the Supreme Court would recognize the relationship between
Sutton, Jr. and his father as falling into the category of
Constitutionally protected "intimate" relationships. Although the
issue raised is novel, the court disagrees and holds that the
father-son relationship falls within the category of
relationships discussed in Roberts and Adler and holds,
therefore, that Plaintiff has stated a claim upon which relief
may be granted.
The relationships held worthy of Constitutional protection are
consistently referred to as familial in nature. See Roberts,
468 U.S. at 619, 104 S.Ct. 3244. While Adler held the question
to be close, it nonetheless held that a claim was stated. The
court sees no logical reason for holding that the father-son
relationship is any less worthy of constitutional protection than
the husband-wife relationship. In short, in light of the holding
in Adler, the court holds that Sutton, Jr. has stated a First
The court notes that it holds here only that a claim has been
stated. Should defendants be able to show at trial that the
employment decisions made regarding Sutton, Jr. had nothing to do
with his father's political affiliations, they will prevail. If,
on the other hand, it is proven that "simple vindictiveness" was
defendants' true motive, the First Amendment will have been
violated. See Adler, 185 F.3d at 45.
B. Substantive Due Process Claim
Substantive due process circumscribes an "outer limit" on
permissible governmental action. Natale v. Town of Ridgefield,
170 F.3d 258, 263 (2d Cir. 1999). Such rights are violated only
by conduct "so outrageously arbitrary as to constitute a gross
abuse of governmental authority." Natale, 170 F.3d at 263.
To state a due process violation Plaintiff must first show a
deprivation of a constitutionally protected property or liberty
interest. White Plains Towing Corp. v. Patterson,
991 F.2d 1049, 1061-62 (2d Cir.), cert. denied, 510 U.S. 865, 114 S.Ct.
185, 126 L.Ed.2d 144 (1993); Costello v. McEnery, 1994 WL
410885 *4 (S.D.N.Y. August 3, 1994), aff'd, 57 F.3d 1064 (2d
Cir. 1995). It is only when such a right is established that the
court may turn to a discussion of whether there has been a
deprivation of that right without due process. While state law
may define the interest sought to be protected, federal law
determines whether an interest rises to the level of an
"entitlement" implicating the protections of the Due Process
Clause. Ezekwo v. New York City Health & Hosp. Corp.,
940 F.2d 775, 782 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657,
116 L.Ed.2d 749 (1991), quoting, Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978);
Babcock v. Rezak, 1998 WL 543742 *3 (W.D.N.Y. August 18, 1998).
The creation of a property right to the terms of one's public
employment must be based upon more than an "abstract need or
desire," there must be a "legitimate claim of entitlement. . . ."
Morris, 196 F.3d at 115, quoting, Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, a
plaintiff must establish that conferral of an employment benefit
was "virtually a matter of right." Kane, 44 F. Supp.2d at 550,
quoting Schwartz v. Thompson, 497 F.2d 430, 433 (2d Cir. 1974);
see Gagliardi v. Village of Pawling, 18 F.3d 188, 192 (2d Cir.
Given the stringent standards for creation of a property right
in connection with the terms of public employment, the court is
inclined to hold here, as was held in the Sutton, Sr. lawsuit,
that Plaintiff has not established the existence of a
constitutionally protected property interest. Plaintiff's claim
here, however, is distinguishable from his father's claim. In the
Sutton, Sr. lawsuit, this court had little difficulty holding
that there was no property right implicated. There, Sutton Sr.
retained the same salary and Civil Service rank — he complained
only that his duties
were changed. Because Sutton, Sr. could point to no term of his
employment, contractual or otherwise, that virtually assured him
that he would continue to enjoy all non-monetary benefits of his
position, the court declined to find a protected property
Even, however, if this case were sufficiently distinguishable
from Sutton, Sr's. case to support the finding of a property
interest, the court would nonetheless dismiss the substantive due
process claim. As noted, this clause of the Fourteenth Amendment
protects citizens from conduct that is so "outrageously arbitrary
as to constitute a gross abuse of governmental authority."
Natale, 170 F.3d at 263. Put simply, Plaintiff has alleged no
such conduct herein. The changes in job responsibilities and
salary reductions complained of, even if true and even if taken
in retaliation for the actions of Sutton, Sr., do not rise to the
required level. Accordingly, the court dismisses any claim
pursuant to the substantive due process clause of the Fourteenth
C. Qualified Immunity
Although not raised by the parties, the court finds it
appropriate to raise the issue of qualified immunity for
defendant Darcy. A government official claiming qualified
immunity bears the burden of proving either: (1) that the conduct
alleged did not violate clearly established rights of which a
reasonable person would have known, or (2) that it was
"objectively reasonable" for the defendant to believe that the
conduct did not violate plaintiff's clearly established
constitutional rights. McCullough v. Wyandanch Union Free Sch.
District, 187 F.3d 272, 278 (2d Cir. 1999).
A right is "clearly established" if "the contours of the right
are sufficiently clear that a reasonable official would
understand that what he or she is doing violates the right."
Id.; see also Danahy v. Buscaglia, 134 F.3d 1185, 1190 (2d Cir.
1998), quoting, Anderson v. Creighton, 483 U.S. 635, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987). Objective reasonableness is
established if reasonably competent individuals could disagree as
to the legality their actions. Malley v. Briggs, 475 U.S. 335,
341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Lennon v. Miller,
66 F.3d 416, 420 (2d Cir. 1995)
The constitutional right at issue here, the right of intimate
association, is a right that had been established for many years
prior to the conduct forming the basis of this action. However,
the application of that right to the factual scenario presented
here is one that was certainly not clearly established until the
Second Circuit decision in Adler. Even there, the court
characterized the issue as "not free from doubt." Adler, 185
F.3d at 44.
In light of the fact that Plaintiff's claim is based upon a
case not decided in this circuit until 1999, and even then,
acknowledged by the court to present a close question, the court
holds that the right claimed was not so "clearly established" so
as to defeat a claim for qualified immunity. Accord Camacho v.
Brandon, 69 F. Supp.2d 546, 552 (S.D.N.Y. 1999) (Adler
presented a "unique cause of action that was not clearly
established prior to the Court's decision."). Thus, the court
holds that defendant Darcy is properly dismissed from this case
on the ground of qualified immunity.*fn3
For the foregoing reasons, defendants' motion to dismiss is
granted in part and denied in part. Plaintiff's substantive due
process claims are dismissed. The motion to dismiss Plaintiff's
First Amendment claim is denied. The case is dismissed, in
its entirety, as against defendant Darcy, on the ground of