     10-3470-cv
     Brisbane v. Milano


                                 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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 19th day of October, two thousand eleven.
 4
 5   PRESENT:             JOHN M. WALKER, JR.,
 6                        CHESTER J. STRAUB,
 7                        DEBRA ANN LIVINGSTON,
 8                                        Circuit Judges.
 9
10
11   MARCUS BRISBANE, LATITIA MILLER,
12             Plaintiffs-Appellants,
13
14            -v.-                                       No. 10-3470-cv
15
16   ROBERT MILANO, LOUIS GONZALEZ, WAYNE NEWKIRK, JOHN W. MURPHY,
17   ROBERT CROVO,
18             Defendants-Appellees.
19
20
21   For Plaintiffs-Appellants:             RACHEL M. BAIRD, Torrington, C.T.
22
23   For Defendants-Appellees:              JOHN A. BLAZI, Waterbury, C.T.
24
25
26
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Plaintiffs-Appellants Marcus Brisbane (“Brisbane”) and Latitia Miller (“Miller”) appeal from

 4   a judgment of the United States District Court for the District of Connecticut (Bryant, J.), entered

 5   July 27, 2010, granting the Defendants-Appellees’ motions to dismiss for failure to state any claim

 6   upon which relief may be granted and for summary judgment. Brisbane and Miller brought this

 7   action under 42 U.S.C. § 1983, alleging that various Torrington police officers violated the Equal

 8   Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1981 by selectively investigating

 9   and arresting them based on their race. Brisbane also alleges two additional claims under Section

10   1983 for violations of the Takings Clause of the Fifth and Fourteenth Amendments. We assume the

11   parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.

12          A district court’s decision to grant a motion for judgment on the pleadings pursuant to Rule

13   12(c) is reviewed de novo. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Rule 12(c)

14   motions are decided using “the same standard applicable to dismissals pursuant to Fed. R. Civ. P.

15   12(b)(6).” Id. (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)) (internal quotation mark

16   omitted). We therefore accept all factual allegations in the complaint as true, and draw all

17   reasonable inferences in the plaintiffs’ favor. Id. “To survive a Rule 12(c) motion, [the plaintiffs’]

18   complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

19   plausible on its face.” Id. (quoting Johnson, 569 F.3d at 44) (internal quotation mark omitted).

20          The Equal Protection Clause “is essentially a direction that all persons similarly situated

21   should be treated alike.” City of Cleburn v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

22   Plaintiffs claiming “selective enforcement” must show “both (1) that they were treated differently


                                                       2
 1   from other similarly situated individuals, and (2) that such differential treatment was based on

 2   ‘impermissible considerations such as race, religion, intent to inhibit or punish the exercise of

 3   constitutional rights, or malicious or bad faith intent to injure a person.’ ” Harlen Assocs. v. Inc.

 4   Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (quoting LaTrieste Rest. & Cabaret v. Vill. of

 5   Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)). Use of an impermissible consideration (such as

 6   race) must have been intentional, not merely negligent. See Patterson v. County of Onieda, 375 F.3d

 7   206, 226–27 (2d Cir. 2004). “Deliberate indifference” suffices so long as “the defendant’s

 8   indifference was such that the defendant intended the discrimination to occur.” Gant v. Wallingford

 9   Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999). Section 1981 also prohibits only intentional racial

10   discrimination, and thus has the same pleading standards as the Equal Protection Clause. See Brown

11   v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000).

12          Plaintiffs Brisbane and Miller failed to plead sufficient facts to state a claim under the Equal

13   Protection Clause or Section 1981. First, after setting aside their conclusory assertions, their

14   pleadings do not plausibly state that Brisbane and Miller were similarly situated to other individuals

15   who received different treatment. After receiving reports from Dustin Whitten (which the police

16   later learned were false) that an injured Jason Lind was wrapped in a rug in the trunk of Brisbane’s

17   Lexus, the police began an investigation and arrested Brisbane and Miller for a variety of felonies

18   including robbery, burglary, and kidnapping. Brisbane pled guilty to first-degree robbery and

