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Leroy M. Douglas; and v. New York State Adirondack Park Agency

September 11, 2012

LEROY M. DOUGLAS; AND
THE DOUGLAS CORP. OF SILVER LAKE, PLAINTIFFS,
v.
NEW YORK STATE ADIRONDACK PARK AGENCY;
PAUL VAN COTT, INDIVIDUALLY AND AS AN EMP. AND ATTORNEY FOR N.Y.S. ADIRONDACK PARK AGENCY;
DOUGLAS MILLER, INDIVIDUALLY AND AS AN EMP. OF THE N.Y.S. ADIRONDACK PARK AGENCY;
MARK ROOKS, INDIVIDUALLY AND AS AN EMP. OF THE N.Y.S. ADIRONDACK PARK AGENCY;
JOHN BANTA, INDIVIDUALLY AND AS AN EMP. AND ATTORNEY FOR N.Y.S. ADIRONDACK PARK AGENCY; CURT F. STILES, INDIVIDUALLY AND AS A COMM'R OF THE N.Y.S. ADIRONDACK PARK AGENCY;
CECIL WRAY, INDIVIDUALLY AND AS A COMM'R OF THE N.Y.S. ADIRONDACK PARK AGENCY;
ADIRONDACK COUNCIL, INC.;
BRIAN HOUSEAL, INDIVIDUALLY AND AS A DIR. OF THE ADIRONDACK COUNCIL, INC.;
SCOTT M. LOREY, INDIVIDUALLY AND AS AN EMP. AND OFFICER OF THE ADIRONDACK COUNCIL, INC.; BRIAN RUDER, INDIVIDUALLY, AND AS MEMBER AND CHAIRMAN OF THE BD. OF DIR. OF THE ADIRONDACK COUNCIL, INC., AND AS A MEMBER, DIR. AND OFFICER OF HAWKEYE CONSERVATIONISTS, INC.;
HAWKEYE CONSERVATIONISTS, INC.; AND
JOHN DOES 1 THROUGH 10 (REPRESENTING AS OF YET UNKNOWN AND UNIDENTIFIED EMP. OR OFFICERS OF N.Y.S. ADIRONDACK PARK AGENCY OR EMP. OR OFFICERS OF THE ADIRONDACK PARK AGENCY OR EMP. OR OFFICERS OF THE ADIRONDACK COUNCIL, INC., OR HAWKEYE CONSERVATIONISTS, INC.), DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently pending before the Court, in this civil rights action filed by Leroy M. Douglas Corporation of Silver Lake ("Plaintiffs") against the New York State Adirondack Park Agency and six of its employees ("APA Defendants"),*fn1 the Adirondack Council, Inc., and two of its members ("AC Defendants"),*fn2 Brian Ruder, Hawkeye Conservationists, Inc., and ten John Does, are the following five motions: (1) the APA Defendants' motion to dismiss Plaintiffs' Complaint for failure to state a claim and/or lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(b)(1), or, in the alternative, to disqualify Plaintiffs' counsel pursuant to the New York Rules of Professional Conduct (Dkt. No. 40); (2) the AC Defendants' motion to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 42); (3) Defendant Hawkeye's motion to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 43); (4) Defendant Ruder's motion to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 52); and (5) Plaintiffs' cross-motion for leave to amend their Complaint pursuant to Fed. R. Civ. P. 15(a)(2) (Dkt. No. 56). For the reasons set forth below, the APA Defendants' motion to dismiss is granted in part and denied in part; the AC Defendants' motion to dismiss is granted in part and denied in part; Defendant Hawkeye's motion to dismiss is granted; Defendant Ruder's motion to dismiss is granted in part and denied in part; and Plaintiffs' cross-motion for leave to amend is granted in part and denied in part.

TABLE OF CONTENTS

I. RELEVANT BACKGROUND

II. GOVERNING LEGAL STANDARDS

A. Motion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

B. Motion to Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1)

C. Motion to Disqualify Opposing Counsel

D. Motion to Amend Pursuant to Fed. R. Civ. P. 15(a)(2)

III. ANALYSIS

A. APA Defendants' Motion to Dismiss Plaintiffs' Complaint for Failure to State a Claim and/or Lack of Subject-Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(b)(1), and/or to Disqualify Counsel Pursuant to the New York Rules of Professional Conduct

1. Plaintiffs' Claims Against APA Defendants

2. Summary of APA Defendants' Arguments on Their Motion

3. Court's Findings and Conclusions

B. AC Defendants' Motion to Dismiss Plaintiffs' Complaint for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

1. Plaintiffs' Claims Against AC Defendants

2. Summary of AC Defendants' Arguments on Their Motion

3. Court's Findings and Conclusions

C. Defendant Hawkeye's Motion to Dismiss Plaintiffs' Complaint for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

1. Plaintiffs' Claims Against Defendant Hawkeye

2. Summary of Defendant Hawkeye's Arguments on Its Motion

3. Court's Findings and Conclusions

D. Defendant Ruder's Motion to Dismiss Plaintiffs' Complaint for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

1. Plaintiffs' Claims Against Defendant Ruder

2. Summary of Defendant Ruder's Arguments on His Motion

3. Court's Findings and Conclusions

E. Plaintiffs' Cross-Motion for Leave to Amend Their Complaint Pursuant to Fed. R. Civ. P. 15(a)(2)

1. Plaintiffs' Proposed Amended Claims

2. Parties' Arguments Regarding Plaintiffs' Cross-Motion

3. Procedural Posture of Plaintiffs' Proposed Amended Complaint

4. Court's Findings and Conclusions

I. RELEVANT BACKGROUND

Generally, Plaintiffs' Complaint, filed on March 15, 2010, asserts the following 13 claims against Defendants arising from Defendants' alleged treatment of Plaintiffs in response to Plaintiffs' attempt to subdivide certain tracts of land that Plaintiffs own on Silver Lake in the Adirondack State Park, and Plaintiffs' speech regarding environmental policies promulgated by Defendants, between approximately 2005 and 2009: (1) a claim against all Defendants for selective treatment in an APA enforcement proceeding, denial of due process and/or denial of equal protection under the law (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. §§ 1983, 1985); (2) a claim against all Defendants for unlawful search and seizure (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); (3) a claim against all Defendants for malicious prosecution of an APA enforcement proceeding (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); (4) a claim against all Defendants for malicious prosecution of an APA enforcement proceeding (in violation of state law); (5) a claim against all Defendants for abuse of process in an APA enforcement proceeding and criminal action (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); (6) a claim against all Defendants for abuse of process in an APA enforcement proceeding and criminal action (in violation of state law); (7) a claim against the APA Defendants for intentional/reckless supervisory misconduct (in violation of state law); (8) a claim against all Defendants for conspiracy (pursuant to 42 U.S.C. §§ 1983, 1985); (9) a claim against all Defendants for intentional/reckless infliction of emotional distress (in violation of state law); (10) a claim against all Defendants for prima facie tort (in violation of state law); (11) a claim against the APA Defendants for breach of contract (in violation of state law); (12) a claim against the APA Defendants for malicious prosecution of a criminal action (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); and (13) a claim against all Defendants for retaliation (in violation of the First Amendment, pursuant to 42 U.S.C. § 1983). (Dkt. No. 1.)

