13-2409
Bush v. Brooks
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 TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17th day of March, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
Circuit Judge,
EDGARDO RAMOS,
District Judge.*
____________________________________________
NICOLE BUSH, as Administrator of the Estate of
Bruce A. Bush, MICHELE L. CRANE, as
Administrator of the Estate of Douglas K. Crane,
CONNIE DRAKE, Individually as Surviving
Spouse and as Administrator of the Goods, Chattels
and Credits of Glenard W. Drake, Jr., SHARON
MARIE HAMILTON, as Guardian of the Infants of
Terry Singh and as Proposed Administrator of the
Estate of Terry Singh,
Plaintiffs-Appellees,
*
The Honorable Edgardo Ramos, of the United States District Court for the Southern
District of New York, sitting by designation.
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v. No. 13-2409
CITY OF UTICA, NEW YORK, CITY OF UTICA
FIRE DEPARTMENT,
Defendants,
RUSSELL BROOKS, Chief of City of Utica Fire
Department, in his Official and Individual Capacity,
Defendant-Appellant.**
____________________________________________
For Defendant-Appellant Russell Brooks: JOHN P. ORILIO, First Assistant Corporation Counsel
(Zachary C. Oren, Assistant Corporation Counsel,
on the brief), City of Utica Law Department, Utica,
NY.
For Plaintiffs-Appellees: JOHN J. DOWD, Dreyer Boyajian LLP, Albany, NY.
Appeal from a memorandum decision and order denying defendant-appellant Brooks’s
defense of qualified immunity filed on June 4, 2013, in the United States District Court for the
Northern District of New York (Hurd, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court denying Brooks’s defense of qualified immunity
be and is hereby AFFIRMED.
Defendant-appellant Russell Brooks appeals a memorandum decision and order entered
by the United States District Court for the Northern District of New York (Hurd, J.). The order
granted in part and denied in part the defendants’ motion to dismiss the complaint. In its partial
denial of the motion, the district court rejected Brooks’s claim that he was entitled to qualified
**
The Clerk of the Court is directed to amend the official caption of this case to conform
to the above.
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immunity. Brooks appeals that portion of the district court’s decision. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
“Generally, a district court’s denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment.” Tierney v. Davidson, 133 F.3d 189, 194 (2d
Cir. 1998) (internal quotation marks omitted). And “[w]here the nonexistence of a constitutional
right may be discerned from the face of the complaint, an official defendant sued in his
individual capacity may be granted a dismissal on the ground of qualified immunity pursuant to
Rule 12(b)(6), a decision that we review de novo, accepting as true all material allegations of the
complaint, and drawing all reasonable inferences in favor of the plaintiff.” Vincent v. Yelich, 718
F.3d 157, 167 (2d Cir. 2013). Applying those standards here, we affirm the decision of the
district court to reject Brooks’s claim that he is entitled to qualified immunity.
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). It is well-settled that we approach the qualified immunity
inquiry by way of a two-part analysis: first, we ask whether the plaintiff has made out a violation
of a constitutional right; and second, we ask whether that right was “clearly established” at the
time of the alleged misconduct. Id. at 232; accord Matusick v. Erie Cnty. Water Auth., --- F.3d --
-, 2014 WL 700718, at *18 (2d Cir. Feb. 25, 2014). We discuss each prong of the qualified
immunity inquiry in turn.
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As to the first prong, the plaintiffs allege that Brooks violated the decedents’ right to
equal protection of the laws, a right guaranteed by the Fourteenth Amendment to the
Constitution. Their complaint alleges that on September 20, 2009, a building located at 102
James Street in Utica, New York, was engulfed in fire. Brooks, who was Fire Chief of the City of
Utica Fire Department, arrived at the scene, whereupon he informed bystanders that “he was not
going to risk the lives of any members of the Department for individuals who resided on James
Street.” App. 19. The complaint further alleges that the fire department “adhered to a ‘don’t go in
policy’ for all fires which took place at low-income properties located in the City of Utica.” Id. at
22.
This Court has recognized that the Equal Protection Clause may be violated by selective
enforcement or selective adverse treatment. To state such a claim, a plaintiff must allege (1) that
he or she was treated differently from other similarly situated individuals, and (2) that the
“treatment was based on impermissible considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.”
LeClair v. Saunders, 627 F.2d 606, 609–10 (2d Cir. 1980); see also Bizzarro v. Miranda, 394
F.3d 82, 86 (2d Cir. 2005); Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.
2001). Applying these standards, we find ourselves in complete agreement with the district court
that the complaint adequately alleges that the decedents were treated differently from similarly
situated persons who did not reside on “James Street,” and that the complaint “specifically
claims that defendants purposely and maliciously withheld protective services from decedents
because they lived in a low-income neighborhood.” App. 62.
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To the extent that the complaint alleges that both Brooks’s decision not to send his
firefighters into the burning building and the fire department’s “don’t go in policy”
impermissibly treated the decedents differently because they are persons of low socio-economic
status, we reject the plaintiffs’ contention that the alleged classification demands an elevated
form of scrutiny. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 27–28 (1973); see
also Maher v. Roe, 432 U.S. 464, 471 (1977) (“[T]his Court has never held that financial need
alone identifies a suspect class for purposes of equal protection analysis.”). Nevertheless, the
alleged classification “must be rationally related to a legitimate governmental purpose” to
survive an equal protection challenge. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
446 (1985); see also Romer v. Evans, 517 U.S. 620, 631 (1996). Taking as true the well-pleaded
allegations contained in the complaint, we discern no rational basis for the fire department’s
alleged policy, reflected in Brooks’s alleged statement, of withholding protective services from
the decedents because they lived in a low-income neighborhood.
Thus, we conclude that the plaintiffs’ equal protection claim is adequately pleaded. Like
the district court, we express no view as to whether qualified immunity may be appropriate after
the record is more fully developed.
As to the second prong, Brooks focuses on language we used thirty years ago in LeClair,
which described the selective treatment aspect of our equal protection jurisprudence as “murky,”
627 F.2d at 608, to contend that the right the plaintiffs assert is not clearly established. Brooks
does not contend that any subsequent decision by this Court or the Supreme Court has altered the
elements of the claim elaborated in LeClair. We have, however, repeatedly discussed the LeClair
standard in the thirty years since we described the issue as “murky.” See, e.g., Bizzarro, 394 F.3d
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at 86; Harlen Assocs., 273 F.3d at 500. Indeed, one panel of our Court has described the equal
protection claim for selective treatment that we elaborated in LeClair as “clearly established.”
See Massi v. Flynn, 254 F. App’x 84, 87 (2d Cir. 2007) (summary order) (citing LeClair and
Harlen Assocs.). Brooks has offered no further reason to depart from our prior assessment of the
continuing vitality of LeClair and our assessment that the selective-treatment equal protection
claim described in LeClair is clearly established. And there can be no serious contention that the
“rational basis” standard for scrutinizing government action based on non-suspect classifications
is not equally well established. See, e.g., Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 172
(1972). We therefore conclude that Brooks is not entitled to qualified immunity at this stage of
the case.
We have considered the appellant’s remaining arguments and find them to be without
merit. For the foregoing reasons, we AFFIRM the denial of Brooks’s motion to dismiss on the
ground of qualified immunity, the only question of law over which we presently have
jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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