Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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Motions, Pleadings and Filings Only the Westlaw citation is currently available. United States District Court, D. Connecticut. Ann PISCOTTANO, Plaintiff v. TOWN OF SOMERS, Gordon J. Mello, Conrad McIntire, Jr. Defendants No. 3:01CV1311(CFD). Oct. 14, 2005. Background: Citizen brought civil rights action against town, first selectman of board of selectman, and former town employees alleging violation of her right to free speech and to seek redress of grievances under First Amendment and violation of her right to due process of law and equal protection. Defendants brought motion for summary judgment. Holdings: The District Court, Droney, J., held that: (1) fact issue existed as to whether first selectman had authority to set policy on who spoke at board meetings, and on what topics; (2) employee did not violate equal protection and due process rights of citizen; (3) fact issue existed as to whether first selectman was acting in accordance with established municipal policy; (4) alleged misconduct of town employee during work hours involved topic of public concern; (5) fact issue existed as to whether purported content-neutral policy of board of selectmen was narrowly tailored to serve significant governmental interest and left open ample alternative channels for communication; (6) fact issue existed as to whether citizen was intentionally treated differently from other persons

similarly situated; and (7) citizen's right to petition under Amendment was not violated. Motion granted in part and denied in part. [1] Civil Rights 1304

First

78k1304 Most Cited Cases [1] Civil Rights 1305 78k1305 Most Cited Cases Section 1983 itself creates no substantive rights, but, instead, only provides a procedure for redress for the deprivation of rights established elsewhere; thus, a plaintiff seeking to establish a claim under § 1983 must demonstrate a violation of a right secured by the Constitution and the laws of the United States and that the alleged deprivation was committed by a person acting under color of state law. 42 U.S.C.A. § 1983. [2] Civil Rights 1351(1) 78k1351(1) Most Cited Cases [2] Civil Rights 1397 78k1397 Most Cited Cases To establish municipal liability in a civil rights case for the allegedly unconstitutional actions of a municipal employee, the plaintiff must plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. 42 U.S.C.A. § 1983. [3] Civil Rights 1345 78k1345 Most Cited Cases In a civil rights case, municipal liability cannot be premised on a theory of respondeat superior. 42 U.S.C.A. § 1983. [4] Federal Civil Procedure 2491.5 170Ak2491.5 Most Cited Cases Genuine issue of material fact existed as to whether

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) first selectman of town board of selectmen had authority to set policy on who spoke at board meetings, and on what topics, precluding summary judgment in civil rights case against municipality under free speech clause of First Amendment. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [5] Civil Rights 1401 78k1401 Most Cited Cases [5] Civil Rights 1426 78k1426 Most Cited Cases In a civil rights case against a municipality, where a plaintiff relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law. 42 U.S.C.A. § 1983. [6] Civil Rights 1426 78k1426 Most Cited Cases In a civil rights case against a municipality, whether an official in question possessed final policy making authority in a particular area is a legal question to be determined by reference to state law, local law, and custom and usage having the force of law. 42 U.S.C.A. § 1983. [6] Federal Courts 411 170Bk411 Most Cited Cases In a civil rights case against a municipality, whether an official in question possessed final policy making authority in a particular area is a legal question to be determined by reference to state law, local law, and custom and usage having the force of law. 42 U.S.C.A. § 1983. [7] Civil Rights 1335 78k1335 Most Cited Cases Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. 42 U.S.C.A. § 1983. [8] Civil Rights 1360 78k1360 Most Cited Cases Town employee was not liable under § 1983 for violating equal protection and due process rights of citizen, who wanted to speak out against employee at town board meeting, when first selectman of town board of selectmen prevented citizen from making such comments, since employee did not have any personal involvement with decision of selectman. U.S.C.A. Const.Amend 14; 42 U.S.C.A. § 1983. [9] Federal Civil Procedure 2491.5 170Ak2491.5 Most Cited Cases Genuine issues of material fact existed as to whether first selectman of town board of selectman was acting in accordance with established municipal policy in prohibiting citizen from speaking at board meeting about alleged misconduct of town employee during work hours, and whether decision of selectman was content-neutral, precluding summary judgment on civil rights claim of citizen under free speech clause of First Amendment. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [10] Civil Rights 1426 78k1426 Most Cited Cases The question of whether certain speech enjoys a protected status under the First Amendment is one of law, not fact. U.S.C.A. Const.Amend 1. [11] Constitutional Law 90(3) 92k90(3) Most Cited Cases Freedom of speech is not absolute; a First Amendment free speech violation occurs only when the restricted speech is constitutionally protected and when the government's justification for the restriction is insufficient. U.S.C.A. Const.Amend 1. [12] Constitutional Law 92k90(1) Most Cited Cases 90(1)

[12] Constitutional Law 90.1(1) 92k90.1(1) Most Cited Cases [12] Constitutional Law 274.1(1) 92k274.1(1) Most Cited Cases The First Amendment's protection of free speech, made applicable to the states through the Fourteenth Amendment, extends to a broad range of speech and