Because the parties have (in their memoranda of law) demonstrated an accurate understanding of the factual allegations giving rise to these claims in Plaintiffs' Complaint, the Court will not summarize those factual allegations in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court will reference those factual allegations only when necessary in Parts III.A. through III.D. of this Decision and Order.

Plaintiffs' proposed Amended Complaint reasserts the 13 claims asserted in their original Complaint, expands somewhat on the thirteenth claim, and asserts the following two new claims:

(1) a claim against the AC Defendants, Defendant Hawkeye and Defendant Ruder for tortious interference with contract (in violation of state law); and (2) a claim against all Defendants for failure to prevent a conspiracy and wrongful acts (pursuant to 42 U.S.C. §§ 1985, 1986). (Dkt. No. 56, Attach. 18-19.)Again, because the parties have (in their memoranda of law) demonstrated an accurate understanding of the proposed amendments to Plaintiffs' original Complaint, the Court will not summarize those proposed amendments in this Decision and Order, but will merely reference them when necessary in Part III.E. of this Decision and Order.

II. GOVERNING LEGAL STANDARDS

A. Motion to Dismiss for Failure to State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)

In their memoranda of law, the parties have demonstrated an accurate understanding of the legal standard governing a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (See, e.g., Dkt. No. 40, Attach. 1, at 24-25 [attaching pages "15" and "16" of APA Defs.' Memo. of Law]; Dkt. No. 42, Attach. 2, at 16 [attaching page "8" of AC Defs.' Memo. of Law]; Dkt. No. 52, Attach. 1, at 11 [attaching page "4" of Def. Ruder's Memo. of Law]; Dkt. No. 56, Attach. 3, at 13-15 [attaching pages "1" through "3" of Plfs.' Memo. of Law].) As a result, the Court will not repeat that standard in this Decision and Order, which (again) is intended primarily for the review of the parties.

Rather, the Court will add only a few words regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.*fn3

B. Motion to Dismiss for Lack of Subject-Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1)

In reviewing a motion to dismiss for lack of subject-matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), the court must accept as true all material factual allegations in the complaint. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). However, unlike the procedure when reviewing a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the procedure when reviewing a motion for lack of subject-matter jurisdiction does not involve "draw[ing] inferences from the complaint favorable to Plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004).*fn4 This is because, as explained more fully below, "when the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively [by the party asserting such jurisdiction], and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Similarly, unlike the procedure when reviewing a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the procedure when reviewing a motion to dismiss for lack of subject-matter jurisdiction permits the court to "consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issues." J.S. ex rel. N.S., 386 F.3d at 110. However, the court "may not rely on conclusory or hearsay statements contained in the affidavits." Id.

C. Motion to Disqualify Opposing Counsel

In their memoranda of law, the parties have demonstrated an accurate understanding of the legal standard governing a motion to disqualify opposing counsel pursuant to the New York Rules of Professional Conduct. (See, e.g., Dkt. No. 40, Attach. 1, at 65-68 [attaching pages "56" through "59" of APA Defs.' Memo. of Law]; Dkt. No. 56, Attach. 4, at 15-16 [attaching pages "49" and "50" of Plfs.' Memo. of Law].) As a result, the Court will not repeat that standard in this Decision and Order, which (again) is intended primarily for the review of the parties.

D. Motion to Amend Pursuant to Fed. R. Civ. P. 15(a)(2)

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that "[t]he court should freely give leave [to] amend when justice so requires." Fed. R. Civ. Proc. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3rd 1127, 1133 (2d Cir. 1993). Elaborating on this standard, the Supreme Court has explained as follows:

In the absence of any apparent or declared reason-- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-- the leave sought should . . . be 'freely given.'

Foman, 371 U.S. at 182, accord, Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) ("[Leave to amend] should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility.").

For example, with regard to the "undue delay" factor, the Second Circuit has held that "despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause." Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).

In addition, with regard to the "undue prejudice" factor, while as a general rule permission to amend a complaint should be freely given, "'the trial court [is] required to take into account any prejudice' that might result to the party opposing the amendment." Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (leave to amend denied where new claim concerned different period of time and different theory of recovery from original claim) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 [1971]). For example, in Ansam Assocs., the Second Circuit held that permitting Plaintiff to allege a "new set of operative facts" would have been "especially prejudicial [to the defendant] given the fact that discovery had already been completed and [defendant] had already filed a motion for summary judgment." Ansam Assocs., 760 F.2d at 446.

Finally, with regard to the "futility" factor, a court measures futility under the same standard as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Nettis v. Levitt, 241 F.2d 186, 194 n.4 (2d Cir 2001); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).

III. ANALYSIS

A. APA Defendants' Motion to Dismiss Plaintiffs' Claims Against Them for Failure to State a Claim and/or Lack of Subject-Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(b)(1), and/or to Disqualify Counsel Pursuant to the New York Rules of Professional Conduct

1. Plaintiffs' Claims Against APA Defendants

As stated above in Part I of this Decision and Order, Plaintiffs' Complaint asserts the following 13 claims against the APA Defendants: (1) a claim for selective enforcement, denial of equal protection, and/or denial of due process (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. §§ 1983, 1985); (2) a claim for unlawful search and seizure (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); (3) a claim for malicious prosecution of an APA enforcement proceeding (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); (4) a claim for malicious prosecution of an APA enforcement proceeding (in violation of state law); (5) a claim for abuse of process in an APA enforcement proceeding and criminal action (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); (6) a claim for abuse of process in an APA enforcement proceeding and criminal action (in violation of state law); (7) a claim for intentional/reckless supervisory misconduct (in violation of state law); (8) a claim for conspiracy (pursuant to 42 U.S.C. §§ 1983, 1985); (9) a claim for intentional/reckless infliction of emotional distress (in violation of state law); (10) a claim for prima facie tort (in violation of state law); (11) a claim for breach of contract (in violation of state law); (12) a claim for malicious prosecution of a criminal action (in violation of the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983); and (13) a claim for retaliation (in violation of the First Amendment, pursuant to 42 U.S.C. § 1983). (Dkt. No. 1.)

