### 1 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 TH E 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 17 th day of March, two thousand fourteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge , ROBERT D. SACK, Circuit Judge , EDGARDO RAMOS, District Judge

. *

____________________________________________ NICOLE BUSH, as Administra tor 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 Administrato r 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 Unite d States District Court for the Southern District of New York, sitting by designation.

### 2 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: J OHN P. O RILIO , First Assistant Co rporation Counsel (Zachary C. Oren, Assist ant Corporation Counsel, on the brief ), City of Utica Law Department, Utica, NY. For Plaintiffs-Appellees: J OHN J. D OWD , Dreyer Boyajian LLP, Albany, NY. Appeal from a memorandum decision a nd order denying defenda nt-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 de nying Brooks’s defense of qualified immunity be and is hereby AFFIRMED

. Defendant-appellant Russell Brooks appeal s a memorandum decisi on and order entered by the United States District Court for th e Northern District of New York (Hurd, J. ). The order granted in part and denied in pa rt the defendants’ motion to dismiss the complaint. In its partial denial of the motion, the district court rejected Brooks’s claim th at 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.

### 3 immunity. Brooks appeals that port ion of the district court’s d ecision. We assume the parties’ familiarity with the underlying facts, pr ocedural history, and issues on appeal. “Generally, a district court’s denial of a claim of qualified i mmunity, to the extent that it turns on an issue of law, is an appealable fi nal decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absen ce 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 comp laint, an official defendant sued in his individual capacity may be gran ted 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 mate rial allegations of the complaint, and drawing all reasonable in ferences in favor of the plaintiff.” Vincent v. Yelich , 718 F.3d 157, 167 (2d Cir. 2013). Applying those stan dards 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 in terests—the need to hold public officials accountable when they exercise power irrespons ibly 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 analys is: first, we ask whether the pl aintiff has made out a violation of a constitutional right; and second, we ask whethe r 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.

### 4 As to the first prong, the plaintiffs allege that Brooks violated the decedents’ right to equal protection of the laws, a right guaran teed 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 individua ls who resided on James Street.” App. 19. The complaint further alleges that the fire department “a dhered to a ‘don’t go in policy’ for all fires which took place at low-inco me properties located in the City of Utica.” Id. at 22. This Court has recognized that the Equal Pr otection Clause may be violated by selective

enforcement or selective adverse treatment. To stat e such a claim, a plaintiff must allege (1) that

he or she was treated differentl y from other similarly situated individuals, and (2) that the “treatment was based on impermissible considerati ons such as race, religi on, intent to inhibit or punish the exercise of constitutional rights, or mali cious 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 w ith the district court that the complaint adequately alleges that the de cedents were treated diffe rently 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.

### 5 To the extent that the complaint alleges that both Brooks’s decision not to send his firefighters into the burning building and th e 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 pur poses of equal protection analysis.”). Nevertheless, the alleged classification “must be rationally rela ted 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 disc ern no rational basis for the fire department’s alleged policy, reflected in Brooks’s alleged statement, of withhol ding 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 wh ether 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 trea tment aspect of our equal prot ection 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

### 6 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 depa rt from our prior assessment of the continuing vitality of LeClair and our assessment that the se lective-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 base d 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 enti tled to qualified immun ity at this stage of

the case. We have considered the appellant’s remain ing 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, th e only question of law over which we presently have jurisdiction.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk