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TSHAKA v. BENEPE

United States District Court, Eastern District of New York


April 9, 2003

MANDINGO TSHAKA, A/K/A JAMES GARNER, RALPH BUNN, NADENE BUNN AND GRACE BUNN, PLAINTIFFS
v.
ADRIAN BENEPE, AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, WILLIAM THOMPSON, AS COMPTROLLER OF THE CITY OF NEW YORK AND THE CITY OF NEW YORK, DEFENDANTS.

The opinion of the court was delivered by: I. Leo Glasser, Senior District Judge

MEMORANDUM & ORDER

SUMMARY

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.

FACTS

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.

DISCUSSION

I. Standard of Review

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.

A. 42 U.S.C. § 1983

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 "generally represent only another way of pleading an action against an entity of whom an officer is an agent").

Plaintiffs' claim also fails the second prong requiring that the plaintiff suffer a deprivation of his or her rights or privileges secured by the Constitution. That prong requires that the plaintiff specifically allege a violation of the Constitution or an Act of Congress. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 618 (1979). Section 1983 provides a civil claim for violations of rights protected by the Constitution and laws of the United States, not for violations arising solely out of state law. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998) (violation of state law does not give plaintiff a § 1983 claim); Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) ("Clearly, a violation of state law is not cognizable under § 1983."); Dean Tarry Corp. v. Friedlander, 650 F. Supp. 1544, 1551 (S.D.N.Y. 1987) (defendants' alleged "flouting of state law" provides no basis for § 1983 claim, because "it is axiomatic that not every violation of a state statute amounts to an infringement of a constitutional right.").

Plaintiffs' Second Cause of Action alleges that defendants failure to maintain `Martin's Field' as a cemetery pursuant to the City Code violates their civil rights under § 1983. (Cmpl't ¶ 21). The fact that defendants may have failed to enforce the City Code does not give rise to liability under § 1983. The plaintiffs may seek to compel enforcement pursuant to N.Y. C.P.L.R. §§ 7801-06 (McKinney 1981), a right of which they have not been deprived. The defendants' motion to dismiss the § 1983 claim is, therefore, granted.

B. Equal Protection

Plaintiffs' First Cause of Action alleges that defendants have failed to enforce the City Code "solely and exclusively because these plaintiffs are African-Americans and/or Shinnecock. Montaukette, Poosepatuck (Unkachaug), and Matinecock American Indians," and have thereby denied plaintiffs equal protection of the laws. (Cmpl't ¶ 18). Although the Equal Protection claim does not explicitly invoke § 1983, the court construes it as such. since § 1983 provides the exclusive remedy for securing redress of constitutional violations. See Pauk v. Board of Trustees of City University of New York, 654 F.2d 856, 865 (2d Cir. 1981) ("when § 1983 provides a remedy, an implied cause of action grounded on the Constitution is not available.").

The Fourteenth Amendment of the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This is "essentially a direction that all persons similarly situated be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); LaTrieste Restaurant & Cabaret Inc. v. Village of Portchester, 188 F.3d 65, 69 (2d Cir. 1999). An equal protection claim essentially has two elements: (1) the plaintiff was treated differently from others similarly situated, and (2) this differential treatment was motivated by an intent to discriminate on the basis of an impermissible consideration, such as race, religion, intent to inhibit or punish the exercise of constitutional rights or bad faith intent to injure. See Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000).

As to the first element of an Equal Protection claim, plaintiffs are required to plead facts that, if proved, would establish that they, "compared with others similarly situated, w[ere] selectively treated." Zahra v. Town of Southhold, 48 F.3d 674, 683 (2d Cir. 1995). "Without an allegation that other persons similarly situated were treated differently, the `equal' portion of the Equal Protection clause becomes meaningless." Economic Opportunity Comm'n of Nassau County, Inc. v. County of Nassau, 106 F. Supp.2d 433, 441 (E.D.N.Y. 2000); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) ("To establish such intentional or purposeful discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons have been treated differently.")*fn2 Plaintiffs have failed to identify any similarly situated parties who were treated more favorably than they were. Indeed, the complaint is devoid of a single allegation concerning any similarly situated party. On this ground, plaintiffs' Equal Protection claim is insufficient as a matter of law.

Because plaintiffs have failed to allege the existence of any similarly situated non-minorities who were treated more favorably than they were, the court need not reach the issue of whether plaintiffs' conclusory allegation that defendants failed to enforce the City Code "solely and exclusively" on the basis of plaintiffs' race is sufficient to satisfy the discriminatory purpose prong of an Equal Protection claim, in the absence of any alleged facts supporting such an inference. The defendants' motion to dismiss this claim is granted.

