiff's 13th cause of action also may be interpreted as a
municipal liability claim based upon an allegation of a
substantive due process violation. Plaintiff alleges that the
City's custom or policy to "protect its water supply at all
costs" violated due process "because the law requires the
issuance of approvals where certain objective criteria are met."
(Compl. ¶ 227.) To properly allege a substantive due process
violation, plaintiff must establish that he had a valid property
interest and that defendant acted in an arbitrary and capricious
manner in depriving him of that property interest. See Southview
Assocs., 980 F.2d at 102.
This Circuit applies a strict entitlement test to determine
whether a party has a valid property interest. See Zahra, 48
F.3d at 680. The entitlement analysis "focuses on the extent to
which the deciding authority may exercise discretion in arriving
at a decision." Id. Because the City has broad discretion to
approve or reject plaintiff's subdivision plans, plaintiff has no
property interest in the approval of the development of
However, even if plaintiff does have a property interest, the
City has not issued a final decision regarding Lakepointe Woods.
Without a final decision from the City, it is impossible for this
Court to determine whether the City acted in an arbitrary or
capricious manner with regard to plaintiff's alleged property
interest. See Kinzli, 818 F.2d at 1456. Therefore, whether
plaintiff's municipal liability claim is based upon violations of
equal protection or substantive due process, this claim must be
dismissed because it is not ripe for review.
V. Conspiracy Claims under § 1983
In Counts 4, 7, 11 and 14, plaintiff brings claims under
42 U.S.C. § 1983 against defendants Kelly, Sciabbarrasi, Lloyd and
Nelson for participation in a conspiracy to interfere with his
civil rights. Plaintiff alleges that Nelson, who is the president
of the Sedgewood Club's homeowner's association, conspired with
DEP employees to thwart plaintiff's development of his land
through delay and frustration of plaintiff's approval process
with the DEP.
To establish a conspiracy claim under § 1983 plaintiff must
show not only that defendants "acted in a willful manner,
culminating in an agreement, understanding, or `meeting of the
minds,'" Duff v. Coughlin, 794 F. Supp. 521, 525 (S.D.N Y
1992), but also must prove an actual violation
of his federal rights. See Fincher v. County of Westchester,
979 F. Supp. 989, 997 (S.D.N.Y. 1997). In reference to a § 1983
conspiracy claim, the Second Circuit has stated: ". . . the
lawsuit will stand only insofar as the plaintiff can prove the
sine qua non of a § 1983 action: the violation of a federal
right." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d
Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
In the case at bar, plaintiff's allegations of federal rights
violations are not ripe for review. Without the ability to decide
whether plaintiff has adequately alleged violations of his
federal rights, this Court cannot determine whether plaintiff has
stated a claim for conspiracy to violate his civil rights under §
1983. Therefore, plaintiff's conspiracy claims based upon § 1983
are not ripe and must be dismissed.
VI. Conspiracy Claim under § 1985
Plaintiff's 15th cause of action is an allegation against all
named defendants of a conspiracy to interfere with civil rights
pursuant to 42 U.S.C. § 1985. (Compl. ¶¶ 238-44.) In order to
state a claim under § 1985, plaintiff must allege that defendants
have, "with racial or other class-based discriminatory animus,
conspired to deprive him of a constitutional or other federal
right." Philippeaux v. North Central Bronx Hosp., 871 F. Supp. 640,
656 (S.D.N.Y. 1994) (citing Spencer v. Casavilla,
903 F.2d 171, 174 (2d Cir. 1990)).
Plaintiff fails to allege that defendants discriminated against
him based on his membership in a "protected class." In Carino v.
Town of Deerfield, 750 F. Supp. 1156, 1170 (N.D.N.Y. 1990), the
court dismissed a conspiracy claim under § 1985 brought by
property owners and their son because they were not members of a
protected class. In United Brotherhood of Carpenters & Joiners
of America, Local 610, AFL-CIO v. Scott, the Supreme Court
refused to construe § 1985 to reach conspiracies motivated by
economic or commercial animus. 463 U.S. 825, 838, 103 S.Ct. 3352,
77 L.Ed.2d 1049 (1983). Even reading the Complaint to allege that
plaintiff is a member of a protected class of owners of land in
the DEP's critical area, § 1985 was not "intended to reach
conspiracies motivated by bias towards others on account of their
economic . . . activities." Id. at 837, 103 S.Ct. 3352. Because
plaintiff has failed to allege that defendants discriminated
against him because of his membership in a protected class,
plaintiff's cause of action for a conspiracy under § 1985 must be
For the reasons stated above, defendants' motion to dismiss is
granted in full. Counts 1-14 and 16 of plaintiff's Complaint are
dismissed without prejudice as premature. Count 15, plaintiff's
cause of action pursuant to 42 U.S.C. § 1985 is dismissed with