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David William Arnold v. Damian Ulatowski

April 4, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



On August 30, 2010, Plaintiff commenced this action, alleging violations of his First and Fourteenth Amendment rights, as well as violations of his rights secured by Article I, sections 8, 9 and 11 of the New York State Constitution. See Dkt. No. 1. On January 3, 2011, United States District Judge David N. Hurd issued an order dismissing all claims and Defendants, except for Plaintiff's First Amendment claim against Defendant Ulatowski. See Dkt. No. 21 at 1-2.

Currently before the Court is Defendant's motion for summary judgment as to Plaintiff's remaining claim. See Dkt. No. 41.


Plaintiff is a life-long resident of the Town of Clay (the "Town") and he frequently attends and speaks at Town Board Meetings. In the spring of 2010, the Town of Clay sought to change the zoning on land the Town owned in an area generally known as "Three Rivers Point" from a mix of Industrial, Residential and Agricultural uses to a "Planned Development District" ("PDD"). According to Defendant, the specific zone change to PDD had been recommended by New York State as a condition of eligibility surrounding the provision of state grants for continued environmental remediation efforts in the Three Rivers area.

Prior to the zone change, the Town published the proposed zone change in the local newspapers and through a website, and held a public hearing to discuss the issue as part of its June 7, 2010 Town Board Meeting. Although Plaintiff did not attend this meeting, various other residents were in attendance and asked questions regarding the proposed zone change. The public hearing was adjourned pending a recommendation from the Town Planning Board, and was scheduled to be continued on June 21, 2010.

On June 9, 2010, the Town Planning Board met and reviewed the proposed Three Rivers zone change to PDD and unanimously voted to recommend this change to the Town Board. The public hearing was formally continued at the June 21, 2010 meeting. Defendant began this agenda item by explaining to the audience that the matter had been adjourned to obtain the Town Planning Board's recommendation and that it had unanimously recommended the change to PDD. The Town Attorney, Robert Germain, then gave a brief overview of the proposed zone change advanced initially at the June 7, 2010 meeting, including the fact that the zone change was a required element in the Town's eligibility for soil remediation grants from the State and that it was always the Town's intention to change the zone to PDD on these lands.

When Mr. Germain was finished, Defendant then stated that he intended to close the public hearing. At this point, Plaintiff stood up and stated that he had comments to make. See Dkt. No. 41-1 at 25.*fn1 Plaintiff stated in his deposition that he first reiterated a point made by another Town resident, Robert Edick, then "blasted the Town for about a minute and a half" and then stated "'[o]kay, enough of my tirade'" and proceeded to "'comment on the question at hand[.]'" See id. at 28-32. At one point, Mr. Germain interjected and tried again to explain the purpose of the zone change. See id. at 81. After expressing the fact that he was against the zone change, Plaintiff ended his comments by stating that "'[y]ou may be able to close this hearing without lettering me speak, but by no means is this the end of this matter, in fact, it's just the beginning. I'll see you in court.'" See id. at 82.

In support of his motion for summary judgment, Defendant argues that, (1) Plaintiff lacks standing to pursue his First Amendment claim because his right to freedom of speech was not denied and that he has failed to establish that Defendant's conduct had a "chilling effect" on his speech; (2) the meeting was a limited public forum and Defendant's actions amounted to viewpoint neutral and reasonable restrictions on Plaintiff's speech; and (3) he is entitled to qualified immunity. See Dkt. No. 41-5.


A. Summary judgment standard

A court may grant a motion for summary judgment only if "the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted).

Furthermore, in assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable factual inferences in favor of the nonmoving party. See id. at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's statement of material facts; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003).

B. 42 U.S.C. § 1983

Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991)(citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and ...

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