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) expressive conduct; speech on public issues and political matters lies at the heart of protected speech. U.S.C.A. Const.Amend 1. [13] Constitutional Law 90.1(1) 92k90.1(1) Most Cited Cases Alleged misconduct of town employee during work hours involved topic of public concern, for purpose of First Amendment free speech civil rights claim of citizen who was denied right to make statement at town board meeting, since employee was paid by town, had set work schedule, and provided important services to town. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983. [13] Towns 26 381k26 Most Cited Cases Alleged misconduct of town employee during work hours involved topic of public concern, for purpose of First Amendment free speech civil rights claim of citizen who was denied right to make statement at town board meeting, since employee was paid by town, had set work schedule, and provided important services to town. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983. [14] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases The First Amendment free speech clause does not guarantee access to property simply because it is owned or controlled by the government; the state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. U.S.C.A. Const.Amend 1. [15] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Under the First Amendment free speech clause, the extent to which government may regulate expressive activity on public property depends upon the "character" of the public property in question. U.S.C.A. Const.Amend 1. [16] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Under the First Amendment free speech clause, "traditional public forums" are places such as streets and parks that by long tradition have been devoted to assembly and debate. U.S.C.A. Const.Amend 1. [17] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Under the First Amendment free speech clause, "designated public forums" are those that the government opens for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects. U.S.C.A. Const.Amend 1. [18] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Under the First Amendment free speech clause, a "nonpublic forum" is public property which the government has not opened to public communication either by tradition or by designation. U.S.C.A. Const.Amend 1. [19] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Under the free speech clause of the First Amendment, a "limited public forum," which is a subset of the designated public forum, arises where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects; restrictions on speech not within the type of expression allowed in a limited public forum must only be reasonable and viewpoint neutral. U.S.C.A. Const.Amend 1. [20] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Like a traditional public forum, a government's regulation of speech activity in a designated public forum is examined under strict scrutiny analysis under the First Amendment free speech clause; however, unlike a traditional public forum, the government is not required to indefinitely retain the open character of a designated public forum. U.S.C.A. Const.Amend 1. [21] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases Any government regulations of speech activity in a designated public forum that

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) are content-based must be narrowly drawn to achieve a compelling governmental interest under the First Amendment free speech clause; any government regulations that are content-neutral may restrict the time, place and manner of the protected speech, as long as the regulation is narrowly tailored to serve a significant governmental interest and leaves open ample alternative channels for communication. U.S.C.A. Const.Amend 1. [22] Federal Civil Procedure 2491.5 170Ak2491.5 Most Cited Cases Genuine issue of material fact existed as to whether purported content-neutral policy of town board of selectmen was narrowly tailored to serve significant governmental interest and left open ample alternative channels for communication, precluding summary judgment on civil rights claim of citizen under free speech clause of First Amendment who was prohibited from speaking at board meeting about alleged misconduct of town employee during work hours. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983 Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [23] Constitutional Law 90(3) 92k90(3) Most Cited Cases Under the First Amendment free speech clause, a restriction of speech is content-neutral if it is justified without reference to the content of the regulated speech. U.S.C.A. Const.Amend 1. [24] Constitutional Law 90(3) 92k90(3) Most Cited Cases The principal inquiry in determining content neutrality, in speech cases under the First Amendment generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys; regulation that serves purposes unrelated to the content of the expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. U.S.C.A. Const.Amend 1. [25] Constitutional Law 90(3) 92k90(3) Most Cited Cases To be narrowly tailored under the First Amendment free speech clause, the policy must promote a substantial government interest that would be achieved less effectively absent the regulation; analysis does not hinge on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted. U.S.C.A. Const.Amend 1. [26] Federal Civil Procedure 2491.5 170Ak2491.5 Most Cited Cases Genuine issue of material fact existed as to whether citizen was intentionally treated differently from other persons similarly situated, precluding summary judgment on civil rights claim of citizen who was prohibited from speaking at board meeting about alleged misconduct of town employee during work hours. U.S.C.A. Const.Amend 14; 42 U.S.C.A. § 1983; Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [27] Constitutional Law 91 92k91 Most Cited Cases Citizen's right to petition under First Amendment was not violated when first selectman of town board of selectmen prevented citizen from making statement at board meeting about alleged misconduct of town employee during work hours, where citizen sent letter to first selectman that set forth her concerns about employee's alleged misconduct, first selectman conducted investigation into employee's job performance in response to citizen's letter, and citizen presented information packet on employee to other selectmen at public meeting. U.S.C.A. Const.Amend 1. [27] Towns 26 381k26 Most Cited Cases Citizen's right to petition under First Amendment was not violated when first selectman of town board of selectmen prevented citizen from making statement at board meeting about alleged misconduct of town employee during work hours, where citizen sent letter to first selectman that set forth her concerns about employee's alleged misconduct, first selectman conducted investigation into employee's job performance in response to citizen's letter, and citizen presented information

