UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
October 18, 1984
SUFFOLK COUNTY PATROLMEN'S BENEVOLENT ASSOCIATION, INC., P.O. ROBERT PFEIFER, P.O. ROBERT RYAN, P.O. ATTILLA NEMES, P.O. RAY CAMPO, DET. DENNIS ROMANO, P.O. FRANK DELGAUDIO, P.O. JIM MEEHAN, P.O. ROBERT PFLAUM, P.O. BILL BENNETT, P.O. RODGER LAROCCA, P.O. HOWARD McAULBY, P.O. ED FITZGERALD, P.O. SAM DEJUSUS, P.O. KEITH FONTANA, P.O. LOUIS BRUNO, P.O. BRUCE KLIMECKI, P.O. PHILIP BUZZANCA, P.O. ROBERT HAISMAN, P.O. GERRY GOZALOFF, P.O. ARTHUR DOWLING, DET. ANTHONY BIVONA, P.O. DONALD BERZOLLA, P.O. FRANK GIULIANO, P.O. JOHN NIEDZIELSKI, P.O. DENNIS GREEN, DET. JOHN CHRISTIE, and DET. FRANK PACIFICO, Plaintiffs, against COUNTY OF SUFFOLK: JAMES O. PATTERSON, individually and in his official capacity; MARTIN ASHARE, individually and in his official capacity, JOHN P. FINNERTY, JR., individually and in his official capacity, CHRISTOPHER TERMINI, individually and in his official capacity, Defendants.
The opinion of the court was delivered by: GLASSER
MEMORANDUM AND ORDER
GLASSER, United States District Judge:
Like a phoenix, this case has risen from the ashes of the decision of the Second Circuit Court of Appeals in Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), an action brought pursuant to 42 U.S.C. § 1983.
In Dunton, the plaintiff sought to recover damages against Suffolk County police officer Robert Pfeiffer, Pfeiffer's wife and the County for personal injuries inflicted upon him by Officer Pfeiffer. The Suffolk County Attorney, a defendant here, undertook representation of both Pfeiffer and the County. The County Attorney originally raised the affirmative defense that Pfeiffer was acting in good faith pursuant to his official duties when the incident occurred. However, the Circuit Court found that during the trial, the County Attorney asserted that Pfeiffer acted not as police officer, but as an "irate husband," when Pfeiffer allegedly committed the acts complained of. The trial resulted in a dismissal against the County and assessment of compensatory and punitive damages against Pfeiffer.
The circuit court held that the County Attorney's assertion that Pfeiffer acted as an irate husband undermined his good faith immunity defense and gave rise to an impermissible conflict of interest. The court decided that in such a case, the County is required to provide separate, independent counsel to defend the police officer properly.
This action, brought by the Suffolk County Patrolmen's Benevolent Association ("PBA"), a membership organization, and twenty-six police officers
(the "police plaintiffs"), each of whom is currently a defendant in a § 1983 action, alleges that defendants are engaged in a massive and intentional scheme to deprive the police plaintiffs of their rights to a fair trial. Specifically, plaintiffs allege that defendants, while aware that Dunton-type conflicts of interest existed in actions where the officers and County were co-defendants, continued to permit members of the Suffolk County Attorney's office to represent both the police officers and the County in § 1983 actions.
Based upon the premise that conflicts of interest warranting separate counsel exist in the twenty-six underlying § 1983 actions against the police plaintiffs, plaintiffs urge that these policemen have an unfettered right to counsel of their choice in those actions, with the cost of such representation to be borne entirely by the Suffolk County Self-Insurance Fund. Plaintiffs assert, as will be further detailed, that by denying the police plaintiffs this right, defendants have violated plaintiffs' constitutional and state law rights to be represented by counsel of their choice.
Jurisdiction in this case is predicated on 42 U.S.C. § 1983, and principles of pendent jurisdiction.
Plaintiffs allege nine causes of action as follows: 1) deprivation of a due process property interest, i.e., the right to a proper and independent defense in the underlying § 1983 actions; 2) deprivation of a due process liberty interest, in that defendants have caused the police plaintiffs to remain defendants in the § 1983 suits much longer than necessary and have deprived the policemen of the right to control their defenses in such actions; 3) denial of equal protection, in that separate counsel is arbitrarily designated for some § 1983 police officer defendants and not for others; 4) breach of the PBA-Suffolk County labor agreement; 5) fraud, in that defendants knowingly failed to disclose to the police plaintiffs conflicts of interest; 6) violations of 18 U.S.C. 1961 - 1964, 1961-1964, the civil provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in that in carrying out the alleged intentional fraudulent dual representation, defendants frequently used the United States mail; 7) breach of fiduciary duty; 8) negligence and legal malpractice in connection with defendants' duty to safeguard the personal and property interests of the officers; and 9) entitlement to a permanent injunction against the actions allegedly taken by defendants. Plaintiffs seek declaratory and injunctive relief, $100 million in damages, and attorneys' fees pursuant to 42 U.S.C. § 1988.
