19-259-cv
Jake McHerron, et al. v. Burnt Hills – Ballston Lake Central School Dist., 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.

       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 2nd day of October, two thousand nineteen.

PRESENT:             JOSÉ A. CABRANES,
                     GERARD E. LYNCH,
                     CHRISTOPHER F. DRONEY,
                                  Circuit Judges.


JAKE MCHERRON AND MARY LOU VOSBURGH,

                               Plaintiffs-Appellants,                                    19-259-cv

                               v.

BURNT HILLS – BALLSTON LAKE CENTRAL SCHOOL
DISTRICT, PATRICK MCGRATH, TIMOTHY BRUNSON,
AND JOE SCALISE,

                               Defendants-Appellees.


FOR PLAINTIFFS-APPELLANTS:                                                     PHILLIP G. STECK, Cooper Erving &
                                                                               Savage LLP, Albany, NY.

FOR DEFENDANTS-APPELLEES:                                                      PATRICK J. FITZGERALD, Girvin &
                                                                               Ferlazzo, P.C., Albany, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Mae A. D’Agostino, Judge).


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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Jake McHerron and Mary Lou Vosburgh (jointly, “Plaintiffs”), appeal from a January 24,
2019 judgment of the District Court (1) granting the motion of Defendants-Appellees
(“Defendants”) to dismiss Plaintiffs’ complaint under Fed. R. Civ. P. 12(b)(6) in an action alleging
violations of Plaintiffs’ substantive and procedural due process rights; and (2) denying as futile
Plaintiffs’ cross-motion to amend their complaint, in which they sought to add a claim for retaliation
under the First Amendment. The District Court’s decision on Plaintiffs’ substantive due process
claim is not challenged on appeal. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

        We review de novo a dismissal for failure to state a claim, asking “whether the allegations in
the complaint, taken as true, state a plausible claim for relief.” NRP Holdings LLC v. City of Buffalo,
916 F.3d 177, 189 (2d Cir. 2019). We also review de novo the denial of a motion to amend a futile
complaint. Chunn v. Amtrak, 916 F.3d 204, 207 (2d Cir. 2019). After independently reviewing the
record, and for the reasons stated below, we affirm the District Court’s judgment in its entirety.

                                                    I.

         Plaintiffs primarily dispute the District Court’s finding that they had failed to state a “stigma-
plus” claim under a theory that their protected liberty interests were violated without due process of
law. Without expressing any view on the District Court’s analysis of this issue, we affirm the District
Court’s January 24, 2019 judgment, albeit on a different ground than that addressed by that court in
its January 24, 2019 Memorandum-Decision and Order (“M&O”). We may affirm the decision of a
district court for any reason supported by the record. Latner v. Mount Sinai Health Sys., Inc, 879 F.3d
52, 54 (2d Cir. 2018), as amended (Jan. 9, 2018). Upon an independent review of the record, and
assuming arguendo that Plaintiffs were indeed deprived of a protected liberty interest, we conclude
that an Article 78 proceeding provided by New York law is a sufficient post-deprivation remedy,
which defeats Plaintiffs’ “stigma-plus” claim.

         New York Civil Practice Law and Rules Article 78 provides for a proceeding that affords
Plaintiffs due process of law. Plaintiffs’ contention that an Article 78 proceeding would be
insufficient here to remedy their alleged harm is directly contradicted by the law of our Circuit. In a
previous case considering a stigma-plus claim, we held that “in the context of an at-will government
employee, a reasonably prompt, post-termination name-clearing hearing satisfies constitutional due
process as long as the procedures afforded at such a hearing are sufficient to protect the employee's
reputational and professional interests. The availability of such a hearing . . . defeats [plaintiff's]
stigma-plus claims.” Segal v. City of New York, 459 F.3d 207, 218 (2d Cir. 2006). Since Segal, we have
directly answered in the affirmative the question of whether an Article 78 hearing provides the level

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of process due in those circumstances. Anemone v. Metro. Transp. Auth., 629 F.3d 97, 121 (2d Cir.
2011) (holding that, with respect to a procedural due process claim, “[a]n Article 78 proceeding
provides the requisite post-deprivation process”). Plaintiffs’ claim is not saved by any allegation that
they have not yet sought an Article 78 proceeding. We have held that the availability of the Article
78 remedy satisfies due process and defeats a stigma-plus claim “even if [plaintiff] failed to pursue
it.” Id. Because the availability of an Article 78 proceeding defeats a procedural due process claim of
the sort asserted by Plaintiffs, we affirm the dismissal of their stigma-plus claim.

                                                     II.

         Finally, Plaintiffs appeal so much of the District Court’s judgment as denied their motion to
amend their complaint, in which they sought to add a First Amendment retaliation claim. In order
to state a claim for retaliation in this case, Plaintiffs must show that, inter alia, they were speaking on
a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also, e.g., Weintraub v. Board
of Education, 593 F.3d 196, 201–202 (2d Cir. 2010). As the District Court correctly stated, “whether
an employee’s speech addresses a matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S.
138, 148 (1983). It is well established that “speech that principally focuses on an issue that is
personal in nature and generally related to [the speaker’s] own situation, or that is calculated to
redress personal grievances—even if touching on a matter of general importance—does not qualify
for First Amendment protections.” Montero v. City of Yonkers, New York, 890 F.3d 386, 399–400 (2d
Cir. 2018) (internal quotation marks and citations omitted). That is so even where the speech takes
the form of a lawsuit. See Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008). Although we
highlight that a speaker’s motive for the speech at issue here is not necessarily dispositive, we
conclude—for substantially the reasons described in the M&O—that Plaintiffs here were not
speaking on a matter of public concern. We therefore affirm the District Court’s judgment denying
Plaintiff’s cross-motion to add this futile retaliation claim.

                                             CONCLUSION

        We have reviewed all of the remaining arguments raised by Appellants on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the January 24, 2019 judgment
of the District Court.


                                                           FOR THE COURT:
                                                           Catherine O’Hagan Wolfe, Clerk




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