United States District Court, N.D. New York
June 1, 2005.
DORSETT-FELICELLI, INC., d/b/a Pyramids and PYRAMIDS PRE-SCHOOL, INC., Plaintiffs,
COUNTY OF CLINTON, PAULA CALKINS LACOMBE, individually and in her official capacity as Director of the County of Clinton Department of Public Health, and KATHERINE O'CONNOR, individually and in her official capacity as Early Intervention Official and PreSchool Related Service Coordinator, NORTH COUNTRY KIDS, INC., STEPHANIE GIRARD, KELLY McCAULEY and MELISSA PURCHALSKI, Defendants.
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
Melissa Dorsett-Felicelli is the President and Executive
Director of two corporations, Dorsett-Felicelli, Inc., d/b/a
Pyramids (hereafter "Pyramids"), and Pyramids Pre-School, Inc.
(hereafter "Pre-School") (collectively "Plaintiffs"). Plaintiffs
bring this action pursuant to 42 U.S.C. § 1983, alleging that
Defendants took retaliatory actions in violation of
Dorsett-Felicelli's First Amendment rights. Currently before the
Court is a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) by Defendants County of Clinton ("County"),
Paula Calkins LaCombe ("LaCombe"), and Katherine O'Connor
("O'Connor") (collectively "County Defendants"). II. Facts
Pyramids is a corporation that provides individualized
services, such as speech, nutritional, occupational and physical
therapies, to children of ages birth through three, pursuant to
the Early Intervention Program ("EIP") established by New York
Public Health Law. See N.Y. PUB. HEALTH LAW §§
2540-2559.*fn2 The approval of New York State's Department
of Health is required to become an authorized provider of these
services. N.Y. COMP. CODES R. & REGS. tit. 10, § 69-4.5 (1997).
Once approval has been received, a municipal official refers
children to the service providers. N.Y. PUB. HEALTH LAW § 2552;
N.Y. COMP. CODES R. & REGS. tit. 10, §§ 69-4.2, 4.3 (1997). As
evidenced by its contract with the Clinton County Department of
Public Health for the period January 12, 2004 through December
31, 2004, Pyramids is an authorized EIP service provider. EIP
Contract (Dkt. No. 3, Ex. F). Pyramids receives the statutory fee
of $70 for each therapy session provided. Dorsett-Felicelli Aff.
(Dkt. No. 3) at ¶ 6.
Pre-School provides special education and related therapy
services to children ages three through five who have learning
disabilities, pursuant to the Preschool Special Education ("PSE")
Program that has been established under New York State Education
Law. N.Y. EDUC. LAW § 4410. Approval of the Commissioner of the
New York State Department of Education is required to become a
service provider under this program. N.Y. EDUC. LAW § 4410(9).
For participation in the PSE Program, children are referred to
Pre-School through a school district's board of education. N.Y.
EDUC. LAW § 4410(2). Pre-School has signed a contract with the
Clinton County Public Health Department to offer PSE services
from July 1, 2004 through June 30, 2005. PSE Services Contract (Dkt. No. 3, Ex. M).
Beginning in the Fall 2003, Dorsett-Felicelli began to voice
her objection to what she perceived as the County's unlawful use
of independent unlicensed contractors as service providers under
these programs. Complaint (Dkt. No. 1) at ¶¶ 27-28.
Dorsett-Felicelli contends that the County designates certain
providers as independent contractors to save money because this
status avoids payment of certain state and federal employee
taxes. Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶ 9. Affording some
providers this status therefore undercuts Pyramids' and
Pre-School's ability to compete and to retain and recruit
qualified specialists. Id.
