Wade v. St. Paul Boulevard Fire District

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

WILLIAM VAN WADE,

DECISION AND ORDER

Plaintiff,

v. 6:21-CV-06218 EAW

ST. PAUL BOULEVARD FIRE DISTRICT,

ED RILEY, JAY DEWITT, BILL

DRYLAND, BARRY LAMENDOLA, ST.

PAUL BOULEVARD FIRE

DEPARTMENT, AND JAMES TURNER,

Defendants.

INTRODUCTION

Plaintiff William Van Wade (“Plaintiff”) brings this action asserting violations of

his constitutional rights pursuant to 42 U.S.C. § 1983 and related state law claims, arising

from events occurring on November 22, 2019. (Dkt. 14-1). Presently before the Court is

a motion filed by defendants St. Paul Boulevard Fire District, St. Paul Boulevard Fire

Department, Barry Lamendola (“Lamendola”), Jay DeWitt (“DeWitt”), Bill Dyrland

(“Dryland”), Ed Riley (“Riley”), and James Turner (“Turner”) (collectively “Defendants”),

to dismiss the complaint for failure to state a claim and for insufficient service of process.

(Dkt. 9). Also before the Court are motions filed by Plaintiff to amend his complaint (Dkt.

14) and seal his response to Defendants’ motion to dismiss (Dkt. 22).

For the reasons explained below, the motion to dismiss is granted, the motion to

amend is denied, and the motion to seal is denied as moot.

BACKGROUND

I. Factual Background

The following facts are taken from the proposed amended complaint. (Dkt. 14-1).

As required on a motion to dismiss, the Court treats Plaintiff’s factual allegations as true.

At the time of the incidents alleged in Plaintiff’s proposed amended complaint,

Plaintiff resided at the Eagle’s Landing apartment complex in Rochester, New York. (Id.

at 6). On November 22, 2019, there was a report of a gas leak at Plaintiff’s apartment.

(Id.). Members of the St. Paul Boulevard Fire Department arrived at the scene and although

there was no imminent danger, defendant Lamendola, a firefighter, entered Plaintiff’s

apartment. (Id.). Notwithstanding Plaintiff’s request that Lamendola wear shoe coverings

before entering, Lamendola crossed the threshold without protective boot coverings before

Plaintiff had time to remove his items and protect his religious sacred space. (Id.).

Plaintiff tried to confront Lamendola and his supervisor, defendant DeWitt, about

Lamendola’s willful disregard of Plaintiff’s instruction to wear shoe coverings in violation

of Plaintiff’s religious customs and resulting in damage to his property. (Id.). Lamendola

and DeWitt humiliated Plaintiff in front of Eagle’s Landing staff, the fire department crew

members present, and other residents. (Id. at 6-7). The humiliation and embarrassment

caused Plaintiff to seek therapy. (Id. at 7).

Thereafter, Plaintiff received a copy of the Fire Department’s incident report from

the November 19, 2019 gas leak. (Id.). Plaintiff alleges that important information was

omitted from the report: specifically, the fact that Plaintiff complained of difficulty

breathing and chest pains at the time of the incident, as well as the name of the individual

who completed the report. (Id.). On December 5, 2019, Plaintiff sent a letter to the St.

Paul Boulevard Fire District requesting that the incident report be corrected to include his

chest pain complaints and to identify the individual who completed the report. (Id.). On

January 22, 2020, defendant Dryland responded in an email that the information in the

incident report was based on a 911 call. (Id.). Plaintiff alleges that upon investigation, he

has discovered that the 911 call never existed, which when coupled with the lack of

identifying information as to who completed the report, suggests to Plaintiff that the report

is fraudulent. (Id.). Dryland told Plaintiff he would update the report with Plaintiff’s

comments but Plaintiff never received a copy of the updated report as he requested. (Id.).

Plaintiff gave defendant Turner, defendant Riley, and Dyrland an opportunity to correct

the report but all failed to do so. (Id.). Plaintiff filed a Freedom of Information Law

(“FOIL”) request with the intention of correcting the report but was informed that the

District did not respond as mandated by FOIL. (Id.).

II. Procedural Background

Plaintiff commenced the instant action on March 1, 2021, in the Middle District of

Tennessee. (Dkt. 1). On March 5, 2021, the case was transferred to this Court. (Dkt. 6).

On May 17, 2021, Plaintiff amended his complaint. (Dkt. 8).

