11-161-cv Hughes v. Anderson, 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 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 1 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 21 st day 2 of November, two thousand eleven. 3 4 Present: 5 PIERRE N. LEVAL, 6 DEBRA A. LIVINGSTON, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges , 9 10

________________________________________________ 11 12 THOMAS HUGHES, 13 14 Plaintiff-Appellant, 15 16 v. No. 11-161-cv 17 18 KEVIN ANDERSON, in his official and individual 19 capacities, and ALEX PASTORI, in his official and 20 individual capacities, 21 22 Defendant-Appellees

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________________________________________________ 25 26 For Plaintiff-Appellant: Steven A. Morelli (Eric S. Tilton, on the brief ), Law Office of 27 Steven A. Morelli, P.C., Garden City, New York 28 29 For Defendant-Appellees: Sudarsana Srinivasan (Barbara D. Underwood, Richard 30 Dearing, on the brief ) for Eric T. Schneiderman, Attorney 31 General of the State of New York, New York, New York 32

________________________________________________ 33-2- Appeal from the United States District C ourt for the Eastern District of New York 1 (Feuerstein, J. ). 2 ON CONSIDERATION WHEREOF , it is hereby ORDERED , ADJUDGED , and 3 DECREEDthat the judgment of the district court dated December 14, 2010, be and hereby is 4 VACATED , and the matter REMANDED

. 5 Plaintiff Thomas Hughes, formerly employed as a court officer by the New York Unified 6 Court System, appeals from a judgment of the United States District Court for the Eastern 7 District of New York, dismissing his claim thathe was subject to adverse employment action in 8 retaliation for engaging in speech protected by the First Amendment. We assume the parties’ 9 familiarity with the underlying facts, the proceduralhistory of the case, and the issues on appeal. 10 Hughes claimed that the defendants, his superiors Kevin Anderson and Alex Pastori, 11 harassed him and ultimately caused his termination in retaliation for his report to the Chief Clerk 12 of the Nassau County District Court that some court officers, including Anderson, were leaving 13 their posts early to work second jobs and falsifying their departure times on their timesheets. 14 Anderson moved to dismiss the claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and 15 Hughes submitted a brief in opposition. 16 Without giving Hughes notice or an opportunity to be heard, the district court dismissed 17 the complaint for failure to state a claim, based on an argument Anderson had not raised in his 18 briefing. Citing Garcetti v. Ceballos , 547 U.S. 410, 421 (2006), the district court noted that 19 statements made by a public employee pursuant to his official duties are not made “as a citizen” 20 and therefore cannot be the basis of a claim of retaliation in violation of the First Amendment. 21 No. 09-cv-04042, slip op. at 9 (E.D.N.Y. Dec. 14, 2010) . Relying on that principle, the district 22 court then ruled that the complaint failed to state a First Amendment violation because, although 23-3- Hughes’s alleged report of misconduct involved a matter of public concern, id. at 8-9, “[n]either 1 the Complaint nor the proposed Amended Complaint adequately allege[d] facts to support the 2 argument that the statement to the Chief Clerk was made outside Plaintiff’s official job duties,” 3 id. at 11. 4 The district court erred in dismissing Hughe s’s First Amendment claim with prejudice on 5 a ground not raised by a defendant without giving him notice and opportunity to respond, and 6 without affording him an opportunity to demonstrate that any deficiency in his complaint could 7 be cured in an amended pleading. As a general matter (excepting clearly frivolous cases), it is 8 improper for a district court to dismiss a complaint with prejudice for failure to state a claim 9 without giving the plaintiff notice and an opportunity to be heard and to offer an amended 10 pleading. See Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988). Accordingly, we vacate the 11 judgment and remand to the district court for further proceedings consistent with this order. 12 Upon remand, the district court should give Hughe s an opportunity to argue that his complaint 13 supports a reasonable inference that he made his report as a citizen, and not “pursuant to [his] 14 official duties,” Garcetti , 547 U.S. at 421, and/or to move to amend the complaint so that it 15 would reasonably support that inference. 16 For the foregoing reasons, the judgment of the district court is hereby VACATED , and 17
the matter REMANDED . In the event of a subsequent appeal, the matter will be assigned to this 18 panel. 19
FOR THE COURT: 20 CATHERINE O’HAGAN WOLFE, CLERK 21 22