In a meeting in September 2003, Dorsett-Felicelli complained to
several County officials, County Administrator William Bingel,
County Attorney Dennis Curtin, and Assistant County Administrator
Michael Zurlo, about the County's use of independent contractors
for work under these programs. Id. at ¶ 10. In October 2003,
Dorsett-Felicelli met with Zurlo, Curtin, and O'Connor, County
Coordinator for EIP services, to reiterate her concerns. Id. at
¶ 11. She contends that upon voicing her objection, Curtin
threatened that she could encounter problems with the way that
Pyramids does its billing. Id. On December 10, 2003,
Dorsett-Felicelli took her concerns to the Clinton County
Legislature, but she claims that she only received "lip service."
Id. at ¶ 12.
Plaintiffs contend that the County was surreptitiously involved
in encouraging three of Pyramids' employees, Melissa Puchalski,
Stephanie Girard and Kelly McCauley, to form North Country Kids,
a competing agency which also provided EIP and PSE services.
Id. at ¶ 14. As evidence of this allegation, Plaintiffs point
out that the County scrambled to have North Country Kids'
provider status approved prior to Pyramids' termination of
employment of these three employees because their employment with
a licensed service provider, such as Pyramids, was necessary to allow transfer of session hours to North Country
Kids. Id. To expedite the North Country Kids' service provider
approval, the County Legislature "took the unusual step of
calling for a vote on the agreement by telephone rather than in
chambers." Id. Plaintiffs also note that North Country Kids was
included on a February 4, 2004 list of service providers compiled
by the Clinton County Department of Public Health, when its
approval by the County Legislature was not obtained until February 11.
Id. at ¶¶ 15-16. State approval was never obtained.
In a memorandum dated February 12, 2004, County Defendants
notified Pyramids and Pre-School that effective February 16,
2004, County Defendants had elected to transfer EIP and PSE
session hours away from Pyramids and Pre-School to North Country
Kids. Clinton County Health Dep't. Memo (Dkt. No. 3, Ex. G).
Plaintiffs contend that this represents a gross revenue of
$207,480 annually. Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶ 17.
Shortly after this transfer of session hours, an anonymous
letter was sent to the Department of Education, alleging that
Pyramids' services jeopardize the safety of the children. Id.
at ¶ 18. The Department of Education, understandably concerned
for the safety of the children, did an investigation and reported
that there was no merit to these allegations and that Pyramids
services were of "exemplary quality." Letter of Rusty Kindlon,
State Dep't. of Ed. (Dkt. No. 3, Ex. I). Dorsett-Felicelli
believes that County Defendants were involved in the sending of
this letter. Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶ 18. She
hired a forensic linguistic analyst who is of the opinion that
O'Connor may have written the anonymous letter. Id. at ¶ 18.
The County has refused requests to investigate the matter. Id.
On June 1, 2004, Pyramids filed an Article 78 proceeding in the
Supreme Court of the State of New York, County of Clinton,
against defendants County of Clinton, County of Clinton Department of Public Health, LaCombe, and O'Connor. Complaint
(Dkt. No. 1) at ¶ 51. That action seeks declaratory and
injunctive relief and specifically "seeks to have the session
hours reinstated on the ground that the respondents in that
proceeding acted arbitrarily and capriciously with regards to
Pyramids." Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶ 19.
Plaintiffs contend that in response to the filing of that
Article 78 proceeding, County Defendants retaliated against
Pyramids and Pre-School. Id. at ¶ 20. In August 2003, County
Defendants had made 546 EIP session referrals to Pyramids, a
number consistent with previous months, but in June 2004,
referrals dropped to 100. Id. Additionally, after the filing of
the Article 78 proceeding, on September 1, 2004, County
Defendants transferred Special Education Itinerant Teacher
("SEIT") services for 11 students, a total of 30 sessions per
week for 40 weeks, sessions that are part of the PSE Program,
away from Pre-School.*fn3 Id. at ¶ 21. The transfer of
SEIT sessions constitute a loss of about $76,800 of income to
Pre-School. Complaint (Dkt. No. 1) at ¶ 57.
Plaintiffs filed the instant action on September 30, 2004,
along with a motion for a preliminary injunction. Complaint (Dkt.