2. Summary of APA Defendants' Arguments on Their Motion

In support of their motion, the APA Defendants assert arguments based on the following 15 grounds: (1) the existence of sovereign immunity; (2) the existence of absolute immunity; (3) the absence of personal involvement; (4) the absence of subject-matter jurisdiction over Plaintiffs' due process and equal protection claims; (5) the absence of one or more elements of a due process claim; (6) the absence of one or more elements of an equal protection claim; (7) the absence of one or more elements of a retaliation claim; (8) the absence of one or more elements of a malicious-prosecution claim; (9) the absence of one or more elements of an abuse-of-process claim; (10) the absence of one or more elements of an unlawful-search-and-seizure claim; (11) the absence of one or more elements of a class-based conspiracy claim; (12) the existence of qualified immunity; (13) the discretion to dismiss Plaintiffs' state-law claims; (14) the absence of a "short and plain statement" of Plaintiffs' claims, pursuant to Fed. R. Civ. P. 8(a)(2); and (15) the existence of grounds for attorney disqualification. (Dkt. No. 40, Attach. 1 [APA Defs.' Memo. of Law].)

3. Court's Findings and Conclusions

a. Sovereign Immunity

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' damages claims against them in their official capacities are barred by the doctrine of sovereign immunity under the Eleventh Amendment. (Dkt. No. 40, Attach. 1, at 25-26 [attaching pages "16" and "17" of APA Defs.' Memo. of Law].) Generally, Plaintiffs oppose this argument on the following three grounds: (1) the APA Defendants have failed to meet their burden of showing that the APA is an arm of New York State of the type to be protected from suit in federal court by the Eleventh Amendment; (2) Plaintiffs' claims against the APA Defendants in their individual capacities are not barred by the Eleventh Amendment; and (3) Plaintiffs' claim for prospective injunctive relief is not barred by the Eleventh Amendment. (Dkt. No. 56, Attach. 3, at 19-30 [attaching pages "7" through "18" of Plfs.' Opp'n Memo. of Law].) Generally, in reply, the APA Defendants argue, inter alia, that Plaintiffs' first argument is contrary to (1) certain allegations in their Complaint, which can only be construed as plausibly suggesting that the APA is, in fact, a state agency, and (2) certain case law, issued by this District, finding that the APA is entitled to Eleventh Amendment immunity. (Dkt. No. 65, at 9-11 [attaching pages "5" through "7" of APA Defs.' Reply Memo. of Law].)

In addition, in the sovereign-immunity section of their memoranda of law, the APA Defendants argue that Plaintiffs' Section 1983 claims against the Adirondack Park Agency must be dismissed because that agency is not a "person" amenable to suit under Section 1983. (Dkt. No. 40, Attach. 1, at 25-26 [attaching pages "16" and "17" of APA Defs.' Memo. of Law].) In their memorandum of law, Plaintiffs do not appear to oppose this argument. (See generally Dkt. No. 56, Attach. 3, at 19-30 [attaching pages "7" through "18" of Plfs.' Opp'n Memo. of Law].)

After carefully considering the matter, the Court accepts the APA Defendants' arguments that Plaintiffs have pled themselves out of court with respect to their damages claims, which are barred by the relevant case law.*fn5 As a result, Plaintiffs' damages claims against the APA Defendants in their official capacities are dismissed. The Court notes that this dismissal is based on a lack of subject-matter jurisdiction (due to the doctrine on sovereign immunity).*fn6

Furthermore, after carefully considering the matter, the Court accepts the APA Defendants' argument that Plaintiffs' Section 1983 claims against the Adirondack Park Agency must be dismissed because that agency is not a "person" amenable to suit under Section 1983.*fn7

The Court notes that, because Plaintiffs failed to oppose this argument, the APA Defendants' burden with regard to it is lightened such that, in order to succeed on it, they need only show their entitlement to the relief requested with regard to it, which has appropriately been characterized as a "modest" burden. Dottolo v. Byrne Dairy, Inc., 08-CV-0390, 2010 WL 2560551, at *7, n.13 (N.D.N.Y. June 22, 2010) (Suddaby, J.) (collecting authorities). The Court finds that the APA Defendants have met that modest burden. The Court adds only that the Court would accept this argument even if it subjected it to the more rigorous scrutiny appropriate for a contested motion. As a result, Plaintiffs' Section 1983 claims against the Adirondack Park Agency are also dismissed.

b. Absolute Immunity

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' damages claims against them are barred by the doctrine of absolute immunity under 42 U.S.C. § 1983, because Defendants are either (1) judicial or quasi-judicial officials or (2) prosecutorial officials.(Dkt. No. 40, Attach. 1, at 26-28 [attaching pages "17" through "19" of APA Defs.' Memo. of Law].) Generally, Plaintiffs oppose this argument on the following two grounds: (1) Defendants Stiles, Wray and Banta are not entitled to absolute immunity because Plaintiffs' Complaint does not allege facts plausibly suggesting that those three Defendants were acting as judicial or quasi-judicial officials but as policymaker and supervisors; and (2) Defendants Van Cott, Miller and Rooks are not entitled to absolute immunity because Plaintiffs' Complaint does not allege facts plausibly suggesting that those three Defendants were acting as prosecutors but as administrators and investigators. (Dkt. No. 56, Attach. 3, at 30-36 [attaching pages "18" through "24" of Plfs.' Opp'n Memo. of Law].) Generally, in reply, the APA Defendants argue that (1) Plaintiffs' arguments are inconsistent with certain other arguments and admissions made by Plaintiffs in their opposition memorandum of law, and (2) Plaintiffs' claims against Defendants Stiles, Wray and Banta, premised on a late-blossoming respondeat-superior theory of liability, are barred by City of Canton v. Harris, 489 U.S. 378 (1989), due those Defendants' lack of personal involvement in the alleged civil rights violations. (Dkt. No. 65, at 11-12 [attaching pages "7" and "8" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court agrees with the APA Defendants (for the reasons stated in their memoranda of law) that certain of Plaintiffs' claims against the APA Defendants should be dismissed on the ground of absolute immunity; and the Court agrees with Plaintiffs (for the reasons stated in their memorandum of law) that certain of Plaintiffs' claims against the APA Defendants should survive the APA Defendants' absolute-immunity argument.

