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March 28, 1997

ANTHONY SCHEMBRI, Commissioner New York City Department of Correction, LAURA RIGBY, Deputy Commissioner, Investigations and Management Services, Department of Correction, NEW YORK CITY DEPARTMENT OF CORRECTION and THE CITY OF NEW YORK, Defendants. GEORGE MUENCH, DAVID RUIZ, and FRANCES PARKS, Plaintiffs, -v- ANTHONY SCHEMBRI, as Commissioner, New York City Department of Correction, RICHARD PAGAN, as Director of Investigations, New York City Department of Correction, ERIC M. TAYLOR, as Chief of Department, New York City Department of Correction, THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS, Defendants.

The opinion of the court was delivered by: COTE

 DENISE COTE, District Judge:


 Plaintiffs Susan Soto ("Soto"), Gilbert Acosta ("Acosta"), Frances Parks ("Parks"), David Ruiz ("Ruiz"), and George Muench ("Muench") are corrections officers for New York City's Department of Corrections ("DOC"). All five plaintiffs worked for the 1994 Pataki Election Campaign ("Pataki Campaign") from September 1994 until and including election day, November 8, 1994. Plaintiffs allege that defendants transferred the plaintiffs to different worksites because the plaintiffs worked for the Pataki Campaign. Plaintiffs filed this action against various New York City officials, DOC and the City itself. The individuals named are Anthony Schembri ("Schembri"), Commissioner of DOC, Laura Rigby ("Rigby"), a DOC Deputy Commissioner, Eric Taylor ("Taylor"), Chief of the Department of Corrections, and Richard Pagan ("Pagan"), the Director of Investigations at DOC.

 The facts recited herein are undisputed unless otherwise noted. In November 1994, plaintiffs Soto and Parks were working in the administration office of the Anna M. Kross Correctional Center ("AMKC"), and plaintiffs Muench, Acosta and Ruiz were working in the personnel office at AMKC. The AMKC is a facility at Rikers Island, a New York City jail. After George Pataki was elected governor on November 8, 1994, the Investigation and Management Services Division of DOC initiated an investigation to determine the truth of an allegation that two DOC corrections officers had used their positions to organize up to six hundred corrections officers to assist in the Pataki Campaign. Rigby, a Deputy Commissioner for DOC's Investigations and Management Services Division, supervised and led the investigation. In the course of her regular employment, Rigby reported directly to Schembri on virtually all matters. For this investigation, however, she reported to Robert Daly ("Daly"), the First Deputy Commission of DOC, because Schembri had recused himself from any involvement with the investigation. The investigation inquired into the allegation that the officers were allowed to use their regular working hours to assist the campaign and then work overtime to complete their regular duties, receiving additional pay for that overtime. The investigation team identified Captain Anthony Serra and Assistant Deputy Warden David Schoenfield -- the supervisors in charge of the administration and personnel offices at AMKC -- as the individuals who might have organized the scheme. The investigation team also inquired into the involvement of other people working in the administration and personnel offices, including plaintiffs Parks and Muench.

 Defendants contend that documents relevant to the investigation that were maintained in the personnel and administration offices were being destroyed. Plaintiffs assert that no documents were destroyed. As a result of their suspicions of document destruction, investigators searched the personnel office to secure as many relevant documents as possible. Plaintiffs assert that the investigators searched their personal work spaces and confiscated Rolodexes and a photograph of Soto with Governor Pataki. Defendants do not address this allegation. It is undisputed that the investigators took time cards, requests for emergency days off, personnel records and requests for transfers.

 On November 30, 1994, Acosta was told to report to the Investigative Division to be interviewed. The volition of his appearance is disputed. Defendants maintain that the Investigative Division had been informed that Acosta wanted to provide information regarding the allegations that Captain Serra misused funds. Plaintiffs counter that Acosta was ordered to appear. It is undisputed that Acosta provided no information in the interview. Defendants contend that the Investigative Division was concerned that Acosta was pressured into saying nothing, so in an attempt to keep him from tainting others who might otherwise cooperate, Acosta was transferred on December 1, 1994, to the Correctional Facility for Men ("CIFM"), another Rikers Island facility. Plaintiffs assert that the investigative team was angered that he provided no information, and so transferred Acosta in retaliation for working on the Pataki Campaign and then not providing information to the investigation.

