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MASCETTA v. MIRANDA

March 5, 1997

JOSEPH MASCETTA, Plaintiff, against JOSEPH MIRANDA, Individually and as Assistant Warden of the Westchester County Department of Correction, RICHARD S. ADAMOVIC, Individually and as Assistant Warden of the Westchester County Department of Correction, CARL FEHRMANN, Individually and as Sergeant in the Westchester County Department of Correction, CHARLES BONANNO, Individually and as Sergeant in the Westchester County Department of Correction, JOSEPH STANCARI, Individually and as Chief of Operations of the Westchester County Department of Correction, NORWOOD E. JACKSON, Individually and as Commissioner of the Westchester County Department of Correction, and the COUNTY OF WESTCHESTER, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, SENIOR D.J.:

 Plaintiff Joseph Mascetta ("Mascetta"), a Sergeant in the Westchester County Department of Correction, has brought an action under 42 U.S.C. § 1983 and the New York Civil Rights Laws against Westchester County and six of its Corrections Department employees, ("defendants"), individually as well as in their official capacities, alleging ten claims for violations of his rights under the First, Fourth and Fourteenth Amendments of the United States Constitution, as well as under various provisions of the New York State Constitution. Defendants have moved for summary judgment on all claims under FED. R. CIV. P. 56. We have jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).

 BACKGROUND1

 Initially, Mascetta alleges defendants retaliated against him to punish him for voicing his opinion on two separate issues. He claims that in response to his statements, defendants conspired to frame him and fabricate false disciplinary charges against him in order to coerce him into resigning, and that in the course of the conspiracy, they violated a number of his constitutional rights. We discuss the alleged statements first, then the alleged retaliatory actions by the defendants.

 The first statement for which Mascetta claims defendants retaliated against him involved his criticism of a fellow employee for violating security procedures around January of 1992. Mascetta stated that he believed that a brutal attack on two Corrections Officers had resulted from the increased smuggling of contraband into the jail. Masc. Depo. 95-96. He alleges he saw Officer Kennie performing grossly inadequate strip searches in the visitor area and that, with the help of Captains Page and Forti, he prepared a report on his observations and gave copies to Assistant Warden Miranda and Chief Joseph Stancari (defendants in this action). Mascetta states that when Kennie remained on his post, he confronted Miranda and said "What is up with this? You know I wrote this guy up" and Miranda said "Why don't you mind your own fucking business." Mascetta retorted "Why don't you do your job?" and Miranda told him to counsel the officer. Id. Miranda claims that he does not recall the conversation, Mir. Depo. p. 19, and the report cannot be found. (Mascetta claims it was taken by defendants from his locker.) There is no testimony from Page and Forti in the record.

 The second statement for which Mascetta alleges defendants retaliated against him involved his criticism of Miranda for "pressuring" him into buying a defective automobile from Miranda's wife in early 1992. As Mascetta describes it, he had been late to work several times because his car died, and Miranda warned him he could not keep coming to work late. Masc. Depo. p. 118. Mascetta states that Miranda gave him one of his wife's business cards, and told him to visit the dealership "she managed." Id. at 124. When Mascetta visited the dealership, Miranda himself was there. Mascetta looked at some cars but decided the prices were too high. He claims that Miranda later called him and told him there was a car he could afford and "we will guarantee it." Id. at 119. Mascetta then bought the car.

 Shortly thereafter Mascetta allegedly learned that probationary Correction Officer Curley had been similarly pressured by Miranda, and had refused to buy a car from Miranda's wife because they were too expensive. According to Mascetta, Miranda then "assigned Curley to areas of the jail beyond his skills and ultimately had him terminated". Id. at 126-127. Mascetta says Curley told him he had been coerced by Miranda and that Miranda was giving him bad work assignments. Id. When Curley was terminated, Mascetta "felt" that it was because of his failure to buy a car. Id. Mascetta states that shortly thereafter he began to have problems with his car. He requested that the dealership fix it, and when he became dissatisfied with the dealership's response to the car's problems, he confronted Miranda, telling him "You fucked me." He alleges that Miranda responded "You are going to be sorry for that." Id. at 95. Defendants deny that this incident happened, pointing out that plaintiff has no personal knowledge as to the reason for Curley's termination, and has not offered Officer Curley's testimony. Def. Br. p. 10.

