Evans

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ANDRAE J. EVANS,

Plaintiff,

v. DECISION AND ORDER

TOWN OF IRONDEQUOIT, et al., 25-CV-6766-MAV

Defendants.

On December 12, 2025, pro se Plaintiff Andrae J. Evans filed a complaint

against the Town of Irondequoit, John Perticone, Peter Wehner, Ann Cunningham,

Grant Malone, and John/Jane Does 1-10 along with a motion for leave to proceed in

forma pauperis “IFP”), ECF No. 2, and a motion for a temporary restraining order

(“TRO”) and a preliminary injunction, ECF No. 4. On December 19, the Court denied

Plaintiffs IFP application, and Plaintiff paid the filing fee. ECF Nos. 4-5. Defendants

answered Plaintiffs original complaint on February 18, 2026, ECF No. 7, Plaintiff

filed a timely amended complaint, ECF No. 10; Fed. R. Civ. P. 15(a)(1)(B), and

Defendants filed an answer to Plaintiffs amended complaint, ECF No. 12.

Plaintiffs motion for a TRO and preliminary injunction is denied. Plaintiff has

failed to demonstrate a likelihood of success on the merits or a serious question on

the merits to warrant preliminary injunctive relief. Given his pro se status, Plaintiff

is afforded leave to amend his complaint within 30 days of this Decision and Order.

BACKGROUND

Plaintiff was elected as the Town Supervisor of Irondequoit in November 2023,

his term starting January 1, 2024. ECF No. 4 at § 18; ECF No. 10 at 4. When his

original filings were submitted, his term as Town Supervisor had not yet ended on

December 31, 2025, but Plaintiff had lost re-election to the position, which, Plaintiff

contends, was caused by Defendants’ unconstitutional activities. See, e.g., ECF No.

10 at 2, 4, 11; ECF No. 4 at 4-5. Specifically, Plaintiff alleges that the named

individual Defendants—Perticone, Wehner, Malone, and Cunningham—were

members of the Irondequoit Town Board (collectively, the “Town Board Defendants”)

and “participated in, approved, and authorized” the following unconstitutional

actions, ECF No. 10 at 4—5:

e issuing unlawful censures without due process;

e stripping or restricting statutory executive authority;

e imposing physical and electronic lockouts from Town facilities and systems;

e isolating Plaintiff from Town staff through formal and informal directives;

and

e disseminating government-created stigma through official channels.

ECF No. 4 at { 4(a)—-(e). Plaintiff makes no factual allegations against John/Jane Doe

Defendants, nor any factual allegations against the Town of Irondequoit to support

municipal liability. See ECF Nos. 1, 4, 10.

Plaintiffs motion for preliminary relief alleges that the Town Board

Defendants resisted Plaintiffs attempts to “require[] compliance,” “refuse[] unlawful

actions,” and “insist[] on transparency” by “initiat[ing] a coordinated effort to

neutralize Plaintiffs authority” through, inter alia, a “procedurally defective

‘independent review” in 2024 and two censures in 2025 that resulted in limitations

on Plaintiffs authority and access as Town Supervisor. ECF No. 4 at 14-18.

Plaintiffs underlying action raises claims of First Amendment retaliation and

violations of procedural due process. ECF No. 10 at 12—14. His original complaint also

raised claims of, inter alia, substantive due process violations, equal protection

violations, and a hostile work environment, see ECF No. 1 at 61-137. The Court views

any claims raised only in Plaintiffs original 142-page complaint as moot when

resolving his pending request for preliminary injunctive relief. See Intl Controls

Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (an amended complaint completely

replaces the prior complaint in the action, and thus it “renders [any prior complaint]

of no legal effect”). However, in light of Plaintiffs pro se status, the Court grants

Plaintiff leave to amend his March 9, 2026 complaint within 30 days of this Decision

and Order to revive any prior claims and/or otherwise amend his complaint.