More specifically, the Court reaches the following three conclusions. First, it is true that the bulk of Plaintiffs' claims against Defendants Stiles, Wray and Banta appear premised on conduct taken by them in a supervisory role. (See, e.g., Dkt. No. 1, at ¶¶ 19, 21, 23, 156, 178-79, 181, 211-12, 228, 229, 250-51, 261-62, 284-85, 307-08, 315, 352-53.) However, certain of Plaintiffs' claims against Defendants Stiles and Wray appear premised on conduct taken by them in a quasi-judicial, if not judicial, role (e.g., denying a motion to dismiss Administrative Enforcement Proceeding No. E2007-047, ordering an administrative hearing be conducted, and rendering a decision in that administrative proceeding, etc). (Dkt. No. 1, at ¶¶ 129, 190.)*fn8 As a result, Plaintiffs' claims against Defendants Stiles and Wray are dismissed to the extent they arise from the factual allegations asserted in Paragraphs 129 and 190 of Plaintiffs' Complaint.*fn9

Second, it is true that some of Plaintiffs' claims against the APA Defendants (presumably Defendants Von Cott, Miller and Rooks) appear premised on conduct taken by them in an investigatory role. (See, e.g., Dkt. No. 1, at ¶¶ 77, 156, 162-63, 235, 242, 258, 260, 267-69, 290-92, 312.) However, other of those claims appear premised on conduct taken by various of them in a prosecutorial role. (See, e.g., Dkt. No. 1, at ¶¶ 77, 107-08, 132, 136, 143, 148-50, 152-55, 164-65, 168, 174, 197, 206, 217, 220, 223-24, 234-37, 240, 240-43, 255-60, 266, 274, 289, 297, 319-20, 347, 349-51, 359.) Of particular concern to the Court are Plaintiffs' claims against Defendants Van Cott and Banta arising from their prosecution (and/or their supervision of the prosecution) of Administrative Enforcement Proceeding No. E2007-047, which the Court finds to be barred by the doctrine of absolute immunity. (See, e.g., Dkt. No. 1, at ¶¶ 99, 100, 103, 111, 115, 183, 198, 199.)*fn10 As a result, Plaintiffs' claims against Defendants Van Cott and Banta are dismissed to the extent they are arise from their prosecution of Administrative Enforcement Proceeding No. E2007-047, as referenced in Paragraphs 99, 100, 103, 111, 115, 183, 198 and 199 of Plaintiffs' Complaint.*fn11

Third, under the circumstances, the remainder of APA Defendants' absolute-immunity argument is more appropriate for a motion for summary judgment (filed after the record has been better developed) than on a motion to dismiss. (The Court notes that it addresses the APA Defendants' respondeat-superior argument below in Part III.A.3.c. of this Decision and Order.)

c. Personal Involvement

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to allege facts plausibly suggesting that Defendants APA, Banta, Stiles, and Wray (all supervisors) were personally involved in the alleged civil rights violations. (Dkt. No. 40, Attach. 1, at 28-30 [attaching pages "19" through "21" of APA Defs.' Memo. of Law].) Generally, Plaintiffs oppose this argument on the ground that they have alleged facts plausibly suggesting that (1) the four Defendants in question participated directly in the alleged civil rights violations and/or (2) they knew of, but failed to remedy, the violations by report or appeal. (Dkt. No. 56, Attach. 3, at 4-6 [attaching pages "38" through "40" of Plfs.' Opp'n Memo. of Law].) Generally, in reply, the APA Defendants argue that Plaintiffs have failed to allege facts plausibly suggesting that any of the four Defendants in question create a policy or custom under which the unconstitutional practices occurred, or allowed the continuation of such a policy or custom. (Dkt. No. 65, at 21-22 [attaching pages "17" and "18" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court agrees with the APA Defendants (for the reasons stated in their memoranda of law) that certain of Plaintiffs' claims against the APA Defendants should be dismissed on the ground of lack of personal involvement, and the Court agrees with Plaintiffs (for the reasons stated in their memorandum of law) that certain of Plaintiffs' claims against the APA Defendants should survive the APA Defendants' lack-of-personal-involvement argument.

More specifically, the Court reaches the following two conclusions. First, any claims against the four APA Defendants in question (i.e., Defendants APA, Banta, Stiles, and Wray) arising from the factual allegations asserted in Paragraph 156 of Plaintiffs' Complaint are dismissed based on those Defendants' lack of personal involvement in the alleged civil rights violations. In addition to reaching this conclusion for the reasons offered by the APA Defendants, the Court reaches this conclusion because this paragraph of the Complaint does not allege facts plausibly suggesting (1) direct participation in the alleged civil rights violations, (2) gross negligence in the supervision of subordinates, or (3) the existence of an unconstitutional policy or custom.*fn12 As a result, these claims are dismissed.

Second, any claims against the four APA Defendants in question (i.e., Defendants APA, Banta, Stiles, and Wray) arising from the other factual allegations of Plaintiffs' Complaint (including those asserted in Paragraphs 178 through 181 of the Complaint) survive the APA Defendants' lack-of-personal-involvement argument for the reasons stated by Plaintiffs in their opposition memorandum of law.

d. Subject-Matter Jurisdiction

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs have failed to establish that the Court has subject-matter jurisdiction over Plaintiffs' unripe due process and equal protection claims against the APA Defendants, which remain under the exclusive jurisdiction of an administrative law judge (along with that judge's jurisdiction over Administrative Enforcement Proceeding No. E2007-047). (Dkt. No. 40, Attach. 1, at 30-32 [attaching pages "21" through "23" of APA Defs.' Memo. of Law].) Generally, Plaintiffs' opposition papers do not appear to specifically address Defendants' subject-matter jurisdiction argument; however, liberally construed those papers argue that, while the resolution of Administrative Enforcement Proceeding No. E2005-200 is being overseen by an administrative law judge at the New York State Department of Environmental Conservation, Administrative Enforcement Proceeding No. E2007-047 (which gives rise to the essence of this action) has been discontinued with prejudice. (Dkt. No. 56, Attach. 3, at 45-47 [attaching pages "33" through "35" of Plfs.' Opp'n Memo. of Law]; Dkt. No. 74, at ¶¶ 6-14 [Plfs.' Suppl. Opp'n to Motion to Disqualify]; Dkt. No. 82, Attach. 1 [Ltr. from ALJ].) Generally, in their reply, the APA Defendants do not appear to address the point made by Plaintiffs, nor does it appear to further assert their subject-matter jurisdiction argument. (See generally Dkt. No. 65 [APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court rejects the APA Defendants' subject-matter jurisdiction argument for the reasons stated by Plaintiffs' in their opposition papers. However, because subject-matter jurisdiction issues can be raised at any time pursuant to Fed. R. Civ. P. 12(h)(3), and because this issue is likely to be better presented on a more fully developed record (i.e., on a motion for summary judgment), the Court denies this part of Defendants' motion only without prejudice.

