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Agostino v. Simpson

November 17, 2008

VINCENT AGOSTINO, PLAINTIFF,
v.
DAVID SIMPSON, INDIVIDUALLY, WILLIAM REGAN, INDIVIDUALLY, PHILIP AMICONE, INDIVIDUALLY, AND THE AND ORDER CITY OF YONKERS, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Cathy Seibel, J.

MEMORANDUM DECISION

Before this Court is Defendants' Motion to Dismiss (Doc. 11) pursuant to Fed. R. Civ. P. 12(b)(6), which was filed on August 21, 2008. Plaintiff's opposition papers (Doc. 16), along with the First Amended Complaint (Doc. 17), were filed on September 11, 2008.*fn1 Defendants filed a reply memorandum (Doc. 19) on September 19, 2008, in which they urge the Court to dismiss the First Amended Complaint on the ground that it suffers from the same infirmities as the original Complaint. The Court held oral argument on October 21, 2008. For the reasons stated below, Defendants' Motion is denied in part and granted in part.

I. Background

On June 26, 2008, Plaintiff Vincent Agostino filed this action against Defendants David Simpson, William Regan, Philip Amicone (collectively, "Individual Defendants"), and the City of Yonkers ("City") (collectively, "Defendants"), alleging a cause of action under 42 U.S.C. § 1983 ("Section 1983") for violations of Plaintiff's First and Fourteenth Amendment rights. At all times relevant to this action, Defendant Amicone was the Mayor of the City of Yonkers, Defendant Simpson was the City's Director of Communications, and Defendant Regan was the Deputy Mayor of the City.

For purposes of the present Motion, the Court accepts as true the facts as stated in Plaintiff's First Amended Complaint. Plaintiff is employed by the City on a tenured, civil service basis as a "Senior Video Technician." Plaintiff's employment, therefore, cannot be terminated without a pre-deprivation due process hearing, to which he has a right under Section 75 of New York State Civil Service Law ("Section 75").*fn2

Plaintiff's father, Santo Agostino ("Santo"), was not employed by Defendant City, but on or around July 2007, Santo allegedly became known to the Individual Defendants as a close friend and supporter of Selim Zherka, the owner and publisher of The Westchester Guardian (hereinafter, the "Guardian"). In July 2007, the Guardian began publishing articles critical of Defendant Amicone, who was running for re-election as Mayor of the City at the time, and his administration. As a result of these publications, Defendants Simpson, Amicone, and Regan, among others, allegedly galvanized the Yonkers Police Department to begin violating Zherka's First Amendment rights by confiscating the Guardian from newsracks and by criminally charging Zherka with violating an unconstitutional City Code provision. Santo began to advocate for Amicone's defeat in the upcoming mayoral election and to republish Zherka's negative opinions of Amicone and his administration as his own.

Allegedly in retaliation for the activities of Santo, Defendants served Plaintiff with civil service disciplinary charges pursuant to Section 75 in January 2008. Plaintiff was suspended without pay for thirty days, which is the maximum allowable suspension without pay under Section 75. Plaintiff was restored to the payroll until his Section 75 disciplinary proceeding, which was attended by Santo, Zherka, and other representatives of the Guardian. The hearing officer said that he did not want the media present for the hearing, but Zherka and others ultimately attended. Shortly after the hearing commenced, Defendants Simpson, Amicone, and Regan allegedly agreed to retaliate against Plaintiff by again removing him from the City payroll, this time indefinitely, effectively terminating his employment. Plaintiff alleges that this adverse employment action was taken in retaliation for Zherka's, Santo's, and the Guardian's criticism of Amicone and his administration.

Plaintiff asserts causes of action based on Defendants' alleged violation of: (1) Plaintiff's right of intimate association; (2) Santo's right to free speech on a third-party standing basis; (3) Plaintiff's right not to be chilled in the future exercise of his rights to free speech and/or to petition the government for redress of grievances; and (4) Plaintiff's right to a pre-deprivation due process hearing before being deprived of his property rights.

III. Discussion

A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

1. Standard of Review

In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must "accept[] all factual allegations in the complaint and draw[] all reasonable inferences in the plaintiff's favor." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotation marks omitted). In order to withstand dismissal, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (disavowing the oft-quoted statement from Conley v. Gibson, 355 U.S. 41 (1957), that "a complaint should not be dismissed for failure to state a claim 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"). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965 (internal quotation marks omitted). Thus, "at a bare minimum, the operative standard requires the'plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974).

2. Documents Properly Considered on a Motion to Dismiss

When deciding a motion to dismiss, the court's "review is limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); accord Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). "When matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material." Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (internal quotation marks omitted).*fn3

There are, however, circumstances under which it is appropriate for a court to consider documents outside of the complaint on a motion to dismiss. For example, documents that are "integral" to the complaint, are partially quoted in the complaint, or were relied upon by plaintiff in drafting the complaint may be properly considered on a motion to dismiss. See Faulkner, 463 F.3d at 134. The court may also consider on a motion to dismiss documents of which it may take judicial notice. See Kramer v. Time Warner, Inc., 937 F.2d 767, 771 (2d Cir. 1991).

B. Documents Proffered by Defendants

Defendants proffer, as an exhibit to their reply papers, what they identify as an excerpt from the transcript of Plaintiff's Section 75 hearing. According to Defendants, the transcript establishes that Plaintiff was removed from the City payroll due to an administrative "glitch," and not due to retaliatory animus, and that Plaintiff was fully compensated by the City for the mistake. Specifically, Defendants point to the following statement made by the City's attorney during the hearing:

Mr. Rosenberg:... Mr. Lovett did notify me probably a month and a half ago or so that Mr. Agostino had been taken off the payroll again and I made inquiries into the department personnel about that inquiry and it's turned out that we have determined that there was some administrat[ive] glitch which occurred and for some reason he was taken off, I don't know why. There is going to be a retroactive check provided to Mr. Agostino putting him back on the payroll effective the day that he had been taken off and that's going to be occurring today hopefully. (Decl. of Darryll A. Buford ("Buford Decl."), Ex. G at 574-75.) For purposes of the present Motion, however, it is improper for the Court to consider this transcript for the purpose that Defendants have proffered it--namely, as evidence that Plaintiff was not improperly removed from the payroll. While Plaintiff briefly refers in the First Amended Complaint to comments made by the hearing officer and by Defendants' counsel during the Section 75 hearing (First Am. Compl. ("FAC") ¶¶ 9(a)-(b)), these limited references do not justify this Court incorporating the rest of the transcript into the First Amended Complaint. See Sira v. Morton, 380 F.3d 57, 67-68 (2d Cir. 2004) (district court was required to convert motion to one for summary judgment in order to consider hearing transcript because the transcript was not cited in the complaint or integral to the claims asserted therein, even though complaint did contain one quote from the transcript); see also id. at 67 ("Limited quotation or reference to documents that may constitute relevant evidence in a case is not enough to incorporate those documents, wholesale, into the complaint.").

Further, even if the Court could take judicial notice of the transcript, it could not consider it for the truth of the matters asserted therein--which is the purpose for which Defendants have proffered it. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006)(even where transcript of testimony in prior proceeding is public record of which court may take judicial notice, court "may do so on a motion to dismiss only to establish the existence of the [document], not for the truth of the facts asserted in the [document]" (internal citations omitted)). Therefore, the Court will not consider the transcript as proof that--contrary to Plaintiff's allegations, which the Court must accept as true--Plaintiff was removed from the City payroll due to an inadvertent glitch, for which he was reimbursed.

C. Analysis

1. Section 1983

Section 1983 ...


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