19   second-degree burglary; Miller pled guilty to being an accessory to those offenses. Brisbane and

20   Miller are black, and they argue that they were selectively investigated and arrested because of their

21   race, in contrast to Whitten, Jason Lind, and Eric Lind, three white individuals who were not

22   arrested despite allegedly stealing from Brisbane and Miller. The plaintiffs’ involvement in first-


                                                       3
 1   degree robbery, however, is dissimilar to (indeed, more serious than) Whitten and the Linds’ alleged

 2   crimes. See Conn. Gen. Stat. § 53a-134. Moreover, although the initial kidnapping report was later

 3   recanted, when police initiated their investigation and arrested Brisbane and Miller, they did so in

 4   response to an ongoing and imminently life-threatening situation. By contrast, the police learned

 5   of Whitten and the Linds’ alleged theft only after it had concluded. Brisbane also did not seek police

 6   assistance when he discovered the theft — unlike Whitten, who immediately reported his encounter

 7   with Brisbane to the police. In sum, the pleadings do not plausibly allege that Brisbane and Miller

 8   were similarly situated to Whitten and the Linds.

 9          Second, the plaintiffs’ allegations do not state a plausible claim of racially discriminatory

10   intent. Setting aside their conclusory assertions of discriminatory intent, Brisbane and Miller allege

11   that they are black, and that Whitten and the Linds are white. The only other evidence plaintiffs

12   point to is that several police reports describe the suspects and victims by their race and sex (e.g.,

13   referring to a “black male” suspect). Such standard and permissible police descriptions, see Brown,

14   221 F.3d at 338–39, do not “nudge[] [Plaintiffs’] claims of invidious discrimination across the line

15   from conceivable to plausible,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (internal quotation

16   marks omitted). Because the plaintiffs failed to plead sufficient facts with respect to both similarly

17   situated entities and discriminatory intent, their equal protection claims did not satisfy Federal Rule

18   of Civil Procedure 8(a) and were properly dismissed.

19          Brisbane’s claims under the Takings Clause were similarly deficient. “Before a federal

20   takings claim can be asserted, compensation must first be sought from the state if it has a

21   ‘reasonable, certain and adequate provision for obtaining compensation.’ A plaintiff must pursue

22   ‘relief under a state compensation procedure . . . even where it remains unsure and undeveloped.’ ”


                                                       4
 1   Island Park, LLC v. CSX Transp., 559 F.3d 96, 109 (2d Cir. 2009) (quoting Villager Pond, Inc. v.

 2   Town of Darien, 56 F.3d 375, 379–80 (2d Cir. 1995)). Where state remedies are potentially

 3   available and where a plaintiff has not pursued them, the federal takings claim is not ripe, and thus

 4   a federal court lacks jurisdiction over the claim. See id. at 110. For this reason, ripeness must be

 5   considered “at the outset.” Id. (citing Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 347

 6   (2d Cir. 2005)).

 7          Brisbane did not allege that he attempted to recover either the depreciated value of his car

 8   or the misappropriated funds spent to operate the impoundment lot. His complaint mentions both

 9   a state court order that his car be returned to him or destroyed if no one claimed the vehicle, and an

10   agreement with the state that the car would be returned to him upon forfeiture of $1395.90. But

11   Brisbane does not allege that in those proceedings he attempted to recover the depreciated value of

12   his car or the misappropriated funds — the relevant compensation for his takings claims. Nor does

13   Brisbane allege that Connecticut’s procedures for obtaining such compensation are inadequate or

14   unavailable. This Circuit has held that even where “no Connecticut case has been cited wherein

15   compensation was provided for a taking like the one alleged here, [the plaintiff] is still required to

16   look to the state for compensation before its takings claim will lie.” Villager Pond, 56 F.3d at 380.

17   Brisbane’s takings claims were therefore properly dismissed by the district court.

18          We have considered all of Plaintiffs-Appellants’ remaining arguments and find them to be

19   without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

20                                                         FOR THE COURT:
21                                                         Catherine O’Hagan Wolfe, Clerk
22




                                                       5
