Birmingham v. OgdenBirmingham v. Ogden
- Reporters:
- , ,
- Before:
- McMahon
MEMORANDUM DECISION DENYING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S DUE PROCESS .CLAIM, GRANTING DEFENDANT CITY’S MONELL MOTION, DENYING DEFENDANT OGDEN’S REQUEST FOR QUALIFIED IMMUNITY, DECLINING TO EXERCISE JURISDICTION OVER PLAINTIFF’S CLAIM PURSUANT TO ARTICLE 78 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES, AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S REMAINING CLAIMS
McMAHON, District Judge.
In
Moccio v. Office of Court Administration,
95 F.3d 195 (2d Cir.1996), the United States Court of Appeals for the Second Circuit applied the so-called Rook-
In this action, plaintiff William Birmingham is similarly aggrieved. He was dismissed from his position with the City of Middletown police force after a hearing conducted by the Middletown Board of Police Commissioners. At that proceeding, he was represented by counsel, who called and cross-examined witnesses. Like Moccio, Birmingham does not challenge the constitutionality of either law or regulations that were applied to him, but rather contends that those precepts were erroneously applied to his specific set of facts, by persons he claims were biased and acting out of a desire to retaliate against him for engaging in constitutionally protected speech. Like Moccio, Birmingham contends (among other things) that his dismissal violated Fourteenth Amendment due process guarantees, because the termination hearing was conducted in an arbitrary and capricious fashion. Also like Moccio, Birmingham alleges that he was selectively sanctioned by his superiors in violation of the Equal Protection Clause, in that other members of the Middletown police force were not disciplined or terminated for misconduct similar to his. Birmingham claims, additionally, that disciplinary charges were brought against him in retaliation for his exercise of his First Amendment rights to speak about matters concerning the operation of the Middletown police department.
The defendants have moved for summary judgment dismissing the instant complaint on a variety of grounds. Foremost among them is that this Court lacks subject matter jurisdiction under Rooker-Feldman. Defendants acknowledge that no State court judgment underlies this action. Nonetheless, they contend that Rooker-Feldman can and should be applied to the quasi-judicial State administrative proceeding, because that proceeding has collateral estoppel effects under New York law. The defendants claim that this conclusion is compelled by Moccio, where the plaintiff was (in essence) estopped from litigating claims in federal court that he had a full and fair opportunity to raise in a state court proceeding. In addition, defendants urge dismissal because plaintiff has failed to raise disputed issues of material fact as to each of his claims.
As I am required to resolve a challenge to this Court’s subject matter jurisdiction prior to considering any other question, see Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir.1990) (stating that district courts should address a Rule 12(b)(1) challenge first, since if the court must dismiss the complaint for lack of subject matter jurisdiction, the accompanying objections become moot and need not be determined); Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) (noting that before addressing the merits of any claim, a federal court must examine the basis of federal jurisdiction), I begin by addressing defendant’s Rooker-Feldman argument. While I find that I am not compelled by Rooker-Feldman to abstain from hearing plaintiffs claims, I conclude that I must dismiss portions of the complaint on other grounds.
Background Facts
The following facts, which are viewed most favorably to plaintiff, are deemed accepted for purposes of this motion only.
William Birmingham was a lieutenant on the City of Middletown police force. He was, by the admission of his Police Chief, defendant Ogden, an excellent officer during his tenure with the department. As a tenured municipal employee, Birmingham had a property interest in his position.
During his employment, at times and in places that are not specified in the complaint or in any evidentiary form, plaintiff expressed to Ogden, his friend, former partner and captain, various opinions concerning the running of the police department, including his opinion that the workings of the department were permeated with local politics and that the Police Chief was too closely tied to the Mayor. Plaintiff was also extremely active in the Police Benevolent’s Association (“PBA”), and he criticized the leadership of the police department for not encouraging union activity among the rank and file. It would appear from the papers before me that Birmingham did not make these comments in any public forum, but instead privately, to Ogden or other senior officers of the department. It would be fair to infer that plaintiff developed something of a reputation as a troublemaker.
Plaintiff contends that his outspokenness on these matters, which he characterizes as matters of public concern, led his former friend Ogden to express an interest in “shutting his mouth.” To accomplish this, plaintiff alleges that Ogden and two
Over a year after this incident, but prior to dismissal of the criminal complaint, Police Chief Ogden brought plaintiff up on disciplinary charges based on the alleged domestic abuse. Plaintiff appeared before the Board of Police Commissioners, in May 1997, and was adjudged guilty of misconduct after an Article 75 disciplinary hearing that plaintiff contends was rigged against him and conducted in violation of his rights and the rules governing such proceedings. Among other things, plaintiff alleges that a series of ex parte contacts between Chief Ogden and certain members of the Board of Commissioners, and between Board members and the prosecutor, should have led three of the Board members (the three who voted against him) to recuse themselves. He alleges that the Commissioners made their decision based on evidence they learned outside the hearing, and contends that the meeting at which the final vote was taken was deliberately scheduled for a time when his two supporters among the five Board members could not be present — although plaintiff does not explain how their presence would have helped his cause, since he believes that three of the five Board members were determined to discharge him from the outset of the proceeding. Those three did indeed vote to discharge Birmingham, and plaintiff was dismissed from the police force effective July 18, 1997.
