# Cobham v. The New York Racing Association, Inc.

> District Court, E.D. New York · September 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10659416

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 16, 2024
- **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/10659416

## How later opinions describe it (automated extraction)

- explaining that plaintiffs’ due process claim failed because they were not completely “driven out of” their occupation
- holding that a private interest in a $45.00 fine is “minimal”
- recognizing that procedural due process is satisfied for property rights when “there is at some stage an opportunity for a hearing and a judicial determination” (internal quotation marks omitted)

## Opinion text

EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
ROBERT COBHAM,
Plaintiff, MEMORANDUM & ORDER
22-CV-00456 (JMA) (ARL)
-against- FILED
CLERK
THE NEW YORK RACING ASSOCIATION, INC.,
9/16/2024 11:36 am
JUAN DOMINGUEZ, TIM KELLY, JOHN CLYNE,
HARRY PAZMINO, CHYNIA BONNELL, KEITH U.S. DISTRICT COURT
DOLESHEL, BRAULIO BAEZA, DAVID O’ROURKE, EASTERN DISTRICT OF NEW YORK
and JOI GARNER LONG ISLAND OFFICE

Defendants.
----------------------------------------------------------------------X
AZRACK, United States District Judge:
Pro se Plaintiff Robert Cobham brought this civil rights action arising from the enforcement
of a COVID-19 safety protocol at a Belmont, New York horse stable and racetrack, and the
subsequent refusal to allow Plaintiff to keep his horse there. (See generally, Compl., ECF No. 1.)
Presently before the Court is the motion by certain Defendants to dismiss the Amended Complaint
under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 48.) In this race, the motion
beats the Amended Complaint to the finish line. As set forth below, the motion is GRANTED.
I. BACKGROUND
A. Facts
The facts set forth herein are taken from the Amended Complaint, documents incorporated
by reference in or integral to that pleading, and matters of which the Court may take judicial notice.
See, e.g., Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023). Certain facts are also taken from
Plaintiff’s pro se opposition to the instant motion. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d
Cir. 2013); Romain v. State Farm Fire & Cas. Co., 639 F. Supp. 3d 416, 421 n.4 (E.D.N.Y. 2022).
Plaintiff is a thoroughbred racehorse breeder, owner, and trainer licensed by the New York

State Gaming Commission (“Commission”). (Am. Compl., ECF No. 36 ¶¶ 4, 12, 60-61.) Plaintiff
does business as “Sport of Kings Racing Stable.” (Id.)
Defendant New York Racing Association (“NYRA”) is the non-profit racing association
created “under the authority of New York Racing, Pari-Mutuel Wagering & Breeding Law, § 202”
and it has an “exclusive franchise to operate racing at Belmont Park, Aqueduct and Saratoga
thoroughbred racetracks.” (Id. ¶¶ 13, 95). Defendant David O’Rourke is the President and Chief
Executive Officer of NYRA. (Id. at 1.) Defendant Joy Garner is the Executive Vice President,
General Counsel, and Corporate Secretary for NYRA. (Id.) Defendant Keith Doleshel is the
Racing Secretary for NYRA. (Id. ¶ 81.)
Defendants Braulio Baeza, Juan Dominguez, Tim Kelly, and Chynia Bonnell (collectively,

the “Steward Defendants”) are NYRA racing stewards. (Id. ¶ 18; contra Mem. L. Supp. Defs.’
Mot. Dism. (“Def. Mem.”), ECF No. 48-16 at 8 & n.10 (asserting Baeza was not employed by
NYRA).) As such, they have “broad” powers. Perez v. Hoblock, 368 F.3d 166, 177 (2d Cir. 2004).
For example, they “control . . . all . . . places within the grounds” of Belmont Park; “regulate and
control the conduct of all officials and of all owners, trainers, jockeys, grooms and other persons
attendant on horses”; “determine all questions” about racing; order examinations of horses;
disqualify horses; impose civil penalties; and exclude individuals from Belmont Park. N.Y. Comp.
Codes R. & Regs. tit. 9, §§ 4022.9, 4022.11, 4022.12, 4022.13, 4022.16, 4022.17. Parties may
appeal to the Commission any penalties imposed by stewards. Id. § 4022.14.

2
ECF No. 36 ¶ 50.) Defendant Harry Pazmino is a Security Officer for NYRA.1 (Id. ¶ 38.)

2. NYRA Disciplined Plaintiff for Misconduct at Belmont Park
On January 21, 2021, a member of NYRA’s security staff issued a Barn Area Violation
Summons to Plaintiff for violating NYRA’s then-operative facemask requirement for individuals
at Belmont Park. (See Pl.’s Opp. Defs.’ Mot. Dism. (“Opp.”), ECF No. 48-19 ¶ 21; Am. Compl.,
ECF No. 36 ¶ 15; see also Greenberg Decl. Ex. A, ECF No. 48-2 (memorializing NYRA’s face
mask requirement); Greenberg Decl. Ex. B, ECF No. 48-3 (reporting Plaintiff’s mask violation).)
The summons required Plaintiff to appear in seven days before NYRA’s Barn Area Violations
Panel (“BAVP”). (See Opp., ECF No. 48-19 ¶ 22; Greenberg Decl. Ex. C, ECF No. 48-4.) Plaintiff
did not appear before BAVP on the date specified in the summons.
In early February 2021, NYRA security officers approached Plaintiff at Belmont Park and

