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holding that private attorneys' coordination of deposition with county attorney allegedly in violation of the plaintiff's First Amendment rights did not give rise to a conspiracy and did not elevate the private attorney to a state actor
Summary of this case from Neroni v. CoccomaOpinion
00 Civ. 7441 (CM)
February 21, 2001
Plaintiff Robert DelBene, a corrections officer, brings this action under 42 U.S.C. § 1983 for alleged deprivations of plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution, and under 42 U.S.C. § 1985(2), against his employer the County of Westchester. He also brings suit against Associate County Attorney Lori Alesio, Commissioner of Correction for the County of Westchester Rocco Pozzi, and Epstein Becker Green attorney Matthew T. Miklave, all of whom are sued in their individual capacities only.
DelBene claims that defendants: (1) impermissibly chilled his First Amendment right to speech; (2) retaliated against him for exercising his First Amendment rights; (3) selectively prosecuted him in violation of the Fourteenth Amendment; and (4) violated plaintiff's right under 42 U.S.C. § 1985(2) to be free from intimidation, threat and/or punitive action. He also brings a state law claim for malpractice against Miklave.
Defendants Alesio, Pozzi, and the County of Westchester (collectively, the "County defendants") move to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant Miklave separately moves to dismiss under Rule 12(b)(6).
For the following reasons, Miklave's motion to dismiss the Third, Fourth and Seventh claims against him is granted. The County defendants' motion to dismiss the claims is granted in part and denied in part as to the First Claim and granted as to the Second, Third, Fourth, Fifth, Sixth, and Seventh Claims.
BACKGROUND
At all times relevant to this action, Plaintiff was employed as a Correction Officer (CO) in the Westchester County Department of Correction (DOC). During Plaintiff's tenure as a CO he has held various positions in the Corrections Officers Benevolent Association ("COBA"). In 1998-99, he held the position of Shop Steward.
The December 1999 letter On December 30, 1999, plaintiff wrote a letter to "All COBA Members" in reference to ongoing negotiations with the County over the union's collective bargaining agreement. The substance of that letter is set forth in its entirety:
COBA officials informed us yesterday that our contract talks with the County had broken down due to new demands the County introduced into the negotiations. It's pretty ironic that this has occurred about 2 weeks after the Board of Legislature voted themselves a 27% increase and it's pretty sad that our own union officials were telling us that the contract talks were looking better. Does anyone not believe that the County negotiator duped our union officials into thinking things were going well so that they would not have to deal with COBA members jamming the Legislative Chambers when they voted themselves their raises?
However, let us not fight amongst ourselves, let us instead put all our differences aside and concentrate on defeating our enemies. Make no mistake as to the identity of our enemies; they are the department administration, led by Rocco Pozzi, who has clearly shown he wants to crush COBA and its members; they are the County government, led by Andrew Spano, who has shown very little regard for COBA, its members and their families; and they are the leadership of SOA, who have repeatedly marched to the beat of Rocco Pozzi and Andrew Spano and their attempt to but COBA in its place. Let us join together. Remember in the past when we all fought our enemies as one united front to achieve out goals.
I am asking that all post-bid officers who have volunteered to work ERT for the department on New Year's Eve inform the department that they have reconsidered their voluntary overtime for ERT. I will not ask the non-bidded officers to do this because without protection we all face the wrath of the department.
I ask you, why would we as COBA members wish to help this department? Ask yourself, has anyone heard Rocco Pozzi publicly support COBA in its attempt to solve its contract problems? As for those members who have volunteered to work overtime on ERT and want the overtime pay, if that is your sole purpose for working that day, then volunteer to work overtime in the various buildings so that some of your brother and sister officers may get to go home after their shift.
In closing, let me remind you . . . 5 years without a contract! We can no longer afford to sit passively; let us join together to fight our enemies.
(Powers Aff. at Ex. A; Compl. at ¶ 10.) (emphasis in the original) Underneath his signature DelBene wrote "11-7 COBA Delegate."
As the date indicates, this letter was written just prior to the Year 2000 "Millenium." Like many government and private organizations who were preparing for potential problems arising from the "Y2K" computer issue, the Westchester County Corrections Department had a plan in place for January 31, 1999. In part, this plan involved the Emergency Response Team (the "ERT" mentioned in DelBene's letter), a team of six officers and a sergeant whose function is to respond to disturbances in the jail, in the event of an emergency.