e. Due Process Claims

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to allege facts plausibly suggesting (a) a due process claim against them to the extent that it is duplicative of a claim under the First or Fourth Amendments, (b) the elements of a substantive due process claim against them, or (c) the elements of a procedural due process claim against them. (Dkt. No. 40, Attach. 1, at 32-41 [attaching pages "23" through "32" of APA Defs.' Memo. of Law].) Generally, Plaintiffs oppose this argument on the ground that they have alleged facts plausibly suggesting a substantive due process claim against the APA Defendants. (Dkt. No. 56, Attach. 3, at 39-42 [attaching pages "27" through "30" of Plfs.' Opp'n Memo. of Law].) Generally, in reply, the APA Defendants argue that (1) Plaintiffs have failed to respond to their argument regarding a procedural due process claim, and (2) Plaintiffs have failed to state a substantive due process claim, because they have alleged neither that they were deprived of a fundamental constitutional right, or that there was governmental action that was arbitrary, outrageous or conscience-shocking. (Dkt. No. 65, at 15-18 [attaching pages "11" through "14" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court agrees with the APA Defendants (for the reasons stated in their memoranda of law) that certain of Plaintiffs' due process claims against the APA Defendants should be dismissed, and the Court agrees with Plaintiffs (for the reasons stated in their memorandum of law) that other of Plaintiffs' due claims against the APA Defendants should survive the APA Defendants' due process argument.

More specifically, the Court reaches the following three conclusions. First, Plaintiffs' due process claims against the APA Defendants are dismissed to the extent that they are premised on acts of retaliation and/or unlawful search and seizure, which are more properly asserted in claims arising under the First and/or Fourth Amendments.*fn13

Second, Plaintiffs' procedural due process claims against the APA Defendants are dismissed in their entirety on the ground that Plaintiffs' Complaint fails to allege facts plausibly suggesting the elements of a procedural due process claim against them. The Court notes that, because Plaintiffs fail to respond to this argument in their opposition memorandum of law, the APA Defendants' burden with regard to the argument is "modest." Dottolo, 2010 WL 2560551, at *7, n.13. The Court finds that the APA Defendants have met that modest burden. The Court adds only that the Court would accept this argument even if it subjected it to the more rigorous scrutiny appropriate for a contested motion.

Third, Plaintiffs' substantive due process claims against the APA Defendants survive the APA Defendants' argument that those claims should be dismissed in their entirety on the ground that Plaintiffs' Complaint fails to allege facts plausibly suggesting the elements of a substantive due process claim against them.

Here, Plaintiffs argue that the right in question was a fundamental one, under the Constitution, for the following three reasons: (1) it encompasses their right to use and enjoy their property; (2) it encompasses their right to privacy and freedom from illegal searches; and (3) it encompasses their right to have the APA's comply with its prior settlement agreement with Plaintiffs.

With regard to Plaintiffs' first reason, it is true that various courts have, on occasion, characterized the right to use and enjoy one's property for lawful purposes as a "fundamental" one under the Constitution.*fn14 However, generally, one does not possess a substantive due process right to use or enjoy one's property, especially in a manner wholly unfettered by any regulatory restriction.*fn15 For this reason, the Court rejects Plaintiffs' argument that their right to use and enjoy their property, in and of itself, constitutes a fundamental one for purposes of their substantive due process claim.

With regard to Plaintiffs' second reason, as the Court explained above, Plaintiffs' right to privacy is more properly asserted in his claim arising under the Fourth Amendment. For this reason, the Court rejects Plaintiffs' argument that their right to privacy renders their property right in question a fundamental one under the Constitution.

However, with regard to Plaintiffs' third reason, the Court finds that Plaintiffs' right to have the APA's comply with its prior settlement agreement with Plaintiffs does appear to render their property right in question a fundamental one under the Constitution. In particular, the Court is persuaded by the fact that not only have Plaintiffs attached to their Complaint a fully executed copy of the settlement agreement, but they have alleged facts plausibly suggesting that they substantially relied on the settlement agreement to their detriment (e.g., giving up their defense of Administrative Enforcement Proceeding No. E2005-200, performing remediation work on their property, and ceasing such work upon the instruction of one of the APA's agents). (See, e.g., Dkt. No. 1, at ¶¶ 84-98 & Ex. B.) While the Court has been unable to find a case specifically involving a settlement agreement regarding the building of roads on land, it has found a case involving a settlement agreement regarding, inter alia, the development (through the grading) of land. See Deninno v. Davidson, 10-CV-0280, 2012 WL 1448312, at *1-2, 6, 9 (W.D. Pa. Apr. 26, 2012) ("In the case at issue, DeNinno's substantive due process claim alleges that Defendants arbitrarily interfered with his occupancy of land and his intended use of the property to sell aggregate pursuant to a mercantile license, even after entering into the 2007 Settlement Agreement specifically permitting him to do so. The Court is satisfied that DeNinno's ownership and use of his property are interests implicated and protected by substantive due process.").*fn16

Cases to finding no fundamental property right in circumstances involving settlement agreements appear distinguishable. See, e.g., Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085-86 (10th Cir. 2006) (holding that property owner's prior settlement agreement with Bureau of Land Management did not give him substantive right, as required for protected property interest under Due Process Clause of Fifth Amendment, because agreement gave him right to procedure only) (emphasis added); Bench Billboard Co. v. City of Cincinnati, 07-CV-0589, 2008 WL 2220625, at *10 (S.D. Ohio May 28, 2008) ("Bench Billboard has not adequately alleged the deprivation of a fundamental right in this matter. It has not cited any legal authority for the proposition that a special street license granted as part of the settlement of a lawsuit against a municipality is a right that is either deeply rooted in the Nation's history nor implicit in the concept of ordered liberty.").*fn17

Finally, the Court finds that Plaintiffs have alleged facts plausibly suggesting that there was governmental action that was arbitrary, outrageous or conscience-shocking, for the reasons offered in Plaintiffs' opposition memorandum of law. (Dkt. No. 56, Attach. 3, at 39-42 [attaching pages "27" through "30" of Plfs.' Opp'n Memo. of Law].)

