Sharpe v. City of New York , 560 F. App'x 78 ( 2014 )

13-2355-cv
Sharpe v. City of New York, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 27th day of March, two thousand fourteen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.*
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WYNTON SHARPE,
Plaintiff-Appellant,
-v- 13-2355-cv
CITY OF NEW YORK, THE OFFICE OF THE
DISTRICT ATTORNEY OF KINGS, AMY P.
FEINSTEIN, in her official and personal
capacity, CHARLES J. HYNES, in his
official and personal capacity, JAMES
LEEPER, in his official and personal
capacity,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: STEPHEN BERGSTEIN, Bergstein &
Ullrich LLP, Chester, New York.
*
Because Judge Susan L. Carney, originally assigned to the panel,
recused herself from this case, the remaining two judges issue this
order in accordance with Second Circuit Internal Operating Procedure
E(b).
FOR DEFENDANTS-APPELLEES: LARRY A. SONNENSHEIN, Assistant
Corporation Counsel (Kathy H.
Chang, Assistant Corporation
Counsel, on the brief), for
Michael A. Cardozo, Corporation
Counsel of the City of New York,
New York, New York.
Appeal from the United States District Court for the
Eastern District of New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-appellant Wynton Sharpe appeals the district
court's memorandum decision and order entered on May 29, 2013
granting defendants-appellees' motion under Federal Rule of
Civil Procedure 12(b)(6). Judgment was entered that same day
dismissing the amended complaint. We assume the parties'
familiarity with the facts, procedural history, and issues on
appeal.
We review the district court's grant of defendants'
motion to dismiss on the pleadings de novo. ATSI Commc'ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). We also
accept the allegations in the amended complaint as true and draw
all reasonable inferences in favor of Sharpe as the nonmoving
party. Easterling v. Collecto, Inc., 692 F.3d 229, 233 (2d Cir.
2012).
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Sharpe has limited his appeal to a single claim: that
defendants violated his right to intimate association by
interfering with his relationship with his father. The right to
intimate association "guarantees an individual the choice of
entering an intimate relationship free from undue intrusion by
the state." Sanitation & Recycling Indus., Inc. v. City of New
York, 107 F.3d 985, 996 (2d Cir. 1997). We have observed,
however, that "[t]he source of the intimate association right
has not been authoritatively determined." Adler v. Pataki, 185
F.3d 35, 42 (2d Cir. 1999). We have likewise noted that this
Court and the Supreme Court have applied varying
"standard[s] . . . in determining whether th[e] right has been
violated." Id. at 43.
The district court acknowledged that we have not
decided whether a plaintiff must allege that a state actor
intended to interfere with an intimate association to state a
claim. Sharpe v. City of New York, No. 11 Civ. 5494 (BMC), 2013
WL 2356063, at *8 (E.D.N.Y. May 29, 2013). The district court,
however, observed that most circuit courts and district courts
within the Second Circuit have found that intent to interfere is
a necessary element in an intimate association claim. Id. The
court concluded that Sharpe's claim must be dismissed because he
failed plausibly to allege intent to interfere in his
relationship with his father. Id.
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We have previously recognized, however, that a
plaintiff may state a claim for interference with an intimate
association even though the complaint does not allege that the
state either "purported to regulate" the relationship or
"endeavored to end a . . . relationship already begun." Adler,
185 F.3d at 44. This case does not require us to decide whether
we should limit the right to intimate association to
circumstances where a state actor intended to interfere with the
association. Even if a plaintiff may establish a claim based on
state action that imposes an "arbitrary" or "undue" burden on an
intimate association, see id., Sharpe has failed to state such a
claim here.
The amended complaint sets forth the following facts:
(1) Sharpe's father, Wellington Sharpe, was running for public
office, and had run on several occasions in the past, against
Kevin Parker; (2) Parker was the subject of a criminal
prosecution brought by the Red Zone General Trial Bureau of the
Kings County District Attorney's Office (the "KCDAO"); (3)
Wynton Sharpe was an Assistant District Attorney in the Red Zone
General Trial Bureau of the KCDAO at the time of the Parker
prosecution; (4) the KCDAO employee manual indicated that
Assistant District Attorneys have a "duty to avoid both actual
conflicts of interest and even the appearance of any improper
political motive or bias in the conduct of any prosecution"; (5)
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on August 11, 2010, Amy P. Feinstein, the Chief Assistant
District Attorney in the KCDAO, and James Leeper, the Bureau
Chief of the Red Zone, asked Sharpe whether his father was
Wellington Sharpe; (6) as soon as he told Leeper and Feinstein
that his father was Wellington Sharpe, Wynton Sharpe was
suspended from the KCDAO, and was ultimately fired.
To "state[] a plausible claim for relief," a plaintiff
must allege facts sufficient to support more than a "mere
possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). We conclude that Sharpe's allegations fail to
"nudge[]" Sharpe's claim "across the line from conceivable to
plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 678, 570
(2007). Not once in his complaint does Sharpe contend that he
ever disclosed his father's political candidacy to anyone in the
KCDAO until he was specifically asked in August of 2010.
Instead, he merely alleges that he "never kept his family
relation with his father a secret," that "Defendant HYNES knew
Wellington Sharpe had been a candidate for public office in
KINGS COUNTY prior to the time of Plaintiff SHARPE's hiring,"
and that, "[u]pon information and belief," Sharpe's father's
campaign against Parker "was a fact known to Defendant HYNES and
other members of the KINGS COUNTY D.A.'S OFFICE."
These statements are "wholly conclusory," id. at 561,
because they are unsupported by factual allegations about how or
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why Hynes and other unidentified members of the KCDAO knew about
the elder Sharpe's candidacy. At best, Sharpe's complaint
simply alleges facts that are "consistent with" his theory that
he was targeted for suspension and termination due to his
relationship with his father, but are also consistent with a far
more likely explanation: that he was suspended and terminated
because the KCDAO believed that he violated its policy. See id.
at 563. Although Sharpe asserts that he did not work on the
Parker prosecution and was not "interested [in] or aware of any
of the facts relating to the prosecution," he does not contend
that he was unaware of the prosecution. Sharpe's mere
employment in the unit that was engaged in a prosecution of
Sharpe's father's political rival obviously posed a risk of
creating "the appearance of . . . improper political motive or
bias," yet Sharpe does not contend he did anything to mitigate
this appearance.
Sharpe's amended complaint acknowledges that his
failure to report his father's political candidacy to his
supervisors or anyone else at the KCDAO had tangible
consequences. The Assistant District Attorney in charge of the
Parker prosecution was required to inform the judge presiding
over the case and defense counsel about Sharpe's relationship,
and Parker's defense attorney thereafter moved to dismiss the
indictment and the judge relieved the KCDAO from the case.
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Indeed, the court recognized the existence of a potential
conflict.
Given his failure to allege facts to indicate that he
took any steps to discharge his duty to avoid "the appearance of
any improper political motive or bias," Sharpe's claim that he
was targeted for adverse treatment because of his relationship
with his father is not plausible.
We have considered Sharpe's remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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