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May 21, 1993

LEON BEERMAN, as an individual and in his official capacity as Justice of the Supreme Court of the State of New York, Defendant.

The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff Brian Sheppard commenced this civil rights action against defendant Leon Beerman, Justice of the Supreme Court of the State of New York, alleging that the defendant violated his First and Fourth Amendment rights in discharging him from employment as defendant's law clerk. Defendant moves for a judgment of dismissal on the pleadings under Fed. R. Civ. P. 12(c). In addition, plaintiff appeals various determinations of the magistrate judge relating to discovery matters, and moves this Court to vacate its prior referral order to the magistrate judge. For the following reasons, defendant's motion is granted and plaintiff's motions are denied.


 Plaintiff served as a law clerk to defendant until he was fired on December 11, 1990. Plaintiff claims that his dismissal resulted from a heated dispute on December 7, 1990, over the ethical propriety of defendant's actions and decisions in two criminal cases. The complaint notes that harsh words were exchanged between the parties: plaintiff admits calling defendant "corrupt" and a "son of a bitch", and further asserts that he in turn was called "disturbed" and "disloyal." Id. P 14. In addition, plaintiff alleges that he informed defendant at that time that he had written extensive notes of instances of other judicial misconduct during the preceding four years of his service in chambers. Complaint PP 8-15.

 When plaintiff returned to work on December 11, 1990, he was removed from chambers by court officers, who informed him that defendant had fired him. Id. P 22. The complaint further alleges that plaintiff was not permitted to retrieve his personal effects at that time, and that both before and after his discharge on that day, plaintiff's property was searched by defendant or by others at defendant's direction. Id. PP 19-20, 24. However, plaintiff concedes that he wad allowed to return to chambers to retrieve his property on December 13 and 21, 1990, when accompanied by court officers, and plaintiff indicates that he is unsure whether all of his personal effects were returned. Id. PP 24-28.

 Plaintiff also alleges that defendant made, and has continued to make, untrue and defamatory statements about him. Id. PP 30-33. He also asserts that on January 18, 1991, when he attended calendar call in defendant's courtroom, Justice Beerman directed him to leave the courtroom if he wished to examine court files. Id. P 34. In addition, during a subsequent visit to the courtroom on February 11, plaintiff was allegedly told not to keep coming in and out of the room, and was told to be quiet when he sought to reply to this direction. Id. P 37.

 Plaintiff commenced this action in April 1991 under 42 U.S.C. § 1983, alleging that defendant deprived him of his First and Fourth Amendment rights in the events surrounding and subsequent to plaintiff's dismissal. Plaintiff also asserts pendent state law tort claims for, inter alia, false imprisonment, trespass, conversion, and defamation. Defendant filed an answer to the complaint on May 8, 1991.

 Defendant now moves for judgment on the pleadings under Fed. R. Civ. P. 12(c). Plaintiff appeals from certain pre-trial orders of the magistrate judge and requests that this Court vacate its prior referral order to the magistrate judge. These motions will be addressed in turn.

 I. Rule 12(c) Motion

 Normally, a motion to dismiss all or part of an action for failure to state a claim may be brought under Fed. R. Civ. P. 12(b)(6). However, because the language of Rule 12(b) limits motions under its terms to the time period before the close of the pleadings, and because Rule 12(h)(2) nevertheless permits motions to dismiss for failure to state a claim at any time up to and during the trial, Rule 12(c) may be used as a vehicle for making such a motion after the close of pleadings. See generally 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1367 (2d ed. 1990).

 In deciding a Rule 12(c) motion, the court should apply the same standard as that applicable to a motion under 12(b)(6). Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Under that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 As a preliminary matter, defendant challenges the complaint as being too broad and conclusory to support a § 1983 claim. A fair reading of the complaint, however, reveals that it sets forth in detail the particular events and transactions giving rise to this action, as well as the specific constitutional violations of which the plaintiff complains. An analysis of the claims follows.

 1. First Amendment claims

 While a state "may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech," Rankin v. McPherson, 483 U.S. 378, 383-84, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (citing Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)), it has long been recognized that "the government has a legitimate interest in regulating speech of its employees that differs significantly from its interest in regulating the speech of [the] general [public]." Piesco v. City of New York, Dep't of Personnel, 933 F.2d 1149, 1155 (2d Cir.) (citing Rankin, 483 U.S. at 383-84), cert. denied, U.S. , 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991)).

