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VERRI v. NANNA

September 16, 1998

THOMAS P. VERRI, Plaintiff, against FRANK NANNA, individually and as Chief of Police of the Village of Elmsford, STEPHEN WOEHRLE, individually and in his capacity as Sergeant in the Village of Elmsford Police Department, STEVEN FANELLI, individually and in his capacity as Sergeant, ARTHUR DeANGELIS, individually and as Mayor/Police Commissioner, ARMAND D'AMOUR, individually and as Police Commissioner, MANUEL RIBERIO, individually and as Police Commissioner, ANGELA KORNIZCKY, individually and as Police Commissioner, ROBERT WILLIAMS, individually and as Police Commissioner, the BOARD OF POLICE COMMISSIONERS OF THE VILLAGE OF ELMSFORD, and the THE VILLAGE OF ELMSFORD, New York, Defendants. THOMAS P. VERRI, Plaintiff, - against - FRANK NANNA, Individually, the BOARD OF POLICE COMMISSIONERS OF THE VILLAGE OF ELMSFORD, N.Y. and THE VILLAGE OF ELMSFORD, New York, Defendants.

William C. Conner, Senior United States District Court Judge.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

Conner, Senior D.J.

 The motions presently before the Court pertain to the second and fourth of four successive civil rights suits brought by plaintiff Thomas Verri, formerly an Elmsford police officer, against defendants Frank Nanna, Chief of Police of the Village of Elmsford; Sergeants Stephen Woehrle and Steven Fanelli; the Village of Elmsford Board of Police Commissioners (the "Board"), Mayor and Police Commissioner Arthur DeAngello and Commissioners Armand D'Amour, Manuel Riberio, Angela Kornizcky and Robert Williams, and the Village of Elmsford (the "Village," collectively, the "Village defendants"), alleging violations of the First, Fourth and Fourteenth Amendments of the United States Constitution, Article I, §§ 6, 8 and 12 of the New York State Constitution and § 15 of the New York Civil Rights Law. *fn1" Defendants moved for summary judgment in Verri I, which was granted on August 1, 1997. See Verri v. Nanna, 972 F. Supp. 773, 803-04 (S.D.N.Y. 1997). The parties now move for partial summary judgment in Verri II, 96 Civ. 3158 (WCC), on Claims 1 (c) and 3, and in Verri IV, 98 Civ. 0477 (WCC), on Claims 1, 2, 3 and 5 to the extent that those claims allege a violation of the Due Process Clause of the Fourteenth Amendment. *fn2"

 Background

 Plaintiff, formerly an officer of the Village of Elmsford Police Department (the "Department"), was discharged from service on April 7, 1997 after having been found by the Village defendants to have violated various Department orders and regulations. Prior to taking disciplinary action against the plaintiff, at the request of the Department and pursuant to New York Civil Service Law § 75, *fn3" the Board held a series of hearings in March of 1996 and 1997, which is in part the subject of Verri II and IV. In these actions, plaintiff alleges that defendants Nanna, Woehrle and Fanelli retaliated against him, in violation of his right to free speech under the First Amendment, Article I, § 8 of the New York Constitution and § 15 of the New York State Civil Rights Law; protection against unlawful seizure and retention of property under the Fourth Amendment and Article I, § 12 of the New York State Constitution; and due process of law and equal protection under the Fourteenth Amendment and Article I, § 6 of the New York State Constitution, for his reporting of alleged violations of departmental procedures and for having filed Verri I, 95 Civ. 3163 (WCC) and Verri III, 97 Civ. 0557 (WCC), by "staging a series of events calculated to set plaintiff up on trivial purported charges of insubordination . . . with a view towards instituting disciplinary charges against him and impairing his career in law enforcement." Plaintiff also claims that defendants violated his right to due process of law by suspending and terminating his employment "without any written decision, rationale, evaluation of the evidence [raised at the hearings or], findings of fact or credibility," and by failing to provide him with an impartial tribunal in violation of the Due Process Clause of the Fourteenth Amendment. Finally, plaintiff claims that by failing to discipline other officers who engaged in violations similar to those alleged against plaintiff, defendants selectively prosecuted plaintiff in violation of the Equal Protection Clause of the Fourteenth Amendment.

 Plaintiff was first notified that charges had been brought against him on December 18, 1995, when he received a letter from defendant Nanna. See Pl.'s Ex. 2, Verri II. The letter was in the form of a "deficiency notice," that stated that plaintiff was being charged with three counts of "insubordination." Id. The letter described the basis for each count, providing plaintiff with the date, time and place, and the names of any witnesses, as well as citations of the pertinent regulations. See id. The letter also informed plaintiff that he would be suspended with pay until the Board conducted a hearing on the charges. Id. The Board held a hearing on March 16, 1996, at which time plaintiff was represented by counsel. On March 18, 1996, plaintiff was "found . . . guilty as charged," pursuant to § 18 of chapter 306 of the unconsolidated laws of the State of New York, and suspended for twenty (20) days without pay, beginning March 29, 1996. See Pl.'s Ex. 4, Verri II. Plaintiff was informed of his suspension in writing on March 18, 1996. See id.