told him that failure to appear before BAVP by 10:30 AM that day would result in consequences
for “criminal[] trespassing” and imposition of an “immediate[] ban[]” from NYRA property. (Am.
Compl., ECF No. 36 ¶ 16.) Plaintiff appeared before BAVP, then composed of the Steward
Defendants, as directed. (Id. ¶¶ 17-18.) Plaintiff asserts he was “threatened, harassed and coerced”
and deprived of the ability to “speak or ask any questions.” (Id. ¶¶ 20-21.) At the same time,
however, Plaintiff reports that he “contest[ed]” the “charges, fines and penalties, assertions[,] and
jurisdiction” for the mask violation. (Id. ¶¶ 17-18; see id. ¶ 21 (reporting Plaintiff asked BAVP
“to identify” its authority for charging him).) BAVP “declared [Plaintiff] guilty” of the mask
violation and fined him $100.00. (Id. ¶ 22; Greenberg Decl. Ex. C, ECF No. 48-4.)

1 Individual Defendants are hereafter referenced by last name. All Defendants except for Braulio Baeza
constitute the “NYRA Defendants.”
3
Defendants issued a “badge pickup order” to confiscate Plaintiff’s badge reflecting his professional

license issued by the Commission. (Am. Compl., ECF No. 36 ¶¶ 30-31, 36.) NYRA security then
confiscated Plaintiff’s badge. (Id. ¶¶ 29, 31, 35, 104.) NYRA security instructed Plaintiff that his
badge would be returned upon payment of the fine. (See id. ¶ 35, 51-53.)
In late May 2021, Plaintiff entered the “security office” at Belmont Park to “inquire [about]
and clarify” the fine imposed against him and the confiscation of his badge. (Id. ¶ 39.) Pazmino
was on duty and telephoned Bonnell. (See id. ¶¶ 42-44.) Bonnell instructed Pazmino to “demand
that [Plaintiff] pay up” the previously imposed fine. (Id. ¶ 43.) Plaintiff remained peaceful, but
Pazmino accused Plaintiff of becoming “violent” and “trespassing.” (Id. ¶¶ 44-45.) Pazmino
“pushed” Plaintiff “against the door and out of the exit of the security office building” and reported

the incident to the Nassau County Police Department. (Id. ¶¶ 44, 47.) Nassau County Police
officers responded and “found that [Plaintiff] did not break or violate any laws and no arrest was
made.” (Id. ¶ 47.) NYRA subsequently posted a “criminal trespass notice with [Plaintiff]’s photo
all over the back stretch of NYRA property.” (Id. ¶ 49.)
In early June 2021, NYRA issued Plaintiff a Barn Area Violation Summons for his
“disorderly conduct” against Pazmino in the prior month. (Greenberg Decl. Ex. E, ECF No. 48-6;
see Am. Compl., ECF No. 36 ¶ 52 (referring to the summons as being “criminally trespassed”);
Greenberg Decl. Ex. D, ECF No. 48-5 (underlying disorderly conduct report).) BAVP fined
Plaintiff for his disorderly conduct. (See Am. Compl., ECF No. 36 ¶ 52 (reporting the additional
fine without specifying its amount); see also Def. Mem., ECF No. 48-16 at 3 (summarily asserting

that the fine totaled $100.00).) Plaintiff “paid the fines in full” and his badge was returned to him.
(Am. Compl., ECF No. 36 ¶ 52.)
4
In late September 2021, Plaintiff’s thoroughbred horse named Great Grandson (“Horse”)

ran its maiden race at Belmont Park. (Id. ¶¶ 62-63.) The Horse placed last in a nine-horse race.
(Id. ¶¶ 63-64); see America’s Day At The Races - September 24, 2021, YouTube (Sept. 24, 2021)
https://www.youtube.com/live/qbUM9JuGvZg?t=7465s (hyperlink opens to the beginning of the
Horse’s race, which concludes at 2:05:50). NYRA placed the Horse on the “poor performance
list,” which precludes entry into future races, because it lost by twenty-five or more lengths. (Am.
Compl., ECF No. 36 ¶¶ 65-66.) Shortly thereafter, the Horse was removed from the poor
performance list for completing a half-mile “workout” in fifty-three or fewer seconds. (Id. ¶ 67.)
The Horse next ran in mid-October 2021; it placed last in that six-horse race. (See Am.
Compl., ECF No. 36 ¶ 69); America’s Day At The Races - October 15, 2021, YouTube (Oct. 15,
2021) https://www.youtube.com/live/gHWccvG8FDs?t=508s (hyperlink opens to the beginning

