The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.
Defendants Spencer and the Town of Newburgh move to dismiss the federal cause of action in plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Further, defendants move to dismiss the pendent state claims under Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. For the reasons stated, the motions are granted.
This action arises out of an allegedly defamatory police report dated July 5, 1994 which was written by Officer Leif D. Spencer ("Spencer"), a police officer with the Town of Newburgh. Plaintiff Daniel Berardinelli ("Berardinelli") has been employed as a police officer of the City of Yonkers for twenty years. On June 29, 1994, at approximately 11:15 p.m., Berardinelli parked his car at the parking lot of the Golden Rail Lounge ("the Lounge") in the Town of Newburgh, New York. Before leaving his car, he placed his licensed Beretta nine millimeter semi automatic pistol under the front of the passenger seat. Berardinelli got out of his car, locked the doors and entered the Lounge.
At 1:15, the Yonkers Police Department received from Officer Spencer and the Town of Newburgh a teletyped account of the theft. The following paragraph appeared in that report:
While speaking with the complainant I noticed the obvious odor of an alcoholic beverage on his breath. He appeared extremely calm and almost unconcerned over the loss of this weapon. There appeared to be a few inconsistencies in the complainant's story. There does not seem to be any question about the loss of this weapon but the circumstances surrounding its disappearance are questionable.
The report was published to Berardinelli's supervisor, other officers in the police department and the Internal Affairs Department of the Yonkers Police Department.
As a result of this report, Berardinelli was suspended for five days without pay.
In his complaint, Berardinelli asserts four claims against defendants. The first three are state tort claims for defamation, emotional distress and tortious interference with business relations. As for the fourth claim, Berardinelli alleges that because defendants' defamatory report formed the basis of his suspension, it deprived him of a liberty interest in employment guaranteed by the due process clause of the fourteenth amendment pursuant to 42 U.S.C. § 1983. Berardinelli claims that his deprivation manifested itself not only in his five day suspension but also in the stigma associated with the report which could adversely affect his chances for future promotion.
A successful § 1983 claim requires more than a showing that one has been wronged at the hands of a state or municipal official. Rather, a plaintiff must allege that defendants, under color of law, deprived him of a right secured by the Constitution and laws of the United States. Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The Supreme Court has held that an individual whose reputation is injured by the remarks of a public official is deprived of a liberty or property interest if he suffers a resultant tangible injury, such as loss of employment. Paul v. Davis, 424 U.S. 693, 699-710, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Zemsky v. City of New York, 821 F.2d 148 (2nd Cir. 1987), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 396, 108 S. Ct. 456 (1987); Dower v. Dickinson, 700 F. Supp. 640, 645 (N.D.N.Y. 1988). However, this Circuit has held that, absent an employer-employee relationship between the allegedly defaming defendant and the plaintiff, the alleged stigmatization amounts, at most, to simple defamation. Cardona v. Ward, 673 F. Supp. 120 (S.D.N.Y. 1987); see also Gentile v. Wallen, 562 F.2d 193, 198 (2d Cir. 1977) (holding that allegedly defamatory material published by defendant after plaintiff's termination does not state a due process claim. Paul v. Davis, 424 U.S. at 710 ("to establish a claim under § 1983 and the Fourteenth Amendment. . . the defamation [must] occur in the course of the termination of the employment.").
Berardinelli argues that dismissal of the pendent state law claims should be conditioned on defendants' agreement to waive the statute of limitations defense in state court. Such a condition is not, in the Court's view, appropriate. But see N.Y. C.P.L.R. § 205(a)(McKinney 1990); and Diffley v. Allied Signal Inc., 921 F.2d ...