LEGAL STANDARD

In the Second Circuit, the same legal standard governs the issuance of

preliminary injunctions and TROs. Loc. 1814, Intl Longshoremen’s Ass'n, AFL-CIO

v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992); Bragg v. Jordan,

669 F. Supp. 3d 257, 266 (S.D.N.Y. 2023), appeal dismissed sub nom. Bragg v.

Pomerantz, No. 23-615, 2023 WL 4612976 (2d Cir. Apr. 24, 2023). A party seeking a

TRO and/or a preliminary injunction must show “(1) irreparable harm; (2) either a

likelihood of success on the merits or both serious questions on the merits and a

balance of hardships decidedly favoring the moving party; and (8) that a [TRO and/or

preliminary injunction] is in the public interest.” N. Am. Soccer League, LLC v.

United States Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018).

The Court construes pro se pleadings liberally and interprets them to raise the

strongest arguments that they suggest. Barnes v. City of New York, 68 F.4th 123, 127

(2d Cir. 2023). Nonetheless, “pro se status does not exempt a party from compliance

with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 477 (2d Cir. 2006); accord McKenzie-Morris v. V.P. Recs. Retail

Outlet, Inc., No. 22 Civ. 1138, 2023 WL 5211054, at *5 (S.D.N.Y. Aug. 13, 2023).

Here, Plaintiff's motion seeks the following:

e Enjoining Defendants from enforcing, publishing, or relying upon the

censures issued in January and April 2025 and related actions;

e Restoring Plaintiffs statutory authority, see “Town Law §§ 29-30,”

and his access to Town facilities, systems, staff, and communications;

e Enjoining Defendants from interfering with Plaintiffs ability to

perform duties as Town Supervisor;

e Enjoining Defendants from retaliating and discriminating against

Plaintiff to deprive him of his constitutional rights;

e Prohibiting Defendants from using municipal communication

channels to disseminate misleading, retaliatory, or stigmatizing

statements; and

e Enjoin the newly elected Town Supervisor from taking office pending

a hearing.

See ECF No. 4 at 4-5; ECF No. 4-1 at 1-2. Plaintiffs motion for a TRO and a

preliminary injunction must be denied.

DISCUSSION

Plaintiff has not demonstrated a likelihood of success on the merits or a serious

question on the merits to warrant preliminary injunctive relief. See N. Am. Soccer

League, LLC, 883 F.3d at 37. “To state a valid claim under 42 U.S.C. § 1983, the

plaintiff must allege that the challenged conduct (1) was attributable to a person

acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or

immunity secured by the Constitution or laws of the United States.” Whalen v. Cnty.

of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). “Section 1988 itself creates no substantive

rights; it provides only a procedure for redress for the deprivation of rights

established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

To establish liability against an official under § 19838, a plaintiff must allege

that individual’s personal involvement in the alleged constitutional violation; it is not

enough to assert that the defendant is a link in the chain of command. See McKenna

v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of respondeat

superior is not available in a § 1988 action. See Hernandez v. Keane, 341 F.3d 187,

144 (2d Cir. 2003). There is “no special rule for supervisory liability.” Tangreti v.

Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Rather, “a plaintiff must plead and

prove ‘that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Jd. (quoting Iqbal, 556 U.S. at 676). “[A] local

government [such as the Town of Irondequoit] may not be held liable under § 1983

unless the challenged action was performed pursuant to a municipal policy or

custom.” Marozzi v. Catlin, No. 24-CV-6489 EAW CDH, 2026 WL 63114, at *8

(W.D.N.Y. Jan. 8, 2026) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 486 U.S.

658, 694 (1978)).

I. First Amendment Retaliation

“Generally, a private citizen bringing a First Amendment retaliation claim

must allege that ‘(1) he has an interest protected by the First Amendment; (2)

defendants’ actions were motivated or substantially caused by his exercise of that

right; and (3) defendants’ action effectively chilled the exercise of his First

Amendment right.” Libbey v. Vill. of Atl. Beach, 982 F. Supp. 2d 185, 212 (H.D.N-Y.

2013) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). The First

Amendment “affords a degree of protection to public employees to exercise the right

of free speech without risk of retaliation by the State employer if the employee’s

speech in question is ‘on matters of public interest.” Ricciuti v. Gyzenis, 834 F.3d 162,

167 (2d Cir. 2016) (quoting Lynch v. Ackley, 811 F.3d 569 (2d Cir. 2016)).

