Nolan v. Cnty. of Erie

Decision Date24 April 2020
Docket NumberCase No. 1:19-cv-01245
PartiesJEREMIAH NOLAN, JR. and SANDRA NOLAN, Individually and as Husband and Wife, Plaintiffs, v. COUNTY OF ERIE, ERIE COUNTY SHERIFF'S DEPARTMENT, TIMOTHY B. HOWARD, MARK N. WIPPERMAN, THOMAS DIINA, and JEFFREY HARTMAN, Defendants.
CourtU.S. District Court — Western District of New York
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

Plaintiffs Jeremiah Nolan, Jr. ("Plaintiff J. Nolan") and Sandra Nolan ("Plaintiff S. Nolan" and collectively, "Plaintiffs") bring this action against Defendants County of Erie (the "County"), Erie County Sheriff's Department (the "Sheriff's Department"), Sheriff of Erie County Timothy B. Howard, Undersheriff of Erie County Mark N. Wipperman, and Sheriff of Erie County employees Thomas Diina and Jeffrey Hartman (collectively, "Defendants") pursuant to 42 U.S.C. § 1983 and New York common law, alleging that Plaintiff J. Nolan was wrongfully terminated from his employment at the Sheriff's Department following a negligent investigation into an alleged incident of theft.

On September 20, 2019, Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Plaintiffs failed to comply with Defendants' demand for examination submitted pursuant to N.Y. Gen. Mun. L. § 50-h, that other claims are time-barred, and that they fail to plausibly allege claims for relief. (Doc. 4.) Plaintiffs oppose the motion. Defendants filed a reply on October 17, 2019, at which time the court took the pending motion under advisement.

Plaintiffs are represented by Steven M. Cohen, Esq., and William A. Lorenz, Jr., Esq. Defendants are represented by Erin Elizabeth Molisani, Esq., and Kenneth R. Kirby, Esq.

I. Allegations in the Complaint.

Plaintiffs are husband and wife who are residents of the County of Erie in New York. Plaintiff J. Nolan works for the Sheriff's Department as a "career law enforcement officer[.]" (Doc. 1 at ¶ 13, 40.) Plaintiffs assert that Sheriff Howard, Undersheriff Wipperman, and Defendants Diina and Hartman1 reside in the County and were, at all relevant times, employees of the Sheriff's Department. Plaintiffs allege that these individual Defendants engaged in all acts alleged in the Complaint in the course of their employment and under the color of New York law in their official and individual capacities. Alternatively, Plaintiffs allege that these individual Defendants acted maliciously and intentionally outside the scope of their employment.

On approximately May 27, 2018, Plaintiff J. Nolan was working in a Sheriff's Department facility at the Erie County Medical Center ("ECMC") and found a magazine pouch in a desk drawer on the ninth floor. Based on written directives "detailed in said ECMC [o]ffice," he "moved the magazine pouch to the top of a gun box" in the ECMC office. Id. at 12, ¶ 27. His union representative informed him approximately six days later that he was accused of stealing an ammunition magazine from the ECMC office.

On June 8, 2018, Plaintiff J. Nolan met with Defendant Hartman, who gave Plaintiff the option to either resign from the employment of the Sheriff's Department or charges would be filed against him and he would be arrested that day. Plaintiff J. Nolan attempted to explain "the circumstances surrounding the accusation, explained it was a magazine pouch without a magazine, where he put it and why, and Defendants refused to listen." Id. at 12, ¶ 31. On June 8, 2018, Plaintiff received a letter from the Sheriff'sDepartment, signed by Defendants Diina and Hartman, placing him on administrative leave without pay and ordering him to home confinement from June 8, 2018 through June 14, 2018. He asserts that the order of home confinement "was improper, unlawful[,] and without legal justification[,]" id. at 13, ¶ 33, and that his attempts "to explain the facts of the situation[] and the errors and legal insufficiencies of and committed by Defendants were futile." Id. at 13, ¶ 35.

On or about June 22, 2018, Plaintiff J. Nolan's employment was terminated by Undersheriff Wipperman, Defendants Diina and Howard, the County, and the Sheriff's Department "as a result of an intentionally deficient and improper and negligent investigation[.]" Id. at 13, ¶ 36. He subsequently had night terrors and "feelings of paranoia, duress, chest pains, trouble breathing, severe sweating, and disorientation upon waking up." (Doc. 1 at 13, ¶ 37.)

