* 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

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND**  **THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A** 
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 14 th** **day of June, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **DEBRA ANN LIVINGSTON,** 8 **Circuit Judge ,**  9 **JED S. RAKOFF,** ***** 10 **District Judge**

. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **CRAIG J. EMMERLING,** 14 15 Plaintiff-Appellant **,** 16 17 **-v.- 10-3246-cv** 18 19 **TOWN OF RICHMOND, RALPH ANGELO,** 20 **individually and in his official** 21 **capacity as TOWN BOARD SUPERVISOR, JOHN** 22 **LUTHER, individually and in his** 23**The Clerk of Court is respectfully instructed to amend the official case caption as shown above.

2 **official capacity as TOWN BOARD MEMBER,** 1 **DOUGLAS DULEN,** 2 3 Defendants-Appellees

. ****** 4
- - - - - - - - - - - - - - - - - - - -X 5 6 **FOR APPELLANT:** Christina A. Agola 7 Rochester, NY 8 9 **FOR APPELLEES:** Gerard E. O’Connor 10 Lippman O’Connor 11 Buffalo, NY 12 13 14 Appeal from an judgment by the United States District 15 Court for the Western District of New York (Siragusa, J.), 16 denying Appellant’s motion for leave to amend his complaint 17 and granting Appellees’ motions to dismiss the complaint. 18 19 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 20 **AND DECREED**that the district court’s judgment is **AFFIRMED**

. 21 22 Emmerling appeals the dismissal of his four claims: 23 (1) substantive due process violation, (2) stigma-plus 24 procedural due process violation, (3) selective enforcement 25 equal protection violation, and (4) conspiracy to violate 26 his constitutional rights. He also appeals the denial of 27 his motion for leave to amend his complaint. We assume the 28 parties’ familiarity with the underlying facts, the 29 procedural history, and the issues presented for review. 30 31 We review de novoa district court’s dismissal of a 32 complaint under Federal Rule of Procedure 12(b)(6). Kiobel 33 v. Royal Dutch Petroleum Co. , 621 F.3d 111, 124 (2d Cir. 34 2010). We review for abuse of discretion a district court’s 35 denial of a plaintiff’s request for leave to amend a 36 complaint. Green v. Mattingly , 585 F.3d 97, 104 (2d Cir. 37 2009). 38 39 403 “To establish a violation of substantive due process 1 rights, a plaintiff must demonstrate that the state action 2 was so egregious, so outrageous, that it may fairly be said 3 to shock the contemporary conscience.” Okin v. Vill. of 4 Cornwall-On-Hudson Police Dep’t , 577 F.3d 415, 431 (2d Cir. 5 2009) (internal quotation marks omitted). Emmerling failed 6 to allege any behavior by Appellees that could reasonably be 7 considered egregious, outrageous, or conscience-shocking. 8 We therefore affirm the district court’s dismissal of his 9 substantive due process claim. 10 11 To state a valid “stigma-plus” claim, a plaintiff must 12 plausibly allege: (1) a defamatory statement; (2) “some 13 tangible and material state-imposed burden in addition to 14 the stigmatizing statement”; and (3) a lack of process 15 adequate to justify the state’s action. Velez v. Levy , 401 16 F.3d 75, 87-88 (2d Cir. 2005) (internal quotation marks and 17 ellipsis omitted). To allege a defamatory statement, a 18 plaintiff must allege a public statement injurious to the 19 plaintiff that is capable of being proven false and that was 20 false. Id. at 87. We agree with the district court that 21 Emmerling failed to plausibly allege a defamatory statement 22 or a lack of adequate process. We therefore affirm the 23 dismissal of his stigma-plus claim. 24 25 To state a valid selective enforcement claim under the 26 Equal Protection Clause, a plaintiff must plausibly allege: 27 (1) He was treated differently than others similarly 28 situated; and (2) The selective treatment was “based on 29 impermissible considerations such as race, religion, intent 30 to inhibit or punish the exercise of constitutional rights, 31 or malicious or bad faith intent to injure a person.” 32 Freedom Holdings, Inc. v. Spitzer , 357 F.3d 205, 234 (2d 33 Cir. 2004). This Circuit has not yet decided whether 34 selective enforcement claims are still viable in the public 35 employment context after Engquist v. Or. Dep’t of Agric.
, 36 553 U.S. 591 (2008). We need not answer this question here, 37 however, because we agree with the district court that 38 Emmerling failed to plausibly allege that he was similarly 39 situated to any of the individuals he points to as having 40 received more favorable treatment. On this basis, we affirm 41 the district court’s dismissal of his selective enforcement 42 claim. 43 444 To state a valid conspiracy claim under 42 U.S.C. 1 § 1985(3), a plaintiff must, among other things, plausibly 2 allege the existence of a conspiracy to deprive him of his 3 constitutional rights. A complaint containing “only 4 conclusory, vague, or general allegations of conspiracy to 5 deprive a person of constitutional rights cannot withstand a 6 motion to dismiss.” Gyadu v. Hartford Ins. Co. , 197 F.3d 7 590, 591 (2d Cir. 1999) (per curiam). We agree with the 8 district court that Emmerling provided only vague and 9 conclusory allegations of conspiracy and thereby failed to 10 allege a plausible § 1985(3) claim. We therefore affirm the 11 district court’s dismissal of Emmerling’s conspiracy claim. 12 13 A district court may deny a plaintiff’s request for 14 leave to amend his complaint when it believes that such 15 leave would be futile. Acito v. IMCERA Grp., Inc. , 47 F.3d 16 47, 55 (2d Cir. 1995). Here, Emmerling’s proposed 17 amendments are merely stylistic and fail to amend his 18 complaint in a manner that would survive dismissal. See 19 Hayden v. Cnty. of Nassau , 180 F.3d 42, 53 (2d Cir. 1999). 20 We therefore conclude that the district court did not abuse 21 its discretion in denying Emmerling leave to amend his 22 complaint. 23 24 We hereby **AFFIRM** the district court’s judgment denying 25 Appellant’s motion to amend his complaint and granting 26 Appellees’ motions to dismiss Appellant’s complaint with 27 prejudice. 28 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33