As a result, Plaintiffs' procedural process claims against the APA Defendants are dismissed; Plaintiffs' substantive due process claims against the APA Defendants are dismissed to the extent that they are premised on acts of retaliation and/or unlawful search and seizure; and the remainder of Plaintiffs' substantive due process claims against the APA Defendants survives this aspect of the APA Defendants' motion to dismiss.

f. Equal Protection Claim

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to allege facts plausibly suggesting the elements of either (1) a selective-enforcement equal protection claim against them or (2) a class-of-one equal protection claim against them. (Dkt. No. 40, Attach. 1, at 41-47 [attaching pages "32" and "38" of APA Defs.' Memo. of Law].) More specifically, the APA Defendants argue that the first claim is defective because it is unsupported by factual allegations plausibly suggesting that (a) Plaintiffs were selectively treated, compared with others similarly situated, or (b) any such selective treatment was based on a malicious intent to injure Plaintiffs. (Id.) Moreover, the APA Defendants argue that the second claim is defective because it is unsupported by factual allegations plausibly suggesting (a) the identity, or even the existence, of anyone similarly situated, or (2) a lack of a rational basis for the enforcement decision. (Id.) Generally, in response, Plaintiffs largely if not entirely abandon their selective-enforcement equal protection claim and focus on their class-of-one equal protection claim, arguing that they have stated the latter claim because they have alleged that they were treated differently from others similarly situated based on a malicious intent to punish and harass them. (Dkt. No. 56, Attach. 3, at 37-39 [attaching pages "25" and "27" of Plfs.' Opp'n Memo. of Law].) Generally, in reply, the APA Defendants argue that Plaintiffs have failed to state a class-of-one equal protection claim for the reasons offered in their initial memorandum of law, and because of the clarified pleading standard set forth by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). (Dkt. No. 65, at 13-15 [attaching pages "9" and "11" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court accepts the APA Defendants' argument regarding a difference in treatment from others similarly situated for the reasons stated in their memoranda of law. The Court adds one point. Because Plaintiffs fail to sufficiently respond to the APA Defendants' selective-enforcement argument, the APA Defendants' burden with regard to the argument is modest; while the APA Defendants have met that modest burden with regard to that argument, the Court would accept that argument even if it were to subject that argument to the more rigorous scrutiny appropriate for a contested motion.

g. Retaliation Claim

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to state a retaliation claim because it fails to allege facts plausibly suggesting (1) that Plaintiffs engaged in speech protected by the First Amendment before being subjected to the APA Defendants' actions, (2) the APA Defendants' actions were sufficiently serious to chill Plaintiffs' speech for purposes of the First Amendment, and (3) any such adverse action was taken because of Plaintiffs' protected speech, as opposed to being taken for some other, legitimate reason. (Dkt. No. 40, Attach. 1, at 47-49 [attaching pages "38" and "40" of APA Defs.' Memo. of Law].) Plaintiffs' opposition memorandum of law appears devoid of any response to this argument. (Dkt. No. 56, Attach. 3-4 [Plfs.' Opp'n Memo. of Law].) Generally, in reply, the APA Defendants argue that, by failing to respond to this argument, Plaintiffs' have effectively abandoned their retaliation claim. (Dkt. No. 65, at 6-7 [attaching pages "2" and "3" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court finds that this claim should be dismissed for the reasons offered by the APA Defendants in their memoranda of law. The Court adds one point. Because Plaintiffs fail to sufficiently respond to the APA Defendants' argument, the APA Defendants' burden with regard to the argument is modest; again, while the APA Defendants have met that modest burden with regard to that argument, the Court would accept that argument even if it were to subject that argument to the more rigorous scrutiny appropriate for a contested motion for the reasons stated in the APA Defendants' memoranda of law.

h. Malicious-Prosecution Claim

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to allege facts plausibly suggesting the elements of a malicious-prosecution claim against them for the following two reasons: (1) Administrative Enforcement Proceeding No. E2007-047 was not criminal in nature (implicating any rights secured by Plaintiffs under the Fourth Amendment), nor was it terminated on its merits in terms that exonerated Plaintiffs (but rather it was settled with the assistance of a DEC Administrative Law Judge); and (2) the criminal complaint lodged against Plaintiff Douglas by APA Enforcement Officer Miller on September 7, 2007 (charging them with Harassment in the Second Degree), was not "initiated" by Defendants, nor was it terminated on its merits in terms that exonerated Plaintiffs (but rather it was adjourned in contemplation of dismissal pursuant to N.Y. C.P.L. § 170.55, and ultimately dismissed). (Dkt. No. 40, Attach. 1, at 50-54 [attaching pages "41" through "45" of APA Defs.' Memo. of Law].)

Generally, in response, Plaintiffs oppose the APA Defendants' first argument (regarding Administrative Enforcement Proceeding No. E2007-047) by arguing that (1) the administrative enforcement proceeding need not be criminal in nature if it caused the plaintiff to sustain special damages or injury, (2) Plaintiffs have alleged facts plausibly suggesting that they sustained such special damages or injury, and (3) Plaintiffs have also sufficiently alleged that the proceeding was terminated in their favor, and that it was initiated by the APA Defendants with malice and without probable cause. (Dkt. No. 56, Attach. 3, at 42-46, and Attach. 4, at 1 [attaching pages "30" through "35" of Plfs.' Opp'n Memo. of Law].) However, Plaintiffs do not appear to address the APA Defendants' second argument (regarding the criminal complaint lodged against Plaintiff Douglas). (Id.)

Generally, in reply, the APA Defendants assert five arguments: (1) the state court decisions cited by Plaintiffs do not salvage their federal malicious prosecution claims arising from Administrative Enforcement Proceeding No. E2007-047; (2) in any event, those claims should be dismissed because the administrative enforcement proceeding was based on probable cause (according to Plaintiffs' own factual allegations) and it was not pursued with the requisite malice; (3) turning to Plaintiffs' malicious prosecution claims arising from the criminal complaint lodged against Plaintiff Douglas, by failing to respond to the APA Defendants' arguments for the dismissal of those claims, Plaintiffs' have effectively abandoned those claims; (4) in any event, to the extent those claims arise under state law, they should be dismissed with prejudice because they are barred by a one-year statute of limitations; and (5) finally, in the event that all of Plaintiffs' federal claims of malicious prosecution are dismissed, the Court should decline to exercise jurisdiction over Plaintiffs' state-law claims of malicious prosecution. (Dkt. No. 65, at 18-19 [attaching pages "14" and "15" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court dismisses Plaintiffs' malicious prosecution claims arising from the criminal complaint lodged against Plaintiff Douglas by APA Enforcement Officer Miller on September 7, 2007 (charging them with Harassment in the Second Degree). While the Court is not persuaded by the APA Defendants' argument that the criminal complaint lodged against Plaintiff Douglas was not "initiated" by Defendants, the Court accepts the APA Defendants' argument that Plaintiffs have alleged facts plausibly suggesting that the criminal action was not terminated in Plaintiff Douglas' favor, for the reasons offered by the APA Defendants. The Court adds two points. First, because Plaintiffs fail to sufficiently respond to the APA Defendants' arguments in favor of the dismissal of these claims, the APA Defendants' burden with regard to those arguments is modest; again, while the APA Defendants have met that modest burden with regard to their termination-not-in-Plaintiffs'-favor argument, they have not done so with regard to their initiation-of-prosecution argument. Second, even though the APA Defendants' termination-not-in-Plaintiffs'-favor argument depends on a document not attached to Plaintiffs' Complaint (i.e., an Order of Adjournment in Contemplation of Dismissal), that document may be considered by the Court on the APA Defendants' motion to dismiss for failure to state a claim, because the Court can take judicial notice of that judicial order, the accuracy of which Plaintiffs have not disputed. See, supra, Part II.A. of this Decision and Order.*fn18