Currently before me are defendants' motion to dismiss the tort claims against the three attorney defendants, and plaintiffs' second, fifth, sixth, seventh and eighth causes of action,
as well as plaintiffs' motion for partial summary judgment on the selection of counsel issue. For the reasons set forth herein, partial summary judgment on the selection of counsel issue is granted in defendants' favor. Because I also find that plaintiffs' other federal claims are without merit as hereafter indicated, I am constrained to dismiss them and plaintiffs' pendent state claims as well. See Dunton v. County of Suffolk, supra, 729 F.2d at 910-11 (where federal claim is unsubstantial, state claims must be dismissed); United Mine Workers v. Gibbs, 383 U.S. 715, 725, 727, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (to the same effect). Therefore, the parties' motions are discussed below only as they pertain to plaintiffs' federal causes of action.
The procedural history of this case is intertwined with the core issue -- the right of the police plaintiffs, in cases where potential conflicts of interest exist, to representation by counsel of their choice at County expense. Simultaneously with the commencement of this action, plaintiffs, by order to show cause, sought a preliminary injunction seeking the following relief: 1) disqualification of the County Attorney as counsel for the police plaintiffs in the underlying § 1983 actions (based on the alleged conflicts of interest); 2) substitution of the PBA's attorneys, the law firm of DeMartin, Kranz, Davis & Hersh ("the DeMartin firm"), as counsel for the police plaintiffs in the underlying actions; and 3) reimbursement for the expense of such representation by the County Self-Insurance Fund.
Insofar as it dealt with disqualification of the County Attorney, plaintiffs' motion for injunctive relief was based upon their charge that the County Attorney could not fairly represent both the County and the defendant police officers (the police plaintiffs here) in the underlying § 1983 actions due to Dunton-type conflicts of interest.Prior to oral argument on the motion, at which they vigorously opposed plaintiffs' allegations of misconduct, defendants voluntarily withdrew as counsel to the individual officers in the underlying actions. That withdrawal was necessitated by the conflict of interest created by this action, i.e., the clients suing their attorney.
In response to the County's withdrawal as counsel in the underlying actions, plaintiffs withdrew their motion for a preliminary injunction. However, the representation of the police plaintiffs in the underlying actions still remains an issue in controversy for the following reasons.
First, although the County Attorney communicated to the police plaintiffs that it could no longer represent them, this disqualification is not yet effective and the police plaintiffs currently remain unrepresented in the underlying § 1983 actions. This is due to the requirement of General Rule 3(c) of the Southern and Eastern Districts of New York, which requires a court order to effect withdrawal of counsel of record. At this time, no application for leave to withdraw has been made nor has such an order been issued by the judges before whom the other actions are pending, thus preventing those twenty-six underlying actions from proceeding until the resolution of the instant action.
Second, the core issue of this action, namely, whether the police plaintiffs are entitled to counsel of their choice in conflict situations at County expense, is currently unresolved. Although the parties disagree as to the source of the instant conflict of interest between the County and the individual officers,
there is no doubt that such conflict exists.
Assuming that court orders are issued permitting withdrawal of counsel in the underlying actions, see supra note 3, the issue of who shall represent the officers is vigorously contested by the parties. As has been alluded to and will be further discussed, plaintiffs contend that the individual officers have a right to select their own counsel in any conflict situation. Defendants, on the other hand, urge that although the police officers are entitled to a defense in a § 1983 action at County expense, the County is statutorily permitted to name a panel of attorneys from which any police officer may select one as his counsel.As authority for this position, defendants rely upon Suffolk County Local Law 30 of the year 1981 ("Local Law 30"), entitled "A Local Law to Provide for the Defense and Reimbursement of Legal Fees of County Employees in Connection with Lawsuits Arising Out of the Performance of Public Dutiies or Responsibilities."
