Frank v. Relin, s. 1019

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtKEARSE; Plaintiff Melinda C. Frank appeals from a final judgment of the United States District Court for the Western District of New York, David G. Larimer
Citation1 F.3d 1317
PartiesMelinda C. FRANK, Plaintiff-Appellant, v. Howard R. RELIN, Individually and in his official capacity as the Monroe County District Attorney, Defendant-Appellee. ockets 92-9026, 93-7060.
Docket Number1344,Nos. 1019,D,s. 1019
Decision Date28 July 1993

Page 1317

1 F.3d 1317
Melinda C. FRANK, Plaintiff-Appellant,
Howard R. RELIN, Individually and in his official capacity
as the Monroe County District Attorney, Defendant-Appellee.
Nos. 1019, 1344, Dockets 92-9026, 93-7060.
United States Court of Appeals,
Second Circuit.
Argued May 25, 1993.
Decided July 28, 1993.

Page 1319

David Rothenberg, Rochester, NY (Geiger & Rothenberg, on the brief), for appellant.

William G. Gandy, Buffalo, NY (Thomas S. Gill, Lawrence J. Fineberg, Saperston & Day, P.C., on the brief), for appellee.

Before: NEWMAN, Chief Judge *, FEINBERG and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Melinda C. Frank appeals from a final judgment of the United States District Court for the Western District of New York, David G. Larimer, Judge, dismissing her complaint seeking damages and other relief pursuant to 42 U.S.C. Sec. 1983 (1988) against defendant Howard R. Relin for termination of her employment in violation of her rights under the First Amendment, and from an order of that court denying her motion to vacate the judgment pursuant to Fed.R.Civ.P. 60(b). Ruling that Frank had withdrawn her claim asserted against Relin in his official capacity, the district court dismissed the remainder of her complaint on the ground that Relin had qualified immunity with respect to the claim brought against him in his individual capacity. On appeal, Frank contends chiefly that the court erred (1) in ruling that she had withdrawn her claim against Relin in his official capacity, (2) in dismissing her complaint to the extent that it requested equitable relief, and (3) in granting summary judgment on Relin's defense of qualified immunity. For the reasons below, we agree, and we vacate and remand for further proceedings.


From December 1981 until November 15, 1985, Frank was employed in the Office of the District Attorney ("DA") for Monroe County, New York (the "County"), as a "victim-witness coordinator." During the relevant period, Relin was the district attorney. His staff included a "First" assistant district attorney ("ADA"), whom we refer to as "A" and who was next in command after Relin; and Special ADA Louis P. Pilato, who ranked as a "Third" ADA and was in charge of the office's investigative unit. Pilato, who had served in the DA's office for some 11 years, was responsible for supervising several bureaus and 20-30 people who staffed those bureaus; he had no supervisory responsibility for the victim-witness bureau. Frank's direct supervisor was the office administrator, ADA George Sofia. Affidavits and testimony received in the district court, construed

Page 1320

in the light most favorable to Frank, reveal the following events preceding Relin's termination of Frank's employment.

A. Frank's Responsibilities and Her Concerns

As victim-witness coordinator, Frank was a liaison between the DA's office and the victims of and witnesses to crimes. Her responsibilities included locating and contacting victims and witnesses, counseling them, participating in their interviews, and generally shepherding them through the trial process. Until the events in question, Frank by all accounts performed her job well. She consistently received "exceptional" ratings in annual reviews and was described as a "very hard working and dedicated" employee.

If, in the course of a conversation, a witness mentioned something to Frank that was not known to the ADA assigned to the case, Frank was to relay that information to the ADA. In early 1985, Frank was assisting one Sam Tibone, a victim and witness in a criminal case being handled by an ADA to whom we refer as "B". A police officer stopped Frank in the hallway outside the district attorney's office and asked her why she was with Tibone. When Frank explained that Tibone was the victim in a case, the officer advised her to tell ADA "B" immediately that Tibone " 'has a criminal record as long as your arm.' " (Hearing Transcript dated August 11, 1988 ("Aug. 11 Tr."), at 10 (testimony of Frank).) Frank promptly attempted to relay the information to "B". "B", however, stated that he did not want to hear about Tibone's criminal record until " 'after the trial is over.' " (Id. at 11.) Frank did not tell anyone about "B" 's reaction at that time.

