The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs pro se, John H. Thornton ("Thornton") and his wife, Kathleen Thornton, bring this action against defendants Shaker Ridge Country Club, Inc. and its twelve board members (collectively "SRCC") alleging that (1) SRCC discriminated against the Thorntons as Christians when the Thorntons' membership in SRCC was terminated in violation of 42 U.S.C. § 2000a, (2) SRCC committed tax fraud in violation of 26 U.S.C. § 501(c)(7) and 26 C.F.R. § 1.501(a)-3, and (3) SRCC defrauded the Thorntons in violation of state law. Compl. (Docket No. 1).*fn1 The Thorntons seek compensatory and punitive damages, reinstatement as members of SRCC, and liquidation of SRCC and the distribution of the proceeds thereof to SRCC members.
Presently pending is SRCC's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Docket No. 6. The Thorntons have opposed the motion. Docket No. 19. For the following reasons, it is recommended that SRCC's motion be granted.
The facts are related herein in the light most favorable to the Thorntons as the non-moving parties. See subsection II(A) infra.
On September 20, 2001, federal agents executed a search warrant at the Thorntons' residence in Albany County and seized various items of child pornography. Thornton v. United States, No. 06-CV-1252 (GLS), 2007 WL 3197071 at *1 (N.D.N.Y. Oct. 26, 2007). On April 19, 2005, Thornton waived indictment and pleaded guilty in this district to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). See United States v. Thornton, No. 05-CR-115 (GLS), Docket Nos. 2-4. On September 12, 2005, Thornton was sentenced principally to five years incarceration and was remanded to commence service of his sentence. Id. at Docket Nos. 27-29. Thornton presently remains incarcerated serving that sentence.*fn2
At the time of Thornton's guilty plea, he and his wife had been members of SRCC, a private country club located outside Albany, for twenty-three years. On the day following the guilty plea, SRCC received an electronic mail message expressing "concern for the safety and welfare of the children of the members, their guests, and friends." Docket No. 19, attachment 2, Ex. C at 2. On May 20, 2005, defendant Jones, the SRCC President, sent Thornton a letter stating that "with a quorum present, by a 2/3 vote, after a hearing . . . at which you were present, [the board] made a determination to expel [Thornton] and terminate [his] membership effective Monday, May 23 . . . ." Docket No. 6, attachment 4, Ex. 1. The expulsion from SRCC resulted in the Thorntons being precluded from participating "in outside events, be[ing] a guest of a member or play[ing] in tournaments." Id.; Compl. at ¶ 19. This action followed.
In their complaint, the Thorntons allege that SRCC (1) discriminated against Thornton as Christians by terminating Thornton's membership and prohibiting him from attending religious events at SRCC (second cause of action), (2) committed tax fraud (first cause of action), and (3) defrauded the Thorntons and denied them due process of law by terminating Thornton's membership (third, fourth, and fifth causes of action). SRCC moves to dismiss these claims on the grounds that (A) the Thorntons fail to state a claim for discrimination; (B) the Court lacks jurisdiction over the tax fraud claim; (C) the Thorntons have no standing to assert the tax fraud claim; (D) SRCC's board members should be dismissed in their individual capacity; and (E) if the discrimination and tax fraud claims are dismissed, the pendent state law claims should also be dismissed.*fn3
Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, "a 'complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." Gilfus v. Adessa, No. 5:04-CV-1368 (HGM/DEP), 2006 WL 2827132, at *3 (N.D.N.Y. Sept. 30, 2006) (citing De Jesus v. Sears, Roebuck & Co. 87 F.3d 65, 70 (2d Cir. 1996) (internal quotations omitted)). Thus, dismissal is only warranted if it appears, beyond a reasonable doubt, that the non-moving party cannot prove a set of facts which would support his or her claim or entitle him or her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Harris v. City of N.Y., 186 F.3d 243, 247 (2d Cir. 1999).
When, as here, a party seeks dismissal against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," . . . that a pro se litigant's submissions must be construed "liberally,". . . and that such submissions must be read to raise the strongest arguments that they 'suggest. . . . . At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, . . or arguments that the submissions themselves do not "suggest, . . ." that we should not "excuse frivolous or vexatious filings by ...