United States District Court, E.D. New York
March 2, 2004.
ALEXANDRA GILMORE and JULIET JORDAN-THOMPSON, on behalf of themselves and the Voters of the Amityville Union Free School District, Plaintiff(s), -against-, THE AMITYVILLE UNION FREE SCHOOL DISTRICT, LEROY VAN NOSTRAND, BRUCE MacGILL, STEPHANIE ANDREWS, and GEORGE WOLF, Defendant(s)
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
Defendants Amityville Union Free School District ("the District"),
Stephanie Andrews ("Andrews") and Bruce MacGill ("MacGill"),
(collectively "defendants") bring this motion to dismiss the amended
complaint of plaintiffs Alexandra Gilmore ("Gilmore") and Juliet
Jordan-Thompson ("Jordan-Thompson"), (collectively "plaintiffs"), for
failure to state a claim upon which relief can be granted pursuant to
The defendants also move to dismiss the amended complaint against the
individual defendants, Andrews and MacGill, pursuant to
Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction based on a
failure to timely serve in accordance with Rule 4(m) of the
Federal Rules of Civil Procedure. Alternatively, the defendants move to
stay the proceedings based on abstention principles due to the related
administrative proceeding (the "Administrative Proceeding") before the
New York State Commissioner of Education.*fn2
This is the defendants' second motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). Oral argument on the defendants' first motion to
dismiss the plaintiffs' original complaint was heard on January 31, 2003.
In an Order dated February 9, 2003, this Court dismissed the
plaintiffs'_1983 claims with leave to
amend, advising the plaintiffs to "adequately allege municipal
liability and to clarify the basis for a finding of intentional or
purposeful discrimination." Gilmore v. Amityville Union Free School
District, No. 02-CV-3751, at 23 (February 27, 2003).*fn3
For the foregoing reasons, defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) should be GRANTED as to all federal claims, and
as this Court declines to exercise supplemental jurisdiction pursuant to
28 U.S.C. _1367(c)(3), all remaining State law claims should also be
DISMISSED without prejudice to any similar State proceedings.
This is a purported class action which challenges the
District's election for three seats on its Board of Education. As a Fed.
R. Civ. P. 12(b)(6) motion requires this Court to find all allegations
contained in the plaintiffs' amended complaint to be true, the facts
below are derived from the amended complaint, unless otherwise
A. The Parties
Named plaintiffs Gilmore and Jordan-Thompson are African
Americans and residents of the District. Gilmore resides in Massapequa,
New York and Jordan-Thompson is a resident of Amityville, New York.
While not a party to the present action, Tori A. Bean ("Bean"), who is
African American and Sam Williams ("Williams"), who is Caucasian,
are also residents of the District. Jordan-Thompson, Bean and Williams
were all candidates for the Board, as well as voters in the District, in
The plaintiffs purport to represent a class of approximately 1,800
voters of the Amityville School District, whose votes in a May 21, 2002,
school board election were allegedly wrongfully tampered with and counted
for the wrong candidates after the votes were tallied.
Defendant District is a duly organized school district existing under
the laws of the State of New York, located in Amityville, New York.
Defendants MacGill, Van Nostrand, Williams and Wolf are residents of
Suffolk County, New York, and each is an agent or employee of the
B. Factual Background
1. The Election
The May 21, 2002, school board election was for three seats on the
District's Board of Education ("Board"). Bean ran as a candidate for Seat
#1 against Connie Palazzo ("Palazzo"). Bean was the incumbent.
Jordan-Thompson ran as a candidate for seat #3. Running against her was
Barbara Trant ("Trant")*fn4 and Diane Egglinger ("Egglinger"). Williams
ran for Seat #5 against Charles Walters ("Walters"). Bean,
Jordan-Thompson and Williams ran as a group known as "Strong Voice of
Parents" ("SVP"). Palazzo, Egglinger, Walters and defendant Andrews ran
as the "MMAC pack", a name given to them by a local newspaper. The ballot
was set up by the District. The relevant part of the ballot was set up as
The voting machines were provided to the District by "Election Machine
Services" ("EMS"), a private company retained by the District. The
President of EMS is Wolf, who is a former Suffolk County Board of
The election took place at two locations: the Amityville High School
and the Northeast Elementary School. There were two voting machines at
each location and the polls closed at 10pm.
