Ruggiero v. City of Cortland, New York et al

Filing 77

MEMORANDUM-DECISION & ORDER: It is Ordered that the # 71 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART AND DENIED IN PART; further that the # 73 Cross Motion for Leave to File a Third Amended Complaint is DENIED, Plaintiff 9;s First Amendment retaliation and Fourteenth Amendment Equal Protection claims against the City, Mayor Tobin, Attorney Van Donsel, Tax Assessor Briggs, Zoning Officer Rhea, Chairperson Hickey, Alderman Sillman REMAIN for discovery and, if appropria te, summary judgment motions; Plaintiff's renewed claim against Officer Myers is DISMISSED WITH PREJUDICE; The Clerk of the Court is directed to terminate Officer Myers as a defendant in this action; The City, Mayor Tobin, Attorney Van Donsel, T ax Assessor Briggs, Zoning Officer Rhea, Chairperson Hickey and Alderman Sillman shall file an answer to plaintiff's First Amendment retaliation and Fourteenth Amendment Equal Protection claims on or before May 17, 2019. Signed by Judge David N. Hurd on 5/3/2019. (Copy served upon the pro se plaintiff via regular mail) (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------GERALD RUGGIERO,
Plaintiff,
-v-

5:17-CV-790

CITY OF CORTLAND,
NEW YORK, BRIAN
TOBIN, individually
and in his official capacity
as Mayor, RICHARD VAN
DONSEL, individually and in
his official capacity as
Corporation Counsel, DAVID
BRIGGS, individually and
in his official capacity as Tax
Assessor, ROBERT RHEA,
individually and in his official
capacity as Zoning Officer,
MARY KAY HICKEY, individually
and in her official capacity as
Chairperson of the Zoning Board
of Appeals Chairperson,
KATHRYN SILLIMAN, individually
and in her official capacity as
Alderman, BRIAN MYERS,
individually and in his official
capacity as Police Officer, JOHN
DOE(S), and JANE DOE(S),
Defendants.
----------------------------------APPEARANCES:
GERALD RUGGIERO
Plaintiff, Pro Se
764 Sleepy Hollow Road
Cortland, NY 13045

OF COUNSEL:

OFFICE OF FRANK W. MILLER
Attorneys for Defendants City of
Cortland, New York, Brian Tobin,
Richard Van Donsel, David Briggs,
Robert Rhea, Mary Kay Hickey, and
Kathryn Silliman,