Nevertheless, the Supreme Court has carved out three exceptions: (1) “speech about

personal matters, as opposed to ‘matters of public concern,’ is not protected from

retaliation,” id. at 168 (quoting Connick v. Myers, 461 U.S. 138 (1983)); (2) “even

speech on matters of public concern is not protected from retaliation unless the

employee’s First Amendment interests outweigh the government employers’

legitimate interests in efficient administration,” id. (quoting Pickering, 391 U.S. at

568); and (8) “speech made by employees ‘pursuant to... official duties’ rather than

‘as a private citizen’...” is not protected, id. (quoting Garcetti v. Ceballos, 547 U.S.

410 (2006)).

In other words, “[t]o be protected, a public employee’s speech must be made as

a private citizen ‘and not in her role as employee’ or ‘pursuant to official duties.”

Thomas v. Town of Se., 336 F. Supp. 3d 317, 329 (S.D.N.Y. 2018) (quoting Nagle v.

Marron, 663 F.3d 100, 106 (2d Cir. 2011)). “Accordingly, speech that is ‘required by,

or included in, [his] job description,’ or is ‘part-and-parcel of his concerns’ about his

ability to ‘properly execute his duties’ is not protected.” Id. (quoting Nagle, 663 F.3d

at 106-07).

Here, Plaintiff has not made clear allegations of what “speech” or statements

he deems protected, and what he does allege as a general matter stems from his work

pursuant to his official duties as Town Supervisor. See, e.g., ECF No. 6-11. Therefore,

Plaintiff has not established he had an interest protected by the First Amendment.

See Ricciuti, 834 F.3d at 167; see also e.g., Thomas v. Town of Southeast., 336 F. Supp.

3d 317, 329 (S.D.N.Y. 2018) (granting summary judgment for defendants where

plaintiff, a Town employee, failed to demonstrate that any statements of his at issue

were made “as a private citizen as opposed to in his capacity as a Town employee”

(citing Nagle, 663 F.3d at 106-07 (speech that 1s “required by, or included in, his job

description, or is part-and-parcel of his concerns about his ability to properly execute

his duties is not protected” by the First Amendment (quotation and brackets

omitted))); Langton v. Town of Chester, 168 F. Supp. 8d 597, 605 (S.D.N.Y. 2016)

(“Because Plaintiff's speech was ‘part-and-parcel’ of her job function as a [volunteer]

trustee [on the Town Library Board], the Court finds that it is not protected under

the First Amendment and dismisses Plaintiffs [First Amendment] retaliation

claim.”).

For at least these reasons, Plaintiffs pleaded claims of First Amendment

retaliation cannot reasonably support awarding preliminary injunctive relief.

II. Violations of Procedural Due Process

“In order to establish a due process violation of this sort, plaintiff must show

that state action deprived [him] of a property interest protected by the Fourteenth

Amendment.” Velez v. Levy, 401 F.3d 75, 85, 87 (2d Cir. 2005). “While property

interests are constitutionally protected, they are not generally constitutionally

established; rather, ‘they are created and their dimensions are defined by existing

rules or understandings that stem from an independent source such as state law—

rules or understandings that secure certain benefits and that support claims of

entitlement to those benefits.” Id. (quoting Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 577 (1972). “Thus, only where a plaintiff can demonstrate that state law

confers ‘a legitimate claim of entitlement’ to a particular position will a property

interest in that position arise.” Id. (quoting Roth, 408 U.S. at 577) (‘Velez lacks a

constitutionally cognizable property interest in her employment as an elected

official.”).

Here, Plaintiff challenges the “tangible restrictions” resulting from the two

2025 censures, “affecting Plaintiffs access, supervision, and communications” as

Town Supervisor and ultimately foreclosing his re-election. E.g., ECF No. 10 at 13.

He does not challenge “the expressive vote” of the two censures themselves, but the

“tangible restrictions” that flowed therefrom, which “were implemented without

neutral adjudicated safeguards prior to enforcement.” Jd. Plaintiff has alleged no

facts to plausibly demonstrate that he had an entitlement to his elected position as

Town Supervisor that was protected by the Due Process Clause. Supreme Court and

Second Circuit precedent are clear that Plaintiff lacks a constitutionally cognizable

property interest in his former elected office. See, e.g., Velez, 401 F.3d at 87-88.

