The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff, Martin Meaney, brought the instant action against Defendants, Village of Johnson City (Village) and Dennis Hannon, alleging that: (1) Defendants violated his First Amendment right to Freedom of Speech and Freedom of Association; (2) "The Village of Johnson City Rules and Regulations for the Government of the Fire Department" (Rules and Regulations)*fn1 are unconstitutional as written and/or as applied to him; and (3) the Village's actions violated New York Labor Law § 740. Presently before the Court are Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12, Plaintiff's cross-motion pursuant to Fed. R. Civ. P. 65(a) seeking a preliminary injunction, and Plaintiff's motion for leave to file an Amended Complaint.
Plaintiff is a fire captain for the Village of Johnson City Fire Department and the President of the Johnson City Professional Fire Fighters Local 921. On January 6, 2009, Plaintiff attended a Village Board of Trustees meeting. At this meeting, Plaintiff read a statement: (1) asserting that Defendant Hannon had "used the Fire Department for his personal hackey-sack;" (2) accusing "Hannon of compromising the safety of Village residents;" and (3) "criticizing Hannon's votes on various Fire Department issues."*fn2 On September 11, 2009, while running for mayor, Hannon told the media that the Village was conducting an internal investigation of the Fire Department concerning the destruction of disciplinary records. Plaintiff was contacted by a reporter and asked to comment on these allegations. Plaintiff responded stating, "[a]s far as missing documents, we have no information on it. Again, is this investigation politically motivated on the eve of the primary?
It would appear so." On November 17, 2009, Plaintiff attended another Village Board of Trustees meeting and spoke on several topics, including: (1) the Village's proposal to apply for a Federal Emergency Management Agency "Staffing for Adequate Fire and Emergency Response" grant; (2) the impact of the Village's reductions in manpower at the Village Fire Department, including its impact on response time and the closure of fire stations; and (3) the inadequacy of relying upon the Village of Endicott Fire Department regarding fire protective services.
On December 2, 2009, Defendant Hannon, who had been elected mayor of the Village, disciplined Plaintiff pursuant to the Rules and Regulations on the grounds that statements made on January 6, 2009, September 11, 2009, and November 17, 2009 violated Plaintiff's duties as a firefighter. Defendant issued four disciplinary charges against Plaintiff alleging insubordination and violations of the Rules and Regulations.These charges resulted in Plaintiff being placed on a 30-day unpaid suspension commencing December 3, 2009. Misconduct Charge 1 alleges that Plaintiff's statements on Jan. 6, 2009, Sept. 11, 2009 and Nov. 17, 2009 were acts of insubordination. Misconduct Charge 2 alleges that Plaintiff's statements on Jan. 6, 2009, Sept. 11, 2009 and Nov. 17, 2009 violated Article 1, section 1.2.3 of the Rules and Regulations.*fn3 Misconduct Charge 3 alleges that Plaintiff's statements on Jan. 6, 2009, Sept. 11, 2009 and Nov. 17, 2009 violated Article 1, section 1.2.21 of the Rules and Regulations.*fn4 Misconduct charge 4 alleges that Plaintiff's Sept. 11, 2009 statement to the media violated Article 1, section 1.3.18 of the Rules and Regulations.*fn5
On December 10, 2009, Mayor Hannon provided Plaintiff with an Amended Notice of Discipline. This notice added three misconduct charges. These additional charges are based on Plaintiff's use of release time on December 1, 2009. On December 1, 2009, Plaintiff was scheduled to work a shift at the same time he was obligated to meet with counsel for the Union to prepare for an arbitration hearing. Plaintiff alleges that "[i]n accordance with the Collective Bargaining Agreement by and between the Village and the Union, past practice, and the Rules, any Union member or officer was entitled to leave his shift to attend to Union business, including but not limited to preparations for arbitrations, upon the submission of a 'leave slip.'" Plaintiff completed the required leave slip and arranged for coverage during his absence before leaving the station to meet with the Union attorney.
The first additional charge alleges that on December 1, 2009, without authority or notice to the Commanding Officer or Fire Chief, Plaintiff missed two hours of his shift and wrongly ordered a lieutenant from another station to cover for him, thereby endangering fellow firefighters and the Village citizens. This was an alleged violation of Article 1, section 1.2.27 (erroneously identified in the Notice as 1.1.27) of the Rules and Regulations.*fn6 The second additional charge alleges that Plaintiff's December 1, 2009 absence from his shift violated Article 1, section 1.3.1(d) of the Rules and Regulations.*fn7 The third additional charge alleges that Plaintiff's December 1, 2009 absence from his shift violated Article 1, section 1.3.2 of the Rules and Regulations.*fn8
Upon receipt of the charges, Plaintiff demanded a hearing "before an impartial hearing officer." There is an ongoing dispute between Plaintiff and the Village over the method for choosing a hearing officer.*fn9 There has not yet been a hearing or any determination on the charges. Plaintiff's 30-day suspension has expired and he is back at work and receiving full pay.