2. The Counting of Votes
After the polls closed, MacGill, the District's Chief Inspector of
Elections, opened the rear panel of the voter machines at Amityville High
School, in the presence of Gilmore. Upon opening the machine, those
present noticed that the vote tally for Line 1C, where no candidate
appeared, was not blank, but rather indicated a vote total of 181 votes,
that no votes were cast for Palazzo in Line 1A, and that Bean received
416 votes on Line 1B. Similar errors occurred for Seat 3. For Seat 5,
however, the results were slightly different. There were 451 votes cast
on line 5C and Walters, on line 5B, received no votes.
1A Palazzo 0 Votes
1B Bean 416 Votes
1C [blank] 181 Votes
3A Trant 0 Votes
3B Jordan-Thompson 125 Votes
3C Egglinger 91 Votes
3D [Blank] 379 Votes
5A Williams 129 Votes
5B Walters 0 Votes
5C [Blank] 451 Votes
MacGill declared that the votes were incorrect and shut the machine
upon agreement of all present. Van Nostrand, the District's attorney,
then arrived and directed MacGill to re open the back of said
At 10:45 p.m., when Andrews, the Board President and a member of the
"MMAC pack" arrived at the polling place, she, along with Van Nostrand,
MacGill, Gilmore and others again observed the re opening of the
machine and re inspection of the tallies. The machine was then
closed. Around this time, Wolf also appeared at the polling place.
The machine was then re opened and viewed by those present.
Andrews thereafter announced a plan for counting the machine votes. For
Seat #1 she
announced that the votes received by Bean would be counted as votes
for Palazzo and that the votes on Line 1C would be counted as votes for
Bean. For Seat #2 she would count the votes received by Jordan-Thompson
as votes for Trant, the votes for Egglinger would be counted as votes for
Jordan-Thompson and the votes on Line 3D counted as votes for Egglinger.
For Seat #5 the votes on Line 5C would be counted as votes for Walters.
Gilmore and other voters protested this decision. The voters demanded
that Wolf, Van Nostrand, Andrews and MacGill suspend the count and that
the machines be impounded until a proper authority could examine the
machine in question. The said defendants refused.
Andrews and Van Nostrand then tallied the votes from all four machines
in accordance with Andrews' plan. After counting all four machines in
this manner, the results were announced at 11:30 pm on May 21, 2002. The
winners were Palazzo, Egglinger and Walters.
3. Subsequent Actions
The next day, May 22, 2002, Gilmore and Alicia Lindo, a member of SVP,
wrote a letter to the defendant's district clerk requesting that the
machines be impounded. The defendants again refused. The plaintiffs
contend that instead, the
defendants had the machines zeroed out.
The plaintiffs also point to a letter written by Van Nostrand on May
24, 2002, in which he states that Wolf told him on May 22, 2002, that the
machines were zeroed out on May 23, 2002. The plaintiffs note that this
is contradictory and that the purpose of the letter was to infer that the
District did not know of the irregularities until May 22, 2002, when
indeed they knew on election night. The amended complaint alleges that
Wolf and Van Nostrand should have known that the machines should not have
been zeroed out and that they wrongfully prevented the Commissioner of
Education or the Board of Elections from examining the record.
C. Procedural History
The formal election results were announced on June 18, 2002 and the new
members were sworn in on July 2, 2002. The plaintiffs filed for an
injunction with the New York State Commissioner of Education on June 20,
2002. The Commissioner denied the motion for an injunction by letter
dated July 2, 2002, and in a decision dated May 30, 2003, dismissed the
plaintiffs' petition for several reasons, including the fact that the
plaintiffs had "not established any violation of the Education Law or
regulations." (Defs. Reply Aff. Ex. 1 at 5).*fn5
On June 24, 2002, the plaintiffs instituted this federal action seeking
to set aside the election results, removal from the Board of the
successful candidates and a new election under this Court's supervision.