Section 3(c) of Local Law 30, which lies at the heart of this dispute, provides that if a County employee is entitled to private counsel based upon a determination by the County Attorney that dual representation would be inappropriate, a court has determined that a conflict of interest exists, or the County Department of law lacks sufficient resources to conduct an adequate defense,
the County Attorney shall notify the employee in writing of such determination and shall present to the employee the names of three (3) attorneys for representation. The employee shall then select one (1) of these three (3) attorneys as counsel to be retained by the employee and shall notify the County Attorney in writing of such determination. Reasonable attorney's fees and litigation expenses shall be paid by the County to such attorney employed or retained, from time to time, during the pendency of the civil action or proceeding. Payment of such fees and expenses shall be made in the same manner as other claims and expenses of the County. Any dispute with respect to representation of multiple employees by the County Attorney or by an attorney employed or retained for such purpose, or with respect to the amount of the fees or expenses, shall be resolved by the court.
(emphasis added). Plaintiffs urge that defendants' imposition of the three attorney panel pursuant to § 3(c) of the local law unlawfully restricts a right they assert to select any counsel, at County expense, as allegedly mandated by state law.
Having laid the factual and procedural foundation of this dispute, I now turn to the examination of plaintiffs' federal claims.
A. Plaintiffs' Claim Under 42 U.S.C. § 1983
Plaintiffs' motion seeks partial summary judgment or declaratory judgment ordering defendants to permit the police plaintiffs to be represented by the counsel of their choice in the underlying § 1983 actions at the expense of the County Self-Insurance Fund. Plaintiffs assert that they have a due process property interest in such reimbursed representation based on sections 50-j and 6-n of New York's General Municipal Law, section 39 of the "Agreement between Suffolk County, N.Y. and the Suffolk County Patrolmen's Benevolent Association, Inc., January 1, 1983 - December 31, 1985" ("the PBA - County Agreement" or "the Agreement"), and New York common law. Defendants do not deny that plaintiffs may select counsel of their choice in § 1983 actions when a conflict exists. Rather, defendants urge that plaintiffs are only entitled to separate representation at County expense as provided in Section 3 of Local Law 30.
As stated by the United States Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), property interests are
. . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or undertakings that secure certain benefits and that support claims of entitlement to those benefits.
Id. at 577. In assessing whether plaintiffs hae a property interest, "the initial question is whether the property interest asserted by the plaintiffs is one to which they have "a legitimate claim of entitlement" secured by existing laws, rules, or customs, rather than simply "an abstract need or desire." Heese v. DeMatteis Development Corp., 417 F. Supp. 864, 870 (S.D.N.Y. 1976), citing Board of Regents v. Roth, supra, 408 U.S. at 577; Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
Moreover, the Supreme Court has been reluctant to label as a constitutionally protected property right a claim that would be adjudicated as a matter of state law but for the fact that the defendant is a public official acting under color of law. Paul v. Davis, 424 U.S. 693, 698, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976) (respondent's allegations of deprivation of property and liberty did not rise to a constitutional level where he would have had only a state action for defamation were petitioner not a state actor). The plaintiffs do not have any property interest in reimbursed representation of their choice that is secured by more than an abstract need or desire which would support an action under § 1983.
Applicable Statutes and Agreements
At the outset I must note that the authority for defendants' application of Local Law 30 to plaintiffs is questionable. By its very terms, Local Law 30 limits its beneficiaries. The statute provides in pertinent part:
Section 6. Beneficiaries
The benefits of this Law shall be extended to an employee of a negotiating unit for which an agreement has been negotiated pursuant to Civil Service Law, Article 14, only if such agreement expressly so provides.
(emphasis added). As pointed out by plaintiffs, article 14 of the Civil Service Law, entitled Public Employees' Fair Employment Act ("PEFEA"), sets forth the statutory authorization for collective bargaining agreements in the public sector. The PBA - County Agreement is a PEFEA agreement, see Agreement, § 1, and it does not contain the express language referred to in section 6 of Local Law 30. Therefore, by its very terms, Local Law 30 cannot be applied to plaintiffs.
Unless, however, plaintiffs have some legally cognizable right to reimbursed representation of their choice, defendants may not be deemed to have acted improperly in limiting the selection of "reimbursable" counsel offered to plaintiffs. Thus, this opinion examines generally what is, in effect, defendants' authority to limit this selection of counsel, whether by the express terms of Local Law 30 or by implication.
