# Garland v. New York City Fire Department

> District Court, E.D. New York · March 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10309505

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10309505

## How later opinions describe it (automated extraction)

- clarifying that “reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court’s consideration of the document on a dismissal motion; mere notice of possession is not enough.” (emphasis in original)

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X

John GARLAND, et al.,

Plaintiff,
MEMORANDUM & ORDER
v.
21-cv-6586(KAM)(CLP)
CITY OF NEW YORK, et al.,

Defendants.

------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:
Named Plaintiffs, employees of the New York City Fire
Department (“FDNY”)1, commenced this action on November 24, 2021,
against the City of New York, then-FDNY Commissioner Daniel A.
Nigro, and unnamed John and Jane Does (collectively, “City
Defendants”). (ECF No. 1, Complaint (“Compl.”).) Defendants were
responsible for implementing and enforcing the City’s COVID-19
vaccination mandate (“Vaccine Mandate”) covering all City
employees, as detailed in an October 20, 2021 order issued by the
Commissioner of Health (“COH Order”) requiring all City employees
to provide documentation of at least a first dose of a COVID-19
vaccine by October 29, 2021 or be “excluded from the premises at
which they work[ed] beginning on November 1, 2021.” (ECF No. 15-
1, Exhibit A (“Ex. A”) at 3.) The day after the COH Order was

1 Named Plaintiffs include FDNY officers, firefighters, and employees of the
Emergency Medical Service (“EMS”). (ECF No. 27, Amended Complaint (“Amended
Compl.”) at ¶¶ 1-86, 108-09.)
issued, on October 21, 2021, the FDNY issued a memorandum notifying
FDNY employees about the Vaccine Mandate, the COH Order, and the
procedures for FDNY employees to obtain a religious or medical
accommodation (“October Memorandum”). The Vaccine Mandate was
revoked by the City on February 10, 2023 and is no longer in
effect.2

At the time the original complaint was filed on November 24,
2021, Plaintiffs had not received at least one dose of the COVID-
19 vaccine, and had been suspended without pay, at least
temporarily, by FDNY.3 (ECF No. 1, Compl. at ¶¶ 62-63, 65.)
Plaintiffs sought preliminary injunctive relief and asserted that
the implementation of the Vaccine Mandate and subsequent
consequences violated their procedural due process rights by
violating (a) their statutory rights to a specific removal process
under N.Y.C. Admin. Code § 15-113 and (b) their contractual rights
to a specific removal process under their applicable collective
bargaining agreements (“CBA”). (Id. at ¶¶ 67-71, 99-109.)

Plaintiffs also asserted claims under 42 U.S.C. § 1983 against

2 See N.Y.C. Board of Health, Order Rescinding Orders Requiring COVID-19
Vaccination in Child Care and Early Intervention Programs, for Nonpublic School
Staff, and for Individuals Working in Certain Child Care Programs (2023); Pani
v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (“[A] district
court may rely on matters of public record in deciding a motion to dismiss under
Rule 12(b)(6).”).

3 The original complaint stated that nine Plaintiffs had been “returned to pay
status,” but did not state if those Plaintiffs had received at least one dose
of the COVID-19 vaccine. (ECF No. 1, Compl. at ¶ 65.) Since then, at least 27
Plaintiffs have become vaccinated and “have returned to active duty” at FDNY.
(ECF No. 27, Amended Compl. at ¶ 105.)
City Defendants for violating Plaintiffs’ procedural due process
rights, and a claim against Defendant Nigro for his alleged
participation in these violations. (Id. at ¶ 110-15.)
On November 24, 2021, Plaintiffs moved for a preliminary
injunction to restore them to pay status and prohibit City
Defendants from “disciplining” them further. (ECF No. 5, Motion

for Preliminary Injunction.) After providing the parties with an
opportunity to present evidence and submissions before, during,
and after a show cause hearing, the Court denied Plaintiffs’ motion
for injunctive relief in a Memorandum and Order (“December 2021
Order”) dated December 6, 2021. (ECF No. 24, Order Denying
Preliminary Injunction (“December 2021 Order”).)
Plaintiffs filed an amended complaint (“Amended Complaint”),
adding Defendants District Council 37, AFSCME AFL-CIO (“DC37”), a
union that represents FDNY’s emergency medical services (“EMS”)
employees, and Harry Garrido, DC37’s Executive Director
(collectively, “DC37 Defendants”).4 (ECF No. 27, Amended Complaint
(“Amended Compl.”) at ¶¶ 92-93, 120-21.)
Presently before the Court are City Defendants’ motion to
dismiss and DC37 Defendants’ motion to dismiss. For the reasons
set forth below, Defendants’ motions to dismiss are GRANTED.
BACKGROUND

The Court first reviews the factual and procedural background
of the Court’s December 2021 Order denying Plaintiffs’ motion for
a preliminary injunction. (ECF No. 24, December 2021 Order, at 3-
6.) The Court also reviews the operative Amended Complaint,
accepting as true for purposes of Defendants’ motions the factual
allegations in the complaint and drawing all reasonable inferences
in Plaintiffs’ favor. Melendez v. City of New York, 16 F.4th 992,
1010 (2d Cir. 2021). The Court, however, is “not bound to accept
as true a legal conclusion couched as a factual allegation.”
Drimal v. Tai, 786 F.3d 219, 223 (2d. Cir. 2015) (internal
quotation marks omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (“[T]he tenet that a court must accept as true all of the

4 The Court granted leave to Plaintiffs to file an amended complaint, inter
alia, to add necessary parties. (ECF No. 24, December 2021 Order at 8;
12/14/2021 Order.) The Amended Complaint added the Uniformed Firefighters
Association of Greater New York; Uniformed Fire Officers Association, Local 854
International Association of Firefighters, affiliated with the AFL-CIO; and two
local affiliates of the DC37 union, District Council 37 AFSCME AFL-CIO Local
2507 and District Council 37 AFSCME AFL-CIO Local 3621. (ECF No. 24, December
2021 Order at 7; ECF No. 27, Amended Compl.) Plaintiffs stipulated to dismissals
without prejudice of their claims against each of these defendants. (ECF Nos.
63-66.)
allegations contained in [an amended] complaint is inapplicable to
legal conclusions.”).
I. December 2021 Order
In the Court’s December 2021 Order, the Court determined that
because Plaintiffs requested a mandatory injunction—one that
“alters the status quo by commanding a positive act”—they were

required to establish a “clear” or “substantial” likelihood of
success on the merits of their claims. (ECF No. 24, December 2021
Order, at 6 (citing D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465
F.3d 503, 510 (2d Cir. 2006) (citation omitted)).) The Court found
that Plaintiffs failed to do so and denied injunctive relief.5
(Id. at 10.)
First, as to Plaintiffs’ procedural due process claims,
although Plaintiffs had a protected property interest in their pay
and continued employment, the Court found that Plaintiffs had been

