Opinion
22-231
03-08-2023
Andrew L. King, Plaintiff-Appellant, Andy King, Plaintiff, v. City of New York, New York City Council, Cory D. Johnson, Steven Matteo, Margaret S. Chin, Karen Koslowitz, Vanessa L. Gibson, Stephen T. Levin, Jimmy Van Bramer, and John and/or Jane Doe, Defendants-Appellees.
For Plaintiff-Appellant: NATHANIEL B. SMITH, Law Office of Nathaniel B. Smith, New York, NY. For Defendants-Appellees: KEVIN OSOWSKI, Assistant Corporation Counsel (Richard Dearing, Devin Slack on the brief), on behalf of Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of March, two thousand twenty-three.
Appeal from a judgment of the United States District Court for the Southern District of New York (Crotty, J.).
For Plaintiff-Appellant: NATHANIEL B. SMITH, Law Office of Nathaniel B. Smith, New York, NY.
For Defendants-Appellees: KEVIN OSOWSKI, Assistant Corporation Counsel (Richard Dearing, Devin Slack on the brief), on behalf of Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.
Present: DEBRA ANN LIVINGSTON, Chief Judge, WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Andrew L. King ("King") appeals from a January 14, 2022, opinion and order of the district court dismissing in its entirety King's Amended Complaint ("Complaint") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See King v. City of New York, 581 F.Supp.3d 559 (S.D.N.Y. 2022). King, a former New York City Council Member, sued Defendants-Appellees after he was disciplined by and then expelled from the City Council. He alleges, inter alia, that he was the victim of a retaliation campaign that deprived him of his rights under the First and Fourteenth Amendments. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
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We review de novo a district court order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir. 2020). The standard for surviving a motion to dismiss is well-established. "[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 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. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
I. Free Speech Claim
The First Amendment "bars state officials from stripping elected representatives of their office based on the political views of such representatives." Velez v. Levy, 401 F.3d 75, 98 (2d Cir. 2005). In the unusual context of intra-legislative retaliation, we evaluate a plaintiff's claim "as a more basic sort of retaliation claim" rather than "as a straightforward employment retaliation suit." Id. at 97 (emphasis omitted). Accordingly, an elected official plaintiff may state a claim for such retaliation by pleading that "(1) his actions were protected by the First Amendment; and (2) the defendant's alleged conduct was in response to that protected activity." Id. at 98 (citing Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). We consider as actionable a defendant's alleged retaliatory conduct that triggers official discipline or expulsion, but not expressive conduct that may "set into motion" those actions. Id. at 99; cf. Houston Cmty. Coll. Sys. v. Wilson, 142 S.Ct. 1253 (2022) (holding the censure of an elected official non-actionable, without reaching the question of expulsion or other punishment).
Here, King argues that the Complaint plausibly alleges that Defendants-Appellees retaliated against him based on his protected activity, namely: King voted against proposed legislation "such as [1] supporting gay marriage or [2] mandating that public bathrooms in the City be deemed 'gender neutral' or [3] giving children the option to change their gender status of male or female on birth certificates" because "he and many of the members of the 12th District believed that the proposals were inconsistent with the Bible's teachings on homosexuality," JA 20; King's refusal to participate in a ceremony organized by Defendant-Appellee Council Member Jimmy Van Bramer to honor the victims of the Pulse nightclub shooting, JA-22; and King's "unwillingness to support the pro-LGBT agenda of the pro-LGBT faction within the City Council" more generally, JA-23. For the following reasons, we disagree.
