Full opinion text
SIMANDLE, District Judge: Table of Contents I. INTRODUCTION.........................................................593 II. BACKGROUND...........................................................593 III. DEFENDANTS’ MOTION TO DISMISS.....................................596 A. Rooker-Feldman Doctrine..............................................596 B. Younger Abstention....................................................598 1. Nature of the Interference..........................................599 2. Dismissal of Damages Claims........................................600 3. Prospective Injunction..............................................601 C. Sovereign Immunity...................................................601 D. Sufficiency of Factual Allegations........................................603 1. New Jersey Civil Rights Act and Section 1983 Claims with respect to Equal Protection.................................................604 2. Procedural Due Process ............................................606 3. Substantive Due Process............................................607 4. Interstate Commerce and Right to Travel.............................608 5. Conversion........................................................610 6. Federal and State Conspiracy Claims.................................610 E. Governmental Immunity................................................611 F. Statute of Limitations..................................................612 IV. PLAINTIFFS’ MOTION TO AMEND.......................................613 A. Procedural Background ................................................613 B. Standard of Decision...................................................614 C. New Allegations Regarding Supervisory Defendants.......................614 D. Additional Claims and Other New Allegations.............................615 E. Clarifying Amendments................................................616 F. Summary.............................................................617 V. APPEAL OF MAGISTRATE JUDGE ORDER ...............................617 A. Background of the E-mail Discovery Dispute..............................617 B. Standard of Review....................................................619 C. Analysis..............................................................619 1. De Novo Review...................................................619 2. Abuse of Discretion................................................621 VI. CONCLUSION............................................................621 I. INTRODUCTION This civil rights case involves allegations of racial discrimination in New Jersey’s system of commercial bus safety inspections. Plaintiffs bring this action against two groups of defendants, the state agencies and officials who operate the inspection system (“State Defendants”) and a repair shop and its owner who Plaintiffs allege are involved in the discrimination (“Garage Defendants”). The matter is before the Court on the State Defendants’ motion to dismiss under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. [Docket Item 260] and Plaintiffs’ crossmotion to file a Fourth Amended Complaint under Rule 15, Fed.R.Civ.P. [Docket Item 287]. Both sets of Defendants oppose the motion to amend. Plaintiffs also appeal a decision of Magistrate Judge Schneider regarding preservation of government emails and discovery of email backup tapes [Docket Item 284], For the reasons explained below in today’s Opinion, the Court will grant the State Defendants’ motion to dismiss except as to certain claims against Defendants Shulze and Colorel. The Court will deny the motion to amend except insofar as it clarifies the current complaint with respect to the remaining claims because the additional claims and allegations are unduly delayed and prejudicial. Magistrate Judge Schneider’s discovery ruling will be affirmed. II. BACKGROUND New Jersey’s Bus Safety Compliance Act (“BSCA”) creates a system of inspections to promote vehicle safety. N.J. Stat. Ann. § 48:4-2.1. Federal law makes states eligible to receive federal grants if they adopt and enforce certain safety regulations. 49 C.F.R. §§ 350.107, 350.201(a). Regulations promulgated pursuant to the BSCA expressly adopt and incorporate by reference certain federal rules pertaining to safety of vehicle equipment in order to receive grants under the federal program. N.J. Admin Code § 16:53-1.1 (adopting 49 C.F.R. § 393). The BSCA regulations, modeled on these federal rules, provide that authorized officers can direct any bus operated in New Jersey to immediately drive to a designated facility for inspection. N.J. Admin Code § 16:53A-6.1. Buses discovered to have a mechanical condition that would likely cause an accident or a breakdown, a so-called “out-of-service violation,” may be required to unload passengers and be prevented from operating until the conditions have been repaired on-site or until towed and fixed at a repair facility. N.J. Stat. Ann. § 48:4 — 2.1(h). Additionally, the bus company is subject to civil penalties for each violation. N.J. Stat. Ann. § 48:4-2.1(f). Plaintiffs are six African American owned and operated bus companies and their individual owners. They offer bus tours between Pennsylvania and casinos that market to African Americans in Atlantic City, New Jersey. Both the passengers and drivers of the buses are largely African American. Beginning in 2000, according to Plaintiffs, they allegedly began to experience a pattern of racial discrimination in the bus inspection program that is ongoing. Specifically, Plaintiffs allege that bus inspectors gather near casinos that have primarily African American clientele, targeting casino buses, instead of randomly selecting buses for inspection. They claim that this initially discriminatory targeting leads to further increased scrutiny, because buses may be stopped based on data collected during prior inspections and kept in a database, leading to further stops and inspections. Plaintiffs allege that when they are stopped, they are often subjected to the highest level of inspection, unlike white-owned bus operators with inferior safety and compliance records. They allege that even the highest level of inspection should only take about an hour, but that inspections of Plaintiffs’ buses typically take three to four hours. Plaintiffs allege that the inspectors fabricate violations of the BSCA, finding out-of-service violations even on new or nearly-new buses. When a violation is found or invented, Defendants discriminate against them by exercising their discretion to require towing to a repair shop instead of allowing on-site repair. The inspectors require the buses to be towed to Jimmy’s Lake Side Repair Shop, owned by Defendant James Restuccio, who charges them above the prevailing market rates, subjects them to verbal abuse, and “typically cannot perform the allegedly necessary repairs,” requiring Plaintiffs to tow the buses elsewhere for repairs. (Compl. ¶35.) The inspectors allow white-owned bus operators to select the repair centers when those buses require repair. Plaintiffs allege that when a bus does pass an inspection, it is supposed to receive a sticker that would prevent the bus from being inspected again during the quarter during which the sticker was issued. Their buses do not receive these stickers when they pass inspection. According to the Complaint, at least some of the allegedly discriminatory incidents resulted in summonses being issued to Plaintiffs, leading to municipal court adjudication of the out-of-service violations. What proportion of allegedly discriminatory inspections turned up out-of-service violations, and what proportion of those resulted in summonses is unclear. The only allegations or evidence presented to the Court with respect to these municipal court adjudications is the vague mentions in the Complaint of fines assessed to Plaintiffs, Defendant’s exhibit purporting to be a “representative sample” of municipal court adjudication docket transcripts, and Defendants’ representation in their brief that no municipal court adjudication was ever appealed, and that all of them resulted either in a finding of violation, or a plea agreement. (Defs.’ Br. Supp. Motion to Dismiss, at 4-5, Ex-A “Representative Sample of Adjudications.”.) The Defendants are the state agencies, the New Jersey Department of Transportation (NJDOT) and New Jersey Department Motor Vehicle Commission (NJMVC), and various state officials involved in the bus inspections as well as Jimmy’s Lakeside Garage and its owner. There are no allegations in the Complaint regarding the conduct of any individual state officer. Instead, the Complaint contains only blanket accusations, such as that “[defendants and their agents have taken all of these discriminatory and harassing actions both directly and through ratification of others’ acts.” (Compl. ¶ 38.) The complaint also does not refer to any particular incidents of the alleged pattern of conduct, nor does it provide any dates other than the approximate starting date of the general pattern of conduct in 2000. The Complaint’s federal claims include three counts. Count I is a 42 U.S.C. § 1983 claim based on several provisions of the United States Constitution. It claims Defendants’ discriminatory practices violate the Equal Protection Clause of the United States Constitution, the Interstate Commerce Clause, and the Privileges and Immunities clause of Article IV protecting the right to travel freely between states. Plaintiffs also argue as part of Count I that Defendants have violated Plaintiffs’ rights of procedural due process in some unspecified way, and attempted to cover up the illegal acts set forth in the Complaint, which is a violation of Plaintiffs’ substantive due process rights. Count II is a 42 U.S.C. § 1981 claim, arguing that Defendants interfered with Plaintiffs’ contractual relationship with their customers by preventing Plaintiffs from making and performing contracts with their customers, and preventing Plaintiffs from contracting with towing companies of Plaintiffs’ choice, instead forcing them to use Jimmy’s Towing. The current complaint is unclear about which defendants the § 1981 claim is brought against, but Plaintiffs’ proposed Fourth Amended Complaint would clarify that this claim is only against the Garage Defendants. Count III is a 42 U.S.C. § 1985(3) claim that alleges a conspiracy to carry out the pattern of conduct alleged in the Complaint. Plaintiffs’ state law claims also include three counts. Count IV is a New Jersey Civil Rights Act claim that mirrors the § 1983 claim. See N.J. Stat. Ann. 10:6-2(c) & (e); Compl. ¶¶ 66-77. Plaintiffs claim that Defendants’ alleged conduct violates provisions of the New Jersey Constitution analogous to the provisions of the United States Constitution they claim were violated, and Plaintiffs also identify a number of provisions of Chapter 30 of the New Jersey Code of Criminal Justice that they claim Defendants violated. Count V is a conversion claim against the Garage Defendants and two inspection officers, Shulze and Colorel, based on their refusal to return one or more buses to Plaintiffs. The factual allegations supporting Count V refer to “Defendant Jimmy’s,” as well as “Defendants” generally. But Plaintiffs clarify in their opposition to the motion to dismiss that they intended the claim to apply only to the Garage Defendants and the two state officials acting in their individual capacities, which is reflected in the proposed Fourth Amended Complaint. Count VI is a state law civil conspiracy claim against all defendants based on the same conduct underlying the § 1985(3) conspiracy claim. Plaintiffs seek compensatory and punitive damages, as well as the disgorgement of “any illegally-collected fees, charges, or other sums that Plaintiffs have paid as a proximate result of Defendants’ discriminatory and illegal acts.” (Compl. ¶ 92(c).) They clarify in their opposition to the motion to dismiss that their reference to disgorgement refers to only fees and charges paid to the Garage Defendants for towing and storage (Pls.’ Br. Opp. Motion to Dismiss, at 22), and they seek to amend the Complaint to clarify this point. Plaintiffs also ask for equitable relief including a declaration that Defendants violated the laws upon which Plaintiffs rely, and an injunction against future such unlawful action. The initial complaint was filed by the original Plaintiffs (Charles Major and Major Tours, Inc., as well as Victoria Daniels and M & M Tours) on June 15, 2005. After the first complaint was filed, the parties conducted nearly four contentious years of discovery. During this period, the initial Plaintiffs amended the Complaint several times adding additional Plaintiffs, among other changes. Magistrate Judge Schneider ordered Defendants not to file dispositive motions with respect to the current complaint until this time. [Docket Item 124.] The State Defendants now move to dismiss the Complaint on a number of grounds. These include the Rooker-Feldman doctrine and Younger abstention because of municipal court rulings on out-of-service violation penalties levied against Plaintiffs; sovereign immunity; failure to file within the statute of limitations; and various insufficiencies in the allegations as to particular claims. Plaintiffs move to file a Fourth Amended Complaint in response to Defendants’ motion to dismiss, seeking to add some allegations regarding the supervisory defendants’ failure to train and investigate, to clarify parts of the Complaint, as discussed above, and to add two new causes of action related to the same conduct: a claim under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, against the State Defendants and a claim under the New Jersey Law Against Discrimination (NJLAD), N.J. Stat. Ann. § 10:5-1, against all defendants. III. DEFENDANTS’ MOTION TO DISMISS A. Rooker-Feldman Doctrine According to the Rooker-Feldman doctrine, a federal district court cannot entertain what is functionally an appeal from a state court decision because Congress has only granted the power to hear such appeals to the United States Supreme Court. See 28 U.S.C. § 1257 (2006) (allowing appeal from state court decisions to the United States Supreme Court); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-84, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Gary