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CIPOLLA v. COUNTY OF RENSSELAER

September 14, 2000

VICTOR J. CIPOLLA AND SUSAN E. MARTIN, PLAINTIFFS, AGAINST THE COUNTY OF RENSSELAER, COUNTY OF RENSSELAER EXECUTIVE'S OFFICE, HENRY ZWACK, INDIVIDUALLY AND AS COUNTY EXECUTIVE FOR THE COUNTY OF RENSSELAER, JOSEPH CYBULSKI, INDIVIDUALLY AND AS DEPUTY COUNTY EXECUTIVE FOR THE COUNTY OF RENSSELAER, DANIEL EHRING, INDIVIDUALLY AND AS DEPUTY COUNTY ATTORNEY FOR THE COUNTY OF RENSSELAER, JACK MADDEN, INDIVIDUALLY AND IN HIS CAPACITY AS STOP DWI COORDINATOR FOR THE COUNTY OF RENSSELAER, JOHN DOE, AN INDIVIDUAL WHOSE NAME IS UNKNOWN TO PLAINTIFFS INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICIAL OF THE COUNTY OF RENSSELAER, JANE DOE, AN INDIVIDUAL WHOSE NAME IS UNKNOWN TO PLAINTIFFS, INDIVIDUALLY AND IN HER CAPACITY AS AN OFFICIAL OF THE COUNTY OF RENSSELAER, AND ABC DEPARTMENT, AN OFFICE OR DEPARTMENT OF THE COUNTY OF RENSSELAER WHOSE IDENTITY IS UNKNOWN TO THE PLAINTIFFS, DEFENDANTS.


The opinion of the court was delivered by: McAvoy, District Judge.

   
MEMORANDUM — DECISION & ORDER

I. Background

Plaintiffs Victor Cipolla and Susan Martin are former employees of Rensselaer County (the "County") whose claims arise out of their criminal prosecution for official misconduct.*fn1 Defendant Henry Zwack was the elected County Executive at the time of Plaintiffs' prosecution; Steve Madden and Joseph Cybulski were employees of the County;*fn2 and Defendant Daniel Ehring was a Deputy County Attorney,*fn3 who served as a contact between the County and the District Attorney's office throughout the investigation and prosecution. A brief outline of the events leading up this prosecution follows.

Zwack was elected as County Executive in late 1995 and took office on January 1, 1996. Prior to his election, Zwack served on the County Legislature. During the period after Zwack's election, but prior to his taking office, the individual Defendants and Plaintiffs worked with the outgoing County Executive and administration to facilitate a smooth transition between administrations. Zwack wanted to make numerous organizational changes in the County government. Because the changes needed to be made while Zwack was a county legislator, they had to be signed by the outgoing County Executive.*fn4 The outgoing County Executive made certain demands on Zwack, including the continued employment of five County employees, in exchange for his agreement to sign the organizational changes into law. One of these employees was Dirk Van Ort.

Because the changes Zwack made prior to taking office included elimination of Van Ort's positions*fn5 and the department from which that position was funded, it became necessary to find a new position for Van Ort. Zwack reassigned Van Ort to the Department of Emergency Services, run by David Cooke. Cooke objected to this placement and Zwack then assigned Van Ort to Cipolla's Department, BRIS. Although Cipolla objected to this placement, Zwack refused to reassign Van Ort.*fn6

It does not appear that anyone was given any instructions regarding how to use Van Ort and, after his reassignment, Van Ort was given little, if any, job direction.*fn7 Throughout 1996, Van Ort's County employment continued. He did not report to work at the County offices and was not assigned work by Plaintiffs or Defendants, but continued to submit time cards, which were signed by himself and, in some cases, Cipolla. During this period, Cipolla continued to sign payroll authorization sheets for Van Ort's work.*fn8 At Martin's direction the payroll authorizations were processed, despite certain irregularities. Plaintiffs do not dispute the above facts. However, they allege that they signed and processed Van Ort's time cards and the related payroll authorization sheets under protest and pursuant to direct instructions from Zwack. See Cipolla Aff.; Martin Aff.

Cipolla acknowledges that, technically speaking, he was Van art's supervisor. There is dispute as to who was responsible for actually supervising Van Ort and assigning him work. Plaintiffs allege that Zwack specifically told Cipolla not to contact Van Ort, that Madden was responsible for finding Van Ort work, and that Cipolla was instructed to sign Van Ort's time cards. Defendants, on the other hand, contend that Cipolla was in charge of finding Van Ort work and supervising him. In contrast to both of the above view points, Van Ort testified before the grand jury that Martin was his contact person who he expected to assign his work. See Van Ort Testimony, Sept. 3, 1997 Grand Jury Tr. at 73.

In 1996, Zwack agreed to place Van Ort on an early retirement list and Van Ort retired in December 1996. In late 1996, Zwack asked for Plaintiffs' resignations. In December 1996, Cipolla resigned. Martin refused and, thus, was terminated.

