The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Kenneth Kamholtz brings this action pursuant to 42 U.S.C. § 1983 against defendants Yates County, Yates County Sheriff Ronald G. Spike, and Investigator Michael Christensen, alleging that defendants have violated plaintiff's rights under the First Amendment to the United States Constitution. Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, defendants' motions are granted and the complaint is dismissed
In May 2008, plaintiff, who is employed by the Yates County Sheriff's Department ("YCSD") commenced a § 1983 action in this Court against the same defendants as in this action, claiming that his civil rights were violated in connection with his demotion from "Investigator" to "Road Deputy." In that lawsuit, plaintiff asserted several constitutional claims, including a First Amendment retaliation claim.
On December 3, 2008, Judge Michael A. Telesca of this Court issued a Decision and Order dismissing Kamholtz's complaint. 2008 WL 5114964. That decision was affirmed by the Second Circuit in October 2009. 350 Fed.Appx. 589. Among the bases for Judge Telesca's decision was that plaintiff had not engaged in protected speech, and that he therefore could not establish a First Amendment claim. Id. at *4.
Plaintiff filed the complaint in the present action in February 2011. He asserts a single cause of action, alleging that defendants have taken actions against him because of plaintiff's protected First Amendment activity. Specifically, plaintiff alleges that "he was subject to adverse actions in the workplace as a result of engaging in the protected activity of filing his first lawsuit ... and for engaging in other protected First Amendment activity ... ." Dkt. #1 ¶ 87. It is apparent from the complaint, however, that the "other protected First Amendment activity" referred to is the same, or same type of, activity as that which gave rise to plaintiff's prior lawsuit, which Judge Telesca found did not constitute protected activity under the First Amendment.
Plaintiff alleges that he was subjected to various adverse actions as a result of his prior lawsuit. It is unnecessary to set them forth in great detail here, but they include disparaging comments to plaintiff's co-workers and the issuance of a "Memorandum of Counseling" and a "Personnel Complaint" to plaintiff concerning certain matters, which plaintiff contends were unfounded.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111--12 (2d Cir. 2007). In considering whether a pleading is legally sufficient, the court must accept all well-pleaded facts as true and draw all reasonable inferences in the pleader's favor. See Bell Atlantic v. Twombly, 550 U.S. 544, 578 (2007). This presumption of truth does not extend to legal conclusions, however. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949--50 (2009). The standard for motions to dismiss requires the plaintiff's pleading to set forth sufficient facts to establish the claim's legal plausibilityon its face. See Twombly, 550 U.S. at 570. Ultimately, where a plaintiff has not "nudged [his] claim across the line from conceivable to plausible, [his] complaint must be dismissed." Id.
In order to state a claim for First Amendment retaliation, a plaintiff must plead facts showing that: "(1) [he] participated in a protected activity known to the defendant; (2) the defendant took an employment action disadvantaging [him]; and (3) there exists a causal connection between the protected activity and the adverse action." Patane, 508 F.3d at 115 (citing Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004)).
Speech that is "constitutionally protected" under the First Amendment is that which takes place when one speaks as a citizen about a matter of public concern, i.e., a matter of political, social or other concern to the community at large, as opposed to a personal matter. See Garcetti v. Ceballos, 547 U.S. 410 (2006). Thus, when a public employee makes a statement pursuant to his official duties, or one that relates solely to individual grievances rather than to issues of concern to the public generally, a First Amendment retaliation claim does not arise. See id. at 547 U.S. at 422--23.
In order for a lawsuit to constitute First Amendment protected speech, the lawsuit itself must consist of a matter of public concern. See Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008) ("Because Ruotolo's [prior] lawsuit concerns essentially personal grievances and the relief he seeks is for himself alone, the lawsuit is not speech on a matter of public concern and cannot sustain a First Amendment retaliation claim"); see also Storman v. Klein, 395 Fed. Appx. 790, 793 (2d Cir. 2010) ("The ['matter of public concern'] rule applies where the allegedly protected conduct is the filing of a lawsuit"); MacFall v. City of Rochester, 746 ...