In the Supreme Court’s decision in Taylor and Marshall v. Beckham, 178 U.S.

548 (1900), “the governor of Kentucky claimed to have been deprived of property—

namely, his political position—without due process of law, since, he averred, the

recount election ousting him from office was marred by voter fraud.” Velez, 401 F.3d

at 86 (describing Taylor). The Court rejected his claim in short order, stating “[t]he

decisions are numerous to the effect that public offices are mere agencies or trusts,

and not property as such... . [G]enerally speaking, the nature of the relation of a

public officer to the public is inconsistent with either a property or a contract right.”

Taylor, 401 F.3d at 577-88 (concluding plaintiff-official had been “denied no right

secured by the 14th Amendment”). As the Second Circuit recounted, “[i]Jn Snowden,

the [Supreme] Court, reaffirming Taylor, again asserted that elected offices cannot

constitute ‘property’ within the meaning of the Fourteenth Amendment:”

More than forty years ago this Court determined that an unlawful denial

by state action of a right to state political office is not a denial of a right

of property ... secured by the due process clause. Taylor and Marshall

v. Beckham, 178 U.S. 548 [(1900)]. Only once since has this Court had

occasion to consider the question and it then reaffirmed that conclusion,

Cave v. State of Missouri ex rel. Newell, 246 U.S. 650 [(1918)], as we

reaffirm it now.

Velez, 401 F.3d at 86 (quoting Snowden, 321 U.S. at 7). “The Court’s pronouncements

in Taylor and Snowden have since been echoed in numerous decisions.” Jd. (citing

Burks v. Perk, 470 F.2d 163, 165 (6th Cir. 1972) (per curiam) (“Public office is not

property within the meaning of the Fourteenth Amendment.”) (citing Taylor ); Rabkin

v. Dean, 856 F. Supp. 548, 549 (N.D. Cal. 1994) (asserting that elected officials are

not “employees” in the traditional sense, and hence do not hold a property interest in

their positions); Sweeney v. Tucker, 473 Pa. 498, 524, 375 A.2d 698 (1977) (rejecting

legislator’s property interest claim, and noting that, because an elected official “holds

office for the benefit of his constituents and cannot justifiably rely on a private need

or expectation in holding office,” an elected office “is a public trust, not the private

domain of the officeholder.”); Guzman Flores v. Coll. of Optometrists, 106 F. Supp. 2d

212, 214 (D.P.R. 2000) (relying on Taylor and Snowden to dismiss a property interest

claim put forth by a candidate for public office, and stating, “the Supreme Court

squarely addressed the issue now before the Court and held that there was no due

process right to seek election to public office .... Therefore, Guzman does not have a

valid due process claim in the instant case.”)).

For at least these reasons, Plaintiffs pleaded claims of violations of procedural

due process cannot reasonably support awarding preliminary injunctive relief.

CONCLUSION

In sum, Plaintiff has not established a likelihood of success of the merits or a

serious question on the merits to warrant preliminary injunctive relief. Plaintiff is

afforded leave to amend his March 9, 2026 complaint within 30 days of this Decision

and Order. If Plaintiff elects not to timely file a second amended complaint, the Court

will proceed to referring the case to a magistrate judge in light of Defendants’ March

23, 2026 answer.

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ORDER

IT IS HEREBY ORDERED that Plaintiffs motion for a TRO and a preliminary

injunction, ECF No. 4, is DENIED; and it is further

ORDERED that Plaintiff may file a second amended complaint as directed

above within thirty (80) days of this Decision and Order; and it is further

ORDERED that if Plaintiff does not file a second amended complaint within

thirty (80) days of this Decision and Order, the Court shall refer the case, with

Plaintiffs March 9, 2026 complaint being the operative pleading, to a magistrate

judge; and it is further

ORDERED that pursuant to Western District of New York Local Rule of Civil

Procedure 5.2(d), Plaintiff must immediately notify the Court in writing each time

her address changes. Failure to do so may result in dismissal of the action with

prejudice.

SO ORDERED.

Dated: April 24 2026

Rochester, New York Od, if, yf (bs VL, Ay

UNITED STATES DISTRICT JUDGE

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