09-4170-cv
Casciani v. Nesbitt
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 FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of September, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 REENA RAGGI,
9 Circuit Judge,
10 JED S. RAKOFF, *
11 District Judge.
12
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14 JOHN CASCIANI,
15 Plaintiff-Appellant,
16
17 -v.- 09-4170-cv
18
19 RONALD NESBITT, TOWN BOARD SUPERVISOR,
20 In His Individual and Official
21 Capacity, TOWN OF WEBSTER,
22 Defendants-Appellees.
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24
*
District Judge Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
1
1 FOR APPELLANT: Christina A. Agola, PLLC.
2 2100 First Federal Plaza
3 28 East Main St.
4 Rochester, NY 14614
5
6 FOR APPELLEES: Joshua I. Feinstein, Esq.
7 Adam W. Perry, Esq.
8 Hodgson Russ LLP
9 140 Pearl St. Suite 100
10 Buffalo, NY 14202
11
12 Appeal from a judgment of the United States District
13 Court for the Western District of New York (Larimer, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the judgment of the district court be
17 AFFIRMED.
18
19 John Casciani challenges the grant of defendants’
20 motion for summary judgment. We assume the parties’
21 familiarity with the underlying facts, the procedural
22 history, and the issues presented for review.
23
24 [1] We review a district court grant of summary judgment de
25 novo. Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010).
26 In ruling on a motion for summary judgment, the court
27 must “constru[e] the evidence in the light most
28 favorable to the non-moving party and draw[] all
29 reasonable inferences in [his] favor. Allianz Ins. Co.
30 v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). However,
31 the court is not required to draw all inferences in the
32 nonmovant’s favor, but only all reasonable inferences.
33 A party may not avoid summary judgment with “assertions
34 that are conclusory or based on speculation.” Major
35 League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d
36 290, 310 (2d Cir. 2008) (internal citations omitted).
37 Summary judgment is warranted where there is no genuine
38 issue of material fact. Allianz Ins. Co., 416 F.3d at
39 113.
40
41 [2] Casciani argues that he was the victim of selective
42 enforcement of Chapter 76 of the Town of Webster Code
43 (“Ordinance 76") or, in the alternative, that Ordinance
44 76 creates a “class of one” in violation of Casciani’s
45 Fourteenth Amendment right to equal protection. To
46 establish either claim, Casciani must show both that he
2
1 was treated differently than other persons who were
2 similarly situated and that such differential treatment
3 was either without rational basis (a “class of one”
4 claim) or was motivated by an intent to discriminate on
5 an impermissible basis (a selective enforcement claim).
6 Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir. 2004)
7 (describing elements of “class of one” claim); Zahra v.
8 Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)
9 (describing elements of selective enforcement claim).
10
11 We agree with the district court that Casciani failed
12 to raise a genuine issue of fact as to disparate
13 treatment. The individuals Casciani cites as examples
14 were not similarly situated because they did not take
15 off or land helicopters from residential property in
16 the town. See Doninger v. Niehoff, 527 F.3d 41, 53 (2d
17 Cir. 2008) (requiring plaintiff to show “extremely high
18 degree of similarity” between himself and comparators).
19 In any event, they were not treated differently because
20 the challenged ordinance was generally applicable and
21 was never enforced against either Casciani or the
22 individuals to which he would compare himself. See
23 Church of Am. Knights of the Ku Klux Klan v. Kerik, 356
24 F.3d 197, 210-11 (2d Cir. 2004) (holding that
25 differential treatment is “prerequisite” to selective
26 enforcement claim).
27
28 [3] Casciani argues that the passage of Ordinance 76
29 “chilled” his speech in violation of his First
30 Amendment rights. However, Casciani offered no
31 elaboration on this assertion and gave no specifics as
32 to how Ordinance 76 qualifies as retaliation, what it
33 retaliated against, or what speech of his it threatened
34 to “chill.” Arguments not made in an appellant’s
35 opening brief are waived, and merely incorporating by
36 reference an argument presented to the District Court
37 or asserting an issue without advancing an argument
38 does not suffice to adequately raise an issue for
39 appellate review. Norton v. Sam’s Club, 145 F.3d 114,
40 117 (2d Cir. 1998); see also Tolbert v. Queens Coll.,
41 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled
42 appellate rule that issues adverted to in a perfunctory
43 manner, unaccompanied by some effort at developed
44 argumentation, are deemed waived.” (internal quotation
45 marks omitted)). As a result of his failure to give
46 even a bare-bones explanation of how his rights were
3
1 infringed upon, Casciani has waived his First Amendment
2 claim.
3
4 [4] Casciani argues that Ordinance 76 is unconstitutional
5 on its face because it draws an arbitrary distinction
6 between helicopters and ultralight aircraft. Ordinance
7 76 does not implicate any suspect class (race, gender,
8 etc.) or fundamental right, so the proper standard of
9 review is rational basis. See Estate of Landers v.
10 Leavitt, 545 F.3d 98, 112 (2d Cir. 2008); Greene v.
11 Town of Blooming Grove, 879 F.2d 1061, 1063 (2d Cir.
12 1989) (holding that city ordinance is entitled to
13 presumption of validity and “will not be held
14 unconstitutional if its wisdom is at least fairly
15 debatable and it bears a rational relationship to a
16 permissible state objective”). The party challenging
17 such an ordinance bears the heavy burden of negating
18 every conceivable rational and legitimate basis for the
19 ordinance. Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 75
20 (2001).
21
22 It is manifest that noise and safety are rational bases
23 for the distinction between helicopters and ultralight
24 aircraft. See Heller v. Doe, 509 U.S. 312, 319 (1993).
25
26 Finding that Casciani failed to raise a genuine issue
27 of material fact with regard to any of his claims, we
28 hereby AFFIRM the district court’s granting of summary
29 judgment for the defendants.
30
31
32 FOR THE COURT:
33 CATHERINE O’HAGAN WOLFE, CLERK
34
4