The dissemination of DelBene's letter to COBA members prompted the County to file an Order to Show Cause in the New York State Supreme Court for the County of Westchester against COBA and DelBene ("the state court action"). Defendant Alesio, among others, represented the County in that proceeding, in which the County sought and received a temporary restraining order to (1) enjoin any strike or job action against the County during the period December 31, 1999, through January 1, 2000; (2) enjoin each and every correction officer from failing to show up for work without proper cause, and (3) enjoin any employee from refusing to work on December 31, 1999, and January 1, 2000 on grounds of illness without a doctor's note.
Westchester County v. Westchester County Correction Officers Benevolent Assoc., Inc. and Robert DelBene, individually, Westchester County Index # 19846/99 (DiBlasi, J.)
Plaintiff alleges that Alesio secured the TRO to restrain plaintiff and prohibit a "non-existent job action" which "she along with Pozzi . . . and others claimed to the state court was about to cause chaos in the Department of Correction," on the basis of a letter in which plaintiff "had simply expressed his opinion regarding a matter of manifest public concern." (Compl. at ¶ 11, 12.) He claims that in order to secure the TRO, Alesio caused Pozzi to:
falsely assert with respect to an incident which had supposedly occurred on July 13-14, 1999, that COBA previously orchestrated a job action on that occasion. In connection with these assertions Pozzi truthfully represented to the Court that a [CO] by the name of Christopher Smith had on one occasion on July 13, 1999, urged fellow officers at a shift briefing not to work voluntary overtime.
(Compl. at ¶ 13.) Plaintiff claims that no job action took place as a result of Smith's actions.
The County's request for a TRO was not the only response to DelBene's letter. Counsel for COBA sent DelBene a letter, in which DelBene was admonished for using his position as a COBA delegate to send unauthorized recommendations to the membership. It read in part:
Please be advised that in your personal capacity as an individual you have the right to draft and distribute any letter you wish to any individual you wish. HOWEVER, YOU HAVE NO AUTHORITY TO SIGN A LETTER AS COBA DELEGATE WITHOUT THE EXPRESS PERMISSION OF THE PRESIDENT OF COBA AND/OR THE COBA EXECUTIVE BOARD. Your statement contained in the letter that you are "asking that all post bid officers who have volunteered to work for ERT for the Department on New Years Eve informed [sic] th Department that they have reconsidered their voluntary overtime for ERT" borders on an invitation to a job action prohibited by the Taylor Law.
New York's Taylor Law prohibits strikes and job actions by public employees and authorizes injunctive relief in the event of a threatened job action. See N.Y. Civ. Serv. Law. § 210(1), § 211.
(Mem. in Supp. of Def. Miklave's Mot. to Dismiss at Ex. A.) The letter went on to warn DelBene that he must "personally face the consequences" of any illegal job action "as an individual," and ordered him to retract the December 30, 1999 letter.
Miklave and the County Defendants may rely on documents that are either relied on in the Complaint, are matters of public record (including court filings), or which were in DelBene's possession, were known by DelBene, and are integral to the allegations in the Complaint. See Levitin v. Paine Webber Inc., 159 F.3d 698, 702 n. 4 (2d Cir. 1998) (stating that court may consider documents integral to the complaint on a motion to dismiss, particularly where plaintiff has notice thereof), cert. denied, 525 U.S. 1144, 11 S.Ct. 1039 (1999); Cortec Industries, Inc. v. Sun Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (statements and documents incorporated by reference may be considered on motion to dismiss).
The Bartolini Case
DelBene is also a co-defendant with Westchester County in another pending civil suit in this District, Bartolini v. Stancari, 97 CV 7941. Epstein Becker Green is serving as counsel of record for a number of defendants in the case, including Westchester County and DelBene, both in his capacity as a Westchester County CO and individually. DelBene was scheduled to be deposed, and was deposed in that matter, on January 3, 2000. According to plaintiff, he testified "in words or substance with respect to filthy conditions at the County Department of Correction, the maladministration of the Department of Correction and inter alia Commissioner Pozzi's incompetency as an administrator." (Compl. at ¶ 15.)
The Disciplinary Charge
On January 4, 2000, Pozzi wrote a letter to DelBene informing him that he was suspended without pay for thirty days pending service of formal disciplinary charges then being prepared. The disciplinary charges were allegedly drafted by Alesio, "acting in concert with another member of the County Attorney's legal staff." (Compl. at ¶ 17.) DelBene was accused of "organizing and engaging in an illegal work action and/or strike" and "engaging in activity which jeopardized the security of the [correction] facility." (Compl. at ¶¶ 17, 18.) DelBene claims that there was no factual basis for this disciplinary action.