of the Horse’s race, which concludes at 10:20). The Horse was again placed on the poor
performance list. (See Am. Compl., ECF No. 36 ¶ 73.) The day after the race, Dominguez and
Kelly confiscated Plaintiff’s badge. (Id. ¶ 72.)
In mid-November 2021, Plaintiff prepared the Horse to again complete the workout
required to remove it from the poor performance list. (Id. ¶ 73.) But then “Defendants pulled up
en masse in several NYRA vehicles” and prohibited Plaintiff from exercising the Horse until he
submitted a veterinarian’s report. (Id. ¶¶ 75-76.) Later that day, Plaintiff obtained a veterinarian’s
report confirming the Horse was eligible to race, and Plaintiff gave that report to Kelly. (Id. ¶¶ 77-
78.) Nonetheless, the Horse was banned from the track at Belmont Park. (Id. ¶ 80.) Plaintiff

maintains that this ban was due to the Horse being on the poor performance list and that Defendants
improperly prohibited the Horse from undertaking the workout required to come off that list.
5
Plaintiff must remove the Horse from Belmont Park. (Am. Compl., ECF No. 36 ¶ 82-83.) Plaintiff

declined to do so.
In January 2022, while Plaintiff was walking the Horse around Belmont Park barn,
Dominguez and Kelly delivered a letter from Garner. (Id. 86-87.) The letter warned Plaintiff that
failure to remove the Horse from Belmont Park in five days would be “deemed a trespass and
NYRA may take any legal remedy available to it, including, without limitation, instituting
administrative, civil and/or criminal actions.” (Greenberg Decl. Ex. N, ECF No. 48-15.)
B. Procedural History
On the same day he received the letter from Garner in January 2022, Plaintiff commenced
this case by filing the pro se Complaint against NYRA seeking damages and injunctive relief
prohibiting NYRA from excluding Plaintiff and his Horse from Belmont Park. (See Compl., ECF

No. 1.) Plaintiff simultaneously filed a motion for a temporary restraining order and preliminary
injunction seeking the same injunctive relief. (ECF No. 3.) The Court denied Plaintiff’s motion
for a temporary restraining order without prejudice, and reserved decision on Plaintiff’s motion
for a preliminary injunction. (See ECF No. 10; see also ECF No. 14 (denying Plaintiff’s motion
to reconsider denying his motion for a temporary restraining order).) Then, NYRA moved to
dismiss the Complaint and Plaintiff moved for leave to amend it. (ECF Nos. 29, 31.) The Court
granted Plaintiff’s motion and denied NYRA’s motion. (Feb. 1, 2023, Electr. Order.)
Plaintiff subsequently filed the pro se Amended Complaint against Defendants in their
individual and official capacities. (ECF No. 36.) In so doing, Plaintiff asserted claims under 42

U.S.C. § 1983 (“Section 1983”) for violations of procedural due process, substantive due process,
and equal protection rights under the Constitution; a claim under Section 1983 for liability under
6
York law for tortious interference with economic advantage.2 (ECF No. 36 ¶¶ 98-132.) The

parties then briefed the NYRA Defendants’ instant motion to dismiss the Amended Complaint for
failure to state a claim. (ECF No. 48.)
II. LEGAL STANDARDS
A. Failure to State a Claim
Under Rule 12(b)(6), a party may move to dismiss a complaint for failure to state a claim.
FED. R. CIV. P. 12(b)(6). Courts evaluate motions under Rule 12(b)(6) by determining whether the
complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). That standard requires the Court to accept as true all well-
pled factual allegations in the Amended Complaint and consider documents attached to the

Amended Complaint, documents incorporated by reference in or integral to that pleading, and
matters of which the Court may take judicial notice. E.g., Clark, 89 F.4th at 93. While the Court
accepts Plaintiff’s well-pled allegations as true, the Court need not accept conclusory assertions,
legal conclusions, or formulaic recitation of a claim’s elements. See, e.g., Shara v. Maine-Endwell
Cent. Sch. Dist., 46 F.4th 77, 82 (2d Cir. 2022). To be sure, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
664; see also id. at 678 (explaining that a complaint must contain “more than an unadorned, the
defendant-unlawfully-harmed-me accusation”). Determining whether the Amended Complaint

2 The Amended Complaint’s Count II is labeled as a claim for an unconstitutional custom, policy, or practice.
(ECF No. 36 ¶¶ 109-17.) Plaintiff later confirmed that Count II is a Monell claim. (Opp., ECF No. 48-19 at 14-16.)
7
draw on its judicial experience and common sense.” Id. at 664.