Sections 50-j and 6-n of the General Municipal Law do not create the property interest alleged by plaintiffs. Section 50-j, entitled "Liability of police officers for negligence in the performance of duty" provides in pertinent part:
1. Notwithstanding the provisions of any general, special or local law, charter or code to the contrary, every city, county, town, village, authority or agency shall be liable for, and shall assume the liability to the extent that it shall save harmless, any duly appointed police officer of such municipality, authority or agency for any negligent act or tort, provided such police officer, at the time of the negligent act or tort complained of, was acting in the performance of his duties and within the scope of his employment.
N.Y. Gen. Mun. L. § 50-j (McKinney Supp. 1983). Section 50-j thus establishes a general obligation to indemnify a police officer for torts committed within the scope of his employment. This section has been deemed to permit reimbursement of counsel fees for an officer who has acted within the scope of his official duties. Op. St. Compt. 81-292; Op. St. Compt. 78-965, citing Gaylord v. Village of North Collins, 57 Misc.2d 803, 293 N.Y.S.2d 365 (Erie Co.Ct. 1968) (prior to enactment of § 50-j, a police officer who used force in making an arrest acted within the scope of official duties and was entitled to reimbursement for legal fees arising from defense of an action against him for assault, battery or false imprisonment). The statute has not been interpreted, however, to permit officers counsel of their choice. See also Gaylord, supra (selection of counsel not addressed).
Section 6-n similarly does not address the selection of counsel issues. That statute permits a municipal corporation to set up a liability and casualty reserve fund, e.g., a self-insurance fund, for the purpose of paying all or part of the cost, including interest, of:
b. Actions that have been compromised or settled and that have been approved by the court in which the action or proceeding is pending;
c. Claims that have been settled or compromised and that have been approved by a justice of the supreme court of the judicial district in which the municipal corporation is located;
d. The uninsured portion of any loss to property owned by a municipal corporation if such loss is one for which insurance is authorized pursuant to subdivisions four,, five, six, nine, ten, twelve and paragraph (a) of subdivision seven of section forty-six of the insurance law.
e. Expert or professional services rendered in connection with the investigation, adjudgment or settlement of claims, actions or judgments.
N.Y. Gen. Mun. L. § 6-n
This statute does not, either expressly or impliedly, address the issue of selection of counsel.
Plaintiff's reliance on the PBA -- County Agreement and the New York common law of insurance is based on section 39(a) of the agreement, which provides:
The County shall provide insurance coverage for Employees protecting them from legal actions against them which shall include but not be limited to civil suits, false arrest suits, detention or imprisonment, malicious prosecution, libel, slander, defamation or violation of Right of Privacy, wrongful entry or eviction or other invasion of Right of Privacy Occupancy [sic], invasion of Civil Rights, etc., and which shall cover both compensatory and punitive damages on both the State and Federal level. Such insurance coverage shall only be afforded to Employees acting within the scope of their authority and in the proper performance of their duty.
Plaintiffs contend that defendant County is an insurer pursuant to Article 39 of the Agreement, and that as such, the County must reimburse the cost of an independent defense of the plaintiff officers conducted by counsel of the officers' choice.
Defendants disagree with plaintiffs' characterization of the County as an insurer, and urge that the County is merely a municipal employer which can act as a self-insurer under Gen. Mun. L. § 6-n. See Guercio v. Hertz Corp., 40 N.Y.2d 680, 358 N.E.2d 261, 389 N.Y.S.2d 568, 571-72 (1976) (self-insurance is not insurance, but an assurance that amounts which a self-insurer is obligated to pay will be paid).
Whether the County is or is not an insurer is immaterial to the resolution of the right to counsel issue.The plaintiffs are not entitled to select counsel of their choice at County expense as a matter of New York common law as they claim they are.
The Insurance Law Analogy
In support of their claim, plaintiffs cite Public Service Mutual Insurance Co. v. Goldfarb, 53 N.Y.2d 392, 425 N.E.2d 810, 442 N.Y.S.2d 422 (1981) and Hartford Accident & Indemnity Co. v. Village of Hempstead, 48 N.Y.2d 218, 397 N.E.2d 737, 422 N.Y.S.2d 47 (1979). The plaintiffs cannot derive much comfort from either case.
In Goldfarb, the court held that where a conflict of interest arose between the insured and the insurer as to whether a specific claim was covered by the terms of the policy, the insured was entitled to reimbursement for services provided by an attorney of his own choosing. 442 N.Y.S.2d at 427. The insurer's conflict of interest arose in part because the insurer could escape liability altogether if the insured were found liable in damages on some grounds and not on others. Id. In the instant case, however, the County is obligated by statute and contract to indemnify the police officers for compensatory damages awarded against them in the underlying actions. There is not the slightest suggestion that the question of whether independent counsel may be selected by the insurer was before the court.
