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January 24, 1990


The opinion of the court was delivered by: Leisure, District Judge.



Weg was hired by the Board as a computer systems manager in July 1972. In 1981 he continued to hold that position, working for the Board's Bureau of Supplies in Long Island City, Queens. He was apparently a highly regarded employee. In April 1981, an employee of the Board's Auditor General's staff conducted an apparently routine audit of the content of the computer files of various Board employees, including Weg. During this audit, material was found in Weg's computer files (his "files") that the auditor believed was unconnected with his position with the Board. That material was passed on to the Auditor General and to the Deputy Inspector General of the Board.

The material in question appeared to concern horses and the purchase and sale of computer equipment. The Deputy Inspector General took the material concerning horses to the staff of New York State Off Track Betting Corporation ("OTB"). The OTB Inspector General told the Board employees that the material on Weg's computer concerned harness racing. Learning this, the Deputy Inspector General contacted the New York City Department of Investigation ("DOI") which began an investigation. Further information was gathered from Weg's computer file. Rolf Moulton ("Moulton"), Director of Computer Security Services for DOI, went back to OTB for more information on the material stored in Weg's files. Moulton was told that the material included genealogical data on horses useful to someone involved in horse breeding, and horse betting data.

Further, Moulton's investigation revealed that other material in Weg's files indicated that he had been purchasing computer equipment with the apparent intent of reselling that equipment at a profit. Specifically, Moulton and others in the investigation found that Weg had written purchase orders on his Board computer for the purchase of computer equipment, and that Weg had a New York sales tax exemption number which is used primarily by persons engaged in the wholesale business.

Based on all this information, Gordon Haesloop ("Haesloop"), deputy commissioner of DOI, and another attorney assigned to the case, decided that probable cause existed to arrest Weg for theft of services as defined in New York Penal Law § 165.15(9).*fn2 Under New York law, a person can be found guilty of theft of services when

  Obtaining or having control over labor in the
  employ of another person, or of business,
  commercial or industrial equipment or facilities
  of another person, knowing that he is not
  entitled to use thereof, and with intent to
  derive a commercial or other substantial benefit
  for himself or a third person, he uses or diverts
  to the use of himself or a third person such
  labor, equipment or facilities.

N YPenal L. § 165.15(9) (McKinney 1988). Those involved in the investigation assert that they believed that Weg had knowingly used the Board's computers for personal use to derive a commercial or substantial benefit. This conclusion was based on their findings that Weg, apparently a licensed owner and groom of race horses, had information in his Board computer files that appeared to be related to the business of owning and racing horses. Additionally, the investigators relied on their finding that Weg had seemingly used the Board's computers to prepare purchase orders for computer equipment evidently intended for resale at a profit. Based on this information, Haesloop authorized New York Police Detective Nevins, then assigned to DOI, to arrest Weg for theft of services. The arrest was effectuated on June 24, 1981.

While the investigation which led to Weg's arrest was underway, the Board was also considering bringing internal disciplinary charges against Weg. Charges were brought by the Board at the same time as the arrest, charging Weg with conduct unbecoming to his position or conduct prejudicial to the good order, efficiency or discipline of the service, and suspending him for 30 days without pay.*fn3 The criminal and disciplinary charges against Weg were publicly announced in a press release, which coincided with the announcement by Mayor Edward I. Koch of a new City policy tightening rules on personal use of City-owned computers.

Thereafter, DOI and the Board continued their investigations of Weg. Meanwhile, Weg's employment status remained uncertain. His pay was restored after the thirty day suspension, but he was without a work position at the Board. In October 1981, four months after charges had been brought against him, Weg was offered a non-computer-related position with the Board's Division of Personnel. Weg refused the position and insisted that he be reinstated at his old job. Despite this refusal to report to his new assignment, Weg continued to receive his salary, even though he was not performing any services for the Board. The Board attempted to reach a settlement with Weg of the disciplinary charges against him, which would involve his resignation from the Board, but those discussions were unsuccessful.

