11-4372-cv
Casciani v. Town of Webster


                               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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of November, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
                       Circuit Judges.

———————————————————————

JOHN CASCIANI,
                                       Plaintiff-Appellant,

                              v.                                        No. 11-4372-cv

TOWN OF WEBSTER, RONALD NESBITT, Town Board Supervisor, DONALD
HAUZA, Assistant Public Works Commissioner, both in their individual and official
capacities,
                              Defendants-Appellees.

———————————————————————

FOR APPELLANT:                                CHRISTINA A. AGOLA, Christina A. Agola, PLLC,
                                              Rochester, New York.


FOR APPELLEE:                                 JOSHUA FEINSTEIN (Adam W. Perry, on the brief),
                                              Hodgson Russ LLP, Buffalo, New York.
       Appeal from a judgment of the United States District Court for the Western District

of New York (David G. Larimer, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part and VACATED and

REMANDED in part.

       Plaintiff-appellant John Casciani filed suit against the Town of Webster, its Board

Supervisor, Ronald Nesbitt, and its Assistant Public Works Commissioner, Donald Hauza,

pursuant to 42 U.S.C. § 1983 alleging retaliation and selective enforcement of various local

laws. The district court (David G. Larimer, Judge) granted defendants-appellees’ motion for

judgment on the pleadings on claim-preclusion (or res judicata) grounds. On appeal,

Casciani argues that the district court applied claim preclusion overly broadly to dismiss his

claims because some of them arose after the filing of his previous complaint. We assume the

parties’ familiarity with the facts and prior proceedings, which we reference only as

necessary to explain our decision.

       We review a district court’s determination that a claim is precluded by the doctrine

of claim preclusion de novo. Nestor v. Pratt & Whitney, 466 F.3d 65, 70 (2d Cir. 2006). We

review a district court’s judgment pursuant to Federal Rule of Civil Procedure 12(c) de novo,

accepting all factual allegations contained in the complaint as true and drawing all reasonable

inferences in the plaintiff’s favor. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012). We

may affirm the district court’s judgment “on any ground supported by the record.” Sudler

v. City of New York, 689 F.3d 159, 168 (2d Cir. 2012).


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       The district court dismissed the complaint as barred by claim preclusion in its entirety.

To the extent Casciani’s complaint in this case includes allegations that could have been

brought in his prior action that are part of the same nucleus of operative facts, the district

court did not err in dismissing them. Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d

Cir. 2000). However, Casciani argues on appeal that some of the claims raised in the present

complaint arose after either the filing of his original complaint or the denial of his motion for

leave to amend his original complaint. To determine the moment when claim preclusion was

triggered in the first proceeding, we must analyze whether the denial of leave to amend

constituted a final judgment on the merits as to the allegations in the proposed amended

complaint. Flaherty v. Lang, 199 F.3d 607, 613-16 (2d Cir. 1999). This inquiry requires us

to ask “whether the claim in the proposed supplemental complaint had been before the court

in the prior action in a realistic sense.” Id. at 614 (internal quotation marks and alterations

omitted).

       The district court in Casciani’s original lawsuit considered his proposed amended

complaint in a consolidated order that also granted summary judgment for the defendants,

and we affirmed that order on appeal. Casciani v. Nesbitt, 659 F. Supp. 2d 427 (W.D.N.Y.

2009), aff’d 392 F. App’x 887 (2d Cir. 2010). The district court specifically held that

amendment of Casciani’s complaint would be futile because it “could not withstand a motion

to dismiss for failure to state a claim.” Id. at 465. The district court’s opinion considered in

turn each new claim put forward in the proposed amended complaint and determined that

each of them “fail[ed] as a matter of law.” Id. at 467. Because the district court thoroughly


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discussed its denial of leave to amend and the basis for that decision was “readily apparent,”

we conclude that the denial constitutes a final judgment sufficient to preclude any claims

contained in the proposed amended complaint. Flaherty, 199 F.3d at 615; see McNellis v.

