Campbell v. The New York State Office of Court Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

MATTHEW CAMPBELL,

Plaintiff, 1:23-cv-1594

(ECC/DJS)

v.

THE NEW YORK STATE OFFICE OF COURT

ADMINISTRATION, HON. NORMAN ST.

GEORGE in his Individual Capacity, and HON.

VITO CARUSO in his Individual Capacity,

Defendants.

James B. Tuttle, Esq., for Plaintiff

James D. Taylor, Esq., for Defendants

Hon. Elizabeth C. Coombe, United States District Judge:

MEMORANDUM-DECISION AND ORDER

On December 18, 2023, Plaintiff Matthew Campbell initiated this action pursuant to 42

U.S.C. §§ 1983 and 1988 against Defendants The New York State Office of Court Administration

(OCA), the Honorable Norman St. George, and the Honorable Vito Caruso, arising from Plaintiff’s

termination from his employment as a New York State Court Officer. Complaint (Compl.), Dkt.

No. 1.1 Presently before the Court is Defendants St. George and Caruso’s motion to dismiss

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 23. The

motion is fully briefed, Dkt. Nos. 23-1, 24, 25, and a hearing was held on March 20, 2025. For

the following reasons, the motion to dismiss is granted in part and denied in part.

1 On April 8, 2024, Plaintiff filed a notice of voluntary dismissal as to Defendant OCA. Dkt. No.

20.

I. FACTS2

Between September 2015 and October 2019, Plaintiff was employed as a Court Officer

with the OCA. Compl. ¶¶ 8-11. Plaintiff was afforded gun privileges in conjunction with his

duties as a Court Officer, and also possessed numerous personal handguns on a pistol permit issued

by the Washington County Court. Id. ¶¶ 9-10. On October 2, 2019, Plaintiff was on duty at his

assigned station in the Warren County Courthouse, when “he observed on the security monitor

activities going on in the courtroom by court staff on their lunch break that [Plaintiff] considered

highly improper, unusual, bizarre, anti-semitic, unpatriotic, inappropriate, controversial and a

matter of public concern.” Id. ¶ 12. Plaintiff “brought the aforesaid matters to the attention of his

supervisor, who observed what was going on in the courtroom via the monitor but advised

[Plaintiff] that he was not going to do anything about it.” Id. ¶ 13. “Out of concern that the video

footage of the conduct in question on the court security system would be either lost or intentionally

erased, [Plaintiff] took a video of some of the footage on the security monitor on his cell phone

and sent it to the other court security officers on duty[.]” Id. ¶ 14. Plaintiff sent the video footage

to the other officers “so they would be aware of what had occurred in the public venue for which

they were responsible.” Id. Plaintiff “never made any further publication of the video he took on

his cell phone,” and “continued to carry out his duties . . . without incident or controversy[.]” Id.

¶ 15.

2 These facts are drawn from the Complaint. The Court assumes the truth of, and draws reasonable

inferences from, the well-pleaded factual allegations, see Lynch v. City of New York, 952 F.3d 67,

74–75 (2d Cir. 2020), but does not accept as true any legal conclusions, see Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

In May 2021, Defendant Caruso was the New York State Deputy Chief Administrative

Judge (DCAJ) for courts outside of New York City. Compl. ¶ 6. On May 4, 2021, Defendant

Caruso issued the following directive:

Based upon a review of information provided to me, I hereby approve, effective

immediately, suspension of Court Officer Matthew Campbell’s firearm privileges,

seizure of his firearms both on and off duty and the issuance of a ‘No Gun’

identification.

Id. ¶ 17, Ex. B. To comply with Defendant Caruso’s directive Plaintiff was required to, and did,

“surrender his service weapon and all of the privately owned handguns carried on his pistol

permit[.]” Id. ¶ 18. Plaintiff was also placed on “reg pay” status.3 Id. Plaintiff “was not offered

a hearing or made aware of his right to a hearing at the time of the suspension of his gun status or

the seizure of his handguns.” Id.

On May 24, 2021, Plaintiff reported for duty to Saratoga Family Court in “‘no gun’ status”

pursuant to the directive of Chief David Joseph, Security Coordinator for the New York State

Courts for the Fourth Judicial District. Compl. ¶¶ 19-22. Plaintiff’s limitation to working in “no

gun” status “adversely affected his overtime opportunities, bidding rights, qualifications for work

assignments and other aspects of his employment[.]” Id. ¶ 23.

Plaintiff was eventually served with disciplinary charges dated July 13, 2021, charging

Plaintiff with “having allegedly taken a video on his cell phone of events that occurred in the

Warren County Supreme Courtroom on [October 2, 2019] and his having allegedly subsequently

published that video by means of an email in [October 2020.]” Compl. ¶ 26. The disciplinary

charges were served three-and-a-half months outside of the 18-month statute of limitations set

forth in the collective bargaining agreement (CBA) governing the terms and conditions of

3 On “reg pay” status, Plaintiff was suspended from his duties as a court officer but paid his regular

salary. Compl. ¶ 18.

