Mullen v. Vill. of Painted Post

356 F.Supp.3d 275

Dennis M. MULLEN, Plaintiff,

v.VILLAGE OF PAINTED POST, Ralph Foster, as Mayor of Painted Post, David Smith, Individually and as Trustee of Village Board of Painted Post, Richard Lewis, Individually and as Trustee of Village Board of Painted Post, Brian Francis, Individually and as Trustee of Village Board of Painted Post, and William Scheidweiler, Individually and as Trustee of Village Board of Painted Post, Defendants.

6:17-CV-06728 EAW

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

Signed January 25, 2019

Michael T. Harren, Trevett, Cristo, Salzer & Andolina P.C., Rochester, NY, for Plaintiff.

Charles C. Spagnoli, Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Dennis M. Mullen ("Plaintiff"), the former police chief for defendant the Village of Painted Post (the "Village"), brings this action pursuant to 42 U.S.C § 1983 for an alleged violation of his right to due process, and he also asserts a claim under New York State law. (Dkt. 2). Presently before the Court is Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons discussed below, Defendants' motion is granted in part and denied in part.

BACKGROUND

I. Factual Background

The following facts are taken from Plaintiff's Amended Complaint. (Dkt. 2). The Court further takes judicial notice of the allegations set forth in the Verified Petition filed by Plaintiff in New York state court (Dkt. 21-2), which provide additional context. See Landow v. Wachovia Sec., LLC , 966 F.Supp.2d 106, 119 (E.D.N.Y. 2013) ("A district court may ... take judicial notice of admissions in pleadings and other documents in the public record filed by a party in other judicial proceedings...." (internal quotation omitted) ). As is required at this stage of the proceedings, the Court has treated Plaintiff's allegations as true.

Plaintiff is a retiree of the New York State Police and is receiving a pension from the New York State Retirement System with respect to that service. (Dkt. 21-2 at ¶ 10). Pursuant to New York State Retirement and Social Security Law ("RSSL") § 212, such a retiree may return to work in the public sector and earn up to $30,000 per year without affecting his pension. In addition, RSSL § 211 sets forth criteria for a waiver permitting a retiree to return to public service and earn more than $30,000 without affecting his pension; Plaintiff was granted such a waiver with respect to his employment as the Village's police chief. (Id. at ¶¶ 12-23).

The position of police chief is classified in the "competitive class" by the Steuben County Civil Service, and Plaintiff claims to have held the position as a permanent appointment. (Dkt. 2 at ¶¶ 12, 13). Plaintiff contends that pursuant to New York Civil Service Law § 75 (hereinafter "NYCSL § 75"), "an employee with a permanent appointment to a position in the competitive class may be removed from his position only upon a finding of incompetence or misconduct[.]" (Dkt. 2 at ¶ 14).

On or about September 14, 2017, Plaintiff was informed that the Village had identified a non-retired candidate for the role of police chief. (Dkt. 21-2 at ¶ 20).¹ That same day, Defendant Ralph Foster ("Mayor Foster") issued a memorandum to Plaintiff requiring him to select one of three options by October 2, 2017: (1) maintain his $60,000 per year salary and suspend his pension; (2) reduce his salary to $30,000 per year and continue to collect his pension; or (3) resign. (Id. at ¶ 21).

On or about October 2, 2017, Plaintiff met with Mayor Foster and Defendant Brian Francis, a member of the Village's Board of Trustees (the "Village Board"). (Id. at ¶ 22). Plaintiff requested additional time and information before electing from the offered options, but the Village Board "refused to give him additional time and notified him that he was terminated as Police Chief." (Dkt. 2 at ¶ 19).

II. Procedural Background

Plaintiff commenced the instant action on October 23, 2017. (Dkt. 1). The Amended Complaint (the operative pleading) was filed on October 24, 2017. (Dkt. 2). Defendants answered the Amended Complaint on December 6, 2017. (Dkt. 9).

On January 31, 2018, Plaintiff filed a Verified Petition challenging his termination in New York State Supreme Court, Steuben County, pursuant to N.Y. Civil Practice Law and Rules Article 78 ("Article 78"). (Dkt 21-2). Respondents filed a Verified Answer to Plaintiff's Verified Petition on March 6, 2018. (Dkt. 21-3). On March 28, 2018, the state court entered an order finding that Defendants had violated NYCSL § 75, "notwithstanding any alleged outstanding issues with respect to the RSSL 211 waiver," and ordering that Plaintiff be reinstated to his position with full back pay and benefits. (Dkt. 21-4 at 1-2).

Defendants filed the instant motion for judgment on the pleadings on March 14, 2018. (Dkt. 17). Plaintiff filed a response on May 1, 2018 (Dkt. 21), and Defendants filed a reply on May 7, 2018 (Dkt. 22).

DISCUSSION

I. Legal Standard

"Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings." McAuliffe v. Barnhart , 571 F.Supp.2d 400, 402 (W.D.N.Y. 2008). "In deciding a Rule 12(c) motion for judgment on the pleadings, the court should ‘apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.’ " Aboushama v. EMF Corp. , 214 F.Supp.3d 202, 205 (W.D.N.Y. 2016) (quoting Mantena v. Johnson , 809 F.3d 721, 727-28 (2d Cir. 2015) ).

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). To withstand dismissal, a complaint must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

II. Plaintiff's Due Process Claims

Plaintiff's Amended Complaint contains three causes of action, two of which are based on the alleged denial of his right to federal due process (Dkt. 2 at ¶¶ 25-31), and the third of which is a state law claim for violation of NYCSL § 75 (id. at ¶¶ 32-33). Defendants seek judgment on the pleadings as to all of Plaintiff's claims. With respect to the due process claims, Defendants argue that the pre-deprivation procedures used in this case, combined with the availability of post-deprivation review under Article 78, satisfy the requirements of due process. The Court disagrees that the due process claims can be resolved as a matter of law at this stage of the proceedings, for the reasons discussed below.

A. Applicable Legal Principles

The Due Process Clause of the Fourteenth Amendment was "intended to secure the individual from the arbitrary exercise of the powers of government ... [and] serves to prevent governmental power from being used for purposes of oppression." Daniels v. Williams , 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (quotations and citations omitted). To succeed on a due process claim, a plaintiff must establish that "he or she possesses a constitutionally protected interest in life, liberty, or property, and that state action has deprived him or her of that interest." Valmonte v. Bane , 18 F.3d 992, 998 (2d Cir. 1994). The Second Circuit has recognized that continued public employment covered by NYCSL § 75 gives rise to a protected property interest. See O'Neill v. City of Auburn , 23 F.3d 685, 688 (2d Cir. 1994) ("We have previously held that § 75 gives covered employees a property interest in their employment, so that they may not be terminated without notice and hearing."); Dwyer v. Regan , 777 F.2d 825, 829 (2d Cir. 1985) ("[A]n employee of the New York City Police Department whose position was subject to N.Y. Civ. Serv. Law § 75(1) thereby possessed an enforceable expectation of continued public employment, which constituted a property interest in [her] job that will be protected by the due process clause." (quotation marks omitted) ), modified , 793 F.2d 457 (2d Cir. 1986) ; Anderson v. Dolce , 653 F.Supp. 1556, 1565 (S.D.N.Y. 1987) ("Both federal and state courts have found that Section 75 creates a property interest in continued employment, with the requisite minimum standards of due process attaching.").²

"An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case."

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