12-1790-cv
Santulli v. Russello

                          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 the 18th
day of March, two thousand thirteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
__________________________________________________________

MICHAEL SANTULLI, ROSEMARIE SANTULLI, OUR FUTURE
LLC, M. SANTULLI, LLC,

                              Plaintiffs-Counter-Defendants-Appellees,


                        -v-                                               12-1790-cv

FRANCIS RUSSELLO, INDIVIDUALLY AND AS A CODE
ENFORCEMENT OFFICER OF THE TOWN OF BROOKHAVEN,
NEW YORK, PATRICK CAMPBELL, INDIVIDUALLY AND AS A
CODE ENFORCEMENT OFFICER OF THE TOWN OF
BROOKHAVEN, NEW YORK, ROBERT N. INCAGLIATO,
INDIVIDUALLY AND AS A SENIOR INSPECTOR OF THE TOWN
OF BROOKHAVEN, NEW YORK, RAYMOND NEGRON,
INDIVIDUALLY AND AS ASSISTANT TOWN ATTORNEY, TOWN
OF BROOKHAVEN, JAMES BUCHNER, BADGE NO. 56,
INDIVIDUALLY AND AS A FIRE MARSHAL OF THE TOWN OF
BROOKHAVEN, NEW YORK, CHRISTOPHER J. MEHRMAN,
BADGE NO. 46, INDIVIDUALLY AND AS A SENIOR FIRE
MARSHAL OF THE TOWN OF BROOKHAVEN,

                              Defendants-Counter-Claimants-Appellants.
Appearing for Appellees:      David Berg, Berg Law PLLC, Brooklyn, NY.

Appearing for Appellants:     Timothy Hill, Sinnreich Kosakoff & Messina LLP, Central Islip,
                              NY.

       Appeal from the United States District Court for the Eastern District of New York (Platt,
J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal is REVERSED in part and DISMISSED in part for lack of
appellate jurisdiction.

        Defendants-Appellants, Francis Russello, Patrick Campbell, Robert Incagliato, Raymond
Negron, James Buchner, Christopher Mehrman, and Salvatore Garafalo, individually and in their
official capacities as officers of the Town of Brookhaven, New York, appeal from the district
court’s order entered on April 2, 2012. Having found genuine issues of material fact remain with
regards to Plaintiffs-Appellees’ claims, the district court denied Defendants’ motion for
summary judgment.

        Plaintiffs-Appellees are the owners of seven rental properties in Brookhaven, New York.
Their claims arise from the fact that Defendants issued fifty-eight summonses on these
properties, fifty-six of which were dismissed on the merits. Plaintiffs chiefly allege that
Defendants, in violation of 42 U.S.C. § 1983, (1) unlawfully retaliated against Plaintiffs for
joining an outspoken homeowners coalition (“the Coalition”) violating their First Amendment
rights, and (2) maliciously prosecuted Plaintiffs because the issuance of fifty-eight summonses
constituted an unlawful seizure under the Fourth Amendment. Plaintiffs also allege under §1983
that Defendants (3) seized Plaintiffs’ real property without due process of law in violation of the
Fifth and Fourteenth Amendments, (4) deprived Plaintiffs of their equal protection and (5)
substantive due process rights, (6) violated the Fair Housing Act, 42 U.S.C. § 3617 and (7)
impeded Plaintiffs’ contractual relationship with minority tenants, in violation of 42 U.S.C §
1981. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         This Court reviews “a district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, [and] is an appealable ‘final decision’ within the meaning
of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). However, to the extent the denial of qualified immunity turns on a
disputed issue of fact, we lack jurisdiction under § 1291. Johnson v. Jones, 515 U.S. 304,
319-20 (1995). “[A] defendant, entitled to invoke a qualified immunity defense, may not appeal
a district court’s summary judgment order insofar as that order determines whether or not the
pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. “Qualified immunity protects
public officials from liability for civil damages when one of two conditions is satisfied: (a) the
defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport,
479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted).



