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SHEPPARD v. BEERMAN

December 20, 1995

BRIAN SHEPPARD, Plaintiff, against 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: GLASSER

 GLASSER, United States District Judge:

 SUMMARY

 This civil rights action is before the Court on remand from the Second Circuit solely on the issue of alleged violations of plaintiff's First Amendment right to free speech. Plaintiff, Brian Sheppard ("Sheppard"), seeks a declaratory judgment, injunctive relief, and monetary damages pursuant to 42 U.S.C. § 1983 ("Section 1983"; "§ 1983"). Defendant, Judge Leon Beerman, a justice of the Supreme Court of the State of New York for the County of Queens ("Judge Beerman"), moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons discussed below, the motion is granted.

 BACKGROUND

 I. Factual Background

 The facts of this case are summarized briefly here; they are recounted in greater detail in an opinion reported at 822 F. Supp. 931 (E.D.N.Y. 1993), familiarity with which is presumed.

 The following material facts are undisputed. Sheppard worked as Judge Beerman's law clerk from October of 1986 until December of 1990. Complaint P 3. This suit is based on his December 11, 1990 dismissal and events leading up to it.

 Sheppard alleges that during his tenure as Judge Beerman's law clerk, he perceived many instances of judicial misconduct and attempted to dissuade the judge from engaging in such conduct. Complaint P 7. Sheppard specifically alleges two instances of judicial misconduct: (1) that Judge Beerman arranged to have a case assigned to him for improper personal reasons; and (2) that on December 6, 1990, Judge Beerman ordered Sheppard to draft a decision denying a defendant's speedy trial motion for reasons unrelated to the merits. Complaint PP 9-10.

 When Sheppard refused to draft the decision because he felt it was improper, Judge Beerman told him that, although Sheppard was not being discharged, "he should seek other employment if he felt that way." Complaint P 11. Sheppard alleges that "he declined, saying that he was not the one who had acted improperly," and told Judge Beerman that he had kept notes of alleged judicial improprieties. Complaint P 12. Sheppard alleges that Judge Beerman expressed concern about the notes and that Sheppard said "that he would no longer have a duty of loyalty to defendant if defendant continued to pressure him into taking part in misconduct." Complaint P 13. Sheppard alleges that he called Judge Beerman "corrupt" and a "son-of-a-bitch," and alleges that Judge Beerman called him "disturbed" and "disloyal." Complaint P 14.

 II. Procedural Background

 Sheppard commenced this case in April 1991 under 42 U.S.C. § 1983, alleging that his former employer, Judge Beerman, violated various Constitutional rights in the events surrounding and subsequent to Sheppard's dismissal. Sheppard Brief at 2. Judge Beerman filed an answer on May 8, 1991.

 Since the time for pleadings had already closed, the defendant made a motion under Federal Rule of Civil Procedure 12(c) ("Rule 12(c)") for a judgment on the pleadings. This court heard argument in April 1992 and granted Judge Beerman's motion, dismissing the complaint in its entirety. Sheppard v. Beerman, 822 F. Supp. 931 (E.D.N.Y. 1993).

 The Court of Appeals affirmed this court's judgment on the pleadings in all respects except insofar as the complaint alleged a violation of Sheppard's First Amendment right to free speech. Sheppard v. Beerman, 18 F.3d 147 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994). In vacating and remanding that portion of the case, the Court of Appeals held that this court improperly made the factual finding that the cause of Sheppard's employment termination was insubordination, rather than the exercise of his right to free speech. Id. at 151. Therefore, the only claim before this court on remand is the allegation that Judge Beerman violated Shepard's First Amendment right to free speech.

 Since this court did not consider the qualified immunity claim in its initial ruling, the Court of Appeals did not review that issue. This Court examines that issue for the first time here.

 DISCUSSION

 Sheppard's surviving claim alleges that Judge Beerman, acting under color of New York law, deprived him of his First Amendment right to freedom of speech. Complaint PP 5, 38. Sheppard alleges this deprivation took the form of a retaliatory dismissal for Sheppard's having accused Judge Beerman of judicial misconduct. Complaint PP 1, 18.

 Judge Beerman argues in the alternative (1) that Sheppard's speech was not protected by the First Amendment because it was not on a matter of public concern; *fn1" and (2) that he is entitled to qualified immunity from liability for damages.

 I. Rule 12(c) Standards

 Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings. Fed. R. Civ. P. 12(c). *fn2" If the Court goes beyond the pleadings to decide an issue, the Rule 12(c) motion will be treated as one for summary judgment. Id.; Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Frerks by Frerks v. Shalala, 848 F. Supp. 340, 347 (E.D.N.Y. 1994), aff'd 52 F.3d 412 (2d Cir. 1995).

 A motion for judgment on the pleadings may be granted when all material allegations of fact are admitted in the pleadings and only questions of law remain. See George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977); Burns International Security Services, Inc. v. International Union, 47 F.3d 14, 16 (2d Cir. 1995). In deciding a motion under Rule 12(c), the court applies the same standard as that applicable to a motion under 12(b)(6). See Ad-Hoc Comm. of Baruch Black and 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)). This standard is "applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citations omitted).

 There is no factual dispute as to the content of Sheppard's speech or the sequence of events leading up to his dismissal. Thus, this motion requires the Court to reach two issues of law not fully addressed in the initial consideration of this case: (1) whether Sheppard has raised a valid First Amendment claim under § 1983; and (2) whether Judge Beerman is entitled to qualified immunity from Sheppard's § 1983 damages claim.

 II. Prima Facie Case Under § 1983

 A suit against a public official in an individual, as opposed to official, capacity "seek[s] to impose individual liability upon a governmental officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 362, 116 L. Ed. 2d 301 (1991). To raise a prima facie claim for relief under Section 1983, a claimant need allege only that some person acting under color of state law deprived the claimant of a federal right. Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir. 1983) (citing Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980)); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990).

 In general, an employee who claims that his employment was terminated in violation of the First Amendment must establish that: (1) his speech can be "fairly characterized as constituting speech on a matter of public concern," Piesco v. Koch, 12 F.3d 332, 342 (2d Cir. 1993) (citing Connick v. Myers, 461 U.S. 138, 147-48 & n.7, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983)); and (2) the speech was at least a substantial or motivating factor in the discharge, id. (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)).

 Public Concern

 Whether an employee's speech addresses a matter of public concern is a question of law. See Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995). The more serious the nature of the public concern expressed in the speech, the more protection the speech is accorded. See Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995) ("The closer the employee's speech reflects on matters of public concern, the greater must be the employer's showing that the speech is likely to be disruptive before it may be punished."); Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991) ("An employee's charge of unlawful conduct . . . is given far greater weight . . . than is a complaint as to the fairness of internal office procedures.") Accusations of corruption do touch on matters of colorably public concern. See e.g., Rookard v. Health and Hospitals Corp., 710 F.2d 41, 46 (2d Cir. 1983) (allegation of "corrupt and wasteful practices obviously involves a matter of public concern").

 Since Sheppard allegedly voiced concern that Judge Beerman was "corrupt," the Court holds that Sheppard's speech, as a matter of law, involved a matter of public concern. Therefore, Sheppard has properly pled ...


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