Plaintiff had two avenues of appeal under state law from the adverse administrative determination. He could have appealed to the Civil Service Commission, pursuant to New York Civil Service Law § 76(1). Or, he could have commenced an Article 78 proceeding in the Supreme Court, Orange County, to determine whether the decision of the Board members was supported by substantial evidence. 3 He did neither. Instead, Birmingham retained counsel and filed the instant action in federal court.
Plaintiff brings several claims, pursuant to
As his third claim, plaintiff alleges a violation of his due process rights under the Fourteenth Amendment. Complaint ¶ 32. Plaintiff alleges that his termination was unlawful because the Board was without sufficient evidence to remove him from the force and because it made the decision to remove him based on information learned outside the record at the hearing. Plaintiff claims that certain pobce officers, including defendant Ogden, perjured themselves at the disciplinary hearing, and that Ogden had several ex parte discussions with the Mayor (which the Mayor then relayed to his “cronies” on the Board) about Birmingham and the disciphnary charges against him. Complaint at ¶ 18; Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs Brief’), at 20. Plaintiff also abeges that defendant Ogden and the Mayor arranged, after the hearing, to have the hearing stenographic record altered so as to protect themselves from perjury charges. Complaint ¶ 18. Plaintiff further complains that the process used to render a determination in his case violated lawful procedures. Plaintiffs Brief at 32. Specifically, plaintiffs complaint states that he was “pre-judged by a three-to-two split ... to be guilty,” and that Chief Ogden and the Mayor deliberately stalled the final vote on dismissal until a time when the two members of the Commission who would not vote to terminate plaintiff were not available. Complaint ¶¶ 19, 20. The three members of the Board who were present at the meeting then “convicted Plaintiff and summarily terminated his employment.” Complaint ¶ 21.
Plaintiffs fourth claim is that the defendants’ conduct violated his right to Equal Protection under the Fourteenth Amendment because he was subjected to a disciplinary hearing and terminated from employment whbe other officers on the force who had engaged in misconduct were not required to undergo a hearing or terminated for that misconduct. Plaintiff abeges that other Middletown pobce officers have gone undisciplined for acts of misconduct that have brought discredit to the pobce department, such as harassment or drunkenness. Plaintiffs Brief at 37-38. Plaintiff also notes that he is aware that at least one other pobce officer was disciplined after an accusation by his wife that he assaulted her, but that officer was not put through a disciplinary hearing and was suspended for two weeks rather than terminated. Plaintiffs Brief at 37. Plaintiff, in fact, alleges that no other disciplinary hearings pursuant to Section 75 of the New York Civil Service Law have been held against members of the Middletown Pobce Department since 1986, and that only one other hearing was held by the Board of Pobce Commissioners since approximately 1975. Plaintiffs Brief at 39.
Discussion
1. The Rooker-Feldman Issue
The essence of the Rooker-Feld-man doctrine is that the federal district courts have no authority to review final judgments of state courts in judicial proceedings.
Narey v. Dean,
32 F.3d 1521, 1524 (11th Cir.1994). Appellate review of state court judgments is available only in the Supreme Court.
Applying that logic to the facts in the
Moccio
case, the Second Circuit concluded as follows: a plaintiff who had availed himself of a state forum (i.e., an Article 78 proceeding), where constitutional challenges to the fact-specific application of a state law or regulation to an aggrieved litigant could be considered, could not fail to litigate those constitutional issues in the state forum and then expect to maintain a lawsuit for damages in a federal district court. The Court then found that issues essential to both Moccio’s causes of action under
Here, of course, plaintiff has sidestepped state court review of the administrative determination altogether. Without availing himself of either of the two forms of state court appeal that lay from the ruling against him (an Article 78 or an appeal to the Civil Service Commission), he has commenced this federal court action for damages. Plaintiff maintains that he is not compelled to take advantage of available State law remedies and can come directly to federal court with both his constitutional claims and his request that the determination of the Police Commissioners—and his dismissal—be declared null and void.
Not so, say defendants. They point to the
Moccio
Court’s application of preclusion law to determine whether Rooker-Feldman must be invoked. They argue, correctly, that the disciplinary proceeding that ended in plaintiffs termination was judicial in nature—i.e., it was a proceeding held to find facts and apply existing law and regulation to them, not to legislate new law and regulations. They note that Birmingham had the opportunity to be represented at the proceeding, to call witnesses and to cross examine those called
Defendants are wrong. While the New York courts have held that quasi-judicial administrative findings have collateral es-toppel effect in state courts (and in fact the usual rule is that the same amount of collateral estoppel effect applies in the federal courts as would in the state courts),
see
In Narey v. Dean, the Eleventh Circuit held that the Rooker-Feldman doctrine did not apply to an unreviewed decision of the Georgia State Personnel Board. Plaintiff Narey was demoted from his position as director of the Northwest Georgia Community Mental Health Center after an audit and investigation suggested that he had, among other things, improperly handled client funds and misused state grant monies. Narey appealed his demotion to the State Personnel Board. After a seven-day, quasi-judicial hearing on the matter, a hearing officer upheld the demotion decision. Narey subsequently appealed to the full Board, which affirmed. 5
Narey then brought a
On appeal, the defendants argued that the decision of the State Personnel Board upholding Narey’s demotion barred the district court from hearing Narey’s case under Rooker-Feldman. The Eleventh Circuit rejected this contention, stating, “If the decision of a state agency has been upheld by a state court, then the Rooker-Feldman doctrine applies, because a challenge to the agency’s decision necessarily involves a challenge to the judgment of the state court. The ‘effect of unreviewed state administrative decisions,’ however, is a matter of res judicata, and is governed by the Supreme Court’s decision in
University of Tennessee v. Elliott,
478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).”
