The opinion of the court was delivered by: Wexler, District Judge.
Plaintiff Thomas G. Verbeek ("Verbeek") commenced this action
against defendants Village of Westhampton Beach ("Village") and
various Village trustees, police officers, and counsel pursuant
to 42 U.S.C. § 1983, alleging violations of his First Amendment
rights to free speech, to free association, and to petition the
government for redress of grievances; Fourth Amendment right to
be free from unlawful search and seizure; and Fourteenth
Amendment right to equal protection; he also purports to assert
state supplemental claims. The individual defendants are Police
Chief Conrad Teller ("Teller"); Police Officers Robert Nordman
("Nordman"), Frederick Hager ("Hager"), and Neil Hanrahan
("Hanrahan"); Police Officers and Trustees Raymond Dean ("Dean")
and Mark Raynor ("Raynor"); Trustee Ora Bell Barnett ("Barnett");
and Village counsel Vincent Toomey ("Toomey") and Ann Scricca
("Scricca"). Presently before the Court is defendants' motion to
dismiss pursuant to Rules 12(b) and 12(h)(3) of the Federal Rules
of Civil Procedure. Plaintiff opposes the motion.
For present purposes, the allegations of the complaint, which
are accepted as true, can be summarized as follows. Verbeek was
employed as a police officer in the Village until his termination
on November 23, 1998, following the second of two disciplinary
proceedings brought against him by the Village. During his
employment, and prior to the first disciplinary proceeding,
Verbeek alleges that he complained about a variety of illegal and
improper activities by various Village police officers and their
relatives, some of whom Verbeek had arrested. On or about
February 21, 1996, Teller had charges brought against Verbeek for
dereliction of duty, allegedly as a result of Verbeek's "repeated
of concern regarding the [alleged] wrongdoing" by various police
officers and their relatives. Complaint ¶ 16. Until then, Verbeek
allegedly had a clear police record for over 11 years.
On March 21, 1996, a non-public hearing was commenced, but was
then discontinued after a witness allegedly testified that one of
the "principal charges against [Verbeek] was false." Complaint ¶
17. The Village was permitted to amend the charges, and on March
26, 1996, further disciplinary charges were brought against
Verbeek, including charges for leaving his patrol car without
authority, interfering with a departmental investigation, and
making false entry on a police departmental record. A hearing was
then commenced before Hearing Officer Robert Kearon
("H.O.Kearon"). During the hearing, Verbeek raised a
"whistleblower" defense under New York State Civil Service Law §
75-b. On July 28, 1996, H.O. Kearon rejected Verbeek's
whistleblower defense and found Verbeek guilty of certain charges
of dereliction of duty and insubordination.
After the hearing, Teller "summarily demoted" Verbeek to
patrolman, subordinate to Hager. Complaint ¶ 21. In demoting
Verbeek, Teller allegedly was motivated "in whole and/or in
substantial respect by reason of [Verbeek's] evidence, adduced at
the disciplinary hearing, regarding corruption and/or
maladministration of the Police Department and criminal activity
engaged in by members of the Department." Id. The demotion was
ratified by the Village Board of Trustees (the "Board").
On August 7, 1996, Verbeek returned to duty and discovered that
his locker at police headquarters had been broken into and that
his personal and other property had been stolen. During August
1996, Teller allegedly issued orders forbidding Verbeek from (1)
speaking to the Village trustees; (2) reporting the burglary to
other law enforcement agencies, including the FBI; (3) meeting,
or requesting to meet, with any other police officer in the
department; and (4) supervising any other police officer in the
department. In addition, Teller allegedly forbid other officers
from speaking with Verbeek about the disciplinary hearing, barred
outside law enforcement agencies from investigating the burglary,
and identified two police officers as suspects in the burglary.
Moreover, Hager, allegedly at Teller's request, suspended Verbeek
from the Police Benevolent Association ("PBA").
On or about October 29, 1996, Teller requested that additional
disciplinary charges be filed against Verbeek, allegedly in
retaliation for Verbeek's having "adduced evidence of misconduct
and/or criminal behavior by members of the Department and/or
certain of their family members." Complaint ¶ 31. However, Teller
allegedly was "rebuffed" by the Village Board. Complaint ¶ 32.