C. Plaintiffs' Federal Claims are Time-Barred

Even if plaintiffs were to allege federal claims, their claims would be barred by the statute of limitations. Section 1983 claims are subject to the three-year statute of limitations governing personal injury actions. N.Y. C.P.L.R. § 214 (McKinney 1999). See Owens v. Okure, 488 U.S. 235, 251 & n. 13 (1989). The three-year period also applies to plaintiffs' claims for injunctive relief. See Williams v. Walsh, 558 F.2d 667, 671 (2d Cir. 1977) ("when, as here, a suit in aid of a federally-created right is brought seeking both legal and equitable relief, `equity will withhold its remedy if the legal right is barred by the local statute of limitations'") (citations omitted). A § 1983 claim arises "when the plaintiff knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981); Ortiz v. Morgenthau, 772 F. Supp. 1430, 1432 (S.D.N.Y. 1991). In determining when a plaintiff has reason to know of the injury, "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (emphasis in original).

Here, the allegations set forth in the complaint date back to 1898 and 1935. Plaintiffs allege that from 1898 to 1935. defendants "neglected and refused to properly maintain the cemetery at `Martin's Field.'" (Cmpl't ¶ 25). Plaintiffs further allege that in 1935, defendants "wrongfully tore down the headstones located in `Martin's Field,' cemented over part of the land, and constructed a `children's playground' thereat." (Cmpl't ¶ 14). Even the most generous reading of the complaint leads inexorably to the conclusion that the 3-year statute of limitations expired some time in 1938.

In an attempt to circumvent the statute of limitations, plaintiffs allege that their rights are being violated "each and every day [defendants] fail to enforce" the City Code. (Cmpl't ¶ 19). Plaintiffs would have the court thus find that their claims are not time-barred, because defendants' allegedly wrongful acts continue to this day. The continuing wrongs doctrine holds that where a cause of action is predicated on numerous acts occurring over an extended period, the statute of limitations runs from the last wrongful act. See Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981). "If . . . the wrong is continuing, so that each day gives rise to a new cause of action, then each day will also bring a new statute of limitations." CPLR 203 note (McKinney) (McLaughlin, Practice Commentaries C203:1).

Courts have rejected attempts to characterize a one-time wrong as an ongoing one. Thus. in Leonhard, supra, a suit against the government for allegedly concealing plaintiff's children from him in the federal witness protection program, the court rejected plaintiff's argument that each time he wished to visit his children and was unable to do so, his claim accrued anew. The court held that "it is the initial concealment which would give rise to a right of action, and subsequent acts in furtherance and continuation of the concealment should not give rise to new or renewed causes of action." 633 F.2d at 614. In Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981), the Ninth Circuit, in affirming dismissal on statute of limitations grounds, rejected plaintiff's attempt to characterize the injury he suffered due to his alleged wrongful termination as his continuing non-employment resulting from that termination. Also, in Quintana v. Weiner, 717 F. Supp. 77 (S.D.N.Y. 1989), plaintiff sued his landlord for fraud stemming from overpayment of rent. The court held that the statute of limitations was not tolled each and every time the tenant overpaid his rent. Rather, the cause of action accrued at the time the landlord falsely filed documents decontrolling the rent or, at the latest, when the allegedly excessive rent was agreed upon. As the court held. "[t]he subsequent rent payments. . . . if improper, amount only to damages stemming from this initial fraud." Id. at 80.

In this case, the attempt to characterize the alleged wrong of destroying the cemetery as the daily failure to maintain it is unpersuasive: as of 1935. there was no cemetery to maintain. Sachs v. Cleutt, Peabody & Co., 265 A.D. 497, 501, 39 N.Y.S.2d 853, 857 (1st Dept. 1943), aff'd, 291 N.Y. 772, 53 N.E.2d 241 (1944), a trade secrets case, is instructive. There, the Appellate Division used the following example to illustrate the distinction between a one-time wrong and a continuing one: "If defendant hits plaintiff's horse repeatedly. plaintiff has a new cause of action upon each striking; but if defendant destroys plaintiff's horse, or takes it and claims it as its own, plaintiff's right accrues immediately and he must sue within the period measured from that date — or never."*fn3

Even assuming that defendants had a legal obligation to maintain the cemetery. for purposes of the statute of limitations, the act of razing the cemetery and constructing a playground was a single act, not a continuing series of acts. When the cemetery ceased to exist, the statute of limitations began to run, and it has assuredly expired.

IV. Dismissal of the State Law Claims

Having found that plaintiffs' federal claims should be dismissed, the court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) over plaintiffs' Third Cause of Action alleging violations of the City Code. See United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966); Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001). Indeed, it would be error for this court to retain jurisdiction over the state law claims where the federal claims are patently meritless. See Dunton v. Sufolk County, 729 F.2d 903, 911, amended on other grounds, 748 F.2d 69 (2d Cir. 1984).

CONCLUSION

For the reasons set forth above, defendants' cross-motion to dismiss is granted.

SO ORDERED.


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