In addition, the plaintiffs seek $36 million in compensatory and punitive
damages and attorney's fees.
A. What the Court May Consider
The defendants have submitted the May 30, 2003 Order from the
Commissioner and their pleadings and affidavits in support of that
administrative hearing. As the plaintiffs referenced the administrative
hearing and the documents submitted by defendants in their amended
complaint, it appears that this Court may consider all of the defendants'
submissions.*fn6 See Cortec Indus., Inc. v. Sum Holding,
L.P., 949 F.2d 42, 47 (2d Cir. 1991); Fed.R.Civ.P. 10(c).
B. 12(b)(6) Motion
1. Legal Standard
A motion to dismiss for failure to state a claim under Fed.R.Civ.P.
12(b)(6) should be granted only when "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Formica v. Town of Huntington, No.
96-7206, 1996 U.S. App. LEXIS 31031, at *4 (2d Cir. Sept. 19, 1996)
(citation omitted). Under the Federal Rules of Civil Procedure, a
plaintiff need only provide "a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). "Such a statement must simply `give the defendant fair notice of
what the plaintiff's claim is and the grounds upon which it rests.'"
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). "The Court must
accept as true all material facts well pleaded in the complaint
and must make all reasonable inferences in the light most favorable to
the plaintiff." City of Amsterdam v. Daniel Goldreyer, Ltd.,
882 F. Supp. 1273, 1278 (E.D.N.Y. 1995).
2. _1983 Claim
Section 1983 creates a claim against any person who, acting under color
of State law, abridges rights created by the Constitution and laws of the
United States. Here, the plaintiffs contend that the defendants' actions
"caused them the loss of their voting rights, the loss of school board
seats which were won, and the destruction of a fundamental system of
election of local school board members." (Amend. Compl. at ¶ 110).
Plaintiffs' _1983 claim appears to be based on a violation of equal
protection as guaranteed by the Fourteenth Amendment.
First, in order to find a municipality such as the District liable, the
plaintiffs must show that a "municipal policy or custom caused the
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 166 (1993); See
also Bd. of the County Comm'rs v. Brown,
520 U.S. 397, 403 (1997); Monell v. N.Y.C. Dep't of Soc. Servs.,
436 U.S. 658, 694 (1978). "Even in the absence of an `explicitly adopted rule
or regulation,' a plaintiff may prove the existence of municipal policy
if he can show that the unlawful act was done or approved by the person
with final policymaking authority in the area in which the action was
taken." Davis v. City of New York, 75 Fed. Appx. 827, 829 (2d
Cir. 2003) (quoting Sorlucco v. N.Y.C. Police Dep't.,
971 F.2d 864, 870 (2d Cir. 1992); See also Pembaur v.
City of Cincinnati, 475 U.S. 469, 480-81 (1986). In addition, the
inference that a policy existed may also "be drawn from circumstantial
proof, such as evidence that the municipality so failed to train its
employees as to display a deliberate indifference to the constitutional
rights of those within its jurisdiction." Ricciuti v. N.Y.C. Transit
Auth., 941 F.2d 119, 123 (2d Cir. 1991) (citing City of Canton
v. Harris, 489 U.S. at 388-98 (1988)).
In the present case, the amended complaint once again fails to state a
claim under _1983 against the District because the plaintiffs simply can
not show that the defendants actions were done or approved by a person
with "final policymaking authority." Davis, 75 Fed. Appx. at
829. Though the amended complaint attempts to
argue that the defendants put themselves in the position of being
the "final policy makers" by "refusing to impound machines,
wiping out tallies and declaring winners," this merely serves to
obfuscate the clear fact that the Commissioner of Education is, and has
always been, the "final policy maker." (Amend. Compl. at__90-92).