B. Section 1983
“Section 1983 provides a civil claim for damages against any person who, acting under
color of state law, deprives another of a right, privilege or immunity secured by the Constitution
or the laws of the United States.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999);
see 42 U.S.C. § 1983. “§ 1983 does not create a federal right or benefit; it simply provides a
mechanism for enforcing a right or benefit established elsewhere.” Morris-Hayes v. Bd. of Educ.,
423 F.3d 153, 159 (2d Cir. 2005); see Moroughan v. Cnty. of Suffolk, 514 F. Supp. 3d 479, 511
(E.D.N.Y. 2021) (similar). Accordingly, “[t]he factors necessary to establish a § 1983 violation
will vary with the constitutional provision at issue because the elements of different constitutional
violations vary.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal quotation marks

and alterations omitted); see Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The first step in any
[Section 1983] claim is to identify the specific constitutional right allegedly infringed.”).
To “establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff
must show . . . the defendant’s personal involvement in the alleged constitutional deprivation.”
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To do so, “a plaintiff must plead
and prove ‘that each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.’” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676).
A Monell claim concerns municipal liability under Section 1983. “Monell expressly
prohibits respondeat superior liability for municipalities . . . meaning that a plaintiff must

demonstrate that ‘through its deliberate conduct, the municipality was the “moving force” behind
the injury alleged.’” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97-98 (2d Cir.
8
a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to

(3) the deprivation of a constitutional right.” Id. at 97; see Frost v. New York City Police Dep’t,
980 F.3d 231, 257 (2d Cir. 2020).
C. Plaintiff’s Pro Se Status
“Where, as here, the complaint was filed pro se, it must be construed liberally with ‘special
solicitude’ and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738
F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)); see
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[A] pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers” (internal
quotation marks omitted)). This policy is “driven by the understanding that implicit in the right to
self-representation is an obligation on the part of the court to make reasonable allowances to

protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal
training.” McLeod v. Jewish Guild For The Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam)
(internal quotation marks omitted). “Nonetheless, a pro se complaint must state a plausible claim
for relief.” Meadows v. United Servs., 963 F.3d 240, 243 (2d Cir. 2020) (quoting Hogan, 738 F.3d
at 515). That is, “dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has
clearly failed to meet minimum pleading requirements.” Temple v. Hudson View Owners Corp.,
222 F. Supp. 3d 318, 323 (S.D.N.Y. 2016) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir.
1997)); see Williams v. Richardson, 425 F. Supp. 3d 191, 201 (S.D.N.Y. 2019) (“[T]he duty to
liberally construe a plaintiff’s complaint is not the equivalent of a duty to re-write it.” (internal

quotation marks omitted)). Ultimately, Plaintiff’s pro se status “does not exempt [Plaintiff] from
compliance with relevant rules of procedural and substantive law.” E.g., United States v. Starling,
9
v. California, 422 U.S. 806, 834 n.46 (1975) (similar).

III. DISCUSSION
A. Plaintiff’s Procedural Due Process Claim Fails
The Due Process Clause of the Fourteenth Amendment protects persons against
deprivations of “life, liberty, or property.” U.S. Const. amend. XIV, § 1. Plaintiff contends that
Defendants violated his procedural due process rights by depriving him of the ability to adequately
prepare for and defend himself at the February 2021 hearing that resulted in the $100.00 fine, and
confiscating his badge in April 2021 for failing to pay the fine. (See Am. Compl., ECF No. 36
¶¶ 103-04.) “A procedural due process claim is composed of two elements: (1) the existence of a
property or liberty interest that was deprived and (2) deprivation of that interest without due
process.” Radwan v. Manuel, 55 F.4th 101, 123 (2d Cir. 2022) (quoting Bryant v. N.Y. State Educ.

Dep’t, 692 F.3d 202, 218 (2d Cir. 2012)). NYRA Defendants argue that Plaintiff failed to plead
either element. (Def. Mem., ECF No. 48-16 at 10-14.) The Court concludes that the second
element is lacking.3
“[I]n evaluating what process satisfies the Due Process Clause, ‘the Supreme Court has
distinguished between (a) claims based on established state procedures and (b) claims based on
random, unauthorized acts by state employees.’” Rivera-Powell v. N.Y.C. Bd. of Elections, 470
F.3d 458, 465 (2d Cir. 2006) (quoting Hellenic Am. Neighborhood Action Comm. v. City of N.Y.,
101 F.3d 877, 880 (2d Cir. 1996)). When a deprivation occurs under established state procedures,
courts use the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) to determine whether

3 The $100.00 fine deprived Plaintiff of a property interest for purposes of procedural due process. See Farina
v. Metro. Transp. Auth., 409 F. Supp. 3d 173, 206 (S.D.N.Y. 2019); Rackley v. City of New York, 186 F. Supp. 2d
466, 480-81 (S.D.N.Y. 2002). Confiscating Plaintiff’s badge likewise deprived him of a property interest for purposes
of procedural due process. See Galvin v. N.Y. Racing Ass’n, 70 F. Supp. 2d 163, 173 (E.D.N.Y. 1998).
10
Cir. 2022); Rivera-Powel, 470 F.3d at 465-66. “When the state conduct in question is random and

