Opinion
No. CV-04-4002185 S
May 23, 2006
MEMORANDUM OF DECISION
On May 16, 2005, the plaintiffs, Louis West and Jan Rhynhart, filed a revised three-count complaint against the defendant, the New Haven housing authority. In count one, West alleges a negligence claim. In counts two and three, respectively, West and Rhynhart allege that the defendant violated the equal protection clause of the federal constitution.
The plaintiffs allege the following specific facts in counts two and three. The defendant, which is an agency of the city of New Haven and a municipal corporation, maintained public housing complexes at several locations in the city. The complexes received federal funds to support their operation. West and Rhynhart were tenants at the defendant's Liberty Street housing complex (Liberty Street complex). Although the defendant received repeated warnings and complaints, it "consciously and intentionally" provided the tenants at the Liberty Street complex with less physical security and safety than it provided to the tenants of its other housing projects in the city. As a result, on November 18, 2003, West was assaulted and physically injured in the vicinity of his residence, and on December 16, 2002, Rhynhart was assaulted, robbed and physically injured inside her residence. During this time, the defendant was acting under color of law, i.e., under color of the state constitution and statutes and city laws and regulations. The defendant's conduct deprived the plaintiffs of their rights to equal protection in violation of the fourteenth amendment to the United States constitution, as enforced through 42 U.S.C. §§ 1983 and 1988.
In count one, the plaintiffs allege that during West's tenancy, and prior to the date he was assaulted, West and other residents of the Liberty Street complex repeatedly complained to the defendant that the safety and security measures at the complex were inadequate. These are the same warnings and complaints that the plaintiffs refer to counts two and three.
In count one, the plaintiffs also allege that during this time, other tenants of the complex were the victims of assaults and robberies because of the defendant's failure to provide adequate safety and security at this location. It is less clear whether these incidents pertain to the warnings and complaints that the plaintiffs refer to in counts two and three.
42 U.S.C. § 1988 provides in relevant part: "(b) In any action or proceeding to enforce a provision of [§ 1983] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fees as part of the costs . . ."
On August 4, 2005, the defendant filed a motion to strike counts two and three of the revised complaint on the ground that the plaintiffs failed to properly plead their equal protection claims. The defendant filed a memorandum of law in support of its motion. On August 15, 2005, the plaintiffs filed a memorandum of law in opposition to the motion to strike, and on October 21, 2005, the defendant filed a memorandum of law in reply to the plaintiffs' memorandum. The court heard oral argument at the short calendar on March 6, 2006.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1289 (2006).
Although "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Consequently, a trial court properly grants a motion to strike "if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
Initially, it is noted that the claims at issue are premised on the federal constitution and federal statutes. Our Supreme Court has recognized that, as to substantive issues, "[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts." (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000). Therefore, in addition to United States Supreme Court and Connecticut appellate court authority, this court will look to cases from the United States Court of Appeals for the Second Circuit to assist in its analysis of the substantive issues.
Nevertheless, in the context of a motion to strike, it is essential to recall that the Connecticut rules of practice apply to the pleading requirements at issue, and that "under the law of this state, [the plaintiffs have an obligation] to provide the trial court with pleadings that contain `a plain and concise statement of the material facts on which the pleader relies . . .' Practice Book § 10-1." Alexander v. Commissioner of Administrative Services, 86 Conn.App. 677, 686, 862 A.2d 851 (2004). "By contrast, an action brought under 42 U.S.C. § 1983 in federal court is governed by the federal rules of civil procedure, which permit pleadings to go forward if the pleadings put the other party on notice of potential claims." Alexander v. Commissioner of Administrative Services, supra, 86 Conn.App. 686 n. 7.
Counts two and three are premised on 42 U.S.C. § 1983, which provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ." "To state a valid claim under § 1983, a plaintiff must establish: `(1) [that] the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.' Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)." ATC Partnership v. Windham, 251 Conn. 597, 604, 741 A.2d 305 (1999).
