Morris and Pavone v. Lindau, et al
| Decision Date | 01 August 1998 |
| Docket Number | 98-7128,Docket Nos. 98-7082 |
| Citation | 196 F.3d 102 |
| Parties | (2nd Cir. 1999) CHARLES E. MORRIS, Consolidated-Plaintiff-Counter-Defendant-Appellant, ROBERT L. PAVONE, Plaintiff-Counter-Defendant-Appellant-Cross-Appellee, ROBERT A. PAVONE, Plaintiff-Counter-Defendant-Appellant, THOMAS P. DIANA, PETER J. MACALUSO, SUSAN M. WHITMORE, JERRY P. UNDERWOOD, TIMOTHY J. KALB, VINCENT I. PAGLIAROLI, ANTHONY C. RAO, WARREN BONDS, JAMES CHRISTOPHER CRESCENZO, ROSE ORLANDO, THERESA LOWERY, MARY SCHNITTERT, Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees, VINCENT NYBERG, Individually, Consolidated-Defendant, KATHRYN I. MCGUIRE, HENRY REINHARDT, Plaintiffs-Counter-Defendants, v. ANN LINDAU, Individually, FRANCIS X. FARRELL, Individually, LINDA D. PUGLISI, Individually, TOWN BOARD OF THE TOWN OF CORTLANDT, THE BOARD OF POLICE COMMISSIONERS OF THE TOWN OF CORTLANDT, THOMAS WOOD, Individually, Defendants-Counter-Claimants-Appellees-Cross-Appellants, THE TOWN OF CORTLANDT, NEW YORK, Defendant-Counter-Claimant-Appellee |
| Court | U.S. Court of Appeals — Second Circuit |
JONATHAN LOVETT, White Plains, New York (Craig T. Dickinson, Lovett & Gould, White Plains, of counsel), for Consolidated-Plaintiff-Counter-Defendant-Appellant.
DANIEL RIESEL, New York, New York, (Lemuel M. Srolovic, Sive, Paget & Riesel, P.C., New York, New York, of counsel), for Defendants-Counter-Claimants-Appellees-Cross-Appellants.
Before: KEARSE, CARDAMONE, and POOLER, Circuit Judges
This litigation had its origin in the discord engendered by a falling out between the elected officials of the Town of Cortlandt, New York and its Police Chief, who enjoys civil service tenure, regarding the budget and administration of the Town's Police Department. The residual bitterness was quickly evidenced in litigation that resulted in the three consolidated civil rights actions, brought under 42 U.S.C. 1983, now before us.
Plaintiffs Robert L. Pavone, Robert A. Pavone (Pavone, Jr.) and various employees of the Town Police Department appeal from a December 17, 1997 order of the United States District Court for the Southern District of New York (Brieant, J.) that granted summary judgment in plaintiffs' civil rights suits in favor of defendants, the Town Supervisor, Linda D. Puglisi, Town Board members Ann Lindau and Francis X. Farrell, and the Town Attorney, Thomas Wood, all individually, and the Town of Cortlandt, the Town Board of Cortlandt, and the Board of Police Commissioners of Cortlandt. Plaintiff Charles E. Morris appeals from the same order that granted summary judgment in his civil rights action in favor of defendants Wood, Puglisi, and the Town's Director of Code Enforcement, Vincent Nyberg, individually, and the Town of Cortlandt. Various other claims brought pursuant to 42 U.S.C. 1985 and 1988 are also before us. In their complaints plaintiffs sought several forms of relief including compensatory and punitive damages, declaratory and injunctive relief, and attorneys' fees.
The Town of Cortlandt, a populous town in Westchester County, New York, established a Police Department (Department) in 1982 and plaintiff, Robert L. Pavone, was appointed its first Chief. Defendant Linda Puglisi has been the elected Town Supervisor since 1992. A heated public debate arose between Pavone and a majority of the Town Board, including Supervisor Puglisi and Town Board members Ann Lindau and Francis Farrell, regarding the administration and management of the Police Department. The dispute resulted in Pavone initiating a federal civil rights suit in 1994 alleging that the Town Board had violated his First and Fourteenth Amendment rights when it took retaliatory employment action against him in response to public statements he had made about the Department. See Pavone v. Puglisi, 94 Civ. 6140 (S.D.N.Y. filed Aug. 26, 1994) (Pavone I). This 1994 suit was settled later that year under an agreement that provided for its discontinuance, with prejudice, unless defendants brought disciplinary charges against Pavone within two years of the date of settlement. No such charges were filed.