To begin, the Complaint acknowledges that the Council's investigations of King were not instigated by Defendants-Appellees but rather began when a City Council employee, Chloe Rivera, made a sexual harassment complaint against King in 2017: "According to Rivera, sometime in 2017 King shook Rivera's hand, invited her to King's wedding anniversary ball and suggested that she attend the event, smile and wear a pretty gown." JA-23-24. The pleadings also allege that one of King's staffers complained about workplace harassment to the New York State Department of Labor in 2019. JA-25. As to Rivera's complaint, King conclusorily asserts that DefendantAppellee Van Bramer urged Rivera to file it, but pleads no supporting facts. And the Complaint alleges nothing to suggest Defendants-Appellees played a role in instigating the 2019 workplace harassment complaint, nor in allegations made in 2020 by two other staffers regarding, respectively, a sexually harassing remark by King and King's demand of a kickback. JA-39-40. King further asserts that an inference of retaliation can be drawn from the Council's supposedly more favorable treatment of two other Council Members disciplined for misconduct. JA-27-28, 37-38. But neither individual is alleged to have engaged in similarly serious misconduct -including the harassment of staff members, the improper use of government funds, and the solicitation of a kickback. Nor do the Council's alleged procedural lapses plausibly support a retaliatory inference. The facts King pleads - involving a scheduling dispute, document access delay, limited cross-examination, and a conclusory claim that the Council had prejudged the outcome, JA-32-34 - do not suggest deviations from the Council's normal process. The pleadings, moreover, state that many individual Council Members, not alleged to share Defendants-Appellees' supposed retaliatory motives, cast identical votes as the named Defendants-Appellees.
In the face of these bare allegations, an "obvious alternative explanation" is available. Twombly, 550 U.S. at 567. The pleadings make plain the sweep of the Council's misconduct allegations against King. In 2019, the Ethics Committee investigated charges that King retaliated against his staff; permitted workplace harassment within his office; permitted his spouse to use government resources for her personal purposes; failed to reimburse staff for expenses; and objected when a staff member posted images of the New York City Pride March to his personal Twitter account. JA-30-31. In 2020, the Ethics Committee investigated charges that King failed to pay his earlier fine; had not cooperated with the monitor overseeing his office; made a harassing comment to one staffer about her menstruation; and demanded a kickback from another. JA-39-40. These allegations render it implausible that the Defendants-Appellees' actions were motivated by political disagreements from years earlier. Moreover, unlike the summary process infected with political bias described in Velez, here the Complaint's own allegations suggest that the Council acted with caution, voting down a motion to expel King once, JA-36, and expelling him after producing a detailed investigation, id. at 30. It is King's burden to plead sufficient "specific and detailed factual allegations, which are not stated in wholly conclusory terms," to render his complaint plausible. Velez, 401 F.3d at 97 (quotation marks and citation omitted). We conclude that he has not done so. We therefore AFFIRM the district court's dismissal of King's free speech claim.
Of these, only the latter is plausibly protected political speech that is protected against retaliation by the First Amendment. But King's retaliation claim based on his comments about the tweet are waived: His opening brief makes no argument regarding the events or comments surrounding the tweet, and King "denies making the statement" altogether in his reply brief . Appellant's Reply Br. at 6 n.3. We likewise hold that King has waived his Monell and Article 78 claims by failing to address them on appeal.
II. Free Exercise Claim
The Supreme Court has held that "[a] plaintiff may . . . prove a free exercise violation by showing that 'official expressions of hostility' to religion accompany laws or policies burdening religious exercise." Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2422 n.1 (2022) (quoting Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm'n, 138 S.Ct. 1719, 1732 (2018)). On a motion to dismiss, we have required a plaintiff to plead sufficient facts to raise a "slight suspicion" of hostility to religious beliefs. New Hope Fam. Servs., Inc. v. Poole, 966 F.3d 145, 165 (2d Cir. 2020). There are no such facts pled with regard to the actions taken against King. For the reasons already stated, the Complaint, fairly read, does not raise any plausible suspicion that King's religious exercise was the "object" of the Council's decision to expel him. Kennedy, 142 S.Ct. at 2422 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)); New Hope, 966 F.3d at 163. Instead, the only plausible inference of objective to be drawn from the Council's actions is that the Council overwhelmingly was motivated to discipline King for misconduct. We therefore AFFIRM the district court's dismissal of King's free exercise claim.
