Opinion
5-02-CV-1578
October 1, 2003
LEON KOZIOL, ESQ., LAW OFFICES OF LEON R. KOZIOL, ESQ., Utica, NY, for Plaintiff
VINCENT J. ROSSI, ESQ., ROSSI AND MURNANE, Utica, NY, for Defendant Michael Arcuri
BARTLE J. GORMAN, ESQ., GORMAN, WASZKIEWICZ, GORMAN SCHMITT Utica, NY, Attorneys for Defendants Peter Paravati and the County of Oneida
CHARLES N. BROWN, ESQ, OFFICE OF CORPORATION COUNSEL Utica, N.Y. 13502, Attorneys for Defendants Timothy Julian and City of Utica One Kennedy Plaza
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff Cornell Maye ("Maye") has now filed and served an Amended Complaint asserting claims pursuant to 42 U.S.C. § 1981 (First Cause of Action), 42 U.S.C. § 1983 (Second Cause of Action), 42 U.S.C. § 1985 (Third Cause of Action), and 42 U.S.C. § 1986 (Fourth Cause of Action) arising out of the events leading up to, and including, the termination of his employment with the City of Utica. Defendant District Attorney Michael Arcuri ("D.A. Arcuri") moves to dismiss pursuant to Fed.R.Civ.P. 12. Defendants Undersheriff Peter Paravati ("Undersheriff Paravati") and the County of Oneida move separately for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of all claims against them. Defendants Mayor Timothy Julian ("Mayor Julian") and the City of Utica also separately move to dismiss pursuant to Fed.R.Civ.P. 12. Plaintiff opposes.
As noted supra, this will be treated as a Rule 12 motion.
Oral argument was heard on September 4, 2003 in Utica, New York. Decision was reserved.
II. FACTS
A few words must be said about the Amended Complaint before discussing the facts alleged therein. By Order dated May 9, 2003, numerous portions of Plaintiff's initial Complaint were dismissed as untenable. The remaining portions of the original Complaint were stricken for failure to comply with Fed.R.Civ.P. 8(a)(2) and 12(f). The original Complaint asserted six causes of action in twenty-eight pages and eighty-nine
paragraphs. Plaintiff was granted leave to file an Amended Complaint that complied with Rules 8(a)(2) and 12(f). Plaintiff's Amended Complaint now contains four causes of action and consists of twenty-three pages and seventy-three paragraphs. It continues to be a rambling narrative more indicative of a novel than a federal complaint. The Amended Complaint is disorganized and it is extremely difficult to ascertain what causes of action are asserted as to which defendants and the bases for the causes of action. In accordance with the warnings given to Plaintiff on May 9, 2003, the Amended Complaint is ripe for dismissal for its continued failure to comply with Rules 8(a)(2) and 12(f). Nevertheless, because defendants have gone to considerable burden and expense in responding to and moving to dismiss the Amended Complaint, it will be accepted.
Plaintiff's counsel is again warned that in any future litigation in the Northern District of New York, he shall strictly adhere to the requirements of Rules 8(a)(2) and 12(f) and stick to asserting a short and plain statement of the claims. Otherwise, he will face sanctions, including the possible dismissal of the action. A copy of this decision will be sent to the other judges in the District.
Notwithstanding the disheveled nature of the Amended Complaint, the core facts appear to be as follows. In 1998, Plaintiff was appointed as the Public Safety Commissioner for the City of Utica. (Am. Compl. ¶ 10.) He was terminated on September 25, 2001. (Id.) He alleges that, during his time as Public Safety Commissioner, he was subjected to a racially hostile work environment, (Id.) He claims that Mayor Julian "commenced a process of terminating minority department heads while offering specially created positions for white department heads to effectively preserve their career tracks." (Id. ¶ 12.)
At its heart, the Amended Complaint alleges that "defendant Julian conspired with various public and private individuals, including the Oneida County District Attorney, Oneida County Court Judge and Oneida County Undersheriff, among others, to create an environment which cast Mr. Maye in a negative and incompetent light in the public eye." (Id. ¶ 13.) According to the Amended Complaint, "the parties conspired not only to destroy plaintiffs employment, but also his future career prospects in New York State and his reputation in the community altogether." (Id.) Plaintiff contends that defendants privately met to devise a means of terminating him for cause, consisting of false criminal and quasi — criminal charges, including revoking plaintiff's pistol permit, and indicting him on numerous counts of criminal misconduct, (Id. ¶¶ 13-16.)
The pistol permit revocation procedure stems, at least in part, from an incident on April 23, 2001 wherein plaintiff assisted a police officer in effectuating a traffic stop and during which incident plaintiff drew a gun upon the passenger in the vehicle. (Compl. ¶ 25.)
