The opinion of the court was delivered by: John T. Curtin United States District Judge
This case is before the court on the defendants' motion to dismiss the amended complaint (Items 38, 40), and plaintiff's motion for permission to file a second amended complaint (Item 48). This action was originally brought in Supreme Court, Erie County, on March 19, 2003, and was removed to this court on April 8, 2003 (Item 1). In an order filed December 17, 2004 (Item 35), the court dismissed plaintiff's cause of action under the New York State Human Rights Law, and directed plaintiff to file an amended complaint so as to draw his claim under Title 42 U.S.C. § 1983 with more specificity. In the amended complaint, filed January 18, 2005 (Item 36), plaintiff alleged that he was transferred from his position at the Aurora facility of the Erie County Public Works Department, Highway Division, in retaliation for the exercise of the rights of freedom of speech, political affiliation, and other intimate association guaranteed by the First Amendment. Defendants have now moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff has opposed the motion and has moved for permission to file a second amended complaint so as to add a claim under § 1983 for the violation of his Fourteenth Amendment right to due process. Oral argument was heard on September 12, 2005.
As stated in the amended complaint, plaintiff began his employment with the County of Erie in 1978, and was employed as a blacksmith with the Department of Public Works, Division of Highways, assigned to the Aurora highway barn. Item 36, ¶ 5. Following the 1999 election of Joel Giambra as Erie County Executive, in 2000 defendant Naylon became the Aurora Senior District Highway Engineer, and defendant Rider became the Deputy Highway Commissioner. Id., ¶¶ 11-13. Plaintiff alleges that Naylon and Rider were political appointees unqualified for their positions. Id., ¶ 14.
Plaintiff alleges that he became the target of harassment and intimidation because of his professional and personal alliance with a co-worker, Paul Rebrovich. Item 36, ¶ 19. He also alleges that Naylon stated that he wished to "get rid of all the old guys" at the Aurora facility, meaning those hired by the previous County Executive. Id., ¶ 24. Plaintiff alleges that on or about January 31, 2001, defendant Naylon "harangued" him for approximately two hours, questioning him regarding his opinions about the new County administration and other employees. Id., ¶¶ 27-31. Plaintiff also alleges that Naylon forced him to agree to complete transfer papers, stating that it would be in plaintiff's best interests to transfer to another facility. Id., ¶ 32.
Plaintiff alleges that in February 2001, Naylon questioned his timecard and began monitoring his telephone calls. Item 36, ¶¶ 36-37. In March 2001, Naylon presented plaintiff with a list of six disciplinary charges, all of which plaintiff alleges were untrue and unsubstantiated. Id., ¶ 38. On March 5, 2001, a hearing was held in Naylon's office regarding the charges. Plaintiff alleges that Naylon "could not offer anything to substantiate the charges . . . ." Id., ¶ 39. Plaintiff's union representative asked to see plaintiff's personnel file, but Naylon could not produce the file. Id. On March 6, 2001, plaintiff received a letter stating that he had been transferred to the Tonawanda plant. Id., ¶ 41. Plaintiff alleges that his transfer was disciplinary in nature, in violation of County practice, policy, and procedures. Id., ¶ 40. This transfer forced plaintiff to drive an additional 35 miles each way to and from work. Id., ¶ 42.
Following his transfer, in March 2001, plaintiff asked to see his personnel file, and the request was unanswered. Item 36, ¶ 47. In April 2001, Rider sent plaintiff two letters, both advising plaintiff to complete sick leave papers in advance of using sick time. Id., ¶¶ 48-49. In May 2001, plaintiff contacted the then-Chairman of the Erie County Democratic Party and the New York State Attorney General's Office regarding alleged corruption at the Aurora facility and harassment of non-Giambra appointees. Item 36, ¶¶ 51-53. Plaintiff also met with an FBI detective regarding his complaints in August 2001. Id., ¶¶ 55, 60.
Plaintiff alleges that on July 11, 2001, he was "interrogated" for approximately one hour by defendant Rider. Id., ¶ 54. Additionally, plaintiff alleges that he was questioned by a Deputy Sheriff regarding a theft at the Aurora plant. Plaintiff states that Naylon implicated him as a possible perpetrator. Id., ¶ 56.
Plaintiff, through his union, challenged his transfer in an arbitration proceeding. Defendants argued that the transfer was not grievable, and the grievance was dismissed. Item 36, ¶ 43. Plaintiff alleges that Rider confronted plaintiff's wife at the arbitration in April 2002, calling her a "liar." Id., ¶ 58. Plaintiff also alleges that Rider "encouraged and bribed employees to testify against" plaintiff during the arbitration. Id., ¶ 59. Plaintiff alleges that, some time after the arbitrator's decision, a high-ranking County official testified before an Erie County grand jury that plaintiff's transfer was disciplinary. Id., ¶ 44. In November 2004, plaintiff's name appeared on a list of employees targeted for lay-off by County Executive Giambra. Id., ¶ 62.
On March 9, 2005, Defendants Erie County and Rider filed a motion to dismiss the amended complaint pursuant to Fed. R.Civ. P. 12(b)(6) (Item 38). Defendant Naylon filed a similar motion on March 11, 2005 (Item 40). All defendants contend that plaintiff has failed to state a cause of action under § 1983 for violation of the First Amendment. Plaintiff filed a response in opposition to the motions on May 2, 2005 (Item 47). Additionally, he sought permission to file a second amended complaint (Item 48). Specifically, plaintiff stated that he "inadvertently failed to include a cause of action for violations of plaintiff's due process rights as guaranteed by the Fourteenth Amendment" in the amended complaint, although he states that he alleged such a claim in the original complaint. Id., ¶ 16. On May 20, 2005, all defendants filed a joint reply and a response to the motion to amend the amended complaint (Item 51). Finally, on July 13, 2005, plaintiff filed an affirmation in support of the motion for permission to amend (Item 56). Oral argument on all motions was heard on September 12, 2005. For the reasons that follow, the motion to dismiss the amended complaint is granted, and the motion for permission to amend the complaint is denied.
1. Motion to Dismiss the Complaint
In his amended complaint, plaintiff alleges three separate violations of the First Amendment. First, plaintiff alleges that defendants "actively, and motivated by political animus, and in retaliation for [plaintiff's] actions in failing to 'go along' with [defendants'] unlawful activities, participated in concert in a selective and targeted harassment of [plaintiff]." Item 36, ¶ 66. Plaintiff alleges that he was targeted "solely because of his actual or perceived political beliefs and because of his actual or perceived support of and friendship with members of the former" County administration in violation of the First Amendment rights to free speech and political association. Id., ¶¶ 68, 71. As a second cause of action, plaintiff alleges that he was harassed because he spoke out against the unlawful treatment of employees at the Aurora facility and about the fraudulent and illegal activities of the individual defendants, in violation of the First Amendment right to free speech. Id., ¶¶ 75, 79, 81. Finally, as a third cause of action, plaintiff alleges that he was subjected to harassment because his wife spoke out against the unlawful treatment of employees at the Aurora facility and the activities of the individual defendants, in violation of his First Amendment right of freedom of association. Id., ¶¶ 85 - 90.
In considering a motion to dismiss for failure to state a claim, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052 (2000). Dismissal is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. ...