v. Braddock Cemetery, 517 F.3d 195 (3d Cir.2008). Defendants argue that this Court therefore lacks subject matter jurisdiction over Plaintiffs’ Complaint, which they characterize as seeking relief from the municipal court adjudications of Plaintiffs’ out-of-service violations. The Supreme Court explained the scope of the doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). In Exxon, the Supreme Court was concerned with what it saw as the improper application of the Rooker-Feldman doctrine in the Third Circuit and elsewhere when ordinary principles of preclusion and abstention should govern the situation. Exxon, 544 U.S. at 282-85, 125 S.Ct. 1517. The Supreme Court emphasized that the only cases that constitute functional appeals are “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the federal district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. Thus, “If a federal plaintiff presents some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.” Exxon, 544 U.S. at 293, 125 S.Ct. 1517 (internal quotations and citations omitted); see also Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547-48 (3d Cir.2006); Bolden v. City of Topeka, 441 F.3d 1129, 1143 (10th Cir.2006). Although the Complaint argues that some of the out-of-service violations were improper, Plaintiffs seek redress not from the civil penalties themselves but the private costs and interference with then-business caused by the inspections, towing, and repair. Moreover, except for claims of outright fabrication of violations, Plaintiffs’ claims do not even conflict with any state court decisions as that conflict is understood for the purposes of Rooker-Feldman, because the claims do not ask the Court to deny the legal conclusions actually reached by any municipal court in this matter. The Third Circuit Court of Appeals decision in Desi’s Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411 (3d Cir.2003), controls this case with respect to the claims other than the fabrication claims. In that case, the district court had found that the state court’s determination that the plaintiff was a nuisance had necessarily determined that the defendants’ “conduct was unrelated to retaliation or [to Desi’s’] minority clientele.” Id. at 418. But the Third Circuit Court of Appeals disagreed and reversed, finding that “the state court’s finding that Desi’s was a ‘common nuisance’ means only that Desi’s operated in violation of the Liquor Code or the Crimes Code.” Id. at 423. As in Desi’s, in this case, the municipal court’s adjudications related to the out-of-service violations did not determine whether the summonses for those violations were issued selectively, or otherwise as a result of selective stops, selectively increased scrutiny, or any other kind of discriminatory investigation or enforcement. Therefore, because there is no conflict with the state court adjudications, this Court retains jurisdiction. Cf. Marran v. Marran, 376 F.3d 143, 154 (3d Cir.2004) (applying similar analysis); Parkview Associates Partnership v. City of Lebanon, 225 F.3d 321, 326 (3d Cir.2000); Ernst v. Child and Youth Services of Chester County, 108 F.3d 486, 491-92 (3d Cir.1997). To the extent Plaintiffs complain of fabricated violations that were ultimately the subject of municipal court proceedings, as distinct from fabrications that merely led to interference with Plaintiffs’ business and towing, then these violations do meet the first prong of Rooker-Feldman doctrine, conflict with a state decision. Unlike the claims of selective enforcement, the municipal courts necessarily decided that the violations were well founded and not fabricated in finding violations of the Compliance Act. But while this conflict satisfies one necessary element for dismissal under Rooker-Feldman as set out by the Supreme Court in Exxon, it does not satisfy the other. Even where allegedly fabricated violations were ultimately adjudicated, the Court retains subject matter jurisdiction over “independent claim[s]” that deny “a legal conclusion that a state court has reached.” Exxon, 544 U.S. at 293, 125 5.Ct. 1517. This court has jurisdiction over the claims arising from the fabrication seeking relief from injuries other than the civil penalties, because Rooker-Feldman doctrine requires both conflict with the state court decision and that the relief sought is “complaining of injuries caused by state-court judgments.” Id. If inspection officers deliberately fabricated violations of the Compliance Act leading to towing and garage fees, then they injured Plaintiffs independently from any subsequent municipal court rulings because these injuries would have occurred regardless of whether the municipal courts ultimately adjudicating the matters believed the violations had been fabricated. A cause of action for this kind of malicious conduct arises even before such a deliberately fabricated violation is the subject of a court action. Cf. Wallace v. Kato, 549 U.S. 384, 388-91, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (describing accrual of claims regarding wrongful arrest and prosecution). This Court has jurisdiction over these claims to the extent Plaintiffs’ injuries are independent from the fines, and Plaintiffs do not seek disgorgement of the fines paid to the state. In summary, the Rooker-Feldman doctrine does not prevent this Court from having jurisdiction to hear Plaintiffs’ claims involving unlawful exercise of discretion on the part of state officers because the exercise of this jurisdiction will not involve the possible denial of legal conclusions reached by any state court, much less ask for relief from state court judgments. And to the extent that Plaintiffs seek relief from fabricated violations of the Compliance Act that were the subject of municipal court proceedings, the Court has subject matter jurisdiction over relief from injuries independent from the municipal court judgments. B. Younger Abstention Defendants argue that the relief Plaintiffs request would interfere with pending state judicial proceedings, and this Court should therefore abstain from hearing this case. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that for reasons of federal-state comity, a federal court should not enjoin a pending state court criminal proceeding absent extraordinary circumstances. Id. at 41, 91 S.Ct. 746. This principle has been greatly expanded over time to cover a wide range of state judicial proceedings and to prevent kinds of interference less direct than an injunction to halt a state proceeding. Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). With a few exceptions for the kind of extraordinary circumstances contemplated by Younger, federal courts are now expected to stay or dismiss any claim for relief whenever it would interfere with a pending state judicial proceeding that implicates important state interests and affords an adequate opportunity to raise constitutional challenges. Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.2002). Although the decisions of the municipal court have become final as a result of Plaintiffs failure to appeal, they are still considered pending. See Huffman v. Pursue, Ltd., 420 U.S. 592, 610, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); O'Neill v. City of Philadelphia, 32 F.3d 785, 790-91 (3d Cir.1994). However, even though the municipal court proceedings are pending, in order for abstention to be appropriate here, this Court would have to hold that the doctrine applies to damages claims that could not have been raised in the state proceeding, but that require the adjudication of facts that could have been (but were not) adjudicated. Additionally, because the final state court judgments can no longer be reopened just to raise old arguments, the Court would have to find that it has the power to enter a stay of a damages claim that is indistinguishable from a dismissal of that claim, even though the Court cannot dismiss a damages claim pursuant to abstention doctrine. See Deakins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). And finally, the Court would have to hold that abstention is necessary for the damages claims even though the same facts will be adjudicated to assess the propriety of Plaintiffs request for a prospective injunction. As explained below, because the Court is not convinced of any of these propositions, much less all of them, the Court finds that abstention is inappropriate. 1. Nature of the Interference This case is different from the typical Younger case. Plaintiffs do not seek to vacate their municipal court convictions; to disgorge the fines paid in the municipal court proceedings; to enjoin the municipal court from adjudicating out-of-service violations; or otherwise ask for any relief involving the municipal court’s past, current, or future conduct; and they do not challenge the validity of any state law or regulation, but only the racially discriminatory conduct of certain state officers. Consequently, the state interests protected by Younger abstention, such as giving the state courts an opportunity to alter the construction of state law to make it constitutional, or permitting the state to set its own practices and procedures for adjudication, are largely absent in this case. Gwynedd Properties, Inc. v. Lower Gwynedd Tp., 970 F.2d 1195, 1202 (3d Cir.1992) (finding a lack of important state interest because “[ujnlike the state proceedings in which the legality of land use ordinances are at issue, here [plaintiff] alleges that the defendants have applied these ordinances maliciously in order to deprive [plaintiff] of its federal constitutional and statutory rights”); accord Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 409 (3d Cir.2005). However, there is still some degree of interference with state interests; the question is whether it is enough to justify abstention in this case. Plaintiffs could have raised defenses in the municipal court proceedings (or upon appeal) involving the same operative facts as their constitutional claims in this case. If federal courts condone the decision not to raise the constitutional issues in state court, it might suggest a lack of faith in the state proceedings to competently adjudicate those issues. In Huffman, the Supreme Court found that depriving states of the opportunity to adjudicate constitutional issues did implicate comity principles. See Huffman, 420 U.S. at 608-09, 95 S.Ct. 1200. But, among other differences from this case, the Huffman court emphasized that this consideration was especially important when “the constitutional issue involves a statute which is capable of judicial narrowing.” Id. Claims of racial discrimination or fabrication of violations are not remedied by judicial narrowing of any statute or regulation. Huffman did not involve a damages claim, much less one brought based on unconstitutional conduct that is independent from the validity of any statute, undermining its application to this case. The Third Circuit Court of Appeals has used similar reasoning as Huffman in an action for damages in Williams v. Hepting, 844 F.2d 138, 144 (3d Cir.1988). In that case, the Court of Appeals found that where a § 1983 damages claim attacks a state criminal conviction, the proper course is to stay the damages claim until state proceedings have ended. But Williams does not seem to have been applying abstention principles, but rather applying principles unique to the criminal context, prefiguring Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Williams, 844 F.2d at 144 (noting previous holdings that § 1983 claims in this scenario “would interfere with congressional policy requiring initial resort to state tribunals in habeas corpus petitions.”). Neither the Third Circuit Court of Appeals nor the Supreme Court have decided whether Younger abstention applies to claims for damages that interfere with state proceedings in the way described above. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). And at least some controlling authority suggests Younger abstention is not appropriate. See Gwynedd Properties, Inc., 970 F.2d at 1202. Because the state interests Younger is intended to protect are largely inapplicable here, the Court is not convinced that abstention is called for based on the state’s general interest in adjudicating whether individual officers acted in an unconstitutional manner when enforcing an unchallenged state statute. 2. Dismissal of Damages Claims Even if this Court found that the federal-state friction present when a district is asked to adjudicate facts that could have been adjudicated in a state court action was important enough to justify Younger abstention, the Third Circuit Court of Appeals held in Williams that because a damages claim seeks relief that is unavailable in ongoing coercive proceedings, the only appropriate action is to stay the damages claims until the conclusion of the state proceedings; the claim cannot be dismissed. Id. at 144-45. This rule is the necessary consequence of the scope of this Court’s power to decline jurisdiction. Deakins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (“[T]he District Court has no discretion to dismiss rather than to stay claims for monetary relief that cannot be redressed in the state proceeding.”). District courts have the power to dismiss injunctive relief only because courts control the discretionary relief they grant as courts sitting in equity. See Quackenbush, 517 U.S. at 719-20, 728, 116 S.Ct. 1712. If Younger abstention applies to actions for damages at all, it requires a temporary stay; it is impermissible to dismiss actions for damages that were not cognizable in ongoing state proceedings. Id. The question is therefore whether the Court could enter such a stay in a case where the state judgement has become final and cannot be reopened. It could be that even though the Court lacks the power to dismiss the damages claims, by some trick of formalism, it retains the power to enter an infinite stay. But this position is untenable. An infinite stay is dismissal in all but name, and matters of jurisdiction and vindication of constitutional rights must not be made to turn on nomenclature alone. In the precedent explaining why dismissal of a damages claim outright is impermissible, and permitting a stay, the courts have distinguished the concepts precisely based on premise that the federal proceedings can be resumed at some point. See, e.g., Hepting, 844 F.2d at 144. In creating the rule of infinitely pending proceedings, neither Huffman nor O’Neill involved actions for damages that were independent from the state proceedings, and therefore neither court contemplated nor condoned the possibility that an action for damages may be functionally dismissed if a plaintiff fails to exhaust his appeals of a civil penalty. S. Prospective Injunction Finally, even if abstention applies to these kinds of damages claims based on the unconstitutional conduct of individual officers, and even if the Court had the power to enter an infinite stay of such claims, abstention is this case would still be inappropriate because it serves no functional purpose as the Court must make these factual findings regarding the bus inspections anyway, since Plaintiffs seek a prospective injunction. