Mongielo v. Smith et al

Filing 22

ORDER denying 8 Motion to Dismiss for Failure to State a Claim; denying 11 Motion to Dismiss for Failure to State a Claim; denying 12 Motion to Dismiss. The named defendants are ordered to file Answers to the Complaint within twenty (20) days of the date of entry of this Decision and Order. Signed by Hon. Michael A. Telesca on 5/16/17. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID MONGIELO,
Plaintiff,

No. 1:16-cv-00891(MAT)
DECISION AND ORDER

-vsPETER SMITH, SOUTH LOCKPORT FIRE
COMPANY, INC., and MARC R. SMITH,
Defendants.
INTRODUCTION
Represented

by

counsel,

David

Mongielo

(“Plaintiff”)

instituted this action pursuant to 42 U.S.C. § 1983 alleging that
the named defendants retaliated against him for exercising his
First Amendment rights. Peter Smith and the South Lockport Fire
Company, Inc., and Marc R. Smith, respectively have filed Motions
to Dismiss the Complaint for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons discussed below, the motions are denied.
FACTUAL BACKGROUND
Because the matter is at the motion to dismiss stage, the
following factual summary presumes the truth of the allegations in
the Complaint and draws all reasonable inferences in Plaintiff’s
favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002).
Prior to November 5, 2013, Plaintiff was an active member of
the South Lockport Fire Company, Inc. (“the Fire Company”). On or

about November 5, 2013, he wrote and published a local “newspaper,”
“the Lockport Community News,” that contained several articles
“critical” of the Lockport Town Board generally, and Marc R. Smith
(“Marc Smith”), a member of the Lockport Town Board, in particular.
At the time of publication, Plaintiff was the Conservative Party
candidate in the upcoming election for Lockport Town Supervisor,
and was running against Marc Smith. One article accused “top town
officials,” including Marc Smith, of “ballot manipulation.” In the
same newspaper, Plaintiff placed an advertisement for a December 8,
2013 fund raiser to benefit the Fire Company.
After the newspaper was published, Peter Smith of the Fire
Company sent a text to Plaintiff stating as follows:
I hate to do this but I feel I need to suspend u [sic]
until Friday when we have a special ex meeting. I ts
[sic] over the articles/ad in the community news. Judt
[sic] got off the phone with marc smith and his council
is all over this. If we don’t act I’m afraid the
situstion [sic] will only worsen. So for now please stay
away per your suspension. We will discuss it further on
Friday.
(Complaint

(“Compl”)

(Dkt

#1),

¶

18).

Peter

Smith

informed

Plaintiff that Marc Smith was threatening to withdraw Town funding
from the Fire Company. Plaintiffs states that as a result of this
alleged threat by Marc Smith, he resigned from the Fire Company
“under duress.” (Id. ¶ 19). According to Plaintiff, his resignation
was “ineffective” under the Fire Company’s bylaws. (Id. ¶ 20).
Plaintiff also alleges that he was never reinstated, and his
requests for reinstatement were ignored by the Fire Company.
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According to Plaintiff, his suspension, and de facto termination,
were done in retaliation for the exercise of his First Amendment
right to free speech.
RULE 12(b)(6) STANDARD
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks and citation omitted). “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.” Id. Although
a complaint need not provide “detailed factual allegations,” it
nevertheless must assert “more than labels and conclusions”; “a
formulaic recitation of the elements of a cause of action” will not
suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
The plaintiff must plead facts that “raise a right to relief above
the speculative level on the assumption that all the allegations in
the complaint are true.” Id. (citations omitted). For its part, the
court

must

accept,

as

true,

all

factual

allegations

in

the

complaint, and must draw all reasonable inferences in favor of the
nonmovant. ATSI Communications, Inc. v. The Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted).

