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March 31, 1996

MICHAEL NOCERA, Plaintiff, against New York City Fire Commissioner, CARLOS RIVERA, ANTHONY FUSCO, Chief of Department, NEW YORK CITY FIRE DEPARTMENT, RICHARD SACCAMANO, Defendants.

The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff, Michael Nocera ("Nocera"), brings this action against the defendants Carlos Rivera, New York City Fire Commissioner; Anthony Fusco, Chief of the New York City Fire Department; Richard Saccamano; and the New York City Fire Department ("Rivera," "Fusco," "Saccamano," and the "Department" or collectively as "defendants") alleging violations of his rights under 42 U.S.C. ยง 1983 and the Fourth and Fourteenth Amendments to the United States Constitution while employed as a probationary fire fighter by the New York City Fire Department. The plaintiff alleges that the defendants violated his constitutional rights by requiring a urinalysis drug test and thereafter by discharging him after a positive test result. The defendants argue, among other things, that they had a reasonable basis for requiring the test in the plaintiff's case and that the individual defendants are protected by qualified immunity.

 In his complaint, the plaintiff asserted three claims for relief. The first claim alleged that the drug test violated the plaintiff's Fourth and Fourteenth Amendment rights. The second claim alleged a violation of the plaintiff's property interest under the Fourteenth Amendment because of the defendants' alleged refusal to afford the plaintiff the right to retest the results of the drug test on which his termination was allegedly based. The third claim for relief, also asserted under the Fourteenth Amendment, alleged that the plaintiff's liberty interest was violated because of the stigmatizing information contained in the Department files as to which the plaintiff was allegedly afforded no opportunity to be heard. The parties have stipulated that the plaintiff's second claim alleging that he was deprived of a property interest is withdrawn. The defendants move for summary judgment dismissing the remaining two claims. The plaintiff seeks summary judgment finding that the allegedly compulsory urinalysis drug test violated his Fourth and Fourteenth Amendment rights because the Fire Department did not have a sufficient basis to require the test. *fn1"


 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.

 The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); see also Gallo, 22 F.3d at 1223.

 If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).

 When, as in this case, both parties seek summary judgment, the Court must "'evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Abrams v. United States, 797 F.2d 100, 103 (2d Cir. 1986) (quoting Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir. 1981). Only where one of the parties is entitled to judgment as a matter of law upon material facts not genuinely in dispute is the Court warranted in granting summary judgment.


 There is no genuine dispute with respect to the following facts established in the record.

 The plaintiff Michael Nocera ("Nocera") was appointed a probationary fire fighter with the New York City Fire Department ("Fire Department" or "Department") on May 9, 1993.

 As a condition to his appointment as a probationary fire fighter, the plaintiff underwent a full medical examination on July 24, 1991. Since over one year had elapsed, the plaintiff was scheduled for another full medical examination on September 16, 1992 as a condition to appointment; he cancelled his appointment for the examination. (Defs.' Ex. 3.) *fn2" The plaintiff cancelled additional appointments on September 21, 1992 and November 19, 1992. On or about February 5, 1993, the plaintiff was informed by the Department that he could no longer postpone his medical examination and that he would have to appear on February 18, 1993. (Defs.' Ex. 3; Pl.'s Dep. Tr., dated September 23, 1994 at 60, annexed as Defs.' Ex. 5.) On February 18, 1993, the plaintiff finally appeared for his preappointment medical exam and was medically qualified for appointment to the position of probationary fire fighter. (Defs.' Ex. 3.)

 The plaintiff, who was then 27 years old, was appointed as a probationary fire fighter on May 9, 1993. (Def. Ex. 7.) Upon his appointment, the plaintiff was assigned to the Fire Department, Division of Training ("Training Academy"). (Id.) While assigned to the Training Academy, the plaintiff participated in probationary orientation. On their first day at the Training Academy, all probationers are given a five-page document entitled "Orientation for Probies" ("handout"). (Defs.' Ex. 8; Dep. Tr. of Richard Saccomano, dated June 23, 1994, annexed as Defs.' Ex. 9 at 3-4.) The instructors at the Academy go through this document line by line with the probationers. (Id.) This handout explicitly states: "Any notices received which might be of interest to the Fire Department must be delivered to the P.F.S. [Probationary Fire fighter School] office as soon as possible. Such notices might include but are not limited to: military orders, subpoenas, jury notice, court appearances." (Defs.' Ex. 8 at 4.) The handout also states: "Trainees are responsible for compliance with the Rules and Regulations for the Uniformed Force of the Fire Department and all amendments and revisions that are promulgated." (Id. at 5.)

