208 F.3d 49 (2nd Cir. 2000), 98-9369, Jeffes, Keenan, et al. v Barnes

Docket Nº:Docket No. 98-9369
Citation:208 F.3d 49
Party Name:CHRISTOPHER JEFFES, JOHN E. KEENAN, JR., and JERRY CARLOS, Plaintiffs-Appellants, v. WILLIAM BARNES, Individually and as Sheriff of the County of Schenectady, HARRY BUFFARDI, Individually and as Undersheriff of the County of Schenectady, ROBERT ELWELL, SR., Individually and as an Employee of the County of Schenectady, JOHN DOES being unnamed Employ
Case Date:March 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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208 F.3d 49 (2nd Cir. 2000)



WILLIAM BARNES, Individually and as Sheriff of the County of Schenectady, HARRY BUFFARDI, Individually and as Undersheriff of the County of Schenectady, ROBERT ELWELL, SR., Individually and as an Employee of the County of Schenectady, JOHN DOES being unnamed Employees of the County of Schenectady, and THE COUNTY OF SCHENECTADY, Defendants-Appellees.

Docket No. 98-9369

United States Court of Appeals, Second Circuit

March 28, 2000

        Argued: June 28, 1999

        Appeal from a partial final judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Chief Judge, granting summary judgment dismissing claims under 42 U.S.C. §1983 against municipality. See 20 F.Supp.2d 404 (1998).

        Vacated and remanded.

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        KEVIN A. LUIBRAND, Albany, New York (Tobin & Dempf, Albany, New York, on the brief), for Plaintiffs-Appellants.

        RICHARD M. GERSHON, Albany, New York (Thorn & Gershon, Albany, New York, on the brief), for Defendant-Appellee County of Schenectady.

        Before: KEARSE, STRAUB, and POOLER, Circuit Judges.

        KEARSE, Circuit Judge:

        Plaintiffs Christopher Jeffes et al. appeal from a partial final judgment entered pursuant to Fed. R. Civ. P. 54(b) in the United States District Court for the Northern District of New York, Thomas J. McAvoy, Chief Judge, dismissing so much of their complaint, brought under 42 U.S.C. §1983 (Supp. III 1997), as asserted First Amendment claims against defendants William Barnes, Harry Buffardi, and Robert Elwell, Sr. (collectively the "individual defendants"), in their official capacities, and defendant County of Schenectady (the "County" or "Schenectady County") for retaliating against plaintiffs for reporting to the public and to federal investigative authorities certain wrongdoing by County employees. The district court granted summary judgment dismissing these claims on the ground that plaintiffs failed to adduce evidence sufficient to permit an inference that their rights were violated as a result of a County policy or custom. On appeal, plaintiffs contend principally that, in so concluding, the district court failed to

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draw all permissible inferences in their favor, and that the court should have concluded that Barnes was the County's policymaker with respect to the actions complained of. For the reasons that follow, we agree, and we therefore vacate the judgment and remand for further proceedings on the claims against the County and against the individual defendants in their official capacities, along with the undismissed claims that are not the subject of this appeal.


        The events at issue involved operations of the Schenectady County Jail ("Jail" or "County Jail"), which is run by the County's Sheriff's Department ("Department"). At the pertinent times, the individual defendants were supervisors in the Department. Barnes was the sheriff; Buffardi, the undersheriff, was his second-in-command; Elwell was a major, responsible for the Jail's day-to-day operations.

        All of the plaintiffs were employees of the Department, working in the County Jail. Jeffes was a correction officer for several years beginning in 1979; in or about 1984, he achieved the rank of lieutenant after passing a civil service examination; in 1991 Barnes appointed Jeffes a provisional major. Jeffes ceased to work at the Jail in late 1994. Plaintiff John R. Keenan, Jr., was a correction officer from 1982 until mid-1996. Plaintiff Jerry Carlos, a correction officer since 1981, remained so employed through the time this suit was begun.

        In April 1994, there occurred an alleged incident of flagrant abuse of inmates at the Jail by certain correction officers. Jeffes publicly criticized the assaults; he, Keenan, and Carlos, among others, assisted in an investigation conducted by the Federal Bureau of Investigation ("FBI"). The present lawsuit arises out of a campaign of harassment, threats, and intimidation by members of the Department against plaintiffs in retaliation for their public disclosures and their assistance in the investigation. Construed in the light most favorable to plaintiffs, with all reasonable inferences drawn in their favor, the evidence as reflected in affidavits and dozens of depositions showed the following.

