Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir.
Plaintiffs assert that their right to associate was infringed
because their membership in the NRU, "which endeavored a pursuit
for political and social ends and benefitted the public
interest," resulted in their being "denied the designation of
detective," the requisite salary increase and out-of-title pay.
Plaintiffs' Opposition at 18. In further support of this claim,
plaintiffs allege that defense counsel Goodstein disclosed to
them an agreement between the Chief of Police and the former PBA
president that members of the NRU would never be considered for
appointment to detective, regardless of the functions or duties
they performed. The Mayor and the City went along with this
agreement, plaintiffs assert. In other words, according to
plaintiffs, defendants wrongfully determined that their
association with NRU precluded their designation as detectives,
even though they were entitled to this designation.
b. Redress of Grievances & Retaliation
To establish a retaliation claim under § 1983, a plaintiff
"initially [must] show that [his] conduct was protected by the
first amendment," and that defendants' conduct was motivated by
or substantially caused by plaintiffs' exercise of free speech.
Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir.
1994); see also Mount Healthy City Sch. Dist. Bd. of Ed. v.
Doyle, 429 U.S. 274, 284-85, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)
(government employee stated claim for wrongful discharge in
retaliation for engaging in protected speech); Nestor Colon
Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 40-45 (1st
Cir. 1992) (plaintiff stated claim that officials denied permits
in retaliation for political views of plaintiff).
The rights to complain to public officials and to seek
administrative and judicial relief are protected by the First
Amendment. Gagliardi, 18 F.3d at 194; see also United Mine
Workers v. Illinois Bar Assoc., 389 U.S. 217, 222, 88 S.Ct. 353,
19 L.Ed.2d 426 (1967) (the right "to petition for a redress of
grievances [is] among the most precious of liberties safeguarded
by the Bill of Rights" and is "intimately connected . . . with
the other First Amendment rights of free speech and free press").
The factual basis for plaintiffs redress of grievances and
First Amendment retaliation claims is not entirely clear. It
appears that plaintiffs base their First Amendment redress of
grievances claim on their assertion that the PBA and its
president Storzieri failed to effectively pursue their grievance
and on the allegation that Mayor LaFuente agreed to refuse to
hear their request for a detective designation. They further
allege that they were retaliated against after they sought the
help of the PBA in pursuing their constitutional and contractual
claims by being denied access to the Collective Bargaining
Agreement and by the PBA's failure to fund any legal action on
their behalf. Plaintiffs allege that defendants LaFuente and the
City refused to abide by state law and/or the CBA and in so doing
refused to accord plaintiffs the detective designation and
Although plaintiffs' complaint is not clear, this Court
concludes that plaintiffs adequately have pleaded the requisite
nexus between the exercise of their First Amendment rights and
subsequent retaliatory conduct by the defendants. Plaintiffs'
complaints to the PBA and their effort to secure the PBA's
assistance in pursuing legal redress of their grievances against
the City is conduct clearly protected by the First Amendment. The
ultimate question of retaliation involves a defendant's motive
and intent, which are difficult to plead with specificity in a
complaint. Gagliardi, 18 F.3d at 195. Rule 9(b) of the Federal
Rules of Civil Procedure provides that "[m]alice, intent,
knowledge and other conditions of mind . . . may be averred
generally." See id. While a bald and
uncorroborated allegation of retaliation might prove inadequate
to withstand a motion to dismiss, it is sufficient to allege
facts from which a retaliatory intent on the part of the
defendants reasonably may be inferred. Id.; see also Harris v.
Eichbaum, 642 F. Supp. 1056, 1065 (D.Md. 1986) (if plaintiff
alleges facts regarding defendant's state of mind that, if
proven, constitute a constitutional violation, the parties should
proceed to discovery). Plaintiffs allege that,
In conjunction with the PBA and Storzieri, Defendant
LaFuente and inter alia, the City, refused to abide
by state law and/or the Collective Bargaining
Agreement and in so doing refused to accord
Plaintiffs the detective designation and detective
salary. (Complaint ¶ "17"). In all, Defendants PBA
and Storzieri, aided and abetted by the City and
LaFuente, have failed to effectively pursue
Plaintiffs' claims in this matter.
Plaintiffs' Opposition at 19-20.
Defendants' motion to dismiss plaintiffs' claim pursuant to §
1983 for violation of their First Amendment rights is denied. In
addition, in the absence of any appropriate factual predicate, it
is premature to determine whether individual defendant Collette
LaFuente is entitled to qualified immunity.
Fore the foregoing reasons, defendants' Motion to Dismiss
plaintiffs' Second Amended Complaint is granted on plaintiffs'
due process claims and denied on plaintiffs' claims of First
Amendment violations. The parties are directed to appear before
the Court on September 16, 1999, at 9:15 a.m. for a Rule 16