Airday v. City of N.Y., 14 Civ. 8065

• Decision Date: 10 May 2018
• Docket Number: 14 Civ. 8065
• Parties: George AIRDAY, Plaintiff, v. The CITY OF NEW YORK, Keith Schwam, and David M. Frankel, Defendants.
• Court: U.S. District Court — Southern District of New York

310 F.Supp.3d 399

George AIRDAY, Plaintiff,

v.The CITY OF NEW YORK, Keith Schwam, and David M. Frankel, Defendants.

14 Civ. 8065

United States District Court, S.D. New York.

Signed May 10, 2018

LAW OFFICE OF NATHANIEL B. SMITH, 111 Broadway, Suite 1305, New York, NY 10006, By: Nathaniel B. Smith, Esq., Attorneys for Plaintiff.

LACHARY W. CARTER, ESQ., Corporation Counsel of the City of New York, 100 Church Street, Room 2–122, New York, NY 10007, By: Don H. Nguyen, Esq., Attorneys for Defendants.

OPINION

Sweet, D.J.

Defendants the City of New York (the "City"), Keith Schwam ("Schwam") and David Frankel ("Frankel") (collectively, the "Defendants") have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Amended Complaint ("AC") of plaintiff George Airday ("Airday" or the "Plaintiff") alleging violations of 42 U.S.C. §§ 1983 and 1988, and the First, Fifth, and Fourteenth Amendments of the United States Constitution. Based on the facts and conclusions which follow, the motion of the Defendants is granted in part and denied in part, and the First Amendment claims of the Plaintiff are dismissed.

I. Prior Proceedings

Airday commenced this action on October 7, 2014 against the City of New York, Keith Schwam, and David Frankel alleging violations of 42 U.S.C. §§ 1983 and 1988, and the First, Fifth, and Fourteenth Amendments of the United States Constitution. In particular, Plaintiff alleged: (1) retaliation against him in violation of his First Amendment right of free speech; (2) violation of his Fourteenth Amendment procedural and substantive due process rights; and (3) violation of his Fourteenth Amendment right to equal protection.

This Court granted in part and denied in part Defendants' dismissal motion on September 15, 2015 (the "September Opinion"). See Airday v. City of New York, 131 F.Supp.3d 174 (S.D.N.Y. 2015). In so doing, this Court dismissed all claims except for "Plaintiff's procedural due process claim with respect to Defendants' decision to not renew his office in [December] 2013." Id. at 184.

Plaintiff filed an amended complaint (the "AC") on October 8, 2015, alleging that Airday was a City Marshal for 29 years from January 1984 through December 2013; that a City Marshal is a public officer who operates his or her own business enforcing judgments and collecting fees upon execution of those judgments on behalf of judgment-creditors who are his clients or customers; and that as a City Marshal, Airday satisfactorily performed his duties over the course of his career. (See id. ¶¶ 8–17.) Plaintiff further alleges that his five-year term of office was regularly renewed, consistent with the established practice of renewing the terms of the other City Marshals. (Id. ¶¶ 13–16.) Discovery proceeded.

Defendants brought the instant motion for summary judgment on January 10, 2018, and it was heard and marked fully submitted on February 21, 2018.

II. The Facts

The facts have been set forth in the Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts, (Dkt. No. 76), the Plaintiff's Rule 56.1 Responsive and Counter–Statement, (Dkt. No. 83), and Defendants' Responses to Plaintiff's Local Rule 56.1 Statement, (Dkt. No. 91). The facts are not in dispute except as noted below.

Defendants assert that New York City Marshals ("City Marshals") are officers of New York's court system, empowered to perform sensitive, law enforcement work, including enforcing judgments, garnishing wages, seizing property, and effecting evictions. (Affirmation of Marjorie Landa in Opposition to Respondent's Motion to Dismiss and Cross–Motion for Judgment on the Pleadings dated March 28, 2013 ("Landa Aff."), Ex. I, Dkt. No. 77 at ¶ 8.) City Marshals carry a badge and are permitted to carry a firearm. (Id. ) They are entrusted to use both with the utmost discretion. (Id. ) The position is one of trust and requires sound judgment and an unwavering commitment to lawful and ethical conduct. (Id. ) These statements are objected to by Plaintiff as lacking foundation and instead being legal conclusions rather than statements of fact. (Pl.'s 56.1 ¶ 4.)

Defendants assert that New York City Civil Court Act § 1601(1) authorizes the Mayor to appoint an applicant to a five-year term as City Marshal, (Defs.' 56.1 ¶ 5), but Plaintiff objects to this statement on the ground that it is a conclusion of law, not a statement of fact, for which no response is required. (Pl.'s 56.1 ¶ 5.) Plaintiff further states that City Marshals are appointed in practice to five-year terms that are regularly renewed by way of holdover status or a reappointment process. (Id. ) Defendants provide that a City Marshal must seek reappointment before the expiration of his or her term, or risk not being reappointed to office, (Tang–Alejandro Dep. 77:11–18.¹ ) Again, Plaintiff objects to this assertion as a legal conclusion and states that the evidence from this deposition is inadmissible because the deposition itself lacks foundation and qualification since the statutory provisions cited do not support the contention that an application for reappointment before a City Marshal goes into a holdover status is required as a condition to reappointment. (Pl.'s 56.1 ¶ 6.)

