United States District Court, D. Vermont
ENTRY ORDER GRANTING PLAINTIFF LEAVE TO AMEND HIS
INITIAL COMPLAINT, DENYING AS MOOT DEFENDANT'S INITIAL
MOTION TO DISMISS, AND GRANTING DEFENDANT'S SECONDMOTION
TO DISMISS (Docs. 14, 20)
Christina Reiss, Dislrict Judge United States District Court.
Juan Rodriguez, who is self-represented, brings this civil
action against Defendant Rick Gosselin alleging Defendant
Gosselin violated his civil rights in violation of 42 U.S.C.
§ 1983 (Doc. 5). The case was removed to this court from
state court in July 2017. Defendant moved to dismiss the
Complaint on July 28, 2017 (Doc. 14). After opposing the
motion, and successfully seeking an opportunity to file a
sur-reply, Plaintiff filed an Amended Complaint in November
2017 (Doc. 19). Defendant again moved to dismiss (Doc. 20).
Following the filing of Plaintiff s opposition and
Defendant's reply, Defendant's second motion to dismiss
is ripe for adjudication.
The Allegations of the Amended Complaint.
facts of both the original Complaint and the Amended
Complaint are substantially the same. Plaintiff alleges he
attended a custody hearing in state family court on March 24,
2017. After the hearing, Plaintiff conversed with his
attorney in Spanish. Defendant, an Orleans County sheriff,
said: "Speak English, this is America[, ]" and made
a derogatory comment about Mexicans. (Doc. 5 at 1; Doc. 19 at
2.) Plaintiff responded: "I am not Mexican. I am Puerto
alleges Defendant violated his constitutional rights to
association, counsel, access to the courts, and free speech.
In his original Complaint, Plaintiff sought compensatory
damages of $1, nominal damages of $50, 000, and punitive
damages of $50, 000. In his Amended Complaint, he now seeks
nominal damages of $1, compensatory damages of $500, 000, and
punitive damages of $500, 000.
Conclusions of Law and Analysis.
document filed by a self-represented litigant must be
liberally construed. Ahlers v. Rabinowitz, 684 F.3d
53, 60 (2d Cir. 2012). Plaintiff requests the court allow him
to amend his Complaint under Federal Rule of Civil Procedure
15(a)(2), which requires the opposing party's written
consent or the court's leave. Fed.R.Civ.P. 15(a)(2).
"The court should freely give leave when justice so
requires." Id. Because Defendant has responded
to the Amended Complaint with a motion to dismiss that is
fully briefed, the court allows the amendment and considers
the Amended Complaint the operative Complaint. Hancock v.
Cty. of Rensselaer, 882 F.3d 58, 63 (2d Cir. 2018)
('"It is well settled that an amended pleading
ordinarily supersedes the original and renders it of no legal
effect[.]'") (quotingIn re Crysen /Montenay
Energy Co., 26 F.3d 160, 162 (2d Cir. 2000)).
Accordingly, Plaintiffs request to amend his initial
Complaint is GRANTED, and Defendant's initial motion to
dismiss Plaintiffs original Complaint is DENIED AS MOOT.
moves to dismiss the Amended Complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted, arguing he is an improper
defendant and Plaintiffs allegations are insufficient to
state a plausible claim under 42 U.S.C. § 1983.
Plaintiff responds that Defendant is a proper defendant
because he is suing him in his individual and official
capacities and asks that dismissal be denied.
adjudicating a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the court must "accept as true all of the
allegations contained in a complaint" and determine
whether the complaint states a claim for relief that is
"plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). While "lenity . .. must attend the
review of pro se pleadings[, ]"/7r0 se
litigants nevertheless must satisfy the plausibility standard
set forth in Iqbal and Federal Rule of Civil
Procedure 12(b)(6). Harris v. Mills, 572 F.3d 66, 68
(2d Cir. 2009). "[T]he tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions." Iqbal, 556
U.S. at 678.
1983 provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects,
or causes to be subjected ... [any] person within the
jurisdiction [of the United States] to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law ... or other proper proceeding for redress[.]
42 U.S.C. § 1983. The statute is "not itself a
source of substantive rights" but rather provides
"a method for vindicating federal rights elsewhere
conferred[.]" Patterson v. Cty. of Oneida, 375
F.3d 206, 225 (2d Cir. 2004) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)). To prevail on a
claim under § 1983, a plaintiff "must allege (1)
'that some person has deprived him of a federal right,
' and (2) 'that the person who has deprived [the
plaintiff] of that right acted under color of state . ..
law.'" Velez v. Levy, 401 F.3d 75, 84 (2d
Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635,
without deciding that Defendant is a proper defendant,
Plaintiffs Amended Complaint nonetheless must be dismissed.
Plaintiff alleges Defendant abridged his rights to both
"expressive" and "intimate" freedom of
association under the First Amendment. Plaintiffs right to
intimate association, however, is not implicated in this
case. While "choices to enter into and maintain certain
intimate human relationships must be secured against undue
intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is
central to our constitutional scheme[, ]" the
"personal affiliations" warranting protection are
"those that attend the creation and sustenance of a
family[.]" Roberts v. U.S. Jaycees, 468 U.S.
609, 617-19 (1984). Because Plaintiffs relationship with his
attorney does not rise to the level of a protected personal
affiliation and he does not allege Defendant intruded on his
family relationships, he fails to state a claim for violation
of his right to intimate association.
of association includes the "right to associate for the
purpose of engaging in those activities protected by the
First Amendment-speech, assembly, petition for the redress of
grievances, and the exercise of religion." Id.
at 618. Individuals have a "right to join together to
advocate opinions free from government interference."
Boy Scouts of Am. v. Dale,530 U.S. 640, 701 (2000).
The First Amendment's expressive associational right
protects groups that "engage in 'expressive
association[, ]'" and "is not reserved for
advocacy groups[, b]ut to come within its ambit, a group must
engage in some form of expression[.]" Id. at
648. Plaintiff must demonstrate the expressive association
was pursued for "political or other goals independently
protected by the [F]irst [A]mendment." Brady v. Town
of Colchester,863 F.2d 205, 217 (2d Cir. 1988).
Generally, individuals do not enter a professional
relationship with an attorney "to convey any social or
political message." Young v. N.Y.C. Transit.
Auth.,903 F.2d 146, 153 (2d Cir. 1990). ...