Narey,
32 F.3d at 1525 (citations omitted).
Elliott
had held that, if a state agency acting in a judicial capacity resolved disputed issues of fact that were properly before it, at a hearing where the parties had an adequate opportunity to litigate disputed issues, then its factual findings should be given preclusive effect in a subsequent
In
Scott v. Flowers,
the Fifth Circuit took jurisdiction of a
The
Scott
court relied not on
Elliott,
but on another Supreme Court decision,
Patsy v. Board of Regents,
457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). In
Patsy,
the Supreme Court held that
In so holding, the Fifth Circuit distinguished its own decision in Thomas v. Radish, where it had applied Rooker-Feldman to bar an appeal in federal court from a determination of the Texas Board of Law Examiners. Thomas held that Rooker-Feldman does require a federal court to abstain from hearing claims inextricably intertwined with a judgment from a judicial type hearing if the administrative body was controlled by, or was an agent of, the state court system. Thomas v. Kadish, 748 F.2d 276, 278-80 (5th Cir.1984). For example, in Thomas, the administrative body, the Texas Board of Law Examiners, was found to be “essentially the agent of the Texas Supreme Court, which had promulgated the rules governing the Board’s activities and appointed the Board’s nine members.” Scott, 910 F.2d at 207. In Scott, by contrast, the administrative body was the Texas Commission on Judicial Conduct, which could not be regarded as an agent of the state court system because the Commission was constitutionally established and endowed with a measure of independence from the courts. Id. While the difference may seem insignificant, Scott illustrates the principle that only where the administrative body issuing the judgment is an agent of the state court system can it be said that the federal courts aj*e sitting in review of a state court judgment, thereby triggering Rooker-Feldman’s comity and federalism concerns.
To determine whether Rooker-Feldman applied, the
Thomas
and
Scott
courts examined both the membership of the particular administrative body as well as its functions, to determine whether it was independent from or controlled by the state court system. It is beyond dispute that the Middletown Board of Police Commis
The Seventh Circuit, like the Fifth Circuit, relied on the non-exhaustion rule of
Patsy
to deny a Rooker-Feldman challenge to a
Under
Patsy
and its progeny, Birmingham cannot be compelled to seek state court review of the Board of Police Commissioner’s determination before challenging that determination on constitutional grounds pursuant to
If I were to read Moccio as defendants urge, I would, in effect, be ruling that the Second Circuit overruled Patsy and Elliot. Obviously, the Second Circuit did nothing of the sort. This court will not do so either. Defendants assert, alternatively, that Birmingham’s claims simply do not raise a federal issue and are masquerading as federal claims when they ultimately seek nothing more than that the defendants be forced to give plaintiff his job back. 10 I cannot agree with the defendants, and must give this plaintiffs qlaims the same consideration as I am bound to give any claims over which I have jurisdiction. Plaintiffs claims as pleaded must be tested on their merits.
Based on the reasoning of the Fifth, Seventh and Eleventh Circuits, which I find persuasive in light of the rulings of the United States Supreme Court, I am constrained to conclude that Rooker-Feld-man does not bar federal court review of the quasi-judicial administrative determination of the Middletown Board of Police Commissioners. Review of administrative determinations will not ordinarily offend the principles of comity and finality that underlie the doctrine, 11 and the jurisdictional bar applicable when a state court judgment is involved is therefore not warranted.
Of course, the Supreme Court’s determination that principles of collateral estoppel apply when a state agency acting in a judicial capacity resolves disputed issues of fact properly before it after giving the parties an adequate opportunity to litigate,
Elliott,
478 U.S. at 796, 106 S.Ct. 3220, applies in this
Summary Judgment Standard
Under
2a. Plaintiffs First Cause of Action
As his first cause of action, plaintiff contends that he was discharged in retaliation for exercising his First Amendment right to speak out (albeit only in private) on matters of public concern dealing with the administration of the Police Department in Middletown—in particular, its excessive entanglement with local politicians and its lack of commitment to a strong police union. Defendants’ motion for summary judgment as to this claim is denied.
Public employees have a right under the First Amendment to speak on matters of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.1996). To maintain an action for First Amendment retaliation, a plaintiff must show: (1) that his speech can fairly be characterized as constituting a matter of public concern, and (2) that the speech was at least a substantial and motivating factor in the employer’s adverse employment action. See Szoke v. Carter, 974 F.Supp. 360, 367 (S.D.N.Y.1997) (citing Connick, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Sheppard, 94 F.3d at 827; Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir.1993)).
