Nicholas v. Seggos

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JASON B. NICHOLAS,

Plaintiff,

V.

No. 8:23-CV-463

BASIL SEGGOS, et al., (GTS/CFH)

Defendants.

APPEARANCES:

Jason B. Nicholas

86 Duane Street

Malone, New York 12953

Plaintiff pro se

I

REPORT-RECOMMENDATION AND ORDER

I. Background

Plaintiff pro se Jason B. Nicholas (“plaintiff’) commenced this action on March

22, 2023, by filing a complaint in the U.S. District Court for the Southern District of New

York. See Dkt. No. 1 (“Compl.”). Plaintiff also filed an application to proceed in forma

pauperis (“IFP”), and a motion for a preliminary injunction. See Dkt. Nos. 2, 3, 4. The

case was transferred to this Court on April 14, 2023. See Dkt. No. 8. The Court

ordered that its decision on the motion for a preliminary injunction be held in abeyance

pending the Court’s initial review of plaintiff's complaint and his IFP application. See

Dkt. No. 9. On July 11, 2023, plaintiff filed an amended complaint and an amended

memorandum of law in support of his motion for a preliminary injunction. See Dkt. Nos.

10 “Am. Compl.), 11. Plaintiff filed a letter motion asking the Court to issue a decision

on his motion for a preliminary injunction. See Dkt. No. 12. The Court denied the letter

motion without prejudice and explained that it will not decide the motion for a preliminary

injunction until “Defendants file their response to that motion, which is not due until (1)

TWENTY-ONE (21) DAYS after proper service of the summons and Amended

Complaint is effectuated upon the named Defendants, and (2) the case survives initial

| review and Plaintiff's motion for in forma pauperis status is granted.” Dkt. No. 13.

The undersigned has reviewed plaintiff's IFP application and determines that he

financially qualifies to proceed IFP."

ll. Initial Review

ray A. Legal Standard

Section 1915? of Title 28 of the United States Code directs that, when a plaintiff

seeks to proceed IFP, “the court shall dismiss the case at any time if the court

determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). It is a court’s responsibility

| to determine that a plaintiff may properly maintain his complaint before permitting him to

proceed with his action.

Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and

costs he may incur in this action.

2 The language of § 1915 suggests an intent to limit availability of IFP status to prison inmates. See 28

U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a

person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The

courts have construed that section as making IFP status available to any litigant who can meet the

$002) 9 financial criteria. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y.

Where, as here, the plaintiff proceeds pro se, “the court must construe his [or

her] submissions liberally and interpret them to raise the strongest arguments that they

suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

(citation and internal quotation marks omitted). This does not mean the Court is

required to accept unsupported allegations that are devoid of sufficient facts or claims.

Although detailed allegations are not required at the pleading stage, the complaint must

still include enough facts to provide the defendants with notice of the claims against

them and the grounds on which these claims are based. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Pro se

litigants are “not exempt . . . from compliance with relevant rules of procedural and

substantive law[.]’ Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation omitted).

m| Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. “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 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation

omitted).

Pleading guidelines are set forth in the Federal Rules of Civil Procedure (“Fed. R.

m| Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief

shall contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the

claim being asserted so as to permit the adverse party the opportunity to file a

responsive answer, prepare an adequate defense and determine whether the doctrine

of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999)

(internal quotation marks and citations omitted). Rule 8 also requires the pleading to

include “a short and plain statement of the grounds for the court’s jurisdiction” and “a

demand for the relief sought... .” FED. R. Civ. P. 8(a)(1), (3). Although “[nJo technical

form is required,” the Federal Rules make clear that each allegation contained in the

pleading “must be simple, concise, and direct.” Id. at 8(d)(1).

o Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence — and each defense other than a denial — must

be stated in a separate count or defense.

R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189

F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to

comply with the pleading requirements “presents far too [] heavy [a] burden in terms of

defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.

