in furtherance of Plaintiff's claim for her civil rights violations, which she also asserted in the prior state action."
We do not agree with the County's characterization of Umhey's declaratory judgment claim as simply a predicate to her present civil rights claim -- it was her civil rights claim. Umhey sought a declaration that the waiver provisions of the Code of Ethics were unconstitutional, a perfectly legitimate goal to protect her and other Orange County officials from being subjected to future attempts to enforce that portion of the Code. While her decision not to seek the remedy of damages at that time, in retrospect, did not save much court time, it did narrow the issue somewhat. The Supreme Court was not required to hear and pass upon proof of damages; had Umhey not prevailed, it would never have been necessary to address that issue. She won, however, and we must address it now. The proceedings in this court should not be terribly duplicative, however, since we note, without ruling
, that it appears likely that the parties' claims will be governed by collateral estoppel, or issue preclusion, since collateral estoppel applies to § 1983 actions. Moccio, 95 F.3d at 200. Under New York law, "collateral estoppel will apply only if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Id. Should this test be met in this case, the state court's finding of unconstitutionality would be controlling, leaving only issues such as immunity and damages. See Mindich Developers, Inc. v. Hunziker, 622 F. Supp. 1513 (S.D.N.Y. 1985).
Thus, because Umhey's prior state action did not request coercive or injunctive relief, she is entitled to rely upon the exception to res judicata for declaratory judgments, and her current damages claim is not barred.
Whether the County of Orange Board of Ethics is a "Person" under 42 U.S.C. § 1983
The County argues, relying only upon a very general reference to Monell v. Dep't of Social Serv. of New York et al., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (reversing precedent to hold that municipalities can be liable under § 1983 for official policy or custom that violates the constitution), that there is no basis to conclude that the County Board of Ethics is a "person" liable to suit under § 1983. Employing an extremely inappropriate analogy, Umhey argues that refusing to cast responsibility upon the "human agents who chose, with great finality, to carry out that policy with a vengeance against Mrs. Umhey" (a.k.a. the Board), would be "akin to saying that the German High Command during World War II was responsible for the monstrous human trespasses committed during the Holocaust, but the officers who carried out that policy were not." (Pl. Br. p. 11). In addition to being semantic overkill, the analogy does not work logically, as plaintiff has not named any individual officers or Board members as responsible parties in her complaint. She has merely named a collective entity, the Orange County Board of Ethics. We fail to see how the Board differs from the County itself in any meaningful way.
The Orange County Board of Ethics was created under authority of N.Y. MUN. CORP. L. Art. 18, § 808 (McKinney 1997), which permits counties and other municipalities to create and fund Boards of Ethics. When faced with a similar question regarding the amenability to suit of local police departments, "the numerous courts that have considered the question of whether a municipal police department is a proper defendant in a § 1983 action have unanimously reached the conclusion that it is not." PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808, 825 (D.N.J. 1993), (collecting cases, including Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) (While the City and County of Denver will remain as defendants, the 'City of Denver Police Department' is not a separate suable entity, and the complaint will be dismissed as to it."), opinion modified on denial of rehearing, 778 F.2d 553 (prosecutor should have been found absolutely immune), cert. granted, judgment vacated sub nom, Tyus v. Martinez, 475 U.S. 1138, 90 L. Ed. 2d 333, 106 S. Ct. 1787 (1986) (court directed to consider mootness)); Johnson v. City of Erie, Pa., 834 F. Supp. 873, 879 (W.D.Pa. 1993) (City police department is merely subunit through which city fulfills its policing functions); but see, e.g., Feerick v. Sudolnik, 816 F. Supp. 879, 887 (S.D.N.Y.) (where city itself was not a party, and without discussion of what types of defendants are separate entities capable of being sued, the court found the NYPD and IAD (Internal Affairs Department) to be policymakers and thus proper defendants), aff'd, 2 F.3d 403 (2d Cir. 1993) (table).
We agree with the reasoning of the New Jersey District court and find that the Board of Ethics is not an entity separate from the County itself that is capable of being sued. It is merely a subunit of the County. Thus, where the County itself has already been named as a defendant, the Board's presence in the suit is unnecessary. We therefore grant the County's motion to have the Board of Ethics stricken as defendants in this action.
Since we find that Umhey's current action is not barred by res judicata, to the extent that the County seeks dismissal of this action on that ground, we deny the County's motion for summary judgment. However, to the extent that the County requests that the Orange County Board of Ethics be dismissed, we grant their motion finding that they are not a separate legal entity capable of being sued under § 1983, but are merely a subunit of the County of Orange.
March 27, 1997
White Plains, NY
William C. Conner
Senior United States District Judge