Plaintiff also alleges that soon after the start of his suspension, Pozzi, acting through some unidentified "COBA intermediary," told plaintiff that if he agreed to a "gag" order % in which DelBene wouldn't publicly state his opinions on COBA-County relations or the Department of Corrections % then Pozzi would reduce the payless suspension to a period of fifteen days and allow plaintiff to immediately return to work. Plaintiff claims that he was forced to accept the "condition" for returning back to work out of economic necessity, and that "[b]y reason of Pozzi's economic intimidation, Plaintiff has not spoken out on any matters of public concern since his suspension was reduced . . ." (Comp. at ¶ 21.) At the time of the complaint, according to plaintiff, the disciplinary charges had been neither withdrawn nor prosecuted.
Plaintiff alleges that CO Smith, who called upon fellow COs to refuse overtime at a July 13, 1999 briefing, was not similarly disciplined, in that no disciplinary charges were instituted until the year 2000, Pozzi sought only a thirty-day suspension for Smith, Smith was eventually given "amnesty," and the charges were withdrawn and no punishment was ever imposed.
The Cobb Lawsuit
Plaintiff also complains of defendants Miklave's and Alesio's actions in connection with yet another lawsuit in which DelBene was a non-party witness, Cobb v. Pozzi, 00 CV 2007. This suit was brought by two COs who were disciplined after claiming to be ill when asked to work forced overtime. They claimed that the disciplinary charges, which were dismissed in arbitration, constituted retaliation. DelBene allegedly testified at the arbitration "as to facts which supported the union members' innocence." (Pl. Mem. of Law in Opp. to Def. Miklave's Mot. to Dismiss at 4.)
At or around the time of CO Smith's appeal at the July 13 briefing, five COs asked to be excused from forced overtime on the grounds of illness. The County filed disciplinary charges and the matter proceeded to arbitration. The arbitrator found that the County's claim that COBA members conspired to prevent officers from working overtime was not supported by the evidence. He found the union members not guilty of the charges and held that the County did not have probable cause to suspend them.
Epstein Becker Green, P.C., along with Alan Scheinkman as Westchester County Attorney, represented the County in the Cobb suit. As noted above, Epstein Becker was also the attorney of record for DelBene in the Bartolini action, although the parties dispute the capacity in which the firm was representing DelBene. Plaintiff was scheduled to be deposed on September 14, 2000, by Cobb's attorney. Epstein Becker attorney Miklave and County Attorney Alesio allegedly "arranged to have DelBene ordered by his sergeant to meet with the 'County Attorney'" in the morning prior to his deposition.
DelBene did meet with Miklave on the morning of September 14. Plaintiff claims that at this meeting Miklave intended to mislead DelBene into thinking that Miklave was somehow representing DelBene's interests. DelBene signed and dated a document that stated the following:
My name is Matthew T. Miklave and I am of counsel to Westchester County Attorney Alan Scheinkman. As you know, your deposition is scheduled to be taken in the case on September 14, 2000. I am here to talk to you about that case and to prepare you for the deposition. As the County's Attorney, everything you and I discuss is privileged and confidential.
I can assure you that this interview is entirely voluntary on your part. You can decline to meet with me if so choose [sic], although you will still be deposed in this case. During this interview, I will be asking you some questions about your participation in and knowledge of (if any) the facts and circumstances of the lawsuit. I can assure you that any answers you give will be held in strictest confidence by the County and will not be disclosed unless the County is required to do so. I assure you that whether or not you elect to participate in this interview and, if you participate, no matter what answers you give, your job will not be affected in any way. There will be no reward, no reprisals, no change in your job status, and no changes in your wages or benefits, regardless of whether you meet with me or what you have to say.
You are requested not to discuss this interview with any other person, in order to maintain the privileged and confidential nature of this interview.
Please sign and date this statement for the sole purpose of indicating that you have read and understand it.
I HAVE READ AND UNDERSTAND THE ABOVE.