352, 355 (N.D.N.Y. 1996). The Second Circuit has held that “[w]hen a complaint does

m| Not comply with the requirement that it be short and plain, the court has the power, on

its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42

(2d Cir. 1988) (citation omitted). However, “[d]ismissal . . . is usually reserved for those

cases in which the complaint is so confused, ambiguous, vague, or otherwise

unintelligible that its true substance, if any, is well disguised.” Id. (citation omitted). If

dismissal is warranted and the plaintiff is pro se, the court generally affords the plaintiff

leave to amend the complaint. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir.

1995).

B. Plaintiff's Complaint

Plaintiff filed his original complaint on March 22, 2023, and he filed his amended

complaint on July 11, 2023. See Compl.; Am. Compl. Plaintiff reiterated the allegations

| from his original complaint in his amended complaint. As such, the amended complaint

is the operative pleading in this matter. Plaintiff attached exhibits to his original

complaint but did not reattach them to his amended complaint. See Compl. at 14-49.

He instead incorporates the exhibits by reference. See Am. Compl. at 3, J 4.°

“Although it is well settled that an amended complaint supersedes a prior complaint in

its entirety, it is clear to the court that plaintiff intended to attach the exhibits to his

m} amended complaint.” Wellington v. Langendorf, No. 9:12-CV-1019 (FJS/DEP), 2013

WL 3753978, at *3, n.2 (N.D.N.Y. July 15, 2013).* For the sake of efficiency, the Court

will not require plaintiff to resubmit the exhibits and will consider them as incorporated

into the amended complaint.

Plaintiff is an independent journalist who applied for a New York State license to

be a fishing, camping, and hiking guide. See Am. Compl. at 3, 7 4. Plaintiff brings this

action against Basil Seggos, the Commissioner of the New York State Department of

Environmental Conservation (“DEC”); Gaye Somogie, DEC’s Licensed Guide Program

Coordinator from at least November 4, 2022, to March 22, 2023; and Joseph Therrien,

3 Citations are to the pagination generated by the Court’s electronic filing system.

4 This unpublished decision has been provided to plaintiff.

DEC’s current Licensed Guide Program Coordinator? (collectively “defendants”). See

id. at 3-4, [J 5-7.

The New York State Constitution contains a “Forever Wild Clause” which

requires that specific state lands known as the Forest Reserve remain wild forest lands.

Am. Compl. at 7, 9 16. In 2017, plaintiff reported on then-governor Andrew Cuomo and

| the DEC’s plan to build “luxury ‘glamorous camping’ grounds in the New York State

Forest Preserve.” Id. at 6, 15. Plaintiff reported that local environmental groups and

residents were prepared to sue to challenge the plan. See id. As part of his reporting,

plaintiff spoke to the executive director the “Protect the Adirondacks!” organization, and

a confidential source inside the state government, both of whom spoke on Mr. Cuomo’s

plan to increase motorized recreational uses in the Forest Reserve. See id. at 7-8, J

Commissioner Seggos wrote an article which claimed that the “glamp-grounds”

would “be primitive in nature, temporary, and self-serviced” with “no more than a dry

tent structure with a cot and mattress.” Id. at 9, 9 19. Plaintiff contradicted

Commissioner Seggos’ statements in his reporting with a 2015 DEC report which noted

that the “glamp-grounds” would need to include full-service kitchens, toilets, motorized

access, and road access. See id. at 9, J 20. The DEC’s plan also included a portion of

the Boreas Pond Tract which was classified as protected wilderness. See id. at 10, {

21. To be built on, the land would have to be reclassified by the Adirondack Park

Agency (“APA”), which it refused to do. See id. at 10-11, J] 21-22. “[T]he APA acted

after [plaintiff's] report on the glamp-grounds controversy was published[.]” Id. at 11, J

22.

5 Plaintiff did not name Joseph Therrien in his original complaint. See Compl. at 1. The Clerk of the

Court is respectfully directed to add Therrien as a defendant on the docket.

