Paladino v. Seals-Nevergold

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

CARL PALADINO, :

:

Plaintiff, :

:

v. : File No. 17-cv-538

:

DR. BARBARA SEALS-NEVERGOLD, :

SHARON BELTON-COTTMAN, HOPE :

JAY, DR. TERESA HARRIS-TIGG, :

JENNIFER MACOZZI, PAULETTE :

WOODS, CITY OF BUFFALO PUBLIC :

SCHOOL DISTRICT, and the :

BOARD OF EDUCATION FOR THE :

CITY OF BUFFALO PUBLIC SCHOOL :

DISTRICT, :

:

Defendants. :

OPINION AND ORDER

Plaintiff Carl Paladino brings this action claiming

violations of his First Amendment rights. Pending before the

Court is a motion to dismiss the Second Amended Complaint, filed

by Defendants Board of Education for the City of Buffalo Public

Schools (“Board of Education” or “Board”), the City of Buffalo

Public School District, and six elected Board members

(“individual Defendants”). For the reasons set forth below, the

motion to dismiss is granted.

Factual and Procedural Background

The Second Amended Complaint asserts that Carl Paladino has

been active in Western New York business and politics for

decades. In 2010, he was the Republican candidate for the office

of Governor of New York.

In December 2106, a Buffalo magazine, Artvoice, posed four

questions to various local leaders including Paladino, who at the

time was a member of the Board of Education. Paladino drafted an

initial set of responses that he intended to send via email

exclusively to a group of his friends. Those draft responses

disparaged public figures, including former President Barack

Obama and his wife. Paladino mistakenly included Artvoice on the

email distribution list, and on December 23, 2016 his draft

responses were published. Paladino asserts that he wrote his

responses in his capacity as a private individual, and not as an

elected member of the Board.

Paladino’s pleadings allege that after the publication by

Artvoice, certain Board members made efforts to have him removed

from his elected seat. The Second Amended Complaint refers to

those six Board members as the “Majority Faction,” with Paladino

and two others making up the “Minority Faction.” At a meeting on

December 29, 2016, the Majority Faction publicly censured

Paladino and voted in favor of a resolution demanding his

resignation. The resolution stated that if Paladino failed to

resign, the Board would file a petition for his removal.

Paladino did not resign. On January 4, 2017, the Majority

Faction, joined by one member of the Minority Faction, held a

special meeting and chose to retain counsel to help them bring a

petition for removal against Paladino under New York Education

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Law Section 306. Paladino alleges that the special meeting

violated the New York State Open Meetings Law. He also claims,

upon information and belief, that counsel ultimately advised the

Majority Faction that any attempt to remove him for his

controversial communications in December 2016 would violate the

First Amendment and subject the Board and its individual members

to civil liability. Consequently, the Majority Faction allegedly

coordinated with individual petitioners and the NAACP to ensure

that non-government parties filed Section 306 petitions.

On January 5, 2017, Paladino published an article in

Artvoice relating to the Board’s collective bargaining

negotiations with the teachers’ union. Certain Board members

believed that the article revealed confidential information

discussed during the Board’s executive session, and that its

publication constituted grounds for Paladino’s removal. When the

idea of removing Paladino was challenged by Minority Faction

member Patricia Pierce, one Board member allegedly replied: “we

can’t get him for [his December 23, 2016] speech, but we can get

him for this.”

On January 18, 2017, teachers’ union New York State United

Teachers filed a petition for Paladino’s removal from the Board.

The petition asserted a violation of the Board’s executive

session privilege and also included a claim for removal based

upon Paladino’s December 23, 2016 speech. On January 23, 2017,

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the Buffalo Parent Teacher Organization (“BPTO”) filed a petition

comprised of those same allegations. Paladino claims that both

petitions were filed as part of a coordinated effort with the

Defendants, as evidenced by the billing records of the Board’s

retained counsel.

On August 17, 2017, the Commissioner removed Paladino from

his elected position on the Board, finding that he had improperly

disclosed confidential information from an executive session.

The Commissioner’s decision was subsequently upheld by the New

York State Supreme Court, Appellate Division, Third Department.

That court returned Paladino’s requests for declaratory judgment

to the Albany County Supreme Court, which denied those claims and

entered final judgment.

