Reynolds v. The City of Mount Vernon et al
Filing
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MEMORANDUM OPINION AND ORDER re: 17 MOTION to Dismiss filed by Nichelle Johnson, The City of Mount Vernon, George Brown, Hina Sherwani, Yuhanna Edwards, Jennifer Ratan: For the reasons stated above, Defendants' motio n is GRANTED, and the Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate Docket No. 17, to close the case, and to mail a copy of this Memorandum Opinion and Order to Plaintiff. (Signed by Judge Jesse M. Furman on 3/31/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DEBORAH REYNOLDS,
:
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Plaintiff,
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:
-v:
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THE CITY OF MOUNT VERNON, et al.,
:
:
Defendants.
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:
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04/01/2015
14-CV-1481 (JMF)
MEMORANDUM OPINION
AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Deborah Reynolds, a member of the City Council of the City of Mount Vernon
who is proceeding pro se, brings this action against the City of Mount Vernon; Nichelle Johnson,
Jennifer Ratan, and Hina Sherwani, who at the relevant time were all members of the city law
department; Yuhana Edwards, who was the president of the City Council; and George Brown,
who was the City Clerk. She alleges that Defendants violated her First, Fourth, Fifth, Ninth, and
Fourteenth Amendment rights in connection with the rejection of a referendum that she
proposed. Defendants move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
to dismiss her Second Amended Complaint (the “Complaint”) in its entirety. (Docket No. 17).
For the reasons explained below, the motion is granted.
BACKGROUND
Generally, in evaluating a Rule 12(b)(6) motion, a court may consider “only the
complaint, any written instrument attached to the complaint as an exhibit, any statements or
documents incorporated in it by reference, and any document upon which the complaint heavily
relies.” In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013). Because Reynolds is proceeding
pro se, however, the Court may also consider factual allegations made in her opposition papers,
so long as they are consistent with the complaint. See, e.g., Blue v. Macy’s Herald Square, No.
12-CV-5673 (PAE), 2013 WL 3717777, at *1 n. 2 (S.D.N.Y. July 16, 2013). Accordingly, the
following facts are taken from the Complaint, exhibits attached thereto, and Reynolds’s
opposition papers (to the extent they are consistent with the Complaint), and are presumed true
for the purposes of this motion. See Karmely v. Wertheimer, 737 F.3d 197, 199 (2d Cir. 2013). 1
Plaintiff has been a member of the Mount Vernon City Council (the “City Council”)
since January 2012. (Second Am. Compl. (Docket No. 12) (“Compl.”) 4). Approximately three
years earlier, the City had taken out $2.5 million in bonds to renovate Memorial Field (the
“Memorial Field Project”). (Id. at 4, 9). Although the City Charter provides that any bond
issuance of more than $750,000 must be approved by the electorate, no referendum had taken
place. (Id. at 4). Beginning in April 2013, Plaintiff sought to hold a referendum on whether
Memorial Field Stadium should include an eight-lane track. (Id. at 11). On April 4, 2013, she
asked Defendant Brown to place a referendum that she had prepared on the April 10th agenda for
a vote by the City Council. (Id. at 4). The final agenda, however, did not attach the text of the
proposed referendum to be read into the record, and listed Reynolds’s proposed topic for
consideration as a “demand,” not a referendum. (Id. at 5, 10). At the meeting, Defendants
Edwards and Ratan stated publicly that Plaintiff’s proposal could not properly be considered a
referendum, and when Plaintiff began reading her proposed referendum into the record, Edwards
Defendants submitted an affirmation, along with a number of exhibits, in support of their
motion to dismiss. (Docket No. 18). Their reply also includes a number of exhibits. (Docket
No. 27). The Court has not considered any of those exhibits, except those (for example, state
and local laws) of which the Court may take judicial notice. See, e.g., Chambers v. Time
Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002); Hensley v. IEC Elec. Corp., No. 13-CV-4507
(JMF), 2014 WL 4473373 at *1 (S.D.N.Y. Sept. 11, 2014).