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (permitting plaintiff to seek prospective injunction even though the constitutional judgment would impugn previous convictions). Plaintiffs ask this Court for prospective injunctive relief, presumably to include revision of the inspection database and changing the procedures employed by the bus inspectors, perhaps including additional training. To assess whether such an injunction is warranted, the Court must determine the imminence of harm or the continuing harm based on past unconstitutional conduct. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The Supreme Court held in Wooley v. Maynard that, unlike in Huffman, where “the relief sought is wholly prospective,” Younger abstention does not bar federal exercise of jurisdiction, even though it might mean making factual and legal findings that the equivalent of the findings contemplated in Huffman. Thus, even if the Court permanently stayed the damages claims, it would still adjudicate the facts that would be the subject of the damages claims, making any abstention an odd formality. C. Sovereign Immunity Defendants argue that many of Plaintiffs’ claims are barred by sovereign immunity as embodied by the Eleventh Amendment. State immunity from suit in federal courts is known as Eleventh Amendment immunity, a subset of a state’s sovereign immunity. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 753, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). The parties largely agree about the general scope of Eleventh Amendment immunity, despite Plaintiffs having pleaded several claims that are barred. Plaintiffs may bring suits for prospective injunctive relief pursuant to federal law against state officers in their official capacities, but not the state itself or state agencies. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Cory v. White, 457 U.S. 85, 91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir.2000). Both NJDOT and the NJMVC are state entities. See Red Star Towing & Transp. Co. v. Dep't of Transp. of New Jersey, 423 F.2d 104, 105-06 (3d Cir.1970); Bowers v. Nat’l Collegiate Athletic Ass'n, 475 F.3d 524, 545 (3d Cir.2007). Defendants correctly note that, under some circumstances, state officials acting in their official capacities are not “persons” subject to suit under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). However, the Supreme Court in Will explicitly stated, “Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” Id. at 71 n. 10, 109 S.Ct. 2304 (quoting Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). State officials are immune from suits in federal court based on violations of state law, including suits for prospective injunctive relief under state law, unless the state waives sovereign immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Plaintiffs do not argue that the state has consented to suit in federal court under the New Jersey Civil Rights Act, and the Act itself only provides for actions initiated in New Jersey state court. Therefore, all state law claims will be dismissed as against the state agencies and individuals in their official capacities. Similarly, although the Eleventh Amendment can be abrogated by Congress pursuant to Congress’s power under the Fourteenth Amendment, Seminole Tribe v. Florida, 517 U.S. 44, 59, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), Congress did not abrogate sovereign immunity with the passage of the Civil Rights Act of 1871, 42 U.S.C. §§ 1981-1988, or its subsequent amendments. Quern v. Jordan, 440 U.S. 332, 341-45, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The Eleventh Amendment therefore bars suits under the federal Civil Rights Act for damages to be paid from the state treasury. As noted above, although the Complaint appears to ask for disgorgement of fines paid to the state, Plaintiffs clarify in their opposition to the motion to dismiss that they seek only disgorgement of money paid to the Garage Defendants. (Pls.’ Br. Opp. Summ. J., at 21-22). Efforts to disgorge fines paid into the state treasury would be barred because the Third Circuit Court of Appeals has held that Eleventh Amendment immunity “prevents a federal court from requiring state officers to disgorge from the state treasury even unlawfully converted property.” Bennett v. White, 865 F.2d 1395, 1408 (3d Cir.), cert. denied, 492 U.S. 920, 109 S.Ct. 3247, 106 L.Ed.2d 593 (1989). See also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48-49, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994) (not ing importance of whether the action directly impacts the state treasury). Under the BSCA, penalties are paid into the state treasury, N.J. Stat. Ann. § 48:4-2.1(n), and therefore disgorgement of the fines is not relief that can be granted in federal court under the Eleventh Amendment jurisprudence. The one point of significant disagreement between the parties regarding the scope of Eleventh Amendment immunity concerns relief sought from state officials in their individual capacities. Defendants incorrectly maintain that Plaintiffs must allege that the individual state officials acted in a manner outside of their duties as employees in order to lose the protection of Eleventh Amendment immunity. The Eleventh Amendment does not bar individual liability for violations of federal law by individuals performing their state duties under color of state law. Hafer v. Melo, 502 U.S. 21, 28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“The requirement of action under color of state law means that Hafer may be liable for discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.”). The first case cited by Defendants in support of their position is on point, but the holding is erroneous under Hafer. Watts v. Internal Revenue Serv., 925 F.Supp. 271, 275 (D.N.J.1996) (Orlofsky, J.) (“The individual defendants ... share the immunity of the United States insofar as their actions that gave rise to this complaint were taken within the scope of their employment.”) The second case they cite was reversed on these grounds. Slinger v. New Jersey, 366 Fed.Appx. 357, 360-61 (3d Cir.2010) (reversing on the grounds that state officers are not “immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.”) And the third case is simply inapposite, as it does