unauthorized, the state satisfies procedural due process requirements so long as it provides
meaningful post-deprivation remedy.” Rivera-Powell, 470 F.3d at 465 (citing Hellenic Am.
Neighborhood Action Comm., 101 F.3d at 880); see Hudson v. Palmer, 468 U.S. 517, 531, 533
(1984). Each of those standards is applied where relevant below.
1. Plaintiff Received Due Process in Connection with the Fine
The imposition of the fine against Plaintiff followed an established state procedure. See
N.Y. Rac. Pari-Mut. Wag. & Breed. Law § 116 (authorizing the Commission to impose a civil
penalty after the respondent is given a “hearing or opportunity to be heard”); N.Y. Comp. Codes
R. & Regs. tit. 9, § 4022.13 (authorizing the steward appointed by the Commission to exercise the
latter’s civil penalty authority, provided the other stewards are given an opportunity to submit

recommendations); (see also Opp., ECF No. 48-19 ¶¶ 21-22; Am. Compl., ECF No. 36 ¶¶ 17-18,
22; Greenberg Decl. Ex. C, ECF No. 48-4.) Accordingly, the Court considers the Mathews factors
“to determine whether the procedure provided” in connection with the fine was “constitutionally
sufficient.” Bhaktibhai-Patel, 32 F.4th at 197 (quoting Abdullah v. INS, 184 F.3d 158, 164 (2d Cir.
1999)); see Brody v. Vill. of Port Chester, 434 F.3d 121, 135 (2d Cir. 2005) (“Mathews is the test
for both when a hearing is required (i.e., pre- or post-deprivation) and what kind of procedure is
due a person deprived of liberty or property.”). Those factors are (1) “the private interest that will
be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or substitute procedural

safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.”
11
Underlying this analysis is the principle that “due process is flexible and calls for such procedural

protections as the particular situation demands.” Liberian Cmty. Ass’n of Conn. v. Lamont, 970
F.3d 174, 191 (2d Cir. 2020) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
The Mathews factors run against Plaintiff. Under the first factor, Plaintiff’s interest in
defending against a $100.00 fine is “limited.” Bens BBQ, Inc. v. Cnty. of Suffolk, 858 F. App’x
4, 7 (2d Cir. 2021) (addressing fines individually ranging from $100.00 to $500.00 and totaling
$1,400.00); see Dubin v. Cnty. of Nassau, 277 F. Supp. 3d 366, 389 (E.D.N.Y. 2017) (holding that
a private interest in a $45.00 fine is “minimal”). Under the second factor, the risk of an erroneous
deprivation is minimal because Plaintiff appeared before BAVP and “contest[ed]” the “charges,
fines and penalties, assertions[,] and jurisdiction.” (Am. Compl., ECF No. 36 ¶¶ 17-18); see

Interboro Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir. 1993) (explaining that a pre-deprivation
hearing “ensure[s] that decision-makers have before them the [plaintiff]’s legal arguments and do
not act on a one-sided or otherwise incomplete factual presentation”). Moreover, additional pre-
deprivation safeguards would add little value given the post-deprivation availability of appealing
to the Commission, see N.Y. Comp. Codes R. & Regs. tit. 9, § 4022.14, and commencing an Article
78 proceeding (discussed below). See N.Y. State NOW v. Pataki, 261 F.3d 156, 168 (2d Cir. 2001);
see also Chunn v. Amtrak, 916 F.3d 204, 207 (2d Cir. 2019) (recognizing that procedural due
process is satisfied for property rights when “there is at some stage an opportunity for a hearing
and a judicial determination” (internal quotation marks omitted)). Third, the State had a significant
interest in reprimanding Plaintiff to deter him and others from failing to follow mask protocols

during the COVID-19 pandemic. See Roman Catholic Diocese v. Cuomo, 592 U.S. 14, 18 (2020)
(“Stemming the spread of COVID-19 is unquestionably a compelling [government]
12
(similar); see also N.Y. Comp. Codes R. & Regs. tit. 9, § 4022.13 (authorizing stewards to impose

fines up to $25,000.00 “for any action detrimental to the best interests of racing generally”).
Further, Plaintiff’s procedural due process claim is undermined by the availability of an
Article 78 proceeding. Article 78 is a process by which “New York state courts are empowered to
issue common law writs of certiorari to review, mandamus, and prohibition” against state actors.
Pataki, 261 F.3d at 168 (internal quotation marks omitted); see N.Y. C.P.L.R. § 7801. The Second
Circuit has held that an Article 78 proceeding “constitutes a wholly adequate post-deprivation
hearing for due process purposes.” Locurto v. Safir, 264 F.3d 154, 175 (2d Cir. 2001); see, e.g.,
Green v. Dep’t of Educ. of N.Y., 16 F.4th 1070, 1077 (2d Cir. 2021); Gonzalez v. Dist. Council 37,
AFSCME, AFL-CIO, SSEU Local 371, 843 F. App’x 361, 363-64 (2d Cir. 2021). But see Bens

BBQ, 858 F. App’x at 7 (declining to hold that the availability of an Article 78 proceeding is
independently sufficient procedural due process where the contested fines are “low compared with
the expense and complexity of such a proceeding”).
At bottom, “[t]he combination” of the pre-fine notice for and appearance at a hearing before
BAVP, the post-fine availability of an appeal to the Commission, and the post-fine availability of
an Article 78 proceeding afforded Plaintiff adequate procedural due process. Rivera-Powell, 470
F.3d at 466-67 (affirming dismissal of procedural due process claims where the plaintiff had “some
form of pre-deprivation hearing” and could have availed herself of post-deprivation review under
New York law); see Oles v. City of New York, No. 22-1620-CV, 2023 WL 3263620, at *1 (2d Cir.
May 5, 2023) (affirming dismissal of procedural due process claim regarding $234.60 in fines

because appellants could have administratively appealed the fines and challenged them in an
Article 78 proceeding); Bens BBQ, 858 F. App’x at 7 (affirming dismissal of procedural due
13
deprivation written submission and commenced a post-deprivation Article 78 proceeding).