 The allegedly false disciplinary charges preferred in retaliation for the above speech pertained to Mascetta's intercession into an April 2, 1992 dispute between inmates Thomas Holcomb and Matthew Parker. On that date, Mascetta responded to an alarm sounded by Officer Russell Duncan, the Corrections Officer on duty. When he arrived, according to Mascetta, he saw Holcomb severely beating Parker, and he ordered them to stop several times. Masc. Depo pp. 81-82. The inmates ignored him and he physically intervened to break up the fight. He and Holcomb exchanged blows until he was able to subdue Holcomb. Id. At some time during the altercation, Correction Officers DiFiore, Cerasi and Bonanno *fn2" arrived. Bon. Depo. p. 31.

 There is a dispute as to what occurred thereafter, particularly with regard to whether, as Bonanno stated in his report on the incident and his deposition, Mascetta dragged Holcomb into the elevator by the hair and kicked him in the head. Bon Depo. at pp. 26-27. Mascetta states that Cerasi and DeFiore placed Holcomb in the elevator and took him to the infirmary and that he did not approach the elevator with Holcomb. Masc. Depo p. 86-87. There are conflicting reports from the other officers who were there. *fn3"

 According to Miranda, Sgt. Carl Fehrmann came to him personally raising concerns about Mascetta's treatment of Holcomb. Mir. Depo. p. 33-36. Fehrmann states in his April 22nd report that he and Sgt. Gilliam met the elevator when it arrived from the third floor where the incident occurred, and that he took Holcomb from the elevator to the infirmary. Pl. Exh. 14. Miranda testified that Fehrmann told him that when the elevator arrived at the infirmary, it appeared that Holcomb had been assaulted and was having a seizure. Id. at p. 44. He claims that Fehrmann also told him that he [Fehrmann] then called Mascetta for an explanation and Mascetta told him "The inmate punched me in the chest, so I let him have it." Id. at 44.

 Miranda testified that as a result of Fehrmann's concerns, he called Bonanno who confirmed Fehrmann's story. *fn4" Id. at 33 - 36. Bonanno filled out a report for Miranda on that date, and testified that later that day Miranda requested he fill out a second report because his "didn't contain enough information." Bon. Depo. p. 9, 15. This report is dated April 14, though Bonanno testified he wrote it on April 2. Id. p. 16. Mir. Depo. p. 33-36. Mascetta alleges that Miranda, relying upon "false statements solicited from Fehrmann, Bonanno and Holcomb, initiated a process to bring false disciplinary charges against Plaintiff." Pl. 3(g) stmnt. P 25. Without asking either Officer Bonanno or Fehrmann for a written report, Miranda prepared a report for his supervisor, Chief Stancari. Stancari requested that Miranda conduct a preliminary investigation, during which Miranda interviewed the two inmates involved and some of the officers. Id. Mascetta alleges that during the investigation, Miranda approached Holcomb and urged him to file against Mascetta and others, including Duncan, the County of Westchester and the Westchester Department of Corrections, a "meritless" lawsuit, which was later settled for $ 10,000. Stlmnt. Stip., Pl. Exh. 17; Masc. Depo. pp. 174-175. *fn5"

 In his investigation Miranda did not speak with everyone involved, but with only Holcomb, Bonanno and Fehrmann and two inmates who may have witnessed the event. Mir. Depo p. 46. He recommended that further investigation should be undertaken and/or formal disciplinary charges should be filed against Mascetta. Id. at 49. As further evidence of a conspiracy to bring false disciplinary charges against him, Mascetta points out that Miranda did not consider recommending that investigations or disciplinary proceedings be instituted against other officers involved. Pl. 3(g) stmnt. P25, citing Mir. Depo. pp. 43, 45-46, 49-51. Miranda gave the report to Stancari who passed it on to Commissioner Norwood E. Jackson. Stanc. Depo. pp. 26-27, 33-34. On April 20, 1992, Jackson requested the Special Investigations Unit ("SIU") investigate the matter in greater detail. SUI was given a copy of Miranda's preliminary investigation report, and Sergeant William Pudney and Assistant Warden Adamovic (also a defendant) were designated to conduct the investigation. Admv. Rept., Pl. Exh. 18.