(Lovett Aff. at Ex. 7.) DelBene also claims that Miklave introduced him to County Attorney Alan Scheinkman with the intention of falsely inducing DelBene to believe that Miklave and Scheinkman were protecting his interests. Plaintiff alleges that he pressed Miklave as to who else, if anyone, he represented in the Cobb litigation, and that Miklave, who also represented Commissioner Pozzi, said that he "was not at liberty to divulge" the names of his other clients. (Compl. at ¶¶ 29-31.) Miklave also allegedly refused to acknowledge to Cobb's counsel that Epstein Becker Green represented DelBene in his individual capacity in the Bartolini action, and refused to tell Cobb's counsel wether Alesio was serving in a co-counsel capacity with him in Cobb.
At the deposition, following Cobb's direct examination, Miklave proceeded to ask DelBene questions on a number of issues, including: (1) his motives for writing the December 30, 1999 letter; (2) the pending disciplinary charges against DelBene; (3) whether he intended to run for President of COBA; (4) whether he had lied to a supervisor at the Department of Correction about not feeling well enough to work a forced overtime shift. (Compl. at ¶ 34.)
Plaintiff also alleges that after the deposition Miklave sought to convince DelBene to alter his testimony when correcting the deposition transcript, so as to falsely state that Miklave had not refused to disclose to DelBene the names of his clients in the Cobb litigation.
Plaintiff's Claims
Plaintiff alleges First Amendment retaliation by defendants. He claims that defendants retaliated against him for writing the December 30, 1999 letter and offering truthful testimony during his January 3, 2000 Bartolini deposition, during which he criticized the Department of Corrections and Commissioner Pozzi. Plaintiff also alleges that defendants sought to "chill" him in any further exercise of his free speech rights, namely, to continue to voice his opinion on COBA-County matters, and to run for the office of COBA president. Plaintiff lists the following retaliatory and "chilling" actions by defendants:
(1) First Claim against the County defendants for suspending DelBene without pay for thirty days pending disciplinary proceedings, for instituting those proceedings, and for failing to prosecute or drop the disciplinary action.
(2) Second Claim against the County defendants for naming DelBene individually in the state court action seeking the TRO, when doing so was unnecessary in light of the fact that the requested injunctive relief would have been applicable to all members of COBA, including plaintiff;
(3) Third Claim against Alesio and Miklave for "compromising" DelBene during the Cobb deposition, ostensibly by cross-examining him while simultaneously representing him in a separate proceeding.
(4) The Fourth Claim against Miklave is a claim under New York State law for malpractice. DelBene alleges that, because Epstein, Becker Green represented plaintiff in the Bartolini litigation, Miklave committed malpractice by deliberately impairing DelBene's rights during the conduct of the Cobb deposition.
(5) The Fifth Claim against the County defendants alleges "selective prosecution" of plaintiff in violation of the Fourteenth Amendment to the United States Constitution, by reason of the disparate disciplinary treatment accorded to plaintiff, in contrast to the disciplinary treatment given to CO Smith.
(6) Sixth Claim against Pozzi for offering (through an unidentified intermediary) to reduce DelBene's suspension to fifteen days if DelBene agreed to a "gag" order preventing him from speaking publicly on COBA matters.
(7) The Seventh Claim against all defendants is for an alleged violation of plaintiff's right under 42 U.S.C. § 1985(2), to be free from intimidation, threats and/or punitive action with respect to his testimony as a party in Bartolini and as a non-party witness in Cobb.
DISCUSSION
The role of a district court in considering a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must regard as true all the complaint's factual allegations and must grant the plaintiff all reasonable inferences from those facts. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). The complaint should not be dismissed "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957)). It is, however, incumbent upon the plaintiff to identify specific facts to support his claims, and a complaint containing nothing more than bald assertions and conclusions of law cannot survive a motion to dismiss. See Leeds v. Meltz, 85 F.2d 51, 53 (2d Cir. 1996).
1. Defendants' Motion to Dismiss Plaintiff's First Claim is Granted in Part and Denied in Part
It is well-established that the government, acting as an employer, may regulate the speech of its employees far more extensively than that of the general public. See Waters v. Churchill, 511 U.S. 661, 671-72, 114 S.Ct. 1878, 1886, 128 L.Ed.2d 686 (1994) (plurality). To prevail on his § 1983 claim, DelBene must show that he was speaking as to a matter of public concern, and that his interest in expression outweighed any injury the speech could have caused to the state's interest in the efficient performance of its public servants. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734 (1968).