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banged a gavel and “yell[ed]” that Plaintiff was “out of order” because reading the referendum
was “not on the agenda.” (Id. at 5).
Undeterred, in May 2013, Plaintiff provided Brown a petition requesting that the question
of whether Memorial Field should have an eight-lane track be placed on the ballot. (Id. at 5).
She asked him to certify the petition, which had been signed by more than 1,000 people. (Id.).
At the May 22nd session of the City Council, Plaintiff asked Brown to state publicly that he had
received the petition, but Edwards forbade him from doing so. (Id. at 6). The petition was never
certified. (Id. at 6). When her efforts at the May 22nd City Council meeting failed, Plaintiff
reached out to corporate counsel for help. Counsel, however, informed the entire City Council
that state law prohibited the city from holding a referendum on whether Memorial Field should
have an eight-lane track. (Id. at 6, 13-14). Nonetheless, in June 2013, Plaintiff placed a
resolution calling for a referendum on the agenda for the next public City Council meeting. (Id.
at 6). The resolution was placed on the agenda, and Plaintiff read it into the record, but a
majority of the Council voted against it. (Id. at 7). Although Plaintiff continued to reach out to
members of the County and State elections boards and the city law department, she was told
repeatedly that state law did not allow her to bring the referendum, and it never appeared on the
ballot. (Id. at 7-8).
DISCUSSION
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
facts set forth in the complaint as true and draw all reasonable inferences in the plaintiff's favor.
See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008). A claim will
survive a 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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A claim is facially plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must show
“more than a sheer possibility that a defendant acted unlawfully,” id., and cannot rely on mere
“labels or conclusions” to support a claim. Twombly, 550 U.S. at 555. If the plaintiff's pleadings
“have not nudged [his or her] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Id. at 570. Here, because Reynolds is proceeding pro se, her
Complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Nonetheless, a pro se litigant must still state a plausible claim for relief. See, e.g.,
Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, the Court’s “‘duty to liberally
construe a plaintiff’s complaint [is not] the equivalent of a duty to re-write it.’” Geldzahler v.
N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (quoting 2 Moore’s Federal Practice
§ 12.34 [1][b], at 12-61 (internal quotation marks omitted)). 2
Applying those standards here, the Complaint must be dismissed, as Plaintiff’s claims
border on (and arguably cross the line into) frivolous. Plaintiff argues first that Defendants
violated her First Amendment rights by “speak[ing] out against [her] in public and legislative
In addition to arguing that Plaintiff fails to state a claim, Defendants move to dismiss for
lack of subject-matter jurisdiction under Rule 12(b)(1), arguing that “[t]here are no federal laws
implicated here.” (Defs.’ Mem. Law (Docket No. 20) 13-15). Plaintiff’s Complaint, however,
alleges several federal constitutional violations. That those claims may ultimately fail does not
deprive the Court of jurisdiction. Defendants also argue that Plaintiff’s claims should be
dismissed on the ground of legislative immunity. (Id. at 3-6). The Court need not reach the
issue, however, because “legislative immunity is not a jurisdictional bar, but is rather a personal
defense that may be asserted to challenge the sufficiency of a complaint under Rule 12(b)(6).”
State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007); cf.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (holding that a court may not
assume subject-matter jurisdiction and resolve a case on the merits).
