Smith v. Pollino

CHRISTOPHER P. SMITH, Plaintiff, v. JOSEPH POLLINO, ET AL, , Defendant.

CIVIL ACTION NO. 3:19-CV-00639-KDB-DCK

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

May 1, 2020

ORDER

It is often said that all politics is local. This case presents the question of whether local politics, specifically an intensely local political dispute, is cause for a federal lawsuit. Plaintiff Christopher Smith was a mayoral candidate in the November 2019 general election for the Village of Marvin, North Carolina (the "Village" or "Marvin"). He alleges that Defendants - who are the Village, the Village's Mayor Joseph Pollino and other Marvin politicians - violated federal and state law by their conduct in response to Smith's decision to support a write in candidate for the Village Council who the individual Defendants opposed.

If true, Smith's allegations show that Pollino and the other individual Defendants acted unprofessionally, profanely and perhaps in violation of state law. However, the critical threshold issue before this Court on Defendants' motions to dismiss the Amended Complaint, (Doc. Nos. 37, 39 and 41), is whether Smith has plausibly alleged a violation of 42 U.S.C. § 1983, the only basis on which this Court could exercise subject matter jurisdiction over the parties' dispute. After considering these motions and the parties' extensive written arguments, the Court finds that Smith has not sufficiently pled a claim under Section 1983 and, accordingly, will GRANT the motions to dismiss Plaintiff's lone federal claim. Also, the Court will dismiss Smith's supplemental state claims without prejudice so that those claims may be refiled in state court if Smith chooses to do so.¹

I. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012). A court need not accept a complaint's "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). The court, however, "accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Id. Construing the facts in this manner, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. Thus, a motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

A motion to dismiss based on Federal Rule of Civil Procedure 12(b)(1) addresses whether the court has subject-matter jurisdiction to hear the dispute, see Fed. R. Civ. P. 12(b)(1), and Plaintiff bears the burden of proving that subject matter jurisdiction exists. Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). "[F]ederal courts are courts of limited jurisdiction,constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998) (quotation omitted); see Gunn v. Minton, 568 U.S. 251, 256 (2013); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). There is no presumption that a federal court has subject-matter jurisdiction. See Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999).

Plaintiff alleges that the Court has subject matter jurisdiction based on Federal question jurisdiction, 28 U.S.C. § 1331. Federal question jurisdiction arises only from "those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of the State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-28 (1983). In this action, only one of Plaintiff's claims purports to set forth a federal question - the claim under 42 U.S.C. § 1983. If the Court finds that Plaintiff's federal claim cannot proceed then the court may decline to exercise supplemental jurisdiction over his remaining state-law claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 394 (4th Cir. 2012).

II. FACTS AND PROCEDURAL HISTORY

Plaintiff was a mayoral candidate in the Village's November 2019 general election (the "Election"). (Amended Complaint, Doc. No. 34, at ¶ 63). The Defendants are the Village; Marvin's mayor Pollino; Michael Lavelle and Jon Jones, members of the Village Planning Board; and Robert Marcolese and Jamie Lein, who were the two successful Village Council candidates in the Election.

Smith decided to run for mayor in late 2018 and met with Pollino to discuss his decision and to solicit Pollino's feedback. (Id. at ¶¶ 63, 65). In that meeting, Pollino told Smith that he would not seek re-election. (Id. at ¶ 66). There were three positions with Village government on the ballot in the Election: mayor, and two open seats on Village Council. (Id. at ¶ 64). For most of the year leading to the November 2019 general election, Marcolese and Lein were the only two candidates for the open Council seats and Smith met with them on several occasions. (Id. at ¶ 71).

Part of Smith's discussions with Marcolese and Lein involved their complaints against now former Village Councilmember Mary Shkut, who at that time was a controversial member of the Village council. (Id. at ¶ 72). In May 2018, Shkut had been appointed, in a split vote, to fill the seat and term of a departing Councilmember. (Id. at ¶¶ 25-28). The vote occurred during the absence of another Councilmember who would have voted against her, which would have led to denying her the appointment. (Id.) Shkut's appointment under these circumstances led Pollino and the members of the Council who opposed her to refuse to recognize her appointment and pursue a lengthy effort to denounce the appointment in the Council and later to file litigation to invalidate the appointment. (Id. at ¶¶ 32-58). Smith characterizes these legislative and legal challenges to the validity of Shkut's appointment as the Village's "disapproval of Mary Shkut." (Id. at, e.g., ¶¶ 38, 47, 50).

Following his meetings with Marcolese and Lein, Smith decided to meet with Shkut. (Id. at ¶ 82). Despite Marcolese and Lein's negative view of Shkut and all the drama attendant to her appointment, Smith came to believe that Shkut was an asset to the Village Council, and Smith encouraged Shkut to consider a write-in campaign to retain her seat. (Id. at ¶ 84). In late October 2019, Shkut registered a notice of candidacy with the Union County Board of Elections.(Id. at ¶ 86). After Shkut entered the council race, Smith gave Shkut a letter of endorsement and authorized Shkut to publish the letter to Shkut's campaign website. (Id. at ¶ 87).

The political backlash against Smith from the Village politicians who opposed Shkut was swift and passionate. The Sunday after Shkut published Smith's endorsement (only two days before the Tuesday election), Plaintiff received three phone calls. The first two calls were from Kimberly Vandenberg, a Village Councilmember, and her husband Mike Vandenberg. (Id. at ¶¶ 88-91). Both Vandenbergs, allegedly using foul and explicit language, criticized Smith's endorsement of Shkut and urged him to withdraw his support of her. (Id. at ¶¶ 88-91). Then, Smith received a call from Pollino who demanded that Plaintiff rescind his support for Shkut and said that if he didn't do so then Pollino would conduct a write in campaign against Smith for Mayor. (Id. at ¶¶ 94-95). Also, during the call, Pollino allegedly told Smith that he had learned that, if Shkut were elected, several Village employees would quit their jobs; that his decision to support Shkut put careers, livelihoods, and families at stake; and, finally, that if Smith did not rescind his support for Shkut, Pollino would fabricate and disseminate a story to residents in the Village that Smith had engaged in an extra-marital affair. (Id. at ¶¶ 96-99). Smith alleges that he was shocked and intimidated by the call. (Id. at ¶ 101).

The next day, the Monday before the election, Smith began seeing signs encouraging voters to vote for Pollino as a write-in candidate for mayor. (Id. at ¶ 104). Smith also received a text message from Defendant Lavelle, with whom Smith served as volunteer members of the Village Planning Board. (Id. at ¶ 106). In the text, Lavelle wrote that he "was extremely shocked and disappointed that [Plaintiff] chose to endorse [Mary Shkut]" and asked if Plaintiff would be at the Planning Board meeting so that they "could talk after." Plaintiff replied that he would be at the meeting and that "[he]'d like to catch up afterwards as well." (Id.)

Smith alleges that Leavelle's text was part of a "coordinated plan" to " confront" Smith. (Id. at ¶ 114). After the planning meeting, Smith and Pollino, Lavelle, Lein, and Marcolese walked outside to a parking lot. (Id. at ¶¶ 115-116). Smith alleges that the four men closely surrounded and began screaming at him. (Id. at ¶¶ 117, 119-120). Lein shouted that Smith was a liar, a "piece of shit," and a man without morals. Marcolese shouted that Smith had betrayed him and Lein. Pollino also shouted epithets at Smith. Smith alleges that at one point he attempted to leave, but Lein stopped him, pointed his...