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September 23, 1998

DAVID MARDEN, Plaintiff, against JOHN R. DININ, individually, THEODORE WYSKIDA, individually, and the TOWN OF BEDFORD, New York, Defendants.

The opinion of the court was delivered by: PARKER




 Plaintiff David Marden, the former Police Chief of the Town of Bedford, New York (the "Town") has asserted claims against the defendants John R. Dinin, Theodore Wyskida (the "Individual Defendants") and the Town pursuant to 42 U.S.C. §§ 1983 and 1985 alleging violations of his First Amendment right to freedom of speech.

 During the events giving rise to this suit, John R. Dinin was the elected Supervisor of the Town. Theodore Wyskida was a lieutenant in the Town's police department. The defendants have moved for dismissal of Marden's amended complaint on the basis, among others, that, Marden's claims are barred by collateral estoppel, and that under the Rooker-Feldman doctrine the Court lacks subject matter jurisdiction. *fn1" For the reasons that follow, the defendants' motion is granted.


 In considering a motion to dismiss a complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all the allegations contained in the complaint and construe them in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Wolff v. City of New York Financial Servs. Agency, 939 F. Supp. 258, 263 (S.D.N.Y. 1996). A court must dismiss an action pursuant to 12(b)(1) sua sponte or on motion if it lacks subject matter jurisdiction and pursuant to 12(b)(6) only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. '" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The court may consider only 1) the facts stated on the face of the complaint, 2) documents appended to the complaint, 3) documents incorporated in the complaint by reference, and 4) matters of which judicial notice may be taken. *fn2" ESI, Inc. v. Coastal Power Production Co., 995 F. Supp. 419, 429 (S.D.N.Y. 1998) (citing Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993)). The following facts have been construed accordingly.

 Marden was appointed a Town police officer in February 1970, and was promoted to Chief of Police in September 1982. On April 22, 1996, Dinin, as Town Supervisor, filed disciplinary charges against Marden containing eleven allegations of incompetence and misconduct. Marden was suspended with pay, pending the resolution of the charges.

 The disciplinary process was governed by the Westchester Police Act. Under this Act, the charges are heard by a town board or local board of police commissioners. In Marden's case his charges were heard by the Town Board (the "Board"). Dinin, who, as Town Supervisor, ordinarily sat on the Board, recused himself for Marden's hearing. Marden filed an answer on April 29, 1996. In his answer, Marden generally denied the charges and contended that Dinin had improperly used his public office to pursue a "personal and political vendetta" against him, and to deprive him of his "civil rights as guaranteed by the Constitution."

 The first seven charges filed by Dinin were dismissed by the Board as time barred on the motion of Marden's counsel. These charges included various allegations of incompetence and misconduct concerning statements made by Marden to Gannett Suburban Newspapers concerning the arrest of an officer on sexual abuse and molestation charges and his alleged subsequent suicide. The charges the Board specifically addressed concerned only Marden's refusal to attend Board meetings and his conduct with respect to providing Dinin with a requested report concerning an allegedly racially tainted February 1996 traffic stop (the "Traffic Stop Report").

 The Board heard the charges against Marden in July 1996, during a six day hearing. At the hearing Marden was represented by counsel. In his opening statement to the Board, Marden's counsel stated, "the proof will show that Chief Marden continued at all times to act reasonably, lawfully and professionally, and that the charges of incompetence and misconduct are untrue and have absolutely no basis in fact and that, in fact, these charges are motivated by personal animosity and malice."

 During the hearing, Marden's counsel introduced a memorandum from Marden's personnel file, by stating, "the relevancy of the document is with respect to a defense which was raised in the answer that defense-- to wit, that the supervisor is pursuing a systematic plan or personal political vendetta against my client." Further, Marden was asked by his counsel in his direct examination, "What is the basis of your assertion that Mr. Dinin is pursuing a personal vendetta against you?" To which Marden responded, "I get the impression he does not wish to hear my comments. He only communicates with me when he has a directive. Whenever I respond other than to what he wants to hear, I hear the words insubordination." When Marden was asked in his direct examination if he had problems with Dinin concerning an incident involving a police officer who allegedly committed suicide, Marden answered:

Yes, I did. He was directing me-- well, first of all, he told me to stop talking to the press, and that I objected to because it's my job to talk to the press. As provided in the rules and regulations, I am the chief executive of the police department and I'm supposed to maintain press relations for the department. By telling me to stop talking to the press denied my right to free speech.

 By decision dated October 15, 1996, the Board found Marden: (1) not guilty of misconduct in his refusal to attend Board meetings, (2) guilty of misconduct in his refusal to provide Dinin with copies of investigative work product related to the February 1996 traffic stop, and (3) not guilty of incompetence in his refusal to provide investigative work ...

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