On or about June 26, 2018, Plaintiff J. Nolan was arrested for Petit Larceny, a Class-A misdemeanor, which he contends, "if sustained, would forever be an impediment to future employment as a police officer." Id. at 13, ¶ 40. That same day, Sheriff Howard published or released the following allegedly defamatory statements to various press and media outlets regarding Plaintiff J. Nolan; "I cannot understand how a sworn officer could take another officer's lifeline—the magazines for his duty gun. It was evident that his misconduct warranted his termination." Id. at 14, ¶ 41. This statement was then published in a news article titled: "What one Erie County Sheriff's deputy did that got him arrested and fired[.]" Id. at 16, ¶ 62. Plaintiff J. Nolan asserts that Sheriff Howard's statement accusing Plaintiff J. Nolan of committing a crime "and/or conduct involving moral turpitude" was false when made, was made with malice, and that Sheriff Howard "knew or should have known the statements were false or should have had serious doubts about their truth, and published the statements anyway, with a reckless disregard of [their] probable falsity." Id. at 16-17, ¶¶ 64-67.

Following a bench trial on December 17, 2018, Plaintiff J. Nolan was acquitted of misdemeanor Petit Larceny. He was informed on December 22, 2018 that he would be reinstated as an employee of the Sheriff's Department, and his union representativeadvised he was entitled to full payment of back wages. Plaintiff J. Nolan returned to work on March 26, 2019 but has not yet received any back pay.

Upon returning to work, Plaintiff J. Nolan experienced "hostility and retaliation" from "agents and/or employees of all Defendants[,]" which, in conjunction with the negative publicity of his arrest, caused "great stress" to him and his wife. Id. at 14, ¶¶ 46-47. Plaintiff J. Nolan alleges he has "a history of asserting his rights and filing grievances through proper channels against . . . Defendants" and of "seeking legal redress against Defendants for conduct [he] deemed illegal or wrong[,]" which Defendants have purportedly resented. (Doc. 1 at 14, ¶¶ 48-49.) As acts of retaliation, Plaintiff J. Nolan alleges that on February 13, 2019, his sick leave was "abruptly stopped without just cause" even though he submitted the required paperwork. Id. at 17, ¶ 71. On or about March 25, 2019, Defendants' "agent" Lieutenant Adamek allegedly told Plaintiff J. Nolan: "Looks like you burnt too many bridges around here[.]" Id. at 17, ¶ 72. Lieutenant Adamek subsequently forced Plaintiff J. Nolan to work an additional eight-hour shift contrary to overtime restrictions he had from the Family Medical Leave Act ("FMLA"), and unjustly sanctioned Plaintiff J. Nolan for "leaving his post under circumstances which didn't warrant that sanction[.]" Id. at 17, ¶ 73. Plaintiff J. Nolan alleges other employees were not sanctioned for this same conduct.

Plaintiff J. Nolan further alleges that, on or about March 28, 2019, Deputy Marc Scarpace told Plaintiff J. Nolan to "fuck yourself in front of others "at the behest and instance of Defendants" and that when he reported the incident, Defendants refused to "process or act on" it. Id. at 18, ¶¶ 75-77. On or about April 5, 2019, Plaintiff J. Nolan was ordered to return his hard copy Policy and Procedures binder when others were not instructed to do so. On or about April 23, 2019, he was "written up for exhaustion of his FMLA time despite having eight hours remaining." Id. at 18, ¶ 79. Chief Union Steward Deputy Mark Geary allegedly called this series of events a "witchhunt." (Doc. 1 at 18, ¶ 80.)

Plaintiffs asserts eight causes of action: (1) wrongful termination by all Defendants "as a result of an improper and negligent investigation" (Count I), id. at 15, ¶51; (2) "administrative negligence" by all Defendants individually and through their agents, servants, and/or employees, for "fail[ure] to use due care to conduct a proper investigation, which led to a negligent investigation and false charges being brought against Plaintiff [J.] Nolan[]" (Count II), id. at 15, ¶ 56; (3) defamation per se by Sheriff Howard (Count III)2; (4) harassment from agents of all Defendants (Count IV); (5) violation of Plaintiff J. Nolan's "civil rights under the Fourteenth Amendment of the United States Constitution to be secure against deprivations of liberty without due process of law" and under New York law by all Defendants except for Sheriff Howard (Count V), id. at 19, ¶ 85; (6) intentional infliction of emotional distress by all Defendants (Count VI); (7) negligent infliction of emotional distress by all Defendants (Count VII); and (8) loss of consortium on behalf of Plaintiff S. Nolan "[a]s a result of the negligence and deprivation of liberty by Defendants in conjunction with the wrongful termination inflicted upon Plaintiff [J.] Nolan[]" (Count VIII). Id. at 21, ¶ 106. Plaintiffs seek Plaintiff J. Nolan's back pay; damages for their financial, emotional, and physical injuries; special damages related to Plaintiff J. Nolan's defamation claim; costs; and attorney's fees.

Prior to filing their Complaint, Plaintiffs state Plaintiff J. Nolan, then self-represented, served upon the County and Sheriff's Department a written Notice of Claim pursuant to N.Y. Gen. Mun. L. § 50-e on September 20, 2018. Plaintiffs served an Amended Notice of Claim on April 18, 2019, which is attached to the Complaint as Exhibit A. On July 5, 2019, Defendants served on Plaintiffs a Notice of Examination pursuant to N.Y. Gen....

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