Indeed, N.Y. Educ. Law _2037 states that "all disputes concerning the
validity of any district meeting or election or of any of
the acts of the officers of such meeting or election shall be referred to
the Commissioner of Education for determination and his decisions in the
matter shall be final and not be subject to review." Id.
Further, the allegations as stated, prevent any reasonable inference that
the District failed adequately to train its employees. Thus, the
plaintiffs' amended complaint fails to state a claim against the District
based on _1983.
Second, the plaintiffs' amended complaint also fails to state a _1983
claim against the non municipal defendants. Under Powell v.
Power, 436 F.2d 84 (2d Cir. 1970), a plaintiff who can only
establish "unintended irregularities" in the conduct of an election is
not able to obtain _1983 relief in the federal court system as long as an
adequate and fair State remedy exists. Id. at 85-88.
See also Donahue v. Board of Elections,
435 F. Supp. 957, 968 (E.D.N.Y. 1976) (J., Mishler). Indeed, the Second
Circuit Court of Appeals in Gold v. Feinberg, 101 F.3d 796 (2d
Cir. 1996), re-affirming
Powell, held that there must be "intentional or
purposeful discrimination" in order to sustain a § 1983 claim to
remedy errors in the election process allegedly violating equal
protection. Id. at 800-3.
Again, the plaintiffs have failed to show any "intentional or
purposeful discrimination" on the part of the defendants in their amended
complaint. Although the plaintiffs contend that the tallying of the votes
was racially motivated, they plead no facts in support of this argument.
As in the original complaint, the plaintiffs allege conclusory claims of
discriminatory intent as the reason behind the defendants' decision to
tabulate the vote in the manner chosen. Moreover, there are no
allegations of a specific discriminatory act or utterance by the
defendants. Indeed, the plaintiffs merely allege that "[a]lthough the
method chosen by the defendants to tally the aforesaid votes, applied to
African-American candidates as well as to the White candidates,
the effect intended by defendants in so improperly tallying the
votes necessarily would and did eliminate entirely any African-American
person from serving on the defendant school board."
(Amend. Compl at_87) (emphasis supplied).
Further, although Judge Leo Glasser in Ladner v. City of New
York, No. CV-94-2863, 1995 WL 62687 at *3 (E.D.N.Y. Feb. 9, 1995),
stated that the discriminatory intent sufficient to overcome a motion to
dismiss "may be reasonably
inferred from plaintiff's papers," it is difficult to infer any
discriminatory intent based on the plaintiffs' amended complaint. As this
Court pointed out to the plaintiffs in its February 27, 2003 Order:
the Court notes that the allegations in the
current complaint related to the tallying of the
votes, by themselves, make it difficult to infer
any `purposeful or discriminatory intent' on the
part of the defendants. The method of
counting the votes applied equally to all
candidates, and two Caucasians and two African
Americans lost under this method. Had
the votes been counted as Plaintiffs argue,
thousands of votes would not have been counted.
Even on the face of the complaint, it appears that
the method of counting the votes, by moving each
tally of votes up one seat, may well have been
necessary to correct for a technical failure in
the formatting of the machines and to ensure that
the votes were counted in accordance with the
manner in which they were cast.
Gilmore v. Amityville Union Free School District, et al,
No. 02-CV-3751, at 20-21 (February 27, 2003) (emphasis supplied).
Aside from a smattering of conclusory allegations in the plaintiffs'
amended complaint, this Court is again unable to infer any discriminatory
intent by the defendants. Moreover, an adequate State remedy clearly
exists in this situation and indeed, has already been utilized by the
plaintiffs. Under N.Y. Educ. Law _2037, all school board election
disputes are referred to the Commissioner of Education. As noted above,
the plaintiffs have already availed themselves of this remedy and on May
30, 2003, the Commissioner handed down his decision dismissing their
Therefore, the plaintiffs have failed to make out a _1983 claim
against the remaining non municipal defendants and the claim
should be dismissed.