In 2018, plaintiff learned that the New York State Office of Parks and Recreation

(“OPR’) and the Open Space Institute (“OSI”) were planning to rebuild a carriage road.

see Am. Compl. at 11-12, J] 23-24. Plaintiff sued OPR and Commissioner Seggos, but

the lawsuit was dismissed. See id. at 12, J] 24-25. Plaintiff contacted OSI’s president

who agreed not to rebuild the road. See id. at 12, 9 25. In 2021, Mr. Cuomo was

o replaced by Governor Kathy Hochul, and the DEC began reconstructing a road it had

previously deconstructed. See id. at 13, | 26. In October 2022, plaintiff moved from

New York City to Malone, New York with the hopes of becoming an outdoor guide. See

id. at 16, J 30. In 2023, plaintiff created a news blog and reported on Governor Hochul

and the DEC’s plans. See id. at 13-14, ] 27. He also reported on a lawsuit that had

been brought against the DEC “for violating the New York State Constitution’s new

m| Green Amendment by allowing New York City to dump a literal mountain of trash on a

small town outside Rochester.” Id. at 14, J 28.

New York requires a license to be an outdoor guide. See Am. Compl. at 16, J

31. New York empowers the “DEC to ‘establish standards and procedures for testing

and licensing of guides’ by regulations.” Id. (quoting N.Y. Env’t Conserv. L. § 11-0533).

Title 6 of the New York Code of Rules and Regulations (“N.Y.C.R.R.”) § 197.3 governs

guide licensing and contains nine requirements which must be met prior to applying for

license. See id. at 16-17, ] 32. The regulation instructs that “a person who”

completes all of the requirements “will be issued” a license. Id. (quoting 6 N.Y.C.R.R.

§ 197.3). Plaintiff alleges that he completed all of the licensing requirements. See id. at

17-18, JJ 33-38; see also Compl. at 14-21. He then submitted a complete application

on November 4, 2022.6 See id. at 18, ] 39. Plaintiff alleges that it can take “five-to-six

to process the application and issue the guide license[.]” Id. at 18, | 40. In an e-mail

from Ms. Somogie, she stated that an application “can take four to five weeks to review

and process.” Compl. at 36. Plaintiff e-mailed Ms. Somogie on December 30, 2022,

informing her that he changed his address, which she acknowledged in an e-mail on

January 3, 2023. See Am. Compl. at 18, | 40; see also Compl. at 38-39. He e-mailed

her on February 14, 21, and 27, 2023, asking for an update on his application. See Am.

Compl. at 18-19, | 40-41; see also Compl. at 38, 42. Ms. Somogie did not respond to

the e-mails. See Am. Compl. at 18-19, Jf 40-41. Plaintiff then called the DEC, twice.

See Am. Compl. at 19, | 42. Ms. Somogie e-mailed plaintiff on March 2, 2023, and

informed him that the DEC received his application, and it was in review. See id.; see

m| also Compl. at 44. Plaintiff e-mailed Commissioner Seggos on March 17, 2023, as well

as Executive Deputy Commissioner Sean Mahar and Chief of Staff Erica Ringewald.

See id. at 19, 7 43. No one responded to plaintiff. See id.

“After [he] placed [his] lawsuit in the mail, [Ms.] Somogie” e-mailed plaintiff telling

him that his license was being processed. Am. Compl. at 19, 44. In the e-mail, Ms.

Somogie notified plaintiff of typographical errors in his application that needed

m| correction. See id. at 19-20, | 44. Plaintiff e-mailed corrected documents on March 22,

2023. See id. at 20 7 45. Plaintiff again e-mailed Ms. Somogie on May 1, 2023, and

Mr. Therrien responded. See id. at 20, | 46. Mr. Therrien explained that Ms. Somogie

was on extended leave and that plaintiff's application was among a large backlog of

On the first page of his amended complaint, plaintiff states that he submitted his complete application on

November 7, 2022. See Am. Compl. at 1, 9 1. However, he later states that it was on November 4, 2022.

See id. at 18, | 39. In his original complaint, plaintiff stated that he submitted his complete application on

November 4, 2022. See Compl. at 1, J 1; 8, J 20.

applications but would be processed as quickly as possible. See id. Plaintiff e-mailed

on June 2, 2023, and Mr. Therrien explained that plaintiff's application was still under

review. See id. at 20, § 47. As of the time plaintiff filed his amended complaint on July

11, 2023, he had not received a decision on his application. See id. at 21, J 49.