No. 1); P.I. Motion (Dkt. No. 3). The Clinton County Supreme
Court issued a decision in the Article 78 proceeding on October
31, 2004. Dorsett-Felicelli, Inc., d/b/a/ Pyramids v. County of
Clinton, et al., No. 04-0547 (N.Y. Sup. Ct. Oct. 31, 2004).
Justice McGill dismissed the case and held that petitioners,
Dorsett-Felicelli and Pyramids, lacked standing because the statutes and regulations were not
implemented to protect against the harm of which they complained,
explaining that "petitioner[s] simply failed to make the
`critical showing' that [their] injury falls within the `zone of
interest' of either [the Public Health Law or Education Law]."
Id. at 9.
On November 16, 2004, the Court issued an Order ("Nov. 16
Order") on the motion for a preliminary injunction holding,
inter alia, that (1) the Court would abstain from all claims
for declaratory or injunctive relief relating to the transfer of
EIP session hours and (2) the motion with respect to the transfer
of SEIT session hours was denied. Nov. 16 Order (Dkt. No. 16) at
A. Younger Abstention
The Supreme Court's ruling in Younger v. Harris, 401 U.S. 37
(1971), established that a federal court, although it properly
has jurisdiction, in the interest of comity, should abstain from
hearing a case that would interfere with an ongoing state
criminal proceeding. "[D]ismissal or a stay of claims is
mandatory when the requirements for Younger abstention are
satisfied. . . ." Spargo v. N.Y. Comm'n on Judicial Conduct,
351 F.3d 65, 74 (2d Cir. 2003) (noting also that "Younger is
not a jurisdictional bar based on Article III requirements, but
instead a prudential limitation on the court's exercise of
jurisdiction grounded in equitable considerations of comity")
(citing to Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191,
197 (2d Cir. 2002)). "Younger generally prohibits courts from
`taking jurisdiction over federal constitutional claims that
involve or call into question ongoing state proceedings' so as to
avoid unnecessary friction." Id. at 75 (citing to Diamond,
282 F.3d at 198); see also Cullen v. Fliegner, 18 F.3d 96,
103 (2d Cir. 1994) (Younger "is based on the premise that
ordinarily a state proceeding provides an adequate forum for the vindication of federal constitutional rights. . . ."). Although
Younger abstention was developed to prohibit a federal court's
interference with an ongoing state criminal proceeding, it has
since been extended to civil cases. Huffman v. Pursue,
420 U.S. 592 (1975); see also Trainor v. Hernandez, 431 U.S. 434
Abstention under Younger and its progeny follows a prescribed
formula. A federal court must refrain from hearing a federal
constitutional claim when (1) there is a pending state
proceeding, (2) that implicates an important state interest, and
(3) the state proceeding affords the federal plaintiff an
adequate opportunity for federal judicial review of his federal
constitutional claims. Spargo, 351 F.3d at 75. The Second
Circuit, relying on the statements of the Supreme Court, has
"[U]nless state law clearly bars the interposition of
the constitutional [or federal] claims," and "so long
as there is no showing of bad faith, harassment, or
some other extraordinary circumstance that would make
abstention inappropriate, the federal courts should
abstain." Middlesex County Ethics Comm. v. Garden
State Bar Ass'n., 457 U.S. 423, 432, 435 (1982).
Younger itself explained that exceptions to
abstention should be made only on a "showing of bad
faith, harassment, or . . . other unusual
circumstance." Younger, 410 U.S. at 54.
Kirshner v. Klemons, 225 F.3d 227
, 233-34 (2d Cir. 2000).
Additionally, if a court finds that abstention is proper, it may
dismiss the case or otherwise stay the proceedings pending a
resolution of the state court action.
The Court fully addressed this issue in the Nov. 16 Order, and
abstained from all claims for declaratory and injunctive relief
relating to the transfer of EIP hours because of the ongoing
Article 78 proceeding. Nov. 16 Order (Dkt. No. 16) at 14, 21.
