The opinion of the court was delivered by: I. Leo Glasser, Senior District Judge
Plaintiffs, African-American and Native American residents of New York, and the descendants of certain people buried in a plot of land known as Martin's Field, in Flushing, Queens, bring this action alleging three causes of action (1) violation of the Equal Protection Clause of the United States Constitution, (2) violation of 42 U.S.C. § 1983 for failure to enforce the New York City Administrative Code (hereinafter, the "City Code"), and (3) the state law violation of the City Code itself. In essence. plaintiffs allege that the defendants have converted Martin's Field into a park and children's playground. and have failed to properly maintain it as a cemetery. solely because plaintiffs are African-American or American Indians. Plaintiffs unsuccessfully sought a preliminary injunction, and defendants now cross-move to dismiss the complaint. For the reasons set forth below, defendants' cross-motion to dismiss is granted.
In 1840, the Town of Flushing set aside Martin's Field, located at what is now 164th Street and 46th Avenue in Flushing, Queens, for use as a paupers' burial ground. Slavery was abolished in New York in 1828, and numerous former slaves were buried at that site. Plaintiffs' ancestors were buried on the land in question. then known as the "Colored Cemetery-Flushing," in 1874, 1876, 1887 and 1890.*fn1 In 1898, the town of Flushing was abolished, and its functions were transferred to the City of New York. In approximately 1935, the New York City Department of Parks and Recreation tore down the headstones that were located there, cemented over part of the land, and constructed a children's playground. Since then, the land has been used as a park and playground. From some time after 1935 until the present, plaintiffs have protested the Parks Department's actions by, inter alia, seeking newspaper publicity, sponsoring lectures, conducting prayer vigils, gathering letters and signatures in support of their cause, and seeking a New York City Council resolution.
On a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept as true the factual allegations of the complaint and view the complaint in the light most favorable to the non-moving party. See Bolt Elec. Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). Dismissal is warranted when "it appears beyond doubt that plaintiff can prove no set of facts in support of [his or her] claim which entitles [him or her] to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
II. Plaintiffs' Federal Claims
Plaintiffs have asserted two federal causes of action. Plaintiffs' First Cause of Action alleges that defendants have failed to enforce the City Code "solely and exclusively" because plaintiffs are African-American or American Indians. thereby denying plaintiffs equal protection of the laws. (Cmpl't ¶¶ 18-19). Plaintiffs' Second Cause of Action alleges that defendants' failure to enforce the City Code violates their civil rights under § 1983. (Cmpl't ¶¶ 21-22). The court addresses these two claims in reverse order.
To prove a § 1983 claim two elements must be established: (1) that the defendant acted under color of state law; and (2) that, as a result of the defendant's actions, the plaintiff suffered a deprivation of his or her rights or privileges secured by the Constitution and laws of the United States. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994). In order to satisfy the first requirement, the plaintiff must establish that the defendant exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)).
With respect to plaintiffs' claims against New York City, municipal liability under § 1983 may only be found when application of an official municipal policy or custom has caused the deprivation of plaintiffs' rights. See Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978). Thus, to state a claim upon which relief may be granted, plaintiffs must allege that the claimed injury is attributable to a municipal policy or custom. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Plaintiffs have made no allegation of any fact which would even suggest the existence of any official municipal policy or custom regarding the enforcement of the City Code. Accordingly, their Second Cause of Action fails to state a claim against the City under § 1983.
Plaintiffs' claims against the individual defendants are apparently against them in their official capacity. The complaint does not contain a single allegation as to any actions taken by either of the individual defendants. As such, the claims against the individual defendants suffer the same fate as plaintiffs' claim against the City. See Monell, 436 U.S. at 690 n. 55 (official capacity suits ...