United States District Court, S.D. New York
OPINION & ORDER
KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
Ilka Rios, Alison Bush, Joyce Culler, Pamela
Stewart-Martinez, Winifred Coulton, Sharan Fernandez,
Charlene Price, Roxanne Delgado, James Graham, Patricia
Jones, Marjorie Vanhook, Phillip Lindsay, Mark A. Lindsay,
Tosha Iraldo, Linda Arnold, Stephanie Pryor, Anselmo
Ballantine, and Yvonne White (collectively,
"Plaintiffs")--on behalf of themselves and all
other persons who reside in Bronx County, New York-bring this
action under 42 U.S.C. § 1983, and the Racketeer
Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961, against Stanley K. Schlein, Ruben
Diaz, Jr., Jeffrey Dinowitz, Michael R. Benedetto, Carl E.
Heastie, Aurelia Greene, Annabel Palma, Marcos A. Crespo,
Vanessa L. Gibson, Marissa Soto, Anthony Perez, Venancio
Catala, John Zacarro, Angel Gaud, Yves Filias, Leila
Martinez, Yudelka Tapia, Unidentified Co-Conspirators 1 to
100, and as necessary parties, the Board of Elections in the
City of New York and the New York State Board of Elections
allege that Defendants violated their constitutional rights
to free speech and substantive due process by controlling the
Bronx Democratic County Committee and the Committee's
nomination of candidates for local elections.
the Court is an unopposed Motion to Dismiss the Second
Amended Complaint filed by Defendant Board of Elections for
the City of New York (the "BOE") [Dkt. Nos. 56-57].
For the reasons set forth below, Defendant's motion is
Background and Procedural History
their Second Amended Complaint ("SAC") [Dkt. No.
50], Plaintiffs allege that Defendants have disenfranchised
Bronx voters by appointing themselves or a chosen group to
serve as Members of the Bronx Democratic County Committee
("BDCC"). (SAC ¶ 1). Plaintiffs allege that
the individual Defendants are current and former members of
the BDCC. E.g., Id. ¶¶ 26-37. The BDCC
endorses candidates for every Bronx election, appoints
vacancies, and selects delegates to choose judges-thereby
controlling much of the Bronx Democratic Party. Id.
¶¶ 5-6, 59, 71-73.
maintained this scheme, Plaintiffs claim, by fraudulently
altering the petitions used to select candidates to be BDCC
Members ("designating petitions"). Id.
¶¶ 2-3, 52. Plaintiffs assert that Defendants
back-dated voters' signatures, misappropriated the
identities of Bronx residents-some deceased-as faux
candidates for the BDCC, forged candidate petitions, tampered
with evidence, and suborned perjury. Id.
¶¶ 51-55. This prevented Plaintiffs and other Bronx
residents from voting for their candidates of choice.
Id. ¶¶ 115-16. The SAC alleges this
occurred in the Bronx elections in 2014 and 2016.
Id. ¶ 83.
filed a First Amended Complaint and a Motion for Preliminary
Injunction on August 22, 2016, asking the Court to enjoin the
Bronx County local elections then-scheduled for September 13,
2016. On September 6, 2016, the Court held a Preliminary
Injunction hearing, denied the Motion, and granted Plaintiffs
leave to file a Second Amended Complaint, which they did on
May 9, 2017. Defendant BOE filed a Motion to Dismiss on June
8, 2017. That Motion is unopposed.
considering a motion to dismiss under Rule 12(b)(6), a court
accepts as true all well-pleaded allegations, drawing all
inferences in favor of the non-moving party. Taylor v.
Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.
2002). To survive a motion to dismiss, a complaint "must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face."' Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S.
544, 555 (2007).
deciding an unopposed motion to dismiss, a court
still "assume[s] the truth of a pleading's factual
allegations and test[s] only its legal sufficiency, [which]
the court is capable of determining based on its own reading
of the pleading and knowledge of the law." Haas v.
Commerce Bank, 497 F.Supp.2d 563, 564 (S.D.N.Y. 2007)
(Holwell, J.) (quoting McCall v. Pataki, 232 F.3d
322 (2d Cir. 2000)); see also O'Garro v. Commr of
Soc. Sec, 2013 WL 5798537, at *2 (S.D.N.Y. Oct. 24,
2013) (Forrest, J.).
Municipal Liability Claim
is an administrative agency of New York City, created
pursuant to Article 3 of New York Election Law. To allege
municipal liability under Section 1983, a plaintiff must
allege that there was "(1) an official policy or custom
that (2) causes the plaintiff to be subjected to (3) a denial
of a constitutional right." Zahra v. Town of
Southold,48 F.3d 674, 685 (2d Cir. 1995) (citing
Monell v. Dep't of Soc. Servs. of New York, 436
U.S. 658, 692 (] 978)). Merely alleging vicarious liability
or respondeat superior is insufficient to state a
Section 1983 claim against a municipal entity. See Zherka