5 The evidentiary record before the Court regarding Plaintiffs’ motion for
injunctive relief included the following: an affidavit by Plaintiffs’ attorney
Austin Graff (ECF No. 5-1); affidavits by four individual Plaintiffs who had
not received at least one dose of the COVID-19 vaccine (ECF Nos. 5-2, 5-3, 5-
4, 5-5); the COH Order (ECF No. 15-1); an arbitration award between the
Department of Education (“DOE”) and an union of DOE employees regarding an
exemption process for the Vaccine Mandate based on religious and medical
requests (ECF No. 15-2); an agreement between DC37 and FDNY regarding exemption
processes for the Vaccine Mandate and termination processes based on non-
compliance (“DC37 Agreement”) (ECF No. 15-3; ECF No. 21-1); filings from an
Article 78 proceeding initiated by an FDNY union challenging the Vaccine Mandate
(ECF Nos. 15-4, 15-5); filings from an Office of Collective Bargaining (“OCB”)
proceeding initiated by an FDNY union challenging the Vaccine Mandate (ECF Nos.
15-6, 15-7, 15-8); the OCB decision denying injunctive relief to the FDNY union
(ECF No. 15-9); affidavits from three human resources officials at FDNY (ECF
Nos. 15-10, 20-1, 20-2); and the FDNY’s October Memorandum regarding the
procedures for FDNY employees to provide proof of vaccination or to obtain a
religious or medical exemption (ECF No. 17-1).
provided constitutionally adequate process before being deprived
of their property interests. (Id. at 10.) Quoting the Second
Circuit’s holding in Adams v. Suozzi, 517 F.3d 124, 128 (2d Cir.
2008), the Court noted that “there is no due process violation
where, as here, pre-deprivation notice is provided and the
deprivation at issue can be fully remedied through the grievance

procedures provided for in a collective bargaining agreement.”
(ECF No. 24, December 2021 Order at 14-15.) The Due Process Clause
would be implicated only if Plaintiffs could establish that “the
grievance procedures in a collective bargaining agreement [were]
an inadequate remedy,” which Plaintiffs had not done. (Id. at 15
(quoting Adams, 517 F.3d at 128).)
During the show cause hearing for the preliminary injunction,
the three EMS Plaintiffs who belonged to the DC37 union challenged
the agreement that DC37 had negotiated with the City regarding the
leave and separation procedures for City employees who did not
comply with the Vaccine Mandate (“DC37 Agreement”).6 (Id. at 5-

6 The DC 37 Agreement established, in relevant part: (1) the processes by which
an employee could request an exemption or accommodation based on religious
and/or medical grounds, and appeal an adverse determination on their request
before an independent arbitration panel (while remaining on payroll and
maintaining health benefits pending their request or appeal, as long as the
request was made prior to 11:59 P.M. on October 27, 2021); (2) options to either
voluntarily separate from service with certain compensation benefits, or elect
extended LWOP status while maintaining health benefits until June 30, 2022; and
(3) that as of December 1, 2021, the FDNY could seek to unilaterally separate
employees who had not provided proof of vaccination, had not obtained or
requested an accommodation, and had not opted for either separation option.
(See ECF No. 21-1, Exhibit C.) The DC 37 Agreement further provided that
employees who opted to extend their LWOP to June 30, 2022, could return to their
positions upon demonstrating compliance with the Vaccine Mandate. (Id.)
6.) The Court’s December 2021 Order noted that, generally, “a
union member has no standing to enforce the collective bargaining
agreement between their employer and union against the employer
directly,” but that even if the EMS Plaintiffs had standing, they
could not show a clear or substantial likelihood of success on the
merits of their procedural due process claims. (Id. at 8-9

(citation omitted).)
Overall, the Court concluded that “the pre-deprivation and
post-deprivation processes afforded to Plaintiffs were
constitutionally adequate.” (Id. at 16.) The Court found the
following:
Plaintiffs received ample pre-deprivation notice, via
the [October Memorandum] from Hodgens, the Chief of
Operations of the FDNY, of: (1) the [COH] Order, (2) the
requirement to submit proof of vaccination by October
29, 2021, (3) their ability to seek reasonable
accommodation by October 27, 2021; and (4) their
placement on [leave without pay] status if they failed
to comply with the Order and did not submit an
accommodation request by the October 27 deadline.

(Id. at 16-17.) Moreover, the Court found that Plaintiffs were
provided with an opportunity to be heard before a final decision.
(Id. at 17.) The opportunity to respond need not be a formal
hearing. Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775,
786 (2d Cir. 1991). Indeed, any FDNY employees who challenged
whether the Vaccine Mandate should apply to them not only “had the
opportunity to seek a religious or medical accommodation,” they
also “remain[ed] on pay status pending the decision on their
request or appeal, so long as their accommodation requests were
submitted prior to October 27, 2021.” (ECF No. 24, December 2021
Order at 17.) This Court found that the only reason that the vast
majority of named Plaintiffs had been suspended without pay was
because they requested an accommodation too late. (Id. at 17.)
Therefore, Plaintiffs could not claim that they were deprived of

due process simply by “not having availed themselves of the pre-
deprivation opportunity to be heard.” (Id. at 18.)
The Court also concluded that there were sufficient post-
deprivation procedures to establish constitutionally adequate
process. (Id.) Any FDNY employee granted an accommodation would
be restored to payroll and provided back pay, and there was an
appeal process for any employee whose reasonable accommodation
request was denied. (Id.) The Court further found that FDNY
employees also had other avenues to challenge the Vaccine Mandate
and the COH Order, including through an Article 78 Proceeding in
New York State Supreme Court. (Id. at 20 (citing Hellenic Am.

Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 881 (2d
Cir. 1996) (“[A]n Article 78 proceeding is a perfectly adequate
post-deprivation remedy.”)).)
Second, because “[f]ederal constitutional standards rather
than state statutes define the requirements of procedural due
process,” the Court found that it did not need to consider whether
state or municipal procedural law, such as N.Y.C. Admin. Code §
15-113, was correctly followed or applied. (ECF No. 24, December
2021 Order, at 10-11 (quoting Robison v. Via, 821 F.2d 913, 923
(2d Cir. 1987)).) Nevertheless, the Court concluded that § 15-
113 was irrelevant to determining adequate process for FDNY
employees because (1) the Second Circuit had held that the Vaccine
Mandate was a condition of employment (albeit in the healthcare

context); and (2) “the termination of a public employee based on
the employee’s failure to satisfy a qualification of employment
unrelated to job performance, misconduct, or competency [did] not
implicate the disciplinary procedures set forth section 15-113.”
(Id. at 11, 13-14.)
Accordingly, the Court denied Plaintiffs’ motion for a
preliminary injunction.
II. The Operative Amended Complaint
Following the Court’s denial of Plaintiffs’ preliminary
injunction motion, Plaintiffs filed an Amended Complaint on
January 5, 2022, adding the DC37 Defendants. (ECF No. 27, Am.