Because punitive damages are not available in such a proceeding,
the Court did not abstain from the claim for punitive relief
relating to the transfer of EIP hours, but stayed the federal action until there
was a resolution of the Article 78 proceeding. Id. at 13, 21.
As the SEIT hours were transferred after the filing of the state
proceeding and would not impact it, the Court also did not
abstain from exercising its jurisdiction over those claims. Id.
at 9-10. The parties have presented no justification for altering
this Court's earlier decision regarding Younger abstention, and
thus, the decision stands.*fn4
B. Motion to Dismiss
A motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure must be denied "`unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.'" Cohen
v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). In assessing the sufficiency
of a pleading, the Court must "assume all well-pleaded factual
allegations to be true, and . . . view all reasonable inferences
that can be drawn from such allegations in the light most
favorable to the plaintiff." Dangler v. New York City Off Track
Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). Consideration
is limited to the complaint, documents attached to the complaint
or incorporated into it by reference, matters of which judicial
notice may be taken, and "documents either in plaintiffs'
possession or of which plaintiffs had knowledge and relied on in
bringing suit." Brass v. Amer. Film Techs., Inc., 987 F.2d 142,
150 (2d Cir. 1993); Young v. Goord, No. 01 CV 626 (JG), 2005 WL
562756, at *6 (E.D.N.Y. Mar. 10, 2005). Thus, the Court will
consider not only factual allegations included in the complaint,
but also those in the documents submitted by Plaintiffs in support of
their motion for preliminary injunction, as those documents were
in Plaintiffs' possession and they had knowledge of those
documents and relied upon them in bringing suit.*fn5
2. Failure to State a Claim Regarding SEIT Hours
Because the Court is abstaining from the claims for declaratory
and injunctive relief regarding the EIP hours, and staying this
action regarding punitive damages for the EIP hours, only the
transfer of SEIT hours remain at issue. To prevail on their First
Amendment retaliation claim brought pursuant to § 1983,
Plaintiffs must demonstrate by a preponderance of the evidence
(1) [Plaintiff's] speech was constitutionally
protected, (2) [Plaintiff] suffered an adverse
employment decision, and (3) a causal connection
exists between [Plaintiff's] speech and the adverse
employment determination against him, so it can be
said that his speech was a motivating factor in the
determination. If a plaintiff establishes these three
factors, the defendant has the opportunity to show by
a preponderance of the evidence that it would have
taken the same adverse employment action even in the
absence of the protected conduct.
Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545
, 553 (2d
Cir. 2001) (citing Morris v. Lindau, 196 F.3d 102
, 110 (2d Cir.
There is no dispute that Dorsett-Felicelli's complaints to
County officials and attempts to obtain judicial relief are
constitutionally protected. See Dougherty v. Town of N.
Hempstead Bd. of Zoning, 282 F.3d 83, 91 (2d Cir. 2002); see
also Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). Likewise, County Defendants do not contest
Plaintiffs' assertion that the transferring of SEIT session hours
is an adverse employment decision. In their motion to dismiss,
County Defendants contend that Plaintiffs will not be able to
present evidence to prove the existence of the third element, a
causal connection between the transfer of SEIT session hours and
the exercise of Dorsett-Felicelli's First Amendment rights,
because under New York State Education Law, it is the board of
education that makes those determinations, not the County. Def.
Memo. (Dkt. No. 20) at 10.
The Second Circuit has stated that the "ultimate question of
retaliation involves a defendant's motive and intent, both
difficult to plead with specificity in a complaint." Dougherty,
282 F.3d at 91. Therefore, "[i]t is sufficient to allege facts
from which a retaliatory intent on the part of the defendants
reasonably may be inferred." Id.
