The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.
MEMORANDUM DECISION AND ORDER
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
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
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
(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.
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. ...