Compl.) In the operative Amended Complaint, Plaintiffs assert
primarily the same causes of action as in the original complaint,
adding only (1) a request for the Court to issue a declaratory
judgment that the DC37 Agreement “was entered into without any
contractual authority” and therefore the Plaintiffs’ suspension
without pay violated their due process rights, and (2) a § 1983
conspiracy claim based on the DC37 Agreement between FDNY and DC37.
(Id. at ¶¶ 186, 238.) Plaintiffs’ Amended Complaint also adds
several allegations related to the DC37 Agreement, including that
(1) “[p]ursuant to the Taylor Law (N.Y. Civil Service Law § 200,
et. seq.), [the City] was required to bargain with its unions
[about] the impact of the Vaccine Mandate . . .”; (2) “DC37 entered
into an agreement with [the City] regarding the impact of the

Vaccine Mandate, which provides that on or after December 1, 2021,
[the City] may unilaterally separate DC37 members from their
employment with the FDNY if the members have not obtained a COVID-
19 vaccine”; and (3) the DC37 Agreement “authorized [the City] to
suspend without pay the members of DC37 who did not take a COVID
vaccine.” (Id. at ¶¶ 129, 133-43.)
The Amended Complaint also includes new factual allegations
related to the reasonable accommodation and appeals process. (Id.
at ¶¶ 144-50.) The Amended Complaint alleges that as “part of
[the City’s] implementation of the Vaccine Mandate,” the City
“offered those FDNY employees who have either a medical or

religious reasons for not taking a vaccine an opportunity to seek
a reasonable accommodation to exempt the employee from the Vaccine
Mandate.” (Id. at ¶ 144.) Plaintiffs allege in the Amended
Complaint that seventy-seven out of the eighty-six total
Plaintiffs have requested a medical or religious accommodation to
be exempt from the Vaccine Mandate; seventy-one Plaintiffs have
been denied and six were awaiting an initial determination; thirty-
seven Plaintiffs have appealed the denial of their request for a
reasonable accommodation; and one Plaintiff’s appeal has been
denied, while thirty-six are awaiting a decision. (Id.)
Finally, the Amended Complaint contains two exhibits: the COH
Order, Exhibit A, and the DC37 Agreement, Exhibit B.7 (ECF No.
27-1, Ex. A; ECF No. 27-2, Exhibit B.) Given that the Amended

Complaint discusses the FDNY’s reasonable accommodation policy at
relative length, the Court also determines that the FDNY’s October
Memorandum regarding the procedures for FDNY employees to obtain
a religious or medical accommodation—which was submitted by
Plaintiffs to the Court prior to the show cause hearing—is
“integral” to the Amended Complaint. Nicosia v. Amazon.com, Inc.,
834 F.3d 220, 230 (2d Cir. 2016) (a court may “consider [a
document] where the [amended] complaint relies heavily upon its
terms and effect, thereby rendering the document integral to the
[amended] complaint” (internal quotation marks omitted)). “Even
where a document is deemed ‘integral’ to the complaint, it must be

clear on the record that no dispute exists regarding the
authenticity or accuracy of the document.” Id. at 231 (internal
quotation marks omitted). “It must also be clear that there exist
no material disputed issues of fact regarding the relevance of the

7 Although Plaintiffs submitted the DC37 Agreement as Exhibit B in the Amended
Complaint, Plaintiffs later filed a letter stating that they incorrectly filed
the wrong agreement and attaching a corrected Exhibit B. (ECF No. 27-2, Exhibit
B; ECF No. 62, Letter; ECF No. 62-1, Corrected Exhibit B.)
document . . . [because of] a concern that a plaintiff may lack
notice that the material will be considered.” Id. (internal
quotation marks omitted).
Here, Plaintiffs’ Amended Complaint alleges that there was a
process for seeking reasonable accommodations from the Vaccine
Mandate and discusses the number of Plaintiffs at various stages

of the process; FDNY employees were notified of that process as
provided in the FDNY’s October Memorandum. Indeed, Plaintiffs’
opposition to Defendants’ motions to dismiss relies heavily on the
FDNY’s October Memorandum and argues that it was improperly
imposed, thus causing a procedural due process violation. Thomas
v. Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275
(S.D.N.Y. 2002) (documents are “integral” where plaintiff had to
rely on their content “to explain what the actual unlawful course
of conduct was on which the [d]efendants embarked”); (ECF No. 73,
Plaintiffs’ Mem. at 9-10.) The Court finds that the October
Memorandum is integral to the Amended Complaint because

Plaintiffs’ allegations and opposition to Defendants’ motions to
dismiss rely on and relate to the document, thus establishing that
Plaintiffs do not challenge its authenticity, accuracy or
relevance. (ECF No. 73, Plaintiffs’ Mem. at 2-4, 8-10.)
Additionally, Plaintiffs submitted the October Memorandum to the
Court before the show cause hearing on Plaintiffs’ motion for a
preliminary injunction, and it was discussed extensively at the
hearing and in the Court’s December 2021 Order denying the motion
for a preliminary injunction. (ECF Nos. 17-1, 24.) Accordingly,
the Court concludes that the FDNY’s October Memorandum is
“integral” to the Amended Complaint.
III. Defendants’ Motions to Dismiss
On June 13, 2022, City Defendants moved to dismiss the Amended

Complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. (ECF No. 68, City Defendants’ Motion;
ECF No. 69, City Defendants’ Memorandum in Support; ECF No. 75,
City Defendants’ Reply.) On June 14, 2022, DC37 Defendants also
moved to dismiss under Rule 12(b)(6) for failure to state a claim.
(ECF No. 71, DC37 Defendants’ Motion; ECF No. 72, DC37 Defendants’
Memorandum in Support; ECF No. 74, DC37 Defendants’ Reply.)
On September 28, 2022, Plaintiffs filed for leave to provide
supplemental briefing or amend their memorandum in opposition
brief to Defendants’ motions to dismiss regarding a recent New
York Supreme Court decision about the Vaccine Mandate. (ECF No.

