The opinion of the court was delivered by: Siragusa, J.
This civil rights case is before the Court on Defendants' motion to dismiss (Docket No. 9) pursuant to Federal Rule of Civil Procedure 12. For the reasons stated below, the motion is granted in part, denied in part.
The complaint alleges that Plaintiff Jason M. Dininny ("Dininny") was a police officer with the City of Corning Police Department and president of the Crystal City Police Benevolence Association, the union representing Corning police officers. The complaint further alleges that defendant Salvatore J. Trentanelli ("Trentanelli"), chief of the Corning Police Department, retaliated against Dininny "for Dininny's appropriate and lawful participation and advocacy on behalf of the Union.." Dininny now sues for violation of his Federal constitutional rights, and further alleges State constitutional and common law claims.
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. W hile 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 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, 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.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "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[,]" as opposed to merely conceivable.)
W hen applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)).
In opposing Defendants' motion to dismiss, Dininny argues for the application of the Second Circuit's analysis in Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007). (Pl.'s Mem. of Law, at 7.) However, the U.S. Supreme Court, in Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1954 (2009) specifically reversed and remanded Iqbal v. Hasty ("The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."). In its decision, the Supreme Court clarified the standard to apply in assessing the viability of complaints under the Federal Rules of Civil Procedure. Justice Kennedy wrote for the majority:
"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, 550 U.S. 544, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Bell Atlantic v. Twombly, 550 U.S. 544], at 570. 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. Id., at 556. 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. Ibid. W here a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557 (brackets omitted).
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157--158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. W hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. 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.
Dininny has sued Trentanelli in both his official and personal capacities, as well as the City of Corning, a municipality. W ith regard to "official capacity", the Supreme Court has stated:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237--238 (1974). Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon, supra, 469 U.S., at 471-472.
Kentucky v. Graham, 473 U.S. 159, 165-166 (1985). The Supreme Court also held that,
[A] governmental entity is liable under § 1983 only when the entity itself is a "'moving force'" behind the deprivation, Polk County v. Dodson, 454 U.S. 312, 326 (1981) (quoting Monell, supra, 436 U.S., at 694); thus, in an official-capacity suit the entity's "policy or custom" must have played a part in the violation of federal law. Monell, supra; Oklahoma City v. Tuttle, 471 U.S. 808, 817--818 (1985); id., at 827--828 (BRENNAN, J., concurring in judgment).
Graham, 473 U.S. at 166. Defendants contend that Dininny has not met this "policy or custom" requirement in his complaint:
Here, because the complaint contains no allegations whatsoever concerning the existence of a policy, practice or custom of the City-let alone allegations that a policy, practice or custom caused Plaintiff's alleged constitutional deprivations-Plaintiff's § 1983 claims must be dismissed against the City and the Chief in his official capacity. Consequently, Plaintiff fails to plead anything other than a non-actionable theory of respondeat superior against the City based on the Chief's alleged actions, and his claims under § 1983 must therefore be dismissed in their entirety. (Def.s' Mem. of Law, at 18--19 (footnote omitted).) Dininny has made no argument concerning this point, and the Court finds nothing in the complaint alleging that Tretanelli's acts were pursuant to a policy or custom of the municipality. Accordingly, the claims against the City of Corning and Tretanelli in his official capacity must be dismissed.
Federal Constitutional Claims Under 42 U.S.C. § 1983*fn1
Dininny raises several federal constitutional claims pursuant to 42 U.S.C. § 1983. Included are allegations that Defendants violated his rights to free speech and association, his right to due process, his right to equal protection "and other rights ...