2. Plaintiff Received Due Process for the Confiscation of his Badge
Plaintiff alleged that NYRA security personnel confiscated his badge in April 2021 based
on a “badge pick-up order” that the Steward Defendants summarily issued. (See Am. Compl.,
ECF No. 36 ¶¶ 29-37.) Plaintiff’s occupational license and badge may be revoked only by the
Commission at a hearing for which notice is provided to Plaintiff. See Rac. Pari-Mut. Wag. &
Breed. §§ 220(1)-(3), 245; N.Y. Comp. Codes R. & Regs. tit. 9, § 4002.10. As alleged, then, the
confiscation of Plaintiff’s badge was a random and unauthorized act. See Rivera-Powell, 470 F.3d
at 465 (holding that deprivations not consistent with established state procedures are random and
unauthorized unless done by “ultimate decision-makers” with “final authority over significant
matters” (internal quotation marks and brackets omitted)).4 Thus, the availability of an Article 78

proceeding for that confiscation dooms the related procedural due process claim. See Green, 16
F.4th at 1077; Rivera-Powell, 470 F.3d at 466; Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 234
(2d Cir. 2002); Locurto, 264 F.3d at 175.
B. Plaintiff’s Substantive Due Process Claim Fails
Plaintiff asserted a substantive due process claim against NYRA, O’Rourke, and Garner for
their failure to exercise “unbiased and impartial judgment” and their undertaking of arbitrary,
capricious, and unsound decision making when they “fine[d] and penalize[d], criminally

4 The rule that actions by ultimate decision makers may be deemed taken under official state procedures is
inapplicable to stewards because their decisions are not ultimate; their decisions may be appealed to the Commission.
See N.Y. Comp. Codes R. & Regs. tit. 9, § 4022.14.
14
¶¶ 125-28.) NYRA Defendants assert that the substantive due process claim is deficient. (See

Def. Mem., ECF No. 48-16 at 14-16.) The Court agrees.
“Substantive due process protects individuals against government action that is arbitrary,
conscience-shocking, or oppressive in a constitutional sense, but not against government action
that is incorrect or ill-advised.” Cunney v. Bd. of Trustee of Village of Grand View, N.Y., 660 F.3d
612, 626 (2d Cir. 2011) (quoting Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.1995)).
To state a substantive due process claim, Plaintiff must allege (1) a valid liberty interest (2) that
the defendants infringed in an arbitrary or irrational manner. Murphy v. Hughson, 82 F.4th 177,
188 (2d Cir. 2023); Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir. 2001).
Plaintiff’s claim does not make it out of the starting gate. That is, it does not concern a

valid liberty interest. “As courts in this Circuit have correctly held, ‘the substantive Due Process
clause does not protect plaintiffs from modest fines.’” Dubin, 277 F. Supp. 3d at 393 (quoting
Leder v. Am. Traffic Sols., Inc., 81 F. Supp. 3d 211, 224 (E.D.N.Y. 2015), aff’d, 630 F. App’x 61,
62 (2d Cir. 2015)) (ellipsis omitted); accord Idris v. City of Chi., 552 F.3d 564, 566 (7th Cir. 2009).
Further, “the right of occupational choice is afforded due process protection only when a plaintiff
is ‘completely prohibited’ from engaging in his or her chosen profession.” Hu v. City of N.Y., 927
F.3d 81, 102 (2d Cir. 2019) (quoting Conn v. Gabbert, 526 U.S. 286, 292 (1999)) (brackets
omitted). Thus, to base his claim on the confiscation of his badge, Plaintiff must show that

5 Plaintiff also asserts for the first time in his opposition brief an additional substantive due process claim
because he suffered emotional distress and defamation when NYRA posted a criminal trespass notice at Belmont Park
with Plaintiff’s picture and date of birth. (Opp., ECF No. 48-19 ¶¶ 63-64.) The Court rejects Plaintiff’s effort to recast
state law tort claims as a substantive due process claim. See Collins v. City of Harker Heights, 503 U.S. 115, 128
(1992); Schultz v. Inc. Vill. of Bellport, No. 08-CV-0930, 2010 WL 3924751, at *7 (E.D.N.Y. Sept. 30, 2010), aff’d,
479 F. App’x 358 (2d Cir. 2012); accord Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174, 183-84 (3d Cir. 2020);
Waybright v. Frederick Cty., 528 F.3d 199, 204-05 (4th Cir. 2008).
15
Id. at 102-03 (quoting Franceschi v. Yee, 887 F.3d 927, 938 (9th Cir. 2018)) (emphasis added;