Plaintiff alleges that defendants’ conduct violates his First and Fourteenth

Amendment rights to free speech and association, and substantive and procedural due

process. See Am. Compl. at 24-25, J] 60-62. He also contends that the DEC’s

“licensing regime . . . is unconstitutional on its face.” Id. at 24, 7 59. Plaintiff seeks a

declaration that “New York’s guide licensing regime is unconstitutional on its face;” an

injunction preventing defendants from enforcing any penalties for guiding without a

license “until Defendants promulgate regulations that satisfy the Constitution;” monetary

damages; and costs and fees. Id. at 26, [{ 1-6.

Ill. Analysis

A. Individual Defendants in their Official Capacities

Plaintiff seeks to sue defendants in their individual and official capacities. See

Compl. at 3-4, J] 5-7. “As a general rule, state governments and their agencies

may not be sued in federal court unless they have waived their Eleventh Amendment

immunity or there has been a valid abrogation of that immunity by Congress.” Jackson

v. Battaglia, 63 F. Supp. 3d 214, 219-20 (N.D.N.Y. 2014) (citation omitted). “This

immunity ‘extends beyond state agencies to state officials at those agencies working on

behalf of the state (i.e. in their official capacities).’”” Morris v. New York State Police,

268 F. Supp. 3d 342, 359 (N.D.N.Y. 2017) (citation omitted). Additionally, “declaratory

relief, while equitable in nature, is barred by the Eleventh Amendment when it would

serve to declare only past actions in violation of federal law; retroactive declaratory relief

cannot be properly characterized as prospective.” Aron v. Becker, 48 F. Supp. 3d 347,

367 (N.D.N.Y. 2014) (citation and quotation marks omitted).

“Ex parte Young, 209 U.S. 123 (1908), [] provides a ‘a narrow exception

grounded in traditional equity practice—one that allows certain private parties to seek

judicial orders in federal court preventing state executive officials from enforcing state

laws that are contrary to federal law.” Silva v. Farrish, 47 F.4th 78, 84 (2d Cir. 2022)

(quoting Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021)). “To

determine whether Ex parte Young applies to a complaint, [the Court] conduct[s] a

m| ‘Straightforward inquiry’ into whether the complaint (1) ‘alleges an ongoing violation of

federal law” and (2) ‘seeks relief properly characterized as prospective.” Id. (quoting

Verizon Md. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)).

Insofar as plaintiff seeks to sue defendants in their official capacities for monetary

damages under § 1983, such claims are barred by Eleventh Amendment immunity.

See Murtaugh v. New York, 810 F. Supp. 2d 446, 470 (N.D.N.Y. 2011) (concluding that

Claims against the DEC Commissioner for “civil penalties” were barred by the Eleventh

Amendment). However, insofar as plaintiff alleges that the licensing regulations violate

the First and Fourteenth Amendments and he asks the Court to declare them

unconstitutional and enjoin defendants from enforcing them, the claims can be fairly

characterized as prospective and within the Ex Parte Young exception. As explained

below, plaintiff has stated constitutional claims sufficient to proceed past initial review.

10

See infra at 12-18. Thus, the claims against the defendants in their official capacities

seeking injunctive and declaratory relief that are not barred by sovereign immunity can

proceed. See Silva, 47 F.4th at 86 (“[T]he plaintiffs’ claims seeking prospective relief

against the DEC officials fall within the Ex parte Young exception to state sovereign

immunity and accordingly may proceed..”).

B. First Amendment

1. Right to Association

“The United States Constitution affords protection to two distinct types of

association, ‘intimate association’ and ‘expressive association.” Sanitation & Recycling

Indus., Inc. v. City of New York, 107 F.3d 985, 995-96 (2d Cir. 1997) (quoting Roberts v.