A determination of whether the speech if of "public concern" is made by the court, and is "determined by the content, form, and context of a given statement as revealed by the whole records." See Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. In general, speech by a public employee, like DelBene, may be considered as implicating a matter of public concern only if the impetus for the speech "arises from the speaker's status as a public citizen" rather than "from the speaker's status as a public employee." Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994).
a. The First Claim is Dismissed as Far it Relies on Publication of the December 30, 1999 Letter
In Israel v. Abate, 949 F. Supp. 1035 (S.D.N.Y. 1996), COBA and the president of COBA brought a § 1983 suit against the Department of Correction, the City of New York, and various state officials, alleging that they had been illegally prohibited from circulating COBA flyers concerning working conditions, morale, voting for or against certain officials, and employment of counsel. The plaintiffs argued that these flyers were matters of public concern and were therefore protected under the First Amendment. Id. at 1041. The court disagreed and granted the defendants' summary judgment motion dismissing the § 1983 claim. The court ruled that the content of the fliers, whose primary purpose was to further the internal union interest of employing individuals to act on behalf of COBA, was "primarily to further the interest of the speaker rather than to address matters of concern to the general public." Id. (citing Connick, 461 U.S. at 146, 103 S.Ct. at 1690.
I can find no relevant difference between the fliers at issue in Israel and DelBene's letter. In fact, the December 30, 1999 letter, if anything, touches, even less on matters of public concern than the fliers in Israel. As his own union told him, the letter bordered on an illegal job action in violation of New York's Taylor law, which prohibits strikes and job actions by public employees and authorizes injunctive relief in the event of a threatened job action. See N.Y. Civ. Serv. Law. § 210(1), § 211. The plain language of the letter reveals its clear purpose % to further internal union interests and exert bargaining pressure on the County. DelBene's letter discussed the fact that COBA members had been without a collective bargaining agreement for years, and proclaimed that the solution was for the COs to "join together" and "fight their enemies." There was nothing in the letter discussing, for example, the impact of the contract negotiations or staffing conditions on the general public, and no references to other matters of public concern such as expenditures of tax money or breaches of the public trust. See Israel, 949 F. Supp. at 1041. In light of Israel, plaintiff's attempt to argue that the December 30 letter was simply an effort by him to voice his conscience is patently frivolous.
Plaintiff's cite to Clue v. Johnson, 179 F.3d 57, 60 (2d Cir. 1999) is inapposite. There, the Second Circuit assumed that plaintiffs activities, including distribution of union flyers, must have involved a matter of public concern. Id. As seen above, there is no such assumption here.
Because plaintiff cannot establish that the letter he distributed to COBA members was a matter of public concern, any claims that defendants retaliated against him or attempted to chill plaintiff's speech on the basis of this letter must fail.
Assuming, arguendo, that the December 30 letter involved a matter of public concern, plaintiff's retaliation claims would still fail under the second step of the First Amendment analysis, which entails a balancing of the State's interests as an employer in promoting the efficiency of the public services it performs through its employees with the employee's interests in expressing himself on matters of public concern. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734 (1968). The government need not show an actual interference with government operations, but merely that the speech threatened to interfere with government operations. See Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995), citing Waters v. Churchill, 511 U.S. 661, 673, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994) (plurality). The County's response % seeking to forestall any potential disruptive job action on the night of New Year's Eve by filing a request for a TRO % was an obvious and necessary step in light of the County's obligation to maintain a secure facility. See Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.), cert. denied, 528 U.S. 823, 120 S.Ct. 70, 145 L.Ed.2d 60 (1999) (citations omitted) (pointing out that the employer need not wait for events to unfold before taking action).
b. Plaintiff's First Claim Is Not Dismissed Insofar As It Is Based On Speech Other Than The December 30 Letter
Plaintiff argues that his First Claim is grounded on retaliation, not only for his dissemination of the December 30 letter, but also for other "speech." He alleges that defendants were motivated by retaliatory animus towards plaintiff for having given truthful (and negative toward the Department) testimony in his Bartolini deposition when, the day after the deposition, they suspended him for thirty days pending formal disciplinary charges and instituted disciplinary proceedings against him. Plaintiff also alleges defendants were seeking to chill his exercise of his First Amendment rights in seeking the COBA Presidency.