FRANK W. MILLER, ESQ.
CHARLES C. SPAGNOLI, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On July 19, 2017, pro se plaintiff Gerald Ruggiero ("Ruggiero" or "plaintiff"), a
Cortland-area businessman who invests in rental properties, initiated this civil rights action
against defendants County of Cortland, New York (the "County"), Cortland County District
Attorney Mark Suben ("District Attorney Suben"), the City of Cortland, New York (the "City"),
Mayor Brian Tobin ("Mayor Tobin" or "Tobin"), Corporation Counsel Richard Van Donsel
("Attorney Van Donsel"), Tax Assessor David Briggs ("Tax Assessor Briggs"), Zoning Officer
Robert Rhea ("Zoning Officer Rhea"), Director of Administration and Finance Mack Cook
("Director Cook"), Director of Code Enforcement William Knickerbocker ("Director
Knickerbocker"), Fire Chief Charles Glover ("Fire Chief Glover" or "Glover"), Zoning Board of
Appeals Chairperson Mary Kay Hickey ("Chairperson Hickey"), Planning Commission
Member Jim Reeners ("Commission Member Reeners"), Planning Commission Member Troy
Beckwith ("Commission Member Beckwith"), Alderman Kathryn Silliman ("Alderman
Silliman"), Alderman Ken Dye ("Alderman Dye"), Alderman Thomas Michales ("Alderman
Michales"), Alderman John Bennett, Jr. ("Alderman Bennett"), Chief of Police F. Michael
Catalano ("Police Chief Catalano"), Deputy Chief of Police Paul Sandy ("Deputy Chief
Sandy"), Police Officer Brian Myers ("Officer Myers"), Police Officer Kenneth Bush ("Officer
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Bush"), and John and Jane Does (collectively the "Does").
At the time he filed his complaint, Ruggiero also sought a temporary restraining order
enjoining the enforcement of certain occupancy restrictions imposed by the City's zoning
ordinances. According to plaintiff's filings, the extraordinary remedy of an injunction was
warranted because the City and various City officials, many of whom he named as
defendants in this action, were selectively enforcing the laws against him. Plaintiff's motion
was denied on July 26, 2017. Thereafter, the twenty-one named defendants answered
plaintiff's complaint.
On August 29, 2017, Ruggiero filed an amended pleading. This first amended
complaint set forth eight federal causes of action pursuant to 42 U.S.C. §§ 1983 and
1985. This pleading also set forth a related cause of action based on the New York State
Constitution. All of the named defendants filed new answers to plaintiff's new pleading.
On January 8, 2018, the County and District Attorney Suben (collectively the "County
defendants") moved under Federal Rule of Civil Procedure ("Rule") 12(c) for a judgment on
the pleadings dismissing Ruggiero's first amended complaint insofar as it asserted one or
more claims against them.
That same day, the City, Mayor Tobin, Attorney Van Donsel, Tax Assessor Briggs,
Zoning Officer Rhea, Director Cook, Director Knickerbocker, Fire Chief Glover, Chairperson
Hickey, Commission Member Reeners, Commission Member Beckwith, Alderman Silliman,
Alderman Dye, Alderman Michales, Alderman Bennett, Police Chief Catalano, Deputy Chief
Sandy, Officer Myers, and Officer Bush (collectively the "City defendants") also filed a Rule
12(c) motion requesting complete dismissal of the various claims asserted against them.
Ruggiero opposed both filings. On November 14, 2018, the dismissal motions were
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resolved in a forty-one page Memorandum–Decision & Order (the "November 14
MDO"). Ruggiero v. City of Cortland, 2018 WL 5983505 (N.D.N.Y. Nov. 14, 2018)
("Ruggiero I").
There, in addition to the voluminous factual allegations contained in his thirty-page
operative pleading, the Court also considered additional factual allegations presented for the
first time in plaintiff's opposition memoranda. Ruggiero I, 2018 WL 5983505. As the Court
explained, this solicitude was appropriate because plaintiff is a pro se litigant. Id.
In Ruggiero I, the Court granted the County defendants' motion for judgment on the
pleadings because prosecutorial immunity shielded District Attorney Suben, and therefore
the County, from facing Ruggiero's § 1983 claims for false arrest and malicious
prosecution. Ruggiero I, 2018 WL 5983505, at *9-*11. Those claims were dismissed with
prejudice and those parties were terminated as defendants in this action.
The November 14 MDO also granted the City defendants' motion for judgment on the
pleadings. Ruggiero I, 2018 WL 5983505, at *12-*18. As relevant here, the November 14