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II. Retaliation under the First Amendment
“To state a § 1983 claim, a plaintiff must establish that the
defendant deprived him of a federal or constitutional right while
acting under the color of state law.” Cox v. Warwick Valley Cent.
Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011) (citing Haywood v.
Drown, 556 U.S. 729, 129 S. Ct. 2108, 2111 (2009)). “There is no
question,” the Supreme Court has said, “that speech critical of the
exercise of the State’s power lies at the very center of the First
Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1034
(1991). As a result, “a section 1983 claim will lie where the
government takes negative action against an individual because of
his exercise of rights guaranteed” by the First Amendment. Friedl
v. City of N.Y., 210 F.3d 79, 86–87 (2d Cir. 2000); see also Velez
v. Levy, 401 F.3d 75, 97 (2d Cir. 2005). To state a claim for First
Amendment retaliation, a plaintiff must plausibly allege that
“‘(1) his speech or conduct was protected by the First Amendment;
(2) the defendant took an adverse action against him; and (3) there
was a

causal

connection

between

this

adverse

action

and

the

protected speech.’” Matthews v. City of N.Y., 779 F.3d 167, 172
(2d Cir. 2015) (quotation omitted).
DISCUSSION
I.

The Motion to Dismiss by Marc Smith
Marc Smith first argues that Plaintiff has failed to plausibly

allege that he exercised a right protected by the First Amendment,
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not because Plaintiff did not engage in protected speech, but
because

Plaintiff

has

not

provided

sufficient

information

describing what the offending newspaper articles said about Marc
Smith in particular.

The Court disagrees. The Complaint alleges

that one of the articles published by Plaintiff “accused ‘top town
officials’,

including

Marc

Smith

of

‘ballot

manipulation.’”

(Compl., ¶ 16).
Second, Marc Smith argues, Plaintiff has relied on conclusory
assertions of a retaliatory motive which are insufficient to allege
a causal link. According to Marc Smith, the description of the
phone call between himself and Peter Smith referencing Marc Smith’s
alleged “threat” to withdraw funding from the Fire Company is too
vague and conclusory, because Plaintiff fails to allege that Marc
Smith was motivated by, let alone knew of, the “critical” newspaper
articles. As noted above, Peter Smith informed Plaintiff that “the
need to suspend” him was “over the articles/ad in the community
news.” Peter Smith said he had “[j]u[s]t got off the phone with
[M]arc [S]mith and his council is all over this.”

Even without

drawing all inferences in Plaintiff’s favor, as it is required to
due, the Court finds that the only reasonable inference to be drawn
from Peter Smith’s text is that Marc Smith was aware of Plaintiff’s
newspaper article and that his threat to withdraw funding, and
hence Peter Smith’s suspension of Plaintiff, was directly due to
the “articles/ad in the community news” published by Plaintiff.

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Third, Marc Smith argues, Plaintiff has failed to set forth
any allegations of retaliatory conduct because it was not Marc
Smith who suspended or terminated him; rather, those actions were
taken by the Fire Company. Marc Smith argues he does not have the
legal authority to unilaterally withdraw funding on the part of the
Town Board, which must pass a resolution. Furthermore, while Marc
Smith contends that he cannot act unilaterally, Plaintiff has
alleged that at least one individual, Peter Smith, viewed the Town
Board as inextricably intertwined with Marc Smith. As noted above,
the Court must draw all reasonable inferences in Plaintiff’s favor.
The legal relationship between the Fire Company, Marc Smith, and
the Town Board may ultimately foreclose Plaintiff’s claim against
Marc Smith, but at this stage, the Complaint is sufficiently pled.
Marc Smith also contends that the Town had a contract with the
Fire Company, and Marc Smith cannot change the contract on his own
since only the Town Board can approve contracts. Marc Smith asserts
that the Town Board would not legally be allowed to withhold
funding because they would be in violation of their contract with
the Fire Company. The alleged contract between the Town and the
Fire Company relies on matters outside the four corners of the
Complaint

and is

not relevant

to

analysis.