 SIU interviewed the officers who were present during the incident, as well as the inmates. Holcomb testified that Miranda grabbed him by the hair and pulled him to the ground and that he and others kicked Holcomb in the face and that Mascetta then pulled Holcomb onto the elevator and kicked him in the face until he passed out. Hlc. stmt., Pl. Exh 16. SIU received conflicting versions of the story, particularly with regard to whether Mascetta was in the elevator, however, and concluded in its April 29th report that DiFiore and Cerasi had falsely stated that Mascetta was not on the elevator. Admv. Rept. p. 7, Pl. Exh. 18.

 At the conclusion of SUI's investigation, Commissioner Jackson recommended disciplinary charges be filed against Mascetta. On April 29, Jackson ordered Mascetta suspended without pay and, consistent with Correction's standard operating procedures, to surrender his badge, identification card and all weapons because his firearms carrying privileges, on or off duty, were likewise suspended. See Ltr. to Pl., Pl. Exh. 19. On May 29, Mascetta was served with a Notice of Charges alleging that he had used excessive force on Holcomb, Notice, Pl. Exh. 21, and was suspended with pay. See Ltr. to Pl., Pl. Exh 20. According to Mascetta, "Adamovic, Putney or both" called him up to tell him that his weapons would become department property, and as a result he was forced to sell them for far less than they were worth or to give them away. Masc. Depo pp. 11-15, 194-195.

 Plaintiff's disciplinary hearing was held on July 2, 1992, and continued on August 4, August 17 and September 22. He was represented by an attorney and given an opportunity to present testimony and argument in his defense. Rosen Rpt., Pl. Exh. 24. Paul Rosen, the independent hearing officer appointed by Commissioner Jackson, stated, in part, that:

 
"it appear [sic] that testimony or reports favorable to the Charged Party's position were not included in the reports filed and forwarded in the investigation of this matter. . . .
 
Additionally, almost all witness [sic] have a significant reason for questioning the validity of their testimony, and I find that, in part, most witnesses were not completely truthful when they testified. To further illustrate the problem: the alleged victim HOLCOMBE has a law suit pending against the County of Westchester which was contemplated immediately after the incident. The correction officers who testified or whose reports were admitted as evidence, might wish to alter their testimony in an effort either to protect or condemn a fellow officer, or get even for some prior problem is more likely. As to those who were actually present during the incident, they might have lied to cover up their own actions or misdeeds . . . .
 
Although, it is clear that HOLCOMBE was kicked in the face; it is also clear that more than one individual participated in the kicking. . . . Although it is clear that there appears to be an excessive use of force, I have insufficient testimony to allow me to determine that it was Sgt Mascetta that was guilty of that excessive force . . . .
 
Accordingly, I recommend to the appointing authority that the instant charges be dismissed as not proved by the evidence presented.

 Rosen Rpt., Pl. Exh. 24. Bonanno later received a disciplinary letter and counseling for inconsistencies between his testimony at the hearing and his prior statements. Bon. Depo. p. 12-13, 84. Mascetta urges that these inconsistencies concern Bonanno's admission at the hearing that he did not see Mascetta kick Holcomb in the head, contrary to his report. Bon. Trans. Pl. Exh. 23; Pl. Br. p. 12.

 After the charges were dismissed, plaintiff was directed to report to work in the female division and was compensated at least partially for the thirty days he was suspended without pay. His firearms privileges had not been reinstated as of the date of the filing of this motion. Def. 3(g) stmnt. P 23. He claims that defendants broke into his locker and took some of his personal belongings. His basis for this accusation is that upon arriving at work, he found that his locker, "in a secure area of the jail which Defendant's had access to," had been broken into and copies of the Holcomb incident reports he had retained had been stolen, as well has his boots. His personal effects had been searched and ...


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