X Men Security v. Gov. Pataki
| Decision Date | 01 August 1998 |
| Docket Number | X-M,X-MEN,Docket Nos. 97-9023 |
| Citation | 196 F.3d 56 |
| Parties | (2nd Cir. 1999) SECURITY, INC.; ANTHONY RICHARDS, President,en Security, Inc.; and SHEILA BOYD, President of Ocean Towers Tenant Association, on behalf of the Ocean Towers' Tenants, Plaintiffs-Appellees, v. GOVERNOR GEORGE PATAKI, individually; JOSEPH H. HOLLAND, Commissioner of the Division of Housing and Community Renewal, individually; DU THIRD REALTY, INC.; BSR MANAGEMENT CORPORATION; BERNARD JERESKI, individually, and as a Managing Partner of DU THIRD REALTY, INC.; and AARON SILBERMAN, individually and as an Officer of BSR Management Corporation, Defendants, JULES POLONETSKY, individually; PETER KING, individually, Defendants-Appellants. (L), 97-9595(CON) |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from orders of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, denying legislators' motions for dismissal on the ground of qualified immunity with respect to their statements about certain of the plaintiffs. See 983 F. Supp. 101 (1997).
Reversed.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] MICHAEL A. HARDY, New York, New York (Terence C. Scheurer, Scheurer, Wiggin & Hardy, New York, New York, on the brief), for Plaintiffs-Appellees.
THOMAS D. HUGHES, Deputy Solicitor General, New York, New York (Dennis C. Vacco, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Katharine Demgen, Assistant Attorney General, New York, New York, on the brief), for Defendant-Appellant Jules Polonetsky.
STEPHEN J. RIEGEL, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Varuni Nelson, Assistant United States Attorney, Brooklyn, New York, Geraldine R. Gennet, General Counsel, Michael L. Stern, Senior Counsel, United States House of Representa- tives, Washington, D.C., on the brief), for Defendant-Appellant Peter King.
Before: WINTER, Chief Judge, KEARSE, Circuit Judge, and HAIGHT, District Judge. *
Defendants Jules Polonetsky, a former member of the New York State Assembly, and Peter King, a member of the United States House of Representatives (collectively the "legislators"), appeal from orders of the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, denying their motions pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss, on qualified-immunity grounds, the claims of plaintiffs XMen Security, Inc., and its principal owner Anthony Richards (collectively "XMen") under 42 U.S.C. 1983 and 1985 (1994), alleging invidiously motivated interference with XMen's business. The district court denied those motions, ruling that the complaint sufficiently states a claim on which relief can be granted against Polonetsky and King for violation of XMen's rights under the First Amendment and the Equal Protection Clause of the Constitution, and that a decision with respect to qualified immunity would be premature prior to any discovery. On appeal, Polonetsky and King contend that the court should have granted their motions because their entitlement to qualified immunity is revealed on the face of the complaint. For the reasons that follow, we agree.
The present controversy arises out of the furnishing of security services for Ocean Towers, a housing complex in Brooklyn, New York. At the pertinent times, Ocean Towers was owned by defendant DU Third Realty, Inc. ("DU"), of which defendant Bernard Jereski was a partner, and was managed by defendant BSR Management Corp. ("BSR" or "B/S/R Management"), of which defendant Aaron Silberman was an officer (these four defendants collectively referred to as the "private defendants"). Though privately owned, Ocean Towers receives a significant level of public financing from New York State ("State") and the United States government and is thus subject to regulation and oversight by State and federal authorities, including the State Division of Housing and Community Renewal ("DHCR") and the United States Department of Housing and Urban Development ("HUD"). Some of the contracts for services to Ocean Towers are required to be submitted to DHCR for approval, see 9 N.Y.C.R.R. 17284.1(d).
XMen is a provider of security services. A majority of its employees are of "Black African American descent" and are "followers of the Islamic Religion," attending mosques that follow the teachings of the Nation of Islam, one of whose recognized ministers is Louis Farrakhan. (Complaint 32.) From June 1993 until October 1996, XMen provided security services at Ocean Towers. As set forth in greater detail below, plaintiffs contend that XMen's contract to provide those services was not renewed by the private defendants because of statements by Polonetsky and King that were motivated by racial and religious prejudice.
The complaint, whose factual allegations must be accepted as true for purposes of deciding or reviewing a Rule 12(b)(6) motion to dismiss, see, e.g., McEvoy v. Spencer, 124 F.3d 92, 95 (2d Cir. 1997), alleges the following events.