Maye complains that, after a judge ordered that his pistol permit be revoked, members Oneida County Sheriff's Department detained him, searched his home and confiscated his pistols, (Id. ¶ 19.) He further complains that D.A. Arcuri maliciously instituted several other criminal charges against him, all of which terminated in plaintiff's favor, (Id. at ¶ 29.) He also claims that he has been subjected to full body searches when entering the Oneida County Courthouse whereas white police officers are allowed to by — pass the search process. Finally, he claims the Sheriffs Department issued him an illegal parking summons.
As a result of the foregoing, Maye commenced the instant action claiming violations of his constitutional rights. In his First Cause of Action, plaintiff claims that he was subjected to disparate treatment and a hostile work environment in violation of 42 U.S.C. § 1981. The First Cause of Action further claims that plaintiff was "impeded and retaliated against in his processing of a notice of claim only days prior to his termination and in his efforts to otherwise seek redress in various tribunals and courts of law on account of his race, all in further violation of the First Amendment."
In the Second Cause of Action, pursuant to 42 U.S.C. § 1983, plaintiff contends that defendants have "have retaliated against [him] in his exercise of free speech rights," "violated [his] rights to be free from unlawful search and seizure of his person and property," "failed to rectify the numerous false allegations by way of a name clearing hearing," "treated white employees and suspects more favorably than black victims similarly situated," and "acted in arbitrary and capricious fashion in their various criminal, civil, and quasi — criminal prosecutions" all in violation of the First, Fourth and Fourteenth Amendments.
In the Third Cause of Action, plaintiff alleges a conspiracy to deprive him of his constitutional rights in violation of 42 U.S.C. § 1985.
In the Fourth Cause of Action, plaintiff contends that defendant failed to prevent, limit or disassociate themselves from a conspiracy to violate his constitutional rights in violation of 42 U.S.C. § 1986.
III. STANDARD OF REVIEW — (Motion to Dismiss)
"'A court may dismiss a complaint [under Fed.R.Civ.P. 12] only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (quoting Hishon v. King Spaldinq, 467 U.S. 69, 73 (1984)). The Supreme Court rejected this Circuit's practice of requiring a complaint to allege a prima facie case of discrimination to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 508-14. The Court held that such a "heightened pleading standard in discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must only include 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 512 (quoting Fed.R.Civ.P. 8(a)). "This simplified notice pleading relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. Thus, a complaint is sufficient if it gives the defendant fair notice of the plaintiff's claims, the grounds upon which they rest, and states claims upon which relief could be granted,Id. at 514.
IV. DISCUSSION A. Claims Against D.A. Arcuri 1. Absolute Immunity
Prosecutors are entitled to absolute immunity in connection with their activities that are intimately associated with the judicial phase of the criminal process. Pinnaud v. County of Suffolk, 52 F.3d 1139, 1146-49 (2d Cir. 1995). The test is a functional one, focusing not on the title of the individual at issue, but on the nature of the conduct at issue. See id. Here, the Complaint makes numerous allegations concerning D.A. Arcuri's involvement with the termination of plaintiff's employment. Such activities are not related to the judicial phase of the criminal process and, thus, are outside the scope of absolute immunity. The same reasoning applies to the allegation that D.A. Arcuri retaliated against plaintiff for engaging in protected speech. With respect to the equal protection claim concerning D.A. Arcuri's handling of black victims (which is discussed more fully below), it cannot now be determined whether absolute immunity attaches. There is insufficient information from which it may be determined whether D.A. Arcuri's conduct in this regard was intimately associated with the judicial phase of the criminal process. Finally, the Complaint alleges that D.A. Arcuri maliciously prosecuted plaintiff on several instances. "Case law from this circuit clearly establishes that the district attorneys' activities with respect to the malicious prosecution claim . . . are covered by absolute immunity."
2. 42 U.S.C. § 1981 (First Cause of Action)
Maye contends that he was discriminated in his employment on account of his race in violation of 42 U.S.C. § 1981. D.A. Arcuri moves to dismiss this claim as against him contending that he may not be held liable as a matter of law because he did not supervise plaintiff and was not part of the hierarchy making the decisions to demote or terminate him.
"Section 1981 provides a cause of action for race — based employment discrimination based on a hostile work environment." Whidbee v. Garzarelli Food Specialties. Inc., 223 F.3d 62, 68 (2d Cir. 2000). "To make out a claim for individual liability under § 1981, a plaintiff must demonstrate 'some affirmative link to causally connect the actor with the discriminatory action.'" Whidbee, 223 F.3d at 75 (quoting Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)).
