Dubois v. Beaury

21-2096-cv
Dubois v. Beaury, et al.

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 27th day of May, two thousand twenty-two.

PRESENT:
BARRINGTON D. PARKER,
JOSEPH F. BIANCO,
EUNICE C. LEE,
Circuit Judges.
____________________________________

Brian Dubois,

Plaintiff-Appellant,

v. 21-2096-cv

Robert Beaury, individually, Ronald Moore,
II, individually, Paul Czajka, individually,
Town of Germantown,

Defendants-Appellees. *
____________________________________

FOR PLAINTIFF-APPELLANT: PETER SCHUYLER, Kitson & Schuyler P.C., Croton
on Hudson, NY.

*
The Clerk of Court is respectfully directed to amend the caption as set forth above.
 FOR DEFENDANTS-APPELLEES LORAINE C. JELINEK (Gregg T. Johnson, on the
ROBERT BEAURY, RONALD MOORE, brief), Johnson & Laws, LLC, Clifton Park, NY.
II, AND THE TOWN OF
GERMANTOWN:

FOR DEFENDANT-APPELLEE: THOMAS K. MURPHY, Murphy Burns, LLP,
PAUL CZAJKA: Loudonville, NY.

1 Appeal from an order and judgment of the United States District Court for the Northern

2 District of New York (Scullin, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the order and judgment of the district court are AFFIRMED.

5 Plaintiff-appellant Brian Dubois appeals from the July 29, 2021 order and judgment of the

6 United States District Court for the Northern District of New York (Scullin, J.), dismissing his

7 claims pursuant to Federal Rule of Civil Procedure 12(b)(6). As relevant to this appeal, Dubois

8 brought claims under 42 U.S.C. § 1983 against defendants-appellees Robert Beaury (“Town

9 Supervisor Beaury” or “Beaury”), Ronald Moore, II (“Town Council Member Moore”), the Town

10 of Germantown (the “Town” and, together with Beaury and Moore, “the Town Defendants”), and

11 Columbia County District Attorney Paul Czajka (“DA Czajka”), alleging First Amendment

12 retaliation and violation of Dubois’s Second Amendment rights in connection with his position as

13 a part-time Town police officer.

14 According to the complaint, in May 2018, Town Supervisor Beaury and the Town Board

15 hired a consultant to conduct a comprehensive “Management and Feasibility Study” of the Town

16 Police Department. Dubois alleges that the study was commissioned “to create a one-sided

17 assessment report which [the Town] intended to use as a justification for firing [Dubois] and

2
 1 disbanding the Germantown Police Department.” App’x at 20. Dubois claims that this study

2 was proposed by Town Supervisor Beaury as revenge for Dubois’s reporting of an alleged

3 domestic violence incident involving Beaury from years prior. As part of the study, Town

4 Supervisor Beaury and the consultant allegedly accessed the Town Police Department office to

5 review internal police files “without the knowledge and/or consent of either the Germantown

6 Police Department officer-in-charge or the Germantown Police Commission.” App’x at 25.

7 Following this alleged break-in, Dubois sent three separate emails in May and June 2018

8 demanding the opportunity to review the office security footage to determine who had illegally

9 entered the premises and accessed the files, as Dubois claims was his right as a part-time police

10 officer per the Town’s security policy. Those requests were denied, at which point Dubois

11 reiterated concerns via email that he had previously expressed regarding DA Czajka’s handling of

12 DWI offenses and Beaury’s alleged domestic violence. In response, Beaury and DA Czajka

13 allegedly coordinated with each other to retaliate against Dubois by concocting a false story that

14 he was mentally unstable and that he had access to automatic weapons. To effectuate their alleged

15 plan, DA Czajka filed a letter with the County Court related to Dubois’s pistol license.

16 Subsequently, County Court Justice Jonathan D. Nichols sua sponte suspended Dubois’s pistol

17 license in a Decision and Order dated June 1, 2018. Beaury also filed a petition with the County

18 Court to bar Dubois from accessing Town firearms, which was rejected following Dubois’s motion

19 to dismiss. On August 7, 2018, the Town adopted Local Law No. 2, abolishing its Police

20 Department and consequently terminating Dubois’s employment with the Town. Dubois then

21 brought the instant lawsuit, alleging that his termination and pistol license revocation were

22 retaliatory acts in violation of his First and Second Amendment rights.

3
 1 On appeal, Dubois challenges the district court’s dismissal of his Section 1983 claims

2 alleging First Amendment retaliation and violation of his Second Amendment rights. Dubois

3 principally argues that the district court failed to construe the allegations of the complaint in the

4 light most favorable to him and, therefore, erred in concluding that his claims could not survive a

5 motion to dismiss.

6 We assume the parties’ familiarity with the underlying facts, procedural history, and issues

7 on appeal, to which we refer only as necessary to explain our decision to affirm.

