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VERRI v. NANNA

August 1, 1997

THOMAS P. VERRI, Plaintiff, against FRANK NANNA, Individually and as Chief of Police of the Village of Elmsford, JOHN CARALYUS, Individually, and THE VILLAGE OF ELMSFORD, New York, Defendants.


The opinion of the court was delivered by: CONNER

 Conner, Senior D.J.

 This action is the first of three successive civil rights suits that plaintiff Thomas Verri, an Elmsford Police Officer, has brought against, inter alia, defendant Frank Nanna, Chief of Police of the Village of Elmsford, and the Village of Elmsford. Plaintiff originally brought fourteen separate claims, under 42 U.S.C. § 1983, the New York Civil Rights law and the New York Constitution, but he has since abandoned his second, third and eighth claims. *fn1" Defendants have moved for summary judgment on all the remaining claims. For the reasons set forth below, their motion is granted.

 BACKGROUND

 Plaintiff has worked for the Elmsford Police Department since 1990. Defendant Nanna, a twenty-seven year veteran of the Elmsford Police Department, has been Chief since 1990. In approximately January of 1993, Verri began keeping a "personal diary/journal" in which he made roughly 17 separate entries. (Compl. P 7; Exh. 2.) In his complaint he alleged that his "then estranged wife who was acting in concert with Nanna" delivered the diary to Nanna. (Compl. P 8.) Plaintiff later testified, however, that he had "reason to believe now" that his ex-business partner, Dominick Colasuonno, gave the book to Lt. Rescigno, who gave it to Chief Nanna. (Verri Trans. at 220.) Lt. Rescigno and Dominick Colasuonno testified that Colasuonno gave Rescigno the book in February of 1995, (Rescigno Aff. P 2; Colasuonno Aff. P 2); Chief Nanna and Lt. Rescigno testified that Rescigno gave Nanna the book shortly thereafter. (Nanna Aff. P 4; Rescigno Aff. P 2). Plaintiff last recalls seeing the book in September of 1994 and argues that Chief Nanna had possession of it earlier than February of 1995. (Verri Trans. at 123.) After receiving the book, Nanna met with Verri and told him he had the book. However, he refused to return it immediately. (Nanna Aff. P5.) In explanation of the delay, Nanna states that he was concerned about Verri's "emotional problems," including his dislike of the supervisors in the department and his general unhappiness. Nanna testified that he was particularly concerned because as a police officer, Verri carried a weapon, and that he consequently gave the book to the police psychiatrist, Dr. Aryeh Klar, for evaluation. (Id.; Klar Aff. P 6.) After plaintiff filed suit in May of 1995, Nanna turned the book over to his attorney, who returned it to Verri.

 Verri's first and seventh claims allege that Nanna's possession of his personal diary and refusal to return it to him violated his Fourteenth Amendment and New York State due process rights. His fourth and ninth claims allege that Nanna retaliated against him because of the content of his diary in violation of the First Amendment and the New York State Constitution. He accuses Nanna of retaliating against him, both directly and indirectly, in various ways including allegedly: 1) requiring him to submit to a breathalyzer test after he was involved in an automobile accident while driving a police vehicle *fn2" ; 2) "repeatedly" ordering him to submit to drug testing; 3) following him and issuing false deficiency notices and; 4) skipping him for promotion. Verri's fourteenth claim alleges that Nanna and the Village placed deficiency notices in his file in violation of his right to free speech under the First Amendment and the New York State Constitution, and his right to due process under Section 5711-q of the Unconsolidated Laws of New York. Verri's fifth, sixth, and tenth through twelfth claims allege that the Elmsford police department has several policies limiting communications by police officers with the Village Legislative Board that violate the First Amendment, the New York Constitution and § 15 of the New York State Civil Rights Law.

 Defendants have moved for summary judgment on all counts, asserting: first, that Verri's federal constitutional rights were not violated; second, that, in the alternative, Chief Nanna is entitled to qualified immunity; and third, that the Village of Elmsford is not liable because the actions Verri complains of were not the result of a policy or practice of Elmsford. Although defendants request that this Court dismiss or grant summary judgment against all of plaintiff's claims, their motion addresses only Verri's federal constitutional claims. Apparently, they hope to win summary judgment on all of the federal claims and thus eliminate the basis for supplemental jurisdiction over Verri's state claims. We discuss defendants' challenge to Verri's federal constitutional claims below.

