Mullahey v. Zurlo, 1:16-CV-00401 (MAD/DJS)

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
PartiesKEVIN MULLAHEY, Plaintiff, v. MICHAEL ZURLO, individually and as Sheriff of Saratoga County, SPENCER HELLWIG, III as County Administrator for the County of Saratoga, THE COUNTY OF SARATOGA, and JOHN DOES, Defendants.
Docket Number1:16-CV-00401 (MAD/DJS)
Decision Date09 February 2017

MICHAEL ZURLO, individually and as Sheriff of Saratoga County,
SPENCER HELLWIG, III as County Administrator for the County of Saratoga,

1:16-CV-00401 (MAD/DJS)


February 9, 2017


950 New Loudon Road
Latham, New York 12110
Attorneys for Plaintiff

P.O. Box 2485
2534 Route 9
Malta, New York 12020
Attorneys for Defendants




Mae A. D'Agostino, U.S. District Judge:



On April 7, 2016, Kevin Mullahey ("Plaintiff") commenced the present civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985 against Michael Zurlo, Spencer Hellwig, III, the County of Saratoga, and John Does ("Defendants"). Plaintiff allege violations of his Due Process Rights, "Stigma-Plus" defamation, Conspiracy, and Municipal Liability. See Dkt. No. 1.

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Currently before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. No. 27-5.


Plaintiff was employed by Defendants for approximately thirty-six (36) years. See Dkt. No. 1 at ¶ 18. On January 1, 2014, Plaintiff was promoted from the position of Investigator to Undersheriff. See id. at ¶ 19. Under Saratoga County and New York State Civil Service Law, the position of Undersheriff is an exempt and/or management position. See id. at ¶ 20. As Undersheriff, Plaintiff was an at-will employee who could be discharged with or without reason. See id. at ¶ 21.

Plaintiff held the position of Undersheriff from January 1, 2014 through February 12, 2016. See id at ¶¶ 19, 36; Dkt. No. 27-5 at 7.2 In January 2016, Defendant Zurlo implied to Plaintiff that Plaintiff had allegedly compromised an investigation. See Dkt. No. 1 at ¶ 24. Plaintiff responded that he did not act improperly in the course of his work and to prove this, Plaintiff requested to be interviewed by Defendants and offered to take a polygraph test. See id. at ¶¶ 25-26. Defendants, however, refused to interview Plaintiff and did not have him submit to a polygraph test. See id. at ¶ 27.

On February 9, 2016, Plaintiff met with Defendants' agents who presented a document titled "Settlement Agreement." See id. at ¶¶ 30-31. The "Settlement Agreement" was presigned by Defendants Hellwig and Zurlo and which, if signed by Plaintiff, would have, by its terms, stated that Plaintiff was resigning his employment and surrendering any rights to file claims

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against Defendants. See id. at ¶ 31. Ultimately, Plaintiff did not sign the "Settlement Agreement." See id.

During that same February 9, 2016 meeting, Defendants' representatives allegedly told Plaintiff that if he did not resign by February 12, 2016, he would be fired without a pre-termination hearing and would not be permitted to challenge the termination. See id. at ¶ 32. If terminated, Plaintiff and his family would have lost their county-paid health insurance. See id. at ¶ 33. On February 12, 2016, Plaintiff resigned in what he asserts was a coerced resignation or constructive discharge. See id. at ¶¶ 34-35. That same day, Defendants accepted Plaintiff's resignation. See id. at ¶ 36.

On or after February 12, 2016, Plaintiff alleges that Defendants (and/or "JOHN DOES the Defendants knew") told the media in the County of Saratoga and the greater Capital Region that Plaintiff's resignation was due to his improper and/or illegal conduct as Undersheriff. See id. at ¶¶ 38-39. In particular, the following statements were made:

(a) To the Albany Times Union newspaper on February 13, 2016:

(i) "The departure of Kevin P. Mullahey, who Sheriff Michael Zurlo elevated to undersheriff in 2014, came as questions surfaced about whether a person close to Mullahey may have intervened in a State_Police undercover criminal investigation,"

(b) To the Albany Times Union newspaper on February 15, 2016:

(i) "The Saratoga County undersheriff was forced to retire from his job last week after the department accused him of interfering in a drug investigation in which the State Police said the identity of an undercover informant was compromised."

