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May 21, 1998

MICHAEL F. CAHILL, JR., RICHARD G. MORSE, JR., and SALVATORE F. VALVO, Plaintiffs, against JAMES D. O'DONNELL, individually, JAMES W. McCORMACK, individually, M. NANCY POULIN, individually, ROBERT L. WELSH, individually, JAMES A. FITZGERALD, individually, JAMES McMAHON, individually, and GLENN VALLE, individually, Defendants.

The opinion of the court was delivered by: PARKER




 The plaintiffs commenced this action, pursuant to 42 U.S.C. §§ 1983 and 1985, claiming deprivation of their First Amendment rights of speech, association, *fn1" and to petition government. *fn2" The plaintiffs and the defendants are each current or former members of the New York State Police (the "State Police"). During the events giving rise to this action, the plaintiffs worked in the Internal Affairs Division ("Internal Affairs"), which is charged with investigating corruption, misconduct, and other matters within the State Police. Plaintiffs' central claim is that the defendants, some of whom were also members of Internal Affairs, retaliated against them for their opposition to, and investigation of, corruption within the State Police.

 The defendants have each moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) or for summary judgement under Fed. R. Civ. P. 56, *fn3" and have asserted the affirmative defense of qualified immunity. For the reasons that follow, the defendants' motions are granted in part and denied in part.


 A district court's function on a motion to dismiss under Fed. R. Civ. P. Rule 12(b)(6) is to assess the legal sufficiency of the complaint. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991). The Court's "consideration is limited to the factual allegations [of the complaint,] to documents attached to the complaint as exhibits or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Fruchter v. Sossel, No. 94 Civ. 8586 (LBS), 1996 WL 640896, *6 (S.D.N.Y. Nov. 4, 1996)(quoting Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

 The issue "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The complaint should not be dismissed unless it appears "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ricciuti v. NYC Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted)). Consequently, the Court accepts as true and construes favorably to the plaintiff the factual allegations in the complaint and supporting documentation. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Walker v New York, 974 F.2d 293, 298 (2d Cir. 1992); Wolff v. City of New York Financial Servs. Agency, 939 F. Supp. 258, 263 (S.D.N.Y. 1996). The following facts have been construed accordingly.

 This matter arises principally from two investigations in which the plaintiffs participated as members of Internal Affairs. The first investigation concerned an alleged cover-up by members of Troop K of the State Police of an attempted vehicular homicide in Peekskill, New York. The second investigation concerned allegations of excessive force and other misconduct by members of Troop D who responded to a tax protest at the Onondaga Nation American Indian Reservation. The plaintiffs allege that in retaliation for their participation in these two investigations, they were, among other things, punitively denied transfers, stripped of responsibilities, and falsely accused of civil rights violations and gender discrimination.

 Peekskill Hit-and-Run Incident

 In September 1994, defendant James McMahon, the Superintendent of the State Police, received an anonymous tip that certain Troopers assigned to Troop K had attempted to cover-up the fact that in a purported hit-and-run accident in Peekskill a brother of a Trooper had, in fact, attempted to kill another motorist. Members of Internal Affairs, the plaintiffs among them, were assigned to investigate the informant's allegations. In the course of the investigation, the district attorney's office secured a wire tap order to monitor the telephone conversations of Rory Knapp, the brother of the Trooper and the motorist suspected of the attempted homicide.

 By December 1994, the investigation had identified three members of the State Police likely to have committed criminal wrongdoing in connection with the alleged hit-and-run accident: Sergeant Robert Welsh (a defendant in this matter) and Peekskill Station Commander Thomas Cerrone and Trooper Robert Gregory (not named as defendants in this action). In January 1995, Cerrone was interviewed by the plaintiffs and an assistant district attorney. Cerrone admitted that the hit-and-run report had been falsified but refused to cooperate further, even after he was granted immunity from criminal prosecution.

 The propriety of the "interview" of Cerrone was disputed. While driving home, Cerrone was stopped and escorted to a hotel, where he was interviewed for several hours without counsel present. On February 23, 1995, Cerrone, with the support of the Policeman's Benevolent Association ("PBA"), of which defendant McCormack was the president, filed a lawsuit against seven members of Internal Affairs, including each of the plaintiffs, alleging that they had violated his constitutional rights by stopping and interrogating him without probable cause. Plaintiffs Cahill, Morse, and Valvo allege that the purpose of the lawsuit was to "chill" their opposition to and investigation of corruption within the State Police. In a further effort allegedly to chill the plaintiffs' investigation of corruption, defendant McMahon suggested during in-service training classes that certain defendants in the Cerrone suit, including the plaintiffs in this matter, might be indicted in connection with their interrogation of Cerrone. The PBA, under McCormack's direction, did not provide funding to the Cerrone defendants for the retention of counsel. In addition, several issues of the PBA newsletter contained references to the Cerrone litigation that were supportive of Cerrone and critical of the Internal Affairs members named as defendants in that suit.

 In April 1995, Welsh, Gregory, and Knapp were arrested and charged with crimes related to the alleged hit-and-run accident and the subsequent cover-up. None of the three was exonerated. Welsh pleaded guilty to criminal misconduct and agreed to retire from the State Police. Knapp pleaded guilty to criminal charges and received a one year jail sentence. Gregory pleaded guilty to administrative charges, and the criminal charges against him were dismissed.

 Some members of Internal Affairs urged that charges be filed against Cerrone as well. The District Attorney declined to do so, but administrative charges were filed against Cerrone. An administrative hearing was held in November 1996, at which twenty-six witnesses testified. The Hearing Board found Cerrone guilty of one charge and recommended minimal punishment involving censure, a ninety-day probation, and the loss of five vacation days. McMahon, as Superintendent of the State ...

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