Meanwhile, the criminal proceedings continued forward, as follows. In June 1981, at the time of Weg's arrest, a prosecutor's information was filed, charging Weg with theft of services. In December 1981, a superseding information was filed based on additional material discovered during the intervening months. Weg brought a formal motion to dismiss the information, and, in April 1982, Judge Michael Juviler of the Criminal Court of the City of New York, Kings County, dismissed the case. Judge Juviler ruled that the Board's computers were not "business, industrial or commercial" equipment as understood in the statute. 113 Misc.2d 1017, 450 N YS.2d 957. Judge Juviler's decision was upheld by the Appellate Term of the Supreme Court in March 1983.

After the criminal charges were dismissed in April 1982, the Board again ordered Weg to return to work, this time in the Office of Personnel Security. Again, Weg refused to report to this position. Based on his refusal to assume his assigned position, the Board suspended his salary payments pending his reporting to his job. Weg then commenced a mandamus proceeding under Article 78 of the New York Practice Law and Rules, demanding reinstatement to his position as a computer systems manager. The Article 78 proceeding was settled in late 1982, and Weg received all his back pay. However, he was not restored to his position as a computer systems manager. He continued to receive pay from the Board for three years without performing any services for the Board. Finally, in 1985, the new Schools Chancellor, Nathan Quinones, advised Weg that all disciplinary proceedings against him were being dropped and that he could return to work in the Office of Data Processing as a computer systems manager. In May 1986, Weg received the one month's salary that had been withheld from him during his suspension in 1981.


Defendants state six grounds for their motion for summary judgment. First, they assert that probable cause existed for Weg's arrest and subsequent prosecution. Second, defendants assert that even if probable cause did not exist, they are shielded from liability by qualified immunity. Third, defendants claim that Weg suffered no legally cognizable deprivation of rights as a result of defendants' actions. Fourth, defendants assert that even if the Court finds a deprivation of rights, they are immune from suit based on the doctrine of absolute or qualified immunity. Fifth, they claim that Weg cannot establish a policy or practice of either the Board or DOI that caused any deprivation of legally cognizable rights. Sixth, defendants claim that Weg is not a member of a class protected by 42 U.S.C. § 1985. Plaintiff has cross-moved for summary judgment on the issue of defendants' liability, and also moved for permission to amend his complaint. The Court will address these motions in turn.

A) Defendants' Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." "`[A] motion for summary judgment should be granted only "when, viewing the record in the light most favorable to the non-moving party, the evidence offered demonstrates that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law."'" Leberman v. John Blair & Co., 880 F.2d 1555, 1559 (2d Cir. 1989), quoting Pension Benefit Guaranty Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir. 1989), quoting Cinema North Corp. v. Plaza at Latham Associates, 867 F.2d 135, 138 (2d Cir. 1989).

The substantive law governing the case will identify those facts which are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. . . . While the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court must then determine whether there does indeed exist a genuine issue as to any material fact: "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102 (2d Cir.), cert. denied sub nom. Lipton v. R.C. Bigelow, Inc., ___ U.S. ___, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits if any,' which it believes demonstrates 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), quoting Fed.R.Civ.P. 56(c). See also Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506 (2d Cir. 1989). However, Rule 56 does not require that the moving party support its motion with affidavits or other similar materials which negate the opponent's claim. Rather, "the motion may, and should, be granted so long as what is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553. The burden on the moving party will be "discharged by `showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. at 2554.

Indeed, once a motion for summary judgment is properly made, the burden then shifts to the nonmoving party, which "must set forth specific facts showing that there is a genuine issue for trial." Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. Because the District Court must determine "whether there is a need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only be a finder of fact because they may reasonably be resolved in favor of either party," id. — the nonmoving party must produce, at the summary judgment stage, "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. While the Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought," Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975) ...

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