The Hartford Accident case, supra, decided only that New York public policy prohibits municipal indemnification for punitive damages in a § 1983 action. The Hartford court also held that the insurer must defend a punitive damages claim through an attorney selected by the defendant officer or the municipality. 422 N.Y.S.2d at 54.
Thus, Hartford does not support plaintiffs' position that only they are entitled to select counsel of their choice at County expense. It is also significant to note that Hartford was cited with approval in Goldfarb in that portion of the opinion relating to selection of counsel. 442 N.Y.S.2d at 427.
Other New York insurance cases indicate that the right to counsel of the insured's choice in a conflict situation is not absolute. In Graci v. Denaro, 98 Misc.2d 155, 413 N.Y.S.2d 607 (Sup. Ct. Queens Co. 1979), for example, the conflict of interest originally was not between the insured and the insurer, but between co-defendants insured by the same carrier. The conflict arose because the co-defendants interposed cross-complaints against one another. Later, however, the co-defendant insureds sought to withdraw the crossclaims and jointly assert defenses against the plaintiff.Holding that a potential conflict between the insurer and insureds might arise if liability were found on the part of one of the co-defendants, the Court rfuled that "to avoid any possibility of conflict of interest, or even suggestion of any conflict of interest, [each defendant must] be represented by separate counsel, even if they be chosen and paid for their services by the insurance carrier." 413 N.Y.S.2d at 609 (emphasis added).
In Goldberg v. American Home Assurance Co., 80 A.D.2d 409, 439 N.Y.S.2d 2 (1st Dep't 1981), the court held that the insurer fulfilled its duty to two mutually antagonistic insureds by retaining separate and independent counsel to represent them.Distinguishing Prashker v. United States Guarantee Co., 1 N.Y.2d 584, 136 N.E.2d 871, 154 N.Y.S.2d 910 (1956), the Goldberg court stated:
Plaintiff's reliance on Prashker v. United States Guarantee Co. . . . is misplaced. The dictum there that the selection of the attorney should be made by the insured has little relevance here. In that case the insurer was denying the obligation to defend as well as the obligation to pay. Manifestly, a lawyer hired by it might be influenced to demonstrate that the ground for liability was outside the coverage as asserted by the insurance carrier. No such consideration arises here.
439 N.Y.S.2d at 5 (citations omitted). Also, unlike Prashker, defendants in the instant case do not deny their obligation to defend plaintiffs in conflict situations, or their obligation to reimburse the costs and judgments for compensatory damages in actions where the officers acted in good faith and in the course of their official duties.
New York State Urban Development Corp. v. VSL Corp., 563 F. Supp. 187 (S.D.N.Y. 1983), aff'd, 738 F.2d 61 (2d Cir. 1984), is also helpful to this analysis. In that case, plaintiff NYSUDC commenced an action for damages against VSL. VSL sought to have Northbrook Excess and Surplus Insurance Company defend the NYSUDC suit based upon an insurance policy issued by Northbrook to VSL. After Northbrook refused to do so, VSL impleaded Northbrook, and sought declaratory, injunctive and other relief against the insurer.
After determining that Northbrook was obligated to defend VSL in the suit brought by NYSUDC, the district court considered the issue ofdesignation of VSL's counsel and payment of services rendered therefor. Northbrook had offered to select counsel for VSL by itself or to select counsel from one of five firms which VSL, the insured, designated. VSL had indicated that it wanted to be represented by the same firm as had represented it in prior related proceedings. Thereafter, Northbrook selected a different firm to represent VSL. Although it acknowledged Northbrook's right to appoint independent counsel for it, VSL urged that its former counsel be permitted to appear in addition to the appointed counsel and that Northbrook indemnify VSL for the court of such representation. 563 F. Supp. at 189.
In rejecting VSL's argument, Judge Sand held that the insurer, Northbrook, acted properly when it designated independent counsel for VSL in a potential conflict situation. The court found that Northbrook was "under a duty to provide only an impartial defense -- not to sacrifice its own interests," id. at 190n.1. Therefore, Northbrook was only obligated to provide and pay for the services of independent counsel -- even if designated by the insurer itself -- and was not obligated to reimburse the fees of VSL's chosen counsel who were engaged in maintaining a "watchful eye" over the litigation. Id. at 190. In affirming the district court, the Court of Appeals said:
It is not inherently objectionable to permit an insurer to participate in the selection of independent counsel for the insured as long as the insurer discharges its obligation in good faith and the attorney chosen is truly independent and otherwise capable of defending the insured. . . . The participation of an insurer in the selection process does not automatically taint the independent of chosen counsel.