(c) To television station WNYT between February 12-14, 2016:

(i) "Undersheriff Mullahey interfered in a drug investigation to protect his son"

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(d) To the Saratogian newspaper on February 16, 2016:

(i) "Published reports say he was accused of allegedly interfering with [sic] in a state police undercover investigation."

(e) To the Post Star newspaper on February 14, 2016:

(i) "From what we have heard from inside and outside the Sheriff's Office, allegations were raised about the leak of confidential information related to a drug case."

(f) To the Post Star newspaper on March 8, 2016:

(i) "Mullahey retired suddenly last month amid questions about whether he leaked information about a criminal investigation."

(g) To the Daily Gazette newspaper on February 19, 2016:

(i) "Mullahey might have revealed the name of a confidential informant to someone close to him, which could have compromised a State Police investigation."

(ii) "Mullahey was not forthcoming when the allegations first surfaced."

Id. at ¶ 44.


A. Standard of Review

In deciding a Rule 12(c) motion, the court "employ[s] the same standard applicable to dismissals pursuant to Fed. R. Civ. P. 12(b)(6)." Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191, 193 (2d Cir. 2015) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the party's claim, accepting as true all well-pleaded facts and drawing all reasonable inferences in favor of the pleader. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). Ultimately, "when the allegations

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in a complaint, however true, could not raise a claim of entitlement to relief," the complaint must be dismissed. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

On a Rule 12(c) motion, the court may consider the following matters outside the four corners of the complaint without converting the motion to one for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, and (4) any matter of which the court can take judicial notice for the factual background of the case. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 421-22 (2d Cir. 2011) (quotation omitted); see also Jenkins v. County of Washington, 126 F. Supp. 3d 255, 274 (N.D.N.Y. 2015) (citation omitted).

B. Deprivation of interests without due process

In his first claim, Plaintiff alleges that he was deprived of constitutionally protected liberty interests without due process, i.e., his reputation and future ability to engage in law enforcement were injured when denigrating statements were made to the media following his forced resignation. See Dkt. No. 1 at ¶¶ 51-58. Defendants contend that this claim must be dismissed for the following reasons: (1) Plaintiff admittedly resigned his employment and, therefore, was not terminated by any Defendant; (2) Plaintiff never requested a post-resignation name clearing hearing; (3) Plaintiff failed to avail himself of "due process" that was available under New York law; and (4) Plaintiff's admissions make clear that he was never deprived of a liberty interest. See Dkt. No. 27-5 at 11-17.

"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property without due process of law, and 'those who seek to invoke its procedural protection must establish that one of these interests is at stake.'" Victory v. Pataki, 814

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F.3d 47, 59 (2d Cir. 2016) (quoting Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012)) (other citation omitted). "'[S]tandard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.'" Id. (quoting Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011)).

1. Property interest3

Defendants assert that this claim should be dismissed because Plaintiff voluntarily retired from public law enforcement and as a result was not deprived of any interest. Dkt. No. 27-5 at 15. Plaintiff argues that his retirement was not voluntary; instead it should be considered a "constructive discharge or coerced retirement." Dkt. No. 39 at 19.

"Protected property interests 'are not created by the Constitution.'" Hughes v. City of N.Y., ___ F. Supp. 3d ___, 2016 WL 3541545, *5 (E.D.N.Y. 2016) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)). "Instead, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Id. (quotation and other citation omitted); see also Ciambriello v. Cty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002)). "It is well-established that a public employee has a property interest in his job if he is entitled to continued employment absent 'just cause' for termination." Id. (citing Ciambriello, 292 F.3d at 313; Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002)). "In the same way, an 'employee of a government contractor' may

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'have a constitutionally protected property interest in continued employment.'" Id. (quoting Atterbury v. U.S. Marshals Serv., 805 F.3d 398, 407 (2d Cir. 2015)).

The Court finds that even if a constructive discharge or coerced retirement were assumed, Plaintiff failed to...

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