Plaintiffs have alleged that beginning in the Fall 2003,
Dorsett-Felicelli began to complain to County officials regarding
the County's use of unlicensed independent contractors. Complaint
(Dkt. No. 1) at ¶¶ 27-28. Plaintiffs contend that the County
subsequently was involved in encouraging three Pyramids employees
to establish a competing agency, noting that the County
Legislature uncharacteristically voted by telephone rather than
in chambers to expedite North Country Kids' service provider
approval in February 2004. Dorsett-Felicelli Aff. (Dkt. No. 3) at
¶ 14. Also in February 2004, County Defendants began to transfer
session hours away from Pyramids to North Country Kids. Clinton
County Health Dep't. Memo. (Dkt. No. 3, Ex. G). Plaintiffs also
claim that a forensic linguistic analyst stated that O'Connor
could have written an anonymous letter sent to the Department of
Education shortly after the transfer of session hours, alleging
that Pyramids' services put children's safety in jeopardy.
Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶ 18. In June 2004, Pyramids filed the Article 78 proceeding to have
those transferred session hours reinstated. Complaint (Dkt. No.
1) at ¶ 51. Also in June 2004, Pyramids only had 100 EIP session
referrals, when in August 2003, it had 546, a number consistent
with previous months. Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶
20. In September 2004, County Defendants transferred a total of
30 SEIT sessions per week for 40 weeks away from Pyramids. Id.
at ¶ 21. The transfer of these hours included transfers to Teddy
Bear, which Plaintiffs claim subcontracted North Country Kids to
provide the services. Id. at ¶ 23. Because it is not an
authorized provider of SEIT services, the transfer of hours could
not have been directly to North Country Kids. Id. at ¶ 22.
The chronology of events as presented by Plaintiff is
sufficient to infer that County Defendants had a retaliatory
motive. Plaintiffs have alleged that soon after Dorsett-Felicelli
voiced her complaints to the County and the courts, session hours
were transferred away from Pyramids and Pre-School at an
unprecedented rate by the County to a provider that the County
scrambled to have authorized. Although County Defendants have
asserted alternative reasoning for the transfers, for purposes of
a motion to dismiss, all inferences are made in Plaintiffs'
New York State Education Law, however, provides that the final
decision regarding the provision of SEIT services is made by the
local board of education, not by the county. N.Y. EDUC. LAW §
4410(1)(k).*fn7 Although a committee is formed to make a
determination as to the necessary services for each child, the
committee is only empowered to make a written recommendation to
the board of education, which ultimately decides whether to
adopt, amend, or reject the recommendation. N.Y. EDUC. LAW §
4410(5)(a)-(c). The role of the municipality is limited to
appointing one member to the committee. N.Y. EDUC. LAW §
4410(3)(1). Plaintiffs assert that regardless of the statutory scheme,
O'Connor and LaCombe control the process by which SEIT services
are assigned and make the decisions, and, thus, that the board of
education members defer to her. Complaint (Dkt. No. 1) at ¶¶ 60,
63; Dorsett-Felicelli Aff. (Dkt. No. 3) at ¶ 23. Although, by
statute, the board of education is entitled to make the final
decision, if O'Connor and/or LaCombe control the process and do
so in retaliation for Dorsett-Felicelli's exercise of her First
Amendment rights, that would establish a causal connection
sufficient to establish First Amendment retaliation claim. At
this juncture, the Court cannot determine that Plaintiffs can
present no set of facts to establish the requisite causal
connection pursuant to § 1983. Plaintiffs are entitled to present
evidence regarding the actual, as opposed to statutory, role of
LaCombe and O'Connor regarding the transfer of SEIT session
3. Qualified Immunity
Qualified immunity is available only when a § 1983 suit is
brought against a state official in his individual capacity,
making him personally liable for any damages awarded to the
plaintiff. This immunity is not a defense where the defendant is
a state or municipality or is a public employee in his official
capacity, which is in essence a suit against the defendant's
governmental employer because the employer must pay any damages
awarded. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985).
