     12-2017
     Massena v. Bronstein



                            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 19th day of November, two thousand thirteen.

     PRESENT:    RALPH K. WINTER,
                 DENNIS JACOBS,
                 CHESTER J. STRAUB,
                       Circuit Judges.
     _________________________________________

     Andre Massena,

                             Plaintiff - Appellant,

                       v.                                     12-2017

     Laura Bronstein, Tarrick Abdelazim, City of
     Binghamton,

                             Defendants - Appellees,

     Binghamton University, State University of New
     York,

                       Defendants.
     _________________________________________
     FOR APPELLANT:                Andre Massena, pro se, West Palm Beach, Fla.

     FOR APPELLEES:                Laura Etlinger, Esq., and Denise Ann Hartman, Esq. N.Y.
                                   State Office of the Attorney General, for Appellee Laura
                                   Bronstein.

                                   Brian Matthew Seachrist, Esq., City of Binghamton
                                   Corporation Counsel, Binghamton, NY, for Appellees
                                   Tarrick Abdelazim and City of Binghamton.

 1          Appeal from a judgment of the United States District Court for the Northern

 2   District of New York (McAvoy, J.).

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

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Andre Massena, pro se, appeals from the judgment dismissing his First

 6   Amendment retaliation claims, pursuant to 42 U.S.C. § 1983, against Laura Bronstein,

 7   Tarrick Abdelazim, and the City of Binghamton (the “City”). The claims arise from

 8   disciplinary action taken by Bronstein at Binghamton University, and the non-renewal of

 9   Massena’s contract with the City. We assume the parties’ familiarity with the underlying

10   facts, the procedural history, and the issues presented for review.

11          We review de novo a decision dismissing a complaint pursuant to Rule 12(b)(6).

12   See Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87 (2d Cir. 2013). To survive a

13   motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is

14   plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

15   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept the factual

16   allegations in the complaint as true, that requirement is “inapplicable to legal conclusions.”

17   Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual



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 1   content that allows the court to draw the reasonable inference that the defendant is liable

 2   for the misconduct alleged.” Id.

 3             In order to prevail against a municipality based on the acts of a public official, a §

 4   1983 plaintiff must prove, inter alia, that the constitutional injury was caused “pursuant to

 5   official municipal policy of some nature,” Monell v. Dep’t of Soc. Servs. of City of N.Y.,

 6   436 U.S. 658, 691 (1978), or by a municipal policymaker with “final policymaking power”

 7   over the challenged action, Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008). The

 8   question of whether an official has final policymaking authority is a question of law. See

 9   Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000). Accordingly, the district court was not

10   bound to accept as true Massena’s legal conclusion that Abdelazim was a “final

11   policymaker.” Cf. Iqbal, 556 U.S. at 678.

12             The City’s contracts are awarded by the Board of Contract and Supply or the City

13   Council, not by Abdelazim. See Binghamton, N.Y. Ord. § 127-11(c). The district court,

14   therefore, properly dismissed Massena’s claims against the City. See Massena v.

15   Bronstein, No. 10-cv-1245, 2011 WL 754112 (N.D.N.Y. Feb. 12, 2011). We review orders

16   granting summary judgment de novo and focus on whether there was no genuine issue of

17   material fact and the moving party was entitled to judgment as a matter of law. See Miller

18   v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). We “resolve all

19   ambiguities and draw all permissible factual inferences in favor of the party against whom

20   summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)

21   (quoting Stern v. Trustees of Columbia Univ. in City of N.Y., 131 F.3d 305, 312 (2d Cir.

22   1997)).

23
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 1          To prevail on a claim of First Amendment retaliation, a plaintiff must first prove

 2   that his speech warrants First Amendment protection. See Reuland v. Hynes, 460 F.3d

 3   409, 414 (2d Cir. 2006) (discussing whether speech was protected by First Amendment in

 4   employee speech context); Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)

 5   (setting forth elements for a First Amendment retaliation claim by a private individual

 6   against a public official). The First Amendment offers no protection to a statement that (1)

 7   would reasonably have been perceived as an assertion of fact, (2) was false, and (3) was

 8   made “with knowledge or reckless disregard of its falsity.” Reuland, 460 F.3d at 414.

 9   Reckless disregard for the truth may be evident from a speaker’s “subjective awareness of

10   probable falsity,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 n.6 (1974), or “serious

11   doubts as to the truth of his [speech],” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

12          Massena concedes that his statements could be perceived by a reasonable observer

13   to be statements of fact, and he does not meaningfully dispute that they were false. To

14   survive summary judgment, therefore, he has to demonstrate a triable issue of fact

15   regarding whether he acted with knowledge or reckless disregard for the truth of his

16   statements.

17          Massena’s posters stated that a tenant in city-subsidized housing was wrongfully

18   evicted in retaliation for her tenant-advocacy activities. He does not dispute that: 1) the

19   tenant was provided with a hearing concerning whether she failed to complete required

20   community service; 2) a hearing officer found she had submitted fraudulent documents; 3)

21   an eviction proceeding was commenced and a warrant of eviction obtained; and, 4) the

22   tenant fully exercised her right to appeal the warrant. Nor does Massena dispute that he


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 1   was aware of these facts prior to distributing the posters. He argues that a reasonable jury

 2   could find he did not know his statements to the contrary were false because he believed

 3   that the stated reasons for the eviction were mere pretext.

 4          Even assuming that Massena believed that the hearing officer was using the

 5   tenant’s fraud as a pretext, however, summary judgment was properly granted. Massena’s

 6   poster stated that “reasons had to be fabricated to force [the tenant] out of [her] home.” In

 7   other words, Massena charged the hearing officer with making up out of whole cloth a

 8   reason to evict the tenant. But Massena knew that was not true. Perhaps he believed that

 9   the tenant’s fraud was an excuse that the hearing officer latched on to, but he could not

10   have believed that the hearing officer was forced to create a false reason to evict the tenant

11   as he knew that the fraud was real. His speech, therefore, was not subject to First

12   Amendment protections.

13          Because we affirm on the ground that the First Amendment does not protect

14   Massena’s speech, we need not reach his contentions regarding whether he suffered

15   adverse actions at the hands of Bronstein and Abdelazim, or whether those actions were

16   causally related to his speech.

17          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

18                                                 FOR THE COURT:
19                                                 Catherine O’Hagan Wolfe, Clerk




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