Defendants contend that they are entitled to summary judgment on this claim because (1) plaintiffs speech was not on any matter of public concern; (2) even if it was on matters of public concern, plaintiff has not demonstrated any nexus between his speech and the commencement of disciplinary proceedings against him. I turn first to defendant’s contention that plaintiffs speech, which concerned matters of departmental administration, did not touch on issues of public concern. This is purely a question of law, which the Court must decide. Connick, 461 U.S. 138, 148 fn. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
Speech will fairly be characterized as touching on a matter of public concern if it “relate[s] to any matter of political, social, or other concern to the community.”
Connick,
461 U.S. at 146, 103 S.Ct. 1684;
Sheppard v. Beerman,
18 F.3d 147, 151 (2d Cir.1994). Issues that have been held to touch upon matters of public concern protected by the First Amendment include public institutional policies, the integrity of governmental entities, breaches of the public trust, and the expenditure of public funds.
Szoke,
974 F.Supp. at 367. Defendants correctly note that, when a public employee speaks “as an employee upon matters only of personal interest ... [,] federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”
Connick,
461 U.S. at 147, 103 S.Ct. 1684;
Ezekwo v. New York City Health and Hospitals Corp.,
940 F.2d 775, 781 (2d Cir.1991). However, I must disagree with defendants’ assessment that the substance of the speech at issue was only of personal interest to plaintiff and not of public concern. Allegations by a police lieutenant that his department’s administration is too political, and not sufficiently independent of local political processes, are similar in nature to types of speech that have been held to be protected.
See, e.g., Rankin v. McPherson,
483 U.S. 378, 384-85, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (statements by employee of prosecutor’s office about federal policies); Ber
nheim v. Litt,
79 F.3d 318, 325 (2d Cir.1996) (statements by school teacher regarding quality of education provided by public schools);
Bieluch v. Sullivan,
999 F.2d 666, 671 (2d Cir.1993) (police officer’s public views about taxes, school
It appears to be undisputed that plaintiff never uttered his allegedly offending opinions publicly. He expressed them to the Chief privately, or in conversations with other members of the police department. Plaintiffs Brief at 9-12, 14. However, plaintiff is correct that this does not remove his speech from the purview of the rule that public employees must be free to speak out on matters of public concern. “The mere fact that a public employee chooses to discuss privately his concerns with his employer as opposed to expressing his views publicly does not alter the analysis.” Szoke, 974 F.Supp. at 367 (quoting Ezekwo, 940 F.2d at 781). Furthermore, “the fact that an employee has a personal interest in certain speech ... does not necessarily disqualify that speech from First Amendment protection.” Wise v. New York City Police Dep’t., 928 F.Supp. 355, 372 (S.D.N.Y.1996). The determinative question in the Court’s inquiry “is whether the interest arises from the speaker’s status as a public citizen or from the speaker’s status as a public employee.” Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir.1994). I conclude that some, if not all, of plaintiffs remarks about the workings of the police department can fairly be said to arise from the former, and plaintiff has, therefore, identified speech protected by the First Amendment.
Next, plaintiff must proffer evidence tending to establish that there is a nexus between his speech and the action taken against him. Here, defendant appears to be on somewhat firmer ground. Plaintiff, with perhaps one exception, has not identified, by time and place and words spoken, instances in which he uttered the allegedly offending words to Ogden or in his presence. Instead, plaintiff simply avers that he spoke out on these matters continually during his tenure on the police force, both before and after he was promoted to the rank of lieutenant—a position for which Ogden recommended him. This distinguishes the instant case from those plaintiff cites in support of his claimed right to a trial. In each of those cases, the plaintiff could point to specific instances (date, time, place) and specific speech. In those cases, a rational juror could conclude, based on the timing of the adverse action vis-a-vis the allegedly offending speech, that the latter had induced the former. In this case, such an inference is more difficult to draw, because there is little evidence to tie any specific utterance with the decision to find some way to fire Birmingham. Moreover, the fact that Ogden actually recommended plaintiff for a promotion at a time when plaintiff admits he was outspoken about these matters militates against any such inference. Plaintiff suggests that he was promoted in an effort to turn him into a team player, but the only “evidence” he offers to support this conclusion is his own speculative musings. That, of course, will not suffice.
Even so, the Second Circuit has held that a causal connection between a protected activity and adverse employment action can be established indirectly, through circumstantial evidence, by showing that the protected activity was followed by discriminatory treatment.
Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir.1990)
(cited in Szoke,
974 F.Supp. at 368). Birmingham’s allegation that his disciplinary hearing and dismissal were retaliatory is supported by circumstantial evidence that defendants have not rebutted. First, plaintiff alleges that, in mid to late 1994 (among other times), he stated to Ogden his opinion that, as Police Chief, Ogden should exercise more control over managing the department (rather than allowing the Mayor to direct the operations of the department). Plaintiffs Brief at 9. Plaintiff then alleges that, beginning in late 1994 and throughout 1995, a series of things occurred that suggest retaliation for plaintiffs expressions. Plaintiff says that he was excluded from regular morning
Defendants do not directly controvert these allegations. Defendants describe plaintiffs allegations as vague and conclu-sory, and contend that the department’s preferral of disciplinary charges and dismissal of plaintiff from his job were justifiable actions taken based on Virginia Birmingham’s allegation of domestic abuse and on the disrepute brought to the police department because of publicity surrounding the criminal complaint filed against plaintiff. Plaintiff, however, maintains that his wife’s criminal complaint was procured by Chief Ogden and Lieutenants Corkey and Valencia at a time when she was drugged and confused, and that all three knew that she was unsure as to what had happened at the Birmingham home in the early morning hours of October 12.
