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Rios v. Schlein

United States District Court, S.D. New York

August 24, 2017

ILKA RIOS, et al., Plaintiffs,
STANLEY KALMON SCHLEIN, et al., Defendants.

          OPINION & ORDER


         Plaintiffs 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 (collectively, "Defendants").

         Plaintiffs 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.

         Before 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 GRANTED.

         I. Background and Procedural History

         In 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.

         Defendants 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.

         Plaintiffs 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.

         II. Legal Standard

         When 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).

         When 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.).

         III. Analysis

         A. Municipal Liability Claim

         The BOE 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 v. ...

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