The Second Amended Complaint asserts the following causes of

action: (1) retaliation for private speech by voting for a public

censure; (2) retaliation for private speech by passing

resolutions on December 29, 2016 (demanding Paladino’s

resignation) and January 4, 2017 (to retain counsel); (3)

retaliation for public political speech by authorizing and

bringing a petition for removal; (4) deprivation of civil rights

by filing a removal petition on the basis of Paladino’s comments

about a public contract, which was a pretext for retaliation on

the basis of his private comments; (5) conspiracy to deprive

Paladino of his civil rights by hiring counsel who, in turn,

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conspired with private actors; (6) retaliatory investigation into

private political speech; (7) retaliatory investigation into

public political speech; (8) retaliatory inducement of

prosecution; (9) declaratory judgment that Defendants engaged in

retaliation in violation of Paladino’s First Amendment rights;

and (10) declaratory judgment that details concerning the

negotiation of a public contract are not confidential.

Defendants now jointly move to dismiss the Second Amended

Complaint, arguing failure to state a claim and lack of subject

matter jurisdiction. The motion is opposed.

Discussion

I. Motion to Dismiss Standard

To survive a motion to dismiss under Rule 12(b)(6), a

complaint must plead “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). A claim is facially plausible “when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A complaint is properly dismissed where, as a matter of

law, “the allegations in a complaint, however true, could not

raise a claim of entitlement to relief.” Twombly, 550 U.S. at

558. When resolving a motion to dismiss, the Court must assume

all well-pleaded facts to be true. See Iqbal, 556 U.S. at 678.

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That said, pleadings that offer only “labels and conclusions” or

“a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555.

“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks

the statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A

plaintiff asserting subject matter jurisdiction has the burden of

proving by a preponderance of the evidence that it exists.”

Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.

2008) (citation omitted). When considering subject matter

jurisdiction, the Court may refer to matters outside the

pleadings. Id.

II. Actionable Conduct

Defendants first argue that Paladino cannot bring a First

Amendment retaliation claim against Board members who advocated

for, but did not have the power to execute, his removal. Removal

power rested with the Commissioner of Education. Paladino

submits that by threatening to file a petition if he did not

resign, and then voting to authorize the filing of a petition,

Defendants’ conduct was actionable.

Defendants rely on Velez v. Levy, 401 F.3d 75 (2d Cir.

2005), in which an elected member of the New York City community

school board claimed that she was removed from office based on

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allegations that were fabricated by fellow board members.

Plaintiff Velez brought her claims against those board members,

three investigators, and the school district Chancellor alleging,

among other things, that her removal was in retaliation for her

political views and thus violated her rights under the First

Amendment. Defendants moved to dismiss under Rule 12(b)(6).

On appeal, the Second Circuit first held that “the First

Amendment bars state officials from stripping elected

representatives of their office based on the political views of

such representatives.” Velez, 401 F.3d 75 at 98. The court

further held, however, that only the school district Chancellor

was subject to First Amendment liability. While the

investigators were not alleged to have been politically

motivated, the board members had “no legal authority over the

Chancellor’s removal decision” and had “acted in a legislative

capacity.” Id. at 99. “Accordingly, though the actions of the

board member defendants undoubtedly set into motion Velez’s

ouster, those actions cannot . . . support a First Amendment

retaliation claim.” Id.

Here, the defendant Board members submitted a petition for

Paladino’s removal based upon his statements regarding collective

bargaining negotiations. Board members also allegedly

coordinated with non-governmental entities and encouraged them to

file their own petitions. While Paladino brings claims regarding

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efforts to convince him to resign, those efforts were

unsuccessful. The Court also notes that, upon advice of counsel,

the Board decided not to take formal action with respect to the

comments published in Artvoice in December 2016. And though

Paladino brings causes of action relating to the Board

authorizing an investigation, his actions were open, publicly

documented, and are not in dispute.

The only formal Board actions of consequence were the

retention of counsel and the consequent resolution to file a

petition with the Commissioner. That petition, as well as any

alleged communications through counsel with other interested

parties, “set into motion” Paladino’s ouster. Id. The petition

did not actually remove Paladino from his position, as that power

lay solely with the Commissioner. Accordingly, under Velez, the

Board members’ conduct did not give rise to a plausible First

Amendment claim. Id.

