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October 24, 1978

Roderick WILLIAMS, Plaintiff,
Michael CODD, Philip A. Michael, Maurice Nadjari, Richard Nachman, Edward Smith, Police Department of the City of New York and Thomas Chaipis, Defendants

The opinion of the court was delivered by: CARTER

The plaintiff in this case is a former member of the New York Police Department. In 1974 the Department initiated disciplinary proceedings against him, and a series of departmental hearings, negotiations and state court adjudications followed. The departmental proceedings terminated when the parties reached a compromise agreement which purported to be "a final settlement of all claims by both parties." This compromise was incorporated in an order of New York State Supreme Court Justice Abraham J. Gellinoff before whom an Article 78 proceeding regarding the same matter was then pending.

Williams has now brought an action in this court under 42 U.S.C. §§ 1983 and 1985, alleging that the defendants, who all played some role in the disciplinary proceedings, acted under color of state law to deprive him of his due process rights. Jurisdiction of this court is invoked pursuant to 28 U.S.C. § 1343. The defendants include the Police Department of the City of New York together with Michael Codd, Phillip A. Michael, and Edward Smith. During all times relevant to this lawsuit, Codd was police commissioner of the City of New York. Michael was the hearing officer who presided over Williams' disciplinary proceedings, and Smith was the Department's counsel at these hearings. Other defendants include Maurice Nadjari, former New York State Special Prosecutor, Richard Nachman, an employee of the Special Prosecutor's office, and Thomas Chaipis, a private citizen who testified against Williams in the disciplinary proceedings.

 Defendants Police Department, Codd, Michael, and Smith have moved pursuant to Rule 12(b), F.R.Civ.P., to dismiss the complaint as it applies to them. These defendants argue that: (1) the action is barred by the terms of the settlement agreement, (2) the complaint fails to state a cause of action against the Police Department, (3) the complaint fails to state a cause of action that would lie under 42 U.S.C. § 1985 against any of the defendants, and (4) Michael and Smith are absolutely immune from suit based on their roles in the hearings as judge and prosecutor.

 For the reasons set forth below, defendants' motion is denied.

 Background *fn1"

 Plaintiff Williams alleges that in April of 1974 when he was still a police lieutenant, he was called to the office of the Special Prosecutor and questioned about his relationship with Chaipis. Chaipis owned a bar that was believed to be a center of prostitution activity, and Williams was thought to be friendly with Chaipis. Williams alleges that after questioning him about Chaipis, Nachman sought his cooperation in obtaining statements that would incriminate another police officer. Nachman threatened that action would be taken against Williams based on his relationship with Chaipis if he failed to cooperate. Williams refused to act as informant and instead filed retirement papers.

 On April 30, 1974, the Police Department filed charges against Williams, alleging six counts of misconduct. A departmental hearing was held on May 13, at which Michael presided as trial commissioner and Smith served as advocate for the Department. Plaintiff alleges that Michael stated that the evidence before him would mandate a finding of guilt and a recommendation of dismissal from the Department, and that the only way for Williams to preserve his pension rights would be to plead nolo contendere to each of the charges. Ultimately, a compromise was struck by which Williams pleaded nolo contendere to four of the charges, two of the charges were dropped, and Williams paid a fine of $ 7,500.00 and retired from the Department.

 In September, 1974, Williams filed an Article 78 petition *fn2" in the state court seeking to have the plea agreement vacated. In his petition Williams alleged that the stipulation had been procured by false allegations, duress, coercion, and perjurious testimony, that he had been prevented from preparing a defense, and that he had subsequently uncovered exculpatory evidence. In an order dated August 4, 1974, State Supreme Court Justice Sidney A. Fine vacated the stipulation, directed that Williams be given a due process hearing on the charges against him, and ordered the Department to return the fine that Williams had paid and restore him to duty.

 Before a second departmental hearing was initiated, Williams brought a second Article 78 proceeding in which he petitioned for the appointment of a neutral hearing officer to replace Michael as presiding officer. The basis for this request was Williams' allegation that the Department and its employees were biased and prejudiced against him and would not afford him a fair hearing. This bias was said to result from Commissioner Codd's personal animosity toward Williams. In the process of investigating the charges that he was facing, Williams obtained tapes of a conversation he had had with defendant Chaipis which included references to Codd's reputedly improper intercession on behalf of another police officer who had faced charges of corruption. Plaintiff, believing these tapes to support his claim of innocence, delivered them to the Special Prosecutor's office which in turn released them, without Williams' permission, to the Police Department and to Commissioner Codd. Plaintiff alleges that because of the resulting malice Codd ignored the recommendation of the Corporation Counsel's office and refused to restore Williams to duty pending the outcome of the disciplinary charges. Nevertheless, State Supreme Court Justice Abraham J. Gellinoff dismissed the plaintiff's Article 78 petition, holding that the court would not presume in advance that Williams would be denied his due process rights.