MDO dismissed with prejudice Ruggiero's § 1983 claims for false arrest, malicious
prosecution, denial of medical treatment as well as his state law constitutional claim.
However, in light of the fact that Ruggiero requested leave to amend his complaint "in
the event the Court finds deficiencies in one or more of his claims," the November 14 MDO
dismissed without prejudice plaintiff's § 1983 claims for retaliation and equal
protection. Ruggiero I, 2018 WL 5983505, at *15, *18. As the November 14 MDO
explained, this course of action was appropriate because:
In this case, Ruggiero's filings suggest he may have a plausible First
Amendment retaliation claim and/or Fourteenth Amendment Equal
Protection claim against one or more of the City defendants. See,
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e.g., Graham v. Macy's, Inc., 2016 WL 354897 at *10 (S.D.N.Y. Jan.
28, 2016) (observing that pro se litigant had been permitted
opportunity to amend, at least in part, because her motion papers
contained new allegations that "begin to—although they do not
fully—remedy the deficiencies in her Complaint"). Accordingly, he
will be given leave to replead the factual circumstances surrounding
those claims. However, amendment of plaintiff's other claims would
be futile and therefore he will not be permitted to replead them.
Ruggiero I, 2018 WL 5983505, at *18.
The November 14 MDO also carefully explained its expectations in the event Ruggiero
chose to submit a renewed pleading:
Any amended pleading filed by Ruggiero must be a complete
pleading. In other words, it will supersede and replace his prior
pleading in all respects. Plaintiff is advised that he cannot
incorporate by reference any portion of his prior filings. And
although plaintiff may attach documents to his pleading if he wishes,
he is advised that he should plead within the numbered paragraphs
of the complaint itself each fact or facts upon which he seeks to
pursue a claim. Plaintiff is further advised that, to the extent
practicable, he should plead with specificity the time, place, and
description of each event or events on which he seeks to base a
First Amendment or Equal Protection claim. Finally, although
plaintiff has named eighteen different City officials and an
unspecified number of Does, he should take care to identify the
specific actor or actors responsible for each alleged instance of
misconduct and describe how they were each "personally involved"
in the constitutional violation.
Ruggiero I, 2018 WL 5983505, at *19.
Thus, the November 14 MDO afforded Ruggiero a thirty-day period in which to file an
amended complaint "as to the First Amendment retaliation and Fourteenth Amendment
Equal Protection claims against the City defendants in accordance with the instructions set
forth above." Id.
On December 14, 2018, Ruggiero filed a second amended complaint. Shortly
thereafter, the City defendants moved under Rule 12(b)(6) to dismiss plaintiff's renewed
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pleading. According to defendants, plaintiff's second amended complaint: (1) failed to
plausibly allege either a First Amendment retaliation or a Fourteenth Amendment Equal
Protection claim; and (2) improperly re-asserted claims that had been dismissed with
prejudice in Ruggiero I.
On January 22, 2019, Ruggiero filed an opposition to the City defendants' motion and
included a cross-motion of his own in which he sought leave to file a third amended
complaint. In reply, the City defendants urged the Court to deny plaintiff's request for leave
to further amend.
The dueling motions have been fully briefed and will be considered on the basis of the
submissions without oral argument.
II. DISCUSSION1
As an initial matter, Ruggiero's cross-motion for leave to file a third amended
complaint will be denied.
Although pro se plaintiffs are entitled to a significant measure of latitude when it
comes to pleading and in matters of procedure, the solicitude afforded to a party who
chooses to proceed without the benefit of a lawyer is not boundless. See Tracy v.
Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (explaining that "a pro se litigant lacks both legal
training and experience and, accordingly, is likely to forfeit important rights through
inadvertence if he is not afforded some degree of protection").
The City defendants correctly assert that Ruggiero I offered plaintiff a limited
opportunity to replead two of his § 1983 claims, not carte blanche to take another crack at