8 DISCUSSION

9 I. Standard of Review

10 “We review de novo the grant of a motion to dismiss under Rule 12(b)(6) . . ., accepting as

11 true the factual allegations in the complaint and drawing all inferences in the [nonmoving party’s]

12 favor.” Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). To survive a motion to dismiss,

13 the pleadings “must contain ‘enough facts to state a claim to relief that is plausible on [their] face.’”

14 Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, we “are not bound

15 to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555

16 (internal quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

17 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

18 statements, do not suffice.”). Moreover, in making this assessment under Rule 12(b)(6), we may

19 consider “facts alleged in the pleadings, documents attached as exhibits or incorporated by

20 reference in the pleadings[,] and matters of which judicial notice may be taken.” Samuels v. Air

21 Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993).

4
 1 II. First Amendment Claim

2 Dubois alleges that defendants violated the First Amendment when they retaliated against

3 him for sending the emails in question. Where, as here, a public employee alleges that he was

4 retaliated against in violation of the First Amendment, he must plausibly allege that: “(1) his

5 speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action

6 against him; and (3) there was a causal connection between this adverse action and the protected

7 speech.” See Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011).

8 To determine whether a public employee’s speech is protected, we must ask “whether [he]

9 spoke as a citizen on a matter of public concern.’” Matthews v. City of New York, 779 F.3d 167,

10 172 (2d Cir. 2015) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Therefore, the

11 analysis of this element has two sub-questions: (1) “whether the employee spoke as a citizen

12 rather than solely as an employee;” and (2) “whether the subject of the . . . speech was a matter of

13 public concern.” Id. (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011) (internal

14 quotation marks omitted)). As the Supreme Court articulated in Garcetti, “the controlling factor”

15 in determining whether speech was made as a public employee or private citizen is whether the

16 plaintiff’s “expressions were made pursuant to his [official] duties.” 547 U.S. at 421.

17 Here, the allegations in the complaint demonstrate that the speech at issue—namely,

18 Dubois’s emails regarding his investigation of the alleged unauthorized entry into the Police

19 Department and the improper accessing of police files—were made “pursuant to [his] official

20 duties.” 1 Id. For example, in his May 30, 2018, Dubois stated to Town Supervisor Beaury:

1
As a threshold matter, Dubois argues that the emails were improperly considered by the district court
because “no documents were incorporated by reference” in the complaint. Appellant’s Br. at 11. That
assertion, however, is incorrect. The complaint explicitly references and describes all of the relevant
5
 1 Please be advised that I had to report a breach of my office, by unauthorized
2 personnel, to CJIS as required by our Use & Dissemination Agreement and also
3 attached your e-mail response to mine. . . . I will also need a copy of the video, as
4 per the policy, to conduct the investigation, as required per the camera policy. I
5 have been directed to immediately take steps to mitigate the situation and give a
6 full report and accounting as to the results of my investigation.
7
8 App’x at 50; see also id. (“Please be advised that the camera policy gives me the right to ask for

9 the video for investigative purposes and does not give you the authority to deny it as there is no

10 provision for that.”). The email later explains that, upon receiving the requested information,

11 Dubois intended to “write up [a] report and provide it to CJIS as required after the Investigation

12 [i]n conjunction with the Police Commissioners.” App’x at 51. The other emails Dubois sent

13 contain similar language referencing that the requests were made pursuant to Police Department

14 policy and that he was required to conduct the investigation as part of his job responsibilities. See

15 App’x at 51 (May 23, 2018 email) (“[A]s per the Town of Germantown Security Policy, I would

16 like to view the video to find out who[ ] unlawfully entered my office and how [the consultant’s]

17 portfolio got left on my desk. Please secure the tape and contact me as to how it will be delivered

18 for my viewing under policy section II, Policy Guidelines and Procedures, paragraph F.”); App’x

19 at 50 (June 1, 2018 email) (“I’m doing my job investigating this as required. The very thing I’m

20 being evaluated for is being called into question because someone doesn’t like it, but, that is what

emails considered by the district court. See, e.g., App’x at 25–26 (Compl. ¶ 67) (describing contents of
the May 23, 2018 email); App’x at 26 (Compl. ¶ 72) (describing contents of the May 30, 2018 email);
App’x at 27–28 (Compl. ¶ 79) (describing contents of the June 1, 2018 email). Moreover, the district court
properly considered court documents filed in Columbia County regarding Dubois’s pistol license that he
explicitly referenced in the complaint and, in any event, such documents could be considered under Rule
12(b)(6) on the separate ground that they are public records. Blue Tree Hotel Inv. (Can.), Ltd. v. Starwood
Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). To the extent that defendants
submitted other extrinsic documents with their motion to dismiss as to which Dubois objects, there is no
indication that the district court considered any documents outside the scope of Rule 12(b)(6), nor does this
Court rely on other extrinsic evidence in conducting its de novo review on appeal.
6
 1 I’m mandated to do.”).

