Opinion
03-CV-228S.
August 31, 2004
DECISION AND ORDER
I. INTRODUCTION
In this case, Plaintiff Walter J. Lawrence contends that Defendant Cynthia Baxter violated his constitutional right to due process when she refused to honor his request for documents under New York's Freedom of Information Law ("FOIL"). In addition, Plaintiff alleges that Defendant's failure to provide the requested documents constituted negligence. Currently before this Court are two motions — Defendant's Motion to Dismiss pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure and Plaintiff's Cross-Motion for Leave to File an Amended Complaint.
II. BACKGROUND
A. Facts
The following facts, which are alleged in the Complaint, are assumed true for purposes of the instant motions. Plaintiff resides in the State of Florida. (Complaint, Docket No. 1, at ¶ 5). At the times relevant to this action, Defendant was employed as the Clerk of the City of Niagara Falls, New York. Id. at ¶ 6.
On January 23, 2003, Plaintiff faxed a "FOIL letter" to Defendant. Id. at ¶ 7. In that letter, Plaintiff asked Defendant to provide him with certain documents concerning the "Rainbow Square Ltd. Partnership." (FOIL Letter, attached as Exhibit B to Complaint). After sending the fax, Plaintiff called Defendant to confirm receipt. (Complaint, at ¶ 8). Defendant told Plaintiff that she had received the FOIL letter and would produce the requested documents. Id.
Plaintiff called Defendant again on February 7, 2003. Id. at ¶ 8. Defendant explained that Plaintiff's FOIL request was being given "top priority" and promised that the requested documents would soon be provided. Id.
On February 14, 2003, Plaintiff called Defendant for a third time. (Plaintiff's Statement of Facts, Docket No. 34, at ¶ 4). Plaintiff asked for an explanation as to why his FOIL request had not yet been honored. (Complaint, at ¶ 10). Defendant told Plaintiff that she had been instructed by "Corporation Counsel" to deny his request. Id. When Plaintiff asked for a further explanation, Defendant advised him that Corporation Counsel had not provided any reason for the decision.Id.
The Complaint alleges that this phone call took place on February 4, 2003. (Docket No. 1, at ¶ 10). However, it appears that this is a typographical error and that the date referenced above (February 14) is the correct date.
B. Procedural History
Plaintiff, acting pro se, commenced this action on March 24, 2003, by filing a Complaint in the United States District Court for the Western District of New York. Defendant filed her Answer on November 20, 2003.
On February 12, 2004, Defendant filed a Motion to Dismiss pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure. Plaintiff filed a Cross-Motion for Leave to File an Amended Complaint on March 17, 2004. This Court deemed oral argument unnecessary.
Defendant filed an affirmation and memorandum of law in support of her motion. Plaintiff filed a memorandum of law, declaration, and reply declaration in opposition to the motion.
Plaintiff filed a memorandum of law in support of this motion. Defendant filed a memorandum of law in opposition.
Several discovery motions are also pending. (Docket Nos. 68, 70, 79).
III. DISCUSSION
A. Motion to Dismiss StandardRule 12 (b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12 (b)(6). A court may dismiss an action pursuant to Rule 12 (b)(6) if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).
When a court decides a Rule 12 (b)(6) motion, all well-pleaded allegations are assumed true and construed in the non-moving party's favor. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997) (citing Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976)). In the context of such a motion, "[t]he issue is not whether a plaintiff will or might ultimately prevail on her claim, but whether she is entitled to offer evidence in support of the allegations in the complaint." Hamilton Chapter, 128 F.3d at 62 (citation omitted).
B. Defendant's Motion to Dismiss
Plaintiff asserts three causes of action against Defendant. In the first cause of action, brought pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Defendant violated his constitutional right to due process when she refused to honor his FOIL request. Plaintiff's second cause of action claims that Defendant engaged in an unlawful conspiracy to violate his constitutional rights by denying his FOIL request. In the third and final cause of action, Plaintiff alleges that he was damaged by Defendant's negligent failure to provide the requested documents.
Defendant argues that all three causes of action should be dismissed under Rule 12 (b)(6) for failure to state a claim upon which relief can be granted. This Court will address each cause of action in turn.
