Lynch v. Southampton Animal Shelter Found. Inc.

971 F.Supp.2d 340

Patricia LYNCH, Plaintiff,

v.The SOUTHAMPTON ANIMAL SHELTER FOUNDATION INC., Susan Allen, Susan Kelly, the Town of Southampton, and Donald Bambrick, Defendants.

No. 10–CV–2917 (ADS)(ARL).

United States District Court, E.D. New York.

Sept. 19, 2013.

The Law Offices of Steven A. Morelli, P.C. by Steven A. Morelli, Esq., Garden City, NY, Eris S. Tilton, P.L.L.C. by Eric S. Tilton, Esq., of Counsel, Babylon, NY, Attorneys for the Plaintiff.

Ohrenstein & Brown by Michael D. Brown, Esq., Rosario DeVito, Esq. of Counsel, Garden City, NY, Attorneys for the Defendants Southampton Animal Shelter Foundation Inc., Susan Allen and Susan Kelly.

Humes & Wagner, LLP by Brian A. Smith, Esq., of Counsel, Locust Valley, NY, Attorneys for the Defendants Town of Southampton and Donald Bambrick.

AMENDED MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This is the second case to come before this Court involving the written and spoken criticism of the animal euthanasia policy and operational policies at the Southampton Animal Shelter (the “Shelter”) by the Plaintiff Patricia Lynch (the “Plaintiff”). The events underlying the first case, Lynch v. Town of Southampton (“ Lynch I ”), No. 05–CV–4499 (Spatt, J.), took place when the Shelter was operated by the Defendant Town of Southampton (the “Town”) and arose from the Town's decision to terminate the Plaintiff as a volunteer at the Shelter on February 27, 2004. In addition to the Town, the Plaintiff named her supervisor Donald Bambrick (“Bambrick”) as a defendant in the case. After a jury trial, the Town, but not Bambrick, was held liable pursuant to 42 U.S.C. § 1983 for retaliating against the Plaintiff for exercising her First Amendment right to free speech.

Subsequent to the resolution of Lynch I, the Town entered into an agreement on December 29, 2009, with the Southampton Animal Shelter Foundation, Inc. (the “Foundation”) to privatize aspects of the Shelter's operations. On January 12, 2010, after the Foundation assumed control of the Shelter, Lynch's application to volunteer at the Shelter was denied. As a result, the Plaintiff commenced the instant action against the Foundation, its senior officer and director Susan Allen (“Allen”), the Director of Personnel Susan Kelly (“Kelly”) and, together with the Foundation and Allen, the (“Foundation Defendants”), as well as the Town and Bambrick (the “Town Defendants”). The Plaintiff alleges that the Foundation Defendants and the Town Defendants (collectively the “Defendants”) denied her application to volunteer at the Shelter in retaliation for her exercising of her First Amendment rights to free speech and to petition the government for redress of her grievances in violation of 42 U.S.C. §§ 1983, 1985, and 1986.

Presently before the Court are the Defendants' motion for summary judgment and the Plaintiff's cross-motion for summary judgment pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ.P.”) 56. For the reasons and in the manner set forth below, the Court grants in part and denies in part the respective motions for summary judgment. In this regard, the Court grants summary judgment in favor of the Defendants as to the Plaintiff's §§ 1985 and 1986 claims. However, the Court declines to grant summary judgment as to the Plaintiff's § 1983 civil rights claim and § 1983 conspiracy claim, except that the Court does find as a matter of law that the public function test does not apply in this case and therefore grants summary judgment in favor of the Defendants with respect to that issue.

I. BACKGROUND

A. The Plaintiff's Initial Involvement with the Shelter and Lynch I

The Plaintiff is an investigative journalist and an animal rights advocate. Beginning in October 2000, she started volunteering at the Shelter. At that time, the Shelter was operated by the Defendant Town, and was supervised by the Defendant Bambrick, who held the title of Senior Animal Control Officer. However, the Plaintiff's involvement with the Shelter extended beyond that of a volunteer. In this regard, in January 2001, she produced a documentary film about conditions at the Shelter, and in June of 2003, she began a radio show called “Pet of the Week” to help to get animals adopted by members of the community. In addition, the Plaintiff began writing a newspaper column called “Shelter Stories” for The Southampton Press regarding animals for adoption. Through this media and others, the Plaintiff openly criticized: (1) the Shelter's animal euthanasia policies; (2) the Shelter's facility operations; (3) the manner of construction of a new shelter; (4) the use of taxpayer's money in the operations of the Shelter; and (5) the Shelter's adoption policies.

