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GUBITOSI v. KAPICA

August 10, 1995

Lori L. GUBITOSI, Plaintiff, against JOHN A. KAPICA, individually and in his capacity as Chief of Police of the town of Greenburgh, New York, The TOWN BOARD of the Town of Greenburgh, New York, THE BOARD OF POLICE COMMISSIONERS of the Town of Greenburgh, New York, and the TOWN OF GREENBURGH, New York, Defendants.


The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.

 The plaintiff, Lori A. Gubitosi ("Gubitosi"), instituted this action pursuant to 42 U.S.C. § 1983 against John A. Kapica ("Kapica), the Chief of Police of the Town of Greenburgh ("the Town") and the Town's Board of Police Commissioners ("the Board"), the Town Board and the Town itself (collectively referred to as "defendants"), on the ground that she was suspended without pay from her job as a police officer in violation of her constitutional rights to free speech and due process. In her complaint, Gubitosi seeks compensatory damages, punitive damages, reinstatement, back pay, and seniority rights.

 Now before the court is defendants' motion, pursuant to Fed.R.Civ.P. 12(b)(6) and 56, to stay or dismiss based on the abstention doctrine of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).

 II. PLAINTIFF'S ALLEGATIONS

 Gubitosi has been employed as a police officer for ten years by the Town's police department. She is openly a lesbian. Concerned about the implications of a strip search performed on a woman by a known lesbian, and by, what she terms, a department policy which directs strip searches *fn1" only for female and/or predominantly African-American criminal suspects, plaintiff on May 31, 1994, according to the allegations of her complaint, refused to obey her superior officer's orders which required that she perform a strip search of a female prisoner. *fn2" As a result of her refusal, on June 15, 1994, she was suspended without pay for five days. Shortly after her suspension, Gubitosi underwent a performance review in which she denounced many police practices. Specifically, she criticized the following alleged practices: (1) police officers who were supposed to patrol the Town, instead, attended Sunday morning bagel breakfasts--at the taxpayers' expense; (2) police officers were permitted to take extended breaks at various local firehouses; (3) the department failed to investigate properly burglaries involving property belonging to plaintiff's family; (4) police officers were permitted to drink to excess, to use obscene language and otherwise misbehave; (5) inebriated police officers were allowed to continue operating their motor vehicles even after they had been stopped for speeding.

 On July 22, 1994, Gubitosi was ordered to strip search three female narcotics suspects. Gubitosi reported to her superior that she had performed the search. Shortly thereafter, another female police officer searched the three detainees and found money, i.e. contraband, in one of the defendants' bras. The next day, a Saturday, the Chief of Police, Louis A. Kapica, interviewed Gubitosi about the incident. Gubitosi was not able to secure an attorney for a Saturday interview on such short notice, but a Union representative was present. During the interview, Gubitosi again maintained that she had strip searched the three suspects.

 As a result of Kapica's investigation, Gubitosi was suspended by the Town Board pending disciplinary charges relating to this incident. Subsequently, on August 17, 1994, six charges were brought against Gubitosi, for among other things, disobedience of an order, failure to perform a duty, and knowingly making a false report. The proceedings were brought under the Westchester County Police Act. Westchester County, N.Y. Police Act, Ch. 104, §§ 7 and 8 (1936) (amended Ch. 812 (1941), Laws of New York. Proceedings under the act are subject to judicial review under Article 78 of the New York Civil Practice Law and Rules. Westchester County, N.Y. Police Act, Ch. 104, § 8 (1936) (amended Ch. 812 (1941). Laws of New York. As of this date, the disciplinary hearings have commenced but have not been completed.

 Gubitosi's complaint sets forth fifteen claims, premised, for the most part, on defendants' retaliation against plaintiff for her criticisms of the police department. Plaintiff also makes several claims of violations of Equal Protection and Due Process. *fn3" Defendant, urging that all of Gubitosi's federal claims can be fully and adequately considered in pending state disciplinary proceedings have moved this Court to abstain from considering her federal claims.

 III. DISCUSSION

 A. Legal Standard

 Given the procedural posture of this motion, the Court is constrained to accept as true Gubitosi's factual allegations and draw from them all reasonable favorable inferences. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992).

 B. Abstention

 Defendants argue that Younger requires abstention. See Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) Its abstention doctrine is based on a policy against federal court interference with pending state judicial proceedings. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 433-34, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982).


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