Judge: Zimmerlink lawsuit should be dismissed
A federal judge ruled Monday that a lawsuit filed by Fayette County’s Republican commissioner against her two Democrat colleagues should be dismissed as it stands, but gave her and her attorney additional time to file a more specific complaint. Earlier this year, Commissioner Angela M. Zimmerlink filed suit against Commissioners Vincent Zapotosky and Vincent A. Vicites. In the filing, she claimed that the two majority commissioners cut her out of county business, stifled her right to free speech and retaliated against her when she criticized their way of doing business.
U.S. District Judge David Stewart Cercone found that “the allegations of the complaint are cast in a jumbled manner, create much ambiguity and fail to establish in any convincing manner that a + claim for First Amendment retaliation has been stated.”
Cercone wrote, “The remedy for failure to state a claim is dismissal.”
However, he noted, the complaint would be dismissed “without prejudice,” meaning Zimmerlink’s attorney will have an opportunity to correct the “deficiencies” in the complaint and file a more detailed one. That is in line with what a magistrate judge recommended in August.
Cercone indicated that in the lawsuit, Zimmerlink seemed to suggest that she objected to certain issues, which drew negative public attention toward Zapotosky and Vicites. The suit further alleged that the attention caused her colleagues to retaliate by further failing to consider her views and conducting county business in a way that cut her out of it.
The reasons for a First Amendment claim are based on “fuzzy logic at best,” Cercone wrote.
Cercone also noted that Zimmerlink did not sue the county, and instead sued Zapotosky and Vicites in their private and official capacities.
“She does not have an employment relationship with the defendants. They do establish official county policy when they act as a quorum, which appears to be at the base of most of the acts identified in the complaint. Given these circumstances, it is entirely unclear whether plaintiff is seeking to pursue a claim that is grounded in her capacity as a public employee or as private citizen,” the judge wrote.
If she is suing based on her status as a public employee, Cercone indicated that it is “unclear whether she spoke in a capacity that garners First Amendment protection.”
He did not immediately set a date by which a more detailed complaint would have to be filed.