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April 21, 1998

GIL Q. ALVAREZ, Plaintiff, against THE CITY OF NEW YORK and THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, RUDOLPH GIULIANI, individually and in his capacity as Mayor of the City of New York, HOWARD SAFIR, Individually and in his capacity as Police Commissioner of the City of New York, Defendants.

The opinion of the court was delivered by: CHIN



 In this case, plaintiff Gil Q. Alvarez, a New York City police officer, contends that the Police Department of the City of New York (the "NYPD") and others retaliated against him because he refused to participate in a cover-up of police brutality and had previously filed a lawsuit accusing the NYPD and others of discrimination. By order to show cause, Alvarez seeks a temporary restraining order and preliminary injunction preventing the Internal Affairs Division ("Internal Affairs") of the NYPD from conducting an investigation into his alleged misuse of confidential NYPD information during the prior lawsuit.

 Alvarez's requests for a temporary restraining order and preliminary injunction are denied. First, Alvarez has failed to show that he would suffer irreparable harm if the NYPD were allowed to proceed with its Internal Affairs investigation. Second, Alvarez has not demonstrated that he is likely to succeed on his claim of retaliation, and indeed, he cannot be heard to complain because he invited the investigation to "clear" his name. Third, the claims are also likely to be substantially barred because they are based primarily on events that occurred before he settled the prior lawsuit and signed a general release. Finally, considerations of federalism and comity weigh heavily against the intervention by this Court in the pending inquiry. Under these circumstances, I hold that Alvarez has failed to demonstrate a basis for the extraordinary relief he now requests.

 Pursuant to Fed. R. Civ. P. 65, my findings of fact and conclusions of law follow.


 In October of 1996, Alvarez filed a Title VII action in which he alleged that the NYPD discriminated and retaliated against him because he had refused to submit negative performance evaluations of minority officers who had complained about discriminatory treatment and had spoken out about the wide use of racial slurs by police officers. The complaint did not assert any alleged cover-up of police brutality.

 During the course of discovery in the case, Assistant Corporation Counsel Jeffrey Weiss informed the Court by letter dated September 25, 1997 that the NYPD suspected Alvarez of improperly obtaining confidential NYPD records and using them to support his lawsuit. Weiss further advised that

the NYPD has opted at this time not to open up an official Internal Affairs investigation regarding plaintiff's suspected breach of office. Nevertheless, First Deputy Commissioner Patrick E. Kelleher, who has been apprised of these recent developments, intends to transfer plaintiff from his current assignment at the Department Advocate's Office to an appropriate assignment where he no longer will be provided access to highly confidential NYPD information. The NYPD must insure the integrity of its confidential information systems. Moreover, should plaintiff in the future improperly access or use confidential NYPD information for his personal purposes in this litigation or elsewhere, the NYPD will open up an investigation and if appropriate, pursue disciplinary proceedings.

 (Pl. Ex. D).

 After a pretrial conference on September 26, 1997, Jonathan N. Fuchs, Esq., Alvarez's attorney in the prior action, and Weiss had a conversation about Alvarez's purported use of the confidential information and the NYPD's intent to transfer him. Weiss claims that, during this conversation, Fuchs said in substance:

'Don't transfer my client. We would bring an order to show cause. Bring on an investigation. We welcome an investigation . . . as an opportunity to clear his name.'

 (4/14/98 Tr. at 22). Fuchs, for his part, does not outright deny making those statements, but states -- with much equivocation -- that he does not remember making them:

I don't believe I did. . . . I don't recall that that was part of my conversation. . . . I don't believe I would have done that, your Honor.

 (Id. at 21). I find that Fuchs told Weiss that Alvarez invited an investigation into his conduct as a way of clearing his name. *fn1"

 A few days later, on October 1, 1997, Internal Affairs opened an investigation into Alvarez's alleged misuse of confidential NYPD information. (See id. at 7). Shortly thereafter, Alvarez was transferred to the Civilian Complaint Review Board ("CCRB") Team where, in his capacity as Assistant Department Advocate, he investigated and prosecuted cases involving allegations of police brutality and misconduct. *fn2" Alvarez never brought on an order to show cause to enjoin the transfer.

 At some point in February of 1998, Fuchs had a conversation with Assistant Corporation Counsel Patricia Miller, who at various times participated in settlement discussions on behalf of defendants in the prior action. In his affidavit, Fuchs claims that "Miller advised [him] that there were no open internal affairs investigations at that time against plaintiff." (Fuchs Aff. P 4). At the conference on April 14, 1998, however, Fuchs backpeddled from this statement; instead, he claimed that Miller merely said that "the only negative thing on [Alvarez's Central Personnel Index] was an unsubstantiated Health Services investigation." (4/14/98 Tr. at 17). Fuchs states that he inferred from that statement that there were no open Internal Affairs investigations involving Alvarez. (Id.). Miller, on the other hand, denies ever representing the status of any investigations of Alvarez during settlement discussions. (Id. at 18-20). Indeed, she denies making any promises as to the state of ...

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