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September 17, 1998

CITY OF JOHNSTOWN, New York; JAMES L. COOK, Individually, and in his official capacity as Chief of Police; and JACK PAPA, Individually, and in his official capacity as a member of the Johnstown City Council and Chairman of the Johnstown Public Safety Committee, Defendants.

The opinion of the court was delivered by: HURD



 Plaintiffs, all police officers for the City of Johnstown, New York, sued the defendants pursuant to 42 U.S.C. §§ 1983 and 1988 for violations of their rights under the First Amendment, Equal Protection Clause, and Substantive Due Process Clause of the United States and New York State Constitutions, as well as intentional infliction of emotional distress. The defendants have moved for summary judgment seeking dismissal of the plaintiffs' complaint on the merits and with prejudice. The plaintiffs oppose the motion. Oral argument was heard on July 29, 1998, in Albany, New York. Decision was reserved.


 In September 1995, a promotional civil service test was scheduled to be given for the position of Lieutenant in the Johnstown Police Department. Plaintiffs Sean Higgins ("Higgins") and Mark Paton ("Paton") were both eligible to take the examination.

 Higgins alleges that during the months of July and August 1995, he was approached by Officer David Goodwin ("Goodwin"), who told him if he did not take the examination in September, he would be promoted to the next open Investigator's position within the department. In the next several weeks, Higgins had further conversations with Goodwin, Sergeant Greg Horning ("Horning"), and defendant Chief James Cook ("Chief Cook") in which the offer was confirmed but not put in writing. There was no confirmation as to when the promotion would take effect and there was no opening for an Investigator within the department at the time. With the assistance of the Fulton County Sheriff's Department and the consent of the District Attorney, Higgins wore a body wire and went to defendant Jack Papa's ("Papa") place of business to speak about the offer. Papa was a member of the Johnstown City Counsel. Papa told Higgins that he would go along with whatever deal was set up. *fn1" Higgins signed up to take the examination and was never asked to remove his name from the list. He also admitted that he had always intended to take the examination.

 Higgins further claims that the defendants attempted to interfere with his ability take the examination by denying his request for the day off to take the test. In his deposition, he testified that his shift on the day of the examination was 6:00 a.m. to 2:00 p.m. The exam was scheduled to take place in the morning. Higgins claims he reported for duty that day and went to take the exam in uniform and with a pager and radio. However, the work schedule for September 1995 indicates that Higgins was not scheduled to work the day of the exam. Higgins did, in fact, take the examination, but he failed to score within the top three which is required to qualify for promotion.

 Paton alleges that the defendants attempted to prevent him from taking the Lieutenant's examination by offering him the next open Sergeant's position within the department. Paton had already signed up for the exam when this offer was made. Goodwin advised Paton that if he took the test, he would be "black-balled by the council." (Paton Depo. at 9.) Paton claims that Goodwin further advised him that he should not take the test because Horning was the provisional Lieutenant at the time and would probably get the job if he finished in the top three on the examination. Goodwin also suggested that Paton speak to Chief Cook about a promotion in exchange for not taking the Lieutenant's exam. He never did. Paton took the exam anyway and ranked sixth, thereby not qualifying for promotion.

 Higgins and Paton claim that these offers were made to them in order to ensure that Horning, the defendants' preferred candidate, would finish in the top three on the test and therefore qualify for appointment to the Lieutenant's position.

 Plaintiff Reuben Knoblauch ("Knoblauch") claims that Goodwin approached him and offered to promote him provisionally to a Sergeant's position if he would give a written statement detrimental to Officer Kevin Quinn ("Quinn"), a Sergeant in the department who was openly critical of the City administration. Knoblauch claims that Goodwin told him that giving the written statement would help his chances of getting a promotion. Knoblauch initially refused, but claims he later relented as a result of unspecified pressure and intimidation by the defendants. Goodwin told Knoblauch to speak to Chief Cook about the promotion, which he did. Chief Cook said he was recommending Knoblauch for a promotion, but no statements or inferences were made that the promotion was in exchange for Knoblauch making a written statement against Quinn.

 In this action, Higgins and Paton allege that the defendants' false promises and intimidation violated their rights to take the Lieutenant's exam, which is protected under the First and Fourteenth Amendments of the United States Constitution as well as Article 1 §§ 8 and 9 of the New York Constitution. They also claim that the defendants acted in concert to deprive them of their rights to Equal Protection under the Fourteenth Amendment, and Article 1 § 11 of the New York Constitution. Third, Higgins and Paton assert that the defendants' attempts to manipulate the civil service system constituted an abuse of power violative of the Substantive Due Process Clause of the Fourteenth Amendment. Knoblauch alleges that his First Amendment, Equal Protection, and Substantive Due Process rights were violated when the defendants coerced him to give a false statement against Quinn. Finally, all the plaintiffs assert that the defendants' conduct constitutes intentional infliction of emotional distress under New York law.

 The plaintiffs moved to consolidate this case with an action brought by Quinn which was pending before then District Judge Rosemary S. Pooler *fn2" and involved the same defendants (Quinn v. City of Johnstown, 96-CV-136). An order was issued reserving decision pending Judge Pooler's decision on the defendants' motion for summary judgment in the Quinn action. Judge Pooler granted the motion for summary judgment in the Quinn case on April 15, 1998, and that complaint was dismissed. Quinn v. City of Johnstown, 1998 U.S. Dist. LEXIS 5525, 1998 WL 187404 (N.D.N.Y. April 15, 1998). Therefore, the consolidation motion is moot.


 A. Summary Judgment Standard

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At that point the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the ...

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