Equal Protection of the Laws" and the "privileges and immunities
of citizenship." (Compl. ¶ 2.) More specifically, the complaint
claims that the law provides no standard, and that no standard
has been established by regulation, that defines the meaning of
the terms "undue concentration," "the nature and character of
the area," "area," "neighborhood," "need," "over-concentration,"
or "substantial alteration." (Compl. ¶¶ 28(d), 31.) As a result,
the Commissioner allegedly makes site selection decisions in an
"arbitrary manner," (Compl. ¶ 28(d)), with "no objective
standard," thus "contraven[ing] the guarantees of due process
[and] equal protection of the laws," (Compl. ¶ 31).
I. The Defendants' Motion to Dismiss
A. Subject Matter Jurisdiction
As a preliminary matter, the defendants assert that this Court
does not have jurisdiction over the OMRDD because the Eleventh
Amendment to the United States Constitution prohibits suits
against an unconsenting state. See U.S. Const. amend. XI;
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct.
1114, 134 L.Ed.2d 252 (1996). This rule applies not only to the
states themselves but also to those "governmental entities that
are considered `arms of the state,'" Komlosi v. New York State
OMRDD, 64 F.3d 810, 815 (2d Cir. 1995) (quoting Will v.
Michigan Dept. of Police, 491 U.S. 58, 70, 109 S.Ct. 2304, 105
L.Ed.2d 45 (1989)), and it has already been determined that,
"[f]or Eleventh Amendment purposes, OMRDD is to be considered an
arm of New York State," id. (citing N.Y. Mental Hygiene Law §
13.01). Accordingly, the OMRDD may not be sued in federal court,
and the Association's claims against it must be dismissed.
B. Failure to State a Claim
Jurisdictional matters aside, the remaining defendants move to
dismiss the entire action for failure to state a claim upon
which relief can be granted. See Fed.R.Civ.P. 12(b)(6). A
court may grant such a motion only if "`it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.'" Tarshis v. Riese
Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
In deciding whether that is the case, the court must accept as
true all of the factual allegations set out in the complaint,
draw inferences from those allegations in the light most
favorable to plaintiff, and construe the complaint liberally.
See id. (citing Desiderio v. National Ass'n of Sec. Dealers,
191 F.3d 198, 202 (2d Cir. 1999)).
The complaint in this action purports to state claims pursuant
to 42 U.S.C. § 1983. Section 1983 provides a cause of action in
federal court for any person whose federal constitutional
rights, privileges, or immunities have been violated under color
of state law. See 42 U.S.C. § 1983. Section 1983, however, "is
only a grant of a right of action; the substantive right giving
rise to the action must come from another source." Singer v.
Fulton County Sheriff 63 F.3d 110, 119 (2d Cir. 1995); see
also City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105
S.Ct. 2427, 85 L.Ed.2d 791 (1985). Therefore, to state a section
1983 claim upon which relief can be granted, a plaintiff must
allege not only that the defendant was acting under color of
state law, but also that the defendant "has deprived him of a
federal right." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct.
1920, 64 L.Ed.2d 572 (1980).
The Homeowners' Association contends that the defendants have
members of federal rights arising from (1) the First Amendment,
(2) the Due Process Clause, and (3) the Equal Protection Clause.
Because that contention is incorrect as a matter of law, the
Association's suit must be dismissed pursuant to Rule 12(b)(6).
1. First Amendment Freedom of Association and Right to
The Association alleges that the Commissioner's enforcement of
the Padavan Law violates "associational . . . liberties"
protected by the Constitution. Its argument seems to be that the
Association's members, as community dwellers, have a right "to
have their chosen associations [with other community dwellers]
. . . not unduly disrupted" by the state-sanctioned
establishment of too many OMRDD residences in their community.
(Pl.'s Opp. Mem. at 12.) Although it is possible that the
Association may have a constitutional right, grounded in the
First Amendment, to exclude developmentally disabled people from
its membership rolls,*fn1 see Boy Scouts of America v.
Dale, 530 U.S. 640, 648, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000)
("Forcing a group to accept certain members may impair the
ability of the group to express [its] views."), there is no
authority for the proposition that it has a constitutional right
to exclude them from the community. Nor is there any authority
to support the Association's assertion that the Padavan Law or
the Commissioner violated its First Amendment right "to petition
the government for a redress of grievances" by denying it the
right to intervene formally in the site-selection hearing. See
De Jesus-Keolamphu, 999 F. Supp. at 566-67. The Association,
therefore, has failed to state a section 1983 cause of action
predicated on rights arising from the First Amendment.
