The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Plaintiff's motion to amend the complaint pursuant to Federal
Rules of Civil Procedure 15(a) is hereby granted in part to the
extent that it alleges retaliation for the exercise of First
Amendment rights in violation of 42 U.S.C. § 1983 (" § 1983").
Defendants' motion under Fed.R.Civ.P. 12(c) is granted in part
and denied in part; all claims under § 1983 for the deprivation
of liberty without due process are dismissed with prejudice, all
claims under § 1983 for the deprivation of property without due
process are dismissed with leave to re-plead, and all claims
under 42 U.S.C. § 1985 (" § 1985") are dismissed with
Plaintiff, Glen Kane, is a police sergeant for the Town of
Ossining Police Department ("the Department" or "the Police
Department"). Plaintiff here sues James Krebser ("Krebser"), the
Town of Ossining ("the Town"), and the Town of Ossining Police
Department under § 1983 for, inter alia, abridging his First
Amendment right to freedom of speech and his Fourteenth Amendment
right to due process; plaintiff also claims that defendants
conspired to deprive him of those constitutional rights in
violation of § 1985.*fn2
Plaintiff first alleges that pursuant to his duties as the
Terminal Agency Coordinator, he informed Krebser and Lieutenant
Donato on June 29, 1996 of security violations involving the
police computer database ("NYSPIN"). Proposed Amended Complaint ¶
16. According to plaintiff, Lieutenant Donato informed plaintiff
that he was aware of this breach and intentionally did not inform
the State Police of this problem for fear of losing the equipment
if the violation were disclosed. Id. Nonetheless, on August 28,
1996, plaintiff sent a letter to the President of the Town of
Ossining Police Association to inform him of this breach. Id.
The very next day, August 29, 1996, allegedly after being
informed that this letter was sent, Krebser relieved plaintiff as
Terminal Agency Coordinator without explanation. Proposed Amended
Complaint ¶ 17.
Second, plaintiff contends that on or about February 13, 1997,
Lieutenant Donato ordered plaintiff to falsify billing records.
Proposed Amended Complaint ¶ 20. Plaintiff claims that he
expressly refused to alter the billing records, and Krebser, who
apparently learned of this refusal, told plaintiff that he could
no longer "trust" him. Id.
Further, plaintiff alleges that on April 1, 1997, while working
as a supervisory officer, he gave permission to two officers,
pursuant to their requests, to take "personal days" and not
report for their assigned shifts. Proposed Amended Complaint ¶¶
24-25. Plaintiff claims that on April 7, 1997, without giving him
proper notice or opportunity to respond, and without following
customary practice within the Department, Krebser, issued a
"reprimand letter" to be placed in plaintiff's file for one
year. Proposed Amended Complaint ¶¶ 26-31. However, defendant
contends and plaintiff does not dispute that Krebser changed his
mind and decided to remove this letter from plaintiff's file the
day after it was filed. Affidavit of James C. Miller ¶ 6.
Finally, plaintiff alleges that in retaliation for serving a
notice of claim upon the Town and Krebser in December of 1997,
Krebser denied plaintiff's request for a change of duty from a
Saturday to a Monday shift. Proposed Amended Complaint ¶¶ 33-35.
All three defendants, Krebser, the Town, and the Police
Department, first moved pursuant to Rule 12(c) to dismiss the
complaint in its entirety. Plaintiff timely served his opposition
papers to defendants' 12(c) motion, and simultaneously
cross-moved for leave to amend his original complaint pursuant to
Rule 15(a). Since plaintiff provided the Court with his proposed
amended complaint, and since defendants argue in their reply
brief that all arguments made in their original 12(c) motion
apply with equal force to plaintiff's proposed amended complaint,
our analysis will focus on the proposed amended complaint and not
the original complaint.
I. Standard for Leave to Amend Complaint
Leave to amend a pleading should be freely granted unless
amendment would be futile, leave was sought in bad faith, or
granting leave would cause undue delay or prejudice the opposing
party. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962); Rachman Bag Co. v. Liberty Mut. Ins. Co.,
46 F.3d 230, 234-35 (2d Cir. 1995). The only claim made by
defendants in opposition to plaintiff's motion to amend the
complaint is that such amendment would be futile. The amendment
of a complaint would be futile if the amended pleading would not
survive a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6). See S.S. Silberblatt, Inc. v. East Harlem
Pilot Block-Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d
Cir. 1979); Nettis v. Levitt, 1998 WL 397880, *2 (S.D.N.Y. July
15, 1998). Thus, the appropriate standard for granting leave to
amend the complaint is that established by Rule 12(b)(6).*fn3
For purposes of Rule 12(b)(6), a claim cannot be dismissed
"unless it appears beyond doubt that the [claimant] can prove no
set of facts in support of his claim which would entitle him to
relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir.
1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173,
66 L.Ed.2d 163 (1980)). All well-pleaded factual allegations will
be accepted as true and all reasonable inferences must be drawn
in favor of the claimant. See Wright v. Ernst & Young LLP,
152 F.3d 169, 173 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119
S.Ct. 870, 142 L.Ed.2d 772 (1999).
II. Claims under 42 U.S.C. § 1983 For Retaliation for the
Exercise of ...