The defendant makes the following arguments in support of its contention that the plaintiffs fail to properly plead their claims, which the court will address in turn: (1) the plaintiffs do not properly plead that the defendant's conduct constituted state action or that the defendant was a state actor; (2) the plaintiffs fail to adequately allege that the defendant intentionally treated them differently from others who are similarly situated to them; and (3) the plaintiffs fail to allege that the defendant's conduct was based on impermissible considerations.
In regard to the defendant's first argument, "[b]ecause the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes `state action.'" (Internal quotation marks omitted.) Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d Cir.), cert. denied, 539 U.S. 942, 123 S.Ct. 2610, 156 L.Ed.2d 628 (2003). "To state a claim under § 1983, a plaintiff must demonstrate that the defendant acted `under color of' state law. 42 U.S.C. § 1983." Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004). "[S]tate action under the Fourteenth Amendment is tantamount to action under color of law for purposes of Section 1983." Ginsberg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999). Thus, "[i]f a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action `under color of state law' for § 1983 purposes." Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 295 n. 2, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001).
In the present case, the plaintiffs allege that the defendant was an agency of the city, as well as a municipal corporation, that its complexes received federal funding, and that it "was acting under color of . . . the constitution, statutes, laws, rules, regulations, customs and usages of the State of Connecticut and the City of New Haven." According to the defendant, these allegations are insufficient to meet the state action requirement because, under Connecticut law, public housing agencies are independent corporate bodies, and are not city agencies. The plaintiffs counter that state action includes not only actions by formal government agencies, but also actions by agencies that have adopted corporate forms, and even actions by certain private entities.
As the Second Circuit Court of Appeals recently noted in discussing this issue, "[a]s general matter, defining the limits of the State's presence tends to be a difficult endeavor because of the protean character of contemporary government activity." Horvath v. Westport Public Library Assn., 362 F.3d 147, 151 (2d Cir. 2004). The court further explained that "[i]n Lebron [v. National Railroad Passengers Corp., 513 U.S. 374; 115 S.Ct. 961, 130 L.Ed.2d 902 (1995)], the Supreme Court considered the state actor status of the National Railroad Passenger Corporation, commonly known as Amtrak. Amtrak was established by a Congressional statute, which explicitly states that it "will not be an agency or establishment of the United States Government.". . . This designation, however, was held to be anything but conclusive . . . Rather, the Court looked to the fact that the statute creating Amtrak also `provide[d] for a board of nine members, six of whom [were] appointed directly by the President of the United States.' . . . The Court concluded that `where . . . the Government creates a corporation by special law, for the furtherance of government objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation,' the corporation would be considered a state actor . . .
"Following Lebron, we have utilized the following standard to determine whether or not a corporate entity qualifies as a state actor: `only if (1) the government created the corporate entity by special law, (2) the government created the entity to further governmental objectives, and (3) the government retains "permanent authority to appoint a majority of the directors of the corporation[,]" will the corporation be deemed a government entity for the purposes of the state action requirement.' " Horvath v. Westport Public Library Assn., supra, 352-53.
The defendant meets the first factor of this standard because, as stated in General Statutes § 8-40, the state legislature expressly created "[i]n each municipality of the state . . . a public body corporate and politic to be known as the `housing authority' of the municipality . . ." The defendant satisfies the second factor in that, in creating municipal housing authorities, the legislature declared that "the clearance, replanning and reconstruction of the areas in which unsanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for families of low and moderate income are public uses and purposes for which public money may be spent and private property acquired; and the necessity in the public interest for the provisions hereinafter enacted [including § 8-40] is declared as a matter of legislative determination." General Statutes § 8-38. Pursuant to General Statutes § 8-44(a), the powers that the legislature conferred on municipal housing authorities include the "public powers . . . necessary or convenient to carry out the purposes and provisions of this chapter," and specific powers designed to address the needs set out in § 8-38. Finally, the defendant satisfies the third factor in that, under General Statutes § 8-41(a), the chief executive officer of a municipality appoints all of the municipality's housing commissioners. Accordingly, the defendant qualifies as a state actor as that term is utilized in conjunction with § 1983 and the fourteenth amendment. See Rice v. Meriden Housing Authority, Superior Court, judicial district of New Haven, Docket No. CV 03 0479556 (March 31, 2004, Skolnick, J.) (plaintiff's allegation that housing authority "`is a municipal agency which operates pursuant to [§ 8-40], et seq.' is sufficient to sustain the plaintiff's claim that the defendants, acting under color of state law, deprived the plaintiff of his property right without due process of law"); and Henry Knox Sherrill Corp. v. Randall, 33 Conn.Sup. 15, 17, 358 A.2d 154 (1975) ("panoply of government assistance and regulation" provided to quasi-public landlord of low income housing unit that was subsidized by and controlled by federal agencies and local housing authority "is more than sufficient to find that [landlord's] activities are state action for the purposes of applying the . . . fourteenth [amendment]"). Accordingly, the plaintiffs' allegations are sufficient to meet the state action requirement of their equal protection claims.
