Kregler v. City of New York ( 2010 )

09-3840-cv
Kregler 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3 rd day of May, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 GUIDO CALABRESI,
10 Circuit Judges,
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13 WILLIAM KREGLER,
14 Plaintiff-Appellant,
15
16 -v.- 09-3840-cv
17
18 THE CITY OF NEW YORK, LOUIS GARCIA,
19 BRIAN GROGAN, ROSE GILL HEARN, KEITH
20 SCHWAM, and DARREN KEENAGHAN, sued in
21 their individual and official
22 capacities
23 Defendants-Appellees.
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25
26 APPEARING FOR APPELLANTS: Nathaniel B. Smith, Law Office
27 of Nathaniel B. Smith, New York,
28 NY.
1
1
2 APPEARING FOR APPELLEES: Drake A. Colley (Edward F.X.
3 Hart on the brief) for Michael
4 A. Cardozo, Corporation Counsel
5 of the City of New York, New
6 York, NY.
7
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Marrero, J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 VACATED and the matter be REMANDED for further proceedings.
14 Plaintiff-appellant William Kregler appeals from an
15 August 18, 2009 judgment of the United States District Court
16 for the Southern District of New York (Marrero, J.) granting
17 defendants’ motion to dismiss under Rule 12(b)(6). Kregler
18 appeals, arguing that he sufficiently stated a claim in his
19 complaint brought under 42 U.S.C. § 1983. We assume the
20 parties’ familiarity with the underlying facts, the
21 procedural history, and the issues presented for review.
22 “We review a district court’s grant of a motion to
23 dismiss under Rule 12(b)(6) de novo.” Vietnam Ass’n for
24 Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104,
25 115 (2d. Cir 2008) (internal quotation marks omitted). “To
26 state a prima facie case of retaliation under § 1983, a
27 plaintiff must demonstrate that: (1) his or her speech was
2
1 constitutionally protected; (2) he or she suffered an
2 adverse employment action; and (3) a causal connection
3 exists between the speech and the adverse employment action
4 so that it can be said that the speech was a motivating
5 factor in the determination.” Washington v. County of
6 Rockland, 373 F.3d 310, 320 (2d Cir. 2004). The appellees
7 contend that Kregler did not adequately plead causation.
8 “While legal conclusions can provide the framework of a
9 complaint, they must be supported by factual allegations.
10 When there are well-pleaded factual allegations, a court
11 should assume their veracity and then determine whether they
12 plausibly give rise to an entitlement to relief.” Aschroft
13 v. Iqbal, 129 S. Ct. 1937, 1950 (2009). “A court ‘can
14 choose to begin by identifying pleadings that, because they
15 are no more than conclusions, are not entitled to the
16 assumption of truth.’” Hayden v. Paterson, 594 F.3d 150,
17 161 (2d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950). “We
18 next consider the factual allegations in [plaintiff’s]
19 complaint to determine if they plausibly suggest an
20 entitlement to relief.” Iqbal, 129 S. Ct. at 1951; see also
21 Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
22 Kregler’s amended complaint pleads facts sufficient to
23 clear this threshold. He alleges that in response to his
24 announced stance in support of a candidate in a heated local
3
1 political campaign, employees of the New York City Fire
2 Department induced contacts at the Department of
3 Investigation to prevent his appointment as a City Marshal.
4 This allegation is neither a legal conclusion nor asserts a
5 claim that is implausible on its face. 1 Kregler’s claim
6 that political animus caused certain defendants to lie about
7 or mischaracterize Kregler’s disciplinary record, and that
8 that same political animus caused other defendants to accept
9 their misrepresentations is not implausible on its face and
10 therefore not susceptible to a motion to dismiss. See Bell
11 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
12 There is no merit in Kregler’s argument that the case
13 should be remanded to a different district court judge. See
14 Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142
15 (2d Cir. 2007). Kregler’s motion for leave to amend, which
16 was denied below as futile, should be granted upon remand.
17 We have considered all of defendants’ contentions in
18 support of the Rule 12(b)(6) dismissal and have found them
19 to be without merit. Accordingly, the judgment of the
20 district court is hereby VACATED and the matter is REMANDED
21 for further proceedings consistent with this order. In the
1
The District Court looked further into the matter in
a Rule 12(i) hearing. We express no opinion, however, as to
the use of that procedure or the impact of the facts adduced
therein.
4
1 event that plaintiff ultimately prevails on the merits of
2 his claim, the district court shall include in the costs
3 awarded the costs of this appeal.
4
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8 FOR THE COURT:
9 CATHERINE O’HAGAN WOLFE, CLERK
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