Whether or not there was probable cause to bring an assault charge against plaintiff based on the alleged assault, or to subsequently file departmental disciplinary charges against him for misconduct, Virginia Birmingham’s own testimony at plaintiffs disciplinary hearing supports his assertion that the charges were trumped up, and that the criminal assault charge that ultimately lead to his dismissal was improperly made, at the hands of Chief Ogden. “On a motion for summary judgment, the court is not to weigh the evidence or ... resolve issues of fact, but only to determine whether there are issues to be tried.” United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994). Viewing the evidence in the light most favorable to plaintiff, the record demonstrates that he has made a showing of disputed fact sufficient to defeat summary judgment.
2b. Plaintiffs Second Cause of Action
As his second cause of action, plaintiff alleges a violation of his right of association under the First Amendment. This claim must be dismissed.
Plaintiff is not asserting that the defendants’ actions in bringing him before the Board of Police Commissioners or terminating his employment prevented him from associating with or even hindered his association with the PBA. Rather, the essence of plaintiffs second cause of action is that he was an active member of the PBA and advocated that the police department support or encourage PBA membership, and that based on that affiliation and expression of views, defendants retaliated against him by getting him fired.
Plaintiff may not maintain a separate claim for retaliation based on exercise of First Anendment associational rights. The type of association plaintiff describes, with respect to his affiliation with the PBA, is what might be termed “expressive” association.
See, e.g., Adler v. Pataki,
185 F.3d 35, 42 (2d Cir.1999) (noting that the Supreme Court has recognized two types of association rights—“an individual’s right to associate with others in intimate relationships, and a right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct”). Expressive association is considered a form of “speech,” in the way that certain expressive conduct
2c. Plaintiffs Third Cause of Action
As his third cause of action, plaintiff alleges a violation of his right to due process. Public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure, and cannot be fired without due process. Gilbert v. Homar, 520 U.S. 924, 927-28, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). Pre-termination notice and an opportunity to be heard, coupled with a full adversarial hearing after termination, satisfy the constitutional due process requirements for termination from public employment. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
Defendants do not dispute that Birmingham had a property interest in his position with the police department and could only be discharged for cause. Plaintiff does not dispute that defendants afforded him notice and an opportunity to be heard. In fact, they afforded him a pre-termination adversarial hearing. It is the conduct and results of that hearing that plaintiff challenge as violating his constitutional rights.
Plaintiff contends that the Board of Police Commissioners violated his due process rights in connection with the disciplinary hearing in the following ways: first, that the five-member Board made its determination based on evidence outside of the record at the hearing, including statements allegedly made by Chief Ogden to the Commissioners five months before the hearing that plaintiffs wife had also reported domestic abuse before the incident for which he was being charged, and that the department had not taken a firm stand but should do so this time; second, that the Mayor deliberately stalled the Commission’s meeting and discussion of the matter after the hearing until it could be arranged that only the three Commissioners who would vote for termination could be present; third, that at that meeting the Mayor “cast his pre-determined vote along with [those of] his two political cronies and by unsigned determination ... this group of three convicted Plaintiff and summarily terminated his employment.”
Plaintiff also alleges that Chief Ogden and certain of his subordinate officers (presumably at the Chiefs direction) testified perjuriously at the hearing in order to provide the Board with evidence sufficient to justify a conviction and termination of plaintiff. Plaintiff further alleges that Ogden and Mayor DeStefano arranged to have the disciplinary hearing stenographic record altered “in at least two critical respects,” though plaintiff does not specify what they are. Plaintiff has provided no evidentiary support for his musings that Chief Ogden or others lied, and that the Chief and the Mayor doctored the hearing transcript to cover up such lies.
However, plaintiffs factual allegations are irrelevant. Plaintiff has no claim for denial of due process because the availability of an Article 78 proceeding constitutes an adequate post-deprivation remedy for
The Supreme Court has drawn a distinction between due process claims based on established state procedures and claims based on random, unauthorized acts by state employees. See Hudson, 468 U.S. at 532, 104 S.Ct. 3194; Parrott v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). When the deprivation occurs in the more structured environment of established state procedures, rather than due to random acts, the availability of post-deprivation procedures (like Article 78 review) will not satisfy due process. Hudson, 468 U.S. at 532, 104 S.Ct. 3194; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Plaintiff argues, in response to defendants’ motion for summary judgment, that his termination was not the result of random or unauthorized actions by state actors, but rather a deprivation that occurred “in [the] more structured environment of a City or State procedure.” Plaintiffs Brief at 50.