Plaintiff’s employment. Id. ¶¶ 11, 24, 27, Ex. E. The disciplinary charges did not involve

allegations that Plaintiff had “misused or threatened to misuse his firearm or engaged in criminal

conduct.” Id. ¶ 28. An answer to the disciplinary charges was filed on behalf of Plaintiff on July

22, 2021. Id. ¶ 29, Ex. G. The statute of limitations was pleaded as the first affirmative defense.

Id. ¶ 30.4

A hearing was held on November 18, 2021 in connection with the disciplinary charges.

Compl. ¶¶ 32-34. No evidence or proof was offered to indicate that Plaintiff (1) “in any way

abused or threated to abuse his firearm or firearm privileges or engaged in criminal conduct,” or

(2) “published the video in October of 2020 as alleged.” Id. ¶ 33. On May 4, 2020, the hearing

officer issued a report and recommendation, in which he concluded that Plaintiff’s October 2, 2019

conduct was not time-barred “because [Plaintiff’s] conduct was first revealed to the New York

Unified Court System on March 15, 2021 – i.e. the date of the email sent to Judge Marks.” Id. ¶

35, Ex. H. The hearing officer further concluded that OCA had established the portion of the

charges concerning Plaintiff’s recording of the video on October 2, 2019 and texting it to his fellow

officers later that day, but had not supported the charge concerning the 2020 group text. Id. ¶¶ 37-

38, Ex. H. The hearing officer concluded that “some discipline is appropriate under the

circumstances[,]” and accordingly recommended that Plaintiff “receive a reprimand, be placed on

probation for a period of [six] months, and be directed to remove and delete any copies of the

video” from his devices. Id. ¶ 39, Ex. H.

4 The Complaint alleges that “Respondent refused to comply with the discovery demands

interposed on the Petitioner’s behalf[]” in conjunction with the disciplinary proceedings. Compl.

¶ 31. The Complaint subsequently refers to OCA as the “Petitioner” in the context of the

disciplinary hearing, however it is not entirely clear which party refused to comply with discovery

demands.

Plaintiff submitted comments on the report and recommendation to Defendant DCAJ St.

George5 on May 9, 2022, as permitted under the CBA. Compl. ¶ 40, Ex. I. On May 23, 2022,

Defendant St. George rendered a determination, accepting the hearing officer’s findings and

recommendations except with regard to penalty. Id. ¶¶ 41-42, Ex. J. With regard to penalty,

Defendant St. George determined that a “greater punishment” is warranted, and that “termination”

is appropriate. Id. ¶ 43, Ex. J. Pursuant to Defendant St. George’s determination, Plaintiff’s

employment was terminated. Id. ¶ 44.

Plaintiff challenged his termination by means of an Article 78 proceeding commenced on

June 24, 2022, in which he sought reinstatement, back pay and other administrative relief. Compl.

¶ 45. By Decision and Order/Judgment dated April 20, 2023, the Article 78 court “granted Plaintiff

the relief requested, dismissed the disciplinary charges against [Plaintiff] and ordered OCA to take

any and all appropriate actions to immediately reinstate [Plaintiff] to his position . . . with full gun

status together with the salary or compensation that he would have been entitled to receive . . . but

for his termination and any other relief afforded to him under the CBA.” Id. ¶ 46, Ex. K. No

appeal was filed from the decision and order, however “a second [A]rticle 78 proceeding had to

be commenced” in September 2023, due to OCA’s failure to immediately restore Plaintiff to his

position with full gun status. Id. ¶¶ 48-49, Ex. M. The second Article 78 proceeding was

discontinued in October 2023, “after the [OCA] finally carried out the directives set forth in [the

April 2023 decision and order.]” Id. ¶ 50.

5 Defendant St. George replaced Defendant Caruso as DCAJ in or around May or June of 2021.

Compl. ¶¶ 6-7.

II. LEGAL STANDARD

“A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must

decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision

on the merits and, therefore, an exercise of jurisdiction.” Mann v. N.Y. State Ct. of Appeals, No.

21-cv-49 (MAD/CFH), 2021 WL 5040236, at *3 (N.D.N.Y. Oct. 29, 2021) (citation omitted). “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.” Forjone v. Dep’t of Motor

Vehicles, 414 F. Supp. 3d 292, 297–98 (N.D.N.Y. 2019) (cleaned up). “In resolving a motion to

dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint

. . . as true[ ] and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon

v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted).