Here, although the Amended Complaint alleges some sort of a conspiracy between D.A. Arcuri and the other defendants, there is nothing in the Amended Complaint tending to suggest that he acted with the others because of plaintiff's race. Stated otherwise, nothing in the Amended Complaint suggests that D.A. Arcuri acted in concert with the other defendants to discriminate against plaintiff on account of his race. In fact, the Amended Complaint itself alleges a conspiracy to cast plaintiff in a negative light; not a race — based conspiracy. (Am. Compl. ¶ 13.) With respect to D.A. Arcuri specifically, the Amended Complaint alleges that his modus operandi was "to vindicate and protect political supporters who were loyal to him;" not racial discrimination (Id. ¶ 23.) Thus, there is nothing connecting D.A. Arucri's actions to the alleged discriminatory termination of his employment and the § 1981 claim against D.A. Arcuri must be dismissed.
3. 42 U.S.C. § 1983 (Second Cause of Action) a. First Amendment
The Amended Complaint appears to assert a First Amendment retaliation claim against D.A. Arcuri. At paragraph 63 of the Amended Complaint, Maye alleges that "defendant Arcuri reacted regularly to every criticism of his activities in the local press . . . vowing publicly on September 11, 2001 to pursue additional perjury charges which never materialized." (Am. Compl. ¶ 63.) Thus, plaintiff's Amended Complaint is grounded upon D. A. Arcuri's statement that he would pursue additional perjury charges.
To state a claim for retaliation, there must be some allegation of an adverse action taken by the defendant against the plaintiff or an action that otherwise effectively chilled plaintiff's exercise of his First Amendment rights. Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003);Connell v. Sianoracci, 153 F.3d 74, 79 (2d Cir. 1989). Here, D.A. Arcuri's conduct consists of nothing but words. These words do not constitute an adverse action and are insufficient to chill plaintiff's free speech in violation of the First Amendment. Furthermore, perjurious statements are not protected by the First Amendment. See, Gates v. City of Dallas, 729 F.2d 343, 345-46 (5th Cir. 1984); F.E.C. v. Central Long Island Tax Reform Immediately Comm, 616 F.2d 45, 54 (2d Cir. 1980) (Kaufman, C.J., concurring) ("false speech is not per se protected by the First Amendment"). The District Attorney is free to prosecute perjury and, thus, his statement threatening to prosecute any perjury cannot be the basis of a retaliation claim. In any event, in this case, he did not commence any perjury prosecutions. Accordingly, the First Amendment retaliation claim against him must be dismissed.
b. Fourth Amendment
There is nothing in the Amended Complaint substantiating a claim that D.A. Arcuri subjected plaintiff to an unlawful search or seizure in violation of the Fourth Amendment. At paragraph 67 of the Amended Complaint, Maye alleges that defendants "have acted in arbitrary and capricious fashion in their various criminal, civil and quasi — criminal prosecutions, including an employment termination." The basis of these allegations is unclear from the Amended Complaint. If plaintiff is asserting a cause of action for a Fourth Amendment violation resulting from malicious prosecutions, this claim must fail because there is no allegation that there was a sufficient liberty restraint as a result of the District Attorney's prosecutions to implicate plaintiff's Fourth Amendment rights. Rohmann v. New York City Transit Auth, 215 F.3d 208, 215 (2d Cir. 2000); Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995). Thus, any Fourth Amendment claims must also be dismissed.
Plaintiff does allege that his person was seized in connection with the revocation of his pistols. This, however, was not the result of a prosecution by D.A. Arcuri. Rather, that was effectuated by the Oneida County Sheriff's Office. Even if D.A. Arcuri is somehow linked to this seizure, a malicious prosecution claim would fail because the pistol permit revocation procedure did not terminate in plaintiff's favor. Posr v. Court Officer Shield #207, 180 F.3d 409, 417 (2d Cir. 1999).
c. Due Process
Maye also asserts a claim that he was defamed in connection with the termination of his employment without the opportunity of a name clearing hearing and, thus, denied his due process rights. The District Attorney was not plaintiff's employer and was not involved in his termination and was in no position to afford him with such a hearing. Accordingly, this claim must also be dismissed.
d. Equal Protection
Next, Maye contends that "[d]efendants have treated white employees and suspects more favorably than black victims similarly situated as plaintiff." The only arguable allegation of racial discrimination by D.A. Arcuri is a statement in the Amended Complaint that "defendant Arcuri maintained an adversarial role with plaintiff unlike white officers engaged in comparable activities in what should have been a standard joint effort to prosecute the said drug dealers." (Am. Compl. ¶ 26.) This statement flows from plaintiff's allegations that he was faulted by defendants for his conduct in assisting a police officer during a traffic stop on April 23, 2001.
These allegations fail to state a viable claim against the District Attorney for two primary reasons. First, taking the allegations as true, they do not evidence disparate treatment of similarly situated persons. Although the Amended Complaint alleges that plaintiff was treated different than white police officers, plaintiff was not a police officer. Second, even assuming plaintiff was treated differently than similarly situated persons on account of his race, there is no allegation that such treatment had any tangible effect upon plaintiff. In other words, the Amended Complaint does not allege any negative consequences resulting from D.A. Arcuri's alleged "adversarial role" with plaintiff. Although morally wrong, a mere inability to get along or a conflict between two persons based on race does not amount to a constitutional deprivation.