 As a threshold matter, an employee asserting a First Amendment claim must show that the speech in question "may be 'fairly characterized as constituting speech on a matter of public concern.'" Rankin, 483 U.S. at 384 (quoting Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983)). This determination is a question of law for the court, Connick, 461 U.S. at 148 n.7, based on "the content, form, and context of a given statement, as revealed by the whole record." Rankin, 483 U.S. at 385 (quoting id. at 147-48). If the court determines that the state employee's statement pertains to a matter of public concern, it must then balance the employee's interest in making the statement against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Rankin, 483 U.S. at 388 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968)). In balancing the countervailing interests of the public employee and employer under Pickering, the court must not consider the employee's statement in a vacuum; rather, "the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Id.1

 In this case, even after accepting the allegations in the complaint as true, it appears, "beyond doubt" that plaintiff cannot prove any facts which would entitle him to relief. Because Sheppard's statements did not address a matter of public concern, his First Amendment rights were not implicated by his discharge. The content, form, and context of his statements reflect convincingly that they manifest a law clerk's insubordination to his employer, a state judge, and were not uttered to address a matter of public concern. He called the defendant judge "corrupt" and used the expletive "son-of-a-bitch." Complaint P 14. In addition, plaintiff concedes that his statements were made in the context of his refusal to follow the defendant judge's direction to draft a decision on a pending speedy trial motion. Id. PP 10, 11.

 It is crucial to note that the relationship between a judge and law clerk is an intensely personal and confidential one. It is a relationship of a considerably different dimension than the conventional relationship between an employer and an employee. The personal and professional demeanor of a law clerk reflects not only upon the judge with whom he works, but upon the judiciary as a whole. It is not overstating the case to say that "the punctilio of an honor the most sensitive," Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, J.), is the standard of behavior that a law clerk must observe. The plaintiff's behavior fell egregiously short of that standard. That shortfall and his insubordination, not a disregard for his First Amendment rights, compelled his discharge.

 The unassailable validity of the uniqueness of that relationship, even in the context of First Amendment considerations, was plainly recognized in Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), which points the way to decision here. In that case, the plaintiff, a high school teacher, was dismissed for sending a letter to a local newspaper that was critical of the way the defendant Board of Education and the superintendent of the schools had handled past proposals to increase taxes for the benefit of the schools. Id. at 565-66. The Court decided that the plaintiff's rights to freedom of speech were violated, but in the course of its opinion made the following observations which are peculiarly pertinent here:

Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, . . . we shall indicate some of the general lines along which an analysis of the controlling interests should run.
. . .
The [plaintiff's] statements are in no way directed towards any person with whom [he] would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. [Plaintiff's] employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationship for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.

 Id. at 569-70 (emphasis added).

 Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), is also instructive. The plaintiff there, an Assistant District Attorney, was discharged for preparing and distributing a questionnaire soliciting the views of fellow employees regarding office transfer policy, office morale, the need for a grievance committee, the level of confidence in superiors and whether they felt pressure to work in political campaigns. Id. at 141. This questionnaire was prepared after the plaintiff resisted a transfer to prosecute cases in a different section of the criminal court. Id. at 140. The reasons for her discharge were stated to be her refusal to accept the transfer and that her distribution of the questionnaire was regarded as an act of insubordination. Id. at 141. She then brought suit under 42 U.S.C. § 1983, contending that her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. Id. The District Court ordered her reinstatement and awarded her back pay, damages and attorney's fees, holding that the true basis for her discharge was the questionnaire which involved matters of "public concern" and was not clearly demonstrated to interfere substantially with the operation of the District Attorney's Office. Id. at 141-42.

 The Supreme Court reversed, holding that the plaintiff's discharge did not offend the First Amendment. In the course of its opinion the Court speaking through Justice White said:

When employee expression cannot be fairly characterized as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. . . .
Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. . . . [Plaintiff] did not seek to inform the public that the District Attorney's Office was not discharging its Governmental responsibilities in the investigation and prosecution of criminal cases. Nor did [plaintiff] seek to bring to light actual or potential wrongdoing or breach of public trust on the part of [defendant] and others.. . .
To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark -- and certainly every criticism directed at a public official -- would plant the seed of a constitutional case. While as a matter good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.

  461 U.S. at 146-49 (emphasis added). See also Arnett v. Kennedy, 416 U.S. 134, 168, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974) (highlighting importance of maintaining discipline in government offices).

 Likewise, in Berry v. Bailey, 726 F.2d 670 (11th Cir. 1984), cert. denied, 471 U.S. 1101, 85 L. Ed. 2d 844, 105 S. Ct. 2326 (1985), a deputy sheriff commenced an action under 42 U.S.C. § 1983, alleging that he was terminated for exercising his First Amendment rights. Id. at 673. The deputy had incurred the disfavor of the sheriff when he refused to recommend to a prosecutor that certain charges be dismissed against the daughter of an influential state court judge. Id. at 672. All of plaintiff's statements, except for one, concerned that disagreement with his superior. Id. at 674. In granting the defendant's motion for ...

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