United States Jaycees, 468 U.S. 609, 617-18 (1984)). The right of intimate association

m| “Quarantees an individual the choice of entering an intimate relationship free from undue

intrusion by the state. At a minimum, it extends to relationships that ‘attend the creation

and sustenance of a family—marriage, childbirth, the raising and education of children,

and cohabitation with one’s relatives.” Id. at 996 (citation omitted). Expressive

association “protects the right of individuals to associate for purposes of engaging in

activities protected by the First Amendment, such as speech, assembly, the exercise of

| religion, or petitioning for the redress of grievances.” Id.; see also Slattery v. Hochul, 61

F.4th 278, 286 (2d Cir. 2023) (citation omitted) (“The Court has [] ‘long understood as

implicit in the right to engage in activities protected by the First Amendment a

corresponding right to associate with others in pursuit of a wide variety of political,

social, economic, educational, religious, and cultural ends.’”).

11

Plaintiffs complaint does not state a claim concerning intimate association as it

does not relate in any way to intimate relationships. See generally Am. Compl. The

undersigned comes to a different conclusion as to expressive association. Plaintiff

alleges that (1) the DEC’s regulations do not provide him a mechanism to challenge its

conduct; and (2) the DEC’s regulations and its officials’ actions are keeping him from

° being an outdoor guide and would criminalize him if he engaged in guiding without a

license. See id. at 20-21, J] 48-50. At this early stage, this is sufficient to state a claim

for a First Amendment expressive association violation. See Roberts, 468 U.S. at 636

(O’Connor, J., concurring in part) (“Even the training of outdoor survival skills or

participation in community service might become expressive when the activity is

intended to develop good morals, reverence, patriotism, and a desire for self-

m| improvement”).

2. Retaliation

“To state a First Amendment retaliation claim, a plaintiff must allege that: (1) her

‘speech or conduct was protected by the First Amendment; (2) the defendant took an

adverse action against [her]; and (3) there was a causal connection between this

adverse action and the protected speech.” A.S. v. City Sch. Dist. of Albany, 585 F.

m| Supp. 3d 246, 269 (N.D.N.Y. 2022) (quoting Cox v. Warwick Valley Central Sch. Dist.,

654 F.3d 267, 272 (2d Cir. 2011)). “The First Amendment reflects ‘a profound national

commitment to the principle that debate on public issues should be uninhibited, robust,

and wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “Accordingly, ‘speech on public issues

occupies the highest rung of the hierarchy of First Amendment values, and is entitled to

12

special protection.” Id. (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). At this

early stage, plaintiff has sufficiently stated a First Amendment retaliation claim given his

allegations that he reported on the DEC and New York officials’ conduct related to the

DEC’s plans and the DEC and its officials have refused to grant him a guide license as

a result.

° C. Fourteenth Amendment

Plaintiff alleges that the DEC regulations violate the Fourteenth Amendment

because they do not contain any time constraints on responding to applications and do

not have “a mechanism for applicants denied a license, or whose request for a license

is ignored, to request a hearing or an appeal of any kind[.]” Am. Compl. at 21, J 50.

1. Procedural Due Process

The Fourteenth Amendment forbids states from depriving any person of property

without due process of law. See U.S. Const. amend. XIV, § 1 (“[NJor shall any State

deprive any person of life, liberty, or property, without due process of law....”). “The

two threshold questions in any § 1983 claim for denial of procedural due process are

whether the plaintiff possessed a liberty or property interest protected by the United

States Constitution or federal statutes, and, if so, what process was due before plaintiff

Could be deprived of that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995)

(citation omitted).

It is possible for a person to have a property interest in a vocational license. See

New York State Trawlers Ass'n v. Jorling, 16 F.3d 1303, 1311 (2d Cir. 1994) (“Persons

engaged in an industry affecting the public interest may be subject to state regulation,

including licensing schemes. One’s interest in a license may be a property interest

13

cognizable by the Due Process Clause of the Constitution . . .. Constitutional

cognizance of a property interest in a vocational license requires states to administer

licensing schemes fairly.”).

