     10-3246-cv
     Emmerling v. Town of Richmond


                          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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14th day of June, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judge,
10                JED S. RAKOFF,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14      CRAIG J. EMMERLING,
15
16                   Plaintiff-Appellant,
17
18                   -v.-                                               10-3246-cv
19
20      TOWN OF RICHMOND, RALPH ANGELO,
21      individually and in his official
22      capacity as TOWN BOARD SUPERVISOR, JOHN
23      LUTHER, individually and in his


                *
              The Honorable Jed S. Rakoff of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                 1
 1   official capacity as TOWN BOARD MEMBER,
 2   DOUGLAS DULEN,
 3
 4            Defendants-Appellees.**
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT:    Christina A. Agola
 8                     Rochester, NY
 9
10   FOR APPELLEES:    Gerard E. O’Connor
11                     Lippman O’Connor
12                     Buffalo, NY
13
14
15        Appeal from an judgment by the United States District
16   Court for the Western District of New York (Siragusa, J.),
17   denying Appellant’s motion for leave to amend his complaint
18   and granting Appellees’ motions to dismiss the complaint.
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the district court’s judgment is AFFIRMED.
22
23        Emmerling appeals the dismissal of his four claims:
24   (1) substantive due process violation, (2) stigma-plus
25   procedural due process violation, (3) selective enforcement
26   equal protection violation, and (4) conspiracy to violate
27   his constitutional rights. He also appeals the denial of
28   his motion for leave to amend his complaint. We assume the
29   parties’ familiarity with the underlying facts, the
30   procedural history, and the issues presented for review.
31
32        We review de novo a district court’s dismissal of a
33   complaint under Federal Rule of Procedure 12(b)(6). Kiobel
34   v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.
35   2010). We review for abuse of discretion a district court’s
36   denial of a plaintiff’s request for leave to amend a
37   complaint. Green v. Mattingly, 585 F.3d 97, 104 (2d Cir.
38   2009).
39
40


          **
            The Clerk of Court is respectfully instructed to
     amend the official case caption as shown above.
                                  2
 1        “To establish a violation of substantive due process
 2   rights, a plaintiff must demonstrate that the state action
 3   was so egregious, so outrageous, that it may fairly be said
 4   to shock the contemporary conscience.” Okin v. Vill. of
 5   Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir.
 6   2009) (internal quotation marks omitted). Emmerling failed
 7   to allege any behavior by Appellees that could reasonably be
 8   considered egregious, outrageous, or conscience-shocking.
 9   We therefore affirm the district court’s dismissal of his
10   substantive due process claim.
11
12        To state a valid “stigma-plus” claim, a plaintiff must
13   plausibly allege: (1) a defamatory statement; (2) “some
14   tangible and material state-imposed burden in addition to
15   the stigmatizing statement”; and (3) a lack of process
16   adequate to justify the state’s action. Velez v. Levy, 401
17   F.3d 75, 87-88 (2d Cir. 2005) (internal quotation marks and
18   ellipsis omitted). To allege a defamatory statement, a
19   plaintiff must allege a public statement injurious to the
20   plaintiff that is capable of being proven false and that was
21   false. Id. at 87. We agree with the district court that
22   Emmerling failed to plausibly allege a defamatory statement
23   or a lack of adequate process. We therefore affirm the
24   dismissal of his stigma-plus claim.
25
26        To state a valid selective enforcement claim under the
27   Equal Protection Clause, a plaintiff must plausibly allege:
28   (1) He was treated differently than others similarly
29   situated; and (2) The selective treatment was “based on
30   impermissible considerations such as race, religion, intent
31   to inhibit or punish the exercise of constitutional rights,
32   or malicious or bad faith intent to injure a person.”
33   Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d
34   Cir. 2004). This Circuit has not yet decided whether
35   selective enforcement claims are still viable in the public
36   employment context after Engquist v. Or. Dep’t of Agric.,
37   553 U.S. 591 (2008). We need not answer this question here,
38   however, because we agree with the district court that
39   Emmerling failed to plausibly allege that he was similarly
40   situated to any of the individuals he points to as having
41   received more favorable treatment. On this basis, we affirm
42   the district court’s dismissal of his selective enforcement
43   claim.
44

                                  3
 1        To state a valid conspiracy claim under 42 U.S.C.
 2   § 1985(3), a plaintiff must, among other things, plausibly
 3   allege the existence of a conspiracy to deprive him of his
 4   constitutional rights. A complaint containing “only
 5   conclusory, vague, or general allegations of conspiracy to
 6   deprive a person of constitutional rights cannot withstand a
 7   motion to dismiss.” Gyadu v. Hartford Ins. Co., 197 F.3d
 8   590, 591 (2d Cir. 1999) (per curiam). We agree with the
 9   district court that Emmerling provided only vague and
10   conclusory allegations of conspiracy and thereby failed to
11   allege a plausible § 1985(3) claim. We therefore affirm the
12   district court’s dismissal of Emmerling’s conspiracy claim.
13
14        A district court may deny a plaintiff’s request for
15   leave to amend his complaint when it believes that such
16   leave would be futile. Acito v. IMCERA Grp., Inc., 47 F.3d
17   47, 55 (2d Cir. 1995). Here, Emmerling’s proposed
18   amendments are merely stylistic and fail to amend his
19   complaint in a manner that would survive dismissal. See
20   Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).
21   We therefore conclude that the district court did not abuse
22   its discretion in denying Emmerling leave to amend his
23   complaint.
24
25        We hereby AFFIRM the district court’s judgment denying
26   Appellant’s motion to amend his complaint and granting
27   Appellees’ motions to dismiss Appellant’s complaint with
28   prejudice.
29
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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