2 In sum, even construing the allegations in the complaint most favorably to Dubois, none

3 of the speech at issue could qualify as speech Dubois made as a private citizen. 2 Instead, it is

4 clear from the complaint that the speech at issue is not protected by the First Amendment because

5 Dubois made such speech “in furtherance of one of his core duties,” Weintraub v. Bd. of Educ. of

6 City Sch. Dist. of City of New York, 593 F.3d 196, 198 (2d Cir. 2010), it was “part-and-parcel of

7 his concerns about his ability to properly execute his duties,” id. at 203 (internal quotation marks

8 omitted), and it “owe[d] its existence to [his] professional responsibilities,” id. at 201

9 (quoting Garcetti, 547 U.S. at 421). Accordingly, the district court correctly determined that the

10 First Amendment retaliation claim fails as a matter of law. 3

11 III. Second Amendment Claim

12 Dubois also contends that defendants “violated his Second Amendment rights by

13 intentionally conspiring to bring a license suspension action that resulted in the confiscation of his

14 personal firearms.” Appellant’s Br. at 18. To establish this violation, Dubois relies upon a June

15 1, 2018 letter DA Czajka sent to the Columbia County pistol licensing authority (namely, the

16 Columbia County and Surrogate’s Courts), attaching Dubois’s emails and indicating that Dubois

17 “appear[ed] to be despondent” and “upon information and belief, . . . [wa]s in possession of at least

2
To the extent Dubois referenced in the emails his past criticism of DA Czajka’s handling of DWI offenses
or Town Supervisor Beaury’s alleged domestic violence incident, we agree with the district court that “his
speech on these matters was meant to speculate on the reason for Defendant Beaury’s alleged interference
with his ability to complete his job,” App’x at 225–26, and does not transform what is clearly speech as a
public employee into speech as a private citizen.
3
Because we conclude that Dubois’s claim fails because the statements at issue were not made as a private
citizen, we need not address the district court’s alternative holding that the speech did not relate to a matter
of public concern.
7
 1 one automatic firearm.” App’x at 49. On that same day, following receipt of that letter, Justice

2 Nichols issued a Decision and Order suspending Dubois’s pistol license. In addition, Dubois

3 references a separate, unsuccessful petition Town Supervisor Beaury filed thereafter to enjoin

4 Dubois from possessing firearms owned or possessed by the Town Police Department.

5 We have long held that “personal involvement of defendants in alleged constitutional

6 deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d

7 496, 501 (2d Cir. 1994) (internal quotation marks omitted). Where, as here, DA Czajka did

8 nothing more than submit a letter to Justice Nichols and Judge Richard M. Koweek of the County

9 Court, he cannot be held to have “committed” or have been “personally involved” in the alleged

10 deprivation. Indeed, DA Czajka did not expressly ask for Dubois’s pistol license to be revoked,

11 but instead requested that the County Court “consider this matter and . . . take such action that it

12 deems appropriate.” App’x at 49; see generally Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)

13 (holding that a supervisor’s referral of plaintiff’s letters for further investigation did not establish

14 personal involvement under Section 1983). Furthermore, DA Czajka could not have deprived

15 Dubois of his license because he lacked the statutory authority to do so under New York Penal

16 Law § 400.00(11). Accordingly, Dubois has failed to plausibly state a claim for a Second

17 Amendment violation against DA Czajka based upon Justice Nichols’s sua sponte decision to

18 suspend Dubois’s pistol license and require him to surrender his guns. 4

19 Similarly, Dubois’s Second Amendment claim cannot plausibly be based upon Town

20 Supervisor Beaury’s unsuccessful petition to enjoin Dubois’s possession of town firearms. As a

4
Dubois also alleges that Town Supervisor Beaury coordinated with DA Czajka with respect to the letter,
however that claim fails for the same reasons.
8
 1 threshold matter, Dubois concedes that this “second County Court action personally coordinated

2 by Supervisor Beaury did not implicate Officer Dubo[i]s’ Second Amendment rights because this

3 action concerned only Officer Dubois’ possession of town firearms.” Appellant’s Br. at 19

4 (emphasis added). In any event, Beaury was unsuccessful in enjoining Dubois’s possession of

5 the Town firearms because, on September 14, 2018, Judge Koweek dismissed the petition. As

6 we explained in Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992), “the success of an attempt to

7 deprive an individual of constitutional rights is critical to whether those rights have in fact been

8 violated.” Id. at 1180. Therefore, because no deprivation of Dubois’s possession of firearms

9 occurred as a result of Town Supervisor Beaury’s petition, that petition cannot form the basis of a

10 plausible Second Amendment claim against Beaury or any other defendant.

11 In sum, the district court properly dismissed the Second Amendment claim. 5

12 * * *

13 We have considered Dubois’s remaining arguments and find them to be without merit.

14 Accordingly, we AFFIRM the order and judgment of the district court.

15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk of Court

5
To the extent Dubois also challenges the district court’s dismissal of his Monell claim, we find that,
because his underlying constitutional claims were properly dismissed, his Monell claim also fails as a matter
of law. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Because the district court
properly found no underlying constitutional violation, its decision not to address the municipal defendants’
liability under Monell was entirely correct.”).
9