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July 20, 2000


The opinion of the court was delivered by: Spatt, District Judge.


This case involves allegations by the Plaintiffs, the Economic Opportunity Commission of Nassau County ("EOC"), a nonprofit community action agency; CEDC, Inc., an economic development arm of the EOC; and John Kearse, CEO of EOC and CEDC, that the Defendants, the County of Nassau, the Village of Hempstead, the Hempstead Community Development Agency and various officials thereof, violated the Plaintiffs' constitutional rights to free speech, equal protection, and freedom of association under 42 U.S.C. § 1983 and 1985. Presently before the Court are motions by three groups of Defendants to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.


This Court has previously considered this case, and the recitation of the facts set forth in Economic Opportunity Commission of Nassau County, Inc. v. County of Nassau, 47 F. Supp.2d 353 (E.D.N.Y. 1999) is incorporated herein by reference.

Briefly, the Plaintiffs allege that in 1992, the Defendants intentionally interfered with efforts by EOC and CEDC to renovate the Hempstead Bus Terminal Building using $6 million in funds issued to the County and Village by the U.S. Department of Housing and Urban Development ("HUD"). The Plaintiffs contend that the Defendants required them to permit an unqualified general contractor to supervise the project and that delays and inadequate construction followed. According to the Plaintiffs, the delays occasioned by the Defendants' hand-picked contractor prevented them from completing their renovations on schedule and cost them hundreds of thousands of dollars in lost rent for office space in the Terminal. The Plaintiffs contend that the Defendants wilfully imposed an incompetent contractor on them and protected the contractor from termination in retaliation for the Plaintiffs' activities on behalf of minority groups and the poor, as well as their vocal opposition to certain Village and County actions.

In 1996, the County received permission from HUD to refinance the original loan on the Terminal project. HUD required the refinancing to be completed within six months. According to the complaint, the County "needlessly prolonged the negotiations," demanding increased control and oversight over the project, and simultaneously "launched an investigation of the operations of Plaintiffs designed to curtail their political advocacy." Eventually, the six month limit placed by HUD on the refinancing lapsed without an agreement having been reached.

Finally, EOC alleges that the County is failing to abide by an agreement to reimburse it for certain legal fees that EOC alleges are covered by a Social Services Agreement with the County.

The second amended complaint contains six causes of action. The first cause of action based on 42 U.S.C. § 1983 ("Section 1983"), alleges that the Defendants violated the Plaintiffs' First Amendment rights to free speech and free association, and their Fourteenth Amendment rights to equal protection, by interfering with the Terminal renovation project; by blocking the Plaintiffs refinancing efforts; by subjecting to Plaintiffs to stricter treatment regarding the deficient taxes than other commercial operations; and by refusing to reimburse EOC for legal expenses in accordance with the Social Services Agreement, all because of the Plaintiffs' advocacy on behalf of minorities and the poor. The second cause of action appears to allege a Monell claim under Section 1983 against the municipal Defendants on the same basis and relying on identical allegations as the first cause of action. The third cause alleges that the Defendants engaged in a conspiracy under 42 U.S.C. § 1985 and 1986 to violate the Plaintiffs' civil rights based on the Plaintiffs' advocacy on behalf of minorities. The fourth cause of action assets a claim for intentional interference with prospective economic advantage, relating to the Plaintiffs' receipt of the HUD financing. The fifth cause of action is less than clear, asserting that the Defendants "deprived CEDC of its own free will" in performing the Terminal renovation, CEDC's tax deficiency "resulted solely" from these actions by the Defendants, and that therefore, the Plaintiffs are entitled to a judgment setting aside the tax deed and cancelling all of CEDC's tax indebtedness on the property to both the County and Village. Finally, the sixth cause of action claims that "by virtue of the deceitful and inequitable conduct" of the Defendants in obstructing the HUD refinancing package, the tax deed should be vacated.

The Defendants now move to dismiss the amended complaint pursuant to Fed. R.Civ.P. 12(b)(6). The "County Defendants," consisting of Nassau County, County Executive Thomas Gulotta, Special Assistant to the County Executive Kenneth Cynar, County Attorney Owen Walsh, Special Assistant to the County Attorney Joseph Ryan, Jr., Special Counsel to Nassau County Dept. of Housing and Development Harrison Edwards, and Commissioner of the Office of Housing Donald Campbell, argue that portions of the Section 1983 claims are time-barred; that the freedom of association claims fail to allege a constitutionally protectible associational relationship; that their free speech claims fail to allege knowledge of the County Defendants of the protected speech and any causal connection between the speech and the allegedly retaliatory actions; that the equal protection causes of action do not identify any other individuals that are similarly situated; that the Section 1985 claims fail to allege the elements of a conspiracy; and that the claims against the individual Defendants should be dismissed as not alleging personal involvement. The County Defendants also contend that some of the claims by the Plaintiffs are barred by the Tax Injunction Act, 28 U.S.C. § 1341.

The Village of Hempstead moves to dismiss the claims by Plaintiff Kearse, arguing that as an individual, he lacks standing to pursue claims belonging to the EOC and CEDC. The Village also joins in the arguments of its co-Defendants in moving to dismiss the Section 1983 causes of action.