The April 23, 2001 incident did lead to D.A. Arcuri's requesting that plaintiff's pistol permit be revoked. The Amended Complaint does not allege that he sought to revoke plaintiff's pistol permit on account of his race. In any event, the basis for the revocation and the procedure surrounding that process have been upheld by the New York State courts.Maye v. Dwyer, 295 A.D.2d 890 (4th Dep't), leave to appeal dismissed, 98 N.Y.2d 764 (2002).
4. 42 U.S.C. § 1985 and 1986 (Third and Fourth Causes of Action)
D.A. Arcuri also moves to dismiss Maye's claim pursuant to 42 U.S.C. § 1985. That claim alleges a conspiracy to deprive plaintiff of his constitutional rights. The Second Circuit has held that "[i]t is incumbent on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive him of his constitutional rights." Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990); see Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002). "[A] plaintiff alleging a conspiracy under § 1985(3) must allege, with at least some degree of particularity, overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy." Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999). Moreover, the agreement must be to deprive plaintiff of his constitutional rights. See id; Thornton v. City of Albany, 831 F. Supp. 970, 980 (N.D.N.Y. 1993). Although the basis for this heightened pleading requirement is questionable in light of the Supreme Court's decision in Swierkiewicz, see Toussie v. Powell, 323 F.3d 178, 185 n. 3 (2d Cir. 2003), the Second Circuit has stuck to this requirement in post — Swierkiewicz decisions and, thus, it will be applied here. See Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003).
While the Amended Complaint adequately alleges an agreement among the defendants (Am. Compl. ¶¶ 13-14) and that the agreement included maliciously prosecuting plaintiff, as discussed, there is no allegation that plaintiff was deprived of any liberty interest as a result thereof and, thus, the Amended Complaint does not adequately allege an agreement to deprive plaintiff of his constitutional rights. To the extent plaintiff claims a conspiracy to deprive him of his rights under the equal protection clause, the Amended Complaint alleges a conspiracy to cast plaintiff in "a negative and incompetent light" (Am. Compl. ¶ 13) and to "devise a means of termination for cause" (Id. ¶ 14); not to discriminate against him on account of his race. Simply stated, assuming the facts in the Amended Complaint to be true, nothing D.A. Arcuri did or agreed to was likely to cause a deprivation of plaintiff's rights. Thus, the section 1985 claim must be dismissed.
Claims under 42 U.S.C. § 1986 are dependent upon a viable claim under 42 U.S.C. § 1985. Dacev v. Dorsey, 568 F.2d 275, 277 (2d Cir. 1978). Because the section 1985 claim must be dismissed as to D.A. Arcuri, the section 1986 claim must similarly be dismissed.
5. Conclusion
All claims against District Attorney Michael Arcuri must be dismissed.
B. Claims against Undersheriff Paravati and the County of Oneida
Defendants Undersheriff Paravati and the County of Oneida ("County Defendants") move for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of all claims against them. Because of the early stage of this litigation and the fact that the parties apparently have not engaged in discovery, this motion will be treated as one to dismiss pursuant to Fed.R.Civ.P. 12 and matters outside the pleadings will be excluded.
1. Discrimination Claims ((First and Second Causes of Action)
The discrimination claims against the County Defendants must be dismissed because the Amended Complaint does not adequately allege any discriminatory treatment in the enforcement of contracts or "the full and equal benefit of all laws and proceedings for the security of persons and property." 42 U.S.C. § 1981. Even assuming sections 1981 or 1983 are applicable hereto, the Amended Complaint fails to state a claim because there is no allegation or indication of intentional discrimination concerning the three incidents of which plaintiff complaints, against the County Defendants.
The Amended Complaint asserts three incidents that are claimed to be discriminatory: (1) the confiscation of plaintiffs pistols; (2) the search of plaintiff upon entering the courthouse; and (3) the issuance of a parking ticket. Each of these instances will now be addressed.
The first allegation is that the County Defendants confiscated plaintiff's pistols whereas, in other instances, the City of Utica allowed white persons to voluntarily turn in their pistols. (Am. Compl. ¶ 19.) The City of Utica's policy of allowing persons to voluntarily surrender their pistols is entirely irrelevant to the County's actions. The fact that the City permits voluntary surrenders, but the County did not allow plaintiff to voluntarily surrender his pistols, is indicative of nothing other than that the two separate entities have two different procedures. The City's actions and policies cannot be attributed to the County and the County's actions cannot be compared to those of the City to make out a claim of unequal treatment of similarly situated persons.