2. Fourteenth Amendment Due Process Clause
The Association also alleges that the Commissioner's
enforcement of the Padavan Law has deprived its members of
property, liberty, and due process in violation of the
Fourteenth Amendment's Due Process Clause. However, as explained
below, none of the due process deprivations alleged by the
Association are cognizable as constitutional violations. Thus,
as with its First Amendment claims, so with its Due Process
Clause claims: the Association fails to state a viable section
1983 cause of action.
a. Deprivation of Property
"[A] plaintiff may not successfully claim a deprivation of
property without due process absent the identification of a
protected property interest." West Farms Assocs. v. State
Traffic Comm'n, 951 F.2d 469, 472 (2d Cir. 1991) (citing Fusco
v. Connecticut, 815 F.2d 201, 205 (2d Cir. 1987)). Such
property interests are usually derived from state law. See id.
Moreover, in addition to a cognizable property right, the
plaintiff must allege that governmental action with respect to
that property right amounts to a "deprivation," and that the
deprivation occurred without due process. Greene v. Town of
Blooming Grove, 935 F.2d 507, 510 (2d Cir. 1991); see also
Fusco, 815 F.2d at 205.
The Association argues that the Padavan Law confers upon its
members a property right by guaranteeing that their community
will not be "substantially altered" by an "undue concentration"
of facilities. (Pl.'s Opp. Mem. at 16.) The
Padavan Law's purpose, however, "is not to adjudicate property
rights but to assess the pros and cons of various locations for
group homes." Mehta v. Surles, 905 F.2d 595, 598 (2d Cir.
1990). Therefore, "it does not purport to have any effect on
individuals' substantive real property rights." Id. Moreover,
although the members of the Association may have a property
right in the value of their own homes, "`governmental action
allegedly causing a decline in property values has never been
held to `deprive' a person of property.'" Fusco, 815 F.2d at
206 (quoting BAM Historic Dist. Ass'n v. Koch, 723 F.2d 233,
237 (2d Cir. 1983)) (alterations omitted); see also Mehta, 905
F.2d at 598, aff'g in relevant part 720 F. Supp. 324, 331
(S.D.N.Y. 1989) (Padavan site-selection does not deprive
community residents of property rights merely because of
diminution of property values); Howell v. Apple, Inc., No.
CIV-89-1574, 1991 WL 66366, at *2 (E.D.N.Y. April 24, 1991)
(same). Thus, the Association has failed to allege a cognizable
deprivation of property.
b. Deprivation of Liberty
"A liberty interest [protected by the requirements of the Due
Process Clause] may arise from either of `two sources — the Due
Process Clause itself [or] the laws of the States.'" Rodriguez
v. McLoughlin, 214 F.3d 328, 337 (2d Cir. 2000) (quoting
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460,
109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)) (internal quotations
omitted). In this case, neither source gives rise to the
expansive liberty interests claimed by the Association.
First, the Due Process Clause itself does not give the
Association's members a liberty interest in not having Hamaspik
establish a home for the developmentally disabled in their
neighborhood. The liberty protected by the Fourteenth Amendment
"does not include the maintenance of transient levels of the
quality of neighborhood life." BAM Historic Dist., 723 F.2d at
237 (citations omitted) (no basis in Fourteenth Amendment for
asserting a "liberty" interest in not having city operate a
homeless shelter in plaintiffs' neighborhood). The Association's
attempt to recast this argument as an "intimate association"
argument — that the Constitution somehow confers on parents a
liberty interest in raising and educating children without an
allegedly "chilling" presence of the developmentally disabled —
does not change the result.
Second, the State of New York has not conferred a liberty
interest upon the Association's members. "A state creates a
protected liberty interest by placing substantive limitations"
on an official's discretion to deprive an individual of an
otherwise unprotected liberty interest. Rodriguez, 214 F.3d at
338; Silano v. Sag Harbor Union Free School Dist. Bd. of
Educ., 42 F.3d 719, 724-25 (2d Cir. 1994); BAM Historic
Dist., 723 F.2d at 236. Such interests, however, "will
generally be limited to freedom from restraint which . . .
imposes atypical and significant hardship . . . in relation to
the ordinary incidents of . . . life." Sandin v. Conner,
515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Dietz v.
Damas, 932 F. Supp. 431, 454 (E.D.N.Y. 1996). In other words, a
state-created interest must have "`real substance'" in order to
merit procedural protection. Sandin, 515 U.S. at 478-84, 115
S.Ct. 2293 (quoting Wolff v. McDonnell, 418 U.S. 539, 557, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974)). "`Ephemeral and
insubstantial'" interests remain unprotected. Tellier v.
Fields, 280 F.3d 69, 82 (2nd Cir. 2000) (quoting Meachum v.