New York City Civil Court Act § 1610 authorizes the New York State Appellate Division to discipline, suspend and remove a City Marshal:

The appellate division may discipline by reprimand or censure, or may temporarily suspend or permanently remove any marshal for cause, provided that written charges are first filed with said court, and that the marshal be given due notice thereof and be afforded an opportunity to be heard at a full and complete hearing. The appellate division may, in its discretion, suspend a marshal from the performance of his or her official duties pending a hearing upon the charges. Upon charges being preferred against a marshal by a judge of the appellate division, such court shall forthwith cause notice of suspension of the marshal to be served upon him or her, and the marshal shall thereupon remain suspended until the hearing and determination of the charges....

( N.Y. City Civ. Ct. Act § 1610.)

In November 1975 and February 1976, the Appellate Division for the First and Second Departments issued Joint Administrative Orders ("JAO") 453 and 456 setting forth the Department of Investigation's ("DOI") supervisory powers, which include the power to conduct investigations into a City Marshal's activities, examine their books and records, promulgate directives concerning the official records to be kept by them and the procedures for performing their official duties, as well as the power to discipline them. (New York City Marshals Handbook of Regulations effective April 24, 2013 ("Marshals' Handbook" or the "Handbook"), Ex. J, Dkt No. 77.) JAO 453 also authorized DOI to promulgate the Marshals' Handbook, which was approved by the Appellate Division in JAO 542. (Id. at 905–909.)

Plaintiff concurs with the above, but states that § 1601 gives the Appellate Divisions for the First and Second Department the authority to discipline City Marshals, and the Appellate Divisions' JAO 456(4) prohibits DOI from immediately or unilaterally suspending a City Marshal. (Pl.'s 56.1 ¶ 8.) Plaintiff further states that JAO 453(8) provides that a City Marshal can be disciplined for "failure to testify concerning his official duties at an investigative or administrative hearing held at the [DOI] after being granted immunity for the use of the testimony in a criminal proceeding." (Marshals' Handbook at 908.) Plaintiff asserts that the Marshals' Handbook similarly provides a City Marshal with protection against self-incrimination in that a refusal to answer questions or provide information is grounds for discipline "after the marshal has been advised that neither his or her statement nor any information or evidence derived therefrom will be used against the marshal in a subsequent criminal prosecution other than for perjury or contempt arising from such testimony." (Id. at 731.)

The Marshals' Handbook provides that "(a) No person shall prevent, seek to prevent, interfere with, obstruct, or otherwise hinder any study or investigation conducted pursuant to the New York City Charter, [JAO] 453, or this Handbook. A marshal's violation of this subsection shall constitute cause for removal from office or other appropriate penalty.... (b) Full cooperation with the [DOI] shall be afforded by every city marshal.... A marshal's violation of this subsection shall constitute cause of removal from office or other appropriate penalty...." (Id. at 731.) Moreover, Section § 1–16 of the Handbook provides that: "If the criminal charges bear upon the marshal's fitness for office, the pendency of such charges may be a cause for disciplinary action, including but not limited to an application to the Appellate Divisions for the marshal's suspension pending a hearing or pending resolution of the criminal charges." (Id. at 735–36.)

A City Marshal's day-to-day activities are overseen by two different mayoral agencies, the DOI and the Department of Finance ("DOF"). (Deposition of Louis Jordan dated August 8, 2017 ("Jordan Dep.") Ex. C, Dkt. No. 77 at 38:22–39:04.) Keith Schwam ("Schwam") served as the Director of the Marshals' Bureau at DOI, and Louis Jordan ("Jordan") served as the Director of the Marshal Program at DOF. (Deposition of Keith Schwam dated March 30, 2017 ("Schwam Dep.") Ex. B, Dkt. No. 77 at 7:21–24; Jordan Dep., Ex. C. at 12:15–19; Deposition of George Airday dated March 29, 2017 ("Airday Dep.") Ex. A, Dkt. No. 77 at 33:06–10.)

Plaintiff was appointed to a five-year term as a City Marshal with Badge Number 7 on January 24, 1984 by Mayor Edward Koch. (Airday Dep. at 17:04–05, 20:22–25.) After Plaintiff submitted an application for re-appointment, Mayor Michael Bloomberg re-appointed Plaintiff on January 22, 2009 with a stated expiration date of December 20, 2013. (Re–appointment Letter by Mayor...