77, Motion to Amend.) City Defendants opposed. (ECF No. 78,
Response.) On October 3, 2022, the Court denied Plaintiffs’
motion, explaining that the Court would review all relevant case
law in rendering its decision. (10/03/2022 Order.) On October
10, 2022, Plaintiffs filed a second motion to amend or supplement
their briefing regarding an Office of Collective Bargaining
(“OCB”) decision about the Vaccine Mandate. (ECF No. 79, Second
Motion.) The Court again denied Plaintiffs’ motion, for the same
reasons. (10/13/2022 Order.) On October 25, 2022, Plaintiffs
filed a third motion to amend or supplement their briefing,
regarding another New York Supreme Court decision about the Vaccine
Mandate. (ECF No. 82, Third Motion.) The Court again denied
Plaintiffs’ motion. (10/26/2022 Order.)

On February 13, 2023, in light of the City’s announcement
that it had discontinued the Vaccine Mandate for City employees on
February 10, 2023, the parties were ordered to advise the Court of
their respective views as to which issues in the instant action,
if any, were mooted, and which issues subsisted. (02/13/2023
Order.) The parties responded, all acknowledging that some live
issues remained, given that employees who had been suspended or
terminated for failure to show proof of vaccination would not be
automatically reinstated to their prior positions with back pay.
(ECF Nos. 84; 85; 86.)
LEGAL STANDARD

To survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint must contain sufficient factual matter, accepted as
true, to “‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
conduct alleged.” Id. When considering a motion to dismiss under
Rule 12(b)(6), a district court must “accept as true all factual
allegations in the complaint and draw all reasonable inferences in
favor of the non-moving party.” Pollok v. Chen, 806 F. App’x 40,
44 (2d Cir. 2020) (summary order) (citation omitted).
In considering a 12(b)(6) motion, the court may refer to

“documents attached to [the complaint] or incorporated in it by
reference, documents ‘integral’ to the complaint and relied upon
in it, and facts of which judicial notice may properly be taken.”
Grant v. Cnty. of Erie, 542 F. App’x 21, 23 (2d Cir. 2013) (summary
order); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153
(2d Cir. 2002) (clarifying that “reliance on the terms and effect
of a document in drafting the complaint is a necessary prerequisite
to the court’s consideration of the document on a dismissal motion;
mere notice of possession is not enough.” (emphasis in original)).
“[A] district court may [also] rely on matters of public record in
deciding a motion to dismiss under Rule 12(b)(6)[.]” See Pani v.

Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998).
DISCUSSION
I. Declaratory Judgment and Injunctive Relief
In Plaintiffs’ Amended Complaint, the first and second
“causes of action” request a declaratory judgment, presumably
under the Declaratory Judgment Act (“DJA”), and the “third cause
of action” requests injunctive relief. (ECF No. 27, Amended
Compl.) The DJA “provides a remedy, not a cause of action.” KM
Enters., Inc. v. McDonald, No. 11-CV-5098 (ADS) (ETB), 2012 WL
4472010, at *19 (E.D.N.Y. Sept. 25, 2012), aff’d, 518 F. App’x 12
(2d Cir. 2013). “Similarly to declaratory relief, a request for
injunctive relief is not a separate cause of action.” Id. at *20
(alteration and internal quotation marks omitted); see also Chiste

v. Hotels.com L.P., 756 F. Supp. 2d 382, 406–07 (S.D.N.Y.2010)
(“Declaratory judgments and injunctions are remedies, not causes
of action.”) Because Plaintiffs’ first, second, and third “causes
of action” request remedies, rather than plead a separate claim,
the first, second, and third “causes of action” are dismissed for
failure to state a claim.
II. Procedural Due Process Claims
A procedural due process claim requires a plaintiff to
establish that (1) he or she possesses a protected liberty or
property interest, and (2) was deprived of that interest without
constitutionally adequate process. See O’Connor v. Pierson, 426

F.3d 187, 196 (2d Cir. 2005); see also Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 313 (2d Cir. 2002). Pre-deprivation
processes “need not be elaborate,” and the Constitution “mandates
only that such process include, at a minimum, notice and the
opportunity to respond.” O’Connor, 426 F.3d at 198 (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985).
Defendants argue that the law of the case doctrine precludes
re-litigation of Plaintiffs’ procedural due process claims, in
light of the Court’s comprehensive December 2021 Order denying a
preliminary injunction. (ECF No. 69, City Defendants’ Memorandum

in Support, at 8-12.) The law of the case doctrine holds that
“when a court has ruled on an issue, that decision should generally
be adhered to by that court in subsequent stages of the same case,’
unless ‘cogent’ and ‘compelling’ reasons militate otherwise.”
Johnson v. Holder, 564 F.3d 95, 99-100 (2d Cir. 2009) (emphasis
added) (quoting United States v. Quintieri, 306 F.3d 1217, 1225
(2d Cir. 2002)). The Court notes, however, that the “preliminary
determination of likelihood of success on the merits in a ruling
on a motion for preliminary injunction is ordinarily tentative,
pending a trial or motion for summary judgment.” Goodheart
Clothing Co., Inc. v. Laura Goodman Enters., Inc., 962 F.2d 268,

274 (2d Cir. 1992). The Court also acknowledges that “[a] party
. . . is not required to prove [their] case in full at a
preliminary-injunction hearing, and the findings of fact and
conclusions of law made by a court granting a preliminary
injunction are not binding at a trial on the merits.” Univ. of
Texas v. Camenisch, 451 U.S. 390, 395 (1981) (citations omitted).
The Court need not decide here whether the law of the case
doctrine applies to prevent this Court’s reconsideration of the
factual and legal issues discussed in its December 2021 Order
denying Plaintiffs’ motion for a preliminary injunction. Cf.