By the early 1990s Ocean Towers had become a dangerous place to live, victimized by "the scourge of drugs and the wrath of ... drug gangs" and characterized by high levels of violent crime. (Complaint 20.) The various companies theretofore retained to provide security at the complex either resigned, or "were terminated by management for their failure to resolve the crime and drug trafficking problems," or themselves became aligned with criminal elements at Ocean Towers. (Id. 22(c).) In June 1993 (see Complaint Exhibit B), BSR entered into a contract, subsequently approved by DHCR, with N.O.I. Security Agency Inc. for security services at Ocean Towers (the "1993 contract" or "Ocean Towers contract") on a "month to month basis" (Complaint Exhibit A). N.O.I. assigned the 1993 contract to XMen.
When XMen began performing under the 1993 contract, safety at Ocean Towers immediately began to improve. Vandalism was significantly reduced, and drug trafficking was eliminated. Simultaneously, however, according to the complaint, Polonetsky, whose New York Assembly district encompassed Ocean Towers, and King, whose Congressional district was nearby, began to organize a conspiracy to oust XMen (see Complaint 3839) "because plaintiffs XMen and Richards are composed of or are African-American and Muslim" (id. 36). The complaint alleges that in fact XMen is not "connected or affiliated or owned in whole or part by the religious corporation of the Nation of Islam" (id. 34); however, when public bidding was opened for the next security contract for Ocean Towers, in compliance with DHCR regulations (the "1994 bidding"), Polonetsky and King contrived to impede the retention of XMen by representing that there was such a connection:
39. The goal of the conspiracy was to cause the termination of service contracts that plaintiffs held with defendants DU Realty and B/S/R Management and to preventplaintiffs XMen and Richards from procuring future contracts
40. The manner in which the conspiracy was carried out was to hide behind their official positions to create a public frenzy which would lead to the termination of the contract upon illegal discriminatory grounds and to coerce and entice others to join the conspiracy.
41. The actions of the defendants were intentional, negligent and motivated by racial and religious prejudice.
42. The focus of defendants' statements were [sic] the allegations made by defendant Polonetsky and other co-conspirators that the XMen were completely controlled by Minister Louis Farrakhan and that monies from the contract went directly to the Nation of Islam.
43. Defendants at various times caused false accusations to be made against plaintiff XMen that they attempted to distribute their religious literature and recruit tenants into their religious organization while on duty.
44. Defendants at various times caused additional false accusations to be made against plaintiff XMen that they were a "hate group" and "racist." Further, defendant Polonetsky as a means of convincing co-defendants and other conspirators to join the conspiracy caused accusations to be made that the XMen, its employees and Richards as its principal owner were guilty of fraud, mismanagement, unpaid debts, and other irregularities.
45. On or about September 24, 1994, defendant Polonetsky along with King planned and forwarded under [sic] defendant Polonetsky's signature a letter to then DHCR Commissioner Donald Halperin which accused plaintiffs XMen and Richards of hating Jews, women, Catholics and others. Specifically, Polonetsky stated
46. In that same letter Polonetsky urged then Commissioner Halparin [sic] to terminate the contract with the XMen. These actions were not based upon any reasonable belief, but motivated purely to further the aim and goals of the conspiracy and cause the plaintiffs los[s] of property on the basis of defendants' individual racial and religious prejudice.
(Complaint 3946.)
The complaint alleges that the private defendants at first participated in the conspiracy notifying XMen in November 1994 that the 1993 contract "would not be renewed for any definite period" (id. 47), and "effectively exclud[ing]" XMen from consideration (id. 48). XMen did not submit a bid in the 1994 bid...
To continue reading
Request your trial
-
Armstrong v. Wright-Pearson
...legally reasonable . . . in light of the legal rules that were clearly established at the time it was taken." X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2nd Cir. 1999) (Citations, internal quotation marks and brackets omitted). "These three issues should be approached in sequence, for ......
-
Anemone v. Metropolitan Transp. Authority
...established at the time it was taken. See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.2001); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir.1999). A court may make such a finding on a motion to dismiss, but "the defense faces a formidable hurdle when advanced on ......
-
Pinter v. the City of N.Y.
...129 S.Ct. at 818. Pearson recognized, however, that the traditional sequence "is often appropriate." Id. 133 X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir.1999). Accord Manganiello v. City of New York, 612 F.3d 149, 164 (2d Cir.2010); Taravella, 599 F.3d at 135; Cornejo, 592 F.3d a......
-
Walczyk v. Rio
...for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. 2151; see X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir.1999) (observing that resolution of this first question favorable to defendant "moots" further inquiry into qualified immunity). Th......
-
Harm and Hegemony: The Decline of Free Speech in the United States.
...Courts are often uncomfortable in drawing such lines between advocacy and coercion by elected officials. See X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999) (finding that legislators expressing criticism of a private company were "not decisionmakers but merely advocates"). But se......