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Mangino v. Incorporated Village of Patchogue

United States Court of Appeals, Second Circuit

December 22, 2015

JOHN MANGINO, Plaintiff-Appellant,
v.
INCORPORATED VILLAGE OF PATCHOGUE, JOHN P. POULOS, AND JAMES NUDO, Defendants-Appellees. [*]

Argued: October 20, 2015.

Page 952

On Appeal from the United States District Court for the Eastern District of New York.

On appeal from the March 10, 2014 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge) dismissing plaintiff-appellant John Mangino's complaint against defendants-appellees the Incorporated Village of Patchogue and Fire Marshal John P. Poulos, and the District Court's August 1, 2014 order denying Mangino's motion to set aside the verdict and for a new trial.

We (1) AFFIRM the District Court's dismissal of Mangino's First Amendment retaliation claim, as the criminal summonses on which it is premised were supported bye probable cause, the issuance of the non-criminal Fire Prevention Violation Order on which it is premised was otherwise justified, and Mangino has not made any argument that the issuance of the Fire Prevention Violation Order was significantly more serious than other action Poulos had discretion to take; (2) AFFIRM the District Court's dismissal of Mangino's abuse-of-process claim on qualified-immunity grounds because, at the time of the alleged conduct, although there was a clearly established right to be free from abuse of process under New York law, there was no clearly established right to be free from abuse of process where probable cause existed; and (3) AFFIRM the District Court's denial of Mangino's motion to set aside the verdict and for a new trial because it is clear that, when read in context, the District Court's jury instructions were not erroneous.

ROBERT A. SIEGEL, Law Office of Robert A. Siegel, New York, NY, for Plaintiff-Appellant.

MARK A. RADI (Brian S. Sokoloff, on the brief), Carle Place, NY, for Defendants-Appellees.

Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.

OPINION

Page 953

JOSÉ A. CABRANES, Circuit Judge.

The principal question presented is whether, in August 2005, there was a clearly established right to be free from abuse of process under New York law even where probable cause existed. We conclude that there was not.

Plaintiff-appellant John Mangino (" Mangino" ) appeals from the March 10, 2014 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge ) dismissing his complaint against defendant-appellees the Incorporated Village of Patchogue (the " Village" ) and Village Fire Marshal John P. Poulos (" Poulos" ). The appeal seeks review of the District Court's September 23, 2010 order dismissing Mangino's First Amendment retaliation claim, see Mangino v. Inc. Vill. of Patchogue, 739 F.Supp.2d 205 (E.D.N.Y. 2010), and its September 30, 2011 order dismissing his abuse-of-process claim, see Mangino v. Inc. Vill. of Patchogue, 814 F.Supp.2d 242 (E.D.N.Y. 2011). Mangino also appeals from the District Court's August 1, 2014 post-judgment order denying his motion to set aside the verdict and for a new trial. See Mangino v. Inc. Vill. of Patchogue, No. 06-CV-5716 (JFB), 2014 WL 3795572 (E.D.N.Y. Aug. 1, 2014).

As explained more fully below, we (1) AFFIRM the District Court's dismissal of Mangino's First Amendment retaliation claim, as the criminal summonses on which it is premised were supported by probable cause, the issuance of the non-criminal Fire Prevention Violation Order on which it is premised was otherwise justified, and Mangino has not made any argument that the issuance of the Fire Prevention Violation Order was significantly more serious than other action Poulos had discretion to take; (2) AFFIRM the District Court's dismissal of Mangino's abuse-of-process claim on qualified-immunity grounds because, at the time of the alleged conduct, although there was a clearly established right to be free from abuse of process under New York law, there was no clearly established right to be free from abuse of process where probable cause existed; and (3) AFFIRM the District Court's denial of Mangino's motion to set aside the verdict and for a new trial because it is clear that, when read in context, the District Court's jury instructions were not erroneous.

BACKGROUND

At some point between 2001 and 2003, Mangino purchased with his wife, whom the District Court dismissed from the case, an apartment building in Patchogue, New York. Pl.'s App'x 67. When he purchased the building, he applied for a two-year rental permit, as required by the Village's rental-permit law. Id. at 74. After he received the permit, he began renting apartments to tenants. When his permit expired in or around 2004, he did not renew it. Id. at 78, 80-81.

In January 2005, defendant-appellee James Nudo (" Nudo" ), the Village's Housing Inspector and Code Enforcement Officer, issued criminal summonses to Mangino for continuing to rent out apartments despite his failure to renew his rental permit. Id. at 83-84. Mangino challenged in court these summonses and their manner of service, as well as the validity of the Village's rental-permit law. Id. at 85. Mangino alleges that, in response, the Village prosecutor threatened him, stating that if he did not settle the pending litigation against the Village or accept a plea bargain, he would be " hit with a barrage of summonses." Id.

On July 21, 2005, one of Mangino's tenants, Dawn Gucciardo (" Gucciardo" ...


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