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MYERS v. COUNTY OF ORANGE

December 14, 1994

DR. EDWARD A. MYERS, Plaintiff, against COUNTY OF ORANGE, FRANCIS D. PHILLIPS, II, District Attorney, CITY OF PORT JERVIS, and four other named individual defendants, Defendants.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case brought under 42 U.S.C. 1983 involves alleged discrimination against plaintiff in connection with investigations by police and decisionmaking of prosecutors because plaintiff was the second to complain rather than the first in relation to a controversy turned bitter between plaintiff and other residents of Orange County. *fn1" Plaintiff was prosecuted and later acquitted.

 Evidence has been produced that a policy known as "first-come, first served" favors rejecting any subsequent complaints by a person named as a wrongdoer in a prior related citizen complaint. *fn2"

 Plaintiff moves for partial summary judgment against all defendants concluding that the policy did exist and was unlawfully applied to plaintiff; the County and District Attorney have moved to dismiss the complaint on grounds of prosecutorial immunity.

 The District Attorney's motion is granted to the extent of dismissing the complaint against him on grounds of absolute prosecutorial immunity to the extent the complaint seeks money damages from him in his individual capacity.

 Plaintiff's motion is granted to the extent that I determine, as set forth in greater detail in part II of this memorandum order, that any general policy favoring an initial complainant over a later without giving primary regard to the particular facts involved, violates the Fourteenth Amendment of the Constitution of the United States. In all other respects plaintiff's motion is denied without prejudice. *fn3"

 II

 Any "arbitrary and irrational discrimination violates the Equal Protection Clause" of the Fourteenth Amendment under even the "most deferential standard of review." Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83, 100 L. Ed. 2d 62, 108 S. Ct. 1645 (1988). The critical question in regard to any differentiation between people is "whether there is an appropriate governmental interest suitably furthered by the differential treatment." Police Dept. v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972).

 Due process as protected by that Amendment requires that there be an opportunity to be heard "at a meaningful time in a meaningful manner"

 when, as here, one's liberty is at stake. Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985).

 Any blanket policy disfavoring subsequent complainants once an initial citizen complaint has been made runs counter to these constitutional principles. A second complaint might be acting to retaliate or divert attention from wrongdoing. It is equally plausible that an initial complainant may make a complaint to forestall investigation, or for vindictive reasons. In either case, the factual pattern rather than who complains first properly guides subsequent police or prosecutorial investigation or action.

 No justification for such a policy has been presented. Absence of any confirms the impropriety of discrimination of this type which plainly injures an individual second-complainer. Such a policy does more to injure than to serve any public interest. A first-come-first served policy also runs contrary to the objectives of law enforcement to protect the public, since it inhibits collection ...


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