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) packet on employee to other selectmen at public meeting. U.S.C.A. Const.Amend 1. [28] Constitutional Law 90.1(1) 92k90.1(1) Most Cited Cases Chilling effect cause of action under free speech clause of First Amendment did not arise from actions of first selectman of town board of selectmen in expressly preventing citizen from making statement at board meeting about alleged misconduct of town employee during work hours. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983. [28] Towns 26 381k26 Most Cited Cases Chilling effect cause of action under free speech clause of First Amendment did not arise from actions of first selectman of town board of selectmen in expressly preventing citizen from making statement at board meeting about alleged misconduct of town employee during work hours. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983. [29] Constitutional Law 82(3) 92k82(3) Most Cited Cases Constitutional violations may arise from the deterrent, or "chilling" effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. U.S.C.A. Const.Amend 1. [30] Constitutional Law 251.7 92k251.7 Most Cited Cases Conduct of first selectman of town board of selectmen in preventing citizen from making statement at board meeting about alleged misconduct of town employee during work hours did not satisfy "shock the conscience" standard, for purpose of citizen's civil rights substantive due process claim, although selectman was rude to citizen at meeting and he did not properly explain rationale supporting his decision to not let her speak about employee's alleged misconduct. U.S.C.A. Const.Amend 5, 14; 42 U.S.C.A. § 1983. [30] Towns 26 381k26 Most Cited Cases Conduct of first selectman of town board of selectmen in preventing citizen from making statement at board meeting about alleged misconduct of town employee during work hours did not satisfy "shock the conscience" standard, for purpose of citizen's civil rights substantive due process claim, although selectman was rude to citizen at meeting and he did not properly explain rationale supporting his decision to not let her speak about employee's alleged misconduct. U.S.C.A. Const.Amend 5, 14; 42 U.S.C.A. § 1983. [31] Constitutional Law 251.2 92k251.2 Most Cited Cases Substantive due process does not protect against government action that is incorrect or ill-advised; rather, the protections of substantive due process are available only against egregious conduct which goes beyond merely offending some fastidious squeamishness or private sentimentalism and can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience. U.S.C.A. Const.Amend 14. [32] Constitutional Law 251.7 92k251.7 Most Cited Cases First selectman of town board of selectman did not deprive citizen of constitutionally protected liberty interest at board meeting, for purpose of citizen's civil rights procedural due process claim, by preventing citizen from commenting on possible unethical conduct of high level town employee during unrestricted "public comment" portion of regularly scheduled meeting. U.S.C.A. Const.Amend 14; 42 U.S.C.A. § 1983. [32] Towns 26 381k26 Most Cited Cases First selectman of town board of selectman did not deprive citizen of constitutionally protected liberty interest at board meeting, for purpose of citizen's civil rights procedural due process claim, by preventing citizen from commenting on possible unethical conduct of high level town employee during unrestricted "public comment" portion of regularly scheduled meeting. U.S.C.A. Const.Amend 14; 42 U.S.C.A. § 1983. [33] Civil Rights 1324

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) 78k1324 Most Cited Cases Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment; therefore, to award damages under § 1983 for an alleged violation of procedural due process, a court must find that, as the result of conduct performed under color of state law, the plaintiff was deprived of life, liberty, or property without due process of law. U.S.C.A. Const.Amend 5, 14; 42 U.S.C.A. § 1983. [33] Constitutional Law 255(1) 92k255(1) Most Cited Cases [33] Constitutional Law 278(1) 92k278(1) Most Cited Cases Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment; therefore, to award damages under § 1983 for an alleged violation of procedural due process, a court must find that, as the result of conduct performed under color of state law, the plaintiff was deprived of life, liberty, or property without due process of law. U.S.C.A. Const.Amend 5, 14; 42 U.S.C.A. § 1983. [34] Federal Civil Procedure 2491.5 170Ak2491.5 Most Cited Cases Narrow issue of right of chair of public meeting to restrict speech of member of public at designated public forum regarding claimed ethical misconduct of public official subject to collective bargaining agreement could not be decided at summary judgment stage of proceedings, for purpose of claim of chair to qualified immunity to civil rights claims of member of public under free speech clause of First Amendment, since there was genuine issue of material fact concerning whether municipality had policy concerning restricting public comment claimed by chair and there otherwise was no controlling case law on issue. U.S.C.A. Const.Amend 1; 42 U.S.C.A. § 1983 Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. [35] Civil Rights 1376(1) 78k1376(1) Most Cited Cases As a general matter, the qualified immunity defense in a lawsuit under § 1983 is intended to strike a fair balance between the need to provide a realistic avenue for vindication of constitutional guarantees, and the need to protect public officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. 42 U.S.C.A. § 1983. [36] Civil Rights 1376(2) 78k1376(2) Most Cited Cases In a lawsuit under § 1983, the qualified immunity doctrine protects government officials from civil liability in the performance of discretionary functions as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. 42 U.S.C.A. § 1983. [37] Civil Rights 1376(4) 78k1376(4) Most Cited Cases In a lawsuit under § 1983, municipalities cannot avail themselves of qualified immunity. 42 U.S.C.A. § 1983. [38] Civil Rights 1376(2) 78k1376(2) Most Cited Cases Even if a clearly established statutory or constitutional right is violated, qualified immunity is nonetheless a defense in a lawsuit under § 1983 if the official's unlawful actions were objectively reasonable as measured by reference to clearly established law and the information the official possessed. 42 U.S.C.A. § 1983. Michael P. Farrell, West Haven, CT, for Plaintiff. James P. Mooney, Kelly & Mooney, Fairfield, CT, Raymond J. Kelly, James J. Walker, Diana, Conti & Tunila, Manchester, CT, for Defendant. RULING ON MOTION FOR SUMMARY JUDGMENT DRONEY, District J. *1 The plaintiff, Ann Piscottano, brought this action against the Town of Somers, Connecticut

