     09-4170-cv
     Casciani v. Nesbitt

                           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 .


 1            At a stated term of the United States Court of                     Appeals
 2       for the Second Circuit, held at the Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 7 th day of September, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                REENA RAGGI,
 9                              Circuit Judge,
10                JED S. RAKOFF, *
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       JOHN CASCIANI,
15                Plaintiff-Appellant,
16
17                    -v.-                                               09-4170-cv
18
19       RONALD NESBITT, TOWN BOARD SUPERVISOR,
20       In His Individual and Official
21       Capacity, TOWN OF WEBSTER,
22                Defendants-Appellees.
23       - - - - - - - - - - - - - - - - - - - -X
24

                *
              District Judge Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.

                                                  1
 1   FOR APPELLANT:               Christina A. Agola, PLLC.
 2                                2100 First Federal Plaza
 3                                28 East Main St.
 4                                Rochester, NY 14614
 5
 6   FOR APPELLEES:               Joshua I. Feinstein, Esq.
 7                                Adam W. Perry, Esq.
 8                                Hodgson Russ LLP
 9                                140 Pearl St. Suite 100
10                                Buffalo, NY 14202
11
12        Appeal from a judgment of the United States District
13   Court for the Western District of New York (Larimer, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        John Casciani challenges the grant of defendants’
20   motion for summary judgment. We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history, and the issues presented for review.
23
24   [1]   We review a district court grant of summary judgment de
25         novo. Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010).
26         In ruling on a motion for summary judgment, the court
27         must “constru[e] the evidence in the light most
28         favorable to the non-moving party and draw[] all
29         reasonable inferences in [his] favor. Allianz Ins. Co.
30         v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). However,
31         the court is not required to draw all inferences in the
32         nonmovant’s favor, but only all reasonable inferences.
33         A party may not avoid summary judgment with “assertions
34         that are conclusory or based on speculation.” Major
35         League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d
36         290, 310 (2d Cir. 2008) (internal citations omitted).
37         Summary judgment is warranted where there is no genuine
38         issue of material fact. Allianz Ins. Co., 416 F.3d at
39         113.
40
41   [2]   Casciani argues that he was the victim of selective
42         enforcement of Chapter 76 of the Town of Webster Code
43         (“Ordinance 76") or, in the alternative, that Ordinance
44         76 creates a “class of one” in violation of Casciani’s
45         Fourteenth Amendment right to equal protection. To
46         establish either claim, Casciani must show both that he


                                   2
 1         was treated differently than other persons who were
 2         similarly situated and that such differential treatment
 3         was either without rational basis (a “class of one”
 4         claim) or was motivated by an intent to discriminate on
 5         an impermissible basis (a selective enforcement claim).
 6         Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004)
 7         (describing elements of “class of one” claim); Zahra v.
 8         Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)
 9         (describing elements of selective enforcement claim).
10
11         We agree with the district court that Casciani failed
12         to raise a genuine issue of fact as to disparate
13         treatment. The individuals Casciani cites as examples
14         were not similarly situated because they did not take
15         off or land helicopters from residential property in
16         the town. See Doninger v. Niehoff, 527 F.3d 41, 53 (2d
17         Cir. 2008) (requiring plaintiff to show “extremely high
18         degree of similarity” between himself and comparators).
19         In any event, they were not treated differently because
20         the challenged ordinance was generally applicable and
21         was never enforced against either Casciani or the
22         individuals to which he would compare himself. See
23         Church of Am. Knights of the Ku Klux Klan v. Kerik, 356
24         F.3d 197, 210-11 (2d Cir. 2004) (holding that
25         differential treatment is “prerequisite” to selective
26         enforcement claim).
27
28   [3]   Casciani argues that the passage of Ordinance 76
29         “chilled” his speech in violation of his First
30         Amendment rights. However, Casciani offered no
31         elaboration on this assertion and gave no specifics as
32         to how Ordinance 76 qualifies as retaliation, what it
33         retaliated against, or what speech of his it threatened
34         to “chill.” Arguments not made in an appellant’s
35         opening brief are waived, and merely incorporating by
36         reference an argument presented to the District Court
37         or asserting an issue without advancing an argument
38         does not suffice to adequately raise an issue for
39         appellate review. Norton v. Sam’s Club, 145 F.3d 114,
40         117 (2d Cir. 1998); see also Tolbert v. Queens Coll.,
41         242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled
42         appellate rule that issues adverted to in a perfunctory
43         manner, unaccompanied by some effort at developed
44         argumentation, are deemed waived.” (internal quotation
45         marks omitted)). As a result of his failure to give
46         even a bare-bones explanation of how his rights were


                                   3
 1         infringed upon, Casciani has waived his First Amendment
 2         claim.
 3
 4   [4]   Casciani argues that Ordinance 76 is unconstitutional
 5         on its face because it draws an arbitrary distinction
 6         between helicopters and ultralight aircraft. Ordinance
 7         76 does not implicate any suspect class (race, gender,
 8         etc.) or fundamental right, so the proper standard of
 9         review is rational basis. See Estate of Landers v.
10         Leavitt, 545 F.3d 98, 112 (2d Cir. 2008); Greene v.
11         Town of Blooming Grove, 879 F.2d 1061, 1063 (2d Cir.
12         1989) (holding that city ordinance is entitled to
13         presumption of validity and “will not be held
14         unconstitutional if its wisdom is at least fairly
15         debatable and it bears a rational relationship to a
16         permissible state objective”). The party challenging
17         such an ordinance bears the heavy burden of negating
18         every conceivable rational and legitimate basis for the
19         ordinance. Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 75
20         (2001).
21
22         It is manifest that noise and safety are rational bases
23         for the distinction between helicopters and ultralight
24         aircraft. See Heller v. Doe, 509 U.S. 312, 319 (1993).
25
26         Finding that Casciani failed to raise a genuine issue
27         of material fact with regard to any of his claims, we
28         hereby AFFIRM the district court’s granting of summary
29         judgment for the defendants.
30
31
32                                FOR THE COURT:
33                                CATHERINE O’HAGAN WOLFE, CLERK
34




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