However, “there can be no Due Process Clause violation ‘so long as the State

provides a meaningful postdeprivation remedy.” Clark v. Dominique, 798 F. Supp. 2d

390, 401 (N.D.N.Y. 2011) (quoting Hellenic Am. Neighborhood Action Comm. v. City of

New York, 101 F.3d 877, 880 (2d Cir. 1996)). “In New York State, an Article 78

proceeding provides an avenue of postdeprivation redress that satisfies due process

requirements.” Id. (collecting cases). “[I]t matters not whether a plaintiff actually avails

[him]self of the state court post-deprivation process. So long as that process is

available, a due process claim must be dismissed.” Id. (first alteration in original)

(quoting Longo v. Suffolk Cnty. Police Dep't, 429 F. Supp. 2d 553, 560 (E.D.N.Y.

2006)). “In contrast, when the deprivation is pursuant to an established state

procedure, the state can predict when it will occur and is in the position to provide a pre-

deprivation hearing. Under those circumstances, the availability of post-deprivation

procedures will not, joso facto, satisfy due process.” Rivera-Powell v. New York City

Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (citation and quotation marks

| Omitted).

Generally, “[t]hose who wish to challenge agency determinations under article 78

may not do so until they have exhausted their administrative remedies[.]” Walton v.

New York State Dept. of Correctional Servs., 863 N.E.2d 1001, 1006 (Ct. App. 2007).

“Absent exceptional circumstances, it is only after such a hearing is held, and a final

determination made, that an aggrieved party may bring a[n] article 78 proceeding to

14

challenge the legality of the determination[.]” Matter of Pyramid Co. of Onondaga v.

Hudacs, 597 N.Y.S.2d 816, 818 (App. Div. 1993). “An article 78 proceeding may lie in

the absence of a final determination where the relief sought is by way of prohibition or

by way of mandamus to compel performance by an administrative agency of a duty

enjoined by law.” Hamptons Hosp. & Med. Ctr., Inc. v. Moore, 417 N.E.2d 533, 537 (Ct.

o App. 1981) (footnote omitted). “Mandamus for such purpose, however, lies only where

the right to relief is ‘clear’ and the duty sought to be enjoined is performance of an act

commanded to be performed by law and involving no exercise of discretion.” Id.

(citation omitted); see also Hoffmann v. New York State Indep. Redistricting Comm'n,

192 N.Y.S.3d 763, 768-69 (App. Div. 2023) (citations omitted) (“Discretionary acts

involve the exercise of judgment that may produce different and acceptable results[.]”).

Plaintiff alleges that DEC has not granted or denied his application. See Am.

Compl. at 21,9 49. Thus, there has been no final agency determination which could be

brought for review under Article 78. However, plaintiff also alleges that the DEC has no

administrative process that he could have exhausted. See id. at 24, 9 59. Plaintiff

contends that the licensing regulation gives “[djefendants absolute, unbridled discretion

to issue, ignore or reject guide license applications,” but that the statutory language is

m| “Mandatory.” Am. Compl. at 16, § 32; 24, 9 59. Plaintiff does not allege that he pursued

an Article 78 proceeding or that such a proceeding was unavailable to him.

At this early stage, the undersigned recommends allowing the procedural due

process claim to proceed past initial review as plaintiff alleges that there was no

administrative process available for him to exhaust administrative remedies and it is not

certain whether the right to the license is clear and nondiscretionary.

15

2. Substantive Due Process

The Fourteenth Amendment also “cover[s] a substantive sphere as well, barring

certain government actions regardless of the fairness of the procedures used to

implement them.” Hurd v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir. 2021) (citation

omitted) (alteration in original). “The first step in substantive due process analysis is to

| identify the constitutional right at stake.” Id. (citation omitted). “Substantive due

process protections extend only to those interests that are ‘implicit in the concept of

ordered liberty,’ which are rights ‘so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Smith v. Hogan, 794 F.3d 249, 255-56 (2d

Cir. 2015) (citations omitted). “Next, the plaintiff must demonstrate that the state action

was SO egregious, so outrageous, that it may fairly be said to shock the contemporary

m}| conscience.” Hurd, 984 F.3d at 1087 (citation and quotation marks omitted). “The

interference with the plaintiff's protected right must be so shocking, arbitrary, and

egregious that the Due Process Clause would not countenance it even were it

accompanied by full procedural protection.” Id. (quoting Southerland v. City of New

York, 680 F.3d 127, 151 (2d Cir. 2012)).