1. Due Process
Section 1983 of Title 42 of the United States Code provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. Under this section, an individual whose constitutional rights have been violated by a person acting under color of state law may file a lawsuit in federal court seeking compensation. Richardson v. McKnight, 521 U.S. 399, 403, 117 S. Ct. 2100, 138 L. Ed.2d 540 (1997).
To prevail in a § 1983 action, "a plaintiff must prove that the challenged conduct was attributable at least in part to a person acting under color of state law, and that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 137 (2d Cir. 1999).
The Fifth and Fourteenth Amendments provide that no person may be deprived of life, liberty, or property without "due process of law." U.S. CONST. amend V, XIV. There are two broad categories of due process claims — substantive and procedural. A substantive due process claim is based upon the deprivation of a constitutionally protected life, liberty, or property interest.B.D. v. DeBuono, 130 F. Supp. 2d 401, 431 (S.D.N.Y. 2000). A procedural due process violation occurs when the Government deprives a person of a protected life, liberty, or property interest without first providing that person with notice and an opportunity to be heard. Id. at 432-33.
Plaintiff's Complaint does not precisely define the nature of his due process claim. However, this Court is mindful of its duty to construe this pro se pleading liberally and "interpret [it] to raise that strongest arguments that [it] suggest[s]." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). As such, this Court reads the Complaint as claiming that (a) Plaintiff had a constitutionally protected property interest in the documents requested under FOIL and (b) Defendant deprived Plaintiff of that interest without due process of law.
a. Property Interest
With respect to any due process claim, "[t]he threshold issue is always whether the plaintiff has a property or liberty interest protected by the Constitution." Narumanchi v. Bd. of Trustees of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988). " If a protected interest is identified, a court must then consider whether the government deprived the plaintiff of that interest without due process." Id. (emphasis original).
"A protectible property interest is not created by the Constitution." Ferrara v. Superintendent, N.Y.S. Police Dep't, 26 F. Supp. 2d 410, 414 (N.D.N.Y. 1998) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed 2d 548 (1972)). "Rather, `[property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Ferrara, 26 F. Supp. 2d at 414 (alteration original) (quoting Roth, 408 U.S. at 577). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. . . . He must, instead, have a legitimate claim of entitlement to it." Ezekwo v. New York City Health Hospitals Corp., 940 F.2d 775, 782 (2d Cir. 1991) (quoting Roth, 408 U.S. at 577).
This Court finds that Plaintiff has failed to establish that he had a constitutionally protected property interest in the requested documents. As several courts in the Circuit have held, "a plaintiff has no property interest in obtaining FOIL documents." O'Bradovich v. Village of Tuckahoe, No. 04-CV-49, 2004 WL 1616588, at *15-16 (S.D.N.Y. July 19, 2004); Webb v. Ashburn, No. 96-Civ-325, 1997 WL 118355, at *6 (S.D.N.Y. Mar. 17, 1997); Billups v. Millet, No. 91-Civ-6326, 1996 WL 99399, at *4 (S.D.N.Y. Mar. 6, 1996); but see Ferrara, 26 F. Supp. 2d at 414.
"[A] property interest must be more than an expectation, a person must have more interest than an abstract need or desire for the benefit sought."Billups, 1996 WL 99399, at *4 (citing Roth, 408 U.S. at 577). There is no property interest in documents requested under FOIL because such "documents are an expectation, even if awarded pursuant to court order." Billups, 1996 WL 99399, at *4 (citing N.Y. PUB. OFF. LAW §§ 84, et seq.). Accordingly, Plaintiff's due process claim must be dismissed because he failed to allege facts sufficient to establish that he was deprived of a property interest protected by the United States Constitution.
b. Deprivation
As noted above, the second question presented by a due process claim is whether the plaintiff was deprived of a protected interest without due process. In the present case, even assuming arguendo that Plaintiff had a protected interest in the FOIL documents, his due process claim would still fail as a matter of law.
New York law provides a remedy for the improper denial of a FOIL request. A person denied access to requested documents may appeal the denial to the "head, chief executive or governing body" of the entity or agency in possession of the documents. N.Y. PUB. OFF. LAW . § 89 (4) (a). The person may then challenge the denial of the FOIL request on appeal by commencing a proceeding under Article 78 of the New York Civil Practice Law and Rules. N.Y. PUB. OFF. LAW . § 89 (4) (b).
