Birmingham v. Ogden

• Citation: 70 F.Supp.2d 353
• Decision Date: 08 October 1999
• Docket Number: No. 97 Civ. 8057(CM).,97 Civ. 8057(CM).
• Parties: William BIRMINGHAM, Plaintiff, v. Louis C. OGDEN, individually, and The City of Middletown, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

70 F.Supp.2d 353

William BIRMINGHAM, Plaintiff, v. Louis C. OGDEN, individually, and The City of Middletown, New York, Defendants.

No. 97 Civ. 8057(CM).

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

October 8, 1999.

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Jonathan Lovett, Lovett & Gould, White Plains, NY, for William Birmingham, plaintiff.

William K. Kerrigan, MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, NY, for Louis C. Ogden, defendant.

Robert N. Isseks, Middletown, NY, for City of Middletown, New York, defendant.

MEMORANDUM DECISION DENYING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S DUE PROCESS CLAIM, GRANTING DEFENDANT CITY'S MONELL MOTION, DENYING DEFENDANT OGDEN'S REQUEST FOR QUALIFIED IMMUNITY, DECLINING TO EXERCISE JURISDICTION OVER PLAINTIFF'S CLAIM PURSUANT TO ARTICLE 78 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES, AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S REMAINING CLAIMS

McMAHON, District Judge.

In Moccio v. Office of Court Administration, 95 F.3d 195 (2d Cir.1996), the United States Court of Appeals for the Second Circuit applied the so-called Rooker-Feldman doctrine,¹ which bars a district court from entertaining a suit that would have the effect of reversing or modifying a state court judgment, to sustain dismissal of a complaint that charged constitutional infirmities in the dismissal of a uniformed court officer. The plaintiff in Moccio was dismissed following a hearing at which he presented testimony and confronted the witnesses against him. An administrative law judge reviewed the record and sustained the hearing officer's recommendation of dismissal. The dismissed officer then brought a petition pursuant to Article 78 of New York's Civil Practice Law and Rules, seeking to vacate the decision of the administrative law judge. When the Article 78 appeal proved unsuccessful, Moccio brought an action in this court, pursuant to 42 U.S.C. § 1983, contending that his termination was procured in violation of his constitutional rights. The Second Circuit affirmed the district court's dismissal of Moccio's complaint for lack of subject matter jurisdiction. It ruled that Rooker-Feldman precluded plaintiff's suit, because plaintiff could have litigated his constitutional claims in the Article 78 proceeding but failed to do so. The Court held that the constitutionality of plaintiff's dismissal was necessarily comprehended in the state court's judgment upholding that dismissal, and that Moccio's constitutional claims were therefore "inextricably intertwined" with the validity of the underlying judgment in the Article 78 proceeding. This precluded the federal courts from entertaining them under Rooker-Feldman because, if the federal court found in the plaintiff's favor on his constitutional claims, the effect would be to reverse or modify the state court's judgment. That, of course, is what the Rooker and Feldman cases forbid.² See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

In this action, plaintiff William Birmingham is similarly aggrieved. He was dismissed from his position with the City of Middletown police force after a hearing conducted by the Middletown Board of Police Commissioners. At that proceeding, he was represented by counsel, who called and cross-examined witnesses. Like Moccio, Birmingham does not challenge the constitutionality of either law or regulations that were applied to him, but rather contends that those precepts were erroneously applied to his specific set of facts, by persons he claims were biased and acting out of a desire to retaliate against him for engaging in constitutionally protected speech. Like Moccio, Birmingham contends (among other things) that his dismissal violated Fourteenth Amendment due process guarantees, because the termination hearing was conducted in an arbitrary and capricious fashion. Also like Moccio, Birmingham alleges that he was selectively sanctioned by his superiors in violation of the Equal Protection Clause, in that other members of the Middletown police force were not disciplined or terminated for misconduct similar to his. Birmingham claims, additionally, that disciplinary charges were brought against him in retaliation for his exercise of his First Amendment rights to speak about matters concerning the operation of the Middletown police department.