 Following the dismissal of his petition, Williams again entered into negotiations with representatives of the Police Department. Plaintiff alleges that he was initially offered a settlement that would have included the dropping of all charges against him, the return of his fine, and restoration of his full pension rights. This offer, however, was purportedly withdrawn at the behest of Codd. The matter then proceeded to hearing.

 At the hearing Smith presented the evidence for the Police Department and an off the record conversation followed. At this discussion Michael, again the presiding officer, commented on the strength of the Department's case. In lieu of presenting a full defense, Williams then agreed to a settlement substantially similar to the stipulation entered into at the initial hearing.

 Williams, however, then renewed his application to Justice Gellinoff for relief pursuant to Article 78. He argued that Michael's comments constituted undue pressure and prevented him from presenting his defense. Justice Gellinoff initially found that Michael's statements were improper, vacated the agreement and remanded the case to the Police Department for a new hearing before a different hearing officer.

 In a lengthy decision rendered on February 3, 1977, Justice Gellinoff then modified his order by directing that any future hearing in this matter take place before a referee appointed by the court. Justice Gellinoff found that Williams had twice been denied a fair hearing by Commissioner Codd and his subordinates. He further acknowledged that the facts supported Williams' allegations of personal bias on the part of defendant Codd. Justice Gellinoff also took notice of another alleged incident, brought to his attention during conferences with counsel, in which the Police Department had improperly interfered with Williams' attempts to secure a private investigator's license. Finally, Justice Gellinoff found that the Department had not presented substantial evidence in supporting the charges lodged against Williams.

 No new hearing ever took place. Once again, negotiations were entered into, this time with Justice Gellinoff himself taking part. At the same time, the Police Department submitted additional evidence to the court, buttressing its case against Williams and attempting to refute the allegations of bias on the part of its officers. Justice Gellinoff found it unnecessary to pass upon the additional evidence, as the negotiations led to a stipulation substantially similar to the preceding compromises, and Justice Gellinoff incorporated this agreement in his final order. Because of the importance of this agreement to the disposition of the motion now before this court, it is set out in full in the margin. *fn3"

 Williams' Claims

 The plaintiff has asserted a wide variety of claims based on the foregoing events. Williams first alleges that defendants Nachman and Nadjari improperly pressured him into filing for retirement by threatening him with retaliation for his refusal to cooperate in obtaining evidence against another police officer. This is alleged to have been a violation of Williams' civil rights, presumably because it served to deprive him of liberty or property without due process of law.

 Plaintiff also alleges a deprivation of his due process rights as the result of a conspiracy among Nachman, Nadjari, Codd, Michael, Smith and Chaipis. Williams asserts that these defendants conspired to have Chaipis testify against him in return for special consideration in retaining a liquor license, despite Chaipis' criminal conviction and evidence of prostitution on his premises. The gist of Williams' allegation is that Chaipis' testimony was known by the other defendants to be untrustworthy, but that they persevered in presenting it because of malice toward the plaintiff.

 The third set of allegations involves the conduct of Michael, purportedly acting in concert with the other defendants, during the first departmental proceedings. Williams asserts that Michael improperly assumed the role of an adversary rather than a neutral magistrate and that his threats to deprive Williams of his pension rights coerced the plaintiff into entering into the first stipulation. Williams also alleges that through this stipulation Michael imposed sanctions that were beyond his authority and he thus violated plaintiff's rights under the Eighth Amendment and denied him due process as well. Williams also claims that his rights were violated by Nachman and Nadjari when they delivered to the Police Department copies of the tapes received from Williams that included remarks critical of Codd.

 Plaintiff next argues that the Police Department and its employees disregarded the order of Justice Fine to return the money accepted from Williams and to restore him to the Department. Apparently this is alleged to be both a deprivation of plaintiff's property without due process and a factor contributing to the denial of procedural due process because the withholding of plaintiff's funds coerced him into subsequent settlements.

 Williams' additional claims of deprivation of procedural due process concern the second departmental hearing. It is alleged that Codd in particular, because of personal animosity toward Williams, coerced the plaintiff into an unwanted settlement by refusing to approve compromise offers made by his subordinates. Michael, during a recess from the hearing, then commented improperly on the weight of the evidence, thereby coercing Williams into another tainted stipulation.

 Finally, Williams contends that one or more of the defendants, whose identity is not specified in the complaint, improperly interfered with his application for a private investigator's license and thus damaged his employment prospects ...

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