 Plaintiff then returned to work in April, 1996, and continued to perform his previously assigned duties. On or around December 2, 1996, plaintiff was served with a notice of "charges and specifications of misconduct and/or incompetence," signed by defendant Nanna. The charges alleged that plaintiff had "slept while on duty" on five separate occasions, in violation of § 3.19.1 of the Rules, Regulations and Procedures of the Department, and had taken "more than the allocated meal period" for police officers on three separate occasions, in violation of General Order 95-05 and Department memoranda dated May 20, 1994 and May 29, 1991. Pl.'s Ex. 1, Verri IV. The notice provided that plaintiff would be given five (5) days to respond to the charges and a hearing before the Board, where plaintiff would be allowed representation by an attorney and the opportunity to "present witnesses, and other proof . . . in [his] defense." Id. The notice further provided that "if found guilty of the charges and specifications," plaintiff could be "dismissed from service," "reprimanded," or suspended without pay for a period of twenty (20) days. Id.

 A hearing was held before the Board on March 24, 1997, at which time the Village Attorney presented sworn testimony, documentary evidence and videotapes in support of the charges against plaintiff. See Pl.'s Ex. 2, Verri IV; Def. Nanna's Rule 56.1 Stmt. at P 2. While plaintiff cross-examined the Village's witnesses, he did not present any evidence or call any witnesses of his own. That same day, the Board sustained 22 of the 27 charges against plaintiff, pursuant to § 5711-q of the unconsolidated laws of the State of New York. See Pl.'s Ex. 3, Verri IV. Its decision was set forth on a "findings sheet," which provided the date, time and place of the alleged violations, the vote of each Board member and a tally of the votes. See id. The hearing was transcribed and produced 559 pages of transcript. See Def. Nanna's Ex. 1. On April 7, 1997, the Board voted to terminate plaintiff's employment. Plaintiff received notification of the termination in writing on April 8, 1997. See Pl.'s Ex. 4, Verri IV.

 On March 17, 1998, plaintiff moved for a partial summary judgment in actions II and IV, ruling that the manner in which he was prosecuted, suspended and terminated by defendants violated his right to free speech, equal protection and due process under the First, Fourth and Fourteenth Amendments. In July 1998, at the request of plaintiff's counsel, the Court agreed to consider on an expedited basis whether plaintiff's suspension and termination "without any written decision, rationale, evaluation of the evidence, findings of fact or credibility" violated his right to due process. Accordingly, all defendants responded to plaintiff's motion, and defendant Nanna cross-moved for a partial summary judgment dismissing each of plaintiffs' due process claims, with respect to him. On July 24, 1998, by summary order, the Court denied plaintiff's motion, to the extent that it had been reviewed, and informed the parties that it would explain the reason for its decision later, which it does in the present opinion. The Court, however, declined to consider defendant Nanna's motion because plaintiff had not yet responded to it.

 On August 7, 1998, by Notice of Motion, the Village defendants joined in defendant Nanna's cross-motion. On August 10, 1998, defendants Woehrle and Fanelli cross-moved for a partial summary judgment, ruling that they had not violated defendant's due process rights. *fn4"

 The parties having fully briefed the due process issues, the Court now considers the balance of the outstanding motions and explains the basis for its July 24th Order. For the reasons that follow, the Court denies plaintiff's motion for a partial summary judgment ruling that his due process rights were violated by defendants and grants defendants' cross-motions.

 Discussion

 Plaintiff brings his due process claims under § 1983. Accordingly, plaintiff must allege that "a person or persons acting under color of state law deprived [him] of rights, privileges, or immunities secured by the constitution or laws of the United States." McDarby v. Dinkins, 907 F.2d 1334, 1336 (2d Cir. 1990) (citing Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981)). Plaintiff claims that defendants, acting under color of state law, deprived him of his right to continued employment. Property interests, such as this, are not created by the Constitution. Rather, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The New York Civil Service Law clearly creates a property interest in continued public employment. N.Y. Civ. Serv. Law § 75; Marino v. Ameruso, 837 F.2d 45, 46 (2d Cir. 1988).

 "The right to due process [however] 'is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974)) (alteration in original). "The fundamental requisite" of this right "is the opportunity to be heard," Grannis v. Ordean, 234 U.S. 385, 394, 58 L. Ed. 1363, 34 S. Ct. 779 (1914), "at a meaningful time and in a meaningful manner," Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965). "In the present context, this would require timely and adequate notice and 'an effective opportunity to defend by confronting any adverse witnesses and by presenting . . . arguments and evidence orally.'" Burtnieks v. City of New York, 716 F.2d 982, 986 (2d Cir. 1983) (quoting Goldberg v. Kelly, 397 U.S. 254, 268, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970)); cf. Loudermill, 470 U.S. at 545-46 (tenured public servant "is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side ...


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