12-1622-cv
Matthews v. City of New York


                               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 28th day of November, two thousand twelve.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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CRAIG MATTHEWS,
                                 Plaintiff-Appellant,

                               v.                                         No. 12-1622-cv

CITY OF NEW YORK, RAYMOND KELLY, as
Commissioner of the New York City Police Department,
JON BLOCH, a deputy inspector in the New York City
Police Department, MARK SEDRAN, a lieutenant in the
New York City Police Department,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                          CHRISTOPHER DUNN (Arthur Eisenberg, on
                                                  the brief), New York Civil Liberties Union
                                                  Foundation, New York, New York.
APPEARING FOR APPELLEES:                     MARTA B. ROSS, (William S.J. Fraenkel,
                                             Edward F.X. Hart, on the brief), Assistant
                                             Corporation Counsel, for Michael Cardozo,
                                             Corporation Counsel of the City of New York,
                                             New York, New York.


       Appeal from a judgment of the United States District Court for the Southern District

of New York (Barbara S. Jones, Judge).

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

DECREED that the judgment entered on April 23, 2012, is VACATED and the case is

REMANDED.

       Plaintiff Craig Matthews, a New York City police officer, appeals from dismissal of

his First Amendment retaliation claims against his employer, the City of New York, and

individual supervisors. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6),

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

inferences in the plaintiff’s favor. Forest Park Pictures v. Universal Television Network,

Inc., 683 F.3d 424, 429 (2d Cir. 2012). To survive a motion to dismiss, however, the

complaint must state a claim to relief that is plausible on its face, which requires the plaintiff

to plead facts permitting “the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying these

standards here, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to vacate.



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       “To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his

speech or conduct was protected by the First Amendment; (2) the defendant took an adverse

action against him; and (3) there was a causal connection between this adverse action and the

protected speech.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir.

2011). Where the plaintiff is a public employee, his ability to sue for such First Amendment

retaliation further requires that he have spoken “as a citizen addressing matters of public

concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “[W]hen public employees make

statements pursuant to their official duties, the employees are not speaking as citizens for

First Amendment purposes.” Id. at 421.

       Matthews contends that the district court erred in concluding as a matter of law that

his speech to precinct commanding officers about the quota system imposed on him and other

officers by direct supervisors was pursuant to official duties and therefore not protected by

the First Amendment against retaliation. Matthews alleges that he told his commanding

officer on multiple occasions in 2009 that a quota system existed. Matthews further alleges

that, in 2011, he told a new commanding officer not only that a quota system existed, but also

that it “was causing unjustified stops, arrests, and summonses because police officers felt

forced to abandon their discretion in order to meet their numbers.” Compl. ¶ 28. He also told

the commanding officer that “the quota system was having an adverse effect on the precinct’s

relationship with the community.” Id.




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       Accepting Matthews’s allegations as true, it is undisputed that his speech addressed

a matter of public concern. See Jackler v. Byrne, 658 F.3d 225, 236–37 (2d Cir. 2011)

(holding that speech pertaining to police misconduct is a matter of public concern). That

conclusion is only reinforced by the fact that, by 2011, the quota system he alleged existed

violated New York law. See N.Y. Labor Law § 215-a (McKinney 2012) (effective Aug. 30,

2010). The record in this case is not yet sufficiently developed, however, to determine as a

matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced

the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos,

547 U.S. at 424–26 (distinguishing between giving employees an internal forum for their

speech and making certain speech a duty of employment). As we have recently observed,

“whether a public employee is speaking pursuant to h[is] official duties is not susceptible

to a brightline rule.” Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). The matter may

require some inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the

speech, and the relationship between the two.” Id. Here, some discovery as to these matters

is necessary before it can be decided whether Matthews can or cannot pursue a First

Amendment retaliation claim in this case.

       Accordingly, the judgment of the district court is VACATED and the case

REMANDED for further proceedings consistent with this order.

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




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