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.
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
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
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
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 ...