Kregler v. City of New York

• Decision Date: 26 October 2011
• Docket Number: No. 08 Civ. 6893(VM).,08 Civ. 6893(VM).
• Citation: 821 F.Supp.2d 651
• Parties: William KREGLER, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
• Court: U.S. District Court — Southern District of New York

821 F.Supp.2d 651

William KREGLER, Plaintiff,

v.CITY OF NEW YORK et al., Defendants.

No. 08 Civ. 6893(VM).

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

Oct. 26, 2011.

Nathaniel B. Smith, Law Office of Nathaniel B. Smith, New York, NY, for Plaintiff.

Christopher Aaron Seacord, New York City Law Department, New York, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff William Kregler (“Kregler”) brought this action pursuant to 42 U.S.C. § 1983 (“§ 1983”) against the City of New York (“City”) and individual defendants (“Individual Defendants”) Louis Garcia (“Garcia”), Rose Gill Hearn (“Hearn”), Keith Schwam (“Schwam”), Darren Keenaghan (“Keenaghan”), Brian Grogan (“Grogan”), and Jayme Naberezny (“Naberezny”). At all relevant times, the Individual Defendants were employees of the City's Fire Department (“FDNY”) or Department of Investigation (“DOI”). On August 13, 2010, the City and Garcia answered the Second Amended Complaint.¹ That same day, Hearn, Schwam, Keenaghan, and Grogan moved pursuant to Rules 12(b)(1), (4) and (6) of the Federal Rules of Civil Procedure (“Federal Rules”) to dismiss the Second Amended Complaint for failure to state a claim. In addition, Naberezny moved to dismiss the Seconded Amended Complaint as time barred. Because the parties' briefs referred to materials outside the pleadings, the Court, by Decision and Order dated March 9, 2011 (the “Order”), converted Individual Defendants' motion to a motion for summary judgment (the “Motion”) pursuant to Rule 12(d) of the Federal Rules and directed the parties to submit supplemental briefing and any relevant, additional evidence. For the reasons stated below, the Court now GRANTS the Motion.

I. BACKGROUND ²

In April of 2004, one month following his retirement from his position as a Fire Marshal with the FDNY after being employed there for 20 years, Kregler filed a preliminary application and questionnaire for appointment by the City's Mayor as a City Marshal. Candidates for appointment as City Marshals are subject to an investigation by DOI of their personal and financial background and must complete a DOI-administered training program. In January of 2005, Kregler was interviewed by representatives of the Mayor's Committee on City Marshals and was later notified by Schwam, an Assistant Commissioner at DOI, that DOI would commence its personal and financial review of Kregler's background. Kregler met in April of 2005 with Keenaghan, a DOI investigator, to discuss Kregler's preliminary application. Kregler then made minor modifications to the application, signed the revised form, and provided authorizations for release of his personal information.

On May 25, 2005, Kregler, in his capacity as President of the Fire Marshals Benevolent Association, publicly endorsed the candidacy of Robert Morgenthau (“Morgenthau”) for re-election as District Attorney for New York County. At that time, all other law enforcement associations in the City, including two unions of firefighters, supported Morgenthau's opponent, Leslie Crocker Snyder (“Snyder”). An article that appeared in a June 2005 edition of The Chief, a local newspaper, reported on Kregler's endorsement of Morgenthau. Grogan, an FDNY Supervising Fire Marshal, posted a copy of that article in a public area within one of the FDNY offices. Kregler alleges that Grogan then “berated” him for the endorsement, stating: “who the f___ do you think you are. Louie [Garcia] makes the endorsement.” (Compl. ¶ 29.) At the time of that incident, Garcia was the Chief Fire Marshal of the FDNY's Bureau of Fire Investigation. Both Garcia and Grogan supported Snyder's political campaign against Morgenthau.

On July 7, 2005, Kregler was interviewed by staff of the Mayor's Office in connection with his City Marshal application and the following day was told by Schwam that the next step in the process would be the completion of the DOI background check. To that end, Kregler met a second time with Keenaghan to update and re-file his application. In September of 2005, Schwam invited Kregler and four other candidates to begin the DOI training classes, which Kregler successfully completed. In November of 2005, Kregler satisfied the last requirement for appointment by demonstrating his ability to obtain a bond. In March of 2006, Kregler was informed by letter from Schwam that he would not be appointed as a City Marshal.

