11-737-cv
Rathbun v. DiLorenzo
                           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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
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 27th day of September, two thousand eleven,

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

JAMES W. RATHBUN,

                                     Appellant,

                        -v-                                         11-737-cv

JOSEPH DiLORENZO, DR. MICHAEL J. DiGERONOMO,
EDWARD MEHRHOF,

                                     Appellees.



Appearing for Appellant:      Christopher Watkins, Sussman & Watkins, Goshen, NY (Michael
                              H. Sussman, on the brief)

Appearing for Appellee:       Brian S. Sokoloff, Sokoloff Stern LLP, Westbury, NY


       Appeal from the United States District Court for the Southern District of New York
(Swain, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        James W. Rathbun appeals from the February 8, 2011 memorandum order and judgment
of the United States District Court for the Southern District of New York (Swain, J.) granting
defendants’ motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

        In order for a private citizen to state a claim for First Amendment retaliation against a
public official, he must plead and prove: (1) he engaged in speech protected by the First
Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of
that right; and (3) there was a resultant and “actual chill[ing]” of his exercise of that
constitutional right. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).

        Rathbun argues that the district court erred in dismissing his complaint because it did not
draw all reasonable inferences in his favor with respect to his allegations of actual chill.
Specifically, he alleges that the following three paragraphs in his complaint “read together
plainly assert that, as a reasonable person, plaintiff’s speech acts were deterred by the
defendant’s retaliatory conduct, which caused him embarrassment, humiliation, mental anguish
and stress:”

               ¶ 38:   By dint of this conduct, defendants intended to discourage
                       and chill plaintiff’s constitutionally protected speech.

                ¶ 39: A reasonably prudent person of normal will, faced with this
                      retaliation, would have his speech chilled and deterred by
                      defendants’ retaliatory conduct.

                ¶ 40: Defendants’ conduct has caused plaintiff embarrassment
                      and humiliation, as well as mental anguish and stress.

        Whatever inferences can be drawn from these three paragraphs, it is clear that none,
alone or in combination, alleges actual chill. Paragraph 39 addresses only what fate would have
befallen a “reasonably prudent person of normal will”; it does not allege an actual or subjective
chilling of Rathbun’s speech. Paragraph 40 has nothing to do with chilling at all but relates to
certain emotional harm Rathbun alleges that he suffered. And paragraph 38, even construed in
favor of Rathbun, does not allege that his speech was actually chilled.

         Indeed, in this case, we know affirmatively that his speech was not chilled. That is,
Rathbun is quoted in the newspaper article that reported on the Comptroller’s audit (which he
references in his complaint) accusing the school officials of defamation. Accordingly, there was
no error in the district court’s conclusion that Rathbun failed to allege a central element of a First
Amendment claim; Rathbun has failed to “allege that his speech was chilled in fact or that his
behavior changed as a result of Defendants’ actions.” Rathbun v. DiLorenzo, 2011 WL 666204,
at * 2 (S.D.N.Y. Feb. 8, 2011)


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        Qualified immunity shields government officials from civil suits for damages “insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
rule on the issue of qualified immunity, courts generally proceed in two steps. First, courts
usually address the threshold question of whether the complaint alleges the deprivation of an
actual constitutional right. See Wilson v. Layne, 526 U.S. 603, 609 (1999). The Supreme Court
has explained that “[i]f no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified immunity.” Saucier
v. Katz, 533 U.S. 194, 201 (2001). However, “if a violation could be made out on a favorable
view of the parties’ submissions,” courts then proceed to step two, which involves an inquiry as
to “whether the right was clearly established” at the time of the act grieved. Id. Whether a right
was clearly established at the relevant time is a question of law, whereas the question of whether
an official’s conduct was objectively reasonable is a mixed question of law and fact. Kerman v.
City of New York, 374 F.3d 93, 108-09 (2d Cir. 2004).

        Saucier’s two-step framework, while often helpful, is not mandatory; the Supreme Court
has recognized that a court may, in its own discretion, refrain from determining whether a
constitutional right has been violated and instead move directly to the question of whether a
constitutional right was clearly established at the time the defendant acted. Pearson v. Callahan,
555 U.S. 223, 236 (2009) (“[W]hile the sequence of events set forth [in Saucier v. Katz ] is often
appropriate, it should no longer be regarded as mandatory.”). Such an exercise of discretion is
particularly appropriate where a case presents “difficult constitutional questions” and “there is
available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve
the case before the court.” Id. at 235 (quoting Brosseau v. Haugen, 543 U.S. 194, 201
(2004)(Breyer, J., concurring); accord Higazy v. Templeton, 505 F.3d 161, 179 n. 19 (2d Cir.
2007) (“We do not reach the issue of whether Higazy’s Sixth Amendment rights were violated,
because principles of judicial restraint caution us to avoid reaching constitutional questions when
they are unnecessary to the disposition of a case.”).

        In determining whether a particular right was clearly established at the time a defendant
acted, this Court considers whether: (1) the right in question was defined with “reasonable
specificity”; (2) the decisional law of the Supreme Court and the applicable circuit court support
the existence of the right in question; and (3) under preexisting law a reasonable defendant
official would have understood that his or her acts were unlawful. Jermosen v. Smith, 945 F.2d
547, 550 (2d Cir. 1991). Under this rubric, the dispositive question is whether it was
“objectively legally reasonable,” at the time of the challenged action, for the government official
to have believed his actions were lawful. Anderson v. Creighton, 483 U.S. 635, 641 (1987); see
also Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987).

        Here, we address the second prong first, as the conduct Rathbun complains of does not
constitute a First Amendment violation. “Disparaging, accusatory, or untrue statements” about a
private citizen, without “threats, intimidation, or coercion,” constitute speech protected under
the First Amendment. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70-71, 72 (2d Cir. 1999)
(citations omitted). In other words, even if Rathbun’s allegations could support a defamation or
libel suit, they do not set forth a federal constitutional tort claim. See Sadallah v. City of Utica,
383 F.3d 34, 38 (2d Cir. 2004) (“Defamation, however, is an issue of state law, not of federal
constitutional law, and therefore provides an insufficient basis to maintain a § 1983 action.”).

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        In this case, there was no allegation that the defendants threatened Rathbun in any way.
At most, they made defamatory or libelous statements about him. Accordingly, their conduct
does not implicate the First Amendment, and thus Rathbun’s complaint does not state a violation
of a constitutional right.

       We have examined the remainder of Rathbun’s arguments and we find them to be
       without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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