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meetings . . . stifling [her] ability of free speech.” (Compl. 19). It almost goes without saying,
however, that Defendants’ opposition to Plaintiff’s political positions did not violate her First
Amendment rights; if anything, it was a manifestation and vindication of their own First
Amendment rights. See Molinari v. Bloomberg, 564 F.3d 587, 598-602 (2d Cir. 2009);
Ukrainian-Am. Bar Ass’n v. Baker, 893 F.2d 1374, 1379 (D.C. Cir. 1990) (“[T]he right to speak
protected by the first amendment is not . . . a right to be heeded.”). The fact that the City Council
meetings may have been heated or emotional does not affect the analysis or result. See, e.g.,
Cohen v. California, 403 U.S. 15, 24-25 (1971) (“[V]erbal tumult, discord, and even offensive
utterance [are] . . . necessary side effects of the broader enduring values which the process of
open debate permits us to achieve.”). Nor does the fact that, in one instance, Defendant Edwards
banged a gavel and ruled Plaintiff out of order (Compl. 5), as the City Council may plainly,
consistent with the First Amendment, make and enforce procedural rules governing who may
speak and at what times. See Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2347
(2011) (holding that a law prohibiting legislators from advocating for the passage or failure of
law when they are recused from voting on it is a reasonable time, place and manner regulation of
speech). 3 Plaintiff’s remedy, if any, is through the political process, not in court.
To the extent Plaintiff alleges that the failure to place her referendum on the ballot
violated the First Amendment, her claim must also be dismissed. “Although the First
Amendment protects political speech incident to an initiative campaign, it does not protect the
That conclusion is bolstered by the City Council’s rules — of which the Court may take
judicial notice, see, e.g., Phillips v. Cortland City Police, No. 13-CV-0956 (GLS) (TWD), 2013
WL 5462951, at *2 n.2 (N.D.N.Y. Sept. 30, 2013) (noting that courts may take judicial notice of
public records such as city charters and ordinances); Estate of Axelrod v. Flannery, 476 F. Supp.
2d 188, 200-201 (D. Conn. 2007) (similar) — which grant the Council president authority to
maintain order and to call to order any council member speaking out of turn. (Defs.’ Reply Aff.
(Docket No. 27), Ex. 2, at 3, 5).
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right to make law, by initiative or otherwise . . . .” Molinari, 564 F.3d 599 (quoting Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1099-1100 (10th Cir. 2006) (en banc)). Plaintiff
does not appear to be arguing that the provisions of New York law limiting the subjects of
referenda, see N.Y. McKinney’s Municipal Home Rule Law §§ 23-24, violate the First
Amendment in and of themselves. Nor could such an argument prevail. See, e.g., Molinari, 564
F.3d at 597 (“[T]he right to pass legislation through a referendum is a state-created right not
guaranteed by the U.S. Constitution.”). Instead, Plaintiff appears to believe that the Mount
Vernon City Charter authorized, and even required, such a referendum. (Compl. 5, 15). Even if
that were true, however, Plaintiff has not demonstrated a First Amendment violation, as “[i]t is
axiomatic that violations of state law alone are insufficient to state a claim for section 1983
relief.” Weiss v. Incorporated Village of Sag Harbor, 762 F. Supp. 2d 560, 573 (E.D.N.Y. 2011)
(quoting Powers v. Coe, 728 F.2d 97, 105 (2d Cir. 1984)); see also id. (stating that “[v]indication
of state policy ought, as an initial matter, to take place in state courts” (internal quotation marks
omitted)). Accordingly, Plaintiffs’ First Amendment claims must be and are dismissed.
Plaintiff also fails to state a due process claim. 4 To the extent the Complaint asserts a
substantive due process claim, Plaintiff alleges neither the interference with a fundamental right
nor a government action that would fail to survive rational basis review. See Molinari, 564 F.3d
at 606. To raise a procedural due process claim, on the other hand, a plaintiff must first establish
that the challenged action infringed a constitutionally protected property or liberty interest. See,
e.g., Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001); Davidson Heights LLC v. N.Y. City
Plaintiff appears to allege violations of both the Fifth and Fourteenth Amendment Due
Process Clauses, but it is well established that “the Fifth Amendment is limited to actions of the
federal government.” Phillips ex rel. Green v. City of New York, 453 F. Supp. 2d 690 (S.D.N.Y.
2006) (internal quotation marks omitted). Accordingly, it is inapplicable to a claim against the
City of Mount Vernon “without some evidence of ‘federal action.’” Id.