Cangemi v. United States, 13 F.4th 115, 140 (2d Cir. 2021) (the
law-of-the-case doctrine is “discretionary and does not limit a
court’s power to reconsider its own decision prior to final
judgment” (quoting Virgin Atl. Airways, Ltd. v. Nat’l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992))). As discussed below,
however, the Court finds that (1) the Amended Complaint’s factual
allegations, which are mostly conclusory, add little to
Plaintiffs’ prior allegations; and (2) the legal analysis for the
preliminary injunction in the December 2021 Order sufficiently
overlaps with the issues—based on the current factual allegations
and the asserted claims—before the Court on the instant motions to

dismiss such that the Court reviews its prior analysis in assessing
Plaintiffs’ current claims. For the reasons set forth below, the
Court concludes that Plaintiffs’ Amended Complaint fails to state
plausible procedural due process claims.
a. Repeated and Conclusory Factual Allegations
First, Plaintiffs’ Amended Complaint, although filed after
the Court’s December 2021 Order denying the Plaintiffs’ motion for
a preliminary injunction, adds very few new facts to the complaint
before the Court in its December 2021 Order denying a preliminary
injunction. The Amended Complaint adds additional Plaintiffs and
the DC37 Defendants, and provides updates as to each Plaintiff’s
vaccination status and the status of seventy-seven of the
Plaintiffs’ reasonable accommodation requests. (ECF No. 27,

Amended Compl. at ¶¶ 92-93, 144-50.) Unlike the original
complaint, however, the Amended Complaint acknowledges that “[a]s
part of [the City’s] implementation of the Vaccine Mandate,” the
City “offered those FDNY employees who have either a medical or
religious reasons for not taking a vaccine an opportunity to seek
a reasonable accommodation to exempt the employee from the Vaccine
Mandate.” (Id. at ¶ 144.) As noted previously, the Court also
determines that the FDNY’s October Memorandum describing
accommodation procedures is “integral” to the Amended Complaint.
Nicosia, 834 F.3d at 230.
The Amended Complaint also includes ostensibly new factual

allegations regarding the DC37 Agreement to support Plaintiffs’
claim that the DC37 Agreement violated Plaintiffs’ due process
rights. (Id. at §§ 129, 133-43.) Plaintiffs’ allegations
concerning the DC37 Defendants and the DC37 Agreement, however,
are all legal conclusions devoid of specific facts: e.g., “DC37
conspired with [the City] by entering into an agreement . . . that
violated the DC37 members-Plaintiffs’ constitutional rights.”
(Id. at ¶ 138.) Courts are “not required to credit conclusory
allegations or legal conclusions couched as factual allegations.”
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal
quotation marks omitted). Indeed, the only non-conclusory
allegations in the Amended Complaint concerning the DC37 Agreement
are the following: (1) “DC37 entered into an agreement . . .

regarding the impact of the Vaccine Mandate, which provides that
on or after December 1, 2021, [the City] may unilaterally separate
DC37 members from their employment with the FDNY if the members
have not obtained a COVID-19 vaccine”; and (2) “DC37’s Agreement
with [the City] authorized [the City] to suspend without pay the
members of DC37 who did not take a COVID vaccine.” (ECF No. 27,
Amended Compl. at ¶¶ 133, 134.)
Therefore, the factual allegations currently before the
Court, although less than the full evidentiary record before the
Court in its December 2021 Order denying the motion for a
preliminary injunction, contain no new, non-conclusory factual

allegations that would upend the Court’s prior legal analysis.
a. Repeated Claims
Second, Plaintiffs’ Amended Complaint asserts primarily the
same causes of action as the original complaint and which this
Court considered in the December 2021 Order. In addition to the
“causes of action” for declaratory judgments and injunctive
relief, discussed above, Plaintiffs now assert a § 1983 claim
against Defendants for violating their procedural due process
rights; a § 1983 conspiracy claim against Defendants for conspiring
to violate their procedural due process rights; and a § 1983 claim
against individual Defendants Nigro, Garrido, and John and Janes
Does based on “direct participation and aiding and abetting” the
City’s violation of Plaintiffs’ due process rights. (ECF No. 27,

Amended Compl. at ¶¶ 197-245.) The only new claim in the Amended
Complaint is the § 1983 conspiracy claim. The underlying
constitutional violation alleged in each cause of action is that
Defendants violated Plaintiffs’ due process rights by suspending
Plaintiffs without pay if they refused to comply with the Vaccine
Mandate. (Id.) Therefore, Plaintiffs’ instant claims raise issues
identical issues to the claims addressed and decided by the Court
in denying the preliminary injunction. (ECF No. 24, December 2021
Order at 10-20.)
Furthermore, because Plaintiffs sought both a prohibitory and
mandatory injunction in their motion for a preliminary injunction,

the Court previously reviewed Plaintiffs’ legal arguments under
the higher pleading standard for a mandatory injunction. The Court
found that Plaintiffs failed to satisfy the standard for a
mandatory injunction by demonstrating a “clear” or “substantial”
likelihood of success on the merits of their procedural due process
claims, rather than merely a likelihood of success. (See ECF No.
5-8, Plaintiffs’ Preliminary Injunction Memorandum at 4); see also
Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d
Cir. 1995) (plaintiffs seeking a mandatory injunction must meet
higher standard and must show a “clear” or “substantial” likelihood
of success on the merits); D.D. ex rel. V.D. v. N.Y.C. Bd. of
Educ., 465 F.3d 503, 510 (2d Cir. 2006) (where the injunctive
relief sought is a mandatory injunction, or an injunction that

“alters the status quo by commanding a positive act,” the movant
must meet the higher standard of “mak[ing] a clear or substantial
showing of a likelihood of success on the merits.”).
Having reviewed Plaintiffs’ procedural due process
allegations at length—and now examining any well-pleaded factual
allegations in the Amended Complaint, exhibits, and incorporated
or integral documents—the Court concludes on the merits that “the
pre-deprivation and post-deprivation processes afforded to
Plaintiffs were constitutionally adequate,” and, therefore,
Plaintiffs’ Amended Complaint fails to state a claim and must be
dismissed. (ECF No. 24, December 2021 Order, at 16). Plaintiffs

received ample pre-deprivation notice of procedures regarding the
Vaccine Mandate, via the FDNY’s October Memorandum informing FDNY
employees about (1) the COH order; (2) the requirement to submit
proof of vaccination by October 29, 2021; (3) the ability to seek
reasonable accommodation and be exempted from the Vaccine Mandate
by October 27, 2021; and (4) the placement of non-compliant
employees on [leave without pay] status if they failed to comply
with the COH Order and did not submit an accommodation request by
the October 27 deadline. (ECF No. 17-1, October 21, 2021
Memorandum (“Oct. Mem.”) at 4, 15; ECF No. 27, Amended Compl. at
¶ 144.)
Further, accepting all well-pleaded factual allegations as
true for purposes of Defendants’ motions to dismiss, Plaintiffs

were provided with an opportunity to be heard prior to a final
decision. The opportunity to respond need not be a formal hearing.
Ezekwo, 940 F.2d at 786. Here, as acknowledged in the Amended
Complaint, any FDNY employee who challenged whether the Vaccine
Mandate should apply to them had the opportunity to seek a
religious or medical accommodation through an exemption to the
Vaccine Mandate. (ECF No. 27, Amended Compl. at ¶ 144.) Indeed,
the COH Order itself stated, in plain language, that it should not
be “construed to prohibit any reasonable accommodation otherwise
required by law.” (ECF 27. 125-1, Ex. A.) And any FDNY employees
who submitted reasonable accommodation requests before the October