1

Although defendants have moved for pre-answer dismissal this time around, the relevant legal
standard is the same as the one applied in Ruggiero I and will not be repeated here.
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re-pleading the lawsuit anew. By the time the November 14 MDO issued, plaintiff had
already amended his complaint once as of right. Notably, at that time plaintiff also enjoyed
the benefit of the Court's consideration of the additional factual allegations that were set forth
in his opposition submissions but not included in either of his first two pleadings. Ruggiero I,
2018 WL 5983505, at *7. The November 14 MDO determined, after carefully reviewing all of
these documents, that permitting further amendment as to most of plaintiff's claims would be
unproductive. See id.
However, it is precisely because of Ruggiero's status as a pro se litigant that the
November 14 MDO granted in part his request for an opportunity to replead a couple of
them. Ruggiero I, 2018 WL 5983505, at *18 (permitting amendment because "Ruggiero's
filings suggest he may have a plausible First Amendment retaliation claim and/or Fourteenth
Amendment Equal Protection claim against one or more of the City defendants").
And it is precisely because of Ruggiero's status as a pro se litigant that the November
14 MDO also gave him specific directions about what would (and what would not) suffice to
state a plausible claim for relief under either of those two theories, and how to go about
properly doing so in a single, unified pleading. See Ruggiero I, 2018 WL 5983505, at *15,
*18.
Therefore, Ruggiero's request for leave to file a third amended complaint will be
denied. And because plaintiff's other causes of action were dismissed with prejudice, only
the sufficiency of the First Amendment retaliation claim and the Fourteenth Amendment
Equal Protection claim will be considered. Ruggiero I, 2018 WL 5983505, at *18 (permitting
limited amendment for proper development of those claims). Accordingly, the pertinent
factual allegations set forth below are taken from the second amended pleading, Dkt. No. 67,
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that plaintiff filed in response to the instructions in Ruggiero I.2
A. Selective Zoning and Retaliation
In his prior pleading and related opposition submission, Ruggiero alleged that he was
"taken out of" a Zoning Board of Appeals ("ZBA") meeting when he tried to speak on the
record, and asserted that on April 7, 2015, Mayor Tobin and Zoning Officer Rhea "violated
his 'personal space' at a 'public meeting.'" Ruggiero I, 2018 WL 5983505, at *14-*15.
The November 14 MDO noted that Ruggiero did not explain "when, how, or under
what circumstances" that alleged action took place. Ruggiero I, 2018 WL 5983505, at
*14-*15. As the Court explained, those missing facts were critical because only "certain
kinds of disputes between private citizens and municipal officials can give rise to viable First
Amendment claims." Id. at *15; see also Soundview Assocs., 725 F. Supp. 2d at 340 ("The
elements of a First Amendment retaliation claim are dependent on the 'factual context' of the
case.").
In his second amended complaint, Ruggiero switches gears a bit. First, plaintiff's
renewed pleading eliminates from this action eleven of the named City defendants, leaving
only the City, Mayor Tobin, Attorney Van Donsel, Tax Assessor Briggs, Zoning Officer Rhea,
Chairperson Hickey, Alderman Silliman, and Officer Myers. Compl. ¶¶ 8-15.
Second, while Ruggiero re-alleges that City officials conspired to have police remove
him from at least one public meeting,3 see, e.g., compl. ¶ 38, this time plaintiff has also