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) ("Somers") and two former town employees, Gordon J. Mello and Conrad McIntire, Jr. [FN1] This case concerns a claim that Mello, as First Selectman of Somers, refused to allow Piscottano to address the Somers Board of Selectmen concerning the conduct of McIntire at a meeting of the Board of Selectmen on May 21, 2001. In her one-count complaint, Piscottano alleges that the defendants: (1) violated her right to free speech and to seek redress of grievances under the First Amendment of the United States Constitution; and (2) violated her right to due process of law under the Fifth Amendment of the United States Constitution. By way of an amended complaint, Piscottano also alleges that the defendants violated various similar rights provided to her by the Connecticut Constitution [FN2] and added claims for violations of due process and equal protection under the Fourteenth Amendment of the United States Constitution. [FN3] Pending is the defendants' motion for summary judgment. For the following reasons, that motion is granted in part and denied in part. I Background [FN4] Piscottano is a resident of Somers. Defendant Mello was the First Selectman for Somers, and, as such, presided over meetings of the three-member Board of Selectmen ("Board"). The other Selectmen were Richard Jackson and Phillips Roland. [FN5] Defendant McIntire was the Recreation Director for Somers. The position of Recreation Director was covered by a collective bargaining agreement between Somers and the town's employees. In 2001, Piscottano became concerned that McIntire was providing private tennis lessons and coaching during the time when she believed he should have been fulfilling his duties as Recreation Director. On May 10, 2001, Piscottano wrote a letter to Mello requesting that the topic of McIntire's alleged misconduct be placed on the agenda for the regularly scheduled May 21, 2001 Board meeting. In her letter to Mello, Piscottano also requested that the Board provide notice to McIntire of her proposed agenda item. In his affidavit submitted in support of his motion for summary judgment, Mello states that, in response to Piscottano's letter, he reviewed McIntire's timecards, spoke to various individuals and interviewed McIntire. Mello further states that his investigation cleared McIntire of any wrongdoing, and that he sent Piscottano a letter indicating that her request would not be added to the agenda for the May 21, 2001 Board meeting. [FN6] A copy of the written agenda for the May 21 Board meeting shows that Piscottano's proposed topic was not scheduled for discussion, but the agenda had two items denoted "audience comments." (Plaintiff's Local Rule 56(a)(2) statement, Ex. F). On May 21, 2001, Piscottano attended the meeting of the Board. During the portion of the meeting devoted to audience comments, Piscottano attempted to speak on McIntire's alleged misconduct. Before Piscottano could reach the substance of her proposed comments, however, Mello cut her off, stating: "There will be no discussion, no dialogue, no talking, no comments about a person who belongs to a union." (Trans. of 5/21/2001 meeting, Plaintiff's Local Rule 56(a)(2) statement, Ex. B). After engaging in an animated discussion with Roland and Jackson about adding Piscottano to the agenda, [FN7] Mello declared the meeting to be in recess. [FN8] In his deposition, Mello described his purpose for recessing the meeting as follows: *2 A member of the Board of Selectmen wished to amend the agenda and to add an executive session to the agenda [concerning Piscottano's complaint about McIntire], which is illegal. You can't do that. Plus, it would have been in violation of the union contract. My ending the meeting and the inability for Ms. Piscottano to not be able to continue was not because of me. It was because a member of the Board of Selectmen wanted to violate state laws and procedural law and violate the union contract. The meeting eventually resumed, and comments were heard from audience members on a variety of subjects, including comments from Piscottano concerning a topic unrelated to McIntire. At some

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) point, after Roland expressed his displeasure with Mello's refusal to add Piscottano's topic concerning McIntire to the agenda, Mello again recessed the meeting. When the meeting resumed, a follow-up discussion ensued. Roland made another motion to add that topic to the agenda, and Mello once again recessed the meeting. When the meeting resumed for the fourth time, Piscottano sought clarification from Mello concerning his refusal to add her to the agenda. Mello stated: We have to go into executive session. Here's the bottom line. This is a representative form of government. Legally we do not have to have any audience comments whatsoever at any of our meetings. The only time citizens are allowed to speak, legally, are at town meetings. So by allowing audience commentwe don't have a problem with that, but I'm not going to get into a controversial dissertation with people because someone had the mistaken belief that someone has done something wrong. Okay. I will say this, that the situation has been thoroughly investigated, okay, and there is no problem. There will be a problem, okay, if people persist down this path as we have had to pay for in the past. Okay. So I am trying to save this town unnecessary expenditures, okay. And if someone has, or believe that they havefound someone where there is some type of infraction or they have broken the law, then you by my guestyou go see the state's attorneys general and you proceed from there. It's as simple as that. Not satisfied with that explanation, Piscottano continued to ask for clarification of his decision. Eventually, Mello stated: "I am not pursuing it any further. I am the Chair of this meeting. I will tell you what's going to happen and what is not going to happen. Does anyone else have a question?" (Id., Ex. B.) For the third time, Roland made a motion to add Piscottano to the agenda, which was seconded by Jackson. Mello failed to act on Roland's motion, and recessed the meeting until 7:00 p.m. the following day. The record reveals that Piscottano never commented on McIntire's alleged misconduct at the May 21, 2001 Board meeting. [FN9] Piscottano did not make any additional attempts to add the subject of McIntire's alleged misconduct to the agenda for a future Board meeting. (Defendants' Rule 56(a)(1) statement, ¶ 56; Plaintiff's Rule 56(a)(2) statement, ¶ 56). *3 On June 20, 2001, McIntire brought an action against Piscottano in the Superior Court of Connecticut, concerning, in part, this sequence of events, setting forth state claims for: (1) defamation; (2) "false light"; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress. That action remains pending in the Superior Court. On July 11, 2001, Piscottano brought the instant action in this Court. Pending is the defendants' motion for summary judgment. II Summary Judgment Standard In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir.2000) . The burden of showing that no genuine factual dispute exists rests upon the moving party. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.2000) (citing Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994)). Once the moving party has met its burden, in order to defeat the motion the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 255, and present such evidence as would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000). In assessing the record, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Anderson, 477 U.S. at 255; Graham, 230 F.3d at 38. "This remedy that precludes a trial is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton, 202 F.3d at 134. "When reasonable persons, applying the proper legal standards, could differ in their responses to the question" raised on