Defendants Village of Hempstead Community Development Agency ("CDA"), Defendants Clinton Boone, Tina Hodge-Bowles, John Courtney, James Dunne, Anne Martin, and James Garner, all board members of the CDA; and Defendants Alvina Gray, Glen Spiritis, and Charles Theofan, all employees of the CDA (collectively, "the CDA Defendants"), move to dismiss the conspiracy claims, alleging that the Plaintiffs failed to sufficiently allege the elements of a conspiracy. The CDA Defendants also claim that the free speech and equal protection claims should be dismissed on the grounds that the CDA's actions were "objectively reasonable," in light of the EOC's tax deficiencies; that the CDA board members are entitled to legislative immunity for their actions; and that the cause of action for interference with economic advantage should be dismissed because the Plaintiffs have no third-party relationship with HUD other than through the CDA. Finally, the CDA Defendants' brief confusingly includes an argument captioned "the fifth claim for relief must be dismissed," but refers repeatedly in the body of the argument to "the sixth claim for relief" as failing to state a recognizable claim under Federal or State law, then refers in the conclusion of the brief to the fifth cause of action.


The court may not dismiss a complaint under Fed.R.Civ.P. 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. King v. Simpson, 189 F.3d 284, 286 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The court must accept as true all factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff. Id.; Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995). The court must confine its consideration "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).

A. As to the Section 1983 free speech claim

To establish a First Amendment retaliation claim under section 1983, a plaintiff must show: (i) conduct by the plaintiff protected by the First Amendment, and (ii) that the defendant's conduct was motivated by or substantially caused by the plaintiff's exercise of free speech. Board of County Commissioners v. Umbehr, 518 U.S. 668, 676, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Greenwich Citizens Committee, Inc. v. Counties of Warren and Washington Indust. Dev. Agency, 77 F.3d 26, 30 (2d Cir. 1996); Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994); Housing Works, Inc. v. City of N.Y., 72 F. Supp.2d 402, 422 (S.D.N.Y. 1999). Circumstantial evidence of retaliation may be found when defendants are aware that plaintiff has engaged in protected speech and defendants' challenged behavior closely follows that protected speech. McCullough v. Wyandanch Union Free School Dist., 187 F.3d 272, 280 (2d Cir. 1999), citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Housing Works, 72 F. Supp.2d at 422-23. In addition, a plaintiff can also show retaliatory intent by establishing unequal treatment, or an ongoing campaign of adverse action. See e.g. Gagliardi, 18 F.3d at 195 (motive shown by evidence that Village repeatedly refused the plaintiffs' requests to enforce zoning codes and ordinances over 9 year period); Housing Works, 72 F. Supp.2d at 424-26.

Here, the Plaintiffs have set forth a chronology dating back to 1981, specifying various instances of protected speech they have engaged in. Some, such as the entries for 1981 and 1982, are far too remote in time and isolated from further events to support any inference of retaliation. Other allegations, such as claims that the Plaintiffs clashed with "the Republicans" in 1995 and 1996, do not relate directly to any of the parties in this case.

With one exception, the remaining relevant entries focus entirely on various statements that the Plaintiffs have made concerning the County government. There are absolutely no allegations that the Plaintiffs spoke out against any of the CDA Defendants at any time. Thus, it is difficult to infer any causal connection between the Plaintiffs' protected speech and any action by the CDA Defendants. While the Plaintiffs might suggest that the CDA Defendants are aligned in interest with the County Defendants, and thus could be expected to retaliate against the Plaintiffs for criticizing the County Government, there are no facts in the complaint that make such a suggestion and no basis for this Court to draw such an inference. Thus, any First Amendment retaliation claim against the CDA Defendants must fail.

There is only a single reference in the amended complaint to the Plaintiffs speaking out against the Village: that in 1993, the Plaintiffs opposed the contractor assigned to the Terminal renovation project who happened to be related to Village Mayor Garner. However, according to the allegations in the second amended complaint, all actions subsequent to this event involve wrongdoing only by the County. Therefore, any First Amendment retaliation claims against the Village also fail.

Viewing the evidence in the light most favorable to the Plaintiffs, the Court finds that the amended complaint does allege sufficient facts to infer a retaliatory motive by Defendants Gulotta, Walsh, Cynar, and Ryan. According to the factual chronology, the EOC accused the County of discrimination in 1997 when the County withdrew some unspecified funds from EOC's budget; it led picketing outside of the County Legislature and threatened litigation to open the proceedings to minorities; and it publicly opposed a County proposal to redistribute EOC's services to other agencies. These events, all denoted as occurring in 1997, are close in time to the foreclosure of the County's tax lien on the Terminal building, and could support an inference that the County's taking of the tax deed to the property was retaliatory. Moreover, viewed in the light most favorable to the Plaintiffs, the failure by the County to tap available interim HUD financing for CEDC and to reach agreement on the refinancing of the Terminal project's loans could suggest a pattern of antagonism by the County towards the EOC, ultimately resulting in the tax foreclosure. Accord Housing Works, 72 F. Supp.2d at 428-29 (defendant's success in thwarting conferral of benefits on plaintiff supported finding of retaliatory inference). Thus, the Court finds that the second amended complaint sufficiently alleges a cause of action under Section 1983 for retaliation against the Plaintiffs for ...

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