However, the conflict between the parties over issues affecting the Police Department continued to escalate to such an extent that in 1996 Pavone and his son, Robert A. Pavone, Jr., brought another federal civil rights action against the Town asserting it had committed further retaliatory acts in response to Pavone's exercise of his right to speak out. See Pavone v. Lindau, 96 Civ. 4993 (S.D.N.Y. Dec. 17, 1997) (Pavone II).
Shortly after this second suit was initiated, the Town proposed abolishing the Department, in response to which Pavone and other Cortlandt Police Department employees initiated a third civil rights action. See Pavone v. Puglisi, 96 Civ. 6776 (S.D.N.Y. Dec. 17, 1997) (Pavone III). This suit alleged that abolition of the Police Department violated plaintiffs' rights because the action was taken in retaliation against protected speech by Pavone and other Department members. A fourth suit, brought by the Town's animal control and parking officer Charles Morris, in which he asserts he was treated in an unconstitutional manner by the Town Board for various forms of protected speech, including his support for Pavone, Morris v. Wood, 96 Civ. 6513 (S.D.N.Y. Dec. 17, 1997) (Morris), was consolidated with Pavone II and Pavone III into the present case.
At the time the district court granted defendants' motions for summary judgment, it appeared as though the Town in response to the filing of Pavone III had abandoned its plan to abolish the Police Department. But instead, since that ruling, the Town has implemented its plan to abolish the Town's Police Department by providing no funding for it in the budget that took effect on January 1, 1999.
All three civil rights suits allege that the Town Supervisor and members of the Cortlandt Town Board violated plaintiffs' constitutional rights by taking retaliatory steps against them in response to their public statements on the contentious debate over the administration of the Police Department. Plaintiffs in each case describe numerous events they maintain were motivated by a retaliatory animus. We describe them briefly.
Plaintiffs first assert the Town Board abolished the Police Department in order to retaliate against Pavone and other members of the Department for engaging in protected speech. Plaintiffs point out that in a radio interview on September 5, 1996 Supervisor Puglisi said that as a result of the several lawsuits initiated by Pavone and other members of the Police Department she would pursue the abolition of the Department. Some record evidence supports plaintiffs' interpretation of this radio interview. A second assertion made by Pavone is that he was constructively demoted when the Town Board amended the procedures and policies of the Department in a manner intended to substitute the Town supervisor for the chief of police, and vest in the supervisor direct and absolute administrative control of the day-to-day operations of the Department.
Pavone next contends the Town Board adopted revised policies and procedures for the Department that reiterated an alleged "prior restraint" on his communication with the press. The policy states
With respect to your conduct at press conferences, other than for press conferences held to discuss an arrest or an accident situation, you are to advise us in advance as to the subject of any press conference that you are going to be calling and such notice shall be given to us prior to your notifying the press.
The complaint asserts that this policy was implemented in a manner that effectively served as a prior restraint on speech. In support of such assertion, it states that on June 18, 1996 defendant Lindau publicly and impliedly threatened Pavone with disciplinary action by announcing that he was "not following the direction[s] of the Town Board, one of which is not to talk to the press without getting permission." According to plaintiffs, on that same day, Lindau further explained that Pavone was not supposed to talk to the press unless he received clearance beforehand from defendant Puglisi or the Town Board. The complaint also charges that, in retaliation for Pavone's speech, Farrell, Lindau and Puglisi counseled and encouraged George Gottesman, a non-employee, to bring a personal injury suit against Pavone. As to Pavone, Jr., the complaint maintains that he was denied the opportunity to interview for a Police Department job in retaliation against his father's speech, thus violating the son's First and Fourteenth Amendment rights.
Some of the remaining allegations before us were part of Pavone I, which was discontinued by the 1994 Settlement Agreement, and are now therefore barred by res judicata. Further, some of the present allegations were left out of the complaint, were not addressed by the district court, or were de minimis acts not amounting to an adverse employment action. As such, these allegations do not warrant additional discussion.
Turning to the factual assertions of the fourth suit, Morris alleges...
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