Presently before the Court is a motion to dismiss filed by Defendants. (Dkt. 9). On

July 13, 2021, in addition to his opposition to the motion to dismiss (Dkt. 15), Plaintiff

filed a motion to amend (Dkt. 14), with a proposed amended complaint (Dkt. 14-1).

Defendants filed their reply and opposition to the motion to amend on July 28, 2021. (Dkt.

17). Plaintiff requested and was granted permission to file a response to Defendants’ reply.

(Dkt. 21). On September 17, 2021, Plaintiff filed a motion to seal his response to

Defendants’ motion to dismiss. (Dkt. 22). Defendants filed a response in opposition. (Dkt.

24).

DISCUSSION

I. Legal Standards

A. Rule 12(b)(6)

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the [pleading], documents

attached to the [pleading] as exhibits, and documents incorporated by reference in the

[pleading].” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the [claimant].” Trs. of Upstate N.Y. Eng’rs Pension

Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a

claimant must set forth “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility

when the [claimant] pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft,

589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a [claimant]’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). “To state a plausible claim, the [pleading]’s ‘[f]actual

allegations must be enough to raise a right to relief above the speculative level.’” Nielsen

v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at

555). While the Court is “obliged to construe [pro se] pleadings liberally, particularly

when they allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d

Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth

in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after

Twombly, though, we remain obligated to construe a pro se complaint liberally.”).

B. Motion to Amend

“A district court has broad discretion in determining whether to grant leave to

amend[.]” Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000). “The court should

freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Where it appears

that granting leave to amend is unlikely to be productive, however, it is not an abuse of

discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d

Cir. 1993). “One appropriate basis for denying leave to amend is that the proposed

amendment is futile,” and a proposed amendment “is futile if the proposed claim could not

withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus.

Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002).

In the instance where a plaintiff seeks to amend his complaint while a motion to

dismiss is pending, “the district court has the option of either denying the pending motion

as moot or evaluating the motion in light of the facts alleged in the amended complaint.”

Pettaway v. Nat’l Recovery Sols., LLC, 955 F.3d 299, 303-04 (2d Cir. 2020); Leo v. New

York St. Dep’t of Envir. Conserv., No. 20-CV-7039-FPG, 2022 WL 138538, at *4

(W.D.N.Y. Jan. 14, 2022) (“Here, the Court elects to consider the merits of the motion to

dismiss in light of the proposed amended complaint. Because it concludes that neither the

original complaint nor the [First Amended Complaint] could withstand a motion to dismiss,

the Court grants the motions to dismiss and denies leave to file the [First Amended

Complaint].”); Willis v. Rochester Police Dep’t, No. 15-CV-6284-FPG, 2018 WL

4637378, at *2 (W.D.N.Y. Sept. 27, 2018) (“When—as in this case—a motion to amend

is filed in response to a pending motion to dismiss, ‘a court has a variety of ways in which’

to proceed, ‘from denying the motion [to dismiss] as moot to considering the merits of the

motion [to dismiss] in light of the [proposed] amended complaint.’” (quoting Conforti v.

Sunbelt Rentals, Inc., 201 F. Supp. 3d 278, 291 (E.D.N.Y. 2016)).

II. No Viable Federal Claim Has Been Alleged

Rather than denying the motion to dismiss as moot, the Court opts to evaluate the

merits of Defendants’ motion to dismiss as applied to Plaintiff’s proposed amended

complaint. The Court concludes that this alternative makes particular sense where, as here,

the allegations in Plaintiff’s proposed amended complaint (Dkt. 14-1) do not differ

materially from the current operative pleading (Dkt. 8) or original complaint (Dkt. 1).

Plaintiff’s claims appear to be asserted pursuant to 42 U.S.C. § 1983, which provides

a cause of action against individuals who, acting under color of state law, deprive an

individual of rights, privileges, or immunities secured by the Constitution. “Personal

involvement in the deprivation of a federal constitutional right is the sine qua non of

liability under § 1983.” Rupp v. City of Buffalo, No. 17-CV-1209S, 2021 WL 1169182, at

*5 (W.D.N.Y. Mar. 29, 2021); see also Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir.

2020) (a § 1983 plaintiff must establish “that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution”). “A defendant in a

§ 1983 action may not be held liable for damages for constitutional violations merely

because he held a high position of authority. Rather, the personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of damages

under § 1983.” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (internal alterations,

quotations, and citations omitted).

