Opinion
No. 09-3840-cv.
May 3, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Marrero, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED and the matter be REMANDED for further proceedings.
Nathaniel B. Smith, Law Office of Nathaniel B. Smith. New York, NY, for Appellants.
Drake A. Colley (Edward F.X. Hart on the brief) for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellees.
PEESENT: DENNIS JACOBS, Chief Judge, AMALYA L. KEARSE and GUIDO CALABRESI, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant William Kregler appeals from an August 18, 2009, 646 F.Supp.2d 570, judgment of the United States District Court for the Southern District of New York (Marrero, J.) granting defendants' motion to dismiss under Rule 12(b)(6). Kregler appeals, arguing that he sufficiently stated a claim in his complaint brought under 42 U.S.C. § 1983. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
"We review a district court's grant of a motion to dismiss under Rule 12(b)(6) de novo." Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir. 2008) (internal quotation marks omitted). "To state a prima facie case of retaliation under § 1983, a plaintiff must demonstrate that: (1) his or her speech was constitutionally protected; (2) he or she suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action so that it can be said that the speech was a motivating factor in the determination." Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004). The appellees contend that Kregler did not adequately plead causation.
"While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbai, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). "A court `can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) ( quoting Iqbal, 129 S.Ct. at 1950). "We next consider the factual allegations in [plaintiffs] complaint to determine if they plausibly suggest an entitlement to relief." Iqbal, 129 S.Ct. at 1951; see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
Kregler's amended complaint pleads facts sufficient to clear this threshold. He alleges that in response to his announced stance in support of a candidate in a heated local political campaign, employees of the New York City Fire Department induced contacts at the Department of Investigation to prevent his appointment as a City Marshal. This allegation is neither a legal conclusion nor asserts a claim that is implausible on its face. Kregler's claim that political animus caused certain defendants to lie about or mischaracterize Kregler's disciplinary record, and that that same political animus caused other defendants to accept their misrepresentations is not implausible on its face and therefore not susceptible to a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
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.
There is no merit in Kregler's argument that the case should be remanded to a different district court judge. See Shcherbakovskiy v. Da Capo Al Fine, • Ltd., 490 F.3d 130, 142 (2d Cir. 2007). Kregler's motion for leave to amend, which was denied below as futile, should be granted upon remand.
We have considered all of defendants' contentions in support of the Rule 12(b)(6) dismissal and have found them to be without merit. Accordingly, the judgment of the district court is hereby VACATED and the matter is REMANDED for further proceedings consistent with this order. In the event that plaintiff ultimately prevails on the merits of his claim, the district court shall include in the costs awarded the costs of this appeal.