However, with regard to Plaintiffs' malicious prosecution claims arising from Administrative Enforcement Proceeding No. E2007-047, the Court agrees with Plaintiffs that those claims should not be dismissed for failure to state claim, for the reasons offered by Plaintiffs. The Court adds two points. First, the APA Defendants' termination-not-in-Plaintiffs' favor argument depends on documents that the Court cannot consider on the APA Defendants' motion to dismiss for failure to state a claim: the documents are not attached to Plaintiffs' Complaint, incorporated by reference in that Complaint, or integral to that Complaint. See, supra, Part II.A. of this Decision and Order.*fn19 Second, the issue of whether to dismiss these claims based on a lack of sufficient evidence shall be addressed on a motion for summary judgment, should the APA Defendants choose to file one.

i. Abuse-of-Process Claim

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to allege facts plausibly suggesting an abuse-of-process claim against them for the following two reasons: (1) with regard to Plaintiffs' abuse-of-process claims arising from Administrative Enforcement Proceeding No. E2007-047, the opening of an administrative enforcement proceeding is not the "issuance of legal process," the abuse of civil process may not give rise to an abuse-of-process claim under Section 1983, and/or the existence of probable cause (based on Plaintiffs' own factual allegations) precludes a finding that the APA Defendants used process in order to obtain a collateral objective that is outside the legitimate ends of the process; and (2) with regard to Plaintiffs' abuse-of-process claims arising from the criminal complaint lodged against Plaintiff Douglas by APA Enforcement Officer Miller on September 7, 2007 (charging them with Harassment in the Second Degree), those claims are not supported by any factual allegation that Miller acted with sufficient ulterior motive, or played a sufficient role in the post-initiation phase of the criminal proceeding, for him to have acted to obtain a collateral objective that is outside the legitimate ends of the process. (Dkt. No. 40, Attach. 1, at 55-58 [attaching pages "46" through "49" of APA Defs.' Memo. of Law].)

Generally, Plaintiffs oppose this argument on the ground that, with regard to all of their abuse-of-process claims, Plaintiffs have alleged (for example, in Paragraph 276 of their Complaint) facts plausibly suggesting that, when the APA Defendants employed the regularly issued processes in question, they intended to harm Plaintiffs without excuse or justification, and they used the processes in a perverted manner to obtain a collateral objective that is outside the legitimate ends of the processes. (Dkt. No. 56, Attach. 4, at 1-4 [attaching pages "35" through "38" of Plfs.' Opp'n Memo. of Law].)

Generally, in reply, the APA Defendants assert the following four arguments: (1) it is unclear whether Plaintiffs' oppose the APA Defendants' request for dismissal of the abuse-of-process claims arising from the criminal complaint; (2) Plaintiffs ignore the APA Defendants' argument that Plaintiffs have failed to allege facts plausibly suggesting that APA Enforcement Officer Miller played a sufficient role in the criminal proceeding, after it was initiated, for him to have acted to obtain a collateral objective that is outside the legitimate ends of the process; (3) in any event, to the extent those claims regarding the criminal charges arise under state law, they should be dismissed with prejudice because they are barred by a one-year statute of limitations; (4) with regard to Plaintiffs' abuse-of-process claims arising from the Administrative Enforcement Proceeding No. E2007-047, Plaintiffs ignore the APA Defendants' previously asserted argument that the opening of an administrative enforcement proceeding is not the "issuance of legal process," and in any event the abuse of civil process may not give rise to a claim of abuse-of-process claim under Section 1983. (Dkt. No. 65, at 19-20 [attaching pages "15" and "16" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court agrees with the APA Defendants that Plaintiffs' federal abuse-of-process claims arising from Administrative Enforcement Proceeding No. E2007-047 must be dismissed, because the abuse of civil process may not give rise to a claim of abuse-of-process claim under Section 1983, for the reasons stated by the APA Defendants in their memoranda of law. The Court adds one point. Because Plaintiffs fail to sufficiently respond to the APA Defendants' civil process argument, the APA Defendants' burden with regard to the argument is modest; again, while the APA Defendants have met that modest burden with regard to that argument, the Court would accept that argument even if it were to subject that argument to the more rigorous scrutiny appropriate for a contested motion.

However, with regard to Plaintiffs' abuse-of-process claims arising from their criminal prosecution, the Court agrees with Plaintiffs that those claims should not be dismissed for failure to state claim, for the reasons offered by Plaintiffs. The Court adds two points. First, the APA Defendants too narrowly construe Plaintiffs' claim as arising only from the initiation of the criminal Complaint, when it fact the claim arises also from the "subsequent pursuit of the criminal action against [Plaintiff] Douglas." (Dkt. No. 1, at ¶¶ 278, 301.) For example, not only do Plaintiffs allege that the APA Defendants instructed Miller to file the criminal charges, Plaintiffs allege that the APA Defendants "facilitated [the] criminal action," and "controlled and pursued the criminal proceeding." (See, e.g., id. at ¶¶ 178, 179, 182.)*fn20 Second, liberally construed,*fn21

Plaintiffs' Complaint does allege facts plausibly suggesting that the APA Defendants acted in order to obtain a collateral objective that is outside the legitimate ends of the process. (Id. at ¶¶ 182, 278 [alleging that the collateral objective was "to intimidate plaintiffs, cover-up Miller's trespassing on the Premises, and to force plaintiffs to acquiesce and admit guilt in the ongoing AP A administrative enforcement"].) Cf. Norton v. Town of Islip, 04-CV-3079, 2009 WL 804702, at *6, 11 (E.D.N.Y. March 27, 2009) ("Plaintiff could have stated a claim for malicious abuse of process [based on his allegation that the Town's collateral objective in bringing a criminal enforcement action was (1) to have the criminal court assist in the Town's unlawful deprivation of the Plaintiff's property right without due process of law, and/or (2) to provoke Plaintiff, through settlement of the criminal prosecution, to submit to a de novo review before the Town Zoning Board of Appeals in order to shift to Plaintiff the burden of proving the legitimacy of his Premises' non-conforming status]."), rev'd on other grounds, 378 F. App'x 85 (2d Cir. 2010).