The defendant's second argument is that the plaintiffs' equal protection claims are legally insufficient because the plaintiffs fail to adequately allege that they were treated differently from others who were similarly situated to them. In regard to this issue, in counts two and three, the plaintiffs allege that "[d]espite repeated warnings and complaints, the defendant . . . provided less physical security and safety to its tenants at the Liberty Street housing project than at its other housing projects in the City of New Haven." According to the plaintiffs, in Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the United States Supreme Court determined that allegations similar to theirs were sufficient to meet the "similarly situated" element of an equal protection claim. The problem with the plaintiffs' contention is that, as previously noted, the adequacy of the plaintiffs' allegations are measured by the fact pleading requirements of the Connecticut rules of practice, and not by the Federal Rules of Civil Procedure, which permit notice pleading. See Alexander v. Commissioner of Administrative Services, supra, 86 Conn.App. 686 and n. 7.
As our Supreme Court has noted, "[t]he United States Supreme Court has recently reiterated that `in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated.' County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)." ATC Partnership v. Windham, supra, 251 Conn. 605. Here, the plaintiffs base their § 1983 claims on their allegations that the defendant violated their right to equal protection as guaranteed in the fourteenth amendment to the federal constitution. The fourteenth amendment to the United States constitution provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike . . . A violation of equal protection by selective [treatment] arises if (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective 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." (Citations omitted; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 670-71, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S.Ct. 1089, 148 L.Ed.2d 963 (2001). As to the first requirement, our Supreme Court has held that "the requirement imposed upon [p]laintiffs claiming an equal protection violation [is that they] identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently . . ." (Emphasis in original; internal quotation marks omitted.) Id., 672.
Applying this standard, our Appellate Court recently affirmed a trial court judgment granting a motion to strike an equal protection claim that was brought by an inmate and the executrix of his father's estate. Alexander v. Commissioner of Administrative Services, supra, 86 Conn.App. 685. In that case, the plaintiffs' claim was premised on their contention that the statute authorizing state agencies to place a lien on the inmate's inheritance violated his right to equal protection. The Appellate Court agreed with the trial court's conclusion that the claim was insufficient in that the complaint was "devoid of any comparison between this inmate and other inmates who also received inheritances but against whom the state chose not to impose liens." Id., 685. According to the Appellate Court, this deficiency was such that the plaintiffs did not meet their obligation "to provide the trial court with pleadings that contain `a plain and concise statement of the material facts on which the pleader relies . . .' Practice Book § 10-1." Alexander v. Commissioner of Administrative Services, supra, 86 Conn.App. 686. Because the plaintiffs "failed to allege facts sufficient to support their equal protection claim . . . [T]herefore . . . the [trial] court properly struck the plaintiffs' equal protection claim for failure to state a cause of action." Id.
The court reached a similar conclusion in Tuchman v. State, 89 Conn.App. 745, 878 A.2d 384, cert. denied, 883 A.2d 1252 (2005). In that case, the plaintiffs "summarily stated that they were treated differently from other similarly situated businesses, but failed to identify the businesses that purportedly were similarly situated." Id., 760. Furthermore, the plaintiffs did not allege any facts that indicated the manner in which the defendant treated the other businesses differently. Accordingly, and because of other deficiencies in the complaint, the court determined that "the [trial] court properly concluded that the plaintiffs' claims failed to allege facts sufficient to demonstrate clearly an incursion on their equal protection interests." Id.