In or about February 1997, the news media began investigating and reporting a series of stories regarding the alleged improprieties committed by the Zwack administration. The stories included that of Van Ort, an alleged "no show employee." Public statements of some of the Defendants to the media indicated that Cipolla was responsible for supervising and finding work for Van Ort.

The County District Attorney's office convened a grand jury in 1997 to investigate allegations that Van Ort was a no show employee of the County. The grand jury heard testimony from Christina Mahoney, the County Director of Personnel as of April 28, 1997; Jennifer Fitzpatrick, the County employee in charge of inputting the County payroll in 1996; Manette Eddy, the Deputy Commissioner of BRIS in 1996; David Cooke, the County's Director of Public Safety in 1996;*fn9 Rebecca Syrotinski, an address verifier for the County in 1996;*fn10 Trudy Clayton, the secretary to BRIS in 1996; Zwack; Cybulski; Madden; Lisa Sanders, an address verifier for the County in 1996; Kathleen Van Ort, Dirk Van Ort's wife; Dirk Van Ort; Marion Gould, secretary to the County Executive; and Barbara Manoni, a County benefits representative. The grand jury voted to subpoena Plaintiffs who elected not to waive their immunity and, thus, did not testify. The grand jury also reviewed documentary evidence including, inter alia, Van Ort's time cards, the payroll authorization sheets signed by Cipolla, and letters written to Van Ort regarding his employment status.

The grand jury elected to hear legal charges regarding potential criminal indictments of Van Ort, Martin, Cipolla, and Zwack. The grand jury was charged and, after deliberation, indicted Plaintiffs for official misconduct and Van Ort for second degree offering of a false instrument and falsifying business records. The charges against Plaintiffs were based on the grand jury's belief that the facts indicated that Plaintiffs were responsible for finding work for Van Ort and or supervising this work, that they did not find this work, and that they signed and processed Van Ort's time cards with knowledge that Van Ort had not performed work for the County and, in doing so, concealed the fact that they had not found Van Ort work. See Sept. 4, 1997 Grand Jury Tr. at 157, 161. The grand jury further found that Plaintiffs benefitted from the above actions by retaining their County jobs. See id. The grand jury voted against indicting Zwack.

Van Ort pled guilty to one charge of offering a false instrument and was sentenced to 100 hours of community service and fined $1,000.00. Plaintiffs went to trial on the misdemeanor charges. On November 30, 1998, a jury acquitted Plaintiffs of all charges.

On October 27, 1999, Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging causes of action for violations of their right to due process of law as protected by the Fourteenth Amendment (defamation), malicious prosecution, and conspiracy to present false evidence and testimony before the grand jury and at trial. Plaintiffs further allege state law claims for: (1) malicious prosecution; (2) defamation; (3) the intentional and negligent infliction of emotional distress; and (4) prima facie tort and a claim under Local Law 5 for legal fees.

Presently before the Court is Defendants' motion pursuant to FED. R. Civ. P. 8 or, in the alternative, FED R. Civ. P. 12, seeking dismissal of the Complaint in its entirety.

II. Discussion

A. Federal Rule of Civil Procedure 8

Defendants first move to dismiss Plaintiffs' Complaint pursuant to FED. R. CIV. P. 8. Rule 8 provides that a complaint shall contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must disclose sufficient information to permit the defendant "to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Where a complaint alleges claims under 42 U.S.C. § 1983, it must be organized such that a preliminary decision on the issue of qualified immunity is feasible. See Connell v. Signoracci, 153 F.3d 74 (2d Cir. 1998)

Here, Defendants allege that the Complaint, which is 33 pages in length with 89 substantive paragraphs, is defective because it combines the allegations against each defendant and, thus, frustrates a determination of qualified immunity. The Complaint, however, appears to allege that all the Defendants engaged in certain conduct. In such cases, it is unnecessary to put forth a separate paragraph alleging that each Defendant engaged in the same conduct. Accordingly, the Court finds that the Complaint satisfies Rule 8 and does not impede a timely decision on qualified immunity.

Defendants next argue that Plaintiffs' conspiracy claim should be dismissed pursuant to FED. R. CIV. P. 8 because it is conclusory. This argument is more appropriately addressed under the FED. R. Civ. P. 12 standard as it involves Plaintiffs' alleged failure to state a claim, rather than the structure of Plaintiffs' pleadings. Accordingly, the Court will address this argument below.

B. Conversion to Summary Judgment

Pursuant to FED. R. Civ. P. 12(c), "[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In the present matter, Defendants, the original moving parties, submitted materials outside of the pleadings.*fn11 In response, Plaintiffs also submitted materials outside of the pleadings, noted that Defendants' motion "blend[ed] principals applicable to motions to dismiss and motions for summary judgment," Pl. Mem. of Law at 2, and addressed the summary judgment standard. See id. at 9. In their reply papers, Defendants treat their motion as a motion for summary judgment. Accordingly, both parties are on notice that the Court could treat this motion as a motion for summary judgment and, thus, could consider materials submitted outside the pleadings. Because both parties have had a full and fair opportunity to present and, in fact, have presented, materials pertinent to a ...


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