Plaintiffs factual allegations, however, do not support such an argument. Birmingham does not claim that the established state procedure for dismissing municipal employees violates due process. Rather, he claims that his hearing was conducted, and he was dismissed, in flagrant violation of the rules that should govern such proceedings and decisions. Assuming for the moment that Birmingham was deprived of his job without due process of law, that deprivation occurred because of random and arbitrary acts of Chief Ogden and certain of the Police Commissioners in ignoring matters of procedure. As such, his due process claim falls under the rule of Parrott and its progeny that random and unauthorized due process deprivations can be remedied via an Article 78 proceeding (or other, similar post-deprivation remedy). Birmingham’s claim survives only if New York does not provide such a procedure. It does; his claim does not.
This Circuit has held that “an Article 78 proceeding is a perfectly adequate post-deprivation remedy.... ”
Hellenic Am. Neighborhood Action Comm.,
101 F.3d at 881;
see also Interboro Inst., Inc. v. Foley,
985 F.2d 90, 93 (2d Cir.1993);
McDarby v. Dinkins,
907 F.2d 1334, 1338 (2d Cir.1990);
Giglio v. Dunn,
732 F.2d 1133, 1135 (2d Cir.1984). Furthermore, plaintiff, having failed to take advantage of this remedy, “can find little comfort in the general rule that
2d. Plaintiffs Fourth Cause of Action
Plaintiff, in his Fourth cause of action, contends that the defendants’ actions in dismissing him from the police force violated his rights under the Equal Protection Clause of the Fourteenth Amendment.
Because plaintiff bases his equal protection claim on an allegation of selective enforcement, he must show that he was subjected to selective enforcement of the law “based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual. See Huebschen v. Department of Health and Soc. Servs., 716 F.2d 1167, 1171 (7th Cir.1983). To state an equal protection claim for selective enforcement, plaintiff must show: (1) that he was selectively treated compared with others similarly situated, and (2) that the selective treatment was prompted by an impermissible consideration, such as membership in a suspect class, intent to inhibit or punish the exercise of a constitutional right, or malicious or bad faith intent to injure. See Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir.1996); Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995); LaTrieste Restaurant & Cabaret v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir.1994).
Plaintiff alleges that he was selectively treated because he was subjected to a disciplinary hearing and terminated from employment while other officers on the force who had engaged in misconduct were not required to undergo a hearing or terminated for that misconduct. Plaintiffs Brief at 37-38. Plaintiff notes that at least one other police officer was disciplined after an accusation by his wife that he assaulted her, but that officer was not put through a disciplinary hearing and was suspended for two weeks rather than terminated. Plaintiffs Brief at 37. Plaintiff further alleges that no other disciplinary hearings pursuant to Section 75 of the New York Civil Service Law have been held against members of the Middletown Police Department since 1986, and that only one other hearing was held by the Board of Police Commissioners since approximately 1975. Plaintiffs Brief at 39.
Defendants reply that the decision of the police department to discipline its members is a purely discretionary one, and that, where deemed appropriate, disciplinary action has been taken when police officers within the department break the rules. They argue that plaintiff has merely demonstrated that individual officers are dealt with on a case-by-case basis.
The heart of Birmingham’s equal protection claim is that his constitutional rights were violated because the Rules of Conduct and the Civil Service Law were applied to
him
when they were not applied equally to
others.
However, “[t]here is no right under the Constitution to have the law go unenforced against you, even if you are the first person against whom it is enforced, and even if you think (or can prove) that you are not as culpable as some others who have gone unpunished.” Fute
rnick v. Sumpter Township,
78 F.3d 1051, 1056 (6th Cir.1996). Even if plaintiff could prove his allegation that at least one other officer went undisciplined for domestic abuse, failure to proceed against others who are comparably situated is not
by itself
a basis for finding a denial of equal protection.
Zahra,
48 F.3d at 684 (emphasis added). “Equal protection does not require that all evils of the same genus be eradicated or none at all.”
To sustain an equal protection claim based on alleged selective enforcement, plaintiff must also show invidious discrimination. Birmingham does not claim membership in any suspect or quasi-suspect group; he does not claim denial of equal protection based on race, religion, nationality or gender. Rather, he.claims that he was singled out for discipline because of his criticizing political cronyism in the Middletown Police Department.
The Second Circuit has held that selective enforcement intended to discourage or punish the exercise of a constitutional right or based on malicious or bad faith intent to injure
may
afford a basis for relief under
2e. Plaintiffs Fifth Cause of Action
As his Fifth cause of action, plaintiff asks the court to assert supplemental jurisdiction over a state law claim for relief pursuant to Article 78 of the New York CPLR. Plaintiff states in his complaint that, “by reason of repeated ex parte communications between Ogden and the Mayor[,] the Mayor was disqualified as a matter of law from presiding over, participating in and/or voting with respect to the disciplinary hearing/charges at issue,” and “... the Mayor’s failure to re-cuse himself was arbitrary, capricious, and/or otherwise unlawful in violation of Plaintiiff s state law entitlements to a fair hearing.” Complaint ¶¶ 36, 37. Plaintiff asserts that, pursuant to Article 78, his disciplinary hearing and conviction “must be declared null and void.” Complaint ¶ 38.
Plaintiff asks this court to function as a state tribunal and conduct an Article 78 hearing. The courts that have addressed such a request have noted that Article 78 is “a novel and special creation of state law” and “a purely state procedural remedy.”