Accordingly, with respect to the question of constitutional due process and FOIL requests, "adequate process is clearly available through an Article 78 proceeding to remedy an improper denial of disclosure." Ferrara, 26 F. Supp. 2d at 414 n. 3. In other words, the procedures set forth under New York law are sufficient to protect any property interest that a person might have in the receipt of FOIL documents. Billups, 1996 WL 99399, at *5 (dismissing due process claim based upon denial of FOIL request because, inter alia, "the due process available to Plaintiff — pleadings, motions, hearings, Article 78 proceedings and contempt, were sufficient to protect any property interest").
In this case, Plaintiff did not appeal the initial denial of his FOIL request. Further, he never sought to commence an Article 78 proceeding to challenge Defendant's refusal to honor his FOIL letter. As such, it is clear that Plaintiff willfully failed to take advantage of the due process afforded to him under New York law. He cannot now complain that he has been denied such process.See Ferrara, 26 F. Supp. 2d at 414 n. 3 ("Having willfully failed to avail himself of the appellate process on the first action, plaintiff cannot complain that he has been denied such process."); cf. also Webb, 1997 WL 118355, at *6 ("Plaintiff's failure to commence an Article 78 proceeding and obtain a court order with regard to his other FOIL request precludes a finding of a property interest in the requested documents.").
Plaintiff argues that he was unable to initiate the appellate process or commence an Article 78 proceeding because he was never provided with a written denial of his FOIL request. However, there does not appear to be any such requirement under New York law. As noted above, subject to certain exceptions not applicable here, "any person denied access to a record may within thirty days appeal in writing such denial." N.Y. PUB. OFF. LAW . § 89 (4) (a). The only prerequisite set forth in this provision is that the person must have been denied access to a record. There is no requirement that the person receive a written denial before initiating an appeal. Cf. Kaufman v. N.Y.S. Dep't. of Envtl. Conservation, 734 N.Y.S.2d 694, 696 (N.Y.App.Div. 3d Dep't 2001) (noting that the question of "[w]hether or not respondent provided petitioner with a full written explanation at the administrative level . . . is academic").
2. Conspiracy
To prevail on his conspiracy claim under § 1983, Plaintiff must prove (a) that two or more persons conspired to deprive him of a constitutional right and (b) that he was in fact deprived of that constitutional right as a result of the conspiracy. Adamczyk v. City of Buffalo, No. 95-CV-1023, 1998 WL 89342, at *6 (W.D.N.Y. Feb. 23, 1998) (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 119-20 (2d Cir. 1995)). For the reasons stated above, this Court finds that Plaintiff has failed to establish that his constitutional rights were violated. As such, his § 1983 conspiracy claim must be dismissed. See Adamczyk, 1998 WL 89342, at *6; Billups, 1996 WL 99399, at *6.
3. Negligence
In light of the fact that all of Plaintiff's federal claims have been dismissed, this Court is not required to retain jurisdiction over his state law negligence claim. See 28 U.S.C. § 1367 (c)(3). "The decision to exercise pendent jurisdiction is vested in the sound discretion of the district court." Grace v. Rosenstock, 228 F.3d 40, 55 (2d Cir. 2000); Rocco v. N.Y.S. Teamsters Conference Pension Retirement Fund, 281 F.3d 62, 72 (2d Cir. 2002).
The Second Circuit has noted that district courts should typically decline to exercise jurisdiction over state law claims where all federal claims have been eliminated before trial.Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir. 1993); see also Martz v. Incorporated Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) ("Having dismissed all of [the] federal claims, the district court was correct in also dismissing [the] pendent state law claims.").
Plaintiff's negligence claim involves numerous questions of state law, including issues with respect to the applicable statute of limitations. This Court finds that resolution of these questions is best left to the state courts. Plaintiff's state law negligence claim will therefore be dismissed without prejudice.See Burgos v. City of Rochester, No. 99-CV-6480, 2003 WL 22956907, at *6 (W.D.N.Y. Mar. 31, 2003) (citing Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001)); United Mine Workers v. Gibbs, 383 U.S. 715, 726 n. 15, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)).