In the summer of 1985, Frank was working on the prosecution of one David Larson, who was accused of murdering a fourteen-year old girl while she was babysitting. Apparently the police had found Larson's fingerprint at the crime scene, and "A", who was assigned to the case, viewed the fingerprint as a particularly strong piece of evidence. However, when, as requested by "A", Frank contacted two witnesses to determine whether they were still available for trial, the witnesses told Frank they had seen Larson at the crime scene prior to the date of the murder. The witnesses were willing to come to the DA's office to be interviewed; but according to Frank, "A" told her

not to bother bringing them in for an interview, that he felt this would be very harmful to our case, that if we proved the defendant had been in the house prior to the night of the homicide, that this fingerprint would be thrown out.

(Id. at 15-16.)

The next morning, Frank approached Pilato and told him she was concerned about some information she had about a criminal case and was wondering what information the ADAs wanted withheld before trial. Pilato asked Frank what she meant, and she told him about her conversations with "B" concerning the Tibone matter and with "A" concerning the Larson matter. Pilato told Frank: " 'I think that's Brady [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] material.' " (Aug. 11 Tr. at 19 (testimony of Frank).) He explained to Frank, who did not know what Brady material was, that that meant the information should be turned over to the defense. Pilato was clearly concerned, saying,

I'm going to have to do something about this. I don't know what it's going to be, but ... if this should ever come out, ... I could be disbarred.

(Id. at 20.) Frank asked Pilato to let her know what he intended to do before he took any action.

Some time later, "A" asked Frank to contact another potential witness in the Larson case. Frank spoke to the witness by telephone and learned that the witness knew Larson and had seen him at about 9:30 on the night of the murder. According to Frank, the witness

said--her conversation with Larson was, "David, what are you on?" And his response to her was, "I'm on Black Velvet and acid."

(Id. at 22.)

Frank told "A" about her telephone conversation with this witness and asked him if

Page 1321

he wanted her to bring the witness in for an interview. "A" told Frank, " 'No, don't bring her in. That will only help the defendant's case.' " (Id. at 23.) Frank was concerned by this because normally "A" "followed up on every bit of information in order to avoid any surprises in the courtroom." (Id.) She therefore wanted to discuss the matter with someone. However, "A" had rushed off to attend to other matters; Relin was out of the office, as was the ADA who ranked just behind "A"; and Sofia, Frank's supervisor, had an office full of people. Frank therefore turned again to Pilato.

Frank told Pilato that "A" had told her not to bring in a potential witness who had indicated a defendant had been drinking and was on drugs. Frank asked whether Pilato would normally interview such a witness in his own cases; he stated he would and that he was " 'going to have to do something about this.' " (Id. at 25.) Frank asked him what he intended to do, to which he responded he did not know. Frank again asked Pilato to let her know what he intended to do before he did anything.

Immediately after that conversation, Pilato spoke to Justice Robert Kennedy, the supervisory judge of the Monroe County criminal courts, and reported on Frank's statements about "A" 's handling of the Larson case. Later that day, Pilato told Frank he had discussed the matter with Justice Kennedy, and Frank became upset because Pilato had acted without first telling her. That evening, Frank called "A" and told him what Pilato had done.

B. The Termination of Frank's Employment

On September 13, 1985, Justice Kennedy summoned Relin and informed him that "A" might be mishandling potentially exculpatory material in the Larson case. Relin, apparently surprised by what he heard, returned to his office to investigate the matter. He learned that it was Pilato who had informed Justice Kennedy about the Larson matter and that Pilato's impetus had been a conversation with Frank. Relin stated that he had confronted Frank and inquired why she had not followed proper office procedure (described by Relin at the hearing as an unwritten procedure) and expressed her concerns to her immediate supervisor or Relin, rather than discussing "A" 's case with Pilato. He told Frank "she had made the most serious type of error in judgment" and that he planned to discuss her performance with the members of his senior staff. (Hearing Transcript dated February 13, 1989 ("Feb. 13 Tr."), at 30 (testimony of Relin).)

Relin thereafter convened a meeting attended by, inter alios, Relin, Sofia, "A", and "B" (Pilato apparently had been fired immediately) to discuss the matter, and their principal focus appears to have been whether or not Frank should be fired. According to the testimony of Sofia, "[i]t was arrived at through a consensus meeting of the administrative division heads of the District Attorney's Office and the District Attorney" (id. at 15) "that Mrs. Frank could no longer be trusted; that her position was a key one, and she would be working with trial attorneys, and it was determined that she couldn't--her position was too important, and she could no longer be trusted" (id. at 14).

On September 20, 1985, Relin relieved Frank of her duties and asked her to resign. Three days later, Frank was given letters of recommendation by "A",...

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