On the other hand, in Kroll v. Steele, 60 Conn.App. 376, 759 A.2d 541 (2000), the Appellate Court reversed a trial court judgment granting a motion to strike a town resident's equal protection claim that was premised on her contention that the town's zoning enforcement officer selectively enforced a town sign ordinance. In that case, the court noted, the plaintiff's complaint included allegations that "`there were countless readily visible violations of [the ordinance in the area] . . .' She also alleged a specific violation by [a particular individual] who `put up three signs . . . [on a lot] next door to the plaintiff's home.' Moreover, the plaintiff alleges that the defendant `never took any action against any of the homeowners in [the area] for the myriad of violations on people's homes in [the area] . . ." (Emphasis in original.) Id., 384-85. The trial court concluded that the complaint failed "`to plead facts which will provide the court with the identification of others similarly situated with which to compare the plaintiff's treatment and does not provide allegations as to the exact nature of the violations.'" Id., 384. The Appellate Court expressly disagreed with this conclusion, stating that, "[c]ontrary to the trial court, we conclude that the plaintiff's allegations are sufficient. The specific identification of those homeowners with signs that violated the size limitations of [the ordinance] would be a matter of proof at trial." Id., 385.
In its memorandum, the defendant in the present case mistakenly states that in Kroll v. Steele, "the Connecticut Appellate Court upheld a trial court's decision to dismiss a claim on the grounds that the plaintiff failed [']to plead facts which will provide the court with the identification of others similarly situated with which to compare the plaintiff's treatment . . . [.]'" (Emphasis added.)
The plaintiffs' allegations in the present case are clearly more akin to those that the Appellate Court found inadequate to meet the similarly situated element of an equal protection claim in Alexander v. Commissioner of Administrative Services and Tuchman v. State, than to those that it found adequate in Kroll v. Steele. Accordingly, the plaintiffs do not adequately plead that they were treated differently from persons who were similarly situated to them.
Moreover, as discussed herein, the plaintiffs argue that their equal protection claim is premised on the "class of one" concept. See Willowbrook v. Olech, supra, 528 U.S. 562. In "a `class of one' claim, the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high." Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005). Indeed, as the court states in Neilson v. D'Angelis, "the standard for determining whether another person's circumstances are similar to the plaintiffs must be . . . whether they are `prima facie identical.' . . . We deem that test to require a plaintiff in such a `class of one' case to 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., 105. It is clear that the plaintiffs do not plead sufficient facts to satisfy this standard.
The defendant's third argument is that the plaintiffs' equal protection claims are insufficient because they do not allege that the defendant's treatment of them was based on impermissible considerations. As previously noted, in order to meet the second element of an equal protection claim that is premised on selective treatment, the plaintiffs are required to prove that the defendant's treatment of the plaintiffs "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." (Internal quotation marks omitted.) Candlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra, 253 Conn. 671. As the defendant points out, the plaintiffs' complaint does not contain any allegations that the defendant's treatment of them was based on their race or religion, or was done with the intent to inhibit or punish them for exercising their constitutional rights, or that the defendant acted maliciously or in bad faith with the intent to injure the plaintiffs. Indeed, their sole allegation as to this element is that, "[d]espite repeated warnings and complaints, the defendant . . . consciously and intentionally provided less physical security and safety to its tenants at the Liberty Street housing project than at its other housing projects in the city of New Haven."
The plaintiffs contend that their allegations are sufficient in that their claims are premised on the "class of one" concept of equal protection, under which, they assert, the defendant's motivation is not relevant. Under that theory, the plaintiffs argue, they are required to allege that the defendant intentionally treated them differently from the way it treated others who were similarly situated, and that it did not have a rational basis for doing so. The defendant replies that the plaintiffs' claims are also insufficient under the class of one concept because they do not plead that the defendant's conduct lacked a rational basis or was motivated by personal animus.
A brief overview of this area of the law will provide perspective for the discussion of this issue. "Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class, [the courts] have long recognized that the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. E.g., LeClair v. Saunders, 627 F.2d 606, 608-10 (2d Cir. 1980) [cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981)]." Harlen Associates v. Mineola, 273 F.3d 494, 499 (2d Cir. 2001). The courts often refer to such claims as "class of one" claims. Id.