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        It is clearly established that a person has the right to be free from retaliation for an
exercise of First Amendment rights, Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001),
and malicious prosecution under the Fourth Amendment, Singer v. Fulton County Sheriff, 63
F.3d 110, 115 (2d Cir. 1995). In order to state a claim for retaliation, the plaintiff must prove (1)
his conduct was protected by the First Amendment, (2) the defendants’ actions were motivated
or substantially caused by the exercise of that right, Dillon v. Morano, 497 F.3d 247, 251 (2d
Cir. 2007), and (3) defendants’ actions effectively “chilled” the exercise of plaintiff’s First
Amendment right. Curley v. Village of Suffern, 268 F.2d 65 (2d Cir. 2001). A plaintiff asserting
a malicious prosecution claim must “show some deprivation of liberty consistent with the
concept of ‘seizure.’” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting Singer v, Fulton
Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). Qualified immunity, generally shields
government officials from liability for damages on account of their performing discretionary
official functions that a reasonable person would not have known violate clearly established law.
Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d Cir. 1993). Where the objective
reasonableness of state action depends on credibility determinations, a genuine issue of material
fact precludes summary judgment. Dillon v. Morano, 497 F.3d 247, 253 (2d Cir. 2007).

        Defendants-Appellants argue on appeal that Plaintiffs-Appellees did not suffer from First
Amendment retaliation because the issuance of summonses did not chill Plaintiffs’ behavior.
See Curley, 268 F.3d at 73 (stating actions alleged must chill behavior to establish a First
Amendment retaliation claim). Defendants-Appellants also argue that the fifty-eight summonses
that were issued did not amount to a Fourth Amendment “seizure” because this Court has held
“that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance,
without further restrictions, does not constitute a Fourth Amendment seizure.” See Burg, 591
F.3d at 98; Cf. id. (stating “[t]he number of appearances may bear upon whether there was a
seizure”). Alternatively, Defendants-Appellants claim their actions were objectively reasonable
because Plaintiffs’ properties were in violation of Brookhaven’s Code, thus the summonses
would be issued regardless of any supposed animus against Plaintiffs.

         As to Appellants’ First Amendment and malicious prosecution claims, where Appellants’
arguments challenge the district court’s determination that the record sets forth genuine issues of
material fact for trial, we dismiss for lack of jurisdiction. “[W]here the district court denied
immunity on summary judgment because genuine issues of material fact remained, we have
jurisdiction to determine whether the issue is material, but not whether it is genuine.” Bolmer v.
Oliveira, 594 F.3d 134, 140–41 (2d Cir. 2010) (internal citations omitted). Here, the district
court found genuine issues of fact remain as to: (1) whether the Defendant retaliated against
Plaintiffs, where they received no summonses for five years, but were then “deluged” subsequent
to their protests, (2) whether the Defendants maliciously prosecuted Plaintiffs, where fifty-six of
the fifty-eight summonses were dismissed on the merits, and (3) whether the Defendants acted
objectively unreasonably where the overwhelming majority of dismissed summonses suggested
improper motivations. Although state action may be upheld if the action would have been taken
based on the proper reasons alone, Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), the
district court’s denial of qualified immunity, on these grounds, does not turn on an issue of law,
but on questions of fact and credibility. Thus, we lack jurisdiction under 28 U.S.C. § 1291 to
address Plaintiffs’ First Amendment and malicious prosecution claims.



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         Despite our limited jurisdiction, on appeal the Defendants contend that Plaintiffs
unsuccessfully show any material factual disputes as to all other claims. In determining whether
there are genuine issues of material fact, we resolve any ambiguities and draw all permissible
factual inferences in favor of the non-movant. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.
2003). However, a non-movant cannot defeat a motion for summary judgment merely through
conclusory statements or allegations. See Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.
2002). We review orders granting summary judgment de novo and determine whether the
district court properly concluded that there was no genuine issue as to any material fact and the
moving party was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co., 46
F.3d 196, 202-03 (2d Cir. 1995).

        In its order, the district court stated, “The facts also raise the question of whether the
Town’s treatment of plaintiffs amounted to an equal protection violation if they can show that
landlords in substantially similar circumstances were not ticketed.” Dist. Ct. Op. at 11. The
court also stated, “there are questions of fact as to whether the Town interfered with plaintiffs’
choice of lessees based on their race or national origin.” Id. at 12. However, the district court
did not identify any facts that could amount to violations as to these claims. Plaintiffs also fail to
bring any additional facts forward in their briefs as to these claims. As explained below, we
conclude Plaintiffs remaining claims, at issue here, fail as a matter of law.