On February 24, 2004, the Plaintiff filed a lawsuit in the state court against the Town seeking an order enjoining the Shelter from euthanizing animals. See Lynch v. Town of Southampton, Index No. 5966–2004 (N.Y. Sup.Ct., Suffolk County) (the “State Action”). According to the Plaintiff, the Town was given notice of the impending motion for an injunction on February 23, 2004; the request for an injunction was filed on February 24, 2004; and was subsequently covered in the local press on February 25, 2004. On August 19, 2004, Justice Melvyn Tanenbaum rendered a decision in the State Action, denying the request for an injunction.

On February 27, 2004, three days after the Town received notice of the State Action, The Plaintiff was terminated from her position as a volunteer at the Shelter and banned from further association with the Shelter. As a result, on September 22, 2005, the Plaintiff commenced Lynch I against the Town and Bambrick alleging that her position was terminated in retaliation for her speech criticizing the Shelter and its policies. This Court held a jury trial in Lynch I between February 6 and February 12, 2007, and on February 14, 2007, the jury found that the Town, but not Bambrick, had violated the Plaintiff's First Amendment rights by terminating her from her position as a volunteer with the Shelter in retaliation for the statements she had made regarding the conditions, policies and practices at the Shelter. On December 2, 2008, the Second Circuit affirmed the jury verdict and the judgment. Lynch v. Town of Southampton, ––– Fed.Appx. ––––, No. 07–3478–cv, 2008 WL 5083010, at *1 (2d Cir. Dec. 02, 2008). Subsequent to the Second Circuit's decision affirming the jury's verdict in Lynch I, the Shelter permitted the Plaintiff to resume her duties as a volunteer dog walker.

B. The Privatization of the Shelter

In the fall of 2008, confronted with multi-million dollar budgetary deficits and the developing national financial crisis, the Town decided to reduce the 2009 budget for the Shelter. Thereafter, in 2009, the Town considered closing the Shelter as a way to address its continuing budgetary concerns. The Town also looked into the possibility of privatizing the shelter pursuant to §§ 113 and 114 of the New York State Agriculture and Markets Law (“NYSAML”), formerly §§ 114 and 115 respectively. Under these provisions, a town may contract animal shelter services with an incorporated humane society or similar incorporated dog protective association.

To that end, on an unspecified date, Town officials met with the Defendants Allen and Kelly, as well as attorney Robert Werbel, Esq. (“Werbel”), to preliminary discuss privatizing the Shelter. Following this meeting, in October 2009, Allen with other local citizens formed the Foundation.

In the meantime, on August 25, 2009, the Town Board adopted Resolution 2009–933, which authorized a solicitation of proposals for the operation of the Shelter. On September 3, 2009, after proper legal notice, a request for proposals was made publically available. The deadline for submitting proposals was September 30, 2009. By that deadline, two proposals were submitted, one of which was the Foundation's proposal. On October 16, 2009, the Town Board reviewed the two proposals and ultimately selected the proposal from the Foundation.

On October 30, 2009, pursuant to Resolution 2009–1140, “the Town Board authorize[d] the Town Attorney's Office to complete and finalize contractual negotiations with the [Foundation] for the privatization of the shelter and to produce to the Town Board a report and term sheet on or before November 13, 2009.” (Thorne–Holst Decl., Exh. 3.) Thus, the Town, through Assistant Town Attorney Joseph Burke, Esq. (“Burke”), and the Foundation, through Werbel, commenced negotiations. Eventually, the Town and the Foundation agreed upon the basic terms for the privatization of the Shelter, including the limit of the Town's responsibilities and financial contributions for the various services that the Foundation would provide while operating the Shelter. The Town Attorney provided a report to the Town Board, dated November 13, 2009, reflecting “the terms which the parties intended to formalize in an agreement by year-end 2009.” (Thorne–Holst Decl., Exh. 4.)

On December 8, 2009, the Town Board adopted Resolution 2009–1313, under which it “authorize[d] the [Town] Supervisor to enter into and execute an Agreement, subject to approval by the Town Attorney's Office, with the [Foundation] to operate and manage the [Shelter] for a three (3) year term, commencing on January 1, 2010[.]” (Thorne–Holst Decl., Exh. 4.) Afterward, the Town and the Foundation, through Burke and Werbel respectively, engaged in final negotiations, and on December 29, 2009, the parties entered into a contract granting the Foundation authority to operate the Shelter (the “Agreement”).

As part of the Agreement, the Town and the Foundation agreed that “[t]he Foundation shall be solely responsible for the recruitment, hiring and/or termination of all staff and/or volunteers.” (Werbel Decl., Exh. 12.) They further agreed that “[t]he Shelter may operate a volunteer and/or community service program and, in such event, shall assume liability for, appropriately...