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Dorsett v. County of Nassau

United States Court of Appeals, Second Circuit

October 18, 2013

Sharon DORSETT, As the Administratrix of the Estate of Jo'Anna Bird, Frederick K. Brewington, Plaintiffs-Appellants,
v.
COUNTY OF NASSAU, Defendant-Appellee, Robin Pellegrini, Law Offices of Frederick K. Brewington, Plaintiffs, Edward Mangano, in his Individual and Official Capacities as County Executive of the County Of Nassau, Nassau County Legislature, Peter Schmitt, in his Individual and Official Capacities and as Legislator/Presiding Officer of the County of Nassau County Legislature, Defendants.

Argued: Sept. 19, 2013.

Page 158

Scott A. Korenbaum, New York, N.Y. (Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, N.Y.; Randolph McLaughlin, Newman Ferrara LLP, New York, N.Y.; Frederick K. Brewington, Hempstead, N.Y., on the brief), for Appellants.

David A. Tauster, Deputy County Attorney (Dennis J. Saffran, Appeals Bureau Chief, on the brief), for John Ciampoli, County Attorney of Nassau County, Mineola, N.Y., for Appellee.

Before: WINTER, WALKER, and WESLEY, Circuit Judges.

Page 159

PER CURIAM:

This § 1983 action comes to us on an expedited appeal from the Eastern District of New York following dismissal on a 12(b)(6) motion. In March 2010, Sharon Dorsett, the mother of Jo'Anna Bird, acting as administratrix of Bird's estate, filed a complaint against the County of Nassau and various of its officers seeking damages for Bird's death. Dorsett's attorney in that action, Frederick Brewington, negotiated a settlement with the County that was signed in July 2011. By its terms, however, the agreement was not final until approved by the county legislature. After the legislature finalized the agreement, it was also subject to court approval. N.Y. Est. Powers & Trusts Law § 5-4.6. The legislature did not approve the settlement until January 2012. Dorsett and Brewington, plaintiff-appellants in this separate action, allege that the County intentionally delayed approving the settlement in retaliation for their protected First Amendment activities. Because we find that Plaintiffs had no right to have the settlement approved at all, much less by a certain date, we affirm the district court's order dismissing the complaint.

Background

When reviewing a 12(b)(6) dismissal, the court accepts as true all factual allegations in the complaint. See King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999). In March 2009, Leonardo Valdez-Cruz murdered Jo'Anna Bird. One year later, Bird's mother, Sharon Dorsett, retained Frederick Brewington, a Nassau County civil rights attorney, to represent Bird's estate in an action against the County. Dorsett alleged that the murder was the result of inadequate police protection. In July 2011, Brewington negotiated and Dorsett agreed to a settlement with the County. By its terms, however, the settlement could not be finalized without a vote by the county legislature. After signing, Dorsett waited.

Meanwhile, in April 2011, Peter Schmitt, the presiding officer of the Nassau legislature, sought to re-draw the districts from which county legislators were elected in advance of that Fall's elections. This controversial move sparked protests and accusations of racial bias. Brewington spoke before the legislature to voice his opposition to Schmitt's plan. In June he commenced Boone et al. v. Nassau County Legislature et al., No. 11-cv-02712, a federal lawsuit challenging the redistricting plan. During the election campaign, Brewington also wrote the United States Attorney for the Eastern District of New York to request federal election observers to monitor alleged racial harassment by campaign workers. Brewington's political maneuvers during the 2011 election received significant local media coverage.

As presiding officer of the legislature, Schmitt had complete control over the legislature's agenda and could have put Dorsett's settlement up for a vote at any time. Yet, in November, the Dorsett settlement was still pending. In a postelection television interview, Schmitt was asked why the settlement had not yet received a vote. He replied " I did not feel comfortable voting on a settlement that would put a couple million dollars into [Brewington's] ... pocket while we were being sued [in the Boone case], so I requested an opinion of the County Board of Ethics to see that there was no conflict there." In fact, Schmitt had received the ethics opinion in September— two months before this interview— and the settlement was still not approved until January. Plaintiffs allege that Schmitt actually requested the ethics opinion to hold up the settlement in retaliation for their political activities. During the delay, Plaintiffs allege, interest rates changed and the value of the settlement

Page 160

diminished by $8 million.[1]

After the 2011 election, Plaintiff-Appellants, along with Plaintiff Robin Pellegrini, another Brewington client with a settlement pending before the legislature, filed this suit to compel a vote on their settlements. In early 2012, the legislature approved Dorsett's settlement and rejected Pellegrini's. Plaintiffs then amended their complaint to allege damages from the delay in approving Dorsett's settlement. In January 2013, the district court dismissed the ...


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