For purposes of this motion, the critical difference between Birmingham's case and Moccio's is that plaintiff Birmingham, unlike Moccio, never bothered to bring an Article 78 proceeding challenging his dismissal. In such a proceeding, Birmingham could have litigated his constitutional claims. New York Civil Service Law § 76(1); see Star Distrib., Ltd. v. Marino, 613 F.2d 4, 8 n. 10 (2d Cir.1980) (noting the obligation and competence of state courts to decide federal questions); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (observing that State courts, as much as federal courts, are bound by and required to follow the United States Constitution).

The defendants have moved for summary judgment dismissing the instant complaint on a variety of grounds. Foremost among them is that this Court lacks subject matter jurisdiction under Rooker-Feldman. Defendants acknowledge that no State court judgment underlies this action. Nonetheless, they contend that Rooker-Feldman can and should be applied to the quasi-judicial State administrative proceeding, because that proceeding has collateral estoppel effects under New York law. The defendants claim that this conclusion is compelled by Moccio, where the plaintiff was (in essence) estopped from litigating claims in federal court that he had a full and fair opportunity to raise in a state court proceeding. In addition, defendants urge dismissal because plaintiff has failed to raise disputed issues of material fact as to each of his claims.

As I am required to resolve a challenge to this Court's subject matter jurisdiction prior to considering any other question, see Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (stating that district courts should address a Rule 12(b)(1) challenge first, since if the court must dismiss the complaint for lack of subject matter jurisdiction, the accompanying objections become moot and need not be determined); Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (noting that before addressing the merits of any claim, a federal court must examine the basis of federal jurisdiction), I begin by addressing defendant's Rooker-Feldman argument. While I find that I am not compelled by Rooker-Feldman to abstain from hearing plaintiff's claims, I conclude that I must dismiss portions of the complaint on other grounds.

Background Facts

The following facts, which are viewed most favorably to plaintiff, are deemed accepted for purposes of this motion only.

William Birmingham was a lieutenant on the City of Middletown police force. He was, by the admission of his Police Chief, defendant Ogden, an excellent officer during his tenure with the department. As a tenured municipal employee, Birmingham had a property interest in his position.

During his employment, at times and in places that are not specified in the complaint or in any evidentiary form, plaintiff expressed to Ogden, his friend, former partner and captain, various opinions concerning the running of the police department, including his opinion that the workings of the department were permeated with local politics and that the Police Chief was too closely tied to the Mayor. Plaintiff was also extremely active in the Police Benevolent's Association ("PBA"), and he criticized the leadership of the police department for not encouraging union activity among the rank and file. It would appear from the papers before me that Birmingham did not make these comments in any public forum, but instead privately, to Ogden or other senior officers of the department. It would be fair to infer that plaintiff developed something of a reputation as a troublemaker.

Plaintiff contends that his outspokenness on these matters, which he characterizes as matters of public concern, led his former friend Ogden to express an interest in "shutting his mouth." To accomplish this, plaintiff alleges that Ogden and two confidantes, Lieutenants Joseph Valentia and Lawrence Corkey, coerced plaintiff's wife — with whom he was negotiating the terms of an unfriendly divorce — into filing a false criminal complaint against Birmingham. Plaintiff contends that his wife, who was ill and heavily medicated, was unable to comprehend what she was doing when she signed this charge, though he also alleges that his wife attempted to gain some advantage in their divorce negotiations by threatening to cause Birmingham trouble with his boss. On October 12, 1995, based on his wife's criminal complaint, plaintiff was arrested at his home and charged with assault in the third degree. Plaintiff's wife has since recanted her charge; she has testified, at plaintiff's disciplinary hearing, that she does not believe she was intentionally struck by her husband and was unaware of what she was assenting to when she signed the complaint. See Transcript of May 30, 1997 Board of Police Commissioners Hearing, attached as Ex. 13 to the Affidavit of Kim Berg, at 24-25, 29, 32, 52. The criminal action against plaintiff was eventually dismissed.

Over a year after this incident, but prior to dismissal of the criminal complaint, Police Chief Ogden brought plaintiff up on disciplinary charges based on the alleged domestic abuse. Plaintiff appeared before the Board of Police Commissioners, in May 1997, and was adjudged guilty of misconduct after an Article 75 disciplinary hearing that plainti...