United States District Court, Northern District of New York
July 23, 2002
DIANE CLARK, PLAINTIFF,
THE TOWN OF TICONDEROGA; TICONDEROGA TOWN POLICE DEPARTMENT; JEFF COOK, CHIEF OF TICONDEROGA POLICE DEPARTMENT; JAMES LAPIERRE, OFFICER OF THE TICONDEROGA POLICE DEPARTMENT; RANDY BEVINS, OFFICER OF THE TICONDEROGA POLICE DEPARTMENT; R. STEPHEN YAW, OFFICER OF THE TICONDEROGA POLICE DEPARTMENT; DAN CHARLTON, OFFICER OF THE TICONDEROGA POLICE DEPARTMENT, DEFENDANTS.
The opinion of the court was delivered by: Kahn, District Judge.
On July 20, 1999, Plaintiff asked the defendant Ticonderoga
Police Department ("Police Department") to aid her in removing
herself and three minor children from the residence she shared
with her husband, Edward Clark ("Clark"), and relocating to the
residence of Anne DuRoss ("DuRoss"). Plaintiff told the Police
Department that she was afraid Clark would try to kill her
because she was leaving their home and had filed a domestic
violence report against Clark. On July 23, 1999, Clark arrived
at the DuRoss residence and verbally and physically abused
Plaintiff. Unnamed officers from the Police Department were
called to the DuRoss residence and Clark was charged with
Harassment in the Second Degree.
An Order of Protection prohibiting Clark from being in or
around Plaintiffs current residence and place of employment was
issued on July 26, 1999. Plaintiff claims that defendant Officer
Yaw presented the Order of Protection to her and also told her
that the Police Department was aware that Clark was dangerous
and would consequently "keep an eye" on her.
Several days later, on July 31, 1999, Clark confronted
Plaintiff at her place of employment, in violation of the Order
of Protection, and again physically and verbally abused
Plaintiff. Clark then followed Plaintiff to the DuRoss residence
and hid in the backyard while Plaintiff contacted the Police
Department. When defendant Officers LaPierre and Bivens arrived
at the DuRoss residence, Plaintiff was describing the evenings
events when Clark approached the Officers and Plaintiff and
again verbally abused Plaintiff. Officer LaPierre informed Clark
that his actions were in violation of the Order of Protection
and called for back-up. Officer LaPierre asked Plaintiff if she
wanted Clark arrested and Plaintiff claims she replied
affirmatively. Apparently, the only crime with which Clark was
charged on the evening of July 31, 1999 was a misdemeanor
violation of the Order of Protection, and he was not detained in
jail that night.
On August 7, 1999, Clark forcibly entered the residence at
which Plaintiff was staying and physically attacked Plaintiff
with a hunting knife in the presence of her three minor
children. Although Clark stabbed Plaintiff repeatedly, she was
able to place a call to the defendant Police Department by
dialing the "911" emergency service. Plaintiff was then taken to
a Vermont hospital where she underwent surgery to repair her
vertebrae, stomach, intestines, colon and other internal organs.
Following the attack, Clark escaped into the woods surrounding
the residence and subsequently committed suicide.
Plaintiff initiated this action against Defendants alleging a
pattern of discriminatory treatment of women who are victims of
domestic violence in violation of the equal protection and due
process clauses of the Fourteenth Amendment. Presently before
this Court is Defendants' motion to dismiss Plaintiffs complaint
pursuant to Fed.R.Civ.P. 12(b)(6).
A. Standard of Review
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) must be
denied "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim [that] would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In assessing the sufficiency
of a pleading, "all factual allegations in the complaint must be
taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.
1991), and all reasonable inferences must be construed in favor
of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v.
Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988).
[C]onsideration is limited to the factual allegations
in [the] complaint, to documents attached to the
complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be
taken, or to documents either in plaintiffs'
possession or of which plaintiffs had knowledge and
relied on in bringing suit.
Brass v. American Film Technologies, Inc., 987 F.2d 142, 150
(2d Cir. 1993).
The Rules do not require the plaintiff to set out in detail
the facts upon which the claim is based, but only that a
defendant be given "fair notice of what the claim is and the
grounds upon which it rests." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Individual allegations,
however, that are so baldly conclusory that they fail to give
notice of the basic events and circumstances of which the
plaintiff complains are meaningless as a practical matter and,
as a matter of law, insufficient to state a claim. Barr v.
Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
It is with this standard in mind that the Court addresses the
B. Plaintiff's Claims
1. Plaintiffs 42 U.S.C. § 1985, 1986 Claims
To state a claim under Section 1985, a plaintiff must show:
"(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person
or property or deprived of any right of a citizen of the United
States." Mian v. Donaldson, Lufkin, & Jenrette Securities
Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). A conspiracy is an
agreement between at least two individuals, where the
individuals act in furtherance of the objective of the
conspiracy, and each individual has knowledge of the nature and
scope of the conspiracy. Dove v. Fordham Univ., 56 F. Supp.2d 330,
337 (S.D.N.Y. 1999). A constitutional conspiracy claim must
be pled with at least some degree of particularity and offer
more than vague or conclusory allegations. See Boddie v.
Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); Laverpool v. New
York City Transit Authority, 760 F. Supp. 1046, 1056 (E.D.N.Y.
Plaintiff bases her Section 1985 claim on the "pattern of
deliberate indifference" to herself and other victims of
domestic violence allegedly exhibited by the Police Department.
Complaint ¶ 66. Plaintiff has failed to articulate a claim for
conspiracy beyond simply stating that Defendants have violated
Section 1985. Even when the Complaint is read broadly in favor
of Plaintiff, there is no language that can be read to support
the bald conclusion that Defendants violated Plaintiffs rights
under Section 1985. Therefore, Defendants' motion to dismiss
Plaintiffs Section 1985 claim is granted.
Section 1986 provides a cause of action against anyone who has
the knowledge of any wrongs mentioned in Section 1985, and the
power to prevent such wrongs, but fails to intervene.
42 U.S.C. § 1986. A Section 1986 claim must be based on a valid Section
1985 claim. See Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.3d 1085, 1088 (2d Cir. 1993). Plaintiff has not
stated a valid Section 1985 claim; therefore the Section 1986
claim must also be dismissed.
2. Plaintiff's Fifth Amendment and Ninth Amendment Claims
Defendants correctly point out that Plaintiff has not made an
allegation that any defendant was a federal actor, nor has
Plaintiff sued a federal actor. The Fifth Amendment does not
protect citizens from state action, rather it protects citizens
from federal action. See Feldman v. United States,
322 U.S. 487, 490, 64 S.Ct. 1082, 88 L.Ed. 1408 (1943). Likewise, the
Ninth Amendment does not apply to state action. See Livingston
v. Moore, 32 U.S. 469, 551-52, 7 Pet. 469, 8 L.Ed. 751 (1833);
see also Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct.
1678, 14 L.Ed.2d 510 (1965) (Goldberg, J. concurring) ("While
the Ninth Amendment — and indeed the entire Bill of Rights —
originally concerned restrictions upon federal power, the
subsequently enacted Fourteenth Amendment prohibits the States
as well from abridging fundamental personal liberties.") Id.
Plaintiff has not identified any defendant acting under federal
authority in the complaint, therefore any Fifth or Ninth
Amendment claim included in the complaint is dismissed against
the named defendants.
3. Plaintiff's Fourteenth Amendment Claim
Plaintiff alleges there is an administrative classification of
crime victims in the Town of Ticonderoga. Complaint ¶ 64.
Plaintiff alleges that the Police Department's failure to
implement the laws and procedures of the state was due to the
implied administrative classification of crime victims in the
Town which manifests a discriminatory treatment of women who are
victims of domestic violence. Relying on Thurman v. City of
Torrington, 595 F. Supp. 1521 (Conn. 1984), for support,
Plaintiff contends that the Equal Protection Clause of the U.S.
Constitution applies to circumstances in which women who
complain of having been abused by their husbands are not
afforded adequate and equal police protection. Plaintiff also
alleges a violation of her Due Process rights as guaranteed by
the Fourteenth Amendment.
Defendants argue that Plaintiff has not stated a Fourteenth
Amendment cause of action for either Due Process or Equal
Protection. Rather, Defendants argue that Plaintiff is merely
disputing decisions made within the confines of prosecutorial
discretion. Defendants base this argument on the paragraphs in
the complaint that allege that Ed Clark was not charged with
certain crimes he allegedly committed.
The Equal Protection Clause applies to discriminatory
governmental action in the administration and enforcement of the
law. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30
L.Ed. 220 (1886). Here Plaintiff alleges that as a victim of
domestic violence, she was continually threatened and harassed
by her husband, Ed Clark, throughout the summer of 1999. While
portions of the Complaint may raise concerns over whether Ed
Clark was properly prosecuted for the crimes he allegedly
committed, Plaintiff further alleges that the Defendants
maintained a policy or custom of not properly investigating
complaints of domestic violence victims. Plaintiff also alleges
that Defendants are
guilty of discriminatory application of the law because they
prosecute domestic violence offenders differently than other
The complaint must be read as a whole and is to be construed
in the light most favorable to the plaintiff on a motion to
dismiss. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.
1991); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974). While Defendants argue that Plaintiff has not
alleged that any perceived discrimination was intentional, a
liberal reading of the complaint provides sufficient factual
allegations which could lead a fact finder to infer intent on
the part of the defendants. See Dwares v. City of New York,
985 F.2d 94, 99 (2d Cir. 1993). Plaintiff has satisfied the
pleading requirements required to survive a motion to dismiss.
Defendants' motion to dismiss Plaintiff's claims under
42 U.S.C. § 1985, 1986, as well as Plaintiffs claims under the
Fifth and Ninth Amendment, is granted. Defendants' motion to
dismiss Plaintiff's Fourteenth Amendment claims is denied.
For the reasons stated above, it is hereby:
ORDERED that Defendants' motion to dismiss Plaintiffs claims
is GRANTED in part and DENIED in part as detailed above; and it
ORDERED that the Clerk of the Court shall serve copies of this
order by regular mail upon the parties to this action.
IT IS SO ORDERED.
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