# Paladino v. Seals-Nevergold

> District Court, W.D. New York · September 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10362994

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10362994

## How later opinions describe it (automated extraction)

- rejecting claim that elected members of the Puerto Rico Senate violated Governor’s First Amendment rights when they held investigative hearings

## Opinion text

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
2
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,
3
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,
4
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.
5
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
6
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
7
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
8
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
9
(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
10
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
11
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.”
12
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
13
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
14
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

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362994. Public record. Not legal advice.