The second allegation concerning the County is that plaintiff was subjected to a search while entering the county courthouse while a white police officer was not. The allegations in the Amended Complaint do not suggest intentional discrimination because there is no indication that plaintiff was treated differently than similarly situated white persons or that the County Defendants otherwise acted because of plaintiff's race.Gen. Bldg. Contractors Ass'n. Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982) (only purposeful discrimination is actionable under section 1981); Gelb v. Bd. of Elections, 224 F.3d 149, 154 (2d Cir. 2000) (requiring intentional or purposeful discrimination for a § 1983 action); Eaaleston v. Guido, 41 F.3d 865, 878 (2d Cir. 1994). The white person who allegedly was permitted to pass through security was a police officer and plaintiff was not. There is no other allegation of intentional discrimination by these defendants.
The final claim against the County Defendants is that they wrongfully issued plaintiff a parking ticket. Again, however, there are no allegations supporting the claim that the ticket was issued on account of plaintiff's race or otherwise suggesting intentional or purposeful discrimination.
Moreover, there is no allegation or indication that the search at the courthouse or the issuance of the ticket was the result of a County custom or policy such that liability may be imposed upon the County.
2. Fourth Amendment Claim (Second Cause of Action)
In his Amended Complaint, plaintiff alleges that the County Defendants violated his Fourth Amendment rights by seizing his person, searching his home and removing a toy gun from his property. The County Defendants move to dismiss this claim on the grounds that there is no evidence of a custom or policy sufficient to impose Monell liability upon the County, Undersheriff Paravati cannot be held liable under a theory of respondeat superior, the deputy sheriffs acted pursuant to a valid court order, and Undersheriff Paravati is entitled to qualified immunity.
Looking at the facts in the light most favorable to plaintiff, he has adequately stated a Fourth Amendment claim against the County Defendants. The Amended Complaint alleges that the Sheriffs Department "accompanied Mr. Maye into his home without any consent and began confiscating his property (pistols)." (Compl. ¶ 19.) Even if the County Defendants' motion is treated as a motion for summary judgment, genuine issue of facts would remain regarding the legality of the search. Although Undersheriff Paravati submits an affidavit stating that he was directed to pick up plaintiff's pistols pursuant to a court order, the revocation order provides that "the licensee shall immediately deliver to Oneida County Sheriff's Department . . . all pistols presently in his possession." (Dkt No. 28, Ex. A.) There is a difference between an order directing plaintiff to surrender certain personal property to the Sheriff's Department and an order authorizing the Sheriff's Department to enter plaintiff's home and confiscate his personal property. Thus, there is no basis on the current record for finding that the Sheriff's Department acted pursuant to a valid warrant or court order to search plaintiffs home and seize his property.
Further, if there was no court order directing the Sheriff's Department to proceed to plaintiffs home to confiscate the pistols, then it would not have been objectively reasonable for Undersheriff Paravati to believe he had the authority to enter plaintiff's home and seize his property. Accordingly, he is not entitled to qualified immunity at this time.
Finally, because the Amended Complaint alleges (Am. Compl. ¶ 40), and Undersheriff Paravati's affidavit confirms (Paravati aff. ¶ 4), that he personally directed that Maye's pistols be confiscated and he, undoubtedly is a final policymaker with respect to such matters, the Amended Complaint adequately states a basis for imposing liability upon the County.
3. 42 U.S.C. § 1985 and 1986 (Third and Fourth Causes of Action)
Plaintiff's claims against the County Defendants pursuant to 42 U.S.C. § 1985 and 1986 must be dismissed for the same reasons fully discussed regarding the other defendants. 4. Conclusion
All claims must be dismissed as to the County Defendants except for the allegation that the County Defendants entered plaintiffs home and confiscated his personal property in violation of the Fourth Amendment.
C. Claims Against Mayor Julian and the City of Utica 1. Municipal Liability
The City of Utica moves to dismiss the claims against it on the ground that Maye failed to sufficiently plead an official custom, policy or practice that caused the deprivation of his constitutional rights.
In a suit under 42 U.S.C. § 1983, a municipality may not be held liable on a theory of respondeat superior. See, e.g., Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). It may, however, be held liable if the conduct that caused the unconstitutional deprivation was undertaken pursuant to a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers[,] . . . [or] pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. Id. at 690-91. The municipality cannot properly be held liable in such an action unless the "injury was inflicted by [its] 'lawmakers or by those whose edicts or acts may fairly be said to represent official policy.'" St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988) (plurality opinion) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018).Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.), cert. denied, 531 U.S. 813 (2000).