 DISCUSSION

 I. Summary Judgment Standard and the Qualified Immunity Defense

 Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." FED.R.CIV.P. 56(d). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).

 The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), "but must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). Summary judgment is usually unwarranted when the defendant's state of mind is at issue. Clements v. Nassau County, 835 F.2d 1000, 1005 (2d Cir. 1987). In order to raise a fact issue regarding state of mind, however, there must be solid circumstantial evidence to prove plaintiff's case. Id. "Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

 In addition to satisfying the Rule 56 evidentiary standards, plaintiff must also overcome the defense of qualified immunity in order to defeat defendant Nanna's motion for summary judgment. Qualified immunity protects government officials from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Hurlman v. Rice, 927 F.2d 74, 78 (2d Cir. 1991). The Second Circuit has stated that when a defense of qualified immunity is raised in the context of a retaliatory claim, a court must decide first whether a clearly established right is at stake, and second, whether the conduct was objectively reasonable. Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995). Conduct that is objectively reasonable does not constitute a constitutional violation merely upon the allegation of an unconstitutional motive. The Court elaborated that:

 
Upon a motion for summary judgment asserting a qualified immunity defense in an action where an official's conduct is objectively reasonable but an unconstitutional subjective intent is alleged, the plaintiff must proffer particularized evidence of direct or circumstantial facts, supporting the claim of an improper motive in order to avoid summary judgment. . . . In our view, the particularized evidence of improper motive may include expressions by the officials involved regarding their state of mind, circumstances suggesting in a substantial fashion that the plaintiff has been singled out, or the highly unusual nature of the actions taken.

 Id. (summary judgment granted where plaintiff made no allegations of particularized statements by state officials indicating a retaliatory motive).

 II. Verri's First and Fourth Amendment Retaliation Claims

 Verri's fourth claim alleges that Nanna improperly read his personal diary and retaliated against him in violation of the First and Fourth Amendments. "It is well established that a public employer cannot discharge or retaliate against an employee for the exercise of his or her First Amendment free speech right." Ezekwo v. New York City Health and Hosp. Corp., 940 F.2d 775, 780 (2d Cir.), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). However, "it has also been recognized that the government has a legitimate interest in regulating the speech of its employees that differs significantly from its interests in regulating the speech of people in general." Piesco v. City of New York, Dept. of Personnel, 933 F.2d 1149, 1155 (2d Cir.), cert. denied, 502 U.S. 921, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991). In Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Supreme Court attempted to strike a balance between these competing interests in holding that "the scope of a public employee's First Amendment rights must be determined by balancing the public employee's rights as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Piesco, 933 F.2d at 1155.

 To make out a prima facie case of retaliation in violation of the First Amendment, the employee must first establish that his speech can be "fairly characterized as a matter of public concern" and second "that the speech was at least a 'substantial' or 'motivating' factor" of the adverse action. Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir.) (citations omitted), cert. denied, 510 U.S. 1012, 126 L. Ed. 2d 569, 114 S. Ct. 604 (1993). The first element is a question of law, the second a question of fact. Id. If an employee does establish a prima facie case, a defendant can nonetheless avoid liability either by showing that it "would have made the same decision in the absence of the protected conduct," or "that the employee's conduct interfered with its effective and efficient fulfillment of its responsibilities to the public." 1 F.3d at 1329 (citations omitted); see also Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995), cert. denied, 133 L. Ed. 2d 114, 116 S. Ct. 173 (1995) (defendant need not show speech actually interfered with workings of office, but only that it reasonably threatened to do so). Defendants have challenged Verri's prima facie case on both grounds. First, they argue that the entries in his diary do not raise a matter of public concern. Second, they contend that even if the entries are considered a matter of public concern, plaintiff has not produced evidence that the writings were a substantial or motivating factor in any adverse action taken against him sufficient to defeat a motion for summary judgment. We agree with both arguments.