DelBene's testimony, in which he criticized the conditions in the jail and the Department of Correction, could fairly be characterized as speech on a matter of "public concern." See Kalb v. Wood, 38 F. Supp.2d 260, 267 (S.D.N.Y. 1999) ("speech will be fairly characterized as a matter of public concern if it relates to any matter of political, social or other concern to the community.") (citing Connick, 461 U.S. at 146). His possible bid for a union office is also protected by the First Amendment. See Smith v. Arkansas State Highway Employee's Local 1315, 441 U.S. 463, 464, 99 L.Ed. 1826, 1827-28, 60 L.Ed.2d 360 (1979) (noting that First Amendment protects right to associate as part of a labor organization).
While the question whether a public employee spoke out on a matter of public concern is generally a question of law, whether plaintiff's speech was a motivating factor in the adverse employment action presents a question of fact. Piesco v. Koch, 12 F.3d 332, 342 (2d Cir. 1993). While these claims may not survive a motion for summary judgment, plaintiff has sufficiently alleged that an adverse employment action was taken against him on the basis of protected speech. Therefore I cannot dismiss plaintiff's claims for retaliation or chilling against him for his deposition testimony or his possible bid for the COBA presidency.
2. Defendant's Motion to Dismiss The Second Claim is Granted
Claim Two alleges that Alesio and Pozzi filed the TRO naming DelBene individually in order to chill plaintiff's speech or out of retaliatory animus. This Claim is dismissed because the facts, even if true as alleged by plaintiff, do not state a claim. Plaintiff has failed to allege how naming him in the lawsuit violated his right to free speech. DelBene authored a letter that called for an action the Department of Correction was seeking to prevent by requesting the TRO. He was therefore properly named. Moreover, the suit was not frivolous, as evidenced by the fact that an injunction issued. There can be no basis for a retaliation claim.
3. Defendant's Motion to Dismiss The Third Claim is Granted
Claim Three alleges that Alesio conspired with Miklave to cross-examine DelBene in the Cobb action to retaliate against him or chill him in his speech (again, other than the December 30 letter). This claim is dismissed against Alesio because plaintiff has failed to allege that Alesio participated in any way in the actual cross examination. He also fails to allege how Alesio used the cross-examination as retaliation, or how whatever Alesio did chilled DelBene's speech.
The Claim is dismissed as against Miklave because he is not a state actor. To prevail in a claim under § 1983, plaintiff must first show that Miklave, a private party, was "acting under color of state law" at the time he allegedly violated plaintiff's constitutional rights. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Sherlock v. Montefirore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996). A private individual can be held liable under § 1983 "only as a willful participant in joint activity with the State or its agents.'" Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.) (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)), cert. denied, 506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992). "Actions by a private party are deemed state action if 'there is a sufficiently close nexus between the State and the challenged action' that the actions by the private parties 'may be fairly treated as that of the State itself.'" Chan v. City of New York, 1 F.3d 96, 106 (2d Cir.) (citations omitted), cert. denied 510 U.S. 978, 114 S.Ct. 472, 126 L.Ed.2d 423 (1993). "The purpose of [the nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains. Id.
In general, a private attorney representing a client in either a civil or criminal action is not a state actor for purposes of § 1983. See Srubar v. Rudd, Rosenberg, Mitofsky Hollender, 875 F. Supp. 155, 163 (S.D.N.Y. 1994), aff'd 71 F.3d 406 (2d Cir. 1995); McArthur v. Bell, 788 F. Supp. 706, 710-11 (E.D.N.Y. 1992). In order for liability to attach under § 1983, the attorney must conspire with state actors, even if the state actors are themselves immune from § 1983 liability. Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980).
Plaintiff identifies the conspiracy as Miklave's coordination of the Cobb deposition with Alesio and Scheinkman, alleging that Miklave "intended" to deceive DelBene and that "Alesio and Miklave jointly agreed to utilize the deposition forum" to elicit damaging testimony from him. However, "a claim of conspiracy to violate civil rights is a clear example" of a suit in which "detailed fact pleading is required to withstand a motion to dismiss." Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981). Here, plaintiff has failed to allege sufficient facts to support his conclusory allegations of conspiracy between Alesio and Miklave. Thus, his allegations are automatically insufficient to support a finding that Miklave was operating as a state actor. See Dahlberg v. Becker, 748 F.2d 85 (2d Cir. 1984) (finding plaintiff failed to allege specific facts from which the court could reasonably infer that defendant attorneys had "acted 'in concert with state and County officials'"), cert. denied, 470 U.S. 1084, 105 S.Ct. 1845 (1985). Accordingly, the Third Claim is dismissed as against this defendant.
