*The Honorable Jed S. Rakoff of the United States

District Court for the Southern District of New York,

sitting by designation.

1

10-3246-cv

Emmerling v. Town of Richmond

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 14th 4 day of June, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 DEBRA ANN LIVINGSTON,

9 Circuit Judge,

JED S. RAKOFF,* 10

11 District Judge.

12

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14 CRAIG J. EMMERLING, 

15

16 Plaintiff-Appellant,

17

18 -v.- 10-3246-cv

19

20 TOWN OF RICHMOND, RALPH ANGELO,

21 individually and in his official

22 capacity as TOWN BOARD SUPERVISOR, JOHN

23 LUTHER, individually and in his
** The Clerk of Court is respectfully instructed to

amend the official case caption as shown above.

2

1 official capacity as TOWN BOARD MEMBER,

2 DOUGLAS DULEN,

3

Defendants-Appellees.** 4

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6

7 FOR APPELLANT: Christina A. Agola

8 Rochester, NY

9

10 FOR APPELLEES: Gerard E. O’Connor

11 Lippman O’Connor

12 Buffalo, NY

13

14

15 Appeal from an judgment by the United States District

16 Court for the Western District of New York (Siragusa, J.),

17 denying Appellant’s motion for leave to amend his complaint

18 and granting Appellees’ motions to dismiss the complaint.

19

20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

21 AND DECREED that the district court’s judgment is AFFIRMED. 

22

23 Emmerling appeals the dismissal of his four claims: 

24 (1) substantive due process violation, (2) stigma-plus

25 procedural due process violation, (3) selective enforcement

26 equal protection violation, and (4) conspiracy to violate

27 his constitutional rights. He also appeals the denial of

28 his motion for leave to amend his complaint. We assume the

29 parties’ familiarity with the underlying facts, the

30 procedural history, and the issues presented for review.

31

32 We review de novo a district court’s dismissal of a

33 complaint under Federal Rule of Procedure 12(b)(6). Kiobel

34 v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.

35 2010). We review for abuse of discretion a district court’s

36 denial of a plaintiff’s request for leave to amend a

37 complaint. Green v. Mattingly, 585 F.3d 97, 104 (2d Cir.

38 2009).

39

40
3

1 “To establish a violation of substantive due process

2 rights, a plaintiff must demonstrate that the state action

3 was so egregious, so outrageous, that it may fairly be said

4 to shock the contemporary conscience.” Okin v. Vill. of

5 Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir.

6 2009) (internal quotation marks omitted). Emmerling failed

7 to allege any behavior by Appellees that could reasonably be

8 considered egregious, outrageous, or conscience-shocking. 

9 We therefore affirm the district court’s dismissal of his

10 substantive due process claim.

11

12 To state a valid “stigma-plus” claim, a plaintiff must

13 plausibly allege: (1) a defamatory statement; (2) “some

14 tangible and material state-imposed burden in addition to

15 the stigmatizing statement”; and (3) a lack of process

16 adequate to justify the state’s action. Velez v. Levy, 401

17 F.3d 75, 87-88 (2d Cir. 2005) (internal quotation marks and

18 ellipsis omitted). To allege a defamatory statement, a

19 plaintiff must allege a public statement injurious to the

20 plaintiff that is capable of being proven false and that was

21 false. Id. at 87. We agree with the district court that

22 Emmerling failed to plausibly allege a defamatory statement

23 or a lack of adequate process. We therefore affirm the

24 dismissal of his stigma-plus claim.

25

26 To state a valid selective enforcement claim under the

27 Equal Protection Clause, a plaintiff must plausibly allege:

28 (1) He was treated differently than others similarly

29 situated; and (2) The selective treatment was “based on

30 impermissible considerations such as race, religion, intent

31 to inhibit or punish the exercise of constitutional rights,

32 or malicious or bad faith intent to injure a person.” 

33 Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d

34 Cir. 2004). This Circuit has not yet decided whether

35 selective enforcement claims are still viable in the public

36 employment context after Engquist v. Or. Dep’t of Agric.,

37 553 U.S. 591 (2008). We need not answer this question here,

38 however, because we agree with the district court that

39 Emmerling failed to plausibly allege that he was similarly

40 situated to any of the individuals he points to as having

41 received more favorable treatment. On this basis, we affirm

42 the district court’s dismissal of his selective enforcement

43 claim.

44
4

1 To state a valid conspiracy claim under 42 U.S.C.

2 § 1985(3), a plaintiff must, among other things, plausibly

3 allege the existence of a conspiracy to deprive him of his

4 constitutional rights. A complaint containing “only

5 conclusory, vague, or general allegations of conspiracy to

6 deprive a person of constitutional rights cannot withstand a

7 motion to dismiss.” Gyadu v. Hartford Ins. Co., 197 F.3d

8 590, 591 (2d Cir. 1999) (per curiam). We agree with the

9 district court that Emmerling provided only vague and

10 conclusory allegations of conspiracy and thereby failed to

11 allege a plausible § 1985(3) claim. We therefore affirm the

12 district court’s dismissal of Emmerling’s conspiracy claim.

13

14 A district court may deny a plaintiff’s request for

15 leave to amend his complaint when it believes that such

16 leave would be futile. Acito v. IMCERA Grp., Inc., 47 F.3d

17 47, 55 (2d Cir. 1995). Here, Emmerling’s proposed

18 amendments are merely stylistic and fail to amend his

19 complaint in a manner that would survive dismissal. See

20 Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999). 

21 We therefore conclude that the district court did not abuse

22 its discretion in denying Emmerling leave to amend his

23 complaint.

24

25 We hereby AFFIRM the district court’s judgment denying

26 Appellant’s motion to amend his complaint and granting

27 Appellees’ motions to dismiss Appellant’s complaint with

28 prejudice.

29

30

31 FOR THE COURT:

32 CATHERINE O’HAGAN WOLFE, CLERK

33