Paladino cites Okwedy v. Molinari, 333 F.3d 339 (2d Cir.

2003), which involved a public official, Molinari, complaining to

a billboard company about a religious organization’s signs

proclaiming homosexuality to be a sin. The billboard company

removed the signs, and the religious organization filed suit

against Molinari. Although Molinari did not have regulatory or

other direct decision-making authority over the billboard

company, the Second Circuit concluded that the company “could

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reasonably have believed that Molinari intended to use his

official power to retaliate against it if it did not respond

positively to his entreaties.” Okwedy, 333 F.3d at 344. “A

public official defendant who threatens to employ coercive state

power to stifle protected speech violates a plaintiff’s First

Amendment rights, regardless of whether the threatened punishment

comes in the form of the use (or, misuse) of the defendant’s

direct regulatory or decisionmaking authority over the plaintiff,

or in some less-direct form.” Id.

Okwedy is distinguishable. Molinari was a public official

who held power, albeit indirect power, over private citizens. It

was on that basis that the Second Circuit found his communication

arguably coercive. Here, the Board members were at first

communicating with a peer over whom they had no such power.

Their subsequent communications, which Paladino also considers

actionable, were with counsel and the Commissioner of Education.

While Paladino tries to paint the Board as highly influential

given its role in the petition process, the fact remains that it

was powerless to remove him without a ruling by a separate party.

Accordingly, Okwedy is not controlling.

Paladino also claims support from Zehner v. Jordan-Ellbridge

Board of Education, 5:11-CV-1202, 2019 WL 4083040 (N.D.N.Y. Aug.

29, 2019), in which defendants moved for dismissal of plaintiff’s

retaliation claims due to (1) lack of personal involvement and

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(2) qualified immunity. The question of whether the defendants’

conduct was actionable under the First Amendment was not raised.

The case also involved tangible actions by a school board against

an employee, including his removal from public meetings and

suspension. Those facts do not align with either this case or

the precedent set forth in Velez.

The Second Circuit has long held that where a legislative

body retaliates against a plaintiff by voicing its opinion,

“rather than exercising some sort of legal authority, . . .

however outrageous the legislators’ statements were, no valid

federal retaliation claim exist[s].” Velez, 401 F.3d at 99

(discussing X–Men Security, Inc. v. Pataki, 196 F.3d 56 (2d Cir.

1999)). As the court noted in X-Men, “‘[t]he ‘critical line for

First Amendment purposes must be drawn between advocacy, which is

entitled to full protection, and action, which is not.’” 196

F.3d at 71 (quoting Healey v. James, 408 U.S. 169, 192 (1972)).

Here, the Board had no legal authority to remove Paladino, and

instead voiced its opinion while advocating for an outcome.

Consequently, the Board members cannot be liable for a First

Amendment violation.

III. Qualified Immunity

The Board members, in their individual capacities, also

claim qualified immunity. “Under the doctrine of qualified

immunity, a government official performing discretionary

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functions is shielded from liability for civil damages if his

conduct did not violate plaintiff’s clearly established rights or

if it would have been objectively reasonable for the official to

believe that his conduct did not violate plaintiff’s rights.”

Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003).

The defense of qualified immunity is usually unavailable to

support a grant of a Rule 12(b)(6) motion unless “the facts

supporting the defense appeared on the face of the complaint.”

McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004). “The

plaintiff is entitled to all reasonable inferences from the facts

alleged, not only those that support his claim, but also those

that defeat the immunity defense.” Id.