 A. Whether Verri's Diary Addressed Matters of Public Concern

 The Supreme Court has held that "whether an employee's speech addresses a matter of public concern must be determined from the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-148, 75 L. Ed. 2d 708, 103 S. Ct. 1684. (1983). It explained that "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of only personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Id. at 147. As the Supreme Court explained in Connick, the Constitution does not "require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the state." Connick, 461 U.S. at 147-149. Thus, "a writing, not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest." Id. at 148 (speech revealing "that a single employee is upset with the status quo," did not raise an issue of public concern). Where an employee's speech is motivated by private personal concerns, Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994), or involves matters of internal department affairs, the fact that the speech touches on matters of public concern will not render it protected. Hom v. Squires, 81 F.3d 969, 974 (10th Cir. 1996); Knowlton v. Greenwood Indep. School Dist., 957 F.2d 1172, 1178 (5th Cir. 1992) (while information conveyed that is "of relevance to the public's evaluation of the performance of governmental agencies" is a matter of public concern, an employee cannot transform a personal conflict into an issue of public concern simply by arguing that individual concerns might have been of interest to the public under different circumstances).

 The parties have cited only one reported case involving writings in a personal journal. There, the Fifth Circuit reversed the district court and found that the personal journal of the plaintiff, a University of Texas police officer, could not support his First Amendment claim. Among other things, the journal criticized plaintiff's supervisor for his policy of mandatory overtime, the lack of supervisory training, and the failure to conduct exit interviews with employees who resigned. Terrell v. Univ. of Texas Sys. Police, 792 F.2d 1360, 1361-62 (5th Cir.), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 997, 107 S. Ct. 948 (1987). While it assumed, without deciding, "that an employee's personal notebook or diary can be considered First Amendment speech even though the contents come to light completely without the employee's knowledge or consent," it held that Connick barred Terrell's claims because he spoke not as a citizen upon matters of public concern, but as an employee upon matters of only personal interest. Id. In support of its finding, the court explained that plaintiff "made no effort to communicate the contents of the notebook to the public, and the evidence does not suggest that he would have any occasion to do so." 792 F.2d at 1363.

 Several other circuit courts have looked at the entirety of an employee's expression and the motivations of the speaker when determining whether his speech raised a matter of public concern. For example, where an employee complained that "internal politicking [sic], favoritism and clique deprivations" prevented his receiving training or promotion, the Tenth Circuit found that "given the entirety of [plaintiff's] letter, we are convinced his principal purpose in writing it was not to disclose 'malfeasance on the part of government officials in the conduct of their duties,' but instead to air his frustration at failing to have received a promotion." McEvoy v. Shoemaker, 882 F.2d 463, 466 (10th Cir. 1989), criticized by Azzaro v. County of Allegheny, 110 F.3d 968, 980 (3d Cir. 1997) (request by speaker that speech be kept confidential should not be controlling factor in Connick analysis). It explained that the court should focus on the "motive of the speaker" and determine whether the employee's "point" was to "bring wrongdoing to light or to raise other issues of public concern because they are issues of public concern," or to "further some purely private interest." Id., (citing Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987)); Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985).

 Moreover, the contents of the diary reveal that it was written for personal interest and motivations -- to express his feelings about his personal relationships and vent anger and frustration regarding what he considered to be his unfair treatment by a department of "scumbags" he "can't stand." The diary contains details of his relationship with his wife -- their meeting, his feelings toward her, etc. (See generally Exh. 3.) It also contains numerous complaints about his situation at the Elmsford Police Department. "This place is really the shit," he wrote on January 6, 1993. "What a waste of time, I have gotten nowhere on this job." Id. He complains that "I'm so sick of this place and all its bullshit, who [sic] can do what they want and get away with it while some of us can't even shit without someone commenting." (Id., 3/6/94.) Eighteen pages are apparently notes about "Neuro Linguistics Programming -- The study of how to use language to make changes"; these pages include lists of Verri's goals and achievements. It is the final section, entitled "Elmsford Zoo Log," that Verri claims discusses matters of public concern. That section opens with a picture of a penis with the names of Chief Nanna, Officer Weiss and Officer Fanelli written on it. There is also a picture of Chief Nanna pointing out his "poly Sears pants" and his "non-existent ass." Clearly such juvenile doodlings do not raise a matter of public concern, but merely express Verri's personal animus towards Nanna and several other members of the department.

