The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Kenneth Kamholtz ("plaintiff" and/or "Kamholtz") brings this action pursuant to 42 U.S.C. §1983 against Yates County (the "County"), the Yates County Sheriff's Department ("YCSD"), Sheriff Ronald G. Spike ("Sheriff Spike") and Investigator Michael Christensen ("Christensen") (collectively "defendants"), claiming that his civil rights were violated in connection with his demotion from "Investigator" to "Road Deputy" at the YCSD. Specifically, plaintiff alleges four separate causes of action including: (1) First Amendment retaliation; (2) "Class-of-one" theory of Equal Protection; (3) Malicious Prosecution and (4)Negligent Hiring, Training and Supervision. Plaintiff seeks declaratory relief, injunctive relief, equitable relief, compensatory damages, punitive damages as well as attorney's fees and costs for the deprivation of his civil rights. The County, YCSD and Sheriff Spike move to dismiss plaintiff's Complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(6), alleging that plaintiff has failed to state a claim upon which relief may be granted and that they are entitled to a dismissal as a matter of law. In addition, defendant Christensen moves to dismiss Counts I and II of plaintiff's Complaint since he contends that neither cause of action is viable based upon the facts plead by plaintiff. For the reasons set forth below, defendants' motions to dismiss plaintiff's Complaint are granted.
Unless otherwise noted, the following facts are taken from plaintiff's Complaint including documents incorporated by reference or upon which plaintiff relied in drafting the Complaint. Plaintiff was appointed to the Criminal Investigation Division ("CID") of the YCSD and assumed his duties in May 2003. Shortly thereafter, plaintiff alleges that he was ordered by Christensen to change a report to exclude evidence in a sexual abuse case. In the summer of 2003, plaintiff attended a staff meeting during which he complained that Christensen ordered him to alter a police report. According to the Complaint, after the summer 2003 meeting, plaintiff began receiving complaints from management that his case work was flawed and that he was a liability to the YCSD. Plaintiff further alleges that in the late summer 2005, Christensen received officer safety information that he passed on to CID members but excluded plaintiff and as a result plaintiff was disciplined in a Letter of Reprimand.
In August 2006, Christensen and the Yates County District Attorney ("DA") initiated a monthly meeting with members of the CID to discuss cases. Plaintiff alleges that at the conclusion of the September 2006 meeting, Christensen, suddenly and without provocation "physically struck Plaintiff on the back causing tremendous pain." Plaintiff then filed a worker's compensation claim and a Personnel complaint against Christensen for striking him in the back.*fn1 See Matthew C. Van Vessem's Affidavit. ("Van Vessem Aff.") at ¶8. With respect to the alleged injury, plaintiff complains that he was struck at the base of the neck while sitting. See id. at ¶12, Ex. B.
Moreover, plaintiff alleges that Lindenmuth and Sotir provided statements relating to the September 2006 incident. See id. at ¶14, Exs. C and D. However, Lindenmuth's statement appears to contradict plaintiff's statement when she notes that "Christensen had a very calm demeanor, was sort of laughing, and touched Inv. Kamholtz on the left shoulder[.] It appeared to me to be a very collegial type of touch. Inv. Kamholtz did not move, did not flinch, and did not state anything." See id., Ex. C. With respect to Sotir's statement, he noted that it was difficult to describe the physical contact made by Christensen towards plaintiff. He described it as "definitely... not a'punch' nor did it impress me as a blow to cause an injury. It was also not what I would describe as a friendly pat on the back, I would characterize it as being somewhere in between the two. My impression was that it was done to end the conversation." See id., Ex. D.
The Complaint further alleges that plaintiff was arrested and charged in the Penn Yan Village Court with two counts of offering a false instrument. A Section 75 Civil Service Law hearing was also scheduled regarding the administrative charges against plaintiff relating to the same incident. Plaintiff alleges that the criminal charges were dropped but that plaintiff could only return to work as a Road Deputy, which was a demotion from his previously held position of Investigator. See Van Vessem Aff. at ¶16, Ex. E. The demotion to road patrol duties was voluntary on plaintiff's part. See id.
I. Defendants' Motion to Dismiss
In considering a motion for dismissal under Rule 12, defendant must show that plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[a] (Matthew Bender 3d ed.) A complaint may be dismissed pursuant to Rule 12(b)(6) where the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." See Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1974 (2007). As the Second Circuit has recently stated, Twombly requires that a plaintiff satisfy "a flexible'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." See Iqbal v. Hasty, 2007 WL 1717803 at *11 (2d Cir.2007).
In order to state a claim, the factual allegations contained in the complaint "must be enough to raise a right to relief above the speculative level." See Twombly, 127 S.Ct. at 1965. Where a plaintiff "ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed." See id. at 1974. "A court should only dismiss a suit under Rule 12(b)(6) 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."' See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir.1987). "Bald assertions and conclusions of law will not suffice" to defeat a motion to dismiss. See Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 126 (2d Cir.2007).
In deciding a motion to dismiss under Rule 12(b)(6), the court's review is limited to the Complaint as well as those documents attached to the Complaint or incorporated by reference and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit. See Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000); Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996).
II. Plaintiff has failed to state a cause of action relating to First Amendment Retaliation
The First Amendment protects the right of public employees to speak-out without fear of reprisal on issues of public concern. See Frank v. Relin, 1 F.3d 1317 (2d Cir., 1993), cert. denied, 510 U.S. 1012 (1993); see also Ezekwo v. NYC Health & Hosp. Corp., 940 F.2d 775, 780 (2d Cir.1991) (It is well-settled that a public employer may not ...