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this

Court’s

Rule 12(b)(6)

II.

Peter Smith and the Fire Company
Peter Smith and the Fire Company (“the FC Defendants”) argue

that Plaintiff’s speech was not constitutionally protected because
he was speaking in his official capacity as a volunteer firefighter
promoting a
fundraiser for the Fire Company, a non-profit corporation which is
prohibited from endorsing a political candidate.
As an initial matter, the FC Defendants assume that Plaintiff
is a governmental employee, which alters the level of protection to
which his speech may be entitled. See, e.g., Wallace v. Suffolk
Cty. Police Dep’t, 396 F. Supp. 2d 251, 257 (E.D.N.Y. 2005) (“It is
well established that a ‘governmental employer may impose certain
restraints on the speech of its employees, restraints that would be
unconstitutional if applied to the general public.’”) (quoting City
of San Diego v. Roe, 543 U.S. 77, 125 S. Ct. 521, 523 (2004)).
However, it appears to be an open question in this Circuit as to
whether a volunteer firefighter is a governmental employee. See
Monz v. Rocky Point Fire Dist., 519 F. App’x 724, 726 (2d Cir.
2013) (unpublished opn.) (“The district court and the parties
operated under the belief that the commissioners’ refusal to
reinstate Monz as a volunteer firefighter qualified as an adverse
employment action. Thus, the parties did not argue the issue below
or brief the issue on appeal. We assume, without deciding, that a
volunteer position is a government benefit for purposes of a First

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Amendment retaliation claim. . . . But we note the existence of a
recent decision from the New York Court of Appeals that may counsel
otherwise. M.G.M. Insulation, Inc. v. Gardner, 20 N.Y.3d 469, 962
N.Y.S.2d 600, 985 N.E.2d 911 (2013). In M.G.M., the New York Court
determined that a volunteer fire corporation is not a specified
public entity within the meaning of the prevailing wage requirement
of Labor Law § 220. Id.”) (internal citation omitted). At this
early stage of the proceeding, the Court declines to delve into
this issue.
The FC Defendants further argue that Plaintiff

was speaking

in his official capacity as a volunteer firefighter promoting a
fundraiser

for

the

Fire

Company,

and

that

the

fundraiser

advertisement published by Plaintiff on behalf of the Fire Company
was not a matter of public concern. That Plaintiff was speaking in
his official capacity when he published the newspaper is merely
their own unsupported assumption, which in fact is contradicted by
the manner in which his newspaper is they characterized elsewhere
in their brief.1
Moreover, while advertisement for the Fire Company fundraiser
may not be a matter of public concern, this argument oversimplifies
Plaintiff’s

allegations.

Speech

is

not

exempted

from

First

1

The FC Defendants note that “Mr. Mongielo’s ‘newspaper’ is four pages in
total, one entire page of which is his advertisement on behalf of the Fire
Company for an upcoming fund raiser. Two of the four pages are articles regarding
his candidacy for public office. We therefore dispute Plaintiffs characterization
of what is essentially a political flyer as a ‘newspaper.’”

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Amendment protection simply because a portion of it relates to
matters of private, versus public, concern. See, e.g., Wallace v.
Suffolk Cty. Police Dep’t, 396 F. Supp.2d at 258 (“Defendants
contend

that

the

personal

nature

of

Plaintiff’s

complaints

precludes a finding that Plaintiff’s speech pertained to matters of
public concern. . . . While portions of Plaintiff’s speech relate
to experiences unique to Plaintiff, much of the speech concerned
matters of great importance to the general public.”). Here, the
record thus far indicates that the majority of the publication in
question pertained to Plaintiff’s criticism of local governmental
officials. “‘[D]iscussion regarding current government policies and
activities is perhaps the paradigmatic matter of public concern.’”
Johnson v. Ganim, 342 F.3d 105, 112–13 (2d Cir. 2003) (quoting
Harman v. City of N.Y., 140 F.3d 111, 118 (2d Cir. 1998) (internal
quotations

and

citations

omitted

in

original;

brackets

in

original);

citing, inter alia, Glass v. Dachel, 2 F.3d 733, 741

(7th Cir. 1993) (“[M]atters of public concern do include speech
aimed at uncovering wrongdoing or breaches of public trust.”)).
The FC Defendants contend that even if Plaintiff was speaking
as a private citizen on a matter of public concern, the Fire
Company’s interest in maintaining its tax-exempt status outweighs
Plaintiff’s interest in combining his political speech with speech