See, e.g., Camacho v. Brandon,
56 F.Supp.2d 370, 379-80 (S.D.N.Y. 1999)
(citations
omitted);
Lucchese v. Carboni,
22 F.Supp.2d 256, 258 (S.D.N.Y.1998). Article 78 provides a special proceeding for judicial review of action by “every court, tribunal, board, corporation, officer, or other person, or aggregation of persons.... ”
Counsel for plaintiff, having served as counsel in both the
Camacho
and
Lucchese
cases, is well aware that the federal courts are loath to exercise jurisdiction over Article 78 claims. Even where a plaintiff has one or more federal claims still alive — as did plaintiffs Camacho and Lucchese, and as does Birmingham — the interests of judicial economy are not served by embroiling this court in a dispute over local laws and state procedural requirements. Article 78 “is designed to facilitate a ‘summary disposition’ of the issues presented, [and] ... is
3. Monell liability
Plaintiff has asserted claims against the City of Middletown. It is axiomatic that no such claim will lie in the absence of evidence that plaintiffs constitutional rights were violated pursuant to a policy or practice of the municipality. Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In spite of the well known requirements for stating a claim under Monell, nowhere in plaintiffs complaint does he use the words “policy” or “practice,” and nowhere does he describe the actions of the City of Mid-dletown (via its Board of Police Commissioners) in terms sufficient to maintain a cause of action against that defendant. Plaintiffs claims against the City should be dismissed for this reason alone.
However, plaintiffs have briefed the Monell issue in response to defendants’ motion for summary judgment, and I can dispose of the claims against the City based on the merits of the parties’ submissions. Therefore, I do so on that ground.
Defendants urge that the City of Mid-dletown may not be held liable for the Board of Police Commissioners dismissal of plaintiff because, even if plaintiff were able to prove that the actions of the defendants in connection with his dismissal were unconstitutional, the evidence does not demonstrate that the decision was made pursuant to an existing municipal policy, or that the basis for the decision was adopted as official custom or policy by the City. Defendants incorrectly assert that a single act is never sufficient to establish liability on the part of a municipality under Monell, but they are correct that the single act at issue in this case does not reflect or establish any municipal policy.
Here, the only fair inference is that what happened to plaintiff (assuming things occurred as he claims) was unique to him—a deeply personal vendetta carried out by persons who were out to get him. That is not municipal action taken pursuant to policy or practice—unless plaintiff were to present this court with evidence that Chief Ogden and Mayor DeStefano and their cronies make it a practice to cook up disciplinary charges against outspoken police officers in order to procure their dismissal. There is no such evidence in the record before this court.
Plaintiff, relying on the indisputable fact that the Mayor and Police Chief qualify as “policy makers,” asks this Court to rule, in effect, that every personnel decision made or action taken by a policy maker rises to the level of municipal policy. As counsel for plaintiff puts it, “the requirement of establishing policy is met when federal law is violated by an act of a policymaker.” Plaintiffs Brief at 44. This Court has been confronted with the same argument (always propounded by the same law firm) in literally dozens of civil rights cases. I have always dismissed it. I dismiss it here.
It has been clear since the Supreme Court’s decision in
Pembaur v. City of Cincinnati
that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” 475 U.S. 469, 479, 106 S.Ct.
Whether an official has final poli-cymaking authority is a question of state law. Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. Neither party to this action has addressed this issue or presented the court with law or evidence regarding the policy-making authority‘—or lack thereof—of the Board of Police Commissioners with respect to final personnel actions. Defendants assert that the Board did not act pursuant to a policy or practice. Plaintiff simply asserts that, because the Mayor is a policymaker, the Board was acting pursuant to policy. Absent some evidence of state law that vests final authority in the Board of Police Commissioners to establish personnel policy for the City of Mid-dletown (or absent evidence that it was the practice of the City to terminate police officers who engaged in disfavored speech on public matters), plaintiff has failed to raise a disputed issue of fact as to whether the defendant City dismissed him pursuant to an unconstitutional policy or practice. Defendants’ motion for summary judgment on plaintiffs claims against the City must, therefore, be granted.
4. Qualified Immunity
Defendant Ogden, who has been sued in his individual capacity, contends that he is entitled to qualified immunity from liability on plaintiffs remaining claims, for First Amendment retaliation and for selective prosecution under the Equal Protection Clause. Ogden’s request for qualified immunity is denied.
In general, public officials are entitled to qualified immunity if their conduct does not violate constitutional rights that were clearly established at the time the alleged violation occurred. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.1996); Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991). Even when a plaintiffs federal rights are so clearly defined that a reasonable public official would know that his actions violate those rights, qualified immunity may still be available as a bar to a plaintiffs suit if it was objectively reasonable for the public official to believe that his acts did not violate those rights. Kaminsky, 929 F.2d at 925; see also Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Weyant, 101 F.3d at 857.
