Cullen v. Mondello

117 F. App'x 782

• Court: Court of Appeals for the Second Circuit
• Decided: November 8, 2004
• Docket: Nos. 04-1262(L), 04-2122(XAP)
• Status: Published

Opinion

SUMMARY ORDER

Plaintiffs appeal from a final judgment granting summary judgment for defendants. The motion for summary judgment was before the Magistrate Judge by consent of the parties.

Plaintiffs’ primary claim is that the code enforcement proceedings instituted by defendants stem from their allegations of bribery against defendant Mondello and give rise to a First Amendment retaliation claim. The District Court held that because the complaint was made by an employee of the Cullens’ company but not by either of the Cullens, they do not have standing to bring a retaliation claim based on the complaint. The District Court further found that even if the Cullens did have standing, the claim must fail as there was no causal connection between the protected speech and any adverse action taken against plaintiffs.

We need not here determine whether plaintiffs have standing on this claim, as it is clear that the District Court correctly found that there was no causal connection between the protected speech and any adverse action taken against plaintiffs. We have held that “[t]o establish a retaliation claim under § 1983 in this case, [plaintiff] must show that (1) his conduct was protected by the First Amendment, and (2) such conduct prompted or substantially caused defendant’s action.” Dougherty v. Town of N. Hempstead, Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.2002); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir.1994); Brady v. Town of Colchester, 863 F.2d 205, 217 (2d Cir.1988). There is no basis in the record upon which to conclude that legal actions which had been threatened by the Town Attorney on numerous occasions earlier in 2000 and before were taken in response to the bribery complaint, such that it could be said that the complaint was a motivating factor in the determination to bring the legal action. Plaintiffs’ complaint did not immunize them from all subsequent legal actions, especially those which had been the subject of litigation for nearly ten years prior to their complaint, and which involved enforcement proceedings based on undisputed violations of local zoning law. We affirm the District Court’s dismissal of this claim.

We reject plaintiffs’ remaining contentions for the reasons stated by the District Court in its comprehensive and careful Memorandum and Order of February 23, 2004.

With respect to the cross-appeal, we affirm the District Court’s decision to deny defendants’s counter-claim for attorneys fees under 42 U.S.C. § 1988(b), for the reasons stated in the District Court opinion.

We have considered all of plaintiffs’ claims on appeal and have found them to be without merit. We hereby AFFIRM the judgment of the District Court.