Tuchman v. Connecticut

Page 169

185 F.Supp.2d 169

Norman TUCHMAN, Alan Tuchman, and Bechem Transport, Inc., Plaintiffs, v. State of CONNECTICUT, Department of Environmental Protection, and David A. Nash Defendants.

No. CIV.A.301-CV-1513(JCH).

United States District Court, D. Connecticut.

February 8, 2002.

Kenneth A. Votre, Votre & Associates, New Haven, CT, John-Henry McKim Steele, Middlefield, CT, for Plaintiffs.

Mark P. Kindall, Atty. General's Office, Hartford, CT, for Defendants.

RULING ON DEFENDANTS' MOTION TO DISMISS [DKT. NO. 6]

HALL, District Judge.

In this case, the plaintiffs, Norman Tuchman, Alan Tuchman, and Bechem Transport, Inc., filed a claim under 42 U.S.C. § 1983 for violations of the federal and Connecticut constitutions against the defendants, the State of Connecticut, the Connecticut Department of Environmental Protection ("CTDEP"), and David Nash ("Nash"). The plaintiffs allege that the defendants' conduct violated the plaintiffs' rights under the Fifth and Fourteenth Amendments of the Constitution, specifically that defendants' conduct violated equal protection and procedural due process and constituted a taking of property without just compensation. The defendants filed a motion to dismiss for lack of subject matter jurisdiction, under Rule 12(b)(1), and failure to state a cause of action, under Rule 12(b)(6). The court addresses the defendants' Eleventh Amendment arguments and considers the sufficiency of the complaint to state a constitutional deprivation in order to survive Eleventh Amendment and qualified immunity analysis.¹

FACTUAL BACKGROUND

According to the complaint, this case stems from environmental legislation enacted by the Connecticut legislature in 1992 to regulate the transshipment of hazardous waste. The legislation vested CTDEP with authority to regulate the industry, including permits for transshipment of waste. CTDEP did not take advantage of the regulatory authority until 1998.

In 1992, after the legislation passed, the plaintiffs notified CTDEP that they operated a hazardous waste transshipment business. From 1992 to 1998, the plaintiffs operated a hazardous waste transport, storage, and transshipment business with the full knowledge and consent of CTDEP. Plaintiffs had a formal license to transport and store hazardous waste for limited periods in Connecticut, but did not have a permit to transship the waste.

On or about August 24, 1998, CTDEP issued a Notice of Violation ("NOV") to the plaintiffs and instructed them to cease and desist all transshipment business or face daily fines of $25,000. The plaintiffs applied for a formal permit to conduct transshipment of hazardous waste, but CTDEP denied the permit. According to the complaint, CTDEP has never granted anyone a permit for transshipment of hazardous waste. The plaintiffs allege that CTDEP's actions injured their ability to conduct business and the value of their existing business. The plaintiffs claim that the defendants' actions violate equal protection and procedural due process and constitute a taking of property without just compensation.

STANDARD OF REVIEW

A Rule 12(b)(1) motion to dismiss based on lack of subject matter jurisdiction can be either a facial attack or a factual attack. A facial attack merely questions the sufficiency of the pleading. When a defendant raises a facial attack to subject matter jurisdiction, the court takes the allegations in the complaint as true and draws all inferences in favor of the non-movant. 2 James Wm. Moore et al., Moore's Federal Practice § 12.30[4] (3d ed.2001).

A motion to dismiss filed pursuant to Rule 12(b)(6) can only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering such a motion, the court must accept the factual allegations alleged in the complaint as true and all inferences must be drawn in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). A Rule 12(b)(6) motion to dismiss cannot be granted simply because recovery appears remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id. (quotation omitted). "[B]ald assertions and conclusions of law will not suffice to state a claim ...." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000).

DISCUSSION

The crux of the defendants' motion to dismiss is an argument that the Eleventh Amendment bars most of the plaintiffs' action.² "As a general matter the Eleventh Amendment bars suits of any sort against a state in federal court unless the state has consented to be sued or Congress has expressly abrogated the state's immunity." Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir.1997). Further, a claim against a state agency or state officer in his official capacity is essentially a claim against the State that implicates the Eleventh Amendment because the State is the "real, substantial party in interest." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Santiago v. New York State Dep't of Corr. Servs., 945 F.2d 25, 28 n. 1 (2d Cir.1991). The Eleventh Amendment, accordingly, bars claims against the state, state agencies, and state officers in their official capacity — except to the extent the plaintiff seeks prospective injunctive relief from the state officer. Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Huang v. Johnson, 251 F.3d 65, 69-70 (2d Cir.2001). A plaintiff can state a claim for money damages against the state officer in his individual capacity, as long as payment is not required from the funds of the state treasury. Huang, 251 F.3d at 70 (distinguishing Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 462-63, 65 S.Ct. 347, 89 L.Ed. 389 (1945)). Therefore, the court would have subject matter jurisdiction over claims against state officials in their official capacity for prospective injunctive relief and against state officials in their individual capacity for money damages.

In this case, the plaintiffs have included claims for injunctive relief and money damages against the State of Connecticut; CTDEP; and Nash, in his individual and official capacity. Plaintiffs have not provided any substantive grounds permitted by the Eleventh Amendment to proceed on any claims against the State of Connecticut or CTDEP.³ Accordingly, the court grants the motion to dismiss all claims against the State of Connecticut and CTDEP based on Eleventh Amendment immunity.

Next, addressing the claims against Nash, the plaintiffs' claim for prospective injunctive relief against Nash in his official capacity must arise from a continuing violation of federal law. See Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Ward v. Thomas, 207 F.3d 114, 119-20 (2d Cir.2000). Nash challenges the sufficiency of the allegations to state a violation of federal law. The complaint states that Nash's actions in issuing a NOV and failing to issue a permit violate equal protection and procedural due process and constitute a taking of property without just compensation.⁴ Complaint [Dkt. No. 1], ¶ 24. The court must determine whether the plaintiffs have "properly identified both a specific and ongoing violation of federal law" by Nash. Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir.2000).

"The Equal Protection Clause requires that the government treat all similarly situated people alike." Harlen Assoc. v. Village of Mineola, 273 F.3d 494, 499 (2d Cir.2001) (citing Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). Successful equal protection claims may be brought by a "class of one" where the plaintiffs allege that they have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Comm'n of Webster County, 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)). Before Olech, the Second Circuit permitted selective enforcement claims based on a "class of one" if the plaintiffs could "show both (1) that [they were] treated differently from other similarly situated individuals, and (2) that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Harlen, 273 F.3d at 499 (internal quotations omitted) (quoting LaTrieste Rest. & Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir.1994)). In Harlen, the Court of Appeals assumed without holding that plaintiffs who establish differential treatment could state an equal protection claim by showing "either that there was no rational basis for the unequal treatment received, or that the [unequal treatment] was motivated by animus." Id. at 500 (citation omitted).

In this case, the plaintiffs allege that the CTDEP has not issued any permits for the transshipment of hazardous waste. Further, they claim that, since their business operated for over six years after the relevant regulations were created, the plaintiffs are in a unique position regarding their rights. These allegations contradict any attempt to claim differential treatment and violation of equal protection. If plaintiffs received similar treatment compared to similarly situated individuals and, thus, were denied permits, they have no claim for equal...