Here, the Amended Complaint attributes the unconstitutional actions to the City's mayor. The Amended Complaint alleges that plaintiff served at the pleasure of the mayor (Am. Compl. ¶ 13) and, thus, that the mayor retained the ultimate authority to terminate plaintiff's employment. Because the mayor is alleged to be, and is, a final policymaker with respect to plaintiff's job, the Amended Complaint adequately pleads a basis for Monell liability. Jeffes, 208 F.3d at 56-61. 2. Racial Discrimination and Hostile Work Environment (First Cause of Action)
Mayor Julian and the City of Utica ("City Defendants") move to dismiss the racial discrimination and hostile work environment claims on the ground that Maye has failed to set forth a prima facie case of each claim. In Swierkiewicz, 534 U.S. at 508-14, the Supreme Court held that a plaintiff need not make out a prima facie case of discrimination to state a claim and survive a Rule 12 motion to dismiss. Here, the Amended Complaint adequately gives the defendant fair notice of the plaintiffs claims, the grounds upon which they rest, and states claims upon which relief could be granted. Whether plaintiff can establish a prima facie case or ultimately will be successful on these claims is an entirely different matter more appropriately addressed at summary judgment or trial.
3. Due Process Claims (Second Cause of Action)
The City Defendants seek dismissal of plaintiffs due process claims on the grounds that: (1) plaintiff has not identified any property interest substantiating a substantive due process claim; and (2) plaintiff has failed to identify any alleged defamatory statements to satisfy the stigma plus test.
a. Substantive Due Process
In his opposition papers, Maye does not explain the basis of any substantive due process claim. Indeed, as the City Defendants point out plaintiff admits in his Amended Complaint that he was terminable at will. (Am. Compl. ¶ 13.) Thus, even assuming the facts as alleged in the Amended Complaint to be true and drawing all inferences in favor of plaintiff, there is nothing suggesting that the City Defendants' actions implicated a protected property interest. A substantive due process claim may be based, however, upon governmental "conduct intended to injure in some way unjustifiable by any government interest." County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). "[O]nly the most egregious official conduct can be said to be arbitrary in the constitutional senses" such that it can be found to violate the due process clause, Id. at 846.
Here, the Amended Complaint does allege an intentional scheme to injure plaintiff through, among other things, a series of false allegations and false criminal complaints. If true, this may be a sufficient basis to recover under the due process clause. Again, the validity of a substantive due process claim is more appropriately tested on summary judgment or at trial.
b. Procedural Due Process
The City Defendants also seek dismissal of Maye's claim that he was deprived of a liberty interest in his reputation without procedural due process. Although the Amended Complaint does not specifically state the alleged false statements, it does allege that plaintiff was stigmatized by defamatory statements in connection with the termination of his employment. (Am. Compl. ¶¶ 49, 50, 65). This is sufficient to give the City Defendants fair notice of the claim, the grounds upon which it rests, and states a claim upon which relief could be granted. See Vega v. Miller, 273 F.3d 460, 470 (2d Cir. 2001) (discussing the stigma — plus test), cert. denied, 535 U.S. 1097 (2002). Moreover, contrary to the City Defendants' contention, plaintiff was not required to pursue a post — deprivation remedy, such as a proceeding pursuant to N.Y.C.P.L.R. Art. 78, because: (1) the complained of conduct was not the result of random, unauthorized government action where a pre — deprivation hearing was impracticable, but is alleged to be the result of a planned course of action during which a pre — deprivation hearing could have been afforded; and (2) the decision was made by a high ranking city official. Pangburn v. Culbertson, 200 F.3d 65, 71 (2d Cir. 1999); see also Kassim v. City of Schenectadv, 255 F. Supp.2d 32, 38 (N.D.N.Y. 2003).
4. First Amendment Retaliation (Second Cause of Action)
The City Defendants also seek dismissal of the First Amendment retaliation claim on the grounds that Maye has not identified any protected speech. Although inartfully pleaded, the Amended Complaint does allege that plaintiff engaged in protected activity, such as the filing of a notice of claim "critical of the racial discrimination in the workplace" and exposing the use of false testimony (Am. Compl. ¶¶ 38, 63) and that the City Defendants retaliated against him by, among other things, terminating his employment. This is sufficient to state a claim. Whether the notice of claim or the statements concerning the alleged false testimony are protected speech cannot now be determined, but are more appropriately addressed at summary judgment or trial. 5. 42 U.S.C. § 1985 and 1986 (Third and Fourth Causes of Action)
The notice of claim was not included as part of the complaint and, therefore, cannot be reviewed to determine whether it constitutes unprotected matters of personal interest or protected matters of public concern. See Pappas v. Guiliani. 290 F.3d 143, 153 (2d Cir. 2002) (McMahon, concurring), cert. denied sub nom Pappas v. Bloomberg, U.S., 123 S.Ct. 2642 (2003).
The City Defendants seek dismissal of the conspiracy claim on the grounds that it does not adequately plead a conspiracy. Specifically, the City Defendants argue that there is no factual allegation concerning a meeting of the minds among the defendants or that defendants agreed to violate plaintiff's constitutional rights.
