24-1803-cv Grune v. Hernandez
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of May, two thousand twenty-five.
PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _____________________________________
Jeffrey C. Grune,
Plaintiff-Appellant,
v. 24-1803
Hazel Hernandez, AKA Cissy, Code Enforcement Officer,
Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: Jeffrey Grune, pro se, Cohoes, NY.
FOR DEFENDANTS-APPELLEES: Ryan P. Bailey, Bailey, Johnson & Peck, P.C., Albany, NY.
Appeal from a judgment of the United States District Court for the Northern
of New York (Mae A. D’Agostino, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Jeffrey Grune, representing himself, appeals from the district court’s
dismissal of his Amended Complaint (“Complaint”) for failure to state a claim.
Grune sued Hazel Hernandez, the Code Enforcement Officer for the Town of New
Lebanon, New York, under 42 U.S.C. § 1983, asserting procedural due process and
equal protection violations.
In his Complaint, Grune alleged that his landlord’s maintenance workers
cut down a tree and dropped it on his mobile home, causing damage to the roof.
After Grune contacted Hernandez, she inspected the home and then issued an
“Order to Vacate and Repair,” directing the occupants to vacate the premises and
obtain a building permit to repair the structural damage. The directive noted that
under New York law manufactured homes must be serviced by certified 2 mechanics.
Grune alleges that Hernandez violated the Equal Protection Clause by
treating his landlord and another resident, “Mr. Munch,” differently with respect
to damage to, and repair of, their premises. We additionally construe Grune’s
Complaint as alleging that Hernandez violated his procedural due process rights
by declaring his home to be “unsafe” without affording a meaningful opportunity
to be heard.
The district court granted Hernandez’s motion to dismiss Grune’s
Complaint for failure to state a claim under Federal Rule of Procedure 12(b)(6).
Grune v. Hernandez, No. 1:22-CV-857, 2024 WL 2818367 (N.D.N.Y. June 3, 2024).
We assume the parties’ familiarity with the remaining facts, the procedural
history, and the issues on appeal.
We review the district court’s dismissal for failure to state a claim under
Rule 12(b)(6) without deference to the district court’s analysis. VIZIO, Inc. v. Klee,
886 F.3d 249, 255 (2d Cir. 2018). “In considering a motion to dismiss for failure to
state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts
stated in the complaint or in documents attached to the complaint as exhibits or
incorporated in the complaint by reference.” Newman & Schwartz v. Asplundh Tree
3 Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). 1
We agree with the district court that Grune failed to state a “class of one”
equal protection claim. A plaintiff can state a “class of one” equal protection claim
by plausibly alleging that a government “intentionally treated [the plaintiff]
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 (2000). In
a successful “class of one” equal protection claim, “the level of similarity between
plaintiffs and the persons with whom they compare themselves must be extremely
high.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019) (quoting Neilson v.
D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005)). 2 In particular, a plaintiff must show
that “(i) no rational person could regard the circumstances of the plaintiff to differ
from those of a comparator to a degree that would justify the differential treatment
on the basis of a legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to exclude the possibility
that the defendant acted on the basis of a mistake.” Id. at 92. Grune failed to allege
1 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
2 Nielson was overruled on other grounds. See Hu, 927 F.3d at 92 n.3. 4 sufficient similarity between his circumstances and either of his comparators to
support a “class of one” equal protection claim.
Grune’s claim that Hernandez treated him differently from his landlord fails
because, although Grune alleged that the landlord was allowed to complete roof
work on a mobile home owned by the landlord without a permit, and without
relying on certified contractors, Grune did not allege that Hernandez had
inspected the landlord’s mobile home and found similar damage. Instead, the
Complaint faults Hernandez for failing to investigate the nature of the landlord’s
roof work. But here, Grune actually contacted the relevant Town department,
explained what had happened, and showed images of the damaged home. (On
appeal, Grune emphasizes that the district court inaccurately stated that Grune
asked Hernandez to inspect the home. We recognize that Grune did not request
the inspection, but that doesn’t change our analysis.) Plus, Grune hasn’t alleged
that the landlord’s home suffered any damage, let alone damage that was similar
to his own.