 Although plaintiff characterizes the entries that follow the "Elmsford Zoo Log" page as reflecting his "thoughts regarding the maladministration of the department and the goings-on of the department," (Verri Trans. at 149), a closer inspection reveals that, when considered as an entirety, these entries do not raise matters of public concern but merely provide an outlet for personal or intra-departmental grievances. Although the relevant segment is somewhat lengthy, we believe it is helpful to our discussion to reproduce it. These entries are apparently part of what Verri calls the "Elmsford Zoo Log" and as best we could discern from the handwriting, are as follows:

 
3/2/94 8x4 SHIFT: PATROL CAR 36
 
SGT FANELLI TELLS ME TO BE MORE DESCRIPTIVE ON MY REPORTS, CONSIDERING HE CAN'T FORM SENTENCES, I FIND THIS AMUSING. HE SHOULD TALK TO WEISS ABOUT HIS REPORTS, MAYBE THE TWO OF THEM CAN GET A 5TH GRADER TO TUTOR THEM ON SENTENCE STRUCTURE AND SPELLING.
 
3/2
 
P.O. WEISS HAS A PROBLEM KEEPING ON HIS POST, I DON'T KNOW IF HE IS AWARE THE VILLAGE IS DIVIDED INTO TWO SECTORS. I KEEP SEEING HIM IN MY SECTOR, HE JUST DOES AS HE PLEASES. A [ILLEGIBLE] 18 CAME IN FROM PLEASANTVILLE, ROBBERY, P.O. WEISS THINKS ITS OK TO JUST GO UP AND PARK ON THE SPRAIN S/B, GUESS ITS A NEW PROCEDURE I DON'T KNOW ABOUT.
 
3/5/94 DESK OFFICER [?]
 
WOEHRLE 38 - GUMBS 37
 
I DISPATCHED THE FD AFTER 60 CONTROL'S REQUEST FOR A ROLL OVER ON 287 WESTBOUND WEST OF EXIT 1. I INSTRUCTED WOEHRLE GUMBS TO DISREG. THE WHISTLE. 5 MINS LATER WOEHRLE INFORMED ME HE WILL BE OUT AT THE SCENE ASSISTING S.P., NEXT THING YOU KNOW, GUMBS IS OUT THERE TOO, BUT HE IS SENIOR MAN AND ALSO CAN DO WHATEVER THE FUCK HE WANTS.
 
3/6/94 12x8 CAR 37
 
FANELLI PO WEISS 38
 
4/3/94
 
I CAME IN FOR MY 1ST 8x4 TODAY TO FIND OUT THAT CHRIS HAD LOCKED UP THE REV [ILLEGIBLE] AGEE 9 ELMSFORD LN AFTER A DISPUTE HE BROUGHT HIM IN IN CUFFS ALONG WITH SOME WOMAN, AND AFTER AN UPROAR ALL THE PARTIES WERE RELEASED AFTER SIGNING WAIVERS HE LEFT ALL THAT OUT OF HIS REPORT AND LEFT THE ALLEGED WEAPON (USED TO SMASH A CAR) A BROKEN SNOW SHOVEL, LEANING AGAINST THE LUNCH TABLE, NEEDLESS TO SAY WOEHRLE HAD A GOOD TIME BLOWING IT OUT OF PROPORTION BUT CHRIS IS NOT TO BLAME, THE REAL SHIT HERE IS NONE OTHER THAN - (YOU GUESSED IT) SGT D.H. FANELLI (DICK HEAD) HE DECIDED TO JUST GO HOME AT 2330 WHILE ALL THIS WAS GOING ON, THUS THE MESS. DO YOU THINK HE'LL GET IN ANY SHIT? NOOOOO! THE
 
FUCKING BASTARD
 
4/5 TUESDAY - DICKHEAD WEISS ME.
 
THE ASSHOLE WAS OUT IN 35 TODAY PLAYING CHIEF. I STOPPED 3 GUYS AT 2 PM ACTING SUSP. IN AN OLD BEAT UP CAR, TURNS OUT UNREG. SO IM DOING THE GUYS, OUT OF THE CAR, AND ALL FI CARDS THE WHOLE BIT, AND THE SCUMBAG WANTS TO KNOW WHERE MY HAT IS. CAN YOU FUCKING BELIEVE THIS? I JUST RID THE VILLAGE OF 3 POSS. BURGS OR WHAT EVER AND THE LOOSER [SIC] IS WORRIED ABOUT A HAT. IF HE ...

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