Mangino v. Inc. Vill. of Patchogue

Citation808 F.3d 951
Decision Date22 December 2015
Docket NumberNo. 14–3253–cv.,14–3253–cv.
Parties John MANGINO, Plaintiff–Appellant, v. INCORPORATED VILLAGE OF PATCHOGUE, John P. Poulos, and James Nudo, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Robert A. Siegel, Law Office of Robert A. Siegel, New York, N.Y., for PlaintiffAppellant.

Mark A. Radi (Brian S. Sokoloff, on the brief), Carle Place, N.Y., for DefendantsAppellees.

Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

The principal question presented is whether, in August 2005, there was a clearly established right to be free from abuse of process under New York law even where probable cause existed. We conclude that there was not.

Plaintiff-appellant John Mangino ("Mangino") appeals from the March 10, 2014 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge ) dismissing his complaint against defendant-appellees the Incorporated Village of Patchogue (the "Village") and Village Fire Marshal John P. Poulos ("Poulos"). The appeal seeks review of the District Court's September 23, 2010 order dismissing Mangino's First Amendment retaliation claim, see Mangino v. Inc. Vill. of Patchogue, 739 F.Supp.2d 205 (E.D.N.Y.2010), and its September 30, 2011 order dismissing his abuse-of-process claim, see Mangino v. Inc. Vill. of Patchogue, 814 F.Supp.2d 242 (E.D.N.Y.2011). Mangino also appeals from the District Court's August 1, 2014 post-judgment order denying his motion to set aside the verdict and for a new trial. See Mangino v. Inc., Vill. of Patchogue, No. 06–CV–5716 (JFB), 2014 WL 3795572 (E.D.N.Y. Aug. 1, 2014).

As explained more fully below, we (1) AFFIRM the District Court's dismissal of Mangino's First Amendment retaliation claim, as the criminal summonses on which it is premised were supported by probable cause, the issuance of the non-criminal Fire Prevention Violation Order on which it is premised was otherwise justified, and Mangino has not made any argument that the issuance of the Fire Prevention Violation Order was significantly more serious than other action Poulos had discretion to take; (2) AFFIRM the District Court's dismissal of Mangino's abuse-of-process claim on qualified-immunity grounds because, at the time of the alleged conduct, although there was a clearly established right to be free from abuse of process under New York law, there was no clearly established right to be free from abuse of process where probable cause existed; and (3) AFFIRM the District Court's denial of Mangino's motion to set aside the verdict and for a new trial because it is clear that, when read in context, the District Court's jury instructions were not erroneous.

BACKGROUND

At some point between 2001 and 2003, Mangino purchased with his wife, whom the District Court dismissed from the case, an apartment building in Patchogue, New York. Pl.'s App'x 67. When he purchased the building, he applied for a two-year rental permit, as required by the Village's rental-permit law. Id. at 74. After he received the permit, he began renting apartments to tenants. When his permit expired in or around 2004, he did not renew it. Id. at 78, 80–81.

In January 2005, defendant-appellee James Nudo ("Nudo"), the Village's Housing Inspector and Code Enforcement Officer, issued criminal summonses to Mangino for continuing to rent out apartments despite his failure to renew his rental permit. Id. at 83–84. Mangino challenged in court these summonses and their manner of service, as well as the validity of the Village's rental-permit law. Id. at 85. Mangino alleges that, in response, the Village prosecutor threatened him, stating that if he did not settle the pending litigation against the Village or accept a plea bargain, he would be "hit with a barrage of summonses." Id.

On July 21, 2005, one of Mangino's tenants, Dawn Gucciardo ("Gucciardo"), called the Village Housing Department and requested that someone check the power in her apartment. Id. at 142–44. Nudo answered Gucciardo's call, id. at 142, and later filed an incident report in which he wrote that Gucciardo had told him that she feared the conditions in her apartment, which included electrical problems, would result in a fire, id. at 142–44; Ex. RR, Mangino v. Inc., Vill. of Patchogue, No. 06–CV–5716 (JFB) (E.D.N.Y. Feb. 19, 2010), ECF No. 47. Nudo forwarded this incident report to Poulos. Pl.'s App'x 145. On July 22, 2005, Gucciardo called the Housing Department to report "that things were ‘getting fixed,’ " but Poulos was not present when the Housing Department received this call. Id.

According to defendants-appellees, on July 25, 2005, Gucciardo called the Village Housing Department again, this time to complain that the outlets in her apartment were sparking or arcing. Id. at 146–49. Defendants-appellees claim that, when Poulos was informed of this call, he immediately departed for Mangino's building to investigate. Id. at 151–52. Mangino, however, claims that Gucciardo never called the Village Housing Department on July 25, 2005. Id. at 146–49.