We likewise conclude that Munch is not a sufficient comparator to sustain a
“class of one” equal protection claim. Grune alleged that the Town Board held a
hearing before taking action with respect to the collapsed roof on Munch’s
5 property, whereas Grune was not offered a hearing even after Hernandez served
him a notice to vacate. But the Town Board meeting minutes attached to Grune’s
amended complaint reveal that the Munch home was vacant and in foreclosure
proceedings, and that the Town Board was considering boarding up the windows
and doors and demolishing the porch due to the dangers the home posed to nearby
schoolchildren. 3 Grune was not similarly situated to Munch.
We also agree with the district court that Grune’s Complaint, liberally
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24-1803-cv Grune v. Hernandez
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of May, two thousand twenty-five.
PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _____________________________________
Jeffrey C. Grune,
Plaintiff-Appellant,
v. 24-1803
Hazel Hernandez, AKA Cissy, Code Enforcement Officer,
Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: Jeffrey Grune, pro se, Cohoes, NY.
FOR DEFENDANTS-APPELLEES: Ryan P. Bailey, Bailey, Johnson & Peck, P.C., Albany, NY.
Appeal from a judgment of the United States District Court for the Northern
of New York (Mae A. D’Agostino, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Jeffrey Grune, representing himself, appeals from the district court’s
dismissal of his Amended Complaint (“Complaint”) for failure to state a claim.
Grune sued Hazel Hernandez, the Code Enforcement Officer for the Town of New
Lebanon, New York, under 42 U.S.C. § 1983, asserting procedural due process and
equal protection violations.
In his Complaint, Grune alleged that his landlord’s maintenance workers
cut down a tree and dropped it on his mobile home, causing damage to the roof.
After Grune contacted Hernandez, she inspected the home and then issued an
“Order to Vacate and Repair,” directing the occupants to vacate the premises and
obtain a building permit to repair the structural damage. The directive noted that
under New York law manufactured homes must be serviced by certified 2 mechanics.
Grune alleges that Hernandez violated the Equal Protection Clause by
treating his landlord and another resident, “Mr. Munch,” differently with respect
to damage to, and repair of, their premises. We additionally construe Grune’s
Complaint as alleging that Hernandez violated his procedural due process rights
by declaring his home to be “unsafe” without affording a meaningful opportunity
to be heard.
The district court granted Hernandez’s motion to dismiss Grune’s
Complaint for failure to state a claim under Federal Rule of Procedure 12(b)(6).
Grune v. Hernandez, No. 1:22-CV-857, 2024 WL 2818367 (N.D.N.Y. June 3, 2024).
We assume the parties’ familiarity with the remaining facts, the procedural
history, and the issues on appeal.
We review the district court’s dismissal for failure to state a claim under
Rule 12(b)(6) without deference to the district court’s analysis. VIZIO, Inc. v. Klee,
886 F.3d 249, 255 (2d Cir. 2018). “In considering a motion to dismiss for failure to
state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts
stated in the complaint or in documents attached to the complaint as exhibits or
incorporated in the complaint by reference.” Newman & Schwartz v. Asplundh Tree
3 Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). 1
We agree with the district court that Grune failed to state a “class of one”
equal protection claim. A plaintiff can state a “class of one” equal protection claim
by plausibly alleging that a government “intentionally treated [the plaintiff]
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 (2000). In
a successful “class of one” equal protection claim, “the level of similarity between
plaintiffs and the persons with whom they compare themselves must be extremely
high.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019) (quoting Neilson v.
D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005)). 2 In particular, a plaintiff must show
that “(i) no rational person could regard the circumstances of the plaintiff to differ
from those of a comparator to a degree that would justify the differential treatment
on the basis of a legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to exclude the possibility
that the defendant acted on the basis of a mistake.” Id. at 92. Grune failed to allege
1 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
2 Nielson was overruled on other grounds. See Hu, 927 F.3d at 92 n.3. 4 sufficient similarity between his circumstances and either of his comparators to
support a “class of one” equal protection claim.
Grune’s claim that Hernandez treated him differently from his landlord fails
because, although Grune alleged that the landlord was allowed to complete roof
work on a mobile home owned by the landlord without a permit, and without
relying on certified contractors, Grune did not allege that Hernandez had
inspected the landlord’s mobile home and found similar damage. Instead, the
Complaint faults Hernandez for failing to investigate the nature of the landlord’s
roof work. But here, Grune actually contacted the relevant Town department,
explained what had happened, and showed images of the damaged home. (On
appeal, Grune emphasizes that the district court inaccurately stated that Grune
asked Hernandez to inspect the home. We recognize that Grune did not request
the inspection, but that doesn’t change our analysis.) Plus, Grune hasn’t alleged
that the landlord’s home suffered any damage, let alone damage that was similar
to his own.