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) the basis of the evidence presented, the question must be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000). III Discussion [1] Piscottano's claims are set forth pursuant to 42 U.S.C. § 1983, which provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). Thus, a plaintiff seeking to establish a claim under Section 1983 "must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). *4 Keeping those principles in mind, the Court turns to the specific § 1983 claims brought against each defendant. A) Defendant Town of Somers [2][3] To establish municipal liability for the allegedly unconstitutional actions of a municipal employee, the plaintiff must "plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citing Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Municipal liability cannot be premised on a theory of respondeat superior. Monell, 436 U.S. at 691. [4][5][6] Piscottano does not claim that Mello's actions at the Board of Selectmen meeting were taken pursuant to a local policy that was formally adopted or ratified, but that they were taken or caused by an official whose actions represent official policy--Mello. [FN10] "Where a plaintiff relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law." Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000). In other words, the plaintiff must establish that Mello had final policy making authority with respect to the particular action at issue-here, control of the agenda and proceedings of a Board meeting. Id. "Whether an official in question possessed final policy making authority in a particular area is a legal question to be determined by reference to state law, local law, and custom and usage having the force of law." Russo v. City of Hartford, 341 F.Supp.2d 85, 108 (D.Conn.2004). The Town claims in its motion for summary judgment that Piscottano has not set forth any evidence that Mello had final policy making authority on any matter relevant to this lawsuit, or, more specifically, that he had the authority to control the particular meeting of the Board. This claim is belied by the transcript submitted from the May 21, 2001 Board meeting, however, in which Mello told Piscottano that the other Board members, Roland and Jackson, "do not have the authority to add you to any agenda," and then told Roland that "you are not the Chair. I recognize motions." (Transcript 5/21/2001 p. 2). Then, after he once again denied Piscottano's request to address the Board on the topic of McIntire, Mello stated: "I am the Chair of this meeting. I will tell you what's going to happen and what's not going to happen." ( Id. p. 8). Finally, at his deposition on February 28, 2002, the following colloquy occurred between Piscottano's attorney and Mello: Q: "Whether or not an item was to be placed on the agenda for discussion, that's something within your area of responsibility to determine?" A: "That's correct." (Transcript, 2/28/2002, p. 20).

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) The Court finds that there is a genuine issue of material fact as to whether Mello had the authority to set the policy on who spoke at Board meetings, and on what topics. Jeffes, 208 F.3d at 57. Consequently, the motion for summary judgment is denied to the extent it seeks summary judgment on behalf of the Town of Somers. [FN11] B) Defendant McIntire *5 [7] "It is well settled in this [the Second] Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing cases) (quotation marks omitted); see also Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999) (" Section 1983 imposes liability only upon those who actually cause a deprivation of rights"). Reading the complaint in a light most favorable to Piscottano, it appears that there are three claims directed at McIntire. Each claim will be addressed in turn. [8] Paragraph nine of the complaint alleges that "[e]ach defendant had an affirmative duty to prevent other defendants from violating the constitutional right[s] of the plaintiff as herein described and each defendant failed in the exercise of that duty, such failure was intentional and in reckless disregard of the plaintiff's constitutional rights." As McIntire correctly contends, Piscottano has not created a genuine issue of material fact that, as the Recreation Director for the Town, he had a duty to prevent Mello and the Board from stopping Piscottano's participation at the May 21, 2001 Board meeting, [FN12] or that he was involved in Mello's decisions that evening preventing her from speaking. [FN13] Paragraph seventeen of the complaint alleges a deprivation of equal protection under the Fifth and Fourteenth Amendments [FN14] and paragraph eighteen alleges a due process claim, both concerning Mello's refusal to allow Piscottano to speak at the meeting of the Board of Selectmen. However, as with paragraph nine of the Complaint, there has been no evidence presented that McIntire had any personal involvement with Mello's decisions to deny Piscottano the ability to speak at the May 21, 2001 meeting. In her "Material Facts Plaintiff Contends There is a Genuine Issue to be Tried" [doc. # 31], Piscottano also maintains that McIntire's lawyer spoke at a Board of Selectmen meeting subsequent to the May 21, 2001 meeting and threatened a law suit against anyone "who questioned McIntire's actions." Apparently, Piscottano claims that McIntire thus "chilled" her First Amendment request to speak at that subsequent meeting. Piscottano also refers to this in her deposition. However, neither the original Complaint nor its Amendments of February 26, 2002 make any reference to this claimed incident. Moreover, the Complaint--even as amended--specifically refers to the May 21, 2001 Board meeting as the one which resulted in the deprivation of Piscottano's right to speak. Accordingly, events at subsequent Board meetings are not within the allegations of Piscottano's Complaints, even when liberally construed. Finally, Piscottano, in her deposition, mentioned that she believed that McIntire interfered with her right to speak at a Recreation Commission meeting which preceded the May 21, 2001 Board of Selectmen meeting. She claims that McIntire intimidated her before she spoke to the Recreation Commission about McIntire's conduct--the same topic she tried to address at the May 21, 2001 Selectmen meeting. However, in her Local Rule 56(c)(2) statement [doc. # 30], Piscottano concedes that she was allowed to speak at that meeting of the Recreation Commission concerning this topic [¶ 6], and she specifically denied in her 56(c)(2) statement that McIntire violated her First Amendment speech rights at the Recreation Commission meeting [¶ 38]. *6 Because Piscottano has not presented a genuine issue of material fact as to whether McIntire deprived her of her constitutional rights, either directly or indirectly, the motion for summary judgment is granted to the extent it seeks summary judgment on behalf of McIntire. [FN15] C) Defendant Mello Again, it "is well settled in [the Second] Circuit that personal involvement of defendants in alleged