Furthermore, plaintiff has failed to allege any facts showing how Miklave's cross-examination of DelBene in the Cobb action acted to either chill his speech or retaliate against his speech. Miklave was exploring DelBene's potential bias in an action where he had testified in support of two officers who had declined to work forced overtime, claiming that they were ill. DelBene's December 30 appeal to his fellow COBA members to refuse overtime was directly relevant to this matter.
The Third Claim is therefore dismissed.
4. Defendant's Motion to Dismiss the Fourth Claim for Malpractice Against Miklave is Granted
A plaintiff cannot claim malpractice against someone who does not represent him. See Guinness Mahon Cayman Trust, Ltd. v. Windels, Marx, Davies Ives, 684 F. Supp. 375, 378-79 (S.D.N.Y. 1988). As Miklave represents DelBene only in the Bartolini case, that is the only matter in which DelBene can claim malpractice. DelBene does not allege any facts supporting a malpractice claim in Bartolini. Instead, he alleges that Miklave asked him questions as a non-party witness in Cobb, a case in which Miklave represented the County but not DelBene. There are no allegations that the County hired Miklave to represent DelBene as a witness in the deposition, and on the face of the statement signed by Miklave there is nothing suggesting that DelBene was Miklave's client.
The Fourth Claim is therefore dismissed.
5. Defendant's Motion to Dismiss Plaintiff's Fifth Claim for Selective Enforcement is Granted
To plead an Equal Protection claim for selective enforcement, plaintiff must prove: (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) ("it is axiomatic that a plaintiff [bringing a selective enforcement claim under § 1983] must allege that similarly situated persons have been treated differently").
The test for determining whether persons similarly situated were selectively treated is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent. See Penlyn Dev. v. Village of Lloyd Harbor, 51 F. Supp.2d 255, 264 (E.D.N Y 1999) (noting that "apples should be compared to apples"). Plaintiff has not adequately alleged that he and CO Smith were similarly situated. Mere failure to prosecute other offenders is not a basis for a finding of equal protection. LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980).
Furthermore, the allegation that DelBene was treated differently, without more, is insufficient. Plaintiff, by his own admission, distributed a letter to the entire union membership, purportedly on behalf of the union, calling for an illegal job action during what was perceived throughout the world as a potential emergency. Smith made his appeal to a smaller group of COs during a meeting, and it was not timed to create maximum chaos in a way that might compromise the safety of the facility. To allow plaintiff to proceed with this claim would stretch the "selective prosecution" cause of action way beyond its bounds.
The Fifth Claim is dismissed.
6. Defendants' Motion to Dismiss Plaintiff's Sixth Claim Against Pozzi is Granted
DelBene further alleges in his Sixth Claim that Pozzi attempted to chill his speech when he offered (through an unidentified COBA intermediary) to reduce DelBene's suspension in exchange for DelBene's promise not to publicly express himself with respect to COBA-County relations or the Department of Correction. This Claim is without merit. The government may restrict potentially disruptive speech by an employee, and the condition that DelBene cease engaging in disruptive speech in exchange for reducing his suspension (a suspension that he received as a result of engaging in speech that, as I held above, was not protected by the First Amendment) was entirely reasonable. See Waters, 511 U.S. at 672, 114 S.Ct. at 1886. The Sixth Claim is therefore dismissed.
7. Defendants' Motion to Dismiss Plaintiff's Seventh Claim For Violation of 42 U.S.C. § 1985(2) Is Granted
In order to state a claim under Section 1985(2), a plaintiff must allege: (1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation or threat from attending any court of the United States or testifying freely in a matter pending therein, which (3) causes injury to the claimant. Herrera v. Scully, 815 F. Supp. 713, 726 (S.D.N.Y. 1993) (citing Chahal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984)).
Plaintiffs' claim under Section 1985(2) appears to be based on the allegations that Alesio and Miklave conspired to utilize plaintiff's deposition in Cobb "with a view towards . . . intimidating and threatening him in anticipation of his expected testimony at the trial of Bartolini." (Compl. at ¶ 25.)
Assuming, arguendo, that DelBene had sufficiently alleged a conspiracy under the detailed pleading standards for such a claim (and I do not believe he has), plaintiff has failed to allege how cross-examining him about sources of potential bias or refusing to clarify who Miklave represents in the Cobb case constitutes any kind of force, intimidation, or threat that would act to prevent DelBene from testifying in the Bartolini case. There are no allegations, aside from fact that the cross-examination was conducted, that any defendant ever used or threatened to use the information gained in the cross-examination against DelBene.