The requirements for stating a claim pursuant to 42 U.S.C. § 1985 have been set out above. As previously discussed, the Amended Complaint alleges that defendants met to "devise a means of terminat[ing] plaintiff's employment" by instituting "a series of false criminal and quasi — criminal charges using Mayor Julian's police subordinates to revoke [plaintiff's] . . . gun permits and to indict him on numerous counts of criminal misconduct using statements known to be false at the time" and portraying plaintiff in a "negative and incompetent light" to "end [his] career". (Am. Compl. ¶¶ 13, 14, 48.) This sufficiently gives some factual underpinning for a meeting of the minds such that defendants entered into an agreement and that defendants undertook acts in furtherance of that agreement. What is lacking, however, is any claim or factual allegation that the agreement was to deprive plaintiff of his constitutional rights. The Amended Complaint does allege that Mayor Julian individually may have acted for discriminatory reasons, but it does not allege that those unconstitutional reasons were shared by the purported co — conspirators. (See, e.g., Compl. ¶ 49.) Accordingly, the claims pursuant to §§ 1985 and 1986 must be dismissed.
6. Qualified Immunity
Mayor Julian moves to dismiss on the ground that he is entitled to qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A two — prong test is used to determine whether a public official is entitled to qualified immunity. First, it must be determined whether the facts, taken in the light most favorable to the plaintiff, establish that the defendant's conduct violated the plaintiff's constitutional rights. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Assuming that a plaintiff's constitutional rights were violated, it then must be determined whether such constitutional rights were "clearly established." Id. at 201-02. The relevant inquiry is "whether it would be clear to a reasonable [official in that situation] . . . that his conduct was unlawful." Id. at 202; see also X — Men Security. Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (holding that officials are entitled to qualified immunity if their actions were objectively reasonable in light of clearly established law).
Here, for reasons previously discussed, the facts establish that Mayor Julian may have violated plaintiff's constitutional rights by terminating him on account of his race, failing to provide him with procedural due process in connection with his termination, and/or retaliating against him for engaging in protected speech. It is clearly established that it is unlawful to terminate an individual's employment on account of their race, see Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000),petition for cert. filed, 71 USLW 3680 (Apr 17, 2003); see, e.g., Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998), that an individual has the right to notice and an opportunity to be heard as a prerequisite to government action that places a person's reputation at stake, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972); Vega, 273 F.3d at 470, and that no adverse actions may be taken against an individual for engaging in protected speech. See Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003). Based on the current record, it cannot now be concluded as a matter of law that it was objectively reasonable to terminate plaintiff under the circumstances alleged in the Amended Complaint. Some of these issues pertaining to qualified immunity may again be raised, if appropriate, at summary judgment or trial.
7. Rules 8(a)(2) and 12(f)
The City Defendants also move to strike certain portions of the complaint as immaterial, redundant, impertinent and/or scandalous. As previously discussed, the Amended Complaint is not a model pleading; it contains a surfeit of detail and extraneous information. Despite the previous warnings to plaintiff's counsel, the Amended Complaint continues to consist of unnecessary adjectives, hyperbole, fanfare and matters otherwise irrelevant to the bases of plaintiff's legal claims. The following portions of the Amended Complaint must be stricken:
paragraph 4: . . . "having obtained this office by succession and operation of law upon the resignation of the duly elected Mayor of the City, Edward A. Hanna, on July 3, 2000.";
paragraph 10: ". . . in a hideous and disrespectful manner. . . . ";
paragraph 13: ". . . all contrary to his twenty-five year unblemished record in law enforcement.";
paragraph 17: "Only upon the happenstance of Plaintiff's attorney arriving on the scene did the tension ultimately subside.";
paragraph 20: "However, upon learning from inside sources that a grand jury had already been impaneled to hear evidence, Mr. Maye was compelled to appear and give his own version of events, waiving his Fifth Amendment right against self incrimination in the process";
paragraph 24: "Following recommendations received at various crime prevention conferences held in other parts of the state, plaintiff began reorganizing the antiquated patronage system which had long been in place in the City of Utica Police Department. For example, Plaintiff directed checks and balances upon the handling of large amounts of cash confiscated from drug dealers.";
paragraph 25: ". . . the respected name of his family and life in general . . . previously little known and now infamous . . . This stop resulted in the confiscation of a record $30,000 in street value crack cocaine from two New York City drug dealers doing a long time business in Utica, New York.";