27, 2021 deadline were not suspended without pay: only employees
who sought reasonable accommodation after October 27, 2021 were
placed on leave without pay while awaiting a reasonable
accommodation decision. (ECF No. 17-1, Oct. Mem. at 4, 16-17, 24-
25.) In addition to the above process, DC37 Plaintiffs had access
to additional time to seek an accommodation beyond the October 27
deadline—through November 5, 2021—as a result of the DC37
Agreement. (ECF No. 62-1, Corrected Exhibit B, at 2.)
The Court finds that the post-deprivation procedures were
constitutionally adequate. The City required that any denial of
a reasonable accommodation request “must provide written
information to the employee whose request has been denied and

include a link to . . . [the City’s] online appeals request
portal.” (ECF No. 17-4, Oct. Mem. at 25.) Any employee who was
denied a reasonable accommodation could file an appeal within three
days. (Id.) If an appeal was denied, the employee was required
to submit proof of the first dose of a COVID-19 vaccine within
three business days and, if required, of the second dose within 45
days. (Id.) If the employee refused to be vaccinated within the
given timeframe after the appeal was denied, the employee would
remain on LWOP status. (Id.) Finally, Plaintiffs had other post-
deprivation avenues, such as an Article 78 proceeding, to address
the COH Order and subsequent consequences. Hellenic Am.

Neighborhood Action Comm., 101 F.3d at 881 (“[A]n Article 78
proceeding is a perfectly adequate post-deprivation remedy.”).
Accordingly, the Court concludes, on the merits, that Defendants
provided constitutionally sufficient pre-deprivation and post-
deprivation process, and that Plaintiffs fail to state a procedural
due process claim.
a. Intervening Law
Moreover, although the Court decides the instant motions to
dismiss on the basis of Plaintiffs’ Amended Complaint and attached
and integral exhibits, the Court notes that there has been no

change in intervening law since the Court’s December 2021 Order
finding that Plaintiffs procedural due process rights were not
violated, despite a substantial amount of litigation concerning
the Vaccine Mandate.8 See, e.g., Marciano v. de Blasio, 589 F.
Supp. 3d 423, 436 (E.D.N.Y. Mar. 8, 2022) (plaintiff received

8 The Court’s procedural due process findings are not based on the process
required by state or municipal statutes. Moreover, there has not been a
substantial change in intervening law concerning this Court’s finding that the
Vaccine Mandate was a condition of employment. See Andre-Rodney v. Hochul, No.
21-cv-1053 (BKS)(CFH), 2022 WL 3027094 (N.D.N.Y. Aug. 1, 2022) (vaccine was
condition of employment for healthcare workers); D’Cunha v. Northwell Health
Sys., No. 22-cv-0988 (MKV), 2023 WL 2266520 (S.D.N.Y. Feb. 28, 2023) (same);
Commey, 2022 WL 3286548 (finding vaccination to be condition of employment for
porter); Kane, 2022 WL 3701183 (vaccine was condition of employment); Marciano,
589 F. Supp. 3d at 436 (same). Although—as Plaintiffs noted in their third
request to supplement their memorandum of law in opposition to Defendants’
motions to dismiss (ECF No. 81)—one New York Supreme Court judge has found that
the Vaccine Mandate was not a condition of employment, nearly all other New
York state courts to address the issue have found that the Vaccine Mandate was
a condition of employment. Compare Garvey v. City of New York, 77 Misc. 3d 585
(N.Y. Sup. Ct., Richmond Cnty., Oct. 24, 2022) (finding mandate was not a
condition of employment), with Clarke v. Bd. of Educ. of City School, No.
160787/21, 2023 WL 2124546 (N.Y. App. Div. 1st Dep’t, Feb. 21, 2023) (finding
mandate was a condition of employment); N.Y.C. Mun. Labor Comm. v. City of N.Y.,
2022 NY Slip Op. 22121 (Apr. 21, 2022 N. Y. Sup. Ct.) (same); O’Reilly v. Bd.
of Educ. of City School District of City of New York, No. 16104/21, 2023 WL
2124731, at *1 (N.Y. 1st Dep’t, Feb. 21, 2023) (same). Plaintiffs argued in
their first and second requests to amend their briefing that another New York
Supreme Court judge and the OCB have found that although the Vaccine Mandate
could be a condition of employment, it was improperly imposed under municipal
law. (ECF Nos. 77, 79.) As discussed extensively below, however, the Court
bases its procedural due process finding on constitutional standards, not on
state or municipal standards.
constitutionally sufficient minimum process for NYPD vaccine
policy); Kane v. de Blasio, No. 21-cv-7863 (NRB), 2022 WL 3701183,
at *12 (S.D.N.Y. Aug. 26, 2022)(constitutionally sufficient
minimum process was provided for DOE workers); cf. Donohue v.
Hochul, No. 21-CV-8463 (JPO), 2022 WL 673636, at *7 (S.D.N.Y. Mar.
7, 2022) (public-school mask mandate did not implicate procedural

due process concerns); Commey v. Adams, No. 22-CV-0018 (RA), 2022
WL 3286548, at *6 (S.D.N.Y. Aug. 11, 2022) (no procedural due
process concerns because mandate was legislative in nature);
Collins v. City Univ. of New York, No. 21-cv-9544 (NRB), 2023 WL
1818547, at *10 (S.D.N.Y. Feb. 8, 2023) (same); Mongielo v. Hochul,
No. 22-CV-116-LJV, 2023 WL 2307887, at *17 (W.D.N.Y. Mar. 1, 2023)
(same).
III. Plaintiffs’ Opposition to the Motion to Dismiss
In their opposition to Defendants’ motions to dismiss,
Plaintiffs’ central argument is that, contrary to the findings in
the Court’s December 2021 Order, the Vaccine Mandate was not a

condition of employment, and thus Defendants’ COH Order suspending
Plaintiffs without pay violated Plaintiffs’ procedural due process
rights.9 (ECF No. 73, Plaintiffs’ Mem. at 12-13, 19-21.) In

