a police officer for the Town before April 2002.
On May 1, 2002, Gallo commenced this action. In papers dated June 3,
2002, the defendants move to dismiss the complaint for lack of subject
matter jurisdiction, or alternatively, for failure to state a claim under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds
that (1) Gallo fails to allege facts sufficient to invoke federal
jurisdiction in this action; and (2) Gallo has no legally protected
property interest to a civil service appointment as a police officer.
A. Rule 12(b)(1)
When considering a motion to dismiss the complaint for lack of subject
matter jurisdiction under Rule 12(b)(1), the Court may consider
affidavits and other materials beyond the pleadings to resolve the
jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133,
141 n. 6 (2d Cir. 2001); Antares Aircraft, L.P. v. Fed. Rep. of Nigeria,
948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215
(1992); Exch. Nat'l Bank of Chicago v. Touce Ross & Co., 544 F.2d 1126,
1130 (2d Cir. 1976). Under Rule 12(b)(1), the court must accept as true
all material factual allegations in the complaint but will not draw
inferences favorable to the party asserting jurisdiction. See Shipping
Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut.
Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.
1992). Hearsay statements contained in the affidavits may not be
considered. See Kamen v. At&T, 791 F.2d 1006, 1011 (2d Cir. 1986).
Title 28 U.S.C. § 1331 provides that "the district courts shall
have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States." "A non-frivolous
allegation of a cause of action under federal law suffices to invoke
federal court jurisdiction." Monsky v. Moraghan, 127 F.3d 243, 245 (2d
Cir. 1997). In the present case, the Court finds that jurisdiction exists
under Section 1331 because the action arises under federal law, namely
Section 1983. Accordingly, the motion to dismiss the complaint for lack
of subject matter jurisdiction is denied.
B. Rule 12(b)(6)
On a motion to dismiss for failure to state a claim, the Court should
dismiss the complaint pursuant to Rule 12(b)(6) only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
complaint which would entitle him to relief. See 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 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). Furthermore, the Court must accept all
factual allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. See Koppel v. 4987 Corp.,
167 F.3d 125, 127 (2d Cir. 1999); 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. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378
(2d Cir. 1995). Indeed, it is not the Court's
function to weigh the
evidence that might be presented at trial; instead, the Court must merely
determine whether the complaint itself is legally sufficient. Id.
2. Plaintiff's Constitutional Claims
Gallo claims that the defendants violated his due process rights by not
processing his application for appointment to become a police officer. To
establish a due process violation, Gallo must show that he "`possessed a
protected liberty or property interest, and that he was deprived of that
interest without due process.'" McMenemy v. City of Rochester,
241 F.3d 279, 286 (2d Cir. 2001) (citing Hynes v. Squillace, 143 F.3d 653,
658 (2d Cir. 1998)).
It is well-established that property interests are not created by the
Constitution, but are "`created and their dimensions are defined by
existing rules or understandings that stem from an independent source
such as state law — rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits."
Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002) (citing
Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701 (1972)). Thus,
if Gallo had a property interest of which he was deprived, that interest
arose under New York law.
The defendants assert that Gallo fails to state a claim pursuant to
Rule 12(b)(6) because successful completion of the civil service exam did
not create a cognizable property right. On the other hand, Gallo asserts
that although he ranked first on the candidate eligibility list, the
defendants refused to process his application for appointment; thereby
depriving him of an opportunity to be appointed as a police officer.
To support his assertion, Gallo points to New York Civil Service Law
Section 61(1) which states that "[a]ppointment . . . from an eligible
list to a position in the competitive class shall be made by the
selection of one of the three persons certified by the appropriate civil
service commission as standing highest on such eligible list who are
willing to accept such appointment or promotion." However, the New York
State Court of Appeals has held that factors aside from examination
performance can be taken into account in making civil service appointments
and has explained that "[a]n individual's ability to achieve a high
examination score does not necessarily demonstrate his capacity to
perform the actual duties of a particular civil service position.