brackets omitted). But on the contrary, Plaintiff alleged he suffered an inability to work contingent
upon and remedied by his payment of a modest fine; that circumstance “do[es] not give rise to a
Due Process claim.” Id. (explaining that plaintiffs’ due process claim failed because they were not
completely “driven out of” their occupation); accord Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th
Cir. 2003); Singleton v. Cecil, 176 F.3d 419, 426 n.8 (8th Cir. 1999); Grider v. Abramson, 180 F.3d
739, 752 n.17 (6th Cir. 1999).
Plaintiff’s substantive due process claim fails on the second element too. That requires
Plaintiff to “demonstrate that the state action was so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Hurd v. Fredenburgh, 984 F.3d 1075, 1087 (2d Cir.

2021) (quoting Southerland v. City of N.Y., 680 F.3d 127, 151 (2d Cir. 2011)). That standard “is
not easily met.” N.Y. State Corr. Officers & Police Benevolent Ass’n v. Hochul, 607 F. Supp. 3d
231, 243 (N.D.N.Y. 2022); Ratajack v. Brewster Fire Dep’t, Inc., 178 F. Supp. 3d 118, 147
(S.D.N.Y. 2016). Moreover, “substantive due process ‘does not forbid governmental actions that
might fairly be deemed arbitrary or capricious and for that reason correctable in a state court
lawsuit’”—including through an Article 78 proceeding. Harlen Assocs., 273 F.3d at 505 (quoting
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)); see Yale Auto Parts, Inc. v.
Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985) (“[E]ven an outright violation of state law in the denial
of a license will not necessarily provide the basis for a federal claim, at least when the applicant
has a state law remedy.” (citation omitted)). Given the availability of an Article 78 Proceeding to

address the issues raised in Plaintiff’s substantive due process claim, see supra Section III.A, and
the required showing of egregiousness and outrageousness, the Court concludes the challenged
16
“do[es] not give rise to a federal substantive due process claim.” Harlen Assocs., 273 F.3d at 505

(quoting Natale, 170 F.3d at 263); see Oles, 2023 WL 3263620, at *1 (affirming dismissal of
substantive due process claim because imposing $234.60 in fines did not shock the conscience).
C. Plaintiff’s Equal Protection Claim Fails
The Equal Protection Clause of the Fourteenth Amendment prohibits each state from
“deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. That requires “the government [to] treat all similarly situated people alike.”
Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2003) (quoting Harlen Assocs., 273 F.3d at 499). The
Amended Complaint asserts the NYRA Defendants deprived Plaintiff “of the equal protection of
the law” by precluding him “from NYRA’s racetracks” and initiating the “administrative charges
against Plaintiff.” (ECF No. 36 ¶¶ 119-22.) The Opposition more generally asserts that the NYRA

Defendants violated Plaintiff’s equal protection rights by selectively enforcing the rules of racing.
(ECF No. 48-19 ¶ 68.) NYRA Defendants assert that the claim is deficient. (Def. Mem., ECF No.
48-16 at 16-18; Reply Mem. L. Supp. Defs.’ Mot. Dism., ECF No. 48-24 at 6-7.) The Court agrees.
Equal Protection claims may be of the “selective enforcement” or “class of one” varieties.
E.g., Hu, 927 F.3d at 91. “[B]oth types of Equal Protection claims require a showing that the
plaintiff was treated differently from another similarly situated comparator.”6 Id. at 93. Plaintiff,
however, fails to identify any comparators. (See Am. Compl., ECF No. 36; Opp., ECF No. 48-
19.) Plaintiff’s Equal Protection claim therefore fails. See Ruston v. Town Bd. for the Town of

6 For a selective enforcement claim, the circumstances of Plaintiff and a comparator “must bear a reasonably
close resemblance” such that Plaintiff “was similarly situated in all material respects to the individuals with whom
[]he seeks to compare h[im]self.” Hu, 927 F.3d at 96 (internal quotation marks omitted). For a class of one claim,
Plaintiff “must establish that he and a comparator are prima facie identical.” Id. at 92 (internal quotation marks
omitted).
17
10 (S.D.N.Y. 2017); Norton v. Town of Brookhaven, 33 F. Supp. 3d 215, 239-40 (E.D.N.Y. 2014).

