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September 7, 1999


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.


Plaintiffs, five police officers with the Poughkeepsie police department, commenced this action against the City of Poughkeepsie (the "City"), and Mayor of the City, Collette LaFuente, pursuant to 42 U.S.C. § 1983, alleging violations of their First Amendment Rights to petition the government and to freedom of association, and their Fourteenth Amendment right to due process under the United States Constitution.*fn1 Plaintiffs also assert pendent state law claims, including violations of their property right under New York Civil Service Law, Chapter 134 of the laws of 1997. Before this Court is Defendant City of Poughkeepsie and Collette LaFuente's motion to dismiss plaintiffs' second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, the defendants' motion is granted in part and denied in part.


A complaint may only be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) when it appears beyond doubt that the plaintiff cannot prove any set of facts in support of her claims which would entitle her to relief. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). This standard is applied with even greater force where the plaintiff alleges civil rights violations. Id. In deciding a 12(b)(6) motion, the Court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998). The following facts are construed accordingly.

From August of 1994 until December of 1997, each of the plaintiffs served in the Poughkeepsie Police Department's Neighborhood Recovery Unit ("NRU"), a parole unit. The duties they performed while in this unit included investigating homicides, shootings, prostitution and drug offenses; working with confidential informants, and participating in undercover narcotics investigation. Plaintiffs allege that although they performed functions identical to those executed by individuals designated as detective, they were wrongly denied the title of detective and the attendant salary increase. They assert that under Chapter 134 of the New York Civil Service Law, they were entitled to be made detective because for more than eighteen months, they performed all the duties of detective.*fn2

Chapter 134, passed on June 25, 1997, provides in relevant part:

  (ii) . . . any person who has received permanent
  appointment to the position of police officer or
  deputy sheriff and is temporarily assigned to perform
  the duties of detective or investigator shall,
  whenever such assignment to the duties of a detective
  or investigator exceeds eighteen months, be
  permanently designated as a detective or investigator
  and receive the compensation ordinarily paid to
  persons in such designation.

McKinney's Consol. Laws of N.Y., Civil Service Law, § 58(c)(4). Plaintiffs allege that as a result of the enactment of Chapter 134, defendants knew or should have known that each of the plaintiffs was statutorily entitled to be designated as a "detective" and to receive a substantial increase in salary.

Plaintiffs allege other violations of their rights by defendants who, plaintiffs assert, deprived plaintiffs of what they were due under New York Civil Service law and their Collective Bargaining Agreement ("CBA"). They assert that defendants knew or should have known that each of the plaintiffs was by contract entitled to receive pursuant to Article XVI, Section 12 of the CBA, compensation for "out-of-title" work for the detective duties they performed. Plaintiffs accuse the City, acting through its Mayor, defendant LaFuente, of working in concert with the PBA in refusing to implement the provisions of Chapter 134 of the Laws of 1997.

Plaintiffs allege that the President of the PBA, Derrick Storzieri, was motivated by his personal objective of securing favorable duty assignments for himself and other members of the PBA. In addition, plaintiffs allege, Storzieri and the PBA's inaction resulted in "financial advantage" to the City, presumably because it did not have to pay plaintiffs higher salaries. Plaintiffs allege that Mayor LaFuente hoped to gain politically by preventing them from being appointed detective. They allege, inter alia, that the PBA repeatedly refused to make available to them a copy of the PBA collective bargaining agreement; and entered into a secret agreement with the former Chief of Police in which both agreed that no police officer assigned to the NRU would ever be designated as a detective.

1. Due Process

Plaintiffs seek to recover under § 1983, claiming defendants deprived them of property without due process in violation of the Fourteenth Amendment. Plaintiffs allege that under Chapter 134, they possessed a property interest in the designation of detective and its attendant salary increase, and had a property right under Article XVI, Section 12 of the Collective Bargaining Agreement to the salary increase attributable to "out-of-title" pay. Assuming for the purposes of this motion, without deciding, that the plaintiffs had a property right in the position of detective and a property interest in the salary increase, their due process claim must fail because adequate post-deprivation procedures were available to plaintiffs.

Due process has two indispensable components, notice and a post-deprivation opportunity to be heard. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). As the Supreme Court stated in Hudson v. ...

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