3. 42 U.S.C. § 2000a, § 2000c-8, and § 1971
All three of the above claims should also be dismissed pursuant to Fed.
R. Civ. P. 12(b)(6). First, _2000a prohibits discrimination and
segregation in places of "public accommodation." As the court stated in
Harless v. Darr, 937 F. Supp. 1351 (S.D. Ind. 1996), "the
overriding purpose of Title II [is] `to remove the daily affront and
humiliation involved in discriminatory denials of access to facilities
ostensibly open to the general public.'" Id. at 1354 (quoting
Daniel v. Paul, 395 U.S. 298, 307-8 (1969). The
Harless court went on to explain that "[p]ublic schools do not
purport to be open to the general public in the ways, that for example,
hotels, restaurants and movie theaters (all establishments explicitly
covered by Title II) do." Id. Therefore, as the plaintiffs have
not offered any evidence to the contrary, their claim under _2000a should
be dismissed. Second, _2000c-8 was enacted to remedy the problem of
segregation in public schools and colleges. 15 Am. Jur.2d Civil Rights
_26. The plaintiffs allege no specific facts in support of this claim in
their amended complaint, nor
did they respond to defendants' arguments for its dismissal in
their motion papers. Accordingly, the plaintiffs' claim under _2000c-8
should also be dismissed.
Third, _1971 does not provide for a private right of action by
individuals. Its provisions are only enforceable by the United States of
America in an action brought by the Attorney General and may not be
enforced by private citizens. See 42 U.S.C. _1971(c);
Cartagena v. Crew, No. 96-3399, 1996 WL 524394, *13 n.8
(E.D.N.Y. Sept. 5, 1996); McKay v. Thompson, 226 F.3d 752, 756
(6th Cir. 2000); Willing v. Lake Orion Community Schools Bd. of
Trustees, 924 F. Supp. 815, 819 (E.D. Mich. 1996); Spivey v.
State, 999 F. Supp. 987, 996 (N.D. Ohio 1998); McKay v.
Altobello, No. 96-3458, 1996 WL 635987, *3, *4 (E.D. LA 1996 Oct.
31, 1996). Therefore, the plaintiffs' _1971 claim should also be
C. Plaintiffs' Remaining State Law Claims
Under 28 U.S.C. _1367(c)(3), this Court may decline to exercise
supplemental jurisdiction over related State law claims, if it has
"dismissed all claims over which it has original jurisdiction."
Id. While _1367(c)(3) does not require dismissal, "[i]n
general, where the federal claims are dismissed before trial, the state
claims should be dismissed as well." Marcus v. AT&T Corp.,
138 F.3d 46, 57 (2d Cir. 1998) (citing Purgess v. Sharrock,
33 F.3d 134, 138 (2d Cir. 1994)); See also
Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)
(noting that it is particularly appropriate for the district court to
dismiss where "the federal claim on which the state claim hangs has been
As explained supra, the defendants' motion pursuant to Fed.
R. Civ. P. 12(b)(6) to dismiss the amended complaint is granted, leaving
only plaintiffs' State law claims. Accordingly, under _1367(c)(3), this
Court declines to exercise supplemental jurisdiction over the remaining
State law claims.
D. 12(b)(2) Motion
The individual defendants, MacGill and Andrews, contend that they were
not served with a summons and complaint within 120 days as required by
Fed.R.Civ.P. 4(m). However, as the Court is granting defendants'
motion pursuant to Fed.R.Civ.P. 12(b)(6) and declining to exercise
supplemental jurisdiction over the remaining State law claims, the
plaintiff's complaint is dismissed in its entirety against the District,
Andrews and MacGill. Therefore, there is no need for the Court to reach
this argument and accordingly, it declines to do so.
It is hereby ordered that defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) should be GRANTED as to all federal claims, and
as this Court DECLINES to exercise supplemental jurisdiction
pursuant to 28 U.S.C. _1367(c)(3), all remaining State law claims should
also be DISMISSED without prejudice.