Atterbury v. Insley

• Decision Date: 27 March 2014
• Docket Number: 12-CV-502A(F)
• Parties: STEPHEN L. ATTERBURY, Plaintiff, v. UNITED STATES MARSHALS SERVICE GARY INSLEY, JOHN DOE, Defendants.
• Court: U.S. District Court — Western District of New York

STEPHEN L. ATTERBURY, Plaintiff,
v.
UNITED STATES MARSHALS SERVICE
GARY INSLEY, JOHN DOE, Defendants.

12-CV-502A(F)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: March 27, 2014

REPORT and RECOMMENDATION
DECISION and ORDER¹

APPEARANCES:

COHEN, WEISS AND SIMON
Attorneys for Plaintiff
THOMAS N. CIANTRA,
TRAVIS M. MASTRODDI, of Counsel

WILLIAM J. HOCHUL, JR.
UNITED STATES ATTORNEY
Attorney for Defendants
MICHAEL S. CERRONE,
Assistant United States Attorney, of Counsel
Federal Centre

JURISDICTION

This case was referred to the undersigned for all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) by order of Hon. Richard J. Arcara dated May 15, 2012 (Doc. No. 3). It is presently before the court on Defendants' motion, filed January 31, 2013, to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, under Fed.R.Civ.P.

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56, (Doc. No. 20) ("Defendants' motion") and Plaintiff's motion, filed February 28, 2013 (Doc. No. 27) pursuant to Fed.R.Civ.P. 56(d), to defer consideration of Defendants' motion to dismiss pending discovery relating to Count II of the Complaint ("Plaintiff's Rule 56(d) motion").

BACKGROUND

Plaintiff commenced this action by Complaint filed May 4, 2012, alleging a violation by Defendants Gary Insley and John Doe ("Insley," "John Doe," or "the individual Defendants") of Plaintiff's right to procedural due process - pre-termination and post-termination - guaranteed by the Fifth Amendment (Count I) ("Plaintiff's due process claim"), and that the direction of the United States Marshal ("USMS") to Plaintiff's employer that Plaintiff be removed from courthouse security service was arbitrary and capricious and in violation of Plaintiff's due process rights, thereby affording Plaintiff relief under the Administrative Procedure Act, 5 U.S.C. § 551, et seq., ("APA") (Count II) ("Plaintiff's APA claim"). Plaintiff seeks damages, reinstatement and attorneys fees under both claims. In lieu of serving an answer,² on January 31, 2013, Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, for summary judgment directed to Plaintiff's APA claim pursuant to Fed.R.Civ.P. 56 (Doc. No. 20) ("Defendants' motion") along with a Memorandum of Law (Doc. No. 21) ("Defendants' Memorandum"), a Statement of Undisputed Facts (Doc. No. 22) ("Defendants' Statement of Undisputed Facts"), a Declaration of Gary Insley (Doc. No.

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23) ("Insley Declaration"), together with exhibits 1 - 8 (Doc. No. 23-1) ("Insley Declaration Exh(s) ___"), a Declaration of Christopher Pfohl (Doc. No. 24) ("Pfohl Declaration"), and a Declaration of Jerrold Risley (Doc. No. 25) ("Risley Declaration"). On March 8, 2013, Plaintiff filed Plaintiff's Memorandum Of Law In Opposition To Defendants' Motion To Dismiss (Doc. No. 29) ("Plaintiff's Memorandum"), attaching a Statement Of Facts Of Plaintiff Of [sic] Stephen L. Atterbury Pursuant to Local Rule 56(a)(2) (Doc. No. 29-1) ("Plaintiff's Statement of Facts"), and the Declaration of Stephen L. Atterbury (Doc. No. 29-2) ("Atterbury Declaration"), together with exhibits A-F (Doc. No. 29-2) ("Atterbury Declaration Exh(s). __"). Defendants filed a Reply Memorandum of Law on April 3, 2013 (Doc. No. 32) ("Defendants' Reply Memorandum").

By papers filed February 28, 2013, Plaintiff cross-moved, pursuant to Fed.R.Civ.P. 56(d), to defer consideration of Defendants' motion for summary judgment, directed to Count II of the Complaint, to permit Plaintiff to take discovery to develop fully the record upon which Defendant USMS acted in requesting Plaintiff's removal (Doc. No. 27) together with Plaintiff's Memorandum Of Law In Support Of Motion To Defer Consideration Of Defendants' Motion To Dismiss Count II Of The Complaint Under Fed.R.Civ.P. 56(d) ("Plaintiff's Rule 56(d) Memorandum"), and the Declaration of Thomas N. Ciantra (Doc. No. 27-2) ("Ciantra Declaration"). On March 26, 2013, Defendants filed a Memorandum of Law in Opposition to Plaintiff's Rule 56(d) motion (Doc. No. 30 ) ("Defendants' Memorandum in Opposition to Plaintiff's Rule 56(d) motion"). On March 26, 2013, Defendants filed the Declaration of Michael S. Cerrone (Doc. No. 31) attaching as Exhibit A ("Cerrone Declaration Exh. A" or "Exh. A") the

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administrative record upon which the USMS's removal request was based (Doc. No. 311). On April 5, 2013, Plaintiff filed Plaintiff's Reply Memorandum In Support Of Motion To Defer Consideration Of Defendants' Motion To Dismiss Count II Of The Complaint Under Fed.R.Civ.P. 56(d) (Doc. No. 33) ("Plaintiff's Reply Memorandum").