A. First Claim

In his first claim, Plaintiff alleges that Defendants1 violated his rights to religious

freedom arising under the First Amendment. “The First Amendment to the United States

Constitution provides, in relevant part: ‘Congress shall make no law respecting an

1 It is not wholly clear against which defendants Plaintiff is asserting his claims.

Because the Court concludes that Plaintiff’s claims fail on their substantive merits, it need

not address whether Plaintiff has adequately alleged the personal involvement of each of

the named defendants with respect to each claim.

establishment of religion, or prohibiting the free exercise thereof [. . .].’” Shakur v. Elders,

No. 3:19-CV-1412 (VAB), 2021 WL 4711484, at *9 (D. Conn. Oct. 8, 2021) (quoting U.S.

Const. amend. I.). “The dual mandate of these Establishment and Free Exercise Clauses

extends to state and local governments through the Fourteenth Amendment.” Skoros v.

City of New York, 437 F.3d 1, 13 (2d Cir. 2006). “The Free Exercise Clause protect[s]

religious observers against unequal treatment and laws that target religious individuals

based on their religious status are subjected to strict scrutiny. However, not all burdens on

religion are unconstitutional.” Ass’n of Jewish Camp Operators v. Cuomo, 470 F. Supp.

3d 197, 217 (N.D.N.Y. 2020) (citations and quotations omitted). The Establishment

Clause “prohibits the establishment of a national or state church” and it “has long been

accepted that the Establishment Clause prohibits government from officially preferring one

religious denomination over another.” Skoros 437 F.3d at 16.

Here, Plaintiff seems to be alleging a free exercise claim. “To establish a free-

exercise claim, [Plaintiff] must show that the government has placed a burden on the

exercise of his religious beliefs or practices.” Diaz v. Allen, No. 21-CV-00193-CMA-

KMT, 2022 WL 252318, at *3 (D. Colo. Jan. 27, 2022) (citing Fields v. City of Tulsa, 753

F.3d 1000, 1009 (10th Cir. 2014)). “Only action that is coercive or compulsory in nature

is sufficiently burdensome to support a Free Exercise claim.” Id. at *3 (quotation and

citation omitted); see also McCarthy v. New York, No. 21-CV-1169 (WFK)(LB), 2021 WL

1946332, at *3 (E.D.N.Y. May 13, 2021) (“[T]he right of free exercise does not relieve an

individual of the obligation to comply with a valid and neutral law of general applicability

on the ground that the law proscribes (or prescribes) conduct that his religion prescribes

(or proscribes).” (citation omitted)); W.D. v. Rockland Cty., 521 F. Supp. 3d 358, 397

(S.D.N.Y. 2021) (“The Free Exercise Clause provides two major protections: freedom to

believe and freedom to act in accordance with one’s beliefs. While the right to believe

freely is ‘absolute’ — the government may not dictate what citizens think — the right to

act is qualified by a duty to comply with the law.”).

As a threshold matter, Plaintiff’s amended complaint does not specifically identify

his religion, the nature of his religious beliefs, or any information that connects the wearing

of shoe coverings to those religious beliefs. Of-Allodium v. Lantman’s Mkt., No. 2:21-CV-

17, 2021 WL 4312058, at *4 (D. Vt. Sept. 22, 2021) (“However, he does not specify what

his religion is; that Defendant was aware of his religious beliefs; or that he was denied

entry to Lantman’s based upon his religion. Plaintiff’s conclusory claims of discrimination

based on his religious beliefs are insufficient to state a plausible claim of religious

discrimination.”); Barnett v. Westchester Cty., No. 18-CV-2483 (NSR), 2021 WL

4066639, at *5 (S.D.N.Y. Sept. 7, 2021) (“In the Amended Complaint, Plaintiff does not

identify any religion that he purports to observe. . . . Accordingly, Defendants’ motion to

dismiss Plaintiff’s free exercise claim is granted, and the claim is dismissed without

prejudice.”); Jackson v. Boucaud, No. 9:08-CV-1373TJM/DEP, 2009 WL 6066799, at *6

(N.D.N.Y. Dec. 31, 2009) (recommending dismissal of complaint where plaintiff did “not

specify his religion or the religious beliefs that he claims were interfered with through

defendants’ conduct” and “merely states that the damages now sought are ‘to compensate

[him] for the blatant violation of the United States Constitutionally protected First

Amendment guarantee to practice [his ] religion.’”), report and recommendation adopted,

No. 9:08-CV-1373TJM/DEP, 2010 WL 933744 (N.D.N.Y. Mar. 15, 2010). Nor does

Plaintiff plausibly allege that Defendants’ actions of entering his apartment in response to

a report of a gas leak were coercive or otherwise motivated in any part by Plaintiff’s

religious beliefs or practices. King v. City of New York, No. 20-CV-8283 (PAC), 2022 WL

138009, at *9 (S.D.N.Y. Jan. 14, 2022) (granting motion to dismiss where there was no

“plausible inference that Defendants acted out of hostility against [plaintiff] on the basis of

his Christian faith”).