A court may also “refer to evidence outside the pleadings” and “take judicial notice of documents

in the public record[.]” Krajisnik Soccer Club, Inc. v. Krajisnik Football Club, Inc., No. 20-cv-

1140 (LEK/TWD), 2021 WL 2142924, at *2 (N.D.N.Y. May 26, 2021) (citations omitted).

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a complaint

must provide ‘enough facts to state a claim to relief that is plausible on its face.’ ” Mayor & City

Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to

raise a right to relief above the speculative level[.]” Id. (quoting Twombly, 550 U.S. at 555). A

court must accept as true all factual allegations in the complaint and draw all reasonable inferences

in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI

Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a

court must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. DISCUSSION

A. Eleventh Amendment Immunity

Defendants Caruso and St. George argue that Plaintiff’s § 1983 claims against them are

barred by Eleventh Amendment immunity, because Plaintiff alleges that the Defendants’ “actions

taken in their capacity as ‘high-ranking officials’ of the [OCA] violated Plaintiff’s Constitutional

rights.” Defendants’ Memorandum of Law (Def. MOL) at 5-6, Dkt. No. 23-1. In response,

Plaintiff contends that the Eleventh Amendment does not bar his claims against the Defendants,

who are being sued in their “individual” and “administrative” capacities. Plaintiff’s Memorandum

of Law (Pl. MOL) at 2-3, Dkt. No. 24.

The courts in this Circuit have drawn a clear distinction between official-capacity and

individual-capacity claims. “‘[O]fficial-capacity suits generally represent only another way of

pleading an action against an entity of which an officer is an agent.’” Tanvir v. Tanzin, 894 F.3d

449, 458–59 (2d Cir. 2018), aff’d, 592 U.S. 43 (2020) (quoting Hafer v. Melo, 502 U.S. 21, 25

(1991)). “In an official capacity suit, ‘the real party in interest . . . is the governmental entity and

not the named official.’” Id. (quoting Hafer, 502 U.S. at 25)); see also Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71 (1989) (“Obviously, state officials literally are persons. But a suit

against a state official in his or her official capacity is not a suit against the official but rather is a

suit against the official’s office.” (citation omitted)). “By contrast, individual capacity suits ‘seek

to impose individual liability upon a government officer for [his or her] actions under color of [ ]

law.6’” Id. (quoting Hafer, 502 U.S. at 25). Damages awarded in an individual capacity suit “will

6 “The traditional definition of acting under color of state law requires that the defendant in a

§ 1983 action have exercised power ‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49

(1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also See Monroe v. Pape,

365 U.S. 167, 172 (1961) (holding that individual liability under section 1983 attaches to those

wrongdoers “who carry a badge of authority of a State and represent it in some capacity, whether

not be payable from the public fisc but rather will come from the pocket of the individual

defendant.” Id. (quoting Blackburn v. Goodwin, 608 F.2d 919, 923 (2d Cir. 1979)).

“The Eleventh Amendment precludes suits against a state [and its agencies] unless the state

expressly waives its immunity or Congress abrogates that immunity.” 7 Thomas v. Martin-

Gibbons, 857 F. App’x 36, 37 (2d Cir. 2021) (citing CSX Transp., Inc. v. N.Y. State Office of Real

Prop. Servs., 306 F.3d 87, 95 (2d Cir. 2002)). This includes suits against state officials, such as

judges, in their official capacities. Id. (citing Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002));

see also Dickson v. Schenectady Fam. Ct., No. 1:22-cv-499 (DNH/CFH), 2022 WL 16966549, at

*3 (N.D.N.Y. Oct. 27, 2022), report and recommendation adopted, 2022 WL 16961389 (N.D.N.Y.

Nov. 16, 2022) (“[J]udges within the New York State Unified Court System are entitled to

Eleventh Amendment immunity to the extent they are sued in their official capacity.”).

Accordingly, Eleventh Amendment immunity would bar Plaintiff’s claims against

Defendants St. George and Caruso, if they were asserted as official-capacity claims. As Plaintiff

points out, however, his claims are clearly asserted against the Defendants in their personal, or

individual, capacities. See Compl. ¶¶ 6, 7. Plaintiff’s characterization of the Defendants as “high-

ranking officials” of the OCA does not otherwise convert his claims. There is a critical difference

between asserting a claim against an individual defendant in his official capacity, and asserting a

claim against an individual defendant, who holds a government title, in his personal, or individual,

capacity. The fact that a defendant was operating in his official government role when he

they act in accordance with their authority or misuse it”), overruled in part on other grounds by

Monell v. Department of Soc. Svcs, 436 U.S. 685 (1978).

7 “New York has not waived its immunity for damages claims brought under 42 U.S.C. § 1983,

nor has Congress abrogated it in enacting § 1983.” Thomas v. Martin-Gibbons, 857 F. App’x at

37 (cleaned up).

committed the allegedly violative conduct does not preclude a plaintiff from seeking damages

against him in an individual capacity. If this were the case, § 1983 claims, which generally require

a culpable state actor, could never be asserted against a state-official defendant in his individual

capacity.