        A. The April 29, 1994 Inmate Beatings and the Official Responses

        At the County Jail on April 29, 1994, apparently in response to an incident the previous day in which Jail officers had been attacked by several inmates, a group of guards inflicted severe physical abuse on seven inmates at the Jail. The abuse occurred while the inmates were being transported one-by-one from a new jail building to a special housing unit in the old building. During the transfer, the inmates were dragged, thrown, kicked, punched, and otherwise beaten while naked, handcuffed, and shackled. Officer William Leguire, for example, allegedly threatened to kill one inmate and stood on his face.

        According to some witnesses, some of the inmate abuse occurred in the presence of Jail supervisors, including Sheriff Barnes. One lieutenant, for example, saw officers throw an inmate into an elevator and then beat him as he lay in a fetal position; as this was occurring, Sheriff Barnes looked on, said that the officers should "'act in a professional manner,'" and smiled. (Deposition of David Monroe at 29.)

        Keenan and Carlos were among the witnesses to the beatings. When Carlos reported the incident he had seen to several superior officers, some of them responded there was nothing they could do and that Sheriff Barnes and Undersheriff Buffardi were aware of what had happened. When Carlos reported the incident directly to Sheriff Barnes, Barnes responded "'Well, OJ, you know, sometimes it just has to be,'" or "'You just have to do what you got to do.'" (Deposition of Jerry Carlos ("Carlos Dep.") at 37.) In a conversation with correction officer Christopher O'Connor

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some weeks later, Sheriff Barnes, with an air of pride, described the incident as "'great.'" (Deposition of Christopher O'Connor ("O'Connor Dep.") at 52.)

        Major Jeffes was not on duty on April 29, but he received reports of the incident thereafter from several officers. Although official Jail policy required Jeffes to relay the reports of inmate abuse to his superiors, Jeffes decided that any such report would be futile, since he had been informed that Sheriff Barnes and Undersheriff Buffardi had known of and encouraged the beatings. Jeffes warned certain officers that the beatings could have serious repercussions for the officers involved, that the FBI would likely investigate the matter, and that officers should not lie under oath about the incident.

        In July 1994, the beaten inmates filed notices of claim against the County, implicating several Jail officials including Sheriff Barnes. In the fall of 1994, a television news program featured an investigative report on the April 29 incident (the "news report"). As part of that news report, Jeffes gave an on-camera interview, but with his voice and appearance disguised, describing the seriousness of the abuse and implicating Sheriff Barnes in the incident. Jeffes had insisted on anonymity because he believed that if he were identified as the speaker he would "be labeled a rat and a snitch." (Deposition of Christopher Jeffes ("Jeffes Dep.") at 110.)

        In late 1994, a federal investigation into the April 29 incident was begun. Jeffes met with FBI agents and conveyed to them much of the information he had learned regarding the inmate beatings. Keenan and Carlos too agreed to cooperate with the FBI, as did other officers, and all three plaintiffs testified in grand jury proceedings. The federal investigation led to various criminal charges, including an indictment against four officers. Keenan and Carlos, inter alios, testified at their trial, which was held in July 1996. Those four officers were eventually acquitted. A fifth officer pleaded guilty to a charge of use of excessive force.

        B. The "Code of Silence" and the Retaliations

        Major Elwell, at his deposition, testified that there is a "code of silence" at the Jail and that officers who report wrongdoing by fellow officers face severe ostracism. (Deposition of Robert D. Elwell ("Elwell Dep.") at 153-54.) Elwell testified, "I work within it ever [sic] day." (Id. 153.) He recalled another case in which an officer had breached the code of silence and had suffered such harsh ostracism that the officer either was or was nearly forced to resign. Correction officer Stanley Marchinkowski testified that in the wake of the April 29, 1994 inmate beatings, a representative of the Jail officers' labor union told several officers that "'as far as any investigation goes, anyone who turns in an officer is a rat, a snitch,'" and that "everybody had to stick together." (Deposition of Stanley Marchinkowski at 53.) O'Connor testified that when Sheriff Barnes commented to him on the April 29 incident, describing it as "'great,'" O'Connor expressed his disagreement, but Barnes stated that the officers needed to "stick[] together." (O'Connor Dep. at 52-53.)

        After the federal investigation began, officers who were believed to have cooperated were subjected to numerous forms of harassment and intimidation by unidentified fellow officers. Plaintiffs and some half-dozen other targeted officers were, for example, incessantly depicted as "rats" and "snitches" on posters and in graffiti scrawled on walls in the Jail's hallways and bathrooms or on their lockers; they were...

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