In LeClair v. Saunders, 627 F.2d 60 (2d Cir. 1980), the Second Circuit Court first explored the "murky corner" of equal protection claims that are premised on selective treatment by the defendant that was motivated by ill-will, rather than on the plaintiff's protected-class status or the defendant's intent to inhibit the plaintiff's exercise of constitutional rights. Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005). In LeClair, the court determined that because the plaintiffs' equal protection claim was not based on their membership in a protected class or the defendant's intent to interfere with their constitutional rights, "then, their claim must rest on proof of [the defendant's] malicious or bad faith intent to injure [them] through selective treatment . . ." LeClair v. Saunders, supra, 627 F.2d 610. The courts in the Second Circuit "have frequently referred to the LeClair formulation . . . but rarely have found a constitutional violation." Bizzarro v. Miranda, supra, 394 F.3d 86.
In 2000, the United States Supreme Court had opportunity to examine the "class of one" theory in Willowbrook v. Olech, supra, 528 U.S. 562. In that case, the court noted that "[o]ur cases have recognized successful equal protection claims brought by `a class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id., 564. The court concluded that the plaintiffs' allegations that the defendant had intentional and selectively imposed an unnecessary requirement on them, coupled with their allegations that the requirement was "irrational and wholly arbitrary" were, "quite apart from the [defendant's] subjective motivation . . . sufficient to state a claim for relief under traditional equal protection analysis." Id., 565. The court explicitly stated that it was not reaching "the alternative theory [that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by] `subjective ill will' relied on by [the Seventh Circuit Court of Appeals]." Id. In his concurrence in Olech, Justice Breyer cautioned that "a rule that looks only to an intentional difference in treatment and a lack of a rational basis for that different treatment would [transform many ordinary violations of city or state law into violations of the Constitution]." Id. He noted, however, that the issue was not directly before the court because the plaintiff had alleged "an extra factor as well — a factor that the Court of Appeals called `vindictive action,' `illegitimate animus,' or `ill will.' . . . In my view, the presence of that added factor is sufficient to minimize any concern about transforming run-of-the-mill . . . cases into cases of constitutional right." Id., 566.
As noted by one federal appellate court, "[s]ince Olech, this court has struggled with the question of whether class-of-one claims require an allegation of subjective ill will . . . Other courts have similarly divided on the question." Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir. 2006). The Second Circuit Court "has not resolved whether, in light of Olech, the theory espoused by Leclair [requiring an allegation of subjective ill will] remains the proper one in `class of one' claims . . . However, we have restated or applied the LeClair theory in several cases, although in some of the cases our discussion was merely dicta." Bizzarro v. Miranda, supra, 394 F.3d 88.
In Kelo v. New London, 268 Conn. 1, 107, 843 A.2d 500 (2004), aff'd 125 S.Ct 2655, 162 L.Ed.2d 439 (2005), our Supreme Court applied the rational basis test set out in Olech in reviewing the plaintiffs' equal protection claim. The court noted that the United States Supreme Court had not reached "`the alternative theory of `subjective ill will'"; id., 107 n. 99; but did not expressly address the question of whether this element was still required in class of one cases.
In the present case, as in Bizzarro v. Miranda, the court is not required to resolve this question because the plaintiffs do not allege facts that are sufficient to state a claim under either Olech or Leclair. Specifically, counts two and three do not contain any factual allegations that indicate that the defendant lacked a rational reason for treating the plaintiffs differently from the tenants in its other complexes or that its conduct was "irrational or wholly arbitrary," as required by Olech. The complaint also lacks any factual allegations that the defendant's conduct was motivated by a malicious or bad faith intent to injure them, as required by LeClair. Thus, the plaintiffs have not adequately alleged that the defendant's treatment of them was based on any impermissible considerations.
CONCLUSION
For the foregoing reasons, the plaintiffs have failed to adequately allege claims that the defendant violated their constitutional rights to equal protection. Accordingly, defendant's motion to strike counts two and three of the plaintiffs' revised complaint is granted.