11-4564-cv
Parkash v. Town of Southeast
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of April, two thousand twelve.
Present:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
________________________________________________
VED PARKASH, AMAN ESTATES, LLC,
Plaintiffs-Appellants,
v. No. 11-4564-cv
TOWN OF SOUTHEAST, WILLIS H. STEPHENS, JR., JOSEPH A. CHARBONNEAU,
RONALD HARPER, CHARLES TESSMER, WILLIAM J. FORD,
Defendants-Appellees.*
________________________________________________
For Plaintiffs-Appellants: PAUL B. SWEENEY, Certilman Balin
Adler & Hyman, LLP, East Meadow,
N.Y.
*
The Clerk of the Court is directed to amend the caption as noted.
For Defendants-Appellees
Town of Southeast, Willis H. Stephens, Jr.,
Ronald Harper, Charles Tessmer, and
William J. Ford: STEPHEN J. GABA, Drake, Loeb, Heller,
Kennedy, Gogerty, Gaba & Rodd, PLLC, New
Windsor, N.Y.
For Defendant-Appellee
Joseph A. Charbonneau: JACK BABCHICK (Bryan J. Weisburd, on the
brief), Babchick & Young, LLP, White Plains,
N.Y.
Appeal from the United States District Court for the Southern District of New York
(Briccetti, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiffs-Appellants Ved Parkash and Aman Estates, LLC (collectively, “plaintiffs”)
appeal from a September 30, 2011 Memorandum Decision issued by the United States District
Court for the Southern District of New York (Briccetti, J.) granting defendants’ motion to
dismiss all of plaintiffs’ federal claims and declining to exercise supplemental jurisdiction over
their state law claims. On appeal, plaintiffs contend that the district court erred in dismissing
their Section 1983 claims for alleged violations of the First, Fourth, and Fourteenth
Amendments. Specifically, they argue, inter alia, that the district court misapplied the pleading
standards under the Federal Rules of Civil Procedure and improperly reached several issues of
fact in the course of granting defendants’ motions. We assume the parties’ familiarity with the
underlying facts, procedural history of the case, and the issues on appeal.
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“[W]e review the grant of a Rule 12(b)(6) motion to dismiss de novo, construing the
complaint liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor.” Chase Grp. Alliance LLC v. City of N.Y. Dep’t of
Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation marks omitted). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Having conducted an independent and de novo review in light of these principles, we
affirm for substantially the reasons stated in the district court’s thorough and well-reasoned
opinion. See Parkash v. Town of Southeast, No. 10 CV 8098(VB), 2011 U.S. Dist. LEXIS
128545 (S.D.N.Y. Sept. 30, 2011). In particular, we find that plaintiffs’ amended complaint
failed to adequately allege that defendants’ prosecution of plaintiffs was illegitimate, a failure
that is fatal to plaintiffs’ First and Fourth Amendment claims. Additionally, the district court
properly dismissed plaintiffs’ Fourteenth Amendment selective enforcement claim because
plaintiffs failed to identify an example of a similarly situated property owner who was treated
differently from the plaintiffs. See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59
(2d Cir. 2010). Finally, the district court correctly concluded that defendant Joseph A.
Charbonneau was entitled to absolute prosecutorial immunity. See, e.g., Shmueli v. City of N.Y.,
424 F.3d 231, 236 (2d Cir. 2005) (“It is . . . well established that a state prosecuting attorney who
acted within the scope of his duties in initiating and pursuing a criminal prosecution is immune
from a civil suit for damages under § 1983.”) (internal quotation marks and citations omitted).
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Accordingly, having considered all of plaintiffs’ arguments and finding them to be
without merit, we hereby AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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