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CLAVIN v. POST

January 23, 1998

ROBERT CLAVIN, Plaintiff, against LINDA POST, individually, CARL HELSTROM, individually, FRANK PETTINE, individually, and the TOWN OF MONTGOMERY, New York, Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 Plaintiff Robert Clavin has asserted claims against defendants Linda Post, Carl Helstrom, and Frank Pettine (collectively, the "individual defendants"); and the Town of Montgomery, New York (the "Town"), pursuant to 42 U.S.C. §§ 1983 and 1985. Clavin, a former police officer employed by the Town, alleged violations of his Fourteenth Amendment due process rights and his First Amendment rights to freedom of speech and to petition the government for a redress of grievances.

 During the principal events giving rise to this suit, Linda Post was the Officer-in-Charge at the Town's police department, a position from which she supervised plaintiff. Carl Helstrom was the Town Supervisor and Frank Pettine was a Sergeant in the police department. Defendants have moved, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss the complaint. *fn1" Defendants also request that the Court exercise its discretion to award attorney's fees pursuant to 42 U.S.C. § 1988. *fn2" For the reasons that follow, the defendants' motion is granted. However, the Court declines to sanction plaintiff's counsel or to award attorney's fees.

 BACKGROUND

 In considering a motion to dismiss a complaint, the Court must accept as true the material allegations in the complaint and construe them in favor of the plaintiff. *fn3" Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Wolff v. City of New York Financial Sers. Agency, 939 F. Supp. 258, 263 (S.D.N.Y. 1996). The following facts have been construed accordingly.

 Plaintiff Robert Clavin was appointed a part-time police officer in the Town in June 1989, and became a full-time officer in August 1991. On August 10, 1995, Linda Post, as the Officer-in-Charge, filed disciplinary charges against Clavin containing 16 allegations of misconduct, incompetence, and insubordination. Clavin was then suspended without pay pending resolution of the charges. After Clavin filed an answer approximately one week later, amended charges were served on August 24, 1995 containing 17 allegations of misconduct. The charges alleged, among other things, that plaintiff shared confidential information with civilians not authorized to obtain such information, concealed the results of one of two Breathalyzer examinations performed on a driver, issued a ticket for a violation he did not observe, unreasonably detained several drivers and treated them inappropriately, misrepresented his hours worked, and made inappropriate statements to third parties about the Town's police department.

 In his responses to both the initial charges and the amended charges, Clavin contended that one of the charges arising from statements he made violated his constitutionally protected right to freedom of speech. Clavin also responded that the charges were "illegally instituted."

 The charges were heard by a Hearing Officer in November 1995, during a three day hearing at which Clavin was represented by counsel and had the opportunity to call and to cross-examine witnesses. Prior to the hearing, Clavin, in response to his Demand for a Bill of Particulars, was provided with a variety of materials in support of the charges. Specifically, Clavin was given, among other things, copies of the written statements of all of the individuals who had filed complaints against him, copies of notes taken by Post in connection with the conduct that formed the basis of the charges, and copies of statements or memoranda of other officers, including defendant Pettine, in support of the charges. At the hearing, the Town offered the testimony of 12 witnesses, both civilians and police officers, and introduced numerous documentary exhibits. Plaintiff testified in his own behalf, called one of his attorneys as a witness and introduced documentary evidence.

 The testimony presented during the hearing included evidence that Clavin had made comments to various individuals about problems he was having in the police department and had criticized defendant Post. Two of the charges of which Clavin was found guilty concerned statements Clavin made expressing dissatisfaction with defendant Post.

 The Hearing Officer, by decision dated November 29, 1995, found Clavin guilty of 13 of the charges (including those arising from statements Clavin had made) and recommended that his employment be terminated. By resolution of December 12, 1995, the Town Board, after reviewing the report and recommendation of the Hearing Officer and the record of the proceedings, adopted the findings of fact of the Hearing Officer and voted unanimously to terminate Clavin.

 Clavin challenged his termination in an Article 78 proceeding filed in Supreme Court, Orange County. Plaintiff's Article 78 petition claimed that both the adverse findings on various charges and the punishment imposed were arbitrary and capricious and constituted an abuse of the Town Board's discretion. Relatedly, Clavin contended that the findings of fact were not supported by substantial evidence and that the penalty of dismissal was too severe. By decision dated March 7, 1996, the court found that Clavin had received a fair hearing and transferred the balance of the case to the Appellate Division for a determination as to whether the Hearing Officer's findings were supported by substantial evidence. On April 14, 1997, the Appellate Division held that the findings of the Hearing Officer were supported by substantial evidence and that the penalty of dismissal was not disproportionate given the nature and number of the offenses committed by Clavin.

 Plaintiff filed his complaint in this action on October 16, 1997 and subsequently amended the complaint and substituted counsel. Plaintiff's amended complaint alleges that he was terminated in retaliation for his exercise of his First Amendment rights to freedom of speech and to petition government for a redress for grievances. Specifically, Clavin contends that his criticism of members of the police department and its operation prompted a series of retaliatory actions by the individual defendants, culminating in ...


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