Kregler filed this action in August of 2008, raising a claim of First Amendment retaliation under § 1983. Kregler contends that the explanation proffered to him for the denial of his application—Kregler's failure to disclose details of a Command Discipline he had received in 1999 during his employment by the FDNY—was merely a pretext for defendants' unlawful retaliation for his endorsement of Morgenthau.

On December 2, 2008, defendants moved to dismiss the first amended complaint, dated November 14, 2008 (“First Amended Complaint”), asserting that Kregler failed to state a claim upon which relief could be granted. By Decision and Order dated March 16, 2009, 608 F.Supp.2d 465 (S.D.N.Y.2009), the Court deferred ruling on the motion to dismiss pending the outcome of a preliminary hearing pursuant to Rule 12(i) of the Federal Rules (“Rule 12(i) Hearing”). The Court conducted the Rule 12(i) Hearing on July 16, 2009 and heard the parties' further oral arguments on July 18, 2009. On August 14, 2009, by Decision and Order, the Court dismissed the First Amended Complaint in its entirety. Kregler appealed and, on May 3, 2010, the United States Court of Appeals for the Second Circuit issued a summary order (“Summary Order”) vacating the order of dismissal and remanding the case to this Court for further proceedings. See Kregler v. City of New York, 375 Fed.Appx. 143, 144 (2d Cir.2010).

On July 9, 2010, Kregler filed his Second Amended Complaint in which, among other things, he added Naberezny, the Inspector General for the DOI, as a defendant. Also Kregler now alleges that Garcia was “personally and socially acquainted” with Naberezny (Compl. ¶ 40) and that the two “agreed to cause Kregler's application for appointment as a City Marshal to be rejected by DOI in retaliation for Kregler's support of Morgenthau.” (Compl. ¶ 43.) The Individual Defendants again moved to dismiss, and the Court converted the motion to a motion for summary judgment.

II. LEGAL STANDARD

In connection with a Rule 56 motion, “[s]ummary judgment is proper if, viewing all the facts of the record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.” Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The role of a court in ruling on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986).

The moving party bears the burden of proving that no genuine issue of material fact exists, or that due to the paucity of evidence presented by the non-movant, no rational jury could find in favor of the non-moving party. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994). The opposing party cannot defeat summary judgment by relying on the allegations in the complaint, conclusory statements, or mere assertions that affidavits supporting the motion are not credible. See Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.1996).

To succeed on his First Amendment retaliation claim under § 1983, Kregler must show that: (1) he engaged in constitutionally protected speech; (2) he suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action “so that it can be said that the speech was a motivating factor in the determination.” Washington v. Cnty. of Rockland, 373 F.3d 310, 320 (2d Cir.2004).

It is well settled in the Second Circuit that “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation marks omitted). Personal involvement, however, is not limited to direct participation in the deprivation of rights at issue. Kregler may show the personal involvement of the Individual Defendants in several ways, such as by establishing that each defendant: (1) directly participated in the infraction; (2) failed to remedy the wrong after learning of the violation; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) exhibited “gross negligence” or “deliberate indifference” to the constitutional rights of Kregler by having actual or constructive notice of the unconstitutional practices and failing to act. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); see also Wright, 21 F.3d at 501.

III. DISCUSSION

A. CLAIMS AGAINST HEARN

In his First Amended Complaint, “to amplify his allegations against Hearn” and avoid motion practice (Pl. Mem. 8), Kregler advanced the theory that the personal relationship between Hearn and Garcia provided the impetus by which the two of them allegedly agreed to reject Kregler's application for City Marshal in retaliation for supporting Morgenthau. However, after hearing testimony at the Rule 12(i) Hearing, Kregler's counsel stated on the record:

[s]o what I have here is a situation where I think I've named the wrong defendant. And, in fact, I would like to make an application to the Court to substitute in Naberezny for Gill Hearn because it looks to me like the discussion, the understanding about Kregler not becoming a sheriff that was...