not involve any officials sued in their personal capacities. Plaintiffs’ federal law damages claims against state defendants in their individual capacities are not barred by Eleventh Amendment immunity, but these individuals may be protected by governmental immunity, as discussed below. In summary, the state entities named as defendants in the Complaint must be dismissed. In their official capacities, the state officials may not be sued for damages in federal court and are only subject to prospective injunction under federal law. Any claims for injunctive relief against state officials arising under state law, however, must be dismissed. In their personal capacities, the state officials may be sued for damages under federal law subject to federal and state governmental immunity. D. Sufficiency of Factual Allegations The sufficiency of pleadings in federal court is governed by Rule 8, Fed.R.Civ.P., among others, a rule that is designed to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The rule provides that “[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This is not a high bar. As the Third Circuit Court of Appeals has affirmed, “the Federal Rules do not require a claimant to set out in detail the facts upon which he bases his claim. Rather, the complaint must only give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Thomas v. Independence Tp., 463 F.3d 285, 295 (3d Cir.2006) (internal quotations and citations omitted). Some facts, however, are necessary. In order to give Defendant fair notice, and to permit early dismissal if the complained-of conduct is not unlawful, a complaint must allege, in more than legal boilerplate, those facts about the conduct of each defendant giving rise to liability. Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Fed.R.Civ.P. 11(b)(3). These factual allegations must present a plausible basis for relief (i.e. something more than the mere possibility of legal misconduct). See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009). In its review of Defendants’ motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., the Court must “accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)). And on this procedural posture, “courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of America, 361 F.3d 217, 222 n. 3 (3d Cir.2004) (citation omitted). Because the Complaint involves multiple claims and multiple defendants, the Court must carefully determine whether the Complaint provides each defendant with the requisite notice required by Rule 8 for each claim, and whether the claim itself presents a plausible basis for relief. 1. New Jersey Civil Rights Act and Section 1983 Claims with respect to Equal Protection To state a claim under the Equal Protection Clause, Plaintiffs must allege that the State Defendants’ actions “(1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.” Bradley v. United States, 299 F.3d 197, 205 (3d Cir.2002). The discussion that follows focuses on the sufficiency of the § 1983 claim under the United States Constitution. Although analysis of a New Jersey Civil Rights Act claim under the New Jersey Constitution can, in some circumstances, yield different conclusions, the Court has not been given any reason to believe the analysis would be different on these facts. See State v. Segars, 172 N.J. 481, 799 A.2d 541, 547 (2002) (explaining similarity of the two constitutions’ prohibition on racial discrimination); Chapman v. New Jersey, Civil No. 08-4130(AET), 2009 WL 2634888 (N.J. Aug. 25, 2009) (explaining that the NJCRA mirrors § 1983). Additionally, Plaintiffs support their NJCRA claim by citing New Jersey criminal laws. Because Defendants do not ask the Court to address this particular issue in their motion, the Court does not resolve in this Opinion whether such a claim is cognizable. As to the supervisory defendants, the Complaint is inadequate because it fails to allege how these defendants were involved in the conduct. Despite having been drafted after years of pre-trial discovery had been completed, the current complaint only refers to Defendants collectively, alleging that “defendants and their agents” engaged in the pattern described in the complaint. The Complaint therefore must be dismissed as against those officials because vicarious liability is inapplicable to § 1983 suits; “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” See Iqbal, 129 S.Ct. at 1948. Without some sense of how the supervisory defendants participated through their individual actions, the Complaint must be dismissed as against these defendants. Id. As to the individual investigators, the Court is presented with a closer call. The collective pleading problem is mitigated with respect to these two defendants, because the nature of their involvement is somewhat clearer from the context, but even here the collective pleading presents a problem as to what parts of the pattern of discrimination each officer is alleged to have engaged in. See Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.2001) (explaining sufficiency in the context of a similar collective pleading problem); Charles Alan Wright and Arthur R. Miller, 5 Fed. Prac. & Proc. Civ. § 1248 (3d ed.) (“Frequently, a complaint alleging several claims for relief against one or more defendants will fail to inform the defendants sufficiently to enable them to prepare an adequate response.”). And compounding this collective pleading problem, the Complaint alleges a general pattern of conduct without reference to any particular incidents, or even the frequency of such incidents. Though pleading of specific times and places is not required under Rule 8, it is difficult to provide the kind of notice Rule 8 does require in a case involving multiple defendants and a long course of conduct without some discussion of particular incidents and how each defendant was involved in them. See United States v. Bonanno Organized Crime Family, 683 F.Supp. 1411, 1429 (E.D.N.Y.1988). Despite these problems, if the Complaint is “construed so as to do justice,” Fed.R.Civ.P. 8(e), then it adequately provides notice of their alleged conduct to the investigator defendants, Vincent Shulze and Michael Colorel. Even though these officers are not put on notice of the precise conduct in which they are alleged to have individually engaged, such as by laying out the time and place of each incident, the Complaint is sufficient to make them aware of the allegation that they exercised their discretion as bus inspectors in deciding who to stop and how to treat them in racially discriminatory ways during the period of their employment since 2000. This is sufficient, at least in terms of specificity of participation in the alleged conduct, to state a claim. Beyond the problems with the specificity of the facts regarding the personal involvement of each official, Defendants also argue that the Complaint contains insufficient allegations of discriminatory purpose. Here, however, the Complaint is easily sufficient. The Complaint contains abundant allegations of racially-motivated discrimination, which are summarized at the beginning at the first paragraph: “Because of Plaintiffs’ race, Defendants and their associates