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April 12, 1999


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 prejudice.*fn1


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. ยง 1983 For Retaliation for the
    Exercise of ...

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