Here, Velez controls the question of liability under the

First Amendment. In light of Velez, the Court finds that there

was no actionable First Amendment violation, that any alleged

violation was not clearly established, and that it would not have

been objectively reasonable for Board members to believe that

they were violating Paladino’s rights. The individual Defendants

are therefore entitled to qualified immunity.1

1 Defendants also argue for the application of collateral

estoppel, contending that Paladino’s First Amendment claims were

addressed in the Commissioner’s ruling. That ruling, however,

specifically stated that “an appeal to the Commissioner is not

the proper forum to adjudicate novel issues of constitutional law

. . . , and [] a novel claim of constitutional dimension should

be properly presented to a court of competent jurisdiction.” The

Commissioner also cited this pending litigation. Given those

comments, the Court is reluctant to consider the constitutional

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IV. Conspiracy Claim

Defendants contend that without an underlying constitutional

violation, Paladino cannot bring a plausible claim of conspiracy

to deprive him of his rights. A viable claim of conspiracy under

Section 1983 requires allegations showing “(1) an agreement

between two or more state actors or between a state actor and a

private entity; (2) to act in concert to inflict an

unconstitutional injury; and (3) an overt act done in furtherance

of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d

65, 72 (2d Cir. 1999). Consequently, “absent an underlying

constitutional violation on which to base a § 1983 conspiracy

claim, a plaintiff’s conspiracy claim fails as a matter of law.”

Bertuglia v. City of New York, 839 F. Supp. 2d 703, 728 (S.D.N.Y.

2012) (citation omitted); see also Curley v. Village of Suffern,

268 F.3d 65, 72 (2d Cir. 2001) (“Since plaintiff cannot establish

a claim for false arrest or the use of excessive force, he may

not maintain a § 1983 cause of action for conspiracy.”). Here,

because there was no unconstitutional conduct, Paladino has

questions presented in this case as having been fully and fairly

litigated in the state administrative proceeding, and thus will

not address the matter of collateral estoppel. The Court

nonetheless acknowledges the following insight offered by the

Commissioner: “[T]he First Amendment retaliation framework is

ill-suited to the facts presented in the instant proceeding. As

petitioner notes, recognition of such a defense would immunize

board members who have committed a wilful violation of the law

from removal if they happened to engage in protected speech prior

to the violation.”

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failed to state a plausible claim of conspiracy under Section

1983.

V. Claims Against the Buffalo School District

There are no direct allegations against the City of Buffalo

School District. As Defendants concede, the pleadings could be

read to include actions by the District’s General Counsel, which

included attending meetings where certain actions were taken.

Paladino has not responded to the motion to dismiss the School

District, and given that the only claims arguably involving the

District are indirect, vague, or conclusory, the motion to

dismiss all claims against the School District is granted.

VI. Other Causes of Action

Defendants submit that Paladino’s fourth, sixth, seventh,

eighth, and ninth causes of action merely repeat his other

constitutional claims, and must therefore be dismissed as

redundant. As noted previously, those causes of action include

claims for: pretextual deprivation of civil rights by filing a

removal petition on the basis of Paladino’s comments about a

public contract (Count 4); retaliatory investigation into private

political speech (Count 6); retaliatory investigation into public

political speech (Count 7); retaliatory inducement of a

prosecution (Count 8); and declaratory judgment that Defendants

engaged in unlawful retaliation (Count 9).

The Court agrees that, though pleading in the alternative is

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permitted, each of these causes of action is premised upon

essentially the same First Amendment allegation. Paladino

submits that these other claims involve intent, and that

discovery is required. Without a plausible legal claim, however,

Paladino’s suit cannot move forward.

As discussed above, the primary conduct of consequence by

the Board was the filing of a petition for removal. That conduct

is not actionable under the First Amendment. Other alleged Board

actions, such as the retention of counsel and investigating

Paladino’s conduct, were a part of the broader conduct that

culminated in the removal petition and are thus not actionable.

Cf. In Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23 (1st Cir.

1996) (rejecting claim that elected members of the Puerto Rico

Senate violated Governor’s First Amendment rights when they held

investigative hearings); Mousaw v. Bd. of Educ. of Colton

Pierrrepont Cent. Sch. Dist., No. 7:07-CV-1006, 2011 WL 1667909,

at *6 (N.D.N.Y. May 3, 2011) (holding that allegation of

retaliatory investigation failed because board had no power to

remove elected official without concluding administrative

process). With respect to Paladino’s tenth cause of action,

requiring an interpretation of state law, the claim is dismissed

without prejudice for lack of federal subject matter

jurisdiction. See Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir.

1998) (“In general, where the federal claims are dismissed before

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trial, the state claims should be dismissed as well.”). The

remaining claims are therefore dismissed.

Conclusion

For the reasons set forth above, Defendants’ motion to

dismiss is granted.

DATED at Burlington, Vermont, this 15th day of September,

2020.

/s/ William K. Sessions III

William K. Sessions III

U.S. District Court Judge

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