OPINION AND ORDER
This case arises out of the plaintiff John Montalbano’s (“Montalbano”) desire for a gun permit. The plaintiff, a former officer with the Port Authority Police Department (“PAPD”), brought this action against the Port Authority and two psychologists employed by the Port Authority, Dr. Doris Francis and Dr. Francine Silver, alleging violations of his constitutional rights under the Second and Fourteenth Amendments, as well as violations of 42 U.S.C. § 1983. The plaintiff also brought state common law negligence claims against the Port Authority and Drs. Francis and Silver, and state common law defamation claims against two other PAPD employees, Inspector Michael Guarnieri and Sergeant Kenneth Kohlmann. Before the Court are the parties’ cross-motions for summary
I.
The standard for granting summary judgment is well established. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett,
Summary judgment is appropriate if it appears that the nonmoving party cannot prove an element that is essential to the nonmoving party’s case and on which it will bear the burden of prоof at trial. See Cleveland v. Policy Mgmt. Sys. Corp.,
II.
The following facts are undisputed unless otherwise noted:
Montalbano served as an officer with the PAPD from 1978 until 2010. (Def.’s R. 56.1 Stmt. ¶ 1; Pl.’s R. 56.1 Resp. ¶ 1.) He lives with his wife and their two children in New York City. (Def.’s R. 56.1 Stmt. ¶ 2; PL’s R. 56.1 Resp. ¶ 2.)
On March 9, 2009, while Montalbano was working as a Squad Leader for the PAPD’s Emergency Services Unit (“ESU”) at Building 254 in John F. Kennedy Airport, an incident occurred between Montalbano and Kohlmann, who was Montalbano’s immediate supervisor. (Def.’s R. 56.1 Stmt. ¶¶ 7, 12; PL’s R. 56.1 Resp. ¶¶ 7, 12.) The next day, Kohlmann sub
On August 12, 2009, New York City police officers were called to Montalbano’s home in response to an alleged domestic incident involving Montalbano and his children. (Def.’s R. 56.1 Stmt. ¶ 16; Pb’s R. 56.1 Resp. ¶ 16.) Montalbano’s daughter alleged that he punched her, and submitted a written complaint to that effect to the police. (Def.’s R. 56.1 Stmt. ¶ 16; Ph’s R. 56.1 Resp. ¶ 16; Kromm Deck Exs. L (written police report), M (typed police report).) No arrest was made. (Kromm Deck Ex. L.) Montalbano asserts that he did not hit his daughter, and that his daughter has since recanted her statement to the рolice. (See Montalbano Dep. 82-87.) A separate domestic incident involving Montalbano occurred four years earlier, on May 17, 2005. (Def.’s R. 56.1 Stmt. ¶ 6; PL’s R. 56.1 Resp. ¶ 6; Kromm Deck Ex. J.) In that incident, police came to Montalbano’s home in response to reports that Montalbano had locked his family out of the house and that Montalbano had threatened the family with a gun. (Def.’s R. 56.1 Stmt. ¶ 6; Ph’s R. 56.1 Resp. ¶ 6; Kromm Deck Exs. J (written police report), K (911 call audio).) No arrest was made, and the written statement made by Montalbano’s wife only reflects that Montalbano had allegedly locked his family out of the house. (See Kromm Deck Ex. J.) Montalbano admits that he locked his family out of the house, but denies that there was a gun involved. (See Montalbano Dep. 50-55.)
After the August 12, 2009 incident, Montalbano voluntarily secured his two personal firearms at his workplace. (Def.’s R. 56.1 Stmt. ¶ 17; Ph’s R. 56.1 Resp. ¶ 17.) Montalbano was then sent for an evaluation by Dr. Francis, the senior psychologist for OMS, because of the domestic incident. (Def.’s R. 56.1 Stmt. ¶¶ 8, 18; Ph’s R. 56.1 Resp. ¶¶ 8, 18; Montalbano Dep. 91.) Dr. Francis found Montalbano fit for duty with the restriction that he could carry his firearm on duty only. (Def.’s R. 56.1 Stmt. ¶ 18; PL's R. 56.1 Resp. ¶ 18; Compl. Ex 1 (disposition noting “firearm on duty only” restriction); Montalbano Dep. 94-95.) The parties dispute the basis for Dr. Francis’ restriction: the defendants suggest that Dr. Frаncis’ determination was based on her review of Montalbano’s record and the 911 call from the August 12 incident, while Montalbano claims that Dr. Francis was abusive and that the restriction was baseless. (Compare Montalbano Aff. ¶ 5 with Def.’s R. 56.1 Stmt. ¶ 18.) Montalbano continued seeing Dr. Francis on a weekly basis until October 22, 2009. (Def.’s R. 56.1 Stmt. ¶ 21; PL’s R. 56.1 Resp. ¶ 21.) Thereafter, he began seeing Dr. Silver, the consultant psychologist. (Def.’s R. 56.1 Stmt. ¶ 22;
On November 6, 2009, Dr. Silver requested that Dr. Weinberg opine on whether the gun restriction should be liftеd. (Def.’s R. 56.1 Stmt. ¶ 23; Pl.’s R. 56.1 Resp. ¶ 23.) On January 8, 2010, Dr. Weinberg wrote a letter to Dr. Silver stating that Montalbano “remains behaviorally under control and despite his verbal complaints he does not present in a dangerous manner.” (Weinberg Letter.) Dr. Weinberg’s letter discussed Montalbano’s “interest in having gun restrictions rescinded” but did not specifically recommend that the on duty only restriction be lifted. (Weinberg Letter.) Dr. Silver testified at her deposition that she told Montalbano that, if Dr. Weinberg disagreed with her continued recommendation of the restriction, then he would be entitled to a third-party evaluation. (Kromm Decl. Ex. B (“Silver Dep.”), at 57-58.)
