Di Lello v. Coviello

Background

Dario Di Lello, an attorney representing himself, sued Anthony Coviello, Mary Covucci, and the Town of Beekman under 42 U.S.C. § 1983 and New York law. Di Lello alleged that Coviello, the Town’s Highway Superintendent, retaliated against him after he complained to a Town Councilman, submitted Freedom of Information Law requests, and otherwise investigated the installation of a speed hump near his home. The alleged retaliation included a threat to have Di Lello arrested, snow pushed onto his property, a warning that he had violated snow-removal laws, threats to withdraw Highway Department cooperation from the Fire Department unless it ended Di Lello’s volunteer firefighter position, and repeated destruction of his mailbox. Di Lello also alleged that his law practice received negative online reviews, his cable-box cover was removed, and his car’s fog lights were disconnected.

The defendants moved to dismiss the second amended complaint under Rule 12(b)(6), which asks whether the complaint alleges enough facts to state a legally plausible claim. The court accepted the complaint’s well-pleaded factual allegations as true for purposes of the motion. Because Di Lello was a practicing attorney familiar with litigation, the court did not give him the special pleading leeway sometimes given to people representing themselves.

First Amendment retaliation claims

The court allowed Di Lello’s First Amendment retaliation claims to proceed in part. A retaliation claim requires plausible allegations of protected speech or conduct, an adverse action that could deter an ordinarily firm person from exercising constitutional rights, and a causal connection between the speech and the adverse action.

The court dismissed the retaliation claims based on the negative Google reviews, the removed cable-box cover, and the disconnected fog lights. Di Lello alleged no facts tying Coviello to those acts beyond their timing after Di Lello filed a notice of claim. The court held that timing alone did not plausibly show Coviello’s personal involvement, and Di Lello acknowledged he had no direct proof that Coviello disconnected the fog lights.

The court held that the alleged threat to have Di Lello arrested if he continued investigating the speed hump was sufficiently direct and specific to qualify as an adverse action. The fact that Di Lello was not ultimately arrested did not defeat the claim.

The court also allowed the retaliation claims based on the two alleged mailbox attacks to proceed. The timing of the attacks after Di Lello’s complaints and filings plausibly supported a causal connection, and the repeated damage to the mailbox could deter a person of ordinary firmness. The court further held that the allegations about Coviello’s prior conduct and the use of Highway Department vehicles under his control plausibly supported Coviello’s personal involvement.

Finally, the court allowed the retaliation claim based on the combined allegations that Coviello pushed snow onto Di Lello’s property, issued the snow-removal warning, and tried to have Di Lello removed as a volunteer firefighter. Although each act might have appeared minor by itself, the court held that the alleged months-long pattern, considered together with the arrest threat and mailbox attacks, could plausibly deter protected complaints.

Fourteenth Amendment claims

The court dismissed Di Lello’s procedural due-process claim concerning the mailbox damage. It held that New York provided an adequate post-deprivation remedy through an Article 78 proceeding, which was enough to preclude a procedural due-process claim for an unauthorized intentional property deprivation.

The court allowed Di Lello’s substantive due-process claim concerning the mailbox damage to proceed. In the non-seizure, non-prison context, the court recognized a substantive due-process protection against excessive force by government actors. The alleged destruction of the mailbox was nontrivial, and the repeated attacks, viewed with the alleged retaliation pattern, plausibly suggested a malicious and arbitrary use of governmental authority.

The court dismissed Di Lello’s Fourth Amendment claims because the alleged excessive force occurred outside a seizure, prison, or law-enforcement context; the court treated the applicable constitutional question as one of substantive due process under the Fourteenth Amendment.

Claims against the Town of Beekman

The court allowed the municipal claims against the Town of Beekman to proceed. Under the rule commonly called municipal liability under Monell, a town may be liable under Section 1983 when an official policy or custom causes a constitutional injury. The court held that Di Lello plausibly alleged that Coviello had final policymaking authority over the Highway Department’s relevant conduct.

The allowed municipal claims were based on the alleged mailbox destruction, excessive snow plowing onto Di Lello’s property, and the warning concerning snow removal. The court also allowed the Town-related First Amendment retaliation and substantive due-process claims identified in the conclusion. The court rejected, however, any municipal-liability theory based only on Covucci’s alleged deliberate indifference or tacit approval, because Di Lello alleged no widespread pattern beyond the events involving him.

Claims against Mary Covucci

The court dismissed the Section 1983 claims against Covucci in her official capacity. Those claims were redundant of the claims against the Town because the Town itself could be sued for damages based on an official policy. The complaint did not allege additional facts showing Covucci’s personal involvement in the constitutional violations.

New York state-law claims

The court dismissed Di Lello’s state constitutional claims because his Section 1983 claims provided an alternative remedy for the same alleged injuries. It also dismissed his intentional and negligent infliction of emotional distress claims because the alleged conduct, even if true, did not meet New York’s demanding standard for conduct sufficiently extreme and outrageous.

The court dismissed the tortious-interference-with-contract claim because Di Lello conceded that the Fire Department did not terminate his volunteer firefighter position. Without an actual breach or resulting damages, the claim was not plausibly pleaded.

Disposition

The court granted in part and denied in part the motion to dismiss. The First Amendment retaliation claims against Coviello and the Town based on the arrest threat, mailbox destruction, excessive snow plowing, snow-removal warning, and attempted termination of Di Lello’s volunteer firefighter position shall proceed. The substantive due-process claim against Coviello and the Town based on the mailbox destruction shall also proceed. All other claims were dismissed. The court ordered Coviello and the Town to file an answer by February 1, 2022, and directed the clerk to terminate Covucci as a defendant.