Here, because Plaintiff’s claims against Defendants Caruso and St. George are asserted as

individual capacity claims, Eleventh Amendment immunity does not apply.8 Thus, dismissal is

not warranted under 12(b)(1) for lack of subject matter jurisdiction, and Defendants’ motion to

dismiss on this basis is denied.

B. First Amendment Retaliation

Plaintiff alleges that Defendants retaliated against him for engaging in protected First

Amendment speech. Compl. ¶¶ 61-65. Defendants move to dismiss Plaintiff’s First Amendment

retaliation claim, arguing that Plaintiff’s speech was not constitutionally protected. Def. MOL at

6-10. Defendants also argue that they are entitled to qualified immunity on Plaintiff’s First

Amendment retaliation claim. Id. at 13-16. Plaintiff responds that his First Amendment retaliation

claim is valid and adequately pled. Pl. MOL at 4-9.

“To survive a motion to dismiss, a plaintiff claiming that he was retaliated against in

violation of the First Amendment must plausibly allege that (1) he engaged in speech or activity

8 The doctrine of judicial immunity generally shields judges from suit to the extent they are sued

in their individual capacities. Trello v. McKeighan, 624 F. Supp. 3d 150, 155 (N.D.N.Y. 2022)

(citation omitted). Pursuant to the doctrine, judges are absolutely immune from suits seeking

money damages for acts taken within the scope of their judicial responsibilities. Bliven v. Hunt,

579 F.3d 204, 209 (2d Cir. 2009) (collecting cases). However, tasks that are “‘not essentially

judicial, such as supervising and managing court employees,’ do not warrant absolute immunity,

even when performed by judges.” Foy v. New York State Unified Ct. Sys., 740 F. Supp. 3d 136,

150 (E.D.N.Y. 2024) (quoting Libertarian Party of Erie Cty. v. Cuomo, 970 F.3d 106, 123 (2d Cir.

2020), abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1

(2022). Defendants in this case have not moved for dismissal based on judicial immunity,

presumably recognizing that the conduct giving rise to the underlying claims falls outside the scope

of this doctrine.

that was protected by the First Amendment; (2) he suffered an adverse employment action; and

(3) a causal connection existed between the adverse action and the protected activity.” Specht v.

City of New York, 15 F.4th 594, 599–600 (2d Cir. 2021) (citing Smith v. County of Suffolk, 776

F.3d 114, 118 (2d Cir. 2015)). For purposes of addressing Defendants’ pending motion to dismiss,

the Court limits its analysis to the first element of Plaintiff’s retaliation claim.

1. Protected Speech

“The speech of a public employee is protected by the First Amendment when the employee

speaks as a citizen on a matter of public concern, rather than pursuant to his employment

responsibilities.” Specht, 15 F.4th at 600 (citing Garcetti v. Ceballos, 547 U.S. 410, 420–21

(2006)). “Thus, as a public employee, Plaintiff must allege that he ‘engaged in citizen speech,’ in

other words, that he ‘spoke as a private citizen,’ and that ‘the speech at issue was on a matter of

public concern.’” Salvana v. New York State Dep’t of Corr. & Cmty. Supervision, 621 F. Supp.

3d 287, 301 (N.D.N.Y. 2022) (citing Montero v. City of Yonkers, New York, 890 F.3d 386, 399 (2d

Cir. 2018) and Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015)).

a. Citizen Speech

Defendants argue that Plaintiff’s conduct did not constitute “citizen speech” because his

statements “were made internally to his Supervisor within his chain of command and to fellow

Court Officers[,]” thus they were made “as an employee performing his job duties, and not as a

citizen.” Def. MOL at 9. Plaintiff responds that he was “clearly” not carrying out the duties of his

employment, as the conduct at issue “was in direct derogation of [his employment] duties.” Pl.

MOL at 5.

In assessing whether a public employee spoke as a citizen or an employee, “[t]he critical

question . . . is whether the speech at issue is itself ordinarily within the scope of an employee’s

duties.” Lane v. Franks, 573 U.S. 228, 240 (2014). This is an “objective, practical inquiry” into

“‘the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship

between the two,’ along with other contextual factors such as whether the plaintiff’s speech ‘was

also conveyed to the public.’” Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 83 (2d Cir.

2022) (quoting Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012)). It is not enough that the speech

at issue “relates to public employment or concerns information learned in the course of public

employment.” Lane, 573 U.S. at 239. At the same time, the Second Circuit has long made clear

that speech “can be pursuant to” a public employee’s “official job duties even though it is not

required by, or included in, [his] job description, or in response to a request by the employer.”