2

A full recitation of the background is included in Ruggiero I and will not be repeated here.

3

This "forcible removal" claim—if understood as one for conspiracy or one based on a Fourth
Amendment violation—remains dismissed for the reasons set forth in Ruggiero I. However, if one or more of
the named defendants directed police or subordinates to remove plaintiff from one or more of these public
meetings, that conduct might well be relevant to plaintiff's retaliation claim, which survives dismissal.
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included significant factual details about the genesis of his fight with the City and its officials.
As Ruggiero explains, he and "several other landlords" initially sued the City after it
enacted Rental Housing Law § 102. Compl. ¶ 23. According to plaintiff, this state court
lawsuit theorized that § 102 allowed the City to "conduct warrantless searches in violation of
the Fourth Amendment." Id. Plaintiff alleges that he and the other landlords were successful
in this lawsuit, and that as a result "the City was forced to amend their law to remove their
overreach." Id.
Ruggiero further alleges that, since winning this state court lawsuit, Mayor Tobin's
administration has "prosecuted the plaintiffs in that case for zoning violations
disproportionately over the last several years in retaliation for suing the City." Compl. ¶ 24.
Among other things, plaintiff alleges that he has been "prosecuted multiple times without
probable cause" for the "very same zoning issues" that other, politically connected landlords
get away with on a regular basis. Id. ¶¶ 29, 56.
For instance, Ruggiero alleges that these "connected landlords" were "given illegal
CZOs" that allowed for "higher occupancy" than what is allowed at plaintiff's
properties. Compl. ¶ 58. Plaintiff also alleges that because of these and related actions, he
has lost substantial revenue from his rental properties. Id. ¶ 81.
Upon review, and mindful of Ruggiero's status as a pro se litigant, plaintiff's First
Amendment retaliation claim and his related Fourteenth Amendment equal protection claim
for selective enforcement of the zoning laws survive dismissal for the reasons discussed
below.
To plead a "selective enforcement" claim for equal protection, a plaintiff must allege
facts showing that: "(1) 'he, compared with others similarly situated, was selectively treated,
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and (2) the selective treatment was motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, or to punish or inhibit the exercise of
constitutional rights, or by a malicious or bad faith intent to injure the plaintiff.'" Panzella v.
City of Newburgh, 231 F. Supp. 3d 1, 7 (S.D.N.Y. 2017) (quoting Vaher v. Town of
Orangetown, 916 F. Supp. 2d 404, 433 (S.D.N.Y. 2013).
To be clear, "the Equal Protection Clause does not require perfectly uniform
enforcement efforts." Gray v. Town of Easton, 115 F. Supp. 3d 312, 320 (D. Conn. 2015),
aff'd sub nom. Gray v. Maquat, 669 F. App'x 4 (2d Cir. 2016) (summary order) (rejecting
selective enforcement claim premised on offhand remarks made by municipal official during
public meeting that suggested the municipality was aware that it was "guilty" of "selectively"
enforcing its some of its zoning laws).
Rather, the sine qua non of a selective enforcement claim is a showing that the
selective enforcement action about which the plaintiff complains was based on impermissibly
discriminatory or malicious reasons, such as an intention "to punish or inhibit the exercise of
constitutional rights, or by a malicious or bad faith intent to injure the plaintiff." Panzella, 231
F. Supp. 3d at 7.
Relatedly, "[i]n the context of a private citizen's action against public officials, the
plaintiff must show that: '(1) [it] has an interest protected by the First Amendment;
(2) defendants' actions were motivated or substantially caused by [plaintiff's] exercise of that
right; and (3) defendants' actions effectively chilled the exercise of [plaintiff's] First
Amendment right.'" Soundview Assocs. v. Town of Riverhead, 725 F. Supp. 2d 320, 340
(E.D.N.Y. 2010) (quoting Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)); see also
Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018).
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As this language indicates, a private citizen claiming retaliation must typically show
that they suffered an "actual chill" in their speech as a result of the defendants'
misconduct. Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir. 2011). However, under certain
circumstances a showing of some other "concrete harm" may substitute for the "actual
chilling" requirement. Brink v. Muscente, 2013 WL 5366371, at *7 (S.D.N.Y. Sept. 25, 2013)
(noting that in certain "private citizen cases, various forms of concrete harm have been
substituted for the 'actual chilling' requirement"); see also e.g., Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002) (alleging retaliatory
revocation of a building permit); Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals,
812 F. Supp. 2d 357, 371 n.17 (S.D.N.Y. 2011) (finding triable issue of fact on First
Amendment retaliation claim where zoning board denied plaintiff a variance).
With the factual allegations of his latest pleading in mind, Ruggiero's retaliation and
equal protection claims will be considered together at this early stage of the case. See, e.g.,
Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357, 372
(S.D.N.Y. 2011) ("Where, as here, an equal protection claim is based on an alleged First
Amendment violation, the former 'coalesces with the latter.'").
A closer look at a few cases helps explain why these claims survive pre-answer
dismissal. In Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) (Miner, J.), the
plaintiffs owned a residential parcel adjacent to a plastics factory. Id. at 189. At some point,
the plastics factory ramped up its on-site operations and began violating various provisions of
the village's zoning code. Id. The plaintiffs complained to various officials, including the
village's zoning and planning boards. Id. at 190. When their pleas went unanswered, the
plaintiffs filed a § 1983 action alleging, inter alia, the defendant–officials had "engaged in a
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purposeful course of conduct designed to prefer unfairly the commercial interests" of the
factory. Id.
In partially reversing the district court's pre-answer dismissal of their complaint, the
Second Circuit found that the plaintiffs had adequately pleaded a First Amendment retaliation
claim "predicated on the allegation that the [defendant-officials'] failure to enforce the [zoning
code] against [the plastics factory] and their acts of misconduct regarding certain zoning
decisions were in retaliation for the [plaintiffs'] exercise of their right to free
speech." Gagliardi, 18 F.3d at 194.
Since Gagliardi, courts in this Circuit have expressed reluctance about dismissing at
the pleadings stage a § 1983 First Amendment retaliation claim based on similar patterns of
alleged misconduct by municipal officials.4 For example, in Puckett v. City of Glen Cove, 631
F. Supp. 2d 226 (E.D.N.Y. 2009), a homeowner sued the city after her repeated attempts to
convince the zoning board, the mayor, and other municipal officials to block the construction
of a new real estate development failed. Id. at 230-31. In refusing to dismiss the plaintiff's
retaliation claim, the court relied on the "liberal pleading standard" for this kind of dispute that
the Second Circuit set forth in Gagliardi. Id. at 241.
Ruggiero has satisfied all three elements of a First Amendment retaliation claim. First,
plaintiff alleges that he engaged in protected conduct when he and other landlords sued the
City over § 102. Gagliardi, 18 F.3d at 194 ("The rights to complain to public officials and to
seek administrative and judicial relief are protected by the First Amendment.").

