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December 1, 2010


The opinion of the court was delivered by: Denis R. Hurley Senior District Judge


APPEARANCES: Leeds Morelli & Brown, P.C.

Attorneys for Plaintiff One Old Country Road, Suite 347 Carle Place, New York 11514 By: Rick Ostrove, Esq.

CRONIN & BYCZEK, LLP Attorneys for Defendants 1983 Marcus Avenue, Suite C-120 Lake Success, New York By: Linda M. Cronin, Esq.

HURLEY, Senior District Judge:

Plaintiff Lorenzo Licopoli ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 asserting violations of his First and Fourteenth Amendment rights. Presently before the Court is defendants' motion to dismiss the complaint. For the reasons set forth below, the motion is granted.


The following allegations are taken from the complaint.

Since August 2001, Plaintiff has been the Superintendent of Schools for defendant Mineola Union Free School District (the "District"). Defendants Larraine Salvatore ("Salvatore"), Terence Hale ("Hale"), and William Hornberger ("Hornberger") are member of the District's Board of Education.

At a September 2008 public meeting of the Board of Education, Salvatore distributed a document which she claimed contained specific examples of Plaintiff's failure to carry out his duties but which Plaintiff asserts contained false and defamatory statements. Salvatore also distributed a written explanation of her evaluation of Plaintiff, which he also labels as false and defamatory. In October 2008, Plaintiff filed a defamation action against Salvatore in the Supreme Court of the State of New York, Nassau County based on the documents she distributed at the September board meeting.

At the January 2009 meeting of the District Board of Education a motion was made and seconded (by non-defendant member of the board) to approve a 3% merit raise (seemingly only for Plaintiff, although the complaint is unclear in that regard) for the 2008/09 school year. Pursuant to his contract with the District, Plaintiff is eligible to receive a merit increase of up to 3% of his previous year's salary based upon the achievement of goals mutually agreed upon by the Board of Education and Plaintiff. Prior to 2009, Plaintiff was offered a merit increase of 2% to 3% each year, except for one when the matter of his merit increase was "inadvertently excluded from the board meeting." Each year that he was offered the merit increase, Plaintiff declined the offer so that the money could be used by the School District for the betterment of the District and its students. Prior to the vote on the increase at the January 2009 board meeting Plaintiff stated that he would again return the money to the District.

During the discussion of the merit increase resolution, none of the Board members argued that Plaintiff has failed to meet the goals agreed upon by him and the Board. In fact, the only discussion of his performance was by a non-defendant board member and was complementary. Hale, however, did indicate that he was angry that Plaintiff had sued Salvatore. The resolution was defeated with Salvatore, Hale, and Hornberger voting against it "despite [Plaintiff] meeting the goals agreed upon by him and the Board." According to the complaint, the vote against Plaintiff's merit increase was "motivated in whole or in substantial part to retaliate against Plaintiff for his filing of the [s]tate [court] [a]ction." It is also asserted that his contact gave him a vested property interest in the merit increase and thus was entitled to a pre-deprivation due process hearing which he did not receive.


I. Motion to Dismiss: Legal Standards

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).

First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (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." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 555 (citations and internal quotation marks omitted).

More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

Second, "[w]hen there are well-pleaded factual allegations a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. The Court defined plausibility as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a ...

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