First Fed. Sav. & Loan Ass’n of Rochester, 364 F.2d 251, 255-56 (2d Cir. 1966). As a result,

the district court did not err by holding that all claims alleged in the proposed amended

complaint in Casciani’s prior action were claim precluded.

       Casciani argues that three of the claims alleged in the complaint before this court

today arose after the filing of his prior complaint and were not alleged in his proposed

amendment to that complaint. He argues that a local ordinance regulating aircraft operation

in the town of Webster has been selectively enforced against him, that he was subjected to

retaliatory tax increases on various of his properties in Webster, and that defendant Hauza

caused a building permit to be unduly delayed in retaliation for filing his original lawsuit.

We consider in turn whether these claims survive claim preclusion and state a claim on which

relief can be granted.

       Casciani’s allegation that the local aircraft ordinance has been selectively enforced

against him was presented in his proposed amended complaint in the prior action. He

previously alleged that Webster resident John Roessel was allowed to operate his aircraft

“without incident, harassment, or provocation from the town of Webster,” and that such

differential treatment constituted “selective and discriminatory prosecution.” Casciani’s

selective enforcement claims in this case are also based on differential treatment between him

and Roessel. Because Casciani alleges continuing actions that “are ‘related in time, space,



                                              4
origin, or motivation,’” his selective enforcement claims in this suit are part of the same

nucleus of operative fact and are therefore precluded. Waldman, 207 F.3d at 108, quoting

Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997).

       Casciani claims that the Town retaliated against him by raising the tax assessment on

some of his properties. While this claim is not part of the same nucleus of operative fact as

the allegations contained in the proposed amended complaint, the district court dismissed it

as barred by the principle of comity. Actions under § 1983 seeking damages related to the

collection of state taxes are barred by the principle of comity so long as there is a

procedurally adequate state alternative procedure for challenging the assessment. Fair

Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 116 (1981); Long Island

Lighting Co. v. Town of Brookhaven, 889 F.2d 428, 431 (2d Cir. 1989). Casciani argues that

Hibbs v. Winn, 542 U.S. 88 (2004), altered the rule of Fair Assessment. But the Supreme

Court has rejected this reading of Hibbs. Levin v. Commerce Energy, Inc., 130 S. Ct. 2323,

2335-36 (2010). Because New York has procedurally adequate mechanisms for challenging

tax assessments, see Joseph v. Hyman, 659 F.3d 215, 220-21 (2d Cir. 2011), Casciani’s

§ 1983 damages claim is barred by the principle of comity.

       Casciani’s third argument is that defendant Hauza caused undue delay in granting a

building permit for one of his properties. Casciani’s original complaint contained no

allegations against Hauza, and Hauza was not discussed in the district court’s decision in the

prior case. We therefore conclude that the district court erred in treating the claims against

Hauza as claim precluded.



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       Casciani’s claims against Hauza must still be analyzed to determine whether they meet

the requirements of Federal Rule of Civil Procedure 12(c). Because the district court treated

these claims as barred by claim preclusion, it did not have the opportunity to review whether

Casciani stated a valid claim against Hauza for selective enforcement or class-of-one

discrimination under the Fourteenth Amendment or, alternatively, retaliation under the First

Amendment. We therefore vacate the district court’s judgment as to Casciani’s claims

regarding undue delay and remand the case for further proceedings.

       For the foregoing reasons, the judgment of the district court is AFFIRMED in part and

VACATED and REMANDED in part for proceedings not inconsistent with this opinion.1


                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




       1
         The Court understands Casciani to have waived his defamation argument based on
Mr. Nesbitt’s statements to local media. To the extent Casciani relies on these statements in
his other claims, they are barred under claim preclusion as merely an “additional instance[]
of what was previously asserted.” Waldman, 207 F.3d at 108; see also Casciani, 659 F.
Supp. 2d at 465-67 (noting that Nesbitt’s statements to the local media were “nothing more
than Nesbitt’s statement of his opinion about a matter of public concern”).

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