Sheppard v. Beerman

• Decision Date: 07 February 2002
• Docket Number: No. 91 CV 1349(ILG).,91 CV 1349(ILG).
• Citation: 190 F.Supp.2d 361
• Parties: Brian SHEPPARD, Plaintiff, v. Leon BEERMAN, Defendant.
• Court: U.S. District Court — Eastern District of New York

190 F.Supp.2d 361

Brian SHEPPARD, Plaintiff, v. Leon BEERMAN, Defendant.

No. 91 CV 1349(ILG).

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

February 7, 2002.

Brian Sheppard, New Hyde Park, NY, pro se.

Amy L. Abramowitz, Ass't. Attorney General's Office, Michael B. Siller, Office of the Attorney General, New York City, for defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge.

Plaintiff Brian Sheppard alleges in this action that defendant former Supreme Court Judge Leon Beerman terminated him from his position as a law clerk in violation of his free speech rights under the First Amendment to the United States Constitution. Now before the court is Judge Beerman's motion for summary judgment, as well as Sheppard's cross-motion to strike certain evidence relied upon by Judge Beerman in his motion. For the reasons that follow, Judge Beerman's motion must be granted and Sheppard's cross-motion must be denied.

Procedural History

Before turning to the motion, the procedural history of this case is briefly recounted. Plaintiff commenced this action in April 1991. Plaintiff's Complaint asserted several claims against Judge Beerman pursuant to 42 U.S.C. § 1983, including a claim that his discharge and Judge Beerman's conduct following the discharge violated his rights under the First and Fourteenth Amendments to the United States Constitution and several state law claims. In February 1992, Judge Beerman moved, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings. In May 1993, this Court granted Judge Beerman's motion and dismissed the case in its entirety. Sheppard v. Beerman, 822 F.Supp. 931 (E.D.N.Y. 1993). Sheppard appealed and, in March 1994, the Second Circuit affirmed in part and vacated and remanded in part, vacating only this Court's dismissal of Sheppard's First Amendment freedom of speech claim and holding that this Court improperly made the factual finding that the cause of Sheppard's employment termination was insubordination, rather than the exercise of his right to free speech. Sheppard v. Beerman ("Sheppard I"), 18 F.3d 147, 151 (2d Cir.1994). Judge Beerman again moved for judgment on the pleadings and, on December 20, 1995, this Court again granted his motion and dismissed the case in its entirety. Sheppard v. Beerman, 911 F.Supp. 606 (E.D.N.Y. 1995). While this Court found that Sheppard's speech was on a matter of public concern and that Sheppard had shown a prima facie case of unconstitutional discharge, it also found that Judge Beerman was entitled to qualified immunity because he had acted within the realm of objective reasonableness in terminating Sheppard's employment. Id. at 616. Upon Sheppard's appeal of that decision, the Second Circuit again reversed, holding this time that this Court had erred in finding that Judge Beerman's actual intent was irrelevant and in not permitting plaintiff to engage in discovery to support his claim of unconstitutional motive. Sheppard v. Beerman ("Sheppard II"), 94 F.3d 823, 828-29 (2d Cir.1996). The parties have engaged in extensive discovery, over the course of which this Court has denied dozens of objections by Sheppard, many of them frivolous, to the Magistrate Judge's discovery rulings.

Judge Beerman now moves for summary judgment on the ground that his actions did not infringe on Sheppard's First Amendment rights and that, even if Sheppard could demonstrate such an infringement, he is entitled to qualified immunity. Sheppard also has cross-moved to strike certain deposition transcripts, affidavits and other documents upon which Judge Beerman relies in his summary judgment motion. Because Sheppard has failed to adduce any evidence, direct or circumstantial, from which it can be inferred that Judge Beerman's decision to terminate Sheppard from his employ was prompted by anything other than a desire to ensure an effective working relationship, and the efficient conduct of his Chambers, Sheppard has failed to demonstrate the existence of a genuine issue of material fact that would permit a jury to conclude that his free speech rights under the First Amendment were violated. Summary judgment therefore must be granted as against Sheppard.