Weintraub v. Bd. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 203 (2d Cir. 2010)

(internal quotation marks omitted). The relevant inquiry is whether the content of the speech was

“part-and-parcel of [Plaintiff’s] ability to properly execute his duties.” Shara, 46 F.4th at 83.

Courts in this Circuit have also assessed “‘whether a civilian analogue’ to the employee’s

speech exists.” Shara, 46 F.4th at 83 (quoting Montero, 890 F.3d at 397). “While this . . . inquiry

‘may be of some help in determining’ whether an employee speaks as a citizen,” the determination

of whether the speech falls within the scope of the employee’s job duties remains “the heart of

[the] analysis.” Id. (quoting Montero, 890 F.3d at 397–98).

Here, the Court concludes that the allegations in the complaint plausibly support an

inference that Plaintiff’s conduct was not “part-and-parcel” of his ability to properly execute his

employment duties. Plaintiff alleges that after his supervisor declined to act on the observed

courtroom conduct, Plaintiff—apparently in violation of the rules governing his employment—

took the video of the security footage and disseminated it to his co-workers “so they would be

aware of what had occurred in the public venue for which they were responsible.” Compl. at ¶

14. Plaintiff admits that he never made any further publication of the video. Id. at ¶ 15. On the

one hand, these allegations could be narrowly interpreted to confine Plaintiff’s conduct within the

scope of his presumed official job duties, i.e. maintaining courthouse security and order. On the

other hand, factual discovery surrounding the video recording and actual communications to

Plaintiff’s coworkers, as well as the specific nature of Plaintiff’s duties and reporting

responsibilities, may indicate that Plaintiff’s conduct fell outside the scope of his employment

duties.

The Second Circuit has cautioned against granting a motion to dismiss when the scope of

a plaintiff’s official duties is at issue. See Matthews v. City of New York, 488 F. App’x 532, 533

(2d Cir. 2012). “Other courts in this Circuit have heeded this warning and declined to dismiss

cases of this kind before discovery.” Brant v. New York City Health & Hosps. Corp., 17 Civ. 3801,

2018 U.S. Dist. LEXIS 5428 (S.D.N.Y. Jan. 10, 2018) (citing Jeune v. Crew, No. 16-cv-1107,

2017 WL 4357382, at *16 (E.D.N.Y. Sept. 29, 2017)); see also Espinoza v. City of New York, No.

12-cv-341, 2012 WL 6851171, at *8 (E.D.N.Y. Dec. 10, 2012), report and recommendation

adopted, 2013 WL 146036 (E.D.N.Y. Jan. 14, 2013) (holding “that there is a need to more fully

develop the factual basis for plaintiff’s claims—specifically the nature of her duties and reporting

responsibilities—and that analysis of whether her speech is protected by the First Amendment is

premature at this time”); Taylor v. N.Y. City Dep’t of Educ., 2012 U.S. Dist. LEXIS 127810, 2012

WL 3890599, at *4-8 (S.D.N.Y. Sept. 6, 2012) (“Absent a more detailed record of the content and

circumstances of [the plaintiff’s] speech, the Court cannot say, as a matter of law, that her speech

was as an employee rather than a citizen and that Defendants are entitled to prevail as a matter of

law on her First Amendment claim.”)).

Here, the Court cannot conclude that Plaintiff’s speech was as an employee rather than a

citizen at this early juncture, and without the benefit of discovery. Accordingly, and accepting as

true the well-pleaded facts in the Complaint, the Court declines to grant Defendants’ motion to

dismiss on this basis.

b. Matter of Public Concern

Defendants also argue that Plaintiff’s speech did not “bear on a matter of public concern”

because his actions—the copying of video from court security monitors with his private cell phone

and then distributing that video to fellow court officers by electronic means— was done to protect

Plaintiff’s personal employment interests. Def. MOL at 10. Plaintiff responds that his conduct

related to a matter of public concern and was therefore protected speech because he was

“videotaping what he perceived to be a loathsome emulation of the nazi goosestep salute . . . in a

public courtroom[.]” Pl. MOL at 9.

“Whether speech is on a matter of public concern is a question of law” that courts decide

by “examining the content, form, and context of a given statement, as revealed by the whole

record.” Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 84 (2d Cir. 2022) (citing Montero,

890 F.3d at 399). “Speech deals with matters of public concern when it can be fairly considered as

relating to matters of political, social, or general interest to the community or value and concern

to the public.” Specht, 15 F.4th at 600 (citing Snyder v. Phelps, 562 U.S. 443, 453 (2011)). As the

Second Circuit has explained:

To identify matters of public concern, “we consider the motive of the speaker,

cognizant that speech on a purely private matter does not pertain to a matter of

public concern and, conversely, that an individual motivated by a personal

grievance can simultaneously speak on a matter affecting the public at large[.]”