To withstand a motion to dismiss, a conspiracy claim must contain more than conclusory, vague or general allegations of conspiracy. Romer v. Morgenthau, No. 99 Civ. 9052, 2000 WL 1401052 (S.D.N.Y. Sept. 26, 2000); see also Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981) (noting detailed pleading requirement for conspiracy claims).
The Seventh Claim is dismissed.
8. The First Claim Is Dismissed As Against Alesio And Not Dismissed As Against Pozzi On Grounds of Qualified Immunity
Defendants move to dismiss the claims against the individual County defendants on the grounds of qualified immunity. I will apply the qualified immunity analysis solely to the First Claim, as it is the only one that remains against Alesio and Pozzi (to the extent it does not rely on the letter). The Claim alleges that Alesio and Pozzi sought to chill DelBene's speech or retaliate against him by (1) suspending DelBene without pay for 30 days pending disciplinary proceedings, (2) instituting those proceedings, and (3) deciding to neither prosecute nor drop those proceedings.
"As with any 'constitutional tort,' a governmental employer . . . may be entitled to qualified immunity for firing an employee in apparent breach of the First Amendment." Sheppard v. Beerman, 94 F.3d 823, 827-28 (2d Cir. 1996). "Government officers performing discretionary functions are immune from liability for civil damages if their conduct either 'did not violate "clearly established" rights of which a reasonable person would have known, or . . . it was "objectively reasonable" to believe that [their] acts did not violate these clearly established rights.' Genas v. State of New York Dept. of Correctional Services, 75 F.3d 825, 830 (2d Cir. 1996) (quoting Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993)) (emphasis added); see also Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987), Shechter v. Comptroller of City of New York, 79 F.3d 265, 270-72 (2d Cir. 1996) (holding that the question is not whether defendants should have known of an abstract federal right but whether they should have known that their acts specifically violated a plaintiff's right, since too broad a definition of specificity would turn "qualified immunity . . . [into] virtually unqualified liability simply by [plaintiff] alleging violation of extremely abstract rights") (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The test renders irrelevant any allegations of wrongful intent or malice. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
For the purposes of this decision I assume, without finally deciding, the threshold issue: namely that plaintiff had a clearly vested right to engage in the protected speech at issue (again, the remaining "speech" in this case is plaintiff's criticism of the Department and Pozzi in his Cobb deposition, and his potential run for the COBA presidency). Thus, the inquiry focuses on whether the decision to discipline DelBene for that speech (again, assuming the allegations in the complaint to be true), were objectively reasonable. Doe v. Marsh, 105 F.3d 106 (2d Cir. 1997).
A government official may, in certain circumstances, discipline, even fire an employee for speaking — even on a matter of public concern — where that speech has the potential to disrupt the work environment. See Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987). In Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), cert. denied, 516 U.S. 862, 116 S.Ct. 173, 133 L.Ed.2d 114 (1995), the Second Circuit stated that discipline (which there came in the form of termination) does not violate the employee's First Amendment rights where:
(1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech. Id. at 13; see also Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 1889-91, 128 L.Ed.2d 686 (1994). This was settled law at the time Pozzi and Alesio disciplined DelBene. Thus, these defendants' actions were objectively reasonable if they meet these three criteria.
However, the Second Circuit has also held that an employer's actual (subjective) motivation in taking adverse action against the employee is not irrelevant in a qualified immunity inquiry. See Sheppard, 94 F.3d at 828. The complaint alleges that Pozzi acted solely and exclusively to chill DelBene's speech. I cannot decide as a matter of law that this allegation is erroneous; it raises a question of fact. While it is highly improbable that plaintiff will be able to defeat a qualified immunity defense on a motion for summary judgment, I can not dismiss the First claim against Pozzi on qualified immunity grounds at this time.
As for Alesio, who drafted the disciplinary charges, she is qualifiedly immune. She was an attorney acting at the behest of a client, and her actions were therefore objectively reasonable.
CONCLUSION
The only remaining claim is the First Claim against the County and Pozzi for alleged retaliation or chilling of speech on the basis of plaintiff's deposition testimony in the Cobb case or his potential bid for the COBA presidency. Plaintiff has no claim on the basis of his December 30 letter. All other claims are dismissed.
This constitutes the order and decision of the Court.