have targeted their buses for improper, illegal, and unreasonably burdensome stops, inspections, and seizures.” (Compl. ¶ 1) Plaintiffs allege, among other things, that Defendants and their agents gathered near certain casinos known to have primarily African American clienteles in order to stop buses in a racially discriminatory manner (Id. ¶ 26); that Defendants exercised their discretion with racially discriminatory intentions, targeting Plaintiffs’ buses for towing because of Plaintiffs’ race (Id. ¶ 30); and that Defendants often require Plaintiffs — on account of their race— to have their buses towed away (Id. ¶ 34). Each of these is a specific allegation of a discriminatory act taken for racially discriminatory reasons, and supported by further allegations of white owned buses being subjected to differential treatment. Defendants maintain that these statements are too conclusory, but they are not. The question of how specific a complaint’s allegations must be when pleading a claim of discrimination was the issue addressed in the Supreme Court’s recent decision in Iqbal, 129 S.Ct. at 1951. That decision explained that Rule 8, Fed.R.Civ.P., requires a discrimination complaint to plead factual allegations that, if true, would tend to show that a discriminatory purpose and not some benign purpose was behind the conduct alleged to have discriminatory effects. Id. Iqbal involved immigration-related detentions of Arab Muslims after the attacks of September 11, 2001. In Iqbal, the defendants offered a nondiscriminatory purpose, a focus on individuals with suspected links to the Arab Muslim attackers, that explained the discriminatory effect of the detention of Muslims and Arabs. Iqbal, 129 S.Ct. at 1951. Relying on “judicial experience and common sense,” the Supreme Court found the defendant’s explanation to be the “more likely” explanation, that nothing in the Complaint other than bare allegations of discriminatory purpose was inconsistent with the nondiscriminatory explanation, and therefore that the allegations of discriminatory behavior were not sufficient to plausibly establish a discriminatory purpose. Id. at 1950-51 (“It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.... As between that 'obvious alternative explanation’ for the arrests and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.”). Unlike the defendants in Iqbal, Defendants in this case have offered no nondiseriminatory reason for any of the racially discriminatory behavior specifically alleged in the Complaint, nor is there any obvious nondiscriminatory explanation for the disparate treatment alleged by Plaintiffs. There is no obvious and lawful purpose that explains, for example, why inspectors would target casinos frequented by African Americans for bus safety inspections, or why they would permit white operated buses to repair violations on-site while requiring Plaintiffs to be towed. Rule 8 does not require plaintiffs who are pleading a pattern of racially discriminatory conduct to include all of the evidence that suggests that the conduct was a result of racially discriminatory intentions rather than the byproduct of some legitimate purpose. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir.2009) (holding that plaintiffs need not plead facts that rule out every possible lawful explanation for alleged conduct, but must simply plead facts inconsistent with obvious, more likely, lawful explanations for the alleged conduct); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 261 (4th Cir.2009) (same). Instead, they must simply allege enough facts to nudge the claim into the realm of the plausible. Therefore, the factual allegations in the current complaint regarding racially discriminatory purpose are sufficiently concrete with respect to the investigator defendants. 2. Procedural Due Process As to the procedural due process aspect of Count I, the Complaint does not specify the conduct underlying this claim. It is impossible for the Court (and Defendants) to assess whether the municipal court hearings were a sufficient post-deprivation remedy without knowing the deprivation upon which Plaintiffs rest their claim. The Court cannot determine whether Plaintiffs are complaining of the fines they paid to the state, the towing fees they paid to private companies, neither, or both. Plaintiffs’ opposition to Defendants’ motion to dismiss does not mention the procedural due process claim. Lack of opposition is not a sufficient reason to grant the motion to dismiss, Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.1991), but since Plaintiffs do not point to any aspects of the Complaint to clarify the nature of the deprivation, the Complaint must be dismissed as insufficient. Therefore, this claim will be dismissed as against all state defendants for failure to state a claim. 3. Substantive Due Process Plaintiffs’ substantive due process claim based on an alleged coverup is unaffected by the presence of a post-deprivation remedy, and the Complaint identifies the specific conduct underlying the claim. See Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir.2003) (explaining that official cover-ups may violate an individual’s substantive due process rights); Crawford v. Parron, 709 F.Supp. 234, 237 (D.D.C.1986) (explaining that violations of substantive due process are not cured by a post-deprivation remedy). However, there is no allegation in the Complaint regarding how any of the individual defendants were involved in the coverup. The Complaint states that Defendants collectively spoliated evidence, lied about investigatory efforts, and submitted false or misleading evidence in judicial proceedings, without identifying any individual’s participation, or explaining what incident or incidents and proceedings are being referred to. Plaintiffs submit several documents in their opposition to the motion to dismiss which they claim support the allegations of coverup, and add some allegations regarding specific defendants in their opposition to the motion to dismiss. The substance of the allegations in the motion brief are that Defendant Shulze wrote a letter, which Defendant Legriede submitted as her own, to the attorney originally retained by Plaintiffs. The letter stated that the department was taking the allegations of racial profiling seriously and would investigate, when in fact the department did not perform an investigation. Defendant Harrington also allegedly claimed such a nonexistent investigation was ongoing. Further, according to Plaintiffs, neither Harrington nor Legriede ever volunteered that another investigation had revealed racist behavior on the part of Shulze, who was disciplined for it. Even if the Court were to consider these allegations made in opposition to the motion to dismiss even though the Complaint does not allege them with respect to any particular defendant, the facts alleged in the motion papers do not rise to the level of stating a claim for violation of Plaintiffs’ substantive due process rights. The Third Circuit Court of Appeals has held that “only prefiling conduct that either prevents a plaintiff from filing suit or renders the plaintiffs access to the court ineffective or