At no point was the on duty only restriction lifted. On January 19, 2010, Montalbano retired from the PAPD. (Def.’s R. 56.1 Stmt. ¶25; PL’s R. 56.1 Resp. ¶ 25.)
Montalbano never filed a grievance with the Port Authority Patrolmen’s Benevolent Association, his union, in connection with the firearms restriction. (Def.’s R. 56.1 Stmt. ¶ 24; PL’s R. 56.1 Resp. ¶ 24; Montalbano Dep. at 97-98.) Montalbano never filed an Article 78 proceeding in New York State Supreme Court challenging the on duty only restriction. (Def.’s R. 56.1 Stmt. ¶ 27; PL’s R. 56.1 Resp. ¶ 27.)
After Montalbano retired in January 2010, he applied for a firearms permit. (See Montalbano Aff. ¶ 6.) Montalbano claims, and the defendants do not dispute, that the City of New York, which issues such permits, would not acceрt his application without a Certificate of Good Standing from the Port Authority.
Montalbano filed this lawsuit in August 2010. He alleges that the Port Authority and its two psychologists violated his constitutional rights under the Second and Fourteenth Amendment, as well as his rights to substantive and procedural due process under the Fourteenth Amendment, which rights he seeks to vindicate under 42 U.S.C. § 1983. Montalbano also asserts state common law negligence claims against those defendants for their failure to assess his mental condition accurately, and state common law defamation claims against Guarnieri and Kohlmann for their accusations relating to the March 9, 2009 incident. Before the Court are the parties’ cross-motions for summary judgment.
Montalbano argues that the defendants have violated his rights under the Second Amendment, and dеnied his right to substantive and procedural Due Process under the Fourteenth Amendment. He seeks to vindicate those rights under 42 U.S.C. § 1983. Section § 1983 provides:
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....
42 U.S.C. § 1983.
“To state a § 1983 claim, a plaintiff must establish that the defendant deprived him of a federal or constitutional right while acting under the color of state law.” Cox v. Warwick Valley Cent. School Dist.,
A.
Montalbano’s first cause of action is asserted against the Port Authority for violation of his Second Amendment Rights.
The Port Authority cannot be held vicariously liable for the acts of its employees in a § 1983 action. See, e.g., Caceres v. Port Authority of New York and New Jersey,
Even if Montalbano were able to establish a policy, custom or practice based on a “single-incident” theory of municipal liability,
However, “the right secured by the Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller,
The Port Authority did not categorically bar Montalbano from keeping a firearm at home for self-defense. Compare Heller,
The Port Authority’s on duty restriction was a reasonable condition of Montalbano’s continued employment. The possession of a firearm was a reasonable part of his employment with the PAPD. At the same time, the PAPD could assure that the plaintiff only had access to the weapon while on duty. Having one of its police officers involved in an episode of domestic gun violence, or allowing an officer to be armed and unsupervised when the officer had a prior domestic incident, would severely undermine the Port Authority’s ability “to operate efficiently and effectively” in providing security to the public. Garcetti
To the extent that Montalbano alleges that the City of New York has, by requiring that he submit a certificate of good standing from the Port Authority in order to get a firearm permit, unreasonably restricted his Second Amendment rights, his complaint should have been directed at the City of New York. See, e.g., N.Y.C. Rules, tit. 38 § 5-07(e) (providing for the right of appeal when an application for a handgun permit is denied); see also, e.g., Kachalsky v. Cacace,
B.
Montalbano also alleges that he has been denied substantive due process under the Fourteenth Amendment. “Substantive due process protects against government action that is arbitrary, conscience-shocking, or opрressive in a consti
Because Montalbano cannot establish, for the reasons already explained, that his Second Amendment rights have been infringed, he cannot establish that he has been denied substantive due process on the basis of any аlleged arbitrary action by the defendants. See Pierson,
To the extent that Montalbano argues that he had a federally-protected right, independent of his Second Amendment claims, to a post-employment mental health re-evaluation by, or a certificate of good standing from, the Port Authority, this argument is without merit. Montalbano cites no case to support the proposition that the right to a post-employment recommendation or evaluation from a government employer, in any context, is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.” Washington v. Glucksberg,
Nor in any event did the Port Authority act in a way that was so arbitrary and capricious as to constitute illegitimate governmental action. See Natale v. Town of Ridgefield,
Beсause Montalbano can establish neither the existence of a protected right, nor
C.