        While “[a] white person who has been punished for trying to vindicate the rights of (non-
white) minorities has standing to sue under § 1981,” DeMatteis v. Eastman Kodak Co., 511 F.2d
306, 312 (2d Cir. 1975) (citing Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (alterations
omitted)), it remains “[e]ssential” to such an action that plaintiffs allege “that the defendants’
acts were purposefully discriminatory,” Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988).
Similarly, while the Fair Housing Act protects from retaliation any person who aids another in
the exercise of rights protected by the Act, see 42 U.S.C. § 3617, a plaintiff must show a “causal
connection . . . between the protected activity and the adverse action” as part of his prima facie
case, Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 54 (2d Cir.
2002) (internal quotation marks omitted). In the present case, Plaintiff Michael Santulli admitted
that he did not intend to represent a particular racial group and discovery revealed no additional
evidence that Appellees were aiding the few minority tenants in their buildings. Moreover,
Appellees have failed to adduce any evidence of racial discrimination on the part of the
Defendants. Appellees only provide a single inadmissible hearsay statement, attributed to the
Defendants, to show discrimination because of race. Thus, we conclude their claims as to
Section 1981 and the Fair Housing Act fail as a matter of law.

        In order to state a claim for equal protection, a plaintiff not alleging discrimination based
on his own membership in a protected class can proceed by establishing that the government did
not treat similarly situated individuals alike. Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004). A
plaintiff must present evidence comparing himself to individuals that are similarly situated in all
material respects, Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000), and must also
demonstrate differential treatment, for impermissible reasons “such as . . . intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure [the
plaintiff].” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000). Plaintiffs allege the
Defendants discriminated against them because their property, which had a faulty fire alarm
system and a can of gasoline stored in the hallway was condemned. However, Plaintiffs offers

                                                  4
no evidence that other landowners, with similar “life-threatening” violations on their property,
were treated differently. Because Plaintiffs fail to show similarly situated properties were not
condemned, the Defendants-Appellants are entitled to summary judgment on Plaintiffs’ equal
protection claims.

        It is well settled that a prosecutor is entitled to absolute immunity for acts undertaken
pursuant to her traditional function as an advocate in the prosecutorial process. Shmueli v City of
New York, 424 F.3d 231, 236-38 (2d Cir. 2005). Acts outside of a prosecutor’s jurisdiction
include those “that cast him in the role of an administrator or investigative officer rather than that
of advocate.” Warney v. Monroe County, 587 F.3d 113, 121 (2d Cir. 2009). Thus, to establish
immunity, the “ultimate question” is “whether the prosecutors have carried their burden of
establishing that they were functioning as ‘advocates’ when they engaged in the challenged
conduct.” Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996). Insofar as it is alleged that
Defendant Negron directed others to issue summonses, immunity lies, because the issuance of
summonses is part of the prosecutorial function, having effectively initiated prosecutions for the
violations alleged. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding prosecutor
absolutely immune from damages for “initiating a prosecution”); Barr v. Abrams, 810 F.2d 358,
362 (2d Cir. 1987) (noting that absolute immunity shields prosecutor from damages in
connection with “decision to charge and arrest”). Plaintiffs proffered no evidence that, contrary
to Defendant Russello’s statement Defendant Negron ordered him to investigate improperly.
Where Plaintiffs provide no other facts that the prosecutor was acting outside of his jurisdiction,
and the district court failed to reach this issue, we conclude Plaintiffs’ claim that absolute
immunity does not apply also fails.

         Accordingly, the appeal, as to First Amendment and malicious prosecution claims is
hereby DISMISSED in part for lack of appellate jurisdiction and these claims are REMANDED
to the district court for further proceedings. Additionally, we have considered Appellees’
remaining arguments and find they fail as a matter of law, thus the decision and order of the
district court hereby is REVERSED in part, as to all remaining claims.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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