meaningless constitutes a constitutional violation.” Marasco, 318 F.3d at 511-12. Stated another way, “If state officials wrongfully and intentionally conceal information crucial to a person’s ability to obtain redress through the courts, and do so for the purpose of frustrating that right, and that concealment and the delay engendered by it substantially reduce the likelihood of one’s obtaining the relief to which one is otherwise entitled, they may have committed a constitutional violation.” Id. (citing Swekel v. City of River Rouge, 119 F.3d 1259, 1262-63 (6th Cir.1997)). Since the complained-of conduct obviously did not prevent Plaintiffs from filing suit, the alleged, conduct would need to have “rendered] the plaintiffs access to the court ineffective or meaningless.” Id. Plaintiffs’ allegations that Defendants misled Plaintiffs about the existence of an internal investigation, and failed to volunteer the existence and results of another investigation, do not rise to the level of interference required to state a claim. While knowledge that no investigation was happening might have hastened Plaintiffs’ filing of this action, and while knowledge of the other racial bias investigation may have bolstered Plaintiffs’ case, neither constitutes “information crucial to a person’s ability to obtain redress through the courts.” Id. Compare Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983) (finding substantive due process violation where prosecutors concealed from the parents of a murder victim the fact that a murder had occurred at all, delaying them from bringing a wrongful death action against the murderer) with Joyce v. Mavromatis, 783 F.2d 56 (6th Cir.1986) (finding no violation where plaintiff had all of the requisite facts to file suit). The Court will therefore dismiss this claim as against all State Defendants for failure to state a claim upon which relief can be granted. J. Interstate Commerce and Right to Travel The affirmative grant to Congress of authority to regulate interstate commerce encompasses an “implied [or ‘dormant’] limitation on the power of the States to interfere with or impose burdens on interstate commerce.” Healy v. Beer Inst., 491 U.S. 324, 326 n. 1, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989). When enforcing the Dormant Commerce Clause, “it is the responsibility of the judiciary to determine whether action taken by state or local authorities unduly threatens the values the Commerce Clause was intended to serve.” Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 399 (3d Cir.1987) (quoting Wardair Canada, Inc. v. Florida Dep't of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986)). The Constitution also secures the individual right to travel freely between the states. See United States v. Shenandoah, 595 F.3d 151, 161 (3d Cir.2010). Plaintiffs claim that the racial discrimination they experienced violates the Commerce Clause and their right to travel because the bus companies operated between Pennsylvania and New Jersey. Plaintiffs do not address the motion to dismiss with respect to these claims in their opposition. As noted above, lack of opposition by Plaintiffs is not a sufficient reason to grant the motion to dismiss. Stackhouse, 951 F.2d at 30. Some examination of the merits is necessary. Here, if the state officers exercised racially discriminatory discretion, the scope of the actual injury done to Plaintiffs does not change by also pointing out that these acts of racial discrimination incidentally violate other provisions of the Constitution as well. Conversely, if the Compliance Act is not being applied in a racially discriminatory manner, then, under the circumstances of this case, there is no violence to the Commerce Clause or Plaintiffs’ right to travel done by the inspection program. However, the Court assumes for the sake of argument that these kind of incidental constitutional violations are nevertheless cognizable because there may be some value in the official recognition, by way of declaratory relief, of how this racial discrimination infringes on others of their fundamental rights, in addition to the right to be free from such discrimination. Defendants’ sole argument is that only statutes and regulations can violate the Commerce Clause and the right to travel. The fact that most Dormant Commerce Clause cases involve facial language or incidental effects of statutes or regulations instead of discriminatory enforcement does not mean that no act of official discretion can violate the Dormant Commerce Clause. Several cases have found that the discretionary actions of state officials can violate the dormant Commerce Clause. See, e.g., Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 112 F.3d 652, 668 (3d Cir.1997) (upholding injunction under dormant Commerce Clause preventing state agency from implementing policy that interfered with interstate commerce such that the agency “can no longer implement its self-sufficiency policy — either formally or informally-by rejecting or hindering contracts between waste management districts and out-of-state facilities or operators.”) (emphasis added); Florida Transp. Service, Inc. v. Miami-Dade County, 543 F.Supp.2d 1315, 1328 (S.D.Fla.2008) (“The port director ... used the ordinance to protect a group of entrenched stevedores and bar the entry of new competitors to the stevedore market.”). Generally what a state cannot constitutionally accomplish by regulation, it may not accomplish by granting power to state officials who will exercise it in such a way to have the same effect as the unconstitutional regulation. Similarly, the fact that the discrimination is occurring as an act of official discretion and not legislative mandate does not itself preclude a right to travel claim. Cf. United States v. Guest, 383 U.S. 745, 759-60, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). The correct inference to be drawn from the fact that most of the precedent on these claims involves discriminatory statutes or regulations is that discretionary acts will rarely so burden interstate commerce or intentionally prevent freedom of travel as to give rise to a claim. This is the real insufficiency of Plaintiffs’ claim. While acts of official discretion can be found to violate the dormant Commerce Clause, courts finding such discriminatory exercise of discretion sufficient have only found it when it is systematically exercised against out-of-state businesses as out-of-state businesses. See, e.g., Florida Transp. Service, Inc., 543 F.Supp.2d at 1328. No court has found it to apply when the subject of improper state action happens to incidentally be engaged in interstate commerce. Similarly, the fact that the subjects of racial discrimination are engaged in interstate travel is not itself sufficient to give rise to a violation of the right to travel; that claim requires an intent on the part of the officials to frustrate the right to travel. Cf. United States v. Guest, 383 U.S. 745, 759-60, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (explaining that for the purpose of 18 U.S.C. § 241 which protects the constitutional right to travel freely between the states, a specific intent to interfere