Id. (quoting Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014)); see also Snyder v. Phelps,

562 U.S. 443, 454 (2011) (“In considering content, form, and context, no factor is dispositive, and

it is necessary to evaluate all the circumstances of the speech, including what was said, where it

was said, and how it was said.”).

As pled, Plaintiff’s conduct is sufficiently related to matters of public concern for purposes

of surviving Defendants’ motion to dismiss. Certainly, speech surrounding the appropriateness of

“nazi-emulating” conduct observed in a public courthouse by public employees could fall within

the confines of this category. Moreover, courts have held that “[a]n employee seeking to bring to

light actual or potential wrongdoing or a breach of public trust by public employees or agencies is

addressing a matter of public concern.” Rotundo v. Vill. of Yorkville, No. 6:09-cv-1262(DNH),

2011 WL 838892, at *5 (N.D.N.Y. Mar. 4, 2011) (citing Connick v. Myers, 461 U.S. 138, 148

(1983)); see also Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993) (“[M]atters of public concern

do include speech aimed at uncovering wrongdoing or breaches of public trust.”); Garcetti, 547

U.S. at 425 (“[G]overnmental . . . misconduct is a matter of considerable significance.”).

Accordingly, Defendants’ motion to dismiss on this basis is denied.

2. Qualified Immunity

Defendants argue that dismissal of Plaintiff’s First Amendment retaliation claim is

alternatively warranted on qualified immunity grounds. Qualified immunity bars claims for

damages against government officials sued individually for conduct undertaken in their official

capacities. Ziglar v. Abbasi, 582 U.S. 120, 150-51 (2017). “Qualified immunity is designed to

balance the ‘competing interests’ of allowing an ‘avenue for vindication of constitutional

guarantees,’ and providing ‘breathing room’ for government officials ‘to make reasonable but

mistaken judgments about open legal questions.’” Greco v. City of New York, 686 F. Supp. 3d 191,

201 (E.D.N.Y. 2023) (quoting Ziglar, 582 U.S. at 150-51). To survive a qualified immunity

defense, a plaintiff must plead “facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the challenged

conduct.” Sabir v. Williams, 52 F.4th 51, 58 (2d Cir. 2022) (cleaned up).

For a qualified immunity defense asserted in a motion to dismiss to be successful, the “facts

supporting the defense [must] appear on the face of the complaint,” and the plaintiff “is entitled to

all reasonable inferences from the facts alleged . . . that defeat the immunity defense.” McKenna

v. Wright, 386 F.3d 432, 434, 436 (2d Cir. 2004) (describing a defendant’s burden of establishing

a qualified immunity defense in a Rule 12(b)(6) motion as a “formidable hurdle”); see also Ziemba

v. Lynch, No. 11-cv-974, 2013 WL 5232543, at *9 (D. Conn. Sept. 17, 2013) (denying motion to

dismiss on qualified immunity grounds where the defendant “only include[d] the legal standard

for establishing qualified immunity and, in a conclusory manner, state[d] that the claims . . . are

subject to dismissal based on [that] law”).

Here, Defendants are not entitled to qualified immunity at this early stage in the

proceeding. Indeed, Defendants’ argument as to what the record “will show,” Def. MOL at 13-

16, inherently acknowledges the fact-intensive nature of a qualified immunity defense, and that

facts supporting this defense do not appear on the face of the Complaint. Accordingly, Defendants’

motion to dismiss on this basis is denied as premature.

C. Fourteenth Amendment Due Process

Plaintiff alleges that the Defendants violated his Fourteenth Amendment right to due

process when they disciplined Plaintiff, and ultimately terminated his employment. Compl. ¶¶ 66-

75. To establish a Section 1983 claim premised on a Fourteenth Amendment procedural due

process violation, a plaintiff must show two elements: (1) the existence of a protected interest; and

(2) deprivation of that interest without due process. Bryant v. New York State Educ. Dep’t, 692

F.3d 202, 218 (2d Cir. 2012) (citing Narumanchi v. Bd. of Trustees, 850 F.2d 70, 72 (2d Cir.

1988)).

Defendants argue that Plaintiff was afforded sufficient process with respect to the

termination of his employment, inasmuch as he was “provided notice of the [disciplinary] charges

against him, an opportunity to answer those charges, a hearing in which to contest those charges

by presenting evidence and an opportunity to make post hearing submissions.” Def. MOL at 12.

Plaintiff responds that the “wrongfulness of his termination,” as suggested by the Article 78 court,

permits him to proceed on the due process claim. Pl. MOL at 9-11.

For purposes of the motion to dismiss, the parties do not dispute that Plaintiff enjoyed a

protected property interest in his civil service employment. Public employees who can be fired

only for cause have a property interest in their continued employment, and they are entitled to due

process when they are deprived of that interest. Morgan v. Cnty. of Warren, No. 22-345, 2022

WL 13691731, at *2 (2d Cir. Oct. 24, 2022) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 538–39 (1985)).