Nevertheless, Teller and Toomey allegedly "entered into an
agreement to draft and prefer" additional "retaliatory
disciplinary charges" against Verbeek, charges Teller
"subsequently admitted were in substantial respect entirely
fabricated." Id. On December 30, 1996, Toomey and Teller
charged Verbeek, allegedly "without authority or permission of
the Village Board and contrary to a directive of the [Village]
Mayor," Complaint ¶ 33, and then suspended and expelled Verbeek
from police headquarters.
The Board then discharged Toomey allegedly because of the
"unlawful preferral" of charges against Verbeek, Complaint ¶ 34,
and retained Scricca as Village counsel. Scricca then allegedly
committed improper acts to "insur[e] that the second disciplinary
proceeding move forward," including threatening or intimidating
certain trustees and directing the destruction of certain
evidence. Complaint ¶¶ 35-37. Ultimately, the Board approved the
prosecution of disciplinary charges against Verbeek.
During the second disciplinary proceeding, Teller, Hager, and
Kametler, directly or through the PBA, allegedly sought to
improperly influence Board members to secure Verbeek's
termination. Teller and Hager, then PBA President, allegedly
issued a memorandum instructing other police officers not to
communicate with Verbeek, purportedly to impair Verbeek's defense
of the charges and his exercise of associational rights.
Verbeek alleges that Teller, Doyle, and Nordman "agreed to and
thereafter testified falsely" against Verbeek in an effort to
secure his termination, purportedly to punish Verbeek for "having
engaged in First Amendment protected speech." Complaint ¶ 47.
Verbeek asserts that he proved during the hearing that (1) Teller
perjured himself in the first disciplinary hearing; (2) that
Hager had, with impunity, committed certain criminal acts; (3)
that Scricca had tampered with the Board on the preferral of the
charges and ordered the destruction of evidence regarding the
fabricated nature of the charges; (4) that Teller and the PBA,
acting through Hager, had directly sought to influence the Board
during the pendency of the proceeding to secure Verbeek's
termination; and (5) that Teller and other police department
members "actively interfered" with Verbeek's ability to defend
against the charges by, inter alia, "prohibiting" him from
communicating with other police department members. Id.
Following the conclusion of the hearing, H.O. Campasano issued
a "Hearing Officer's Report and Recommendation," dated October
30, 1998 (the "R & R"). In the R & R, H.O. Campasano rejected
Verbeek's whistleblower defense and found Verbeek guilty of
certain acts of misconduct and conduct unbecoming a police
officer, and recommended that Verbeek's employment be terminated.
Verbeek alleges that H.O. Campasano was biased against him and
engaged in ex parte communications with Scricca. Verbeek also
alleges that H.O. Campasano falsely accused Verbeek of attempting
to bribe him. Moreover, according to Verbeek, H.O. Campasano
caused a copy of the R & R to be delivered to the Village on or
about October 30, 1998, but did not have a copy sent to Verbeek's
counsel until three weeks later, thereby giving Verbeek's counsel
only a matter of hours to prepare a submission concerning his
punishment to the Village, which was scheduled to meet and vote
on the R & R on November 23, 1998.
On November 23, 1998, the Board voted to terminate Verbeek's
employment with the Village, as H.O. Campasano had recommended.
Verbeek claims that defendant Trustees Dean, Raynor, and Barnett
were: (1) "improperly influenced by reason of ex parte contacts
between them and the PBA, Teller and/or Scricca which contacts
were in part the subject of the disciplinary hearing record and
in part were not evidenced by that record"; and (2) "motivated
entirely and/or in substantial respect to punish [Verbeek] for
his having expressed his opposition to Village corruption,
misfeasance, malfeasance, criminal wrong doing [sic], and
mismanagement of the Police Department." Complaint ¶¶ 53-55.
Verbeek further asserts that the disciplinary proceedings
constituted a selective prosecution against him for his exercise
of First Amendment rights as "no disciplinary action and/or
material disciplinary ...