11-4564-cv
Parkash v. Town of Southeast

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of April, two thousand twelve.

Present:
         JON O. NEWMAN,
         ROBERT A. KATZMANN,
         SUSAN L. CARNEY,
                     Circuit Judges.
________________________________________________

VED PARKASH, AMAN ESTATES, LLC,

              Plaintiffs-Appellants,

                     v.                                           No. 11-4564-cv

TOWN OF SOUTHEAST, WILLIS H. STEPHENS, JR., JOSEPH A. CHARBONNEAU,
RONALD HARPER, CHARLES TESSMER, WILLIAM J. FORD,

              Defendants-Appellees.*

________________________________________________

For Plaintiffs-Appellants:                                 PAUL B. SWEENEY, Certilman Balin
                                                           Adler & Hyman, LLP, East Meadow,
                                                           N.Y.


       *
           The Clerk of the Court is directed to amend the caption as noted.
For Defendants-Appellees
Town of Southeast, Willis H. Stephens, Jr.,
Ronald Harper, Charles Tessmer, and
William J. Ford:                                  STEPHEN J. GABA, Drake, Loeb, Heller,
                                                  Kennedy, Gogerty, Gaba & Rodd, PLLC, New
                                                  Windsor, N.Y.

For Defendant-Appellee
Joseph A. Charbonneau:                            JACK BABCHICK (Bryan J. Weisburd, on the
                                                  brief), Babchick & Young, LLP, White Plains,
                                                  N.Y.



       Appeal from the United States District Court for the Southern District of New York
(Briccetti, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiffs-Appellants Ved Parkash and Aman Estates, LLC (collectively, “plaintiffs”)

appeal from a September 30, 2011 Memorandum Decision issued by the United States District

Court for the Southern District of New York (Briccetti, J.) granting defendants’ motion to

dismiss all of plaintiffs’ federal claims and declining to exercise supplemental jurisdiction over

their state law claims. On appeal, plaintiffs contend that the district court erred in dismissing

their Section 1983 claims for alleged violations of the First, Fourth, and Fourteenth

Amendments. Specifically, they argue, inter alia, that the district court misapplied the pleading

standards under the Federal Rules of Civil Procedure and improperly reached several issues of

fact in the course of granting defendants’ motions. We assume the parties’ familiarity with the

underlying facts, procedural history of the case, and the issues on appeal.




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       “[W]e review the grant of a Rule 12(b)(6) motion to dismiss de novo, construing the

complaint liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff's favor.” Chase Grp. Alliance LLC v. City of N.Y. Dep’t of

Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation marks omitted). “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, 129 S. Ct. 1937, 1949 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       Having conducted an independent and de novo review in light of these principles, we

affirm for substantially the reasons stated in the district court’s thorough and well-reasoned

opinion. See Parkash v. Town of Southeast, No. 10 CV 8098(VB), 2011 U.S. Dist. LEXIS

128545 (S.D.N.Y. Sept. 30, 2011). In particular, we find that plaintiffs’ amended complaint

failed to adequately allege that defendants’ prosecution of plaintiffs was illegitimate, a failure

that is fatal to plaintiffs’ First and Fourth Amendment claims. Additionally, the district court

properly dismissed plaintiffs’ Fourteenth Amendment selective enforcement claim because

plaintiffs failed to identify an example of a similarly situated property owner who was treated

differently from the plaintiffs. See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59

(2d Cir. 2010). Finally, the district court correctly concluded that defendant Joseph A.

Charbonneau was entitled to absolute prosecutorial immunity. See, e.g., Shmueli v. City of N.Y.,

424 F.3d 231, 236 (2d Cir. 2005) (“It is . . . well established that a state prosecuting attorney who

acted within the scope of his duties in initiating and pursuing a criminal prosecution is immune

from a civil suit for damages under § 1983.”) (internal quotation marks and citations omitted).




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       Accordingly, having considered all of plaintiffs’ arguments and finding them to be

without merit, we hereby AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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