The follow-up inquiry is whether Plaintiff was deprived of this established property interest

without due process. “Generally, due process requires that a state afford persons ‘some kind of

hearing’ prior to depriving them of a liberty or property interest.” DiBlasio v. Novello, 344 F.3d

292, 302 (2d Cir. 2003). Under certain circumstances, however, the “lack of such pre-deprivation

process will not offend the constitutional guarantee of due process, provided there is sufficient

post-deprivation process.” Spinelli v. City of New York, 579 F.3d 160, 170 (2d Cir. 2009)

(alterations and internal quotation marks, and citation omitted). For example, “[w]here a

deprivation at the hands of a government actor is ‘random and unauthorized,’ hence rendering it

impossible for the government to provide a pre-deprivation hearing, due process requires only a

post-deprivation proceeding.” DiBlasio, 344 F.3d at 302. Thus, “[w]hen reviewing alleged

procedural due process violations, the Supreme Court has distinguished between (a) claims based

on established state procedures and (b) claims based on random, unauthorized acts by state

employees.” Hellenic Am. Neighborhood Action Comm. v. City of New York (HANAC), 101 F.3d

877, 880 (2d Cir. 1996) (citations omitted). “When the state conduct in question is random and

unauthorized, the state satisfies procedural due process requirements so long as it provides

meaningful post-deprivation remedy.” Rivera-Powell v. New York City Bd. of Elections, 470 F.3d

458, 465 (2d Cir. 2006) (citing HANAC, 101 F.3d at 880). “In contrast, when the deprivation is

pursuant to an established state procedure, the state can predict when it will occur and is in the

position to provide a pre-deprivation hearing.” Id.; see also HANAC, 101 F.3d at 880 (“When the

deprivation occurs in the more structured environment of established state procedures, rather than

random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due

process.”).

Although the distinction is not always clear-cut, the Second Circuit has held that “acts of

high-ranking officials who are ultimate decision-maker[s] and have final authority over significant

matters, even if those acts are contrary to law, should not be considered random and unauthorized

conduct for purposes of a procedural due process analysis.” Rivera-Powell, 470 F.3d at 465

(quotations omitted and alteration in original). At least one court in this Circuit has explicitly

recognized that the decision to terminate a public employee falls within the “established state

procedures” category and, thus, generally requires more than the availability of a post-deprivation

remedy. See, e.g., Mullen v. Vill. of Painted Post, 356 F. Supp. 3d 275, 282 (W.D.N.Y. 2019)

(finding that “actions . . . taken by Mayor Foster and the Village Board, the entities vested with

final decision-making authority regarding [plaintiff’s] employment,” were “undertaken pursuant

to established state procedures.”). The majority of courts, however, have declined to draw the

distinction, focusing instead on “what process was due,” regardless of the classification of the state

action. See, e.g., Taylor v. Greene Cent. Sch. Dist., No. 3:23-cv-706 (MAD/ML), 2023 WL

8654261, at *5 (N.D.N.Y. Dec. 13, 2023) (concluding that the defendants provided plaintiff the

process due regardless of whether the state action was random and unauthorized or an established

state procedure); Morgan v. Cnty. of Warren, No. 1:21-cv-0278 (LEK/DJS), 2022 WL 195065, at

*4 (N.D.N.Y. Jan. 21, 2022) (same), aff’d, No. 22-345, 2022 WL 13691731 (2d Cir. Oct. 24,

2022); see also Rivera-Powell, 470 F.3d at 467 (declining to “foray further into th[e] legal thicket”

of the same question “absent some real need to address” it, and finding that the state had provided

due process regardless of how the challenged actions were classified) (citation omitted).

To this end, it is well settled law in this Circuit that when a public employee is terminated,

“procedural due process is satisfied if the government provides notice and a limited opportunity to

be heard prior to termination, so long as a full adversarial hearing is provided afterwards.” Morgan

v. Cnty. of Warren, No. 22-345, 2022 WL 13691731, at *2 (2d Cir. Oct. 24, 2022) (quoting Locurto

v. Safir, 264 F.3d 154, 171 (2d Cir. 2001)). The requirements for any such pre-termination hearing

are “minimal.” Id.; see also Locurto, 264 F.3d at 174 (pre-termination hearing requires only

“notice of the charges, an explanation of the nature of the employer’s evidence, and an opportunity

for the employee to respond,” and does not need to be conducted by a neutral adjudicator). “With

respect to the requisite post-termination hearing . . . the availability in New York of an Article 78

proceeding satisfies the requirements of due process.” Id. (citing Rivera-Powell v. New York City

Bd. Of Elections, 470 F.3d 458, 466–67 (2d Cir. 2006) (collecting cases)); Locurto, 264 F.3d at

175 (holding, in the context of a § 1983 suit challenging the dismissal of a tenured public

employee, that “[a]n Article 78 proceeding . . . constitutes a wholly adequate post-deprivation

hearing for due process purposes”); see also HANAC, 101 F.3d at 881.