Montalbano also alleges that he has been denied procedural due process under the Fourteenth Amendment. The procedural due process analysis proceeds in two steps: “(1) whether [the] plaintiff[ ] possessed a protected liberty or property interest, and, if so, (2) what process [the] plaintiff[] w[as] due before [he] could be deprived of that interest.” Adams v. Suozzi,
“Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Pierson,
Montalbano has adduced no evidence to indicate that the Port Authority has a legal or customary obligation tó'conduct an additional mental health evaluation on him as a former employee, or to change retroactively the restrictions that were placed on his firearm use, or to issue him a certificate of good standing. See, e.g., N.Y.C. Rules, tit. 38, §§ 5-04 (placing burden of employment-related handgun permit on the applicant and not the employer). Nor has Montalbano disputed that the Port Authority’s decision to take or nоt to take these actions is discretionary. Montalbano therefore has not shown that he has a “legitimate claim of entitlement” to a certificate of good standing from the Port Authority. Roth,
In any event, Montalbano challenges the underlying determination by OMS that led to the firearms restriction. The reputational harm which stems from such determinations can create a protected liberty interest which requires procedural due process. See, e.g., Wisconsin v. Constantineau,
Montalbano’s argument that 42 U.S.C. § 1983 does not require him to exhaust his remedies is misplaced. The availability of an Article 78 proceeding does not mean that Montalbano was required to exhaust his administrative remedies. Rather, the availability of an Article 78 proceeding ensures that Montalbano had adequate procedural due process to vindicate the alleged underlying right at the time that the deprivation occurred. See id. Because Montalbano could have availed himself of a constitutionally adequate process to vindicate his alleged rights, he has not established a violation of Procedural Due Process under the Fourteenth Amendment.
Montalbano has failed to establish a material issue of fact as to whether he has been deprived of a constitutional right under the Second or Fourteenth Amendments, in violation of 42 U.S.C. § 1983. The defendants motion for summary judgment is therefore granted with regard to Montalbanos federal claims.
IV.
Having dismissed the federal claims in this case, the Court declines to exercise suрplemental jurisdiction over the plaintiffs’ remaining state-law claims. See 28 U.S.C. § 1367(c)(3). The Court of Appeals for the Second Circuit has instructed that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comi
This case presents no basis for deviating from the balance articulated in Valencia. While the Court of Appeals for the Second Circuit has uрheld the exercise of supplemental jurisdiction over state-law claims when federal claims are dismissed on the eve of trial, this is not such a case. See Valencia,
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not speсifically addressed, the arguments are either moot or without merit.
The defendants’ motion for summary judgment is granted as to the plaintiffs federal claims, and denied as to the plaintiffs state law claims. The plaintiffs motion for summary judgment is denied. The plaintiffs state law claims are dismissed without prejudice.
The Clerk is directed to enter Judgment and to close this case. The Clerk is also directed to close all pending motions.
SO ORDERED.
Notes
. There is little direct evidence in the record about what such a certificate is. In his deposition testimony, Montalbano referred to this certificate as an “atta boy letter,” and explained that such letters are normally given to retired PAPD officers as a matter of course. (Montalbano Dep. at 127-134.) There is no other evidence in the record explaining what a Certificate of Good Standing or an "atta boy letter” is, or pursuant to what if any policy it is given.
. In certain specific circumstances, a single incident may suffice to establish a municipal custom, policy, or practice sufficient to create liability under § 1983; for example, a single action taken directly by a municipal policymaker may be sufficient to establish a municipal poliсy. See, e.g., Amnesty America v. Town of West Hartford,
. The papers and the evidence in the record do not explain whether Montalbano would receive a permit if he had the certificate of good standing, and Montalbano asserts only that he cannot get a permit without such a certificate. See N.Y. Penal Law § 400.00(4)(a) ("[T]he licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for.”); see also N.Y.C. Rules, tit. 38, § 5-10(c), (g), (n) (listing grounds for denial of a handgun permit). Moreover, Montalbano does not explain whether he applied for a specific type of permit or exemption which may have more stringent requirements, see, e.g., N.Y.C. Rules, tit. 38, § 5-04 (special requirements for carry guard license), or how it is that he was not already permitted by the City given that he had been carrying a gun for over two decades. Neither party has identified the statutory basis for the requirement that Montalbano procure a "certificate of good standing.” Nevertheless, the parties do not appear to dispute these points, and they are therefore not at issue on this motion for summary judgment.
. This is doubly so where, as here, Montalbano acknowledges that he seeks the gun permit not so that he may defend his home, see Heller,
. ''[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Brody v. Vill. of Port Chester,
Here, Montalbano has not argued that he was entitled to a hearing before his gun use was restricted, and indeed he admits that he voluntarily turned in his weapons after the August 12, 2009 domestic incident. Nor does he argue that he was deprived of physical property, which might weigh in favor of a pre-deprivation hearing. See, e.g., Walters v. Wolf,