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing cases) (quotation marks omitted); see also Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999) (" Section 1983 imposes liability only upon those who actually cause a deprivation of rights"). The plaintiff alleges that Mello personally deprived her of several of the rights provided to her by the constitutions of the United States and Connecticut. Each will be addressed in turn. 1) Free Speech [9] Piscottano first claims that Mello violated her right to free speech under the First Amendment of the United States Constitution by refusing to add her to the agenda for the May 21, 2001 Board meeting, and not allowing her to speak about McIntire. Piscottano claims that Mello's actions deprived her of exercising her "constitutionally protected rights to free speech" and "attempted to have a chilling effect on the free speech rights of the plaintiff and prevent her from airing her legitimate concerns over the conduct of the municipal government and its employees." Mello has moved for summary judgment on the First Amendment claim, arguing that Piscottano did not have a First Amendment right to speak at the meeting, and his refusal to add her to the agenda or allow her to speak on this topic was in accordance with a content-neutral town policy. [FN16] The claimed "policy" was a prohibition against public comment on a town employee who was covered by a collective bargaining agreement. Although not clearly articulated by Mello at the board meeting, it appears he was referring to the various rights of an employee covered by a collective bargaining agreement to challenge claims of employment misconduct before discipline could be applied to him. [10][11] "The question of whether certain speech enjoys a protected status under the First Amendment is one of law, not fact." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999). The First Amendment provides in part that "Congress shall make no law ... abridging the freedom of speech ...." U.S. Const. amend. I. Freedom of speech is not absolute, however: A violation occurs only when the restricted speech is constitutionally protected and when the government's justification for the restriction is insufficient. See Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The Supreme Court has articulated a three-step, forum-based test for determining whether a state actor violated a plaintiff's First Amendment right to free speech, under which a court must determine: (1) whether plaintiff's speech is protected by the First Amendment; (2) the nature of the forum: public, designated or limited public, or nonpublic; and (3) whether the defendant's justifications for limiting the plaintiff's speech satisfy the requisite standard. Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). [FN17] Each element will be discussed in turn. i) Protected Speech *7 [12] The First Amendment's protection of free speech, made applicable to the states through the Fourteenth Amendment, extends to a broad range of speech and expressive conduct. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Speech on public issues and political matters lies at the heart of protected speech. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 422, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position ....") (Stevens, White and Blackmun, JJ. concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ("debate on public issues should be uninhibited, robust, and wide-open"); Morris, 196 F.3d at 111 ("As a general rule, speech on any matter of political, social, or other concern to the community is protected by the First Amendment") (internal quotation marks omitted). [13] Mello contends that this case does not involve an issue of public concern, and that the topic of

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) McIntire's job performance was "primarily personal" to Piscottano. In her opposition memorandum, Piscottano maintains that McIntire's alleged misconduct is a matter of public interest because he was paid by the town, had a set work schedule, and provided important services to the town. The Court agrees, and finds that her proposed speech involved a topic of public concern. See, e.g., Mesa v. White, 197 F.3d 1041 (10th Cir.1999) ("The performance of public employees and the handling of employment-related litigation can be important matters of public concern"). ii) Nature of the Forum [14][15] Next, the Court must classify the nature of the Board meeting. Though the Board's meetings are held on public property, "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981). Rather, " 'the state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." ' Id. (quoting Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976)). The extent to which government may regulate expressive activity on public property depends upon the "character" of the public property in question. See Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). [16][17][18] The Supreme Court has recognized three types of forums that may exist on government property: traditional public forums, designated public forums, and nonpublic forums. Traditional public forums are places such as streets and parks that "by long tradition ... have been devoted to assembly and debate." Id. at 45. Designated public forums are those that the government opens "for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. at 802. The nonpublic forum is public property which the government has not opened to public communication either by tradition or by designation. Perry Education Ass'n., 460 U.S. at 46. *8 [19] Courts have held that a designated public forum exists when a governmental body affords the public an opportunity to address the body at its meeting. See, e.g., Mesa v. White, 197 F.3d 1041 (10th Cir.1999) (county commission meeting was a designated public forum); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir.1990) (public allowed to speak during Council's discussion of agenda items) (citing in part City of Madison, Joint School Dist. No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167, 175, 97 S.Ct. 421, 50 L.Ed.2d 376, (1976)); Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir.1989) (members of public were allowed to speak during Commission's discussion of an agenda item if they previously submitted a written request to speak on this item); Zapach v. Dismuke, 134 F.Supp.2d 682 (E.D.Pa.2001) (Zoning Hearing Board meeting was designated public forum for public comment on proposal for motor home park); Scroggins v. City of Topeka, 2 F.Supp.2d 1362, 1370 (D.Kan.1998) (characterizing the Council meeting as a designated public forum); Pesek v. City of Brunswick, 794 F.Supp. 768, 782 (N.D.Ohio 1992) (council opened meeting to public and allowed public to speak on items on the agenda). Here, the parties seem to agree that the Board meeting was a designated public forum. [FN18] Based on the parties' apparent agreement, and these decisions, the Court finds that the Board meeting was a designated public forum. [FN19] iii) Standards for Regulation [20][21] Generally speaking, the nature of the forum in which the speech is restricted dictates the level of scrutiny required. See United States v. Kokinda, 497 U.S. 720, 726-27, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). Like a traditional public forum, a government's regulation of speech activity in a designated public forum is examined under strict scrutiny analysis. Id. Unlike a traditional public forum, however, the government "is not required to indefinitely retain the open character" of a designated public forum. Perry Education Ass'n.,

