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May 20, 1998

GERALD MISHK, Plaintiff, against JOSEPH DESTEFANO, individually, MARLENE BROOKS, individually, JOHN ZAMES, individually, AMSEL MARKS, individually, LOUIS OGDEN, individually, and the CITY OF MIDDLETOWN, New York, Defendants.

The opinion of the court was delivered by: PARKER




 Plaintiff Gerald Mishk, a member of the City of Middletown Police Department, commenced this action pursuant to 42 U.S.C. §§ 1983 and 1985, alleging that the defendants violated his First Amendment rights by retaliating against him on the basis of his speech. *fn1" Defendant DeStefano is the mayor of the City of Middletown (the "City") and in such capacity served as chairman of the Police Commission, which, among other things, determines promotions and transfers of personnel. Defendants Brooks, Zames, and Marks were the other members of the Police Commission. Defendant Ogden become the City's Chief of Police in 1994, and prior to that had been a member of the Department.

 The defendants have moved for summary judgment, and the individual defendants have also asserted the affirmative defense of qualified immunity. For the reasons that follow, the defendants' motion is granted.


 Two clusters of events, spanning nearly a decade, form the crux of plaintiff's claims. In 1987, plaintiff was directed to make a recommendation regarding the potential hiring by the City's Police Department of a black woman, Yvonne Warner, who had been recruited in part to quell criticisms of the Department's hiring policies. After conducting a background check, plaintiff recommended against Warner's appointment, primarily because he believed that she was a substance abuser. Plaintiff suspected that Warner had improperly used her position as an undercover investigator for the district attorney's office to gain access to illicit drugs. Despite plaintiff's recommendation, City officials hired Warner, who subsequently resigned amidst rumors of substance abuse. Warner then filed charges of race and sex discrimination against the City, which were investigated by the City's Police Commission and the State Police Bias Unit. According to the plaintiff, these charges and the ensuing investigation produced a great deal of negative publicity and embarrassment for the City and the Police Commission.

 In 1987 Mishk also agitated for the formation of a Narcotics Unit to curtail the expansion of narcotics use within the City. In spite of political resistance to acknowledging the prevalence of illicit drugs within the City, according to plaintiff, City officials eventually agreed to form a Narcotics Unit as plaintiff had urged. In January 1988, Mishk was appointed to the Unit. In March 1988, Mishk was promoted to Detective and transferred to the Criminal Investigations Unit. Five months later, he was transferred back to the Narcotics Unit.

 Four years later, in 1992, Mishk claims that he was retaliated against for his recommendation regarding Warner and his efforts to establish a Narcotics Unit. Defendant Ogden was promoted to second-in-command of the Police Department and in that role assumed some responsibility over the Narcotics Unit. Plaintiff contends that Ogden began to undermine plaintiff's position and authority by micro-managing the Narcotics Unit. Mishk contends that the changes Ogden made to the Narcotics Unit, including a reduction in manpower and the implementation of different procedures, substantially impaired the unit's effectiveness. Mishk was then reassigned from the Narcotics Unit to the Criminal Investigations Unit, where he has remained. This transfer, according to plaintiff, was instigated by Ogden and ordered by the Police Commission. In the Criminal Investigations Unit, as in the Narcotics Unit, Mishk worked as a Detective.

 The second set of events occurred in 1996, when Mishk applied for a promotion to the position of Sergeant. Mishk was ranked third on the official civil service eligibility list and was interviewed for the position along with the two top ranked individuals, Detectives Kummer and Heppes. During his interview with the Police Commission, Mishk was questioned about his residency outside of the City and whether his non-resident status affected his job performance. Mishk responded that he did not live in the City because his vigilant enforcement of the drug laws had made him unpopular among drug dealers, who, in the past, had threatened him. Plaintiff also explained that the City was especially dangerous for him in light of the extent to which defendant Ogden had undermined the Narcotics Unit.

 Although the members of the Police Commission believed that each of the three candidates was competent and qualified, the Commissioners awarded Kummer the promotion in part based on his superior education and polished presentation during the interview. *fn2" Defendants DeStefano and Zames later indicated to Mishk that his statements in response to the residency question had harmed his candidacy and played a role in his not being awarded the promotion. Prior to the interview, DeStefano had advised Mishk that his chances of receiving the promotion looked good.


 A motion for summary judgment should only be granted 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 judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal ...

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