 On December 12, 1994, plaintiffs Soto, Muench, Parks and Ruiz were transferred to different worksites pending the conclusion of the investigation. Ruiz was transferred to CIFM, like Acosta. Soto was transferred to the Otis Bantum Correction Center ("OBCC") and was not given a steady tour or post, but rather rotates in different positions and works different hours which, she alleges, hurts her child care arrangements and means she cannot spend regular time with her children. Nothing in the record indicates the facility to which Parks and Muench were transferred. Six other corrections officers who also worked in the administration and personnel offices and had worked on the Pataki Campaign were not transferred.

 The parties dispute the motivation behind the transfers. Defendants contend that they were unable to obtain all the information they needed from the personnel and administrative offices and a search of the computer at the personnel office showed that computer files had been destroyed. Plaintiffs dispute that computer files were destroyed. The investigative team wanted everyone in the personnel office to be transferred to protect the integrity of the investigation. Plaintiffs maintain that the motive for the transfer was to retaliate for plaintiffs' work on the Pataki Campaign, and not to preserve the integrity of the investigation.

 In her deposition, Rigby described the decision process for determining who should be transferred. In addition to protecting the investigation, Rigby testified that the transfers occurred because there was a new deputy warden in the facility and he wanted to change the staff in the personnel office. She stated that transfers often occur when senior management changes because the new manager wants to have staff that he or she knows. Rigby stated that a number of corrections officers were transferred out of the personnel office for this purpose, and that those people included some of the plaintiffs. The warden and the deputy warden determined who, from their point of view, could be most readily replaced and therefore should be the first to be transferred. The list that came out of that discussion was shared with Daly. Daly authorized the transfer of the plaintiffs, based on the recommendation of the wardens that had been forwarded by Rigby. Rigby testified that apart from Acosta, she did not have any input into which specific individuals should be transferred. Although she does not say so explicitly, the inference is that she recommended that Acosta be transferred and the other four plaintiffs were selected by the warden and deputy warden as officers that should be transferred. Other than a memorandum executing the transfer, plaintiffs do not provide any support for their allegation that Rigby identified which individuals, apart from Acosta, should be transferred.

 In their final report, the investigative team concluded that no corrections officers were threatened or coerced into working on the Pataki Campaign. The investigative team did, however, charge several corrections officers with violating time and leave regulations when they picked up and dropped off cars they rented to work on the Pataki Campaign. Plaintiff Muench was charged with misusing departmental resources on election day. Muench pled guilty to these charges and was disciplined with a loss of two vacation days. The investigative team also filed charges against five other officers for violating departmental regulations when renting cars to use on the Pataki Campaign. These five officers entered into plea agreements for lesser charges.

 Plaintiffs Soto and Acosta filed an action on January 20, 1995, pursuant to Sections 1983 and 1985 of Title 42, United States Code, alleging that defendants conspired to retaliate against them for their exercise of their First Amendment rights. Plaintiffs Muench, Parks and Ruiz filed an action on January 25, 1995, alleging the same violations. At the request of the parties, this Court consolidated the cases on August 2, 1996. All plaintiffs seek injunctive and declaratory relief and monetary damages.


 Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. In making this judgment, the burden is on the moving party, and all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has asserted facts which demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed. R. Civ. P.; accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

 The Court may dismiss an action pursuant to Rule 12(b)(6), Fed. R. Civ. P., only when a plaintiff "can prove no set of facts in support of [his] claim that would entitle [him] to relief." Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994). In reviewing a motion to dismiss, the court must accept as true all allegations in the Complaint. Annis v. County of Westchester, 36 F.3d 251, 253 (2d Cir. 1994). Only if, assuming all facts as true, plaintiff still fails to plead the basic elements of a cause of action can the Court dismiss the claim.


 A. Individual Versus Official Capacity

 As an initial matter, this Court must determine whether the Complaints are filed against the named individuals in their official or individual capacity, or both. The caption in the Muench Complaint clearly indicates that the individuals have been sued in their official capacity. It is unclear from the caption in the Soto Complaint under which capacity plaintiffs are suing the named individuals. *fn1" The body of the Complaint filed by Soto and Acosta, however, refers to the individual defendants "acting in their official capacities as employees" of the City and DOC. The Supreme Court has held that such ...

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