427 U.S. 215, 228, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)).
The Association eagerly points out that the Padavan Law
contains mandatory language: the Commissioner "shall" sustain a
municipality's objection to a proposed site if "the nature and
character of the area in which the facility is to be based would
be substantially altered." N.Y. Mental Hygiene Law § 41.34; see
also Jennings, 90 N.Y.2d at 240-41, 660 N.Y.S.2d 352,
682 N.E.2d 953. However, the Commissioner's alleged deprivation of
the interest which that cabined discretion creates is not "the
type of atypical, significant deprivation in which a State might
conceivably create a liberty interest." Sandin, 515 U.S. at
486, 115 S.Ct. 2293. In other words, the interest is not
"sufficiently embraced within Fourteenth Amendment `liberty' to
entitle [the Association's members] to those minimum procedures"
required by the Due Process Clause. Wolff, 418 U.S. at 557, 94
c. Deprivation of Due Process
The Association contends that the position, now adopted by the
Court, that selection of the 68 East Concord Drive site would
not disturb any protected property or liberty interests is a
"straw man argument" that "simply evades [the Association's]
fundamental complaint about the process by which the selection
was made." (Pl.'s Opp. Mem. at 15.) In the words of the
Association, the statute's "vagueness, which is part and parcel,
and hand in hand with [its] arbitrary enforcement . . . is
concomitantly a denial of due process of law, depriving [the
Association] of rights guaranteed by the Fourteenth Amendment."
(Pl.'s Opp. Mem. at 14.)
Whatever the Association means by this language, it is
incorrect if it means that it has a constitutional right to due
process in the air. "Process is not an end in itself. Its
constitutional purpose is to protect a substantive interest to
which the individual has a legitimate claim of interest." Olim
v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d
813 (1983); BAM Historic Dist., 723 F.2d at 237; Mehta,
720 F. Supp. at 335 ("A right to a particular procedure cannot exist
in a vacuum and must be linked to a right to life, liberty or
property."). The Association does not claim a deprivation of
life, and, as explained above, the Commissioner has not deprived
its members of any cognizable property or liberty interests.
See Mehta, 720 F. Supp. at 335; Howell, 1991 WL 66366, at *2.
Therefore, because "an expectation of receiving process is not,
without more, a liberty interest protected by the Due Process
Clause," Olim, 461 U.S. at 250 n. 12, 103 S.Ct. 1741, any
claim that the defendants have violated that clause by
subjecting the Association's members to a sham process is
3. Fourteenth Amendment Equal Protection Clause
The Association's last source for putative constitutional
rights is the Equal Protection Clause of the Fourteenth
Amendment, which provides that a state and its instrumentalities
may not deny "any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV. "At its core,
equal protection prohibits the government from treating
similarly situated persons differently." Sound Aircraft Servs.,
Inc. v. Town of East Hampton, 192 F.3d 329, 335 (2d Cir. 1999)
(citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)); see also
Mehta, 720 F. Supp. at 335. Thus, "[t]o state an equal
protection claim, a plaintiff must charge a governmental officer
`not only with deliberately interpreting a statute against the
plaintiff, but also with singling him out alone for that
misinterpretation.'" Brady v. Town of Colchester,
863 F.2d 205, 216 (2d Cir. 1988) (quoting Burt v. City of New
York, 156 F.2d 791, 792 (2d Cir. 1946)); see also Goldstar
Auto Sales, LLC v. Town of Halfmoon, 69 F. Supp.2d 361, 366-67
Here, the Association does not allege that the Commissioner
deliberately treated its members differently than any other
similarly situated persons when he declined to sustain the Town
of Ramapo's objection. To the contrary, the Association states
that its review of over one hundred reported cases has failed to
reveal "a single case where the Commissioner has overturned a
site selection." (Compl. ¶ 28(d).) This failure to allege any
class-based invidious discrimination is fatal to the
Association's section 1983 equal protection claim. See Mehta,
720 F. Supp. at 335.
II. The Association's Motion to Amend the Complaint
In response to the defendants' motion to dismiss, the
Association moves to amend the complaint in two respects. First,
it seeks to name the Commissioner in his individual capacity.
Second, it seeks to substitute the Association's treasurer,
Irwin Silberman, in the place of the Association as the named
plaintiff. Both requests are denied as futile. Neither would
alter the Court's conclusions that the OMRDD cannot be sued in
federal court and that the complaint fails to state a claim upon
which relief can be granted.
For the foregoing reasons, the Association's motion to amend
the complaint is denied, and the defendants' motion to dismiss
the complaint is granted in its entirety against all defendants.