9 Plaintiffs also argue that Defendants violated New York City Charter Section
487(a) when the FDNY issued the October Memorandum concerning the City’s newly
imposed Vaccine Mandate. (ECF No. 73, Plaintiffs’ Mem. at 9.) New Yokr City
Charter Section 487(a) provides that the FDNY Commissioner “shall have sole and
exclusive power and perform all duties for the government, discipline,
management, maintenance and direction of the fire department and the premises
and property in the custody thereof.” N.Y.C. Charter § 487(a). Plaintiffs
argue, circularly, that because the Chief of Operations of the FDNY John
their opposition, Plaintiffs assert several arguments in support
of their claim that the Vaccine Mandate was not a condition of
employment: they first contend that because City Defendants failed
to negotiate and bargain with FDNY unions concerning the new
condition of employment, which Plaintiffs contend is required
under New York Civil Service Law Section 201.4, the Vaccine Mandate

was invalidly imposed. (Id. at 12.) Plaintiffs also argue that,
even though the FDNY did bargain and negotiate with DC37 concerning
the Vaccine Mandate, the resulting DC37 Agreement was never
ratified by DC37’s union members. (Id. at 14-16.) Plaintiffs
assert that under New York City Admin. Code Section 12-307(a)(4),
the DC37 Agreement could not amend the existing procedures of
DC37’s collective bargaining agreement without ratification by its
members. (Id. at 14-16.) They contend that the DC37 Agreement
was invalid, meaning that the Vaccine Mandate could not become a
condition of employment as to the DC37 member-Plaintiffs. (Id.)
In other words, Plaintiffs premise their due process claims on the

Hodgens, rather than FDNY Commissioner Nigro, circulated the FDNY’s October
Memorandum alerting FDNY employees as to City’s newly imposed Vaccine Mandate,
the Vaccine Mandate was issued in violation of § 487(a) and was invalid. (ECF
No. 73, Plaintiffs’ Mem. at 9-10.) Plaintiffs confuse the Vaccine Mandate (the
City’s vaccine requirement); the COH Order (the order from the Commissioner of
Health imposing the Vaccine Mandate); and the FDNY’s October Memorandum (the
memorandum informing FDNY employees about the Vaccine Mandate. (See ECF NO.
17-1.) Plaintiffs’ argument is frivolous on its face, as the logical inference
that Plaintiffs urge the Court to draw is that the FDNY Commissioner’s name
must be on every memorandum issued to FDNY employees or the memorandum will
violate § 487(a). (Id.; ECF No. 73, Plaintiffs’ Mem. at 9.) In any case,
because the Court looks to “federal constitutional standards rather than state
[or local] statutes” to define the requirements of procedural due process, as
discussed above, Plaintiffs’ argument is meritless. Robison, 821 F.2d at 923.
assertion that (1) Defendants failed to follow state and municipal
procedural requirements in imposing the Vaccine Mandate; (2) the
Vaccine Mandate therefore was not a condition of employment; (3)
if the Vaccine Mandate is not a condition of employment, the COH
Order is invalid; and thus (4) Defendants’ suspension of Plaintiffs
without pay violated Plaintiffs’ procedural due process. (Id. at

12-16.)
As the Court has repeatedly stated, however, “the Court looks
to federal constitutional standards rather than state statutes to
define the requirements of procedural due process.” (ECF No. 24,
December 2021 Order, at 10-11 (citing Robison, 821 F.2d at 923).)
Courts repeatedly have held that state statutes do not determine
constitutional due process requirements. See, e.g., Loudermill,
470 U.S. at 541 (“In short, once it is determined that the Due
Process Clause applies, the question remains what process is due.
. . . The answer to that question is not to be found in the [state]
statute.”); Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990)

(“[T]he fact that the State may have specified its own procedures
that it may deem adequate for determining the preconditions to
adverse official action . . . does not settle what protection the
federal due process clause requires.” (internal quotation marks
omitted)); cf. Liberian Cmty. Ass’n of Connecticut v. Lamont, 970
F.3d 174, 192 (2d Cir. 2020) (“[C]ases from both the Supreme Court
and our Court make clear that the federal procedural due process
guarantee does not require state officials to inform individuals
of all the procedural guarantees they enjoy under state law.”).
Indeed, the Second Circuit recently reiterated that a district
court failed to properly assess whether a defendant’s conduct
violated the procedural guarantees of the Due Process Clause where
the court examined the due process claim exclusively by assessing

a defendant’s failure to comply with state law. See Tooly v.
Schwaller, 919 F.3d 165, 172-73 (2d Cir. 2019) (“[V]iolation of
state law does not per se result in a violation of the Due Process
Clause”).
Thus, to the extent that Plaintiffs base their procedural due
process claims solely on alleged violations of state and municipal
law, as noted above, their claims fail. See McDarby v. Dinkins,
907 F.2d 1334, 1337–38 (2d Cir. 1990) (“When the minimal due
process requirements of notice and hearing have been met, a claim
that an agency's policies or regulations have not been adhered to
does not sustain an action for redress of procedural due process

violations.”); Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.1987)
(“State procedural requirements do not establish federal
constitutional rights. At most, any violation of state procedural
requirements would create liability under state law.” (citations
omitted)). Plaintiffs provide no facts or law supporting a
contrary argument, and Plaintiffs cannot add news facts at this
stage. As discussed above, Plaintiffs conclusorily argue that
they were suspended without due process. (ECF No. 73, Plaintiffs’
Mem. at 20 (“If the Vaccine Mandate is not a condition of
employment for FDNY employees, then, the City Defendants had no
legal right or authority to suspend the Plaintiffs without pay
without due process.”).) The allegations in the Amended Complaint—
establishing that Defendants provided notice and an opportunity to

seek accommodations via exemptions—satisfy due process.
Accordingly, because the Court has found that there was
constitutionally sufficient process, Plaintiffs’ procedural due
process claims—the § 1983 claim against all Defendants and the §
1983 claim for “direct participation and aiding and abetting”
against individual Defendants—are dismissed for failure to state
a claim.
IV. Other Causes of Action
a. Section 1983 Conspiracy
Having dismissed Plaintiffs’ claim that Defendants violated
their due process rights, the Court also finds that Plaintiffs’

allegations are insufficient to state a plausible § 1983 conspiracy
claim against Defendants. “To state a § 1983 conspiracy claim, a
plaintiff must allege (1) an agreement between two or more state
actors, (2) ‘to act in concert to inflict unconstitutional injury,’
and (3) ‘an overt act done in furtherance of that goal causing
damages.’” Barnes v. Abdullah, No. 11–CV–8168, 2013 WL 3816586,
at *9 (S.D.N.Y. July 22, 2013) (quoting Ciambriello, 292 F.3d at
324–25); Sibiski v. Cuomo, No. 08–CV–3376, 2010 WL 3984706, at *6
(E.D.N.Y. Sept. 15, 2010) (citing same). Notably, “[v]ague and
conclusory allegations that defendants have engaged in a
conspiracy to violate plaintiff’s constitutional rights must be
dismissed.” Poole v. New York, No. 11–CV–921, 2012 WL 727206, at
*6 (E.D.N.Y. Mar. 6, 2012); see also Krug v. McNally, 368 F. App’x

269, 270 (2d Cir. 2010) (“[C]omplaints containing only conclusory,
vague, or general allegations that the defendants have engaged in
a conspiracy to deprive the plaintiff of his constitutional rights
are properly dismissed; diffuse and expansive allegations are
insufficient, unless amplified by specific instances of
misconduct.” (alteration in original) (internal quotation marks
omitted)). Plaintiff “must allege . . . overt acts which
defendants engaged in which were reasonably related to the
promotion of the alleged conspiracy.” Elmasri v. England, 111 F.
Supp. 2d 212, 218 (E.D.N.Y. 2000) (internal quotation marks
omitted.)