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) 460 U.S. at 46. As long as the property is designated for communicative purposes, however, the government is "bound by the same standards as apply in a traditional public forum." Id. The appropriate standard to apply depends on whether the government regulation was content-based or content-neutral. Any government regulations that are content-based must be narrowly drawn to achieve a compelling governmental interest. Id; Make the Road by Walking, Inc., 378 F.3d at 142. Any government regulations that are content-neutral may restrict the time, place and manner of the protected speech, as long as the regulation is "narrowly tailored to serve a significant governmental interest" and "leave[s] open ample alternative channels for communication." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). [22][23][24] Therefore, the Court must determine whether the decision to prevent Piscottano from commenting on McIntire's alleged misconduct was based on a content-based or a content-neutral restriction. A restriction of speech is content-neutral if it is "justified without reference to the content of the regulated speech." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). "The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. at 791. "A regulation that serves purposes unrelated to the content of the expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. *9 Piscottano has not addressed the appropriate legal analysis for this issue in her memorandum in opposition to the motion for summary judgment. Mello contends that the Board's restriction of Piscottano's proposed comments on McIntire's alleged conflict of interest was based on a policy that "is on its face content-neutral ." (Defendants' Brief p. 35) Further, he contends that "the Town of Somers restricted public comments to subject matters on the agenda in order to avoid discussion of matters which might invoke the protections of a collective bargaining agreement and which would also require prior notice to those affected and to comply with the general requirements of the Connecticut Freedom of Information notice requirements." The only evidence submitted in support of that argument, however, is the transcript of Mello's deposition, in which he states: A member of the Board of Selectmen wished to amend the agenda and to add an executive session to the agenda, which is illegal. You can't do that. Plus, it would have been in violation of the union contract. My ending the meeting and the inability for Ms. Piscottano to not be able to continue was not because of me. It was because a member of the Board of Selectmen wanted to violate state laws and procedural law and violate the union contract. Other than this self-serving testimony from Mello, the defendants have not provided this Court with any evidence of the "policy" of the town, or any state law or procedural law, that would demonstrate that Mello's conduct was pursuant to a policy actually held or adopted by the Board. Compare Scroggins, 2 F.Supp.2d at 1370 (analyzing the Topeka City Council's Code, § A2-25(b), and finding that "the Council's Rule 8.3 prohibiting 'personal, rude or slanderous remarks' is content-neutral"). Moreover, at his deposition, Mello had the following exchange with Piscottano's attorney: Q: "If Ms. Piscottano was to come to a public speaking session [of the Board] and indicate she wanted to speak, would she be allowed to speak on any subject?" A: "Yes." Q: And would that have been the policy that you would have entertained while you were First Selectman?" A: "I encouraged it. I afforded citizens two opportunities to speak at Board of Selectmen's meetings. Prior to my being First Selectman, it was only offered once." (Trans.Feb. 28, 2002, ¶ .20-21). This testimony contradicts Mello's previous statement that Piscottano could be restricted from speaking on certain topics at Board meetings.

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) In her affidavit submitted in support of her memorandum in opposition to the motion for summary judgment, Piscottano claims that Mello referred to her allegations concerning McIntire's conduct as "political bullshit," which she should take "elsewhere." These comments, if true, could support a finding that the "policy" cited by Mello at the May 21, 2001 Board meeting was based on the proposed content of Piscottano's comments and perhaps not related to Mello's articulated justification for preventing her from speaking. *10 Finally, the Court notes that although Mello claims that he was concerned about discussing an employment matter without the subject employee having had prior notice, he concedes that Piscottano had specifically requested in her May 10, 2001 letter that McIntire be given notice that she wished to discuss his duties as Recreation Director at the May 21, 2001 Board meeting. Consequently, at this time, the Court is unable to discern whether Mello was acting according to a content-based or a content-neutral restriction. [25] In sum, there are genuine issues of material fact at least as to whether Mello was acting in accordance with an established town policy in prohibiting Piscottano from speaking, and whether his decisions were content-neutral. Even if Mello is correct, however, and he was acting in accordance with a content-neutral Town policy, the Court finds that there is also a genuine issue of material fact as to whether that policy is "narrowly tailored to serve a significant governmental interest" and "leave[s] open ample alternative channels for communication." Rock Against Racism, 491 U.S. at 791. The Board may have a significant interest in regulating the items to be addressed in its meetings, [FN20] but there is a genuine issue of material fact as to whether the Board's policy was narrowly tailored to that significant interest. To be narrowly tailored the policy must "promote a substantial government interest that would be achieved less effectively absent the regulation." ' Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). The analysis does not hinge on a "judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted." Rock Against Racism, 109 U.S. at 2758. Finally, Piscottano states in her affidavit that, although she knew the Board may not be able to speak about an employment matter governed by a collective bargaining agreement, she thought that she could still speak on the topic to the Board without a dialogue. In addition, she states that she had been able to speak previously before the Town's Recreation Commission on the same issue concerning McIntire. Moreover, Mello's deposition testimony reveals that, after the May 21, 2001 Board meeting, the Town's attorney indicated that in the future the Board should allow a resident to speak on such a matter, and merely refrain from replying to such comments. As mentioned, even if the Town does have a policy which prevents citizens from addressing "union matters" at a Board meeting, there is a genuine issue of material fact as to whether that policy is narrowly tailored to meet a significant governmental interest. Finally, there is a substantial question whether the "compelling state interest" test justifying Mello's actions were met here. Although the chair of a public meeting is permitted to ensure that comments be relevant to the topic at hand, see, e.g., Zapach v. Dismuke, 134 F.Supp.2d 682, and there are circumstances where privacy interests may require not identifying particular persons subject to the public comment, see, e.g., Schuloff v. Murphy, 159 F.3d 1348 (2d Cir.1998), vague references to a collective bargaining agreement or a state freedom of information law likely would not justify stopping a member of the public from commenting on possible unethical conduct of a high level town employee during the unrestricted "public comment" portion of a regularly scheduled meeting of a town's board of selectmen. Accordingly, to the extent the motion for summary judgment is directed at Piscottano's claim that her right to free speech was violated, it is denied. 2) Equal Protection