It is well settled, and was so at the time the actions of the defendants took place, that a public employee may not be discharged for the exercise of First Amendment rights. Therefore, Chief Ogden cannot claim that he did not know it would be unlawful for him to prefer disciplinary charges against Lieutenant Birmingham simply because Birmingham voiced opinions that the Chief disagreed with regarding administration of the Middletown Police Department. Chief Ogden does not, of course, claim that. Rather, Ogden asserts that it was objectively reasonable for him to believe that his act of preferring disciplinary charges against plaintiff was taken in accordance with the law, because the
Use of the “objective reasonableness” test enables courts to decide qualified immunity claims as a matter of law when there are no material issues of disputed fact. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995); see also DiMarco v. Rome Hosp. & Murphy Mem’l Hosp., 952 F.2d 661, 666 (2d Cir.1992). In other words, in a case such as this, where the law is clearly settled, summary judgment may be granted on qualified immunity grounds if “the only conclusion a rational jury could reach is that reasonable [officials] would disagree about the legality of the defendants conduct under the circumstances.” Lennon, 66 F.3d at 420 (emphasis added).
As with any motion for summary judgment, when deciding a motion for qualified immunity, the court must view the record most favorably to the party opposing the motion. Plaintiff alleges that the criminal assault complaint should never have issued—a position that can fairly be said to be supported by the testimony of plaintiffs wife at the disciplinary hearing, to the effect that: she did not know if plaintiff struck her, “the police officers kept saying they needed to know and I kept saying I didn’t know,” and she went to the police department because “Lou Ogden requested strongly that I come in and talk to him. It was at his urging.” See Transcript of May 30, 1997 Board of Police Commissioners Hearing, attached as Ex. 13 to the Affidavit of Kim Berg, at 24-25, 29, 32, 52. Furthermore, plaintiff asserts that Chief Ogden knew that the assault charge was false, or at least suspect (because he in fact helped to procure it from the confused and heavily medicated Virginia), and that the criminal complaint was, therefore, not a valid basis on which to bring departmental disciplinary charges against plaintiff.
I find that a rational jury could come to the conclusion that Chief Ogden did not act reasonably under the circumstances. Therefore, the court cannot make a qualified immunity determination at this time. Defendant’s motion is denied.
This constitutes the decision and order of the court.
Notes
. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
. Moccio did not challenge the constitutionality of the law governing his dismissal, but rather the application of that law to his particular situation. Rooker-Feldman does not prevent federal courts from considering challenges to the constitutionality of a law, as opposed to the constitutionality of the way that it was applied in a particular instance.
See Feldman,
460 U.S. at 486, 103 S.Ct. 1303. The former does not challenge the judgment of a state court, but rather a legislative or administrative determination, and therefore
. See Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757-58, 570 N.Y.S.2d 474, 477, 573 N.E.2d 562 (1991) (finding that Article 78 review of a quasi-judicial hearing is a certiorari proceeding, not a mandamus to review proceeding, and therefore “substantial evidence” rather than “arbitrary and capricious” is the standard of review).
. Plaintiff has voluntarily withdrawn claims made under
. He followed that appeal with a suit in Ca-toosa County Superior Court, which he later voluntarily dismissed without prejudice.
. Narey also asserted a stated law claim for tortious interference with his contractual rights, which he later abandoned.
.More specifically, the Court held that federal common-law rules of preclusion must be applied to the claim under
. The court noted that plaintiffs’ claims for a declaratory judgment that the new parking violation adjudication law was constitutionally inadequate were also not barred by Rook-er-Feldman, because they did not challenge the judgment in any particular case. See Van Harken v. City of Chicago, 103 F.3d 1346, 1349 (11th Cir.1997) (citations omitted). Finally, however, the court applied Rooker-Feldman to bar the set of claims by plaintiffs seeking refunds of parking fines imposed upon them by the state courts after administrative findings of liability. See id.
. If he had, the doctrine of Younger abstention would likely have required this court to abstain from hearing plaintiff‘s claims. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also, e.g., Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237-38, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) (“interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests”).
. Although they do not cite case law, defendants appear to be relying on the oft-stated principle that a plaintiff may not seek a reversal in federal court of a state court judgment simply by casting his complaint in the form of a civil rights action. See, e.g., Davidson v. Garry, 956 F.Supp. 265, 269 (E.D.N.Y.1996), aff‘d, 1997 WL 225082 (2d Cir.1997); Reed v. Terrell, 759 F.2d 472, 473 (5th Cir.1985). Of course, this is simply another way of saying that collateral attacks on state court judgments are barred by Rooker-Feldman.
. And if it does in a particular instance, other abstention or preclusion doctrines may be invoked by the federal courts.
. Defendants correctly note that plaintiff’s complaint is devoid of factual allegations to support a prima facie case of selective enforcement. However, because I address the motion to dismiss at the summary judgment stage, and have considered material beyond the pleadings, I will treat the factual allegations contained in plaintiff’s responsive motion papers as though they were plead in the complaint and address the merits of plaintiff’s equal protection claim.
. As one circuit court has commented, both the First and Second Circuits have stated that they will allow relief on such grounds, but “neither court, despite the citation of general language indicating the possibility of a successful action, has ever affirmed a victory for the plaintiff on such a theory.” Futernick v. Sumpter Township, 78 F.3d 1051, 1057 (6th Cir.1996) (citations omitted). The Futemick court therefore thought it “unwise to adopt the often-stated, but never-used, rule” of those two circuits. Id. at 1058.
. Plaintiff’s Article 78 proceeding is not yet time barred. Although an Article 78 proceeding must be commenced “within four months after the determination to be reviewed becomes final and binding ...,”