Moreover, examination success cannot reveal any possible defects of
personality, character or disposition which may impair the performance of
one's duties in a position." Cassidy v. Municipal Civ. Serv. Comm'n,
37 N.Y.2d 526, 529, 375 N.Y.S.2d 300, 302 (1975).
Furthermore, in recognizing that a candidate for appointment has no
constitutionally protected right to a civil service position under New
York law, the New York Court of Appeals has stated that:
Our decisions repeatedly have acknowledged the
importance of the discretionary governmental
appointive power embodied in Civil Service § 61,
and have rejected attempts to invoke the aid of the
courts to limit the reasonable exercise of that
discretion (see City of Schenectady v. State Div. of
Human Rights, 37 N.Y.2d 421, 430, 373 N.Y.S.2d 59,
335 N.E.2d 290; Matter of Cassidy v. Municipal Civ.
Serv. Comm'n., 37 N.Y.2d 528-29, 375 N.Y.S.2d 300,
337 N.E.2d 752; Matter of Berger v. Walsh, 291 N.Y. 220,
223, 52 N.E.2d 105). Consistent with our adherence to
the historical policy upon which Civil Service §
61 is based, we have held that a person successfully
passing a competitive Civil Service examination does
not acquire any "legally protectible interest" in an
appointment to the position for which the examination
was given (Matter of Cassidy v. Municipal Civ. Serv.
Comm'n., supra, at 529, 375 N.Y.S.2d 300, 337 N.E.2d 752;
see also, Matter of Deas v. Levitt, 73 N.Y.2d 525,
532, 541 N.Y.S.2d 958, 539 N.E.2d 1086, cert. denied,
493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314), nor
"thereby gain a vested right to appointment to the
position" (Hurley v. Board of Educ., 270 N.Y. 275,
279, 200 N.E. 818).
Andriola v. Ortiz, 82 N.Y.2d 320, 324, 604 N.Y.S.2d 530, 532 (1993).
Therefore, "merely having passed a civil service examination does not
create `any mandated right to appointment or any other legally
protectible interest.'" Kirkland v. New York States Dep't of Correctional
Servs., 711 F.2d 1117, 1134 (2d Cir. 1993) (quoting Cassidy v. Municipal
Civ. Serv. Comm'n, 37 N.Y. 526, 529, 375 N.Y.S.2d 300 (1975). Indeed, the
Supreme Court has held that "to have a property interest in a benefit, a
person clearly must have more than an abstract need or desire for it."
Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701 (1972). Because
Gallo did not have "a legitimate claim of entitlement" to be appointed as
a police officer, the Court finds that he has no cognizable property
interest. Id. "Where no constitutionally protected property interest is
at stake, there is no basis for a federal court to examine the claim that
the procedures actually followed were not proper." Flood v. County of
Suffolk, 820 F. Supp. 709, 713 (E.D.N.Y. 1993).
Further, to the extent that Gallo asserts an equal protection claim,
that claim must be similarly dismissed. To bring an action under the
Equal Protection Clause, the plaintiff must show that: (1) he was
selectively treated compared with others similarly situated, and (2) the
selective treatment was based on impermissible considerations, such as
membership in a suspect class, intent to inhibit or punish the exercise
of a constitutional right, or malicious or bad faith intent to injure.
Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996); LaTrieste
Restaurant & Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d
Cir. 1994). Failure to satisfy either prong of the test requires
dismissal of the plaintiff's claim. Penlyn Development Corp. v. The
Incorporated Village of Lloyd Harbor, 51 F. Supp.2d 255, 264 (E.D.N.Y.
1999). Here, the plaintiff provides only conclusory assertions. Nowhere
in the complaint does Gallo set forth any facts tending to support that
he was treated differently from others similarly situated or that the
defendants' treatment was based on impermissible considerations.
Accordingly, the defendants' motion to dismiss is granted.
Based on the foregoing, it is hereby
ORDERED, that the defendants' motion to dismiss the complaint for lack
of subject matter jurisdiction is DENIED; and it is further
ORDERED, that the defendants' motion to dismiss the complaint for
failure to state a claim is GRANTED,
ORDERED, that the plaintiff is permitted to file an amended complaint
with regard to his equal protection claim against the defendants within
30 days from the date of this order and that the failure to do so will
result in the dismissal of the case with prejudice; and it is further
ORDERED, that the Clerk of the Court is directed to close this case if
does not file an amended complaint as stated above.
© 1992-2003 VersusLaw Inc.