Plaintiff filed this action on January 20, 2010 alleging that: (1) Defendants violated his First Amendment rights; (2) the Fire Department's Rules and Regulations are unconstitutional insofar as they violate Plaintiff's First Amendment right to free speech; and (3) Defendants violated New York Labor Law § 740. Defendants filed this motion to dismiss on February 16, 2010. Plaintiff opposes the motion and moves for a preliminary injunction to prohibit Defendants from pursuing the current disciplinary charges, instituting further disciplinary actions, and further enforcing the challenged Rules and Regulations. Defendant opposes the preliminary injunction.
When ruling on a motion to dismiss, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Burns v. Trombly, 624 F. Supp.2d 185, 196 (N.D.N.Y. 2008)(citing Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)). "'[A]lthough a court must accept as true all of the allegations contained in a complaint,' that 'tenet' 'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). Therefore, to survive a motion to dismiss, the plaintiff must provide "the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008) (citations omitted). Plaintiff's factual allegations must be sufficient to give the defendant "fair notice of what the claim is and the grounds upon which it rests." Camarillo, 518 F.3d at 156 (citing Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)).
"[W]hether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Harris, 572 F.3d at 72 (citing Ashcroft, 129 S. Ct. at 1950). Review is "limited to the facts 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." Medtech Prods. v. Ranir, LLC, 596 F. Supp.2d 778, 802 (S.D.N.Y. 2008) (citing McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 190 (2d Cir. 2007)); see Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)(citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989)) (the court may review documents integral to the Complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the Complaint as exhibits and any statements or documents incorporated into the Complaint by reference.).
a. Defendants' Motion to Dismiss
Defendants move to dismiss on the grounds that: (1) the action is not ripe for review; and (2) Plaintiff's Labor Law § 740 claim is insufficiently plead. The Court will address these claims seriatim.
1. Whether the Action is Ripe for Review
Defendants argue that Plaintiff's suit is not ripe for review because the disciplinary proceedings against Plaintiff are still pending.They contend the "Court will be in a much better position to review defendants' alleged unlawful conduct once there has been a final determination on the charges." Plaintiff counters that the case is ripe for review because the "constitutional issues [he] seeks to adjudicate question: (1) whether the bringing of the disciplinary charges in the first place was unlawful retaliation for the exercise of his constitutional rights; and (2) whether the Rules, either on their face or as applied to him, are unconstitutional." Plaintiff contends that there is "no need for further adjudication in the disciplinary hearing to answer these questions."
"The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 (2d Cir. 2008) (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior, 583 U.S. 803, 808 (2003) (internal quotation marks omitted)).Defendants' argument is not based on the Article III Case or Controversy Clause, but instead relies on the judicially created doctrine of prudential ripeness. Prudential ripeness is a doctrine of judicial prudence that constitutes an exception to the usual rule that where jurisdiction exists a Federal Court must exercise it. See Grandeau, 528 F.3d at 131. Prudential ripeness looks to whether "the case will be better decided later" and whether "the parties' constitutional rights will be undermined by the delay. Id. The ripeness doctrine's "basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect . . . agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), (overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977)).
The question determining whether a case is prudentially ripe is "whether the alleged policy at this stage is sufficiently definite and clear to permit sound review by this Court" of Plaintiff's allegations. Grandeau, 528 F.3d at 131. "To determine whether a challenge to administrative action is ripe for judicial review, [there is a] two step inquiry, 'requiring [the Court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'" Id at 131-132 (quoting Abbott Labs, 387 U.S. at 149).Defendants argue in this case, "the issues are not fit for judicial decision, and plaintiff will not suffer hardship if judicial review is withheld."
a. Fitness for Judicial Review
Defendants argue that the case is not fit for adjudication because "[a]t this point, no one knows how the disciplinary proceedings will play out." They maintain that "[t]he issues in this lawsuit will be vastly different depending on whether plaintiff is acquitted or found guilty." Specifically, they argue, if Plaintiff is found guilty he may receive additional fines, penalties, and be terminated but if Plaintiff is found not guilty he will be given his back pay and suffer no additional penalties.Plaintiff responds that "there is no lingering question about how the defendants will seek to apply the challenged disciplinary rules; they have already done so" and in doing so unlawfully retaliated against protected First Amendment speech by applying facially unconstitutional rules and regulations.He argues that the outcome of the disciplinary ...