The Second Circuit Court of Appeals has held, "[o]nce qualified
immunity is pleaded, plaintiff's complaint will be dismissed
unless defendant's alleged conduct, when committed, violated
`clearly established statutory or constitutional rights of which
a reasonable person would have known.'" Williams v. Smith,
781 F.2d 319, 322 (2d Cir. 1986) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Qualified immunity "provides ample
protection to all but the plainly incompetent or those who knowingly violate the law." Malley v.
Briggs, 475 U.S. 335, 341 (1976).
In deciding whether a state official is entitled to qualified
immunity, it must first be determined whether a plaintiff
successfully alleged facts showing the violation of a
constitutional right by state officials. Saucier v. Katz,
533 U.S. 194, 201 (2001). "If there is no constitutional violation,
our inquiry ends." Mace v. City of Palestine, 333 F.3d 621, 623
(5th Cir. 2003).
If the plaintiff's alleged facts make out a constitutional
violation, it is then asked whether the right allegedly violated
was "clearly established," meaning that "[t]he contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Anderson
v. Creighton, 483 U.S. 635, 640 (1987). Even if the right was
clearly established at the time of the alleged violation,
however, a defendant will still be entitled to qualified immunity
if the defendant's conduct was objectively reasonable in light of
clearly established law at the time of the violation. Siegert v.
Gilley, 500 U.S. 226, 231-32 (1991).
Plaintiffs have alleged that Defendants LaCombe and O'Connor
retaliated against them for Dorsett-Felicelli's exercise of her
First Amendment rights. Complaint (Dkt. No. 1) at ¶ 70. There is
no dispute that Dorsett-Felicelli's speech to County officials
was protected by the First Amendment. See Dougherty,
282 F.3d at 91; see also Gagliardi, 18 F.3d at 194. Further, the
unlawfulness of retaliating against a person for the exercise of
First Amendment rights is apparent. See, e.g., Dobosz v.
Walsh, 892 F.2d 1135, 1141 (2d Cir. 1989) ("the proscription of
retaliation for a plaintiff's exercise of First Amendment rights
has long been established. . . ."). Therefore, Plaintiffs have
alleged a violation of a constitutional right that was clearly
established at the time of the alleged violation. County
Defendants contend in their Reply Memorandum that because there
was no law specifically prohibiting the transfer of session
hours, the individual Defendants have not violated any law and are entitled to qualified immunity. Def.
Reply Memo. (Dkt. No. 25) at 6. County Defendants misunderstand
the doctrine of qualified immunity. The "clearly established law"
to which the doctrine of qualified immunity refers is that
contained in the federal Constitution, in this case, the First
Amendment. As noted above, the right to present grievances to a
governmental body without suffering retaliation is a clearly
established constitutional right. While, in the absence of any
retaliatory motive, it may not be unlawful to transfer session
hours, when done in retaliation for the exercise of
constitutionally protected rights, it is.
County Defendants would still be entitled to qualified immunity
if their conduct was objectively reasonable in light of the
clearly established law. Whether County Defendants actions were
objectively reasonable is a fact-intensive inquiry that is
ill-suited to determination on a motion to dismiss. See,
e.g., Sales v. Barizone, No. 03 Civ. 6691RJH, 2004 WL
2781752, at *16 (S.D.N.Y. Dec. 2, 2004). Considering all factual
allegations and inferences most favorable to the Plaintiffs, it
cannot be said that County Defendants' conduct was objectively
reasonable. Although County Defendants claim to have transferred
the session hours in response to requests from parents and to
establish continuity of care for the children, that is
insufficient for purposes of a motion to dismiss to establish
that the transfer from one facility to another was objectively
reasonable. In order to make a reasoned determination as to the
reasonableness of the transfer of hours, evaluation (and thus,
discovery) of several issues, including the history of the care
of the children transferred, the children's needs at the time of
transfer, and the circumstances surrounding the requests of the
parents, is necessary. It would be premature to reach a decision
on the reasonableness of County Defendants' conduct at this time.