738 F.2d at 65-66.
Additional federal authority supports the position that in a conflict situation, the insurer can fulfill its obligations by either providing independent counsel for the insured or reimbursing the insured for the expense of counsel of his choice. See American Motorists Ins. Co. v. Trane Co., 544 F. Supp. 669, 688 (W.D. Wisc. 1982), aff'd, 718 F.2d 842 (7th Cir. 1983); Transamerica Ins. Co. v. Keown, 451 F. Supp. 397, 405 (D.N.J. 1978); All-Star Ins. Corp. v. Steel Bar, Inc., 324 F. Supp. 160, 165 (N.D. Ill. 1971). Cf. Lowenstein Dyes & Cosmetics, Inc. v. Aetna, 524 F. Supp. 574, 579 (E.D.N.Y. 1981).
In a motion for summary judgment or partial summary judgment, the judgment sought "shall be rendered forthwith" if the record demonstrates that "there is no genuine issue as to any material fact and that the movingparty is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well-settled that even if the party opposing summary judgment has not formally cross-moved for judgment, summary judgment may be granted in its favor. 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2720 at 29-30 & n.20 (2d ed. 1983). I find that this result is appropriate with regard to plaintiff's § 1983 claim on the selection of counsel issue, and for the reasons advanced, summary judgment is hereby granted in favor of defendants.
B. The Remaining Federal Claims
The plaintiffs' remaining federal claims, being predicated upon plaintiffs' invalid assertion that they have a constitutional right to counsel of their choice at County expense, must be dismissed. The police plaintiffs' second claim is that they have been deprived of a liberty intrest in that defendants have caused them to remain defendants in the underlying § 1983 suits much longer than necessary and have deprived the policemen of the right to control their defenses in such actions. The Court is aware of the difficulties in defining precisely the term "liberty" guaranteed by the Fourteenth Amendment:
Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized and as essential to the orderly pursuit of happiness by free men.
Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Board of Regents v. Roth, 408 U.S. 564, 572, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1971). Cognizant of those difficulties, and of the expansive meaning ascribed to the word, I nevertheless fail to find a liberty interest that has been invaded or of which the plaintiffs have been deprived.
To simply allege that they have been caused to remain defendants in the underlying § 1983 suits much longer than necesary and deprived of their right to control their own defense smacks of speciousness. That the police plaintiffs here have been caused to become defendants in suits brought against them under § 1983 is certainly not the result of any conduct, under color of law or otherwise, of these defendants. There is also no indication whatever as to what, if anything, the individual defendants did to cause these policemen to "remain unnecessarilyas defendants" (Complaint, P73) in the underlying § 1983 actions against them. Quite clearly, to the extent that the County may be subjected to liability for compensatory damages caused by the fault of its policemen, it had the absolute right to conduct the defense as it deemed wise. And to the extent that the police plaintiffs might have been subjected to liability for punitive damages, they were free to retain their own counsel at any time and control their own defense to such extent as they deemed wise, necessary or appropriate. For the foregoing reasons, the second claim is dismissed.
The plaintiffs' third claim alleges that they have been denied equal protection under law in that the defendants have allowed others similarly situated to have independent defense counsel of their choice at County expense, while intentionally denying the benefit to the individual police plaintiffs here. Equal protection deals with legislative line-drawing and classifications that are irrational. No claim of impermissible legislative line-drawing has been made, and having determined that the police plaintiffs have no legally cognizable property right to independent counsel of their own choice at County expense, this claim lacks merit.
The plaintiffs' remaining claims for breach of contract, fraud, breach of fiduciary duty and negligence and legal malpractice, predicated as they are upon the failed assertion of their right to independent counsel of their choice or upon principles of pendent jurisdiction, must also fail and the complaint is dismissed in its entirety.
See supra at 4.
For the foregoing reasons, plaintiffs' motion for summary judgment on the selection of counsel issue is denied. However, summary judgment is granted in favor of defendants on that issue. In addition, as discussed above, plaintiffs' purported liberty interest and equal protection claims are without merit. Finally, as plaintiffs have failed to allege any substantial federal claims, their pendent state claims must be dismissed. Dunton v. County of Suffolk, supra, 729 F.2d at 910-11. Thus, the complaint is dismissed in its entirety.