Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


October 26, 2000


The opinion of the court was delivered by: Buchwald, United States Magistrate Judge.


Plaintiff Thomas Pappas ("Pappas"), a former police officer for Police Department of the City of New York (the "NYPD" and the "City," respectively), has brought this action for monetary and injunctive relief, pursuant to 42 U.S.C. § 1983 ("§ 1983"), alleging that defendants Rudolph Giuliani, the City's Mayor, Howard Safir, former Commissioner of the NYPD, and the City terminated his employment in violation of his First Amendment rights. Now pending is defendants' motion, pursuant to Fed.R.Civ.P. 56, for summary judgment on the grounds that: (1) plaintiff is precluded from relitigating the same facts and issues he unsuccessfully raised in a prior administrative hearing; (2) plaintiff's actions did not constitute protected speech under the First Amendment; and (3) the named defendants lacked the requisite personal involvement in plaintiff's termination, or otherwise are entitled to qualified immunity. For the reasons stated below, defendants' motion is granted and plaintiff's complaint is dismissed.


Plaintiff was employed by the NYPD from January 25, 1982 until his termination on August 18, 1999.*fn1 He spent five years as a patrol officer before he was transferred to the Management Information Systems Division (MISD) where he worked as a civilian-clothed computer operator. In his MISD employment, he had no direct contact with the public, although he testified that he could have been reassigned to patrol duty at any time.

Off-duty, plaintiff was a member and the chairman since 1987 of the Populist Party of the Town of North Hempstead. The Populist Party advocated, inter alia, repeal of the Federal Income Tax, dismantling the Internal Revenue Service, and ending free trade. Plaintiff also reported being a member of the Liberty Lobby and a subscriber to The National Association for the Advancement of White People (NAAWP), The Resistance published by the National Socialist White People's Party (NSWPP), The Spotlight, the National Educator, and Truth at Last.

On at least two occasions in 1996 and 1997, plaintiff, then a police officer with the NYPD, mailed certain written materials to the Mineola Auxiliary Police Department (MAPD) in response to the MAPD's solicitation campaign.*fn2 The materials consisted of various articles and cartoons which the MAPD considered "offensive" antisemitic and anti-black hate mail.*fn3 The NYPD Internal Affairs Bureau launched an investigation in which it sent plaintiff a request for donations from a fictional organization named the "NAACP Legal Defense and Educational Fund." Again, plaintiff returned the reply-envelope with antisemitic and anti-black literature. Plaintiff admitted to having engaged in approximately 200 such mailings, over the years, in response to solicitations from other organizations.

Plaintiff's conduct and the ensuing investigation attracted media attention. The New York Times covered the story and Channel 12, Fox 5 news, ABC News on Channel 7, and a local Long Island station carried television coverage.

On March 24, 1998, the NYPD's Internal Affairs Bureau questioned plaintiff about the mailings, their contents, and his political beliefs. He readily admitted his involvement in the mailings, claiming at different points that they were "just a hobby," a protest of the solicitations he had received, and message to the organizations to cease soliciting from him. He maintained, however, and still does, that he did not himself author any of the articles or cartoons mailed.

The New York Police Department charged plaintiff with engaging in prohibited conduct, namely the dissemination of defamatory materials through the mails, in violation of Patrol Guide § 104-01, p. 3, ¶ 2(b) ("Prohibited Conduct"). An administrative disciplinary trial was held before Assistant Deputy Commissioner of Trials, Josefina Martinez ("Commissioner Martinez"). At the trial, plaintiff was permitted to testify, call witnesses, introduce exhibits, and to cross-examine any adverse witnesses. He was represented by counsel throughout the proceeding.*fn4 The NYPD called no witnesses but presented its case through a series of stipulations and exhibits. Plaintiff testified in his own defense and argued, inter alia, that his speech was protected by the First Amendment.

Commissioner Martinez rendered her decision on June 25, 1999, finding plaintiff guilty of two counts of prohibited conduct and recommending Pappas' dismissal from the NYPD. In so doing, she considered — and rejected — plaintiff's First Amendment defense, which he now raises as a claim. She found that (1) plaintiff's conduct did not amount to protected speech on a matter of public concern; and alternatively, (2) the potential for disruption in the NYPD outweighed the value of the purported speech.

On August 18, 1999 Commissioner Safir adopted Commissioner Martinez's recommendation and terminated plaintiff's employment.

In January, 2000, without pursuing any further remedies in state court, plaintiff filed this action, claiming that the NYPD's termination of his employment was unlawfully in retaliation for speech protected under the First Amendment. At the time plaintiff filed this action, his time to challenge the administrative decision in state court through an Article 78 Proceeding had expired.


This Court addresses the case on cross-motions for summary judgment. Summary judgment is properly granted "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.'" R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing the record, we must assess the evidence "in the light most favorable to the non-movant and . . . draw all reasonable inferences in his favor." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990). The mere existence, however, of an alleged factual dispute between the parties will not defeat a motion for summary judgment. Rather, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505 (internal quotation omitted).

A. Collateral Estoppel

Defendants first argue that the doctrine of collateral estoppel bars plaintiff's action. Defendants rely on the administrative, disciplinary trial in which Commissioner Martinez decided on the merits the identical First Amendment issue underlying this action. This argument squarely presents the question of whether federal district courts adjudicating § 1983 actions should give issue preclusion to unreviewed legal determinations by state administrative bodies.

Collateral estoppel or "issue preclusion"*fn5 is the procedural doctrine that "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Issue preclusion is a tool of judicial efficiency, not substantive review. It "preclude[s] parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).

In principle, issue preclusion can apply to both findings of fact and determinations of law. In University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Supreme Court held, as a matter of federal common law, that "when a state agency `acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' . . . federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts" (emphasis added). Elliott at 798, 106 S.Ct. 3220, quoting U.S. v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) (internal citations omitted). As the Second Circuit more recently stated, the Supreme Court "expressly found that issue preclusion based on unreviewed state agency [fact] determinations is appropriate in § 1983 civil rights actions." Doe v. Pfrommer, 148 F.3d 73, 79 (2d Cir. 1998). Thus, assuming ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.