As a result, Plaintiff’s conclusory allegations that his First Amendment rights were

violated based on his religious beliefs fail to state a plausible claim and must be dismissed.

B. Second Claim

In his second claim, Plaintiff alleges that Defendants’ failure to correct the alleged

discrepancies in the incident report and provide him with a corrected report violates his

rights to due process.

Although Plaintiff cites the Fifth and Fourteenth Amendment as the source of those

rights, the claims he asserts are against purported state actors and thus, the Fifth

Amendment is not implicated. See Alexis v. Town of Cheektowaga, No. 17-CV-985S, 2021

WL 5239900, at *9 (W.D.N.Y. Nov. 10, 2021) (“The Fifth Amendment Due Process

Clause applies only to the federal government and not to the states or its municipalities.”);

Bussey v. Phillips, 419 F. Supp. 2d 569, 586 (S.D.N.Y. 2006) (“[Plaintiff’s] due process

claims are against state, not federal, actors, and thus the Fourteenth Amendment, rather

than the Fifth Amendment, applies to these claims.”) (citing Dusenbery v. United States,

534 U.S. 161, 167 (2002)). The Due Process Clause of the Fourteenth Amendment was

“intended to secure the individual from the arbitrary exercise of the powers of government

. . . [and] serves to prevent governmental power from being used for purposes of

oppression.” Daniels v. Williams, 474 U.S. 327, 331 (1986) (quotations and citations

omitted). To succeed on a due process claim, a plaintiff must establish that “he or she

possesses a constitutionally protected interest in life, liberty, or property, and that state

action has deprived him or her of that interest.” Valmonte v. Bane, 18 F.3d 992, 998 (2d

Cir. 1994).

Plaintiff has not alleged any facts that would give rise to him having a discernable

protected property interest in the accuracy of the contents of the Fire Department’s own

incident report, nor does he have a property interest in obtaining what he deems to be a

corrected version of the record via a FOIL request. See Patrella v. Cty. of Suffolk, No. 18-

CV-3722(JS)(AKT), 2019 WL 6525650, at *5 (E.D.N.Y. Dec. 3, 2019) (“Plaintiff does

not have a protected property interest in the requested FOIL documents.”); Lawrence v.

Antonucci, No. 04-CV-356S, 2005 WL 643457, at *3 (W.D.N.Y. Mar. 16, 2005) (“As

several courts in this Circuit have held, a plaintiff has no property interest in obtaining

FOIL documents.” (quotation and citation omitted), aff’d, 144 F. App’x 193 (2d Cir.

2005).2 Plaintiff’s name does not appear anywhere in the record and he has not otherwise

alleged any resulting deprivation to him arising from any purported omissions in the report.

2 Moreover, even if Plaintiff had such a property interest in receipt of the FOIL

documents, such claims would be addressed under New York law. Blount v. Brown, No.

10-CV-01548 (ARR), 2010 WL 1945858, at *2 (E.D.N.Y. May 11, 2010) (“In this case,

even assuming arguendo that plaintiff had a protected property interest in the FOIL

documents, his due process claim would still fail as a matter of law because he has not

shown that the state post-deprivation process is inadequate. New York law provides a

In short, Plaintiff has not established that he possesses a constitutionally protected

interest in life, liberty, or property that any state action has deprived him of, and therefore

his due process claim is subject to dismissal. Blount, 2010 WL 1945858, at *2 (“Thus,

without the property interest in the documents required for due process claims, the

defendants’ failure to provide the requested documents does not amount to a constitutional

violation.”).