“[C]riteria to identify what is fatally arbitrary differ depending on whether it is

legislation or a specific act of a governmental officer that is at issue.” County of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998). “To prevail when challenging

executive action that infringes a protected right, a plaintiff must show not just that the

action was literally arbitrary, but that it was ‘arbitrary in the constitutional sense[.]’””

O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005) (quoting Collins v. City of Harker

Heights, 503 U.S. 115, 128 (1992)). “Mere irrationality is not enough: ‘only the most

16

egregious official conduct,’ conduct that ‘shocks the conscience,’ will subject the

government to liability for a substantive due process violation based on executive

action.” Id. (quoting County of Sacramento, 523 U.S. at 846). “[T]he measure of what

is conscience-shocking is no calibrated yard stick ....” Id. (citation omitted).

“[W]hether executive action shocks the conscience depends on the state of mind of the

o government actor and the context in which the action was taken.” Id.

“Generally, property interests related to employment are not among protected

fundamental rights .. . .”. Maniscalco v. New York City Dep’t of Educ., 563 F. Supp. 3d

33, 39 (E.D.N.Y. 2021), aff'd, No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021)

(summary order), cert. denied, 142 S. Ct. 1668 (2022). “[T]he Supreme Court, the]

[Second] Circuit, and the other Circuits addressing the issue have all indicated that the

right of occupational choice is afforded Due Process protection only when a plaintiff is

‘complete[ly] prohibit[ed]’ from engaging in his or her chosen profession.” Barzilay v.

City of New York, 610 F. Supp. 3d 544, 614 (S.D.N.Y. 2022) (alterations in original)

(quoting Hu v. City of New York, 927 F.3d 81, 102 (2d Cir. 2019)). “In other words, ‘one

must have no ability to practice one’s profession at all in order to state a claim fora

deprivation of a liberty interest.” Id. at 615 (citations omitted). Plaintiff alleges that New

YOrk requires a license to work as an outdoor guide and criminalizes guiding without a

license. See Am. Compl. at 16, 7 31. He contends that defendants will not issue him a

license; thus, he cannot work as a guide. See id. at 22, J 51. It is sufficient at this early

stage to allege that he is being completely prohibited from engaging in his chosen

profession. Additionally, plaintiff alleges that despite meeting all of the requirements,

amending his application when requested, and repeatedly contacting defendants, his

17

application has not been approved or denied. See id. at 17-21, {f 33-49. He alleges

that despite being informed of “a high volume and backlog of applications[,]’ that

defendants’ actions are wholly arbitrary. Id. at 20-21, J] 46, 48-49. At this early stage,

this is sufficient to state a substantive due process claim.

a

IV. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED; and it is further

RECOMMENDED, that plaintiff's amended complaint against defendants in their

| Official capacities insofar as he seeks monetary damages (Dkt. No. 10) be DISMISSED

WITH PREJUDICE and WITHOUT LEAVE TO AMEND; and it is further

RECOMMENDED, that plaintiff's amended complaint (Dkt. No. 10) otherwise be

permitted to proceed; and it is further

RECOMMENDED, that should the District Judge adopt this Report-

Recommendation and Order in its entirety, the matter be returned to the Magistrate

Judge or to the Clerk of the Court for service of the amended complaint for any claims

that were permitted to proceed in the amended complaint; and it is

ORDERED, that the Clerk of the Court add Joseph Therrien as a defendant in

this matter; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-

Recommendation and Order in accordance with Local Rules.

IT 1S SO ORDERED.

18

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within

which to file written objections to the foregoing report. Such objections shall be filed

with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN

FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892

F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).”

Dated: September 19, 2023

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

7 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three

(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)

days from the date the Report-Recommendation & Order was mailed to you to serve and file objections.

R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal

holiday. Id. § 6(a)(1)(c).

19