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that appears to issue directly from the Fire Company.2
the

tax-status

rationale

was

not

explicitly

or

However,
implicitly

referenced by Peter Smith as a basis for suspending Plaintiff. This
argument relies on matters outside the Complaint and is premature.
The FC Defendants also argue that Plaintiff’s claim fails
because he was a public employee and the Fire Company is a public
entity; therefore, Plaintiff’s suspension from the Fire Company was
not protected by the First Amendment. As noted above, this argument
relates to an unsettled question of law that is not properly
resolved on a pre-answer motion to dismiss.
Finally, Peter Smith argues that he is entitled to qualified
immunity, a doctrine which shields government officials from civil
liability resulting from the performance of their discretionary
functions, but only where their conduct “does not violate clearly
established

statutory

or

constitutional

rights

of

which

a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). “[A]lthough ‘a qualified immunity defense may be
advanced on a 12(b)(6) motion, it faces a “formidable hurdle” when
advanced at such an early stage in the proceedings.’” Wallace, 396

2

The FC Defendants rely on Pickering v. Board of Education, 391 U.S. 563,
568 (1969), in support of this argument. “Under the Pickering test, a government
employer may fire an employee for speaking on a matter of public concern if ‘(1)
the employer’s prediction of disruption is reasonable; (2) the potential
disruptiveness is enough to outweigh the value of the speech; and (3) the
employer took action against the employee based on this disruption and not in
retaliation for the speech.’” Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001)
(quoting Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995)).

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F. Supp.2d at 265 (quoting The Cathedral Church of the Intercessor
v. The Incorporated Village of Malverne, 353 F. Supp.2d 375, 391
(E.D.N.Y. 2005) (quoting McKenna v. Wright, 386 F.3d 432, 434 (2d
Cir. 2004))).
To establish entitlement to qualified immunity, Peter Smith
must demonstrate that either (1) his actions did not violate
Plaintiff’s “clearly established” First Amendment rights, or (2) it
was objectively reasonable for him to believe his actions did not
violate Plaintiff’s “clearly established” First Amendment rights.
Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996) (citations omitted).
In contrast to a motion for summary judgment where the movant may
submit affidavits in furtherance of qualified immunity, in the
context of a Rule 12(b)(6) motion, the defense must appear on the
face

of

omitted).

the

complaint.

McKenna,

386

F.3d

at

436

(citations

“Thus, the plaintiff is entitled to all reasonable

inferences from the facts alleged, not only those that support his
claim, but also those that defeat the immunity defense.” Id. The FC
Defendants cannot meet this “stringent standard applicable to this
procedural route.” Id. Indeed, Peter Smith implicitly acknowledges
that the defense of qualified immunity does not appear on the face
of Complaint, since he urges the Court to take “judicial notice” of
the Fire Company’s tax-exempt status, which is critical to his
argument. At this juncture, the Court finds that availability of
qualified immunity cannot be determined as a matter of law.

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CONCLUSION
For the foregoing reasons, the Court denies the Motion to
Dismiss by Peter Smith and the South Lockport Fire Company, Inc.
(Dkt ##8 & 11), and denies the Motion to Dismiss by Marc R. Smith
(Dkt #12). The named defendants are ordered to file Answers to the
Complaint within twenty (20) days of the date of entry of this
Decision and Order.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 16, 2017
Rochester, New York.

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