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) *11 [26] The complaint alleges that Mello "deprived the plaintiff of the equal protection of the law as provided by the Fifth Amendment to the United States Constitution by subjecting the plaintiff to treatment different from that which would have [been] afforded other people who have had an opportunity to speak." Piscottano claims that she was deprived of equal protection as a "class of one" under the U.S. Supreme Court decision in Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Because Piscottano has created a genuine issue of material fact as to whether "she has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment," Id. at 564, summary judgment is also denied on that aspect of her claim. 3) The Right to Petition [27] Piscottano next alleges that Mello's actions deprived her of her right to petition for a redress of grievances in violation of her rights secured by the First and the Fourteenth Amendments to the United States Constitution. [FN21] This claim appears to also center around Mello's failure to add her to the agenda for the May 21, 2001 Board meeting, and his subsequent failure to allow her to speak at that meeting. The defendants contend that Piscottano has misconstrued her right to petition the government as being a right to speak at the Board meeting. The First Amendment protects, inter alia, the right "to petition the Government for a redress of grievances." The Second Circuit has instructed that "[t]he right to petition government for redress of grievances--in both judicial and administrative forums--is 'among the most precious of the liberties safeguarded by the Bill of Rights ." ' Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996) (quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967)). However, courts have held: The "right to petition government afforded by the First Amendment does not include the absolute right to speak in person to officials. Where written communications are considered by government officials, denial of a hearing does not infringe upon the right to petition. The right to petition government does not create in the government a corresponding duty to act." Cronin v. Town of Amesbury, 895 F.Supp. 375, 390 (D.Mass.1995) (quoting Stengel v. City of Columbus, Ohio, 737 F.Supp. 1457, 1459 (S.D.Ohio 1988)), aff'd, 81 F.3d 257 (1st Cir.1996). "The rationale behind this rule is unquestionably sound." Scroggins, 2 F.Supp.2d at 1375. For example, in Green v. City of Moberly, 576 F.Supp. 540, 542 (E.D.Mo.1983), the court found that the plaintiff's "letter of December 26, 1982 presented plaintiff's 'grievances' and this 'petition' was received and considered by defendants. What plaintiff was deprived of, at most, was simply the opportunity to orally address the City Council while it was in session." (emphasis in original). Similarly, Piscottano's right to petition the government was satisfied in the instant case. On May 10, 2001, Piscottano sent a letter to Mello that set forth her concerns about McIntire's alleged misconduct. In his affidavit, Mello states that he conducted an investigation into McIntire's job performance in response to Piscottano's letter. Moreover, Piscottano was allowed to present her information packet on McIntire to Roland and Jackson at the May 21 meeting. Thus, although Piscottano may not be satisfied with Mello's response to her complaint about McIntire, Mello cannot be found to have violated her right to petition under the First Amendment based on the undisputed facts. 4) "Chilling Effect" *12 [28] Piscottano also alleges in her amended complaint that Mello's actions "had a chilling effect on the free speech rights of the plaintiff by allowing others to speak at a public forum, but not the plaintiff." [29] "[C]onstitutional violations may arise from the deterrent, or 'chilling' effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights." Laird v. Tatum, 408 U.S. 1, 12-13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) (emphasis added); see also Hankard v. Town of Avon, 126 F.3d 418, 423 (2d

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--- F.Supp.2d ----, 2005 WL 2709352 (D.Conn.) (Cite as: 2005 WL 2709352 (D.Conn.)) Cir.1997) (stating that "governmental action which falls short of a direct prohibition on the free exercise of speech may be subject to constitutional challenge"). Here, however, Piscottano has not alleged that Mello took some action, which, by its effect, chilled her First Amendment rights; rather she has alleged that Mello directly prohibited her from exercising her First Amendment right to speak at the public meeting. Compare Levin v. Harleston, 966 F.2d 85, 89-90 (2d Cir.1992) (holding that the university's implicit threats of future censure against faculty sufficient to violate First Amendment rights). Consequently, Mello is granted summary judgment on Piscottano's "chilling effect" claim. 5) Due Process [30] Piscottano alleges that Mello violated her right to substantive and procedural due process under the Fifth and Fourteenth Amendments of the United States Constitution. Mello contends that Piscottano has not properly alleged facts or presented evidence to support a due process claim. The Court will analyze Piscottano's substantive and procedural claims separately. i) Substantive Due Process [31] Substantive due process does not protect "against government action that is 'incorrect or ill-advised." ' Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) (quoting Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)). Rather, "the protections of substantive due process are available only against egregious conduct which goes beyond merely 'offending some fastidious squeamishness or private sentimentalism' and can fairly be viewed as so 'brutal' and 'offensive to human dignity' as to shock the conscience." Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 & n. 6 (2d Cir.1973) (Friendly, J.)); see also County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Thus, the acts must be such as "to offend even hardened sensibilities." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Even drawing all inferences in Piscottano's favor, the Court concludes that the acts alleged by her do not satisfy this high standard. Although a reasonable jury could find that Mello prevented Piscottano from speaking, was rude to her at the meeting, and failed to properly explain the rationale supporting his decision not to let her speak about McIntire's alleged misconduct, no reasonable jury could find that those acts meet the "shock the conscience" standard. Consequently, Mello is entitled to summary judgment on Piscottano's substantive due process claim. See, e.g., Delrio v. Univ. of Connecticut Health Care, 292 F.Supp.2d 412, 424-25 (D.Conn.2003) (granting summary judgment when pla