j. Unlawful-Search-and-Seizure Claims

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to state an unlawful-search-and-seizure claim against them for the following four reasons: (1) with regard to the unlawful-search claim asserted by Plaintiffs, Plaintiffs had no reasonable expectation of privacy under the circumstances because "[i]t is undisputed" that (a) the property had no structures or fencing on it, and was in open view of a public road, (b) the search was the result of an allegation of a wetland violation, during a pending enforcement proceeding regarding another alleged wetland violation, (c) APA Enforcement Officer Miller and APA Biologist Rooks advised the APA Defendants' lawyer of the search before it occurred, (d) Plaintiff Douglas himself escorted Rooks onto the property after excluding Miller from the property; (2) in any event, the APA Defendants are protected from liability on that unlawful-search claim as a matter of law by the doctrine of qualified immunity, based on Plaintiffs' own factual allegations; (3) with regard to any wrongful-seizure claim asserted by Plaintiffs, Plaintiffs fail to allege facts plausibly suggesting that they were "seized" or subjected to excessive force during the search that occurred on September 6, 2007; and (4) to the extent that Plaintiffs' unlawful-search-and-seizure claims are premised on the Sixth and Eighth Amendments, they should be dismissed because those constitutional amendments do not support such claims. (Dkt. No. 40, Attach. 1, at 58-60 [attaching pages "49" through "51" of APA Defs.' Memo. of Law].)

Liberally construed, Plaintiffs' opposition memorandum of law responds to the APA Defendants' arguments on the ground that Plaintiffs did have a reasonable expectation of privacy under the circumstances, because (1) Plaintiffs did not give APA Enforcement Officer Miller prior permission to enter Plaintiffs' land, (2) Plaintiffs did not know about the alleged complaint of a wetland violation in question (which was ex parte), and (3) the enforcement proceeding in question regarded different alleged wetland violations, and in any event was wrongful. (Dkt. No. 56, Attach. 3, at 39-42 [attaching pages "27" through "30" of Plfs.' Opp'n Memo. of Law].)

Generally, in reply, the APA Defendants argue that (1) by failing to respond to the APA Defendants' arguments regarding Plaintiffs' search-and-seizure claims, Plaintiffs' have effectively abandoned their search-and-seizure claims, and (2) in any event, to the extent those claims arise under state law, they should be dismissed with prejudice because they are barred by a one-year statute of limitations. (Dkt. No. 65, at 21 [attaching page "17" of APA Defs.' Reply Memo. of Law].)

After carefully considering the matter, the Court accepts the APA Defendants' argument that Plaintiffs' wrongful-seizure claim against them should be dismissed for failure to state a claim. The Court adds one point. Because Plaintiffs fail to sufficiently respond to this argument, the APA Defendants' burden with regard to the argument is modest; again, while the APA Defendants have met that modest burden with regard to that argument, the Court would accept that argument even if it were to subject that argument to the more rigorous scrutiny appropriate for a contested motion.

However, with regard to Plaintiffs' unlawful-search claim, the Court agrees with Plaintiffs that this claim should not be dismissed for failure to state claim, for the reasons offered by Plaintiffs. The Court adds three points. First, liberally construed, Plaintiffs' Complaint does allege facts plausibly suggesting that (1) the search occurred without their prior permission, (2) they were not notified of the complaint by a neighboring environmentalist (which turned out to be unfounded), and (3) the then-pending enforcement proceeding regarded a different alleged wetland violation (and in any event was wrongful). (See, e.g., Dkt. No. 1, at ¶¶ 175-77, 182, 183, 208, 218, 219, 225, 226, 242, 249, 260, 272, 319, 320.) Moreover, contrary to Defendants' argument, Plaintiffs' Complaint does not appear to allege that (1) the property had no structures or fencing on it, and was in open view of a public road, or (2) APA Enforcement Officer Miller and APA Biologist Rooks advised the APA Defendants' lawyer of the search before it occurred. (See generally Dkt. No. 1.) Indeed, to the contrary, one of the documents attached to the Complaint expressly states that Miller only "attempted" to contact Plaintiff Douglas and his attorney. (Dkt. No. 1, Attach. 4, at 2 [attaching Miller Affid., stating, "Prior to leaving Agency headquarters for the subject property, I attempted to contact Mr. Douglas and his attorney by telephone to advise them of the complaint and to see if someone could meet us at the subject property."].)

Second, the Second Circuit case cited by the APA Defendants appears distinguishable because (1) it involved an inspection of a dock that was open to public view, (2) the property was specifically subject to a permit, and in any event (3) the inspection was in response to the plaintiff's own application to extend the dock. Palmieri v. Lynch, 392 F.3d 73, 75-76, 82-85 (2d Cir. 2004). This third fact played a significant role in the Second Circuit's reasoning.*fn22 It should be noted that the Second Circuit did not hold in Palmieri that any warrantless visit to premises under any environmental regime is permissible, but merely that an environmental regulatory scheme involving warrantless searches may be subject to a special-needs "fact-specific balancing" test. Palmieri, 392 F.3d at 86. Here, that fact-specific analysis is appropriately decided on a motion for summary judgment, not a motion to dismiss for failure to state a claim.

Third, and finally, Plaintiffs have not pled facts plausibly suggesting that the APA Defendants are protected from liability as a matter of law by the doctrine of qualified immunity. See, infra, Part III.A.3.l. of this Decision and Order.

k. Class-Based Conspiracy Claim

As indicated above in Part III.A.2. of this Decision and Order, in support of their motion, the APA Defendants argue, inter alia, that Plaintiffs' Complaint fails to allege facts plausibly suggesting a class-based conspiracy claim against them pursuant to 42 U.S.C. § 1985(3), because the Complaint alleges only animus based on Plaintiffs' political affiliation (as opposed to their race or other protected classification). (Dkt. No. 40, Attach. 1, at 61-63 [attaching pages "52" through "54" of APA Defs.' Memo. of Law].) In the alternative, the APA Defendants request that Paragraphs 75 and 76 of the Complaint be struck, pursuant to Fed. R. Civ. P. 12(f)(2), due to their use of "derogatory terms unbefitting a pleading prepared by an officer of this Court." (Id. at 62.) Generally, Plaintiffs respond by arguing, conclusorily, that they have alleged facts plausibly suggesting that the APA Defendants conspired with the AC Defendants, Defendant Ruder, and Defendant Hawkeye Conservationists, Inc., for purposes of 42 U.S.C. § 1985. (Dkt. No. 56, Attach. 4, at 14 [attaching page "48" of Plfs.' Opp'n Memo. of Law].) ...


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