We likewise conclude that Munch is not a sufficient comparator to sustain a
“class of one” equal protection claim. Grune alleged that the Town Board held a
hearing before taking action with respect to the collapsed roof on Munch’s
5 property, whereas Grune was not offered a hearing even after Hernandez served
him a notice to vacate. But the Town Board meeting minutes attached to Grune’s
amended complaint reveal that the Munch home was vacant and in foreclosure
proceedings, and that the Town Board was considering boarding up the windows
and doors and demolishing the porch due to the dangers the home posed to nearby
schoolchildren. 3 Grune was not similarly situated to Munch.
We also agree with the district court that Grune’s Complaint, liberally
construed, fails to state a procedural due process claim. To establish a procedural
due process violation, Grune must show that Hernandez “deprived him of a
cognizable interest in life, liberty, or property,” without constitutionally sufficient
process. Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017).
The Supreme Court has distinguished between due process claims based on
“established state procedures” and “random, unauthorized acts by state
3 Under these circumstances, we may presume the accuracy of the statements in the Town Board meeting minutes that Grune attached to his Complaint. “[A] plaintiff does not necessarily adopt as true the full contents of any document attached to a complaint or adopted by reference.” Pearson v. Gesner, 125 F.4th 400, 406 (2d Cir. 2025). “Rather than accepting as true every word in a unilateral writing by a defendant and attached by a plaintiff to a complaint, the court must consider why a plaintiff attached the documents.” Id. at 407 (emphasis omitted). Here, Grune attached the documents to demonstrate that he and Munch were similarly situated and did not challenge the accuracy of the minutes. Under these circumstances, we may consider the facts documented in the minutes for the purpose of comparing Munch’s alleged circumstances to Grune’s. 6 employees.” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d
877, 880 (2d Cir. 1996). “Where a deprivation at the hands of a government actor
is random and unauthorized, hence rendering it impossible for the government to
provide a pre-deprivation hearing, due process requires only a post-deprivation
proceeding.” DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003). In such
circumstances, “it is impossible for the government to anticipate and prevent the
wrongful loss of liberty or property in advance, and it has no realistic alternative
other than to adopt remedies capable of righting the wrong after the deprivation.”
Locurto v. Safir, 264 F.3d 154, 172 (2d Cir. 2001).
Thus, “there is no constitutional violation (and no available § 1983 action)
when there is an adequate state postdeprivation procedure to remedy a random,
arbitrary deprivation of property.” Hellenic, 101 F.3d at 882. And this Court has
“held on numerous occasions that an Article 78 proceeding is a perfectly adequate
postdeprivation remedy.” Id. at 881.
The district court properly treated Hernandez’s actions here as “random
and unauthorized,” insofar as she issued a notice to vacate without offering Grune
a pre-deprivation (or post-deprivation) hearing. The Town Code provides that the
Building Inspector’s notice of an unsafe building condition should ordinarily
7 provide for a hearing to give the owner an opportunity to appear and respond.
See Town of New Lebanon Code § 83-3 (reproduced at App’x 78). Hernandez did
not comply with this requirement.
Grune argues that Hernandez did not act in a “random and unauthorized”
manner because she acted pursuant to her express emergency authority under
Town Code § 83-5. We disagree. For one thing, the Town Code does not confer
on Hernandez the authority to take unilateral emergency action outside of the
ordinary process; rather, § 83-5 gives the supervisor of the town the power to direct
the Building Inspector (here, Hernandez) to take necessary action to ensure safety
in an emergency. Unlike the cases Grune cites, this case does not involve a high-
ranking state official with final authority over significant matters depriving the
plaintiff of cognizable rights without adequate pre-deprivation process. See, e.g.,
Velez v. Levy, 401 F.3d 75, 92–93 (2d Cir. 2005) (Chancellor of New York City School
District removing school board member); Dwyer v. Regan, 777 F.2d 825, 832–33 (2d
Cir. 1985) (New York Comptroller removing civil service employee). Thus, our
assessment that the availability of a post-deprivation Article 78 proceeding
provided Grune with sufficient process does not turn on whether Hernandez was
purporting to exercise emergency authority.
8 For the above reasons, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court