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Mongielo v. Smith

United States District Court, W.D. New York

May 16, 2017



          HON. MICHAEL A. TELESCA, United States District Judge


         Represented by counsel, David Mongielo (“Plaintiff”) instituted this action pursuant to 42 U.S.C. § 1983 alleging that the named defendants retaliated against him for exercising his First Amendment rights. Peter Smith and the South Lockport Fire Company, Inc., and Marc R. Smith, respectively have filed Motions to Dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the motions are denied.


         Because the matter is at the motion to dismiss stage, the following factual summary presumes the truth of the allegations in the Complaint and draws all reasonable inferences in Plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

         Prior to November 5, 2013, Plaintiff was an active member of the South Lockport Fire Company, Inc. (“the Fire Company”). On or about November 5, 2013, he wrote and published a local “newspaper, ” “the Lockport Community News, ” that contained several articles “critical” of the Lockport Town Board generally, and Marc R. Smith (“Marc Smith”), a member of the Lockport Town Board, in particular. At the time of publication, Plaintiff was the Conservative Party candidate in the upcoming election for Lockport Town Supervisor, and was running against Marc Smith. One article accused “top town officials, ” including Marc Smith, of “ballot manipulation.” In the same newspaper, Plaintiff placed an advertisement for a December 8, 2013 fund raiser to benefit the Fire Company.

         After the newspaper was published, Peter Smith of the Fire Company sent a text to Plaintiff stating as follows:

I hate to do this but I feel I need to suspend u [sic] until Friday when we have a special ex meeting. I ts [sic] over the articles/ad in the community news. Judt [sic] got off the phone with marc smith and his council is all over this. If we don't act I'm afraid the situstion [sic] will only worsen. So for now please stay away per your suspension. We will discuss it further on Friday.

(Complaint (“Compl”) (Dkt #1), ¶ 18). Peter Smith informed Plaintiff that Marc Smith was threatening to withdraw Town funding from the Fire Company. Plaintiffs states that as a result of this alleged threat by Marc Smith, he resigned from the Fire Company “under duress.” (Id. ¶ 19). According to Plaintiff, his resignation was “ineffective” under the Fire Company's bylaws. (Id. ¶ 20). Plaintiff also alleges that he was never reinstated, and his requests for reinstatement were ignored by the Fire Company. According to Plaintiff, his suspension, and de facto termination, were done in retaliation for the exercise of his First Amendment right to free speech.

         RULE 12(b)(6) STANDARD

         “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “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. Although a complaint need not provide “detailed factual allegations, ” it nevertheless must assert “more than labels and conclusions”; “a formulaic recitation of the elements of a cause of action” will not suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). The plaintiff must plead facts that “raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id. (citations omitted). For its part, the court must accept, as true, all factual allegations in the complaint, and must draw all reasonable inferences in favor of the nonmovant. ATSI Communications, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted).

         II. Retaliation under the First Amendment

         “To state a § 1983 claim, a plaintiff must establish that the defendant deprived him of a federal or constitutional right while acting under the color of state law.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011) (citing Haywood v. Drown, 556 U.S. 729, 129 S.Ct. 2108, 2111 (2009)). “There is no question, ” the Supreme Court has said, “that speech critical of the exercise of the State's power lies at the very center of the First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991). As a result, “a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed” by the First Amendment. Friedl v. City of N.Y., 210 F.3d 79, 86-87 (2d Cir. 2000); see also Velez v. Levy, 401 F.3d 75, 97 (2d Cir. 2005). To state a claim for First Amendment retaliation, a plaintiff must plausibly allege that “‘(1) his speech or conduct was protected ...

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