The opinion of the court was delivered by: Townes, United States District Judge
In a Memorandum and Order dated September 24, 2007, and filed September 25, 2007 (the "Memorandum and Order"), this Court (1) granted the motion of defendants John A. Johnson and David R. Peters (collectively, the "State Defendants") to dismiss the cause of action against them for failure to state a claim, and (2) dismissed "all claims" against the County of Nassau and the Police Department of the County of Nassau. See Maloney v. County of Nassau, No. 03-CV-4178 (SLT)(MLO), 2007 WL 2815811 (E.D.N.Y. Sept. 25, 2007). Plaintiff James M. Maloney and defendant Robert Seiden now separately move for reconsideration of portions of that Memorandum and Order. As explained below, plaintiff's motion for reconsideration, which initially sought to reinstate plaintiff's claims for declaratory and injunctive relief against the State Defendants, has been rendered largely moot by a September 22, 2008, decision of the New York State Office of Children and Family Services' Bureau of Special Hearings, which granted plaintiff the declaratory and injunctive relief he sought in his cause of action against the State Defendants. Those arguments which plaintiff claims are not moot are without merit. Accordingly, plaintiff's motion for reconsideration is denied, and plaintiff's request that this Court enter final judgment against the State Defendants pursuant to Fed. R. Civ. P. 54(b) is denied without prejudice. Defendant Seiden's motion, which seeks to clarify that this Court meant to dismiss only plaintiff's actions against the State Defendants and not Mr. Seiden's crossclaims against those defendants, is granted.
The facts and procedural history relating to this action are set forth in the Memorandum and Order, familiarity with which is assumed. However, for the convenience of the reader, this Court will provide a synopsis of the undisputed facts relating to the instant motions for reconsideration.
This action arises from an August 2000 incident in which officers from the Nassau County Police Department surrounded plaintiff's Port Washington home after a telephone lineman allegedly reported that plaintiff had pointed a rifle at him from inside the home. A twelve-hour standoff ensued, during which Mr. Seiden and others attempted to persuade plaintiff to accede to police demands that he exit his house and surrender. Plaintiff eventually did so and was thereafter charged with criminal offenses.
The Nassau County District Attorney's Office subsequently permitted plaintiff to plead guilty to disorderly conduct (a violation) in full satisfaction of the charges against him. However, because plaintiff's two young sons had been home at the time of the standoff, the New York State Office of Children and Family Services ("OCFS") investigated plaintiff for possible child abuse and determined that child abuse was "indicated," causing plaintiff to be listed on the New York State Child Abuse and Maltreatment Register ("the Register"). When plaintiff subsequently requested that OCFS amend its records by changing "indicated" to "unfounded -- legally sealed," David R. Peters, the Director of the Register, responded by sending plaintiff a letter which stated, among other things:
If the record is not amended within 90 days of receiving the request, or if your request is denied after the administrative review, your request will be forwarded to the Bureau of Special Hearings for the scheduling of a fair hearing.
Plaintiff's Claim against the State Defendants Approximately two years later, when plaintiff had yet to receive the "fair hearing" promised by Peters, plaintiff commenced this action pursuant to 42 U.S.C. § 1983 ("§ 1983"), naming both Peters and John A. Johnson, the Commissioner of OCFS, as defendants. In plaintiff's Amended Complaint, the lone cause of action against these two defendants -- the fourth cause of action -- alleged that Peters and Johnson had deprived plaintiff of "his rights under the First, Second, Sixth, Eighth and Fourteenth Amendments" of the United States Constitution (Amended Complaint at ¶ 87). The Amended Complaint did not expressly state the basis for these First, Second, Sixth and Eighth Amendment claims, but specifically alleged that plaintiff had "a protectable liberty interest in his name not being on 'The Register'" and that Johnson and Peters, acting under color of state law and under official policy, had "deprive[d] plaintiff of his liberty interests" (Id. at ¶¶ 88-89). In addition, the Amended Complaint alleged that the Second Circuit had "held unconstitutional the NYS statutory scheme whereby persons are listed on 'The Register,'" and that Johnson and Peters "knew or should have known" of this ruling (Id. at ¶¶ 90-91). The fourth cause of action did not seek damages from Johnson or Peters, but sought a declaratory judgment stating that the Register is unconstitutional, an injunction prohibiting Johnson and Peters from listing plaintiff's name on the Register, and an order expunging all records concerning plaintiff from the files of the OCFS and the Register (Id. at ¶¶ 92-94).
Johnson and Peters (collectively, the "State Defendants") subsequently moved to dismiss the sole cause of action against them pursuant to Fed. R. Civ. P. 12(b)(6), advancing four arguments. First, they argued that plaintiff was collaterally estopped from arguing that the State Defendants violated plaintiff's rights to procedural due process because plaintiff refused to take part in the "fair hearing" belatedly offered by OCFS. Second, the State Defendants argued that plaintiff was not entitled to procedural due process because he lacked a protectable liberty interest. Third, these defendants argued that they did not violate plaintiff's right to procedural due process because, in conducting their administrative review, they did not apply the "some credible evidence" standard which was found unconstitutional in Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1981). Fourth, the State Defendants contended that plaintiff's § 1983 claims should be dismissed for lack of subject-matter jurisdiction because such claims could have been meaningfully addressed in proceedings pursuant to Article 78 of New York's Civil Practice Law and Rules.