Finally, the Court has considered whether Plaintiff should be afforded an additional

opportunity to amend the federal claims he asserts in his complaint, in light of his pro se

status. See Styles v. Goord, 198 F. App’x 36, 37 (2d Cir. 2006) (“[A] pro se plaintiff who

brings a civil rights action should be ‘fairly freely’ afforded an opportunity to amend his

complaint[.]” (citation omitted)). However, “an opportunity to amend is not required

where the plaintiff has already been afforded the opportunity to amend.” Diaz v. Henley,

No. 9:19-CV-1611GLSDJS, 2020 WL 1849454, at *2 (N.D.N.Y. Apr. 13, 2020). Here,

Plaintiff already amended his complaint once as a matter of right and currently seeks leave

to amend again but has not cured any of the substantive defects in the allegations. Under

these circumstances, the Court does not find it appropriate to grant Plaintiff an additional

opportunity to amend, and the Court dismisses Plaintiff’s federal claims with prejudice.

remedy for the improper denial of a FOIL request.”); Schmiege v. New York, No. 21-CV-

418-LJV, 2021 WL 3492924, at *1 (W.D.N.Y. Aug. 9, 2021) (“If [Plaintiff] wishes to

bring a claim for the denial of his FOIL requests, that claim is not cognizable in this section

1983 case. The appropriate vehicle for challenging denials of access to freedom of

information requests is a state court Article 78 proceeding.”).

III. The Court Declines to Exercise Supplemental Jurisdiction over the State Law

Claims

Having concluded Plaintiff’s federal claims are not viable, the Court considers

whether it should exercise supplemental jurisdiction over state law claims that may be

fairly read to be asserted in Plaintiff’s amended complaint and concludes that it should not.3

Supplemental jurisdiction “is a doctrine of flexibility, designed to allow courts to

deal with cases involving pendant claims in the manner that most sensibly accommodates

a range of concerns and values.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988). The Court’s exercise of this discretion is governed by 28 U.S.C. § 1367:

[I]n any civil action of which the district courts have original jurisdiction, the

district courts shall have supplemental jurisdiction over all other claims that

are so related to claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article III of the United

States Constitution. Such supplemental jurisdiction shall include claims that

involve the joinder or intervention of additional parties.

28 U.S.C. § 1367(a). Under § 1367(c):

The district courts may decline to exercise supplemental jurisdiction over a

claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

3 Alternatively, Plaintiff does not appear to be asserting diversity jurisdiction as

grounds to pursue his claims in this Court. In his proposed amended complaint, in response

to the question seeking the basis for federal court jurisdiction, Plaintiff states, “federal

question and arises under federal law.” (Dkt. 14-1 at 1). Similarly, Plaintiff’s civil cover

sheet identifies only federal question as the basis for jurisdiction. (Dkt. 14-2).

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

Id. § 1367(c). “[T]he discretion implicit in the word ‘may’ in subdivision (c) of § 1367

permits the district court to weigh and balance several factors . . . .” Purgess v. Sharrock,

33 F.3d 134, 138 (2d Cir. 1994). After dismissing all federal claims, the district court must

“reassess its jurisdiction over the case by considering . . . judicial economy, convenience,

fairness, and comity.” Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).

“[D]ismissal of pendent state law claims under such circumstances is generally appropriate,

as [n]eedless decisions of state law should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for them a surer-footed reading of

applicable law.” Ross v. Woods, 412 F. App’x 392, 393 (2d Cir. 2011) (quotation and

citation omitted).

In this case, the Court has dismissed all plausible federal claims. Upon

consideration of all relevant factors, the Court declines to exercise supplemental

jurisdiction over Plaintiff’s state law claims. “[I]f the federal claims are dismissed before

trial, even though not insubstantial in a jurisdictional sense, the state claims should be

dismissed as well.” Purgess, 33 F.3d at 138 (quotation omitted); see also Valencia ex rel.

Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (where “federal law claims are eliminated

before trial, the balance of factors to be considered under the pendent jurisdiction

doctrine—judicial economy, convenience, fairness, and comity—will point toward

declining to exercise jurisdiction over the remaining state-law claims”). The dismissal of

Plaintiff’s state law claims is without prejudice. See JetBlue Airways Corp. v. CopyTele

Inc., 629 F. App’x 44, 45 (2d Cir. 2015) (dismissal for lack of subject matter jurisdiction

must be without prejudice).

Finally, to the extent Defendants have advanced other grounds for dismissal, the

Court need not reach those arguments because the Court has already determined, for the

reasons previously discussed, that dismissal of Plaintiff’s complaint for failure to state any

viable federal claim is warranted.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted and Plaintiff’s

motion to amend is denied. Plaintiff’s motion to seal is denied as moot. Plaintiff’s federal

claims are dismissed with prejudice, his state claims are dismissed without prejudice, and

the Clerk of Court is directed to enter judgment in Defendants’ favor and to close this case.

SO ORDERED.

_______________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: February 16, 2022

Rochester, New York