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Hous. Auth., 14-CV-930 (ER), 2014 WL 5500944, at *4 (S.D.N.Y. Oct. 31, 2014) (“The two
threshold questions in any § 1983 claim for denial of procedural due process are whether the
plaintiff possessed a liberty or property interest protected by federal or state law and, if so, what
process was due before the plaintiff could be deprived of that interest.” (internal quotation marks
omitted)). Here, the Complaint cannot plausibly be read to allege the deprivation of a property
interest. And to the extent that the Complaint can be liberally construed to allege the deprivation
of a liberty interest — namely, Plaintiff’s interest in her reputation (see Compl. 19 (stating that
Plaintiff was humiliated, which has “reduced [her] personal economy[,] making [her] in the eyes
of the public an ineffective leader” and “impaired” her ability to earn a living)) — it fails to state
a claim because it does not allege a “material . . . burden or . . . alteration of the plaintiff’s status
or rights.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (internal quotation marks omitted).
Among other things, Plaintiff remains a member of the City Council, and does not claim to have
lost any of her salary. Plaintiff’s due process claims are therefore also dismissed.
Plaintiff’s remaining claims can be even more briefly addressed. First, she alleges claims
under the Fourth Amendment, which protects against unreasonable searches and seizures. U.S.
Const. amend. IV. Nothing in Plaintiff’s Complaint suggests either occurred here. Second,
although she alleges violations of the Ninth Amendment, it is well established that “[t]he Ninth
Amendment is not an independent source of individual rights.” Jenkins v. C.I.R., 483 F.3d 90,
92 (2d Cir. 2007). Finally, she appears to allege some state-law claims. In the absence of any
remaining federal claims, however, the Court declines to exercise supplemental jurisdiction over
those claims. Under Title 28, United States Code, Section 1367, a district court has discretion
over whether to exercise jurisdiction over state-law claims “that are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under
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Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The Supreme Court and the
Second Circuit have made clear, however, that, as a general rule, “when the federal claims are
dismissed the ‘state claims should be dismissed as well.’” In re Merrill Lynch Ltd. P’ships
Litig., 154 F.3d 56, 61 (2d Cir. 1998) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726
(1966)). Here, there is no basis to depart from that general rule. Indeed, given the relatively
early state of the case, the traditional “values of judicial economy, convenience, fairness, and
comity” that the Court must consider, Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988), do not counsel in favor of exercising jurisdiction.
The only remaining question is whether Plaintiff should be granted leave to amend her
Complaint. While leave to amend a complaint should be freely given “when justice so requires,”
Fed. R. Civ. P. 15(a)(2), it is “within the sound discretion of the district court to grant or deny
leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
Further, although courts should generally grant pro se plaintiffs leave to amend “at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated,”
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam) (internal
quotation marks omitted), the Court declines to grant such leave sua sponte. First, a district
court may deny leave to amend when, as here, amendment would be futile because the problem
with the claim “is substantive . . . [and] better pleading will not cure it.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000). Second, Plaintiff was already twice granted leave to amend her
complaint to provide more factual detail (Docket Nos. 9, 11), and once granted leave to amend to
cure deficiencies raised in Defendants’ motion to dismiss. (Docket No. 19). Moreover, in the
last instance, she was explicitly cautioned that she “w[ould] not be given any further opportunity
to amend the complaint to address issues raised by the motion to dismiss.” (Id. at 1).
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Nonetheless, she “has not requested permission to file a [Third] Amended Complaint, nor has
[s]he given any indication that [s]he is in possession of facts that would cure the problems”
identified in the instant motion to dismiss. Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL
4054284, at *15 (S.D.N.Y. Aug. 15, 2014).
CONCLUSION
For the reasons stated above, Defendants’ motion is GRANTED, and the Complaint is
dismissed in its entirety. The Clerk of Court is directed to terminate Docket No. 17, to close the
case, and to mail a copy of this Memorandum Opinion and Order to Plaintiff.
SO ORDERED.
Date: March 31, 2015
New York, New York
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