Verri v. Nanna
| Decision Date | 01 August 1997 |
| Docket Number | No. 95 Civ. 3163(WCC).,95 Civ. 3163(WCC). |
| Citation | 972 F.Supp. 773 |
| Parties | Thomas P. VERRI, Plaintiff, v. Frank NANNA, Individually and as Chief of Police of the Village of Elmsford, John Caralyus, Individually, and The Village of Elmsford, New York, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Lovett & Gould, White Plains, NY (Craig T. Dickinson, of counsel), for Plaintiff.
Lieberman & LeBovit, Yorktown Heights, NY (Mitchell P. Lieberman, of counsel), for Defendant Frank Nanna.
This action is the first of three successive civil rights suits that plaintiff Thomas Verri, an Elmsford Police Officer, has brought against, inter alia, defendant Frank Nanna, Chief of Police of the Village of Elmsford, and the Village of Elmsford. Plaintiff originally brought fourteen separate claims, under 42 U.S.C. § 1983, the New York Civil Rights law and the New York Constitution, but he has since abandoned his second, third and eighth claims.1 Defendants have moved for summary judgment on all the remaining claims. For the reasons set forth below, their motion is granted.
Plaintiff has worked for the Elmsford Police Department since 1990. Defendant Nanna, a twenty-seven year veteran of the Elmsford Police Department, has been Chief since 1990. In approximately January of 1993, Verri began keeping a "personal diary/journal" in which he made roughly 17 separate entries. (Compl. ¶ 7; Exh. 2.) In his complaint he alleged that his "then estranged wife who was acting in concert with Nanna" delivered the diary to Nanna. (Compl. ¶ 8.) Plaintiff later testified, however, that he had "reason to believe now" that his ex-business partner, Dominick Colasuonno, gave the book to Lt. Rescigno, who gave it to Chief Nanna. (Verri Trans. at 220.) Lt. Rescigno and Dominick Colasuonno testified that Colasuonno gave Rescigno the book in February of 1995, (Rescigno Aff. ¶ 2; Colasuonno Aff. ¶ 2); Chief Nanna and Lt. Rescigno testified that Rescigno gave Nanna the book shortly thereafter. (Nanna Aff. ¶ 4; Rescigno Aff. ¶ 2). Plaintiff last recalls seeing the book in September of 1994 and argues that Chief Nanna had possession of it earlier than February of 1995. (Verri Trans. at 123.) After receiving the book, Nanna met with Verri and told him he had the book. However, he refused to return it immediately. (Nanna Aff. ¶ 5.) In explanation of the delay, Nanna states that he was concerned about Verri's "emotional problems," including his dislike of the supervisors in the department and his general unhappiness. Nanna testified that he was particularly concerned because as a police officer, Verri carried a weapon, and that he consequently gave the book to the police psychiatrist, Dr. Aryeh Klar, for evaluation. (Id.; Klar Aff. ¶ 6.) After plaintiff filed suit in May of 1995, Nanna turned the book over to his attorney, who returned it to Verri.
Verri's first and seventh claims allege that Nanna's possession of his personal diary and refusal to return it to him violated his Fourteenth Amendment and New York State due process rights. His fourth and ninth claims allege that Nanna retaliated against him because of the content of his diary in violation of the First Amendment and the New York State Constitution. He accuses Nanna of retaliating against him, both directly and indirectly, in various ways including allegedly: 1) requiring him to submit to a breathalyzer test after he was involved in an automobile accident while driving a police vehicle2; 2) "repeatedly" ordering him to submit to drug testing; 3) following him and issuing false deficiency notices and; 4) skipping him for promotion. Verri's fourteenth claim alleges that Nanna and the Village placed deficiency notices in his file in violation of his right to free speech under the First Amendment and the New York State Constitution, and his right to due process under Section 5711-q of the Unconsolidated Laws of New York. Verri's fifth, sixth, and tenth through twelfth claims allege that the Elmsford police department has several policies limiting communications by police officers with the Village Legislative Board that violate the First Amendment, the New York Constitution and § 15 of the New York State Civil Rights Law.
Defendants have moved for summary judgment on all counts, asserting: first, that Verri's federal constitutional rights were not violated; second, that, in the alternative, Chief Nanna is entitled to qualified immunity; and third, that the Village of Elmsford is not liable because the actions Verri complains of were not the result of a policy or practice of Elmsford. Although defendants request that this Court dismiss or grant summary judgment against all of plaintiff's claims, their motion addresses only Verri's federal constitutional claims. Apparently, they hope to win summary judgment on all of the federal claims and thus eliminate the basis for supplemental jurisdiction over Verri's state claims. We discuss defendants' challenge to Verri's federal constitutional claims below.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir.1988).
The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), "but must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). Summary judgment is usually unwarranted when the defendant's state of mind is at issue. Clements v. Nassau County, 835 F.2d 1000, 1005 (2d Cir.1987). In order to raise a fact issue regarding state of mind, however, there must be solid circumstantial evidence to prove plaintiff's case. Id. "Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996).
In addition to satisfying the Rule 56 evidentiary standards, plaintiff must also overcome the defense of qualified immunity in order to defeat defendant Nanna's motion for summary judgment. Qualified immunity protects government officials from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Hurlman v. Rice, 927 F.2d 74, 78 (2d Cir.1991). The Second Circuit has stated that when a defense of qualified immunity is raised in the context of a retaliatory claim, a court must decide first whether a clearly established right is at stake, and second, whether the conduct was objectively reasonable. Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.1995). Conduct that is objectively reasonable does not constitute a constitutional violation merely upon the allegation of an unconstitutional motive. The Court elaborated that:
[U]pon a motion for summary judgment asserting a qualified immunity defense in an action where an official's conduct is objectively reasonable but an unconstitutional subjective intent is alleged, the plaintiff must proffer particularized evidence of direct or circumstantial facts, supporting the claim of an improper motive in order to avoid summary judgment.... In our view, the particularized evidence of improper motive may include expressions by the officials involved regarding their state of mind, circumstances suggesting in a substantial fashion that the plaintiff has been singled out, or the highly unusual nature of the actions taken.
Id. ().
Verri's fourth claim alleges that Nanna improperly read his personal diary and retaliated against him in violation of the First and Fourth Amendments. "It is well established that a public employer cannot discharge or retaliate against an employee for the exercise of his or her First Amendment free speech right." Ezekwo v. New York City Health and Hospitals Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657, 116 L.Ed.2d 749 (1991). However, "[i]t has also been recognized that the government has a legitimate interest in regulating the speech of its employees that differs significantly from its interests in regulating the...
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