This Court rejected the State Defendants' first argument, but agreed with their second argument, holding that the allegations in plaintiff's Amended Complaint failed to make out the first element of a procedural due process claim: a violation of a constitutionally protected interest. This Court inferred from plaintiff's conclusory assertion that he had "a protectable liberty interest in his name not being on 'The Register'" (Amended Complaint at 90), that plaintiff was raising a stigma-plus liberty interest claim. However, the Amended Complaint did not contain any factual allegations suggesting that plaintiff had a plausible basis for a procedural due process claim. Although this Court noted that plaintiff's opposition papers "contain[ed] new factual allegations which might arguably support a stigma-plus claim" (Maloney, 2007 WL 2815811, at *20), plaintiff had not moved to amend his pleading and this Court could consider only the allegations in the pleading itself in deciding the State Defendants' Rule 12(b)(6) motion. Accordingly, this Court concluded, in light of Twombly v. Bell Atlantic Corp., 550 U.S. 544, ___, 127 S.Ct. 1955, 1974 (2007), that plaintiff's Amended Complaint, which contained nothing more than a conclusory statement suggesting the theory of his procedural due process claim, was insufficient to provide notice of his stigma-plus liberty interest claim.
Since this Court thus held that the allegations in plaintiff's Amended Complaint failed to make out the first element of a procedural due process claim, it was unnecessary to address the State Defendants' final two arguments, both of which dealt with the third element of a procedural due process claim: whether the deprivation of a property or liberty interest occurred without constitutionally adequate pre- or post-deprivation process. However, this Court noted that if it "were to address these arguments, it would determine that the facts alleged by plaintiff [did] not make out this third element of a due process claim" (Maloney, 2007 WL 2815811, at *21). With respect to the State Defendants' third argument, this Court noted that, despite plaintiff's allusion to a Second Circuit case which "held unconstitutional the NYS statutory scheme whereby persons are listed on the register" (Amended Complaint at ¶ 90), the Second Circuit actually held only that use of the "some credible evidence" standard in making the initial determination of whether to include someone on the Register created an unacceptably high risk of error. (Maloney, 2007 WL 2815811, at *21 (citing Valmonte, 18 F.3d at 1003-04)). This Court further noted that the Amended Complaint did "not specifically allege that the State Defendants used this standard in deciding to include plaintiff on the Register" (id.), and that it did not appear likely that plaintiff could allege facts raising this issue. This Court stated:
[I]n light of the letter from defendant Peters to plaintiff, dated October 2, 2002, which indicates that a "fair preponderance of the evidence" standard was used in plaintiff's case, plaintiff would appear to lack a good-faith basis for asserting that these defendants applied the constitutionally inadequate "some credible evidence" standard.
With respect to the State Defendants' fourth argument, this Court found that plaintiff had a meaningful post-deprivation remedy. This Court noted that the factual allegations in the Amended Complaint indicated that plaintiff was complaining about defendant Peters' failure to timely schedule the "fair hearing" to which plaintiff was entitled under New York law. This Court agreed with the State Defendants' contention that plaintiff could have sought a writ of mandamus pursuant to Article 78 of New York Civil Practice Law and Rules, and that plaintiff therefore had a meaningful post-deprivation remedy for Peters' inaction (Id. at *21).
Plaintiff's Claims Against the County Defendants
Plaintiff's Amended Complaint also contained three causes of action against Nassau County, its police department and/or its employees. The first cause of action alleged, inter alia, that Nassau County, Nassau County District Attorney Denis Dillon, the Nassau County Police Department and its employees "deprived Plaintiff of his rights under the Fourth and Fourteenth Amendments" of the United States Constitution (Amended Complaint at ¶ 65). The second cause of action alleged that the actions of a Nassau County paramedic violated plaintiff's "rights under the NYS and federal constitutions" (Id. at ¶ 70). Plaintiff's third cause of action alleged, inter alia, that Nassau County, Nassau County District Attorney Denis Dillon, the Nassau County Police Department and its employees "jointly and severally illegally seized and retained property, personal effects, and papers taken by defendants from plaintiff" and thereby deprived plaintiff of his rights under the Fifth and Fourteenth Amendments of the federal Constitution. (Id. at ¶¶ 74, 76). In addition, plaintiff alleged that these defendants' actions constituted conversion and "trespass to chattels" under New York State law. (Id. at ¶¶ 77-78).
Nassau County and the Nassau County Police Department, together with other "County Defendants," moved to dismiss plaintiff's claims against them pursuant to Fed. R. Civ. P. 12(c). First, the County Defendants moved to dismiss plaintiff's §1983 claims on the ground that plaintiff could not make out a violation of any of his federal Constitutional rights. Second, the County Defendants argued that the §1983 claims against Nassau County and the Nassau County Police Department should be dismissed because plaintiff did not allege that the Constitutional violations were due to a municipal policy. Third, these defendants argued that plaintiff's state-law claims were barred because plaintiff had not filed a notice of claim, as required under New York General Municipal Law. Finally, the County Defendants argued that the individually named County Defendants enjoyed qualified immunity.
This Court rejected the first argument, but found merit in the County Defendants' argument that plaintiff had not adequately alleged the existence of a municipal policy or custom that gave rise to the purported Constitutional violations. On the basis of this finding, the Court dismissed "plaintiff's claims against Nassau County and the Nassau County Police Department." (Maloney, 2007 WL 2815811, at *10). This Court also found merit in the County Defendants' third argument, holding that plaintiff failed to file the notice of claim necessary to bring an action against the County ...