Here, Plaintiff has not specifically alleged whether the Defendants’ conduct was random

and unauthorized or an established state procedure, nor does he argue one way or the other in his

motion papers. The Court need not determine this issue, however, because Plaintiff has not

pleaded any facts that would suggest that the pre- or post-deprivation processes afforded to him

were constitutionally deficient, even if Plaintiff’s termination was undertaken pursuant to

established state procedures. As to the pre-deprivation process, Plaintiff does not dispute that he

was provided notice of the disciplinary charges with an opportunity to respond, along with a

hearing on the charges, prior to his termination. Nor has Plaintiff raised a plausible due process

claim with respect to the post-deprivation process afforded to him. Plaintiff’s argument

concerning the Article 78 court’s assignment of error to the Defendants’ conduct does not suggest

that the hearing itself did not satisfy the requirements of due process. On the contrary, the Article

78 proceeding proved its sufficiency to the extent Plaintiff successfully challenged his termination

and was reinstated to his position. “It is not the role of this Court to determine whether the decision

to terminate the Plaintiff . . . was correct or supported by sufficient evidence. As long as the . . .

Defendants complied with the minimal due process requirements for a pre-termination hearing,

the Article 78 proceeding is a ‘wholly adequate post-deprivation remedy.’” Reed v. Medford Fire

Department, Inc., 806 F. Supp. 2d 594, 617 (E.D.N.Y. 2011); see also Green v. Department of

Education of City of New York, 16 F.4th 1070, 1077 (2d Cir. 2021) (“[e]ven if Green’s pre-

termination hearing was imperfect, the availability of a state-court proceeding to challenge the

arbitration decision provided ‘a wholly adequate post-deprivation hearing for due process

purposes’”).

The Second Circuit addressed a similar allegation of due process violation in Morgan v.

Cnty. of Warren. Morgan appealed from, among other things, the district court’s dismissal of her

procedural due process claim premised on her termination from employment as a paralegal in a

permanent civil service position. Morgan, 2022 WL 13691731, at *1. Specifically, Morgan

alleged that workplace disciplinary charges were initiated against her based on “false allegations.”

Id. A disciplinary hearing was held, after which the defendants adopted the hearing officer’s

recommendation finding Morgan guilty of most of the disciplinary charges. Id. Morgan was

terminated for cause the same day. Id. Morgan commenced an Article 78 proceeding challenging

the termination, which was decided in Morgan’s favor. Id. The Second Circuit upheld the district

court’s dismissal of her due process claim, relying on the sufficiency of the Article 78 proceeding

to meet the due process requirement owed. Here as in Morgan, Plaintiff has failed to plausibly

allege how the processes provided fell short of constitutional guarantees.

Because Plaintiff has presented no facts that would call into question the adequacy of the

pre- and post-deprivation processes afforded him with respect to his employment termination,9 his

due process claim must be dismissed.10

IV. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendants’ motion to dismiss under Rules 12(b)(1) and 12(b)(6), Dkt.

No. 23, is GRANTED in part and DENIED in part; and it is further

9 To the extent Plaintiff is alleging a “stigma-plus” due process violation, this does not otherwise

impact the court’s analysis. It is well settled that “the availability of adequate process defeats a

stigma-plus claim.” Xu v. City of New York, No. 21-1059-CV, 2023 WL 4285031, at *2 (2d Cir.

June 30, 2023) (quoting Segal v. City of New York, 459 F.3d 207, 213 (2d Cir. 2006)).

10 The Court does not construe the Complaint to allege a Fourteenth Amendment due process claim

specifically concerning the seizure of Plaintiff’s personal firearms. Plaintiff’s Third Cause of

Action alleges that the Defendants violated Plaintiff’s due process rights “[b]y participating in the

disciplinary proceedings . . . .” Compl. ¶ 74. At the motion hearing, Plaintiff’s counsel represented

that allegations concerning the seizure of Plaintiff’s firearms are integral to Plaintiff’s due process

claim concerning the termination of his employment. Plaintiff has also alleged a Second

Amendment claim concerning the seizure of his firearms, which is not the subject of Defendants’

pending motion to dismiss.

ORDERED that Defendants’ motion to dismiss is GRANTED as to Plaintiff's Fourteenth

Amendment due process claim as set forth in the Third Cause of Action in the Complaint, and this

claim is DISMISSED without prejudice, and it is further

ORDERED that Defendants’ motion to dismiss is in all other respects DENIED.

IT IS SO ORDERED.

Dated: April 2, 2025

Elizabeth C. Coombe

U.S. District Judge

21