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FOX v. DORAN

August 4, 1997

HUGH FOX, JR., Plaintiff, against ARTHUR J. DORAN, individually and in his capacity as Chief Judge, City Court of Yonkers, New York, FRANK McGOVERN, individually and in his official capacity as Director of the Parking Violations Bureau of the City of Yonkers, THOMAS DUGAN, individually and officially as President of the Yonkers Municipal Civil Service Commission, THE CITY OF YONKERS, N.Y., and EMPIRE MUNICIPAL SERVICES, INC., Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Hugh Fox, Jr. brings this action pursuant to 42 U.S.C. § 1983 against defendants Arthur Doran, Chief Judge of the Yonkers Civil Court, Thomas Dugan, President of the City of Yonkers Municipal Civil Service Commission, Frank McGovern, Director of the Parking Violations Bureau ("PVB") for the City of Yonkers, and Empire Municipal Services, Inc. ("Empire"), a private collection agency. Fox alleges, inter alia, that defendants, in violation of his First Amendment rights, terminated his employment as Deputy City Marshal for the City of Yonkers in retaliation for having reported an alleged ticket fixing scheme and for providing information to the plaintiff in an unrelated case before this Court that involved allegations of corruption in the City of Yonkers Police Department. Defendants Doran, McGovern, and the City of Yonkers now move for summary judgment, pursuant to Fed. R. Civ. P. 56. For the reasons stated below, their motion is granted. *fn1"

 BACKGROUND

 On a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). The following facts are construed accordingly.

 Hugh Fox is currently a full-time firefighter in the City of Yonkers, a position which he has maintained since 1979. On December 18, 1991, Fox was appointed a deputy city marshal for the City of Yonkers. After that appointment, Empire, a private collection agency, and Fox entered into an oral agreement, pursuant to which Fox was responsible for collecting on delinquent parking tickets. Fox, in turn, received a fee -- ten dollars plus a certain percentage of the judgment -- for each execution.

 In connection with his work as a deputy city marshal, Fox employed his own staff whose salaries he paid and upon which he paid taxes. He rented his own office property and maintained bank accounts to run the Marshal operation. In addition, he established his own work hours and was not a salaried employee of Yonkers or Empire. He entered into his own collection agreements with Empire. During Fox's employment as deputy marshal, Empire forwarded 8000 executions for judgments obtained by the City against parking ticket scofflaws. Pursuant to N.Y.C.P.L.R. § 8011(b)(1), sheriffs, including city marshals, are entitled to charge $ 10 payable in advance for each execution against property.

 Fox alleges that after his appointment as a deputy city marshal, he was informed that McGovern, Doran, and Empire had engaged in a traffic ticket fixing scheme to benefit politically connected individuals in the City of Yonkers. Fox claims that he refused to participate in the scheme and expressed to McGovern that he believed the scheme to be unlawful. Fox also asserts that he provided information to the plaintiff in Rubeo v. Olsen, 94 Civ. 8445 (BDP), an unrelated case tried to this Court which involved, inter alia, an alleged conspiracy to "rig" a hearing before the Yonkers Civil Service Commission.

 On November 30, 1994, Doran advised plaintiff in writing that his term as deputy city marshal would not be extended beyond December 31, 1994. Deputy marshals, like Fox, are appointed by the senior judge of the City Court of Yonkers, here Doran, and serve at "the pleasure of the senior judge. . . [who] may suspend . . . [a] deputy marshal . . . for such other cause as he may deem reasonable or just." 1975 N.Y. Laws ch. 309, § 27.

 Fox contends that "in connection with his termination," defendants "falsely and publicly announced to the public and media that [he] had . . . intentionally and/or illegally overcharged persons in connection with executions" and "published stigmatizing notices in the local press and made derogatory statements on local cable network news" regarding his professional activities as deputy city marshal. Fox Aff. at PP 14, 15. Plaintiff, while failing to identify any specific statements in support of that allegation, adverts to an article published in a local newspaper in which Doran described Fox's collection tactics as "too aggressive" and stated that "recent collection tactics were 'questionable.'" Doran was further quoted as stating that "[Fox] made good-faith mistakes. They could be turned out to be very large mistakes . . . awful mistakes. I like Clint Eastwood but I don't want him working as a Marshal." In that same article, McGovern was attributed as stating that Fox had billed $ 170,000 in personal fees and unearned mileage. Beyond these statements and plaintiff's conclusory allegations, the Court's review of the record reveals no evidence that Doran or McGovern announced that those overcharges were "intentionally or illegally" made.

 Fox contends that as a result of his objections to the alleged ticket fixing scheme and his involvement in the Rubeo case, the defendants terminated him from his position as deputy city marshal in violation of his First Amendment right to free speech. He further alleges that defendants' statements to the public and media, violating due process. In addition, Fox asserts claims against defendants for breach of contract and for the violation of his free speech rights under Article I of the New York State Constitution.

 Defendants Doran and McGovern move for summary judgement on the ground that they are qualifiedly immune from liability and, alternatively, that Fox failed to state a claim for deprivation of a liberty right without due process. The City of Yonkers also moves for summary judgment on the ground that no genuine issue of material fact exists as to its liability under 42 U.S.C. § 1983.

 DISCUSSION

 A. Qualified ...


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