For similar reasons, King's equal protection claim and his 42 U.S.C. §1983 claim for abuse of process were properly dismissed. As to the equal protection claim, King failed plausibly to plead that the Council was "motivated by an intention to discriminate on the basis of impermissible considerations." Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019). As to King's malicious abuse of process claim, assuming arguendo that it is otherwise viable, King failed to do more than conclusorily assert a retaliatory motive while also pleading facts that undercut the plausibility of any allegation that the Council pursued an improper collateral objective outside the legitimate ends of its disciplinary process. See Savino v. City of New York, 331 F.3d 63, 69-70 (2d Cir. 2003) (noting that such a claim "lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act, (2) with intent to do harm without excuse o[r] justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process"). Accordingly, this claim, too, was properly dismissed.
III. Procedural Due Process Claim
Next, assuming arguendo that King had a constitutionally protected interest, his procedural due process claim was also properly dismissed. According to the allegations in the complaint, King received extensive discovery materials from the Council in 2019 and was afforded a predeprivation hearing before the Ethics Committee which heard statements from witnesses. JA-31, JA-34. King alleges he was given an opportunity to address the full Council before it adopted the Committee's recommendations. JA-36. He also alleges that, in 2020, he was given confidential notice of new charges and again received an Ethics Committee hearing, at which he cross-examined witnesses. JA-39, JA-41. He alleges that he was again afforded the opportunity to defend himself before the full Council. JA-44. After the Council voted to expel him, King also had the opportunity to seek post-deprivation relief in New York state court under Article 78 of the New York Civil Practice Law and Rules. See Locurto v. Safir, 264 F.3d 154, 173, 175 (2d Cir. 2001) (approving of a "minimal" pre-deprivation hearing followed by the availability of an Article 78 proceeding, which "constitutes a wholly adequate post-deprivation hearing for due process purposes"). On its face, the Complaint thus alleges constitutionally adequate, not infirm, procedures. We therefore AFFIRM the district court's dismissal of King's procedural due process claim.
The district court took notice of the fact that "[t]he parties acknowledge that King initiated, and lost" in that proceeding. JA-77.
As to his substantive due process claim, we have held "where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process." Velez, 401 F.3d at 94. The district court therefore correctly held that King's substantive due process claim was necessarily subsumed into his other "more particularized allegations." Id.
VII. State Law Claims A. State Constitutional and Malicious Abuse of Process Claims
King, who concedes he did not satisfy New York State's notice of claim rule as to his state constitutional and malicious abuse of process claims, challenges on appeal the district court's determination that the public interest exception to this rule is inapplicable. JA-95-96. We agree with the district court. The exception applies to "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group." 423 S. Salina St., Inc. v. City of Syracuse, 68 N.Y.2d 474, 493 (1986) (emphasis omitted). But here, King's Complaint seeks personal redress for private injuries allegedly imposed by the City Council. And where "the relief sought [is] limited to enforcement of plaintiff's private rights rather than the vindication of rights of [a] similarly situated [class]," the public interest exception does not apply. Id.
B. NYCHRL Claim
Finally, to state a discrimination claim under Section 8-107 of the New York City Human Rights Law (NYCHRL), a plaintiff must plead that "(1) he was a member of a protected class; (2) he was competent to perform the job in question, or was performing the job duties satisfactorily; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances that give rise to an inference of discrimination." Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). We again agree with the district court that King failed to plausibly allege an impermissible motive because, for the same reasons we have already identified, he has failed to plausibly allege that the Defendants-Appellees were motivated by anything other than King's misconduct in office. We therefore AFFIRM the district court's dismissal of King's NYCHRL claim.
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We have considered Plaintiff-Appellant's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
As to King's conspiracy claim under 42 U.S.C. § 1985(3), we affirm because King failed to plead facts that give rise to a plausible inference that his allegation of a conspiracy is true or that there was a "meeting of the minds" among the conspirators. JA-47; see Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003).