Plaintiffs fail to state a § 1983 conspiracy claim. As
detailed above, Plaintiffs fail to state an underlying procedural
due process claim. Therefore, Plaintiffs’ § 1983 conspiracy claim
fails as a matter of law. Singer v. Fulton Cty. Sheriff, 63 F.3d
110, 119 (2d Cir. 1995) (a § 1983 conspiracy claim “will stand
only insofar as the plaintiff can prove the sine qua non of a §
1983 action: the violation of a federal right”); see also AK
Tournament Play, Inc. v. Town of Wallkill, No. 09–CV-10579, 2011
WL 197216, at *4 (S.D.N.Y. Jan. 19, 2011) (“Plaintiffs’ § 1983
conspiracy claims against all Defendants must be dismissed because
Plaintiffs have failed to allege any violation of any cognizable
constitutional right.”), aff’d, 444 F. App’x 475 (2d Cir. 2011)
(summary order); Mitchell v. Cnty. of Nassau, 786 F. Supp. 2d 545,

564 (E.D.N.Y. Mar. 24, 2011) (“[A] § 1983 conspiracy claim fails
as a matter of law where there is no underlying constitutional
violation.”).
Additionally, Plaintiffs do not proffer any nonconclusory
facts regarding the nature of the conspiracy, Defendants’
membership in the conspiracy, or the overt steps taken by any of
the Defendants in furtherance of that conspiracy. Apart from
“diffuse and expansive allegations” that are not “amplified by
specific instances of misconduct,” Krug, 368 F. App’x at 270
(internal quotation marks omitted), the Amended Complaint is
bereft of any facts sufficient to give rise to a plausible § 1983

conspiracy claim. In fact, the Amended Complaint merely refers to
a conspiracy based on Plaintiffs’ vague and conclusory assertions
that “[DC37 Defendants] conspired with [City Defendants] by
entering into an agreement with [the City] that violated the DC3
7 members-Plaintiffs’ constitutional rights” and “[a]s a result of
the conspiracy between [DC37 Defendants] and [City Defendants],
the DC37 members-Plaintiffs’ constitutional rights have been
violated.” (ECF No. 27, Amended Compl. ¶¶ 134-143, 216-239.)
Plaintiffs’ bald allegations, however, do not give rise to a
plausible inference that Defendants acted in concert to violate
Plaintiffs’ constitutional rights. The allegations “constitute
the type of vague, conclusory, and general allegations that,
standing alone, are routinely found lacking under Rule 12(b)(6).”

Orr ex rel. Orr v. Miller Place Union Free Sch. Dist., No. 07–CV–
787, 2008 WL 2716787, at *5 (E.D.N.Y. July 9, 2008) (internal
quotation marks omitted). Accordingly, Plaintiffs’ § 1983
conspiracy claim is dismissed for failure to state a claim.
a. Class Claim
Because Plaintiffs fail to state a claim, their class
allegations also fail. Cf. Xuedan Wang v. Hearst Corp., No. 12-
CV-793 (HB), 2013 WL 105784, at *3 (S.D.N.Y. Jan. 9, 2013) (noting
that where court dismissed a claim under Rule 12(c), motion to
strike class allegations could be granted as to that claim.)
V. Leave to Amend

Under Federal Rule of Civil Procedure 15(a), leave to amend
a complaint “shall be freely given when justice so
requires.” Therefore, “[i]t is the usual practice upon granting
a motion to dismiss to allow leave to replead.” Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (citations
omitted). A court may, however, dismiss claims without leave to
amend where the proposed amendments would be futile. See Ruotolo
v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (citing Foman
v. Davis, 381 U.S. 178, 182 (1962)). An amendment to the complaint
is futile if the “proposed claim could not withstand a motion to
dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of N.
Hempstead Bd. Of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002),
abrogated on other grounds by Knick v. Twp. of Scott, 139 S. Ct.

2162 (2019). Leave to amend may also be denied where previous
amendments have not cured the complaint’s deficiencies. Ruotolo,
514 F.3d at 184 (citing Foman, 381 U.S. at 182); see also DeJesus
v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 72 (2d Cir. 1996)
(noting that the Second Circuit has “upheld decisions to dismiss
a complaint without leave to replead when a party has been given
ample prior opportunity to allege a claim.” (collecting cases)).
Here, after extensive briefing, evidentiary submissions, and
a show cause hearing, the Court allowed Plaintiffs an opportunity
to amend their complaint. (ECF No. 24, December 2021 Order at 8;
ECF No. 27, Amended Compl.) Despite the Court’s detailed analysis

of Plaintiffs’ factual allegations and claims in its December 2021
Order, Plaintiffs have again failed to allege facts supporting
their claims. Under these circumstances, and because further
amendments to the complaint would not cure the deficiencies
discussed in this opinion, any amendment would be
futile. Therefore, Plaintiffs’ complaint is dismissed with
prejudice. See, e.g., Ariel (UK) Ltd. v. Reuters Grp., PLC, 277
F. App’x 43, 45-46 (2d Cir. 2008) (summary order) (stating that
the district court did not abuse its discretion in not sua sponte
granting leave to amend following dismissal of the complaint where
plaintiff “had already amended its complaint once, and any
amendment would have been futile”).
CONCLUSION
For the reasons set forth above, City Defendants’ Motion to
Dismiss and DC37 Defendants’ Motion to Dismiss are GRANTED in their
entirety and leave to amend is DENIED. The Clerk of Court is
respectfully directed to enter judgment in favor of Defendants and
close this case.

SO ORDERED.
Dated: March 29, 2023
Brooklyn, New York

“)y □□ + * “wwe
Hon. Kiyo A. Matsumoto
United States District Judge

35

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309505. Public record. Not legal advice.