By order dated September 26, 2013, the court requested further briefing as regarding the viability of Plaintiff's APA claim (Doc. No. 34). On November 18, 2013, Plaintiff filed Plaintiff's Response To September 26, 2013 Order (Doc. No. 37) ("Plaintiff's Response"); on November 22, 2013, Defendants filed a Memorandum of Law in response to the court's order (Doc. No. 38) ("Defendants' Response"). Oral argument was deemed unnecessary. Based on the following, Defendants' motion to dismiss Plaintiff's due process claim under Count I of the Complaint as to the individual Defendants should be GRANTED; Plaintiff's APA claim (Count II) should be DISMISSED sua sponte for lack of subject matter jurisdiction; alternatively, Defendants' motion to dismiss Plaintiff's APA claim should be GRANTED; alternatively, Defendants' motion for summary judgment directed to Plaintiff's APA claim should be GRANTED. Plaintiff's Rule 56(d) motion should be DENIED.

FACTS³

Plaintiff, Stephen L. Atterbury ("Plaintiff" or "Atterbury"), was since 2002, assigned as a Court Security Officer ("CSO") to the Kenneth B. Keating United States Courthouse located within this district ("the district") at Rochester, New York ("the

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courthouse") until May 2011, when he was removed from service as a CSO at the direction of the United States Marshal Service ("USMS") based on its determination that Plaintiff, on February 24, 2011, had abandoned or deserted his assigned post at the courthouse in violation of CSO Performance Standard 31 ("Performance Standard 31"). Performance Standard 31 is one of 58 specific duties and responsibilities imposed on CSOs under the USMS's contract with Plaintiff's employer, Akal Security, Inc. ("Akal"), pursuant to which Akal hired security personnel, i.e., CSOs, to provide security services at the courthouse ("the contract" or "the Akal contract"). Insley Declaration Exh. 1 at C-18. Performance Standard 31 requires CSOs "[n]ot close or desert any post prior to scheduled closure unless directed to do so by the supervisor. Remain at assigned post until properly relieved or until the time post is to be secured." Id. Under the contract, Akal, as the contractor, is required to supervise and perform security services for the USMS at the courthouse. The contract also authorizes the USMS's contracting officer, Insley ("the Contracting Officer" or "Insley"), to direct Akal to remove a CSO from providing courthouse security services for a violation of the CSO Performance Standards or when a CSO has engaged in actions "likely to compromise the security of the court[ ]." Insley Declaration Exh. 1 at H-3(c), (e). The contract provides that the "suitability" of an Akal employee to "serve as a CSO" is reserved to the USMS and that the final decision to retain a CSO for courthouse security service is made "solely" by the USMS through the Contracting Officer and the USMS Office of Court Security. Id. at H-3(b), (c). In a case where the USMS has requested that a CSO be removed by Akal from security service duty at the courthouse, a written response from the CSO and a written statement of Akal's position on the proposed removal must be provided to the

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Contracting Officer for final decision within 15 days of the initial notice of removal. Id.

On February 24, 2011, Plaintiff was assigned to a security post near a basement conference room in the courthouse to provide security in connection with a meeting involving a local member of Congress which had been scheduled to commence around 1:00 p.m. Shortly after he learned from CSO Brydalski, another CSO on duty at that time, that the scheduled meeting, for reasons not disclosed in the record, had been cancelled, Plaintiff left his post at approximately 1:30 p.m., went to another area in the courthouse, the USMS operations area, and informed the Acting Lead CSO, Jerrold Risley ("Risely"), that he, Plaintiff, "was sick and was going home." Risley Declaration ¶ 5. Plaintiff also stated that he would not be in the following day, February 25, 2011. Id. ¶ 6. Plaintiff spoke to Risely because the Lead CSO, Martin Hughes, was on vacation at that time and not present. Id. ¶ 5. Witnesses, including Risely and CSO Becky Smith,⁴ described Plaintiff as appearing "upset" and "mad," id., ¶ ¶ 10-11. Risley attempted to "discuss the situation" with Plaintiff in the CSO office located in the courthouse but Plaintiff had already signed out and exited the courthouse. Brydalski stated Plaintiff appeared unwell prior to Plaintiff's departure from his assigned post that afternoon. Insley Declaration Exh. 3 at 2...