The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiffs Jason Deal ("Deal") and Robert Lahr ("Lahr") bring this action pursuant to 42 U.S.C. § 1983 against defendants Seneca County, the Seneca County Sheriff's Department ("Sheriff's Department"), Seneca County Sheriff Leo T. Connolly, ("Connolly"), the Seneca County District Attorney's Office ("SCDA"), Seneca County District Attorney Richard Swinehart, ("Swinehart"), and Seneca County Undersheriff James Larson, ("Larson"), claiming that the defendants violated their rights under the Fourth Amendment, the Fourteenth Amendment Due Process Clause (procedural and substantive), and the Equal Protection Clause of the United States Constitution. Plaintiffs allege that Connolly, Larson and Swinehart used their offices to conduct a campaign of harassment and intimidation against the plaintiffs with the goal of causing them bodily harm and forcing them to resign from their jobs. According to the plaintiffs, the defendants engaged in this activity in an attempt to prevent plaintiffs from conducting a criminal investigation of the defendants; prevent the plaintiffs from testifying against the defendants; and to discredit the plaintiffs in the event that the plaintiffs did attempt to testify against them.
By Decision and Order dated May 8, 2008, I dismissed plaintiffs Fourth and Fourteenth Amendment Claims on grounds that plaintiffs' allegations failed to state a claim upon which relief may be granted.*fn1 I further dismissed plaintiffs' claims for intentional infliction of emotional distress as against Senenca County, the Seneca County Sheriff's Department, and Larson. Plaintiffs now seek to amend the Complaint to add a cause of action against all defendants for violations of plaintiffs' First Amendment rights. Specifically, plaintiffs allege that the defendants attempted to stifle plaintiffs' rights to speak on matters of public concern by harassing, intimidating, and retaliating against the plaintiffs.
The defendants oppose plaintiffs' motion to amend on grounds that such an amendment would be futile. Further, the defendants move to dismiss plaintiffs' Equal Protection claims on grounds that plaintiffs' have failed to state a claim for a violation of their rights to equal protection.
For the reasons set forth below, I grant in-part and deny-in part plaintiffs' motion to amend the Complaint, and grant defendants' motion to dismiss plaintiffs' Equal Protection Claims.
The relevant facts of this case were set forth in my May 8, 2008 Decision and Order. In summary, plaintiffs Jason Deal and Robert Lahr are employed as criminal investigators for the Seneca County Sheriff's Department. Lahr claims that in the mid-1990s, he investigated one of Seneca County's vendors to determine whether or not the vender was overcharging the County. Lahr claims that the vender was operated by a friend of Seneca County Undersheriff James Larson and Former Seneca County Sheriff Tom Fox, and that when Fox learned of the investigation, he threatened to fire Lahr, and ordered him to stop investigating the matter. Lahr further contends that the evidence he collected pursuant to the investigation was taken by Larson and moved to a warehouse, which warehouse burned down two-weeks later under allegedly suspicious circumstances.
Plaintiffs contend that in December 2005, they investigated Larson, Deputy Sheriff Josh Zona ("Zona") and other deputy sheriffs relating to alleged thefts of property from the Sheriff's Department. Plaintiffs contend that Sheriff Connolly ordered plaintiffs not to interview Larson or Zona, and ordered plaintiffs not to any make arrests.
Plaintiffs contend that as a result of their investigations, defendants Connolly, Swinehart and Larson have actively campaigned to harass and discredit them in order to get them fired or force them off their jobs as criminal investigators for the Sheriff's Department. Specifically, plaintiffs allege that the campaign of harassment included, inter alia, surveillance of the plaintiffs and their families, denial of overtime opportunities; assignment to unfavorable work assignments; and the bringing of unfair and unwarranted disciplinary actions against them.
I. Defendants' Motions to Dismiss
Defendants move to dismiss plaintiffs' cause of action for violation of plaintiffs' equal protection rights in light of the recently-decided Supreme Court case of Engquist v. Oregon Department of Agriculture, U.S. , 128 S.Ct. 2146 (2008) which clarified that the "class-of-one" theory of equal protection liability does not apply in the public employment context. Because plaintiffs' equal protection claims were premised on the "class-of-one" theory, defendants contend that plaintiffs equal protection claims must be ...