D. Plaintiff’s Monell Claim Fails
Plaintiff purports to bring a Monell claim against NYRA, O’Rourke, and Garner in their
individual and official capacities. (See Am. Compl., ECF No. 36 ¶¶ 109-17; Opp., ECF No. 48-
19 at 14-16); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (explaining that “an official-
capacity suit is, in all respects other than name, to be treated as a suit against the entity” for which
the defendant is an agent). This claim fails for three reasons.
First, a Monell claim cannot lie against a defendant (other than a municipality) in its
individual capacity. Sutton v. Rodriguez, No. 18-CV-01042, 2020 WL 5504312, at *9 n.7
(S.D.N.Y. Sept. 8, 2020); Acquah for J.B. v. City of Syracuse, No. 18-CV-1378, 2020 WL 1510405,
at *2 (N.D.N.Y. Mar. 30, 2020); see Monell, 436 U.S. at 690 n.54 (holding Monell claims apply

only to local governments); Bellamy v. City of N.Y., 914 F.3d 727, 757 (2d Cir. 2019) (same);
Agosto, 982 F.3d at 99 (same).
Second, Plaintiff cannot maintain his Monell claim as an official capacity claim. NYRA
and its personnel, including O’Rourke and Garner, are New York State actors. Garcia v. New York
Racing Ass’n, Inc., No. 10-CV-01092, 2011 WL 3841524, at *9 (N.D.N.Y. Aug. 29, 2011).
Consequently, the Eleventh Amendment deprives this Court of jurisdiction over the official
capacity Monell claim.7 See Mamot v. Bd. of Regents, 367 F. App’x 191, 192 (2d Cir. 2010);
Jimenez v. Bisram, No. 22-CV-3090, 2024 WL 3360340, at *4 & n.3 (E.D.N.Y. July 10, 2024).
Moreover, Plaintiff cannot maintain his official capacity Monell claim because “[n]either a state

7 The exception to this rule under Ex Parte Young, 209 U.S. 123 (1908), which allows certain claims seeking
prospective injunctive relief, is inapplicable here. Plaintiff’s constitutional claims concern the fines he paid and the
temporary revocation of his badge—which are not “ongoing violation[s]” of federal law. Vega v. Semple, 963 F.3d
259, 281 (2d Cir. 2020).
18
[capable of suit] under § 1983.” Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998) (citing Hafer v.

Melo, 502 U.S. 21, 26 (1991)); see Florence v. Seggos, No. 21-834, 2022 WL 2046078, at *3 (2d
Cir. June 7, 2022).
Third, even if it could be asserted, Plaintiff’s Monell claim would fail on the merits for
want of an underlying constitutional violation. See supra Sections III.A-C (rejecting Plaintiff’s
constitutional claims); Goe v. Zucker, 43 F.4th 19, 34 (2d Cir. 2022) (affirming dismissal of Monell
claim for lack of an underlying constitutional violation by the individual defendants); Anilao v.
Spota, 27 F.4th 855, 874 (2d Cir. 2022) (same).
E. The Court Declines to Exercise Jurisdiction Over Plaintiff’s State Law Claim
NYRA Defendants ask that the Court decline to exercise supplemental jurisdiction over
Plaintiff’s tortious interference with economic advantage claim given his failure to state a federal

claim. (Def. Mem., ECF No. 48-16 at 20.) A district court may decline to exercise supplemental
jurisdiction over a state-law claim if, as here, it “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). In making that determination, a district court must balance
“values of judicial economy, convenience, fairness, and comity.” Klein & Co. Futures, Inc. v. Bd.
of Trade of the City of N.Y., 464 F.3d 255, 262 (2d Cir. 2006). Those factors weigh against
exercising supplemental jurisdiction here. See, e.g., Jusino v. Fed’n of Cath. Teachers, Inc., 54
F.4th 95, 107 (2d Cir. 2022); Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 78 (2d Cir. 2022).
The Court therefore declines to exercise jurisdiction over Plaintiff’s state law claim.

19
The Court denies leave to further amend the Amended Complaint for two reasons. First,

“[a]lthough district courts generally grant pro se plaintiffs leave to amend a complaint, that leave
may be denied when a plaintiff has already been given an opportunity to amend.” Zaerpour v.
Bank of Am. Corp., No. 23-845, 2024 WL 2069555, at *2 (2d Cir. May 9, 2024) (citing Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)). Second, amendment by a pro se party may be denied
as futile where, as here, the pleading’s deficiencies cannot be cured.8 See Terry v. Inc. Vill. of
Patchogue, 826 F.3d 631, 633 (2d Cir. 2016); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
IV. CONCLUSION
For the reasons stated above, the Amended Complaint, (ECF No. 36), is DISMISSED and
Plaintiff is denied leave to file a further amended pleading. Consequently, Plaintiff’s motion for a
preliminary injunction, (ECF No. 3), is DENIED AS MOOT.

Though Plaintiff paid the filing fee to commence this action, the Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum & Order would not be taken in
good faith and therefore -in -fo -rm --a -pa -u -p -e -ri -s status is denied for the purpose of any appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of the Court is respectfully directed to close this case and mail a copy of this
Memorandum & Order to Plaintiff at his address of record.
SO ORDERED.
Dated: September 16, 2024
Central Islip, New York
/s/ JMA
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

8 The Court concludes that the equal protection claim’s failure to identify a comparator cannot be cured
because Plaintiff failed to identify a comparator in his opposition brief, in which he otherwise asserted new facts, even
after acknowledging that pleading requirement. (See Opp., ECF No. 48-19 ¶¶ 70-78.)
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659416. Public record. Not legal advice.