Factual Background

While the operative facts in this case are recited in both of the Second Circuit's opinions and in this Court's previous orders, extensive discovery — consisting of 31 depositions of Judge Beerman and his two sons, other sitting and retired judges, active and former district attorneys, and court personnel, and various document requests and interrogatories — has supplemented those facts and they therefore are summarized here.¹

Sheppard served as a law clerk to defendant. New York State Supreme Court Judge Leon Beerman, from 1986 until his termination on December 11, 1990. Sheppard testified at his deposition that on December 6, 1990, he and Judge Beerman had a discussion concerning Judge Beerman's contemplated ruling on a speedy trial motion in a pending murder case, People v. Mason & Williams. According to Sheppard, Judge Beerman asked Sheppard to draft a decision on that motion which Sheppard believed would be unfairly prejudicial to Williams and not based on the merits. Sheppard avers that Judge Beerman wanted him to draft the decision without considering the arguments raised by the defendant, whose papers in opposition Sheppard had not yet seen. Upset with this request, Sheppard claims that he said to Judge Beerman: "Well why don't you have the district attorney's office write the decision since you don't even want me to look at the moving papers. You just say to deny it and that they have done a good job." (Sheppard Dep. at 127.) During his deposition Sheppard acknowledged that this comment was sarcastic but claimed that it was meant not as a sign of disrespect for Judge Beerman, but as an expression of "disrespect for what he was doing." (Id. at 128.) Sheppard elaborated at his deposition that he felt that Judge Beerman was railroading Williams because of the pressure exerted by the prosecutor, who was allegedly very upset about the lenient sentence Williams had received in a related drug case, and the publicity generated by the case. While Sheppard admits that Judge Beerman never expressed to him or to anyone else his opinion about Williams' guilt or about the ultimate merits of the case, Sheppard avers that Judge Beerman was telling him, in effect: "`I want this case to go to trial. I want you to dismiss the speedy trial motion, to rule against it without a hearing regardless of the merits.' In light of all of that, I call that railroading." (Id. at 143.) Inconsistent with his belief that Williams was being railroaded was Sheppard's acknowledgment that Judge Beerman never expressed an opinion about the ultimate merits of the Williams case and never expressed an opinion about the guilt or innocence of Williams. Sheppard inferred that Judge Beerman felt that Williams was guilty based upon his (Sheppard's) belief "that he thought [Judge Beerman] probably thought Williams was probably guilty." (Id. at 144.) Sheppard felt that Judge Beerman was "going to do his part, based on the pressure he was getting, to do everything he could consistent with what he thought was beyond the bounds of his propriety to help the prosecutor to get a conviction, so that no one could say there was an acquittal." (Id. at 144.) Sheppard also believed that Judge Beerman had unfairly accommodated the prosecution's request to schedule the trial after December on the theory that a jury would be less likely to convict during the holiday season.² (Id. at 365-69.) As it turned out, however, Williams' case was subsequently dismissed by Judge Beerman. (Id. at 144-45.)

Judge Beerman's recollection of the discussion on December 6 was not that he had instructed Sheppard to draft a decision in the case, but that he had simply told Sheppard that he wished to proceed with the case without unnecessary delay, as the case had already been pending for several years and as he had already denied a speedy trial motion by Williams once before. Judge Beerman fully expected that he and Sheppard would discuss the case the next day. (Beerman Aff. ¶¶ 7, 8.)

On the morning of December 7, 1990, Sheppard testified that he came to chambers and informed Judge Beerman that he refused to work on the speedy trial motion in the Williams case because of his belief that the defendant was being railroaded by Judge Beerman. (Sheppard Dep. at 150.) According to Sheppard, Judge Beerman disagreed with Sheppard's accusation that he was railroading Williams and maintained "that all that he had told me was that he would prefer it if the motion can be decided quickly, if it could be." (Id. at 350.) Notes prepared by Sheppard after this conversation³ reflect that Judge Beerman told Sheppard that there was no railroading taking place, to which Sheppard responded "`that he should drop the lies and face the truth.'" (Id. at 163 (quoting Dec. 7 Notes).) Sheppard then "told [Judge Beerman] to stop fooling himself and that it was obvious what was going on[,]" by which Sheppard meant the railroading.

At that point, Sheppard recounts that Judge Beerman specifically told him: "Well, if that's how you feel, then you should look for another job." (Sheppard Dep. at 151.)⁴ Sheppard testified, however, that Judge Beerman informed him that he was not being fired. (Id. at 177.) In response, Sheppard recalled telling Judge Beerman: "Why should I look for another job? You're the corrupt son of a bitch doing these things, and I am innocent, and I'm just saying I don't want to do it. So why should I have to look for another job?"⁵ During his deposition, Sheppard claimed that he was saying to Judge Beerman, in effect: "I will expose you if you fire me." (Sheppard Dep. at 164.) When asked whether Sheppard meant this as a threat, he answered:

No. It was meant to try to, well, just let him know that, in fact, that was going to happen. I also...