C. Plaintiff's Cross-Motion for Leave to File an Amended Complaint
Once a responsive pleading has been filed, a plaintiff may amend his or her complaint "only by leave of the court or by written consent of the adverse party." FED. R. CIV. P. 15 (a). Leave to amend "shall be freely given when justice so requires." FED. R. CIV. P. 15 (a). With respect to complaints filed by pro se litigants, the Second Circuit has cautioned that courts "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
Nevertheless, in cases where "there is no merit in the proposed amendments, leave to amend should be denied." Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990); Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend."); see also Berman v. Parco, 986 F. Supp. 195, 201 (S.D.N.Y. 1997); Williams v. Sawn, No. 04-CV-6284, 2004 WL 1682830, at *2 (W.D.N.Y. July 26, 2004).
In the present case, Plaintiff's Proposed Amended Complaint adds two new defendants — Richard J. Rotella and Ronald D. Anton (Proposed Amended Complaint, attached as Exhibit A to Docket No. 74). Mr. Anton, counsel of record for Defendant in this case, is Corporation Counsel for the City of Niagara Falls. Mr. Rotella is an Assistant Corporation Counsel. Mr. Rotella has authored and filed numerous documents with respect to this litigation. While the Proposed Amended Complaint is not clear on this point, it appears that Plaintiff seeks to assert a claim that Mr. Rotella and Mr. Anton are violating New York law by providing legal representation to Defendant. (Proposed Amended Complaint, at ¶¶ 24, 31-35.)
In addition, although the City of Niagara Falls is not named as a defendant in the Proposed Amendment Complaint, it appears that Plaintiff seeks to assert a claim against the City under § 1983. Specifically, Plaintiff alleges that "the failure of the City of Niagara Falls, State of New York to properly and adequately train, supervise and control Defendant constitutes negligent or wrongful acts or omissions on the part of the City of Niagara Falls." (Proposed Amended Complaint, ¶ 77).
For the following reasons, this Court finds that Plaintiff's proposed amendments would be futile. First, with respect to the first and second causes of action, Plaintiff's Proposed Amended Complaint contains no additional allegations that would cure the legal infirmities described supra in Section III.B.
Second, the addition of a § 1983 claim against the City of Niagara Falls would be futile because Plaintiff has not alleged facts sufficient to establish that his constitutional rights were violated by a City employee. See Curley v. Vill. of Suffern, 268 F.3d 65, 71 (2d Cir. 2001) ("[A] municipality cannot be liable for inadequate training or supervision when the officers involved in making an arrest did not violate the plaintiff's constitutional rights.") (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)); Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir. 1999) (holding that claim against municipality was moot because the "plaintiff fail[ed] to show that a constitutional violation occurred in the suit against the individual official").
Third, the proposed cause of action against Mr. Rotella and Mr. Anton is based upon New York law. Even if Plaintiff were permitted to amend his Complaint, this Court would decline to exercise supplemental jurisdiction over this state law claim. In any event, the claim appears to be without merit.
Plaintiff previously moved to disqualify Mr. Rotella and Mr. Anton as counsel of record for Defendant. In support of that motion, Plaintiff asserted the same argument that he raised in his Proposed Amendment Complaint, i.e. that their representation of Defendant is contrary to New York law. The Honorable Leslie G. Foschio, United States Magistrate Judge, found Plaintiff's argument to be without merit and denied the motion. (Docket No. 85).
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss is granted. Plaintiff's § 1983 claims are dismissed for failure to state a cause of action. Further, this Court declines supplemental jurisdiction over Plaintiff's state law negligence claim. That claim is dismissed without prejudice. Plaintiff's Cross-Motion for Leave to File an Amended Complaint is denied. This Court finds that the proposed amendments would be futile. Lastly, the various outstanding discovery motions are denied as moot.V. ORDERS
IT HEREBY IS ORDERED that Defendant's Motion to Dismiss (Docket No. 40) is GRANTED.
FURTHER, that Plaintiff's Motion for a Protective Order (Docket No. 68) is DENIED.
FURTHER, that Plaintiff's Motion to Strike Request for Admissions (Docket No. 70) is DENIED.
FURTHER, that Plaintiff's Motion for Leave to File an Amended Complaint (Docket No. 74) is DENIED.
FURTHER, that Plaintiff's Motion that Certain Facts and Law be Taken as Admitted by Defendant (Docket No. 79) is DENIED.
FURTHER, that the Clerk of the Court shall take the steps necessary to close this case.
SO ORDERED.