4

Although Gagliardi was decided pre-Iqbal, district courts continue to rely on its reasoning when
analyzing a motion to dismiss a First Amendment retaliation claim. See, e.g., Reardon v. Keating, 980 F.
Supp. 2d 302, 320 (D. Conn. 2013) (distinguishing the plaintiffs' factual allegations from those set forth in
Gagliardi); Schubert v. City of Rye, 775 F. Supp. 2d 689, 712 (S.D.N.Y. 2011) (same).
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Second, Ruggiero alleges that since winning that lawsuit, the City defendants have
retaliated against plaintiff (and the other landlords, too) for exercising his First Amendment
right to use the judicial process to challenge the rental law. As a general matter, plaintiff's
second amended complaint alleges that he received less favorable treatment under the City's
zoning and planning laws than other, similarly situated landlords did with respect to other,
substantially similar properties.
This differential or unfair treatment includes, but is apparently not limited to, the City's
failure to enforce certain zoning laws against the landlords who chose to side with the City
and refrained from filing suit over the rental law. See, e.g., Gagliardi, 18 F.3d at 195 (finding
causation plausibly alleged where defendants "undertook a purposeful and persistent course
of conspiratorial noncompliance and nonenforcement" of the zoning laws against certain
property owners).
Third, Ruggiero alleges concrete harms as a result of the alleged misconduct,
including lost rental revenue, and in one instance plaintiff alleges he was forced to sell a
rental property at a loss. Soundview Assocs., 725 F. Supp. 2d at 341; see also Vaher v.
Town of Orangetown, N.Y., 916 F. Supp. 2d 404, 431–32 (S.D.N.Y. 2013) (finding that "harm
to [plaintiff's] professional reputation" and other "economic and pecuniary loss" to be
sufficient for retaliation claim).
Finally, Ruggiero's Equal Protection selective enforcement claim also survives
dismissal at this stage. Plaintiff appears to be claiming that City officials singled him out for
enforcement under the zoning code because he exercised his First Amendment right to
challenge the lawfulness of § 102 in a state court lawsuit. In other words, plaintiff has
alleged that the selective enforcement at issue is motivated by, or based on, an intention "to
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punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to
injure the plaintiff." Panzella, 231 F. Supp. 3d at 7.
In sum, Ruggiero's First Amendment retaliation claim and his related Fourteenth
Amendment Equal Protection selective enforcement claim will remain for
discovery. Dougherty, 282 F.3d at 92 (denying motion to dismiss First Amendment
retaliation claim because, inter alia, plaintiff alleged "that the entire chronology of events
spanning a period of over five years displays a general pattern of egregious treatment by the
Board"); Tomlins, 812 F. Supp. 2d at 374 (finding fact issue suitable for trial on First
Amendment retaliation claim where, inter alia, zoning board treated plaintiff differently than
other variance applicants).
III. CONCLUSION
Ruggiero's conspiracy, false arrest, malicious prosecution, denial of medical
treatment, and state law constitutional claims were dismissed with prejudice in Ruggiero I,
which means he will not be permitted to pursue them in this litigation. Because plaintiff's
second amended pleading improperly attempts to re-assert one or more of these claims
against Officer Myers, he must be dismissed as a defendant in this action.
Importantly, though, Ruggiero I also recognized that plaintiff might have a plausible
claim for First Amendment retaliation and/or Fourteenth Amendment Equal Protection arising
from his acrimonious relationship with City officials. At the time, Ruggiero I speculated that
such a claim might be grounded in defendants' conduct during one or more public meetings
and invited plaintiff to provide more detail about those meetings and his interactions with City
officials.
In his second amended complaint, Ruggiero has again failed to state a retaliation or
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equal protection claim based solely on the conduct of defendants during the public
meetings. However, plaintiff has pleaded sufficient factual allegations to entitle him to
conduct discovery into whether one or more of the City defendants took adverse action(s)
against him (such as by selectively enforcing certain zoning restrictions against him or by
preventing him from lawfully participating in certain public meetings), either in retaliation for
his prior state court lawsuit or, relatedly, in a bad-faith effort to punish him for exercising his
constitutional right to seek judicial relief.
Ruggiero may pursue those two related claims—and only those claims—against the
City, Mayor Tobin, Attorney Van Donsel, Tax Assessor Briggs, Zoning Officer Rhea,
Chairperson Hickey, and Alderman Silliman.
Therefore, it is
ORDERED that
1. The City defendants' motion to dismiss is GRANTED in part and DENIED in part;
2. Plaintiff's cross-motion for leave to file a third amended complaint is DENIED;
3. Plaintiff's First Amendment retaliation and Fourteenth Amendment Equal
Protection claims against the City, Mayor Tobin, Attorney Van Donsel, Tax Assessor Briggs,
Zoning Officer Rhea, Chairperson Hickey, Alderman Silliman REMAIN for discovery and, if
appropriate, summary judgment motions;
4. Plaintiff's renewed claim against Officer Myers is DISMISSED WITH PREJUDICE;
5. The Clerk of the Court is directed to TERMINATE Officer Myers as a defendant in
this action; and
6. The City, Mayor Tobin, Attorney Van Donsel, Tax Assessor Briggs, Zoning Officer
Rhea, Chairperson Hickey, and Alderman Silliman shall file an answer to plaintiff's First
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Amendment retaliation and Fourteenth Amendment Equal Protection claims on or
before May 17, 2019, fourteen (14) days from the date of this decision.
IT IS SO ORDERED.

Dated: May 3, 2019
Utica, New York.

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