 Rule 25.4.2 of the Rules and Regulations for the Uniformed Force of the Fire Department ("Rules and Regulations") provides that:

Members shall not engage in an altercation, commit assault or violate any law. When members are arrested, or issued a desk appearance ticket, they shall without delay notify the officer on duty of their assigned unit. Such notification shall include the nature of the charges, date, time, and location of occurrence.

 (Defs.' Ex. 10 (emphasis added).)

 Rule 25.1.6 of the Rules and Regulations provides that "members shall not, at any time, indulge in or be under the influence of marijuana or any controlled substance prohibited by the New York State Penal Law. " (Defs.' Ex. 11.)

 On Friday, May 21, 1993, nine business days after his probationary appointment, the plaintiff reported sick and did not report to the Training Academy. (Defs.' Ex. 13.) The plaintiff again reported sick on Friday, June 18, 1993 and did not report to the Training Academy. (Def. Ex. 14.) On Tuesday, June 22, 1993, the plaintiff was continued on Medical Leave with an expected return to full duty assignment at the Training Academy on Friday, June 25, 1993. (Defs.' Ex. 15.)

 On or about Tuesday, June 29, 1993, the State of New York, Division of Criminal Justice Services notified the Fire Department of the plaintiff's arrest. (Defs.' Ex. 16, 20.) The plaintiff's arrest report was forwarded to the Division of Trials and Investigations of the Fire Department on June 29, 1993. (Defs.' Ex. 16, 17.) The arrest report received by the Fire Department states that on Friday, June 11, 1993 at 1850 hours the plaintiff was observed in the lobby of 30 Avenue V, a building in the Marlboro Projects, and was arrested for criminal trespass in the third degree. (Id.) The arrest report further states that the lobby where the plaintiff was observed is a "known drug location," that the plaintiff did not live in the building, that the plaintiff had no valid reason for being there, and that "No trespass" signs were visibly posted. (Id.)

 On Tuesday, June 29, 1993, the defendant Richard Saccomano, Battalion Chief of the Probationary School, was informed by Margie Prather of the Fire Department's Candidate Investigation Unit ("CIU") that the plaintiff was arrested on June 11, 1993 and he had failed to report his arrest. (Defs.' Ex. 21.) Defendant Saccomano was instructed to obtain a statement from the plaintiff concerning his arrest. (Defs.' Ex. 9 at 11.) By a written statement made in the presence of defendant Saccomano and Lieutenant James A. Owens, on June 29, 1993, the plaintiff stated:

I was in a area where the Police were under surveillance. My girlfriend lives in this area. When the Officers approached me, I became arrogant to think they were approaching me. My arrogance led them to arrest me for trespassing. The Officer told the Desk Sergeant that I had no occupation and to just appear July 6, 1993 to Night Court. I asked if I should Report this to my Superior's [sic] and the Officer said not to volunteer this information and to just pay the Summons.

 (Defs.' Ex. 22.)

 On June 29, 1993, the Assistant Commissioner of the Bureau of Investigations and Trials of the Fire Department prepared a report regarding the plaintiff's June 11, 1993 arrest and his failure to report the arrest. (Defs.' Ex. 16.) When he received a copy of the report, Fusco, then chief of the Fire Department, consulted with the First Deputy Commissioner and Chief of Operations. (Dep. Tr. of Anthony Fusco, dated June 23, 1993, annexed as Defs.' Ex. 23 at 7-9; Aff. of Anthony Fusco, sworn to on June 8, 1995 ("Fusco Aff.") PP 4, 13.) Based upon his experience of over thirty years with the Fire Department and his consultation with the Deputy Commissioner and the Chief of Operations, Fusco suspected illegal drug use by the plaintiff and determined that the plaintiff should undergo a urinalysis to test for the presence of drugs. (Defs.' Ex. 23 at 17, 25-26, 28; Fusco Aff. PP 11-17.)

 The determination to have the plaintiff submit to a drug test was based upon a combination of factors, including the plaintiff's arrest for trespassing in a known drug location and his failure to report it together with the plaintiff's three absences during his six weeks of probationary service and the fact that the plaintiff had missed several medical tests prior to being medically qualified for appointment. (Id.) On July 1, 1993, less than two full business days after being notified of the plaintiff's arrest and his failure to report his arrest, defendant Saccomano was directed by Chief Bauer, the Executive Officer at the Bureau of Training, to have the plaintiff report to the Fire Department Bureau of Health Services. (Defs.' Ex. 9 at 27-28.)

 The Fire Department All Unit Circular No. 202A regarding "Department Policy Regarding Drugs and Narcotics" provides:

(1) members shall not use, or have in their possession, narcotics, tranquilizers, opiates, cocaine, marijuana, hallucinogens, methadone, amphetamines or barbiturates, or other controlled substances, or paraphernalia used to administer any of the ...

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