The opinion of the court was delivered by: Conner, Senior D.J.
This § 1983 action was brought on behalf of Courtney Manbeck ("Courtney" or "plaintiff") and all others similarly situated, against defendants Katonah-Lewisboro School District (the "District"), Robert Lichtenfeld, the District superintendent, and James Minihan, the District transportation supervisor. Plaintiff claims that defendants violated her due process and equal protection rights under the Fifth and Fourteenth Amendments by denying her bus transportation to a private kindergarten because she did not meet the age requirement for transportation established by the District. Plaintiff filed a motion for a temporary restraining order and a preliminary injunction on October 14, 2005. Oral argument was heard before this Court on November 9, 2005. By Opinion and Order dated November 22, 2005, plaintiff's motion was denied. Defendants then sought to dismiss the Complaint under FED. R. CIV. P. 12(b)(6) for failure to state a claim. Plaintiff thereafter amended her Complaint to allege that New York Education Law § 3202 is unconstitutional and to modify the class of plaintiffs in this action to include students in other school districts that interpret § 3202 in the same manner as the District. As an answer had not been served at that time, plaintiff was permitted to amend her Complaint subject to defendants' outstanding motion to dismiss. The Amended Complaint adds as defendants all other similarly situated school districts in New York State.*fn1 For the foregoing reasons, defendants' motion is granted.
The facts of this case are set forth extensively in our previous opinion, familiarity with which is presumed. See Manbeck v. Katonah-Lewisboro Sch. Dist., 403 F. Supp. 2d 281 (S.D.N.Y. 2005).
On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). The complaint need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 514 (2002). Furthermore, in assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint and any document attached as an exhibit to the complaint or incorporated in it by reference. See FED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999) (citations omitted); De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996).
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236. A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10(1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff describes are insufficient as a matter of law. See Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
II. Fifth Amendment Claim
Insofar as plaintiff claims a violation of her Fifth Amendment rights, that claim must be dismissed as plaintiff has "not named the United States government or any agency or employee thereof as a defendant in this matter." See Cassidy v. Scoppetta, 365 F. Supp. 2d 283, 286 (E.D.N.Y. 2005). The Fifth Amendment "'governs the conduct of the federal government and federal employees, and does not regulate the activities of state officials or state actors.'" Id. (quoting Dawkins v. City of Utica, No. 93-CV-373, 1997 WL 176328, at *4 (N.D.N.Y. Apr. 4, 1997) (emphasis in original) (internal citations and quotation marks omitted)).
III. Fourteenth Amendment Claims*fn2
A. Procedural Due Process
"A two-prong test applies to analyze procedural due process claims. First, the threshold issue is always whether the plaintiff has a property or liberty ...