See Zieper v. Reno, No. 00 CIV. 5594(RMB), 2002 WL 1380003,
at *8 (S.D.N.Y. June 26, 2002) (unpublished). 4. Custom or Policy
County Defendants contend that Plaintiffs have not alleged that
a policy or custom of the County led to Plaintiffs' injuries, and
thus, a § 1983 action against the County cannot be sustained.
Def. Memo. (Dkt. No. 20) at 12. A municipality may not be held
liable under § 1983 for actions of its employees based on a
theory of respondeat superior. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691-94 (1978). To establish municipal
liability for unconstitutional acts by its employees, a plaintiff
must show that the violation of his constitutional rights
resulted from a municipal custom, policy or practice. See id.
A plaintiff may satisfy the "policy, custom or practice"
requirement in one of four ways. He may allege the existence of:
(1) a formal policy officially endorsed by the municipality,
see Monell, 436 U.S. at 690; (2) actions taken by government
officials responsible for establishing municipal policies related
to the particular deprivation in question, see Pembauer v.
City of Cincinnati, 475 U.S. 469, 483-84 (1986); (3) a practice
so consistent and widespread that it constitutes a "custom or
usage" sufficient to impute constructive knowledge of the
practice to policymaking officials, see Monell,
436 U.S. at 690-91; or (4) a failure by policymakers to train or supervise
subordinates to such an extent that it amounts to "deliberate
indifference" to the rights of those who come in contact with the
municipal employees, see City of Canton v. Harris,
489 U.S. 378, 388 (1989). Additionally, a plaintiff must show a causal
link between an official policy or custom and the plaintiff's
injury in order for the court to find liability against the city.
See Batista v. Rodriquez, 702 F.2d 393, 397 (2d Cir. 1983).
In this case, Plaintiffs' allegations concerning LaCombe and
O'Connor suffice to meet the requirements for a § 1983 claim.
Defendants do not have to be members of a lawmaking body to be policymakers for purposes of municipal liability. See, e.g.,
Pembrauer, 475 U.S. at 480. LaCombe is the Director of the
Clinton County Department of Public Health, and O'Connor is the
Early Intervention Official and PreSchool Related Service
Coordinator. Complaint (Dkt. No. 1) at ¶¶ 12, 14. In the
Complaint, Plaintiffs describe LaCombe's position as the "chief
executive officer of the Department responsible for the overall
operations of the department that makes the referrals of children
eligible for early intervention services and approving
individuals and/or entities as service providers." Id. at ¶ 12.
O'Connor is described as being "responsible for making referrals
to service providers and preparation of provider agreements."
Id. at ¶ 16. From their titles and job descriptions alone, in
the absence of evidence to the contrary, it is easy to infer that
each of those defendants have some decision-making authority for
the municipality regarding the transfer of EIP and SEIT session
hours. The allegations made by Plaintiffs, that LaCombe and
O'Connor have in fact taken action to have session hours
transferred from Plaintiffs in retaliation for engaging in
constitutionally protected speech, shows the requisite causal
link required for County liability.
Most importantly, however, Plaintiffs make allegations of
retaliation directly against the County Legislature, which is the
ultimate policymaker for the County. Regardless of any actions
taken by LaCombe and O'Connor, this is sufficient to establish
County liability. See, e.g., Pembrauer, 475 U.S. at 480
("No one has ever doubted . . . that a municipality may be liable
under § 1983 for a single decision by its properly constituted
legislative body whether or not that body had taken similar
action in the past or intended to do so in the future because
even a single decision by such a body unquestionably constitutes
an act of official government policy.").
Based on the foregoing discussion, it is hereby ORDERED, that the Court will STAY federal action on the
request for punitive relief for the First Amendment violations
relating to the transfer of EIP session hours, until a resolution
of the Article 78 proceeding in state court; and it is further
ORDERED, that the Court will abstain from all other claims for
declaratory or injunctive relief relating to the transfer of EIP
session hours; and it is further
ORDERED, that the motion to dismiss is DENIED; and it is
ORDERED, that the Clerk serve a copy of this order on all