When Poulos arrived at the building, he informed Mangino that he had come to check the outlet in Gucciardo's apartment.Id. at 159. Mangino refused to let Poulos into the building without a warrant. Id. at 160. Poulos then called Nudo to request his assistance and informed Mangino that, if Mangino would not allow Poulos in, Poulos would call the Village Fire Department. Id. at 160–61. When Mangino still refused to grant Poulos entry, Poulos called in an "all-encompassing general alarm." Id. at 161–63.

When the Village firemen arrived, they inspected the building, including Gucciardo's apartment and the basement. Id. at 168, 170–73. They did not find any sparking or arcing outlets in Gucciardo's apartment. Id. at 172. But according to defendants-appellees, a Captain Welsh noticed two potential hazards while in the basement and radioed Village Fire Chief Joseph Wagner, who was still outside the building. Id. at 173–74. Defendants-appellees claim that Welsh and Wagner then requested Poulos's assistance in inspecting these potential hazards. Id. at 177–78. Poulos eventually entered the building and proceeded to the basement. Id. at 179–80. Defendants-appellees assert that Captain Welsh and the other inspecting firemen pointed out the two potential hazards to Poulos, at which point Poulos wrote down his observations and issued a Fire Prevention Violation Order ("FPVO") to Mangino. Id. at 181–92. The FPVO required Mangino, by September 1, 2005, to repair the hazardous conditions or supply the Village with a licensed engineer's report stating that no corrective action was necessary; this deadline Poulos later extended to October 31, 2005. Id. at 192–93, 583–87.

On August 11, 2005, Nudo and Village Housing Coordinator Joanne Gallo visited Mangino's building to investigate Gucciardo's July 21, 2005 complaints, and inspected Gucciardo's apartment with her consent. Id. at 200–02. On the same day, Nudo issued 18 separate summonses to Mangino for a variety of alleged violations of the Village Code. Id. at 204. On August 27, 2005, Mangino was served with additional summonses, issued by Nudo and dated August 5, 8, 9, 11, 12, 13, 14, 15, and 16, for failure to renew his rental permit on those dates. Id. at 84–103. Although Mangino admits that he did not have a rental permit in August 2005 and that he continued to rent apartments in his building during this time, all of the summonses issued to him for violation of the Village's rental-permit law were ultimately dismissed. Id.

On February 14, 2008, Mangino filed the operative Second Amended Complaint, in which he asserted various claims against defendants-appellees, including claims under 42 U.S.C. § 1983 for violations of the First and Fourth Amendments to the U.S. Constitution. Mangino, 739 F.Supp.2d at 225–26.1 Mangino's sole First Amendment claim was for retaliation, id. at 247, while his Fourth Amendment claims included abuse of process and warrantless entry, id. at 226. On September 23, 2010, following the parties' cross-motions for summary judgment, the District Court dismissed Mangino's First Amendment retaliation claim because he had failed to show that defendants-appellees' allegedly retaliatory conduct chilled the exercise of his First Amendment rights. Id. at 248–49. On September 30, 2011, the District Court also dismissed Mangino's Fourth Amendment abuse-of-process claim on qualified-immunity grounds. Mangino, 814 F.Supp.2d at 249–52.

The case proceeded to trial on Mangino's warrantless-entry claim, which trial took place from February 24 through March 10, 2014. Mangino, 2014 WL 3795572, at *1. The jury returned a unanimous verdict for defendants-appellees, concluding that Mangino had not proven by a preponderance of the evidence that Poulos fabricated an exigent circumstance and thus lacked probable cause to enter Mangino's building without a warrant.Id. In a subsequent motion under Rule 59(a) of the Federal Rules of Civil Procedure, Mangino argued that the District Court's jury instructions improperly allowed the jury to consider events other than those that allegedly took place on July 25, 2005 as justification for the warrantless entry. Id. at *1, *5–8. The District Court rejected this argument, id. at *8, and Mangino timely appealed.

DISCUSSION
I. First Amendment Retaliation Claim

We begin with Mangino's argument that the District Court erred in dismissing his First Amendment retaliation claim. "We review a district court's grant of summary judgment de novo." Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 19 (2d Cir.2015). Here, the District Court held that, to make out a First Amendment retaliation claim, "the plaintiff must show that ... defendants' actions effectively chilled the exercise of [his] First Amendment right." Mangino, 739 F.Supp.2d at 247 (internal quotation marks omitted). According to the District Court, Mangino failed to satisfy this...

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