paragraph 26: "As a consequence of the record drug bust . . . ";
paragraph 28: "nevertheless, plaintiff's dedication and achievements continued to earn him immense praise from the impacted citizenry together with extensive media coverage which defendants resented for personal and racist reasons. The public interest aspect of this proceeding is well demonstrated by a front page story in the Syracuse Post Standard, annexed under Exhibit A. which summarizes plaintiff's ordeal beginning with this April 23, 2001, drug bust and prior to his termination.";
paragraph 34: "Plaintiff was not seeking out publicity when he submitted such a correspondence, but rather a less intrusive and necessary opportunity for explaining the foregoing events as they were then unfolding in order to prevent a charge which alone could impair his career and employment standing";
paragraph 36: "including his own private attorney";
paragraph 40: "To this day there has been no public apologies, regrets, policy changes or concerns whatsoever expressed regarding the public humiliation unnecessarily visited upon Mr. Maye on that day";
paragraph 45: "Plaintiff then contacted his attorney by mobile telephone at the scene";
paragraph 46: "Nevertheless, only a few weeks later, following Mr. Maye's testimony at a federal court trial involving his attorney, another unlawful ticket was issued by the defendant City of Utica, this time upon Mr. Maye's attorney. This latter ticket had to be defended in the City Court of Utica before it was dismissed in open court by motion of the city's corporation counsel.";
paragraph 47: "Plaintiff possessed far superior qualifications and background for police supervision than defendant Julian, Mr. Pylman's new direct supervisor.";
paragraph 52:"The severity of his emotional and psychological damage is well illustrated by an event in last August, 2001, when Mr. Maye was found seeking refuge at the United States Justice Department offices at the federal building in Syracuse, New York. Fearing that a subpoena issued for his appearance at the 9/11 suppression hearing was in reality a warrant for his arrest, he made a final desperate plea for protection from the federal government.";
paragraph 55: "Mr. Maye was viciously prosecuted and hounded to the point of irrevocable despair. He will never recover from the combined economic, reputational, psychological, physical and psychosomatic injuries which defendants have willfully, maliciously and recklessly inflicted upon him, all on account of plaintiff's race and dedicated commitment to removing the longstanding crime and corruption from his hometown community of Utica, New York."; and
Exhibits A, B, C, D, and E.
The City Defendants' motion for sanctions must be denied because it has not been properly made or supported.
8. Conclusion
The claims pursuant to the Fourth Amendment, 42 U.S.C. § 1985 and 1986 must be dismissed as to the City Defendants. In all other respects the City Defendants' motion to dismiss will be denied.
D. Any Other Claims in the Amended Complaint
To the extent plaintiff intended to bring any other claims not addressed herein, they are dismissed for failure to comply with Rule 8(a)(2) and the May 9, 2003 Order.
V. CONCLUSION
The Amended Complaint fails to state a claim against D.A. Arcuri. The Amended Complaint fails to state a Fourth Amendment violation as to any of the defendants except the defendants Undersheriff Paravati and the County of Oneida. The Amended Complaint fails to state a claim of racial discrimination, hostile work environment, First Amendment retaliation, substantive due process or procedural due process violations against any of the defendants except Mayor Julian and the City of Utica. The Amended Complaint fails to state a claim for a violation of 42 U.S.C. § 1985 or 1986 as to any of the defendants. Certain portions of the Amended Complaint continue to contain impertinent, irrelevant and scandalous matters and will be stricken. The City of Utica has failed to substantiate its request for sanctions.
Accordingly, it is
ORDERED THAT
1. Defendant Michael Arcuri's, individually and as Oneida County District Attorney, motion is GRANTED and the Amended Complaint is DISMISSED as to him;
2. Defendants Peter Paravati's, individually and as Undersheriff for Oneida County, and the County of Oneida's motion is GRANTED IN PART AND DENIED IN PART. The First, Third and Fourth Causes of Action are DISMISSED as to them. The Second Cause of Action is DISMISSED as to them EXCEPT insofar as it alleges a Fourth Amendment violation;
3. Defendants Timothy Julian's, individually and as the Mayor of the City of Utica, and the City of Utica's motion is GRANTED IN PART AND DENIED IN PART. The Second Cause of Action insofar as it alleges a Fourth Amendment violation, Third and Fourth Causes of Action are DISMISSED as to them. In all other respects, their motion is DENIED;
4. The City of Utica's motion to strike is GRANTED IN PART and these portions set forth above of paragraphs 4, 10, 13, 17, 20, 24, 25, 26, 28, 34, 36, 40, 45, 46, 47, 52, 55, and Exhibits A, B, C, D, and E of the Amended Complaint are STRICKEN.
5. The City of Utica's request for sanctions is DENIED;
6. Defendants Undersheriff Paravati and the County of Oneida shall file and serve an answer to the Second Cause of Action (insofar as it alleges a Fourth Amendment violation) on or before October 15, 2003; and
7. Defendants Mayor Julian and the City of Utica shall file and serve an answer to the First and Second Causes of Action (except insofar as it alleges a Fourth Amendment violation) on or before October 15, 2003.
IT IS SO ORDERED.