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GALLO v. SUFFOLK COUNTY POLICE DEPTARTMENT

November 19, 2002

DAVID J. GALLO, PLAINTIFF,
V.
SUFFOLK COUNTY POLICE DEPARTMENT AND COUNTY OF SUFFOLK, NEW YORK, DEFENDANTS.



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

MEMORANDUM OF DECISION AND ORDER

On May 1, 2002, David J. Gallo ("Gallo" or the "plaintiff") filed a complaint against the Suffolk County Police Department ("Police Department") and the County of Suffolk, New York ("County") (collectively, the "defendants") alleging that the defendants violated 42 U.S.C. § 1983 based on the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Presently before the Court is the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (" Fed.R.Civ.P.").

I. BACKGROUND

The following facts are taken from Gallo's complaint, which the Court takes to be true. In May 1996, Gallo applied to become a police officer and took the County civil service examination administered by the County's Civil Service Department. Thereafter, the County reported to him that he had been successful in the overall examination and that he had received a score of 98. Based on his residency within the Township of Riverhead ("Town"), Gallo was placed on a candidate eligibility list for police officers for both the Town and the County.

On May 22, 1999, Gallo again took the County civil service examination to become a police officer and received a score of 87.5. Subsequently, the Police Department conducted a new investigation. On or about October 2, 2000, Gallo was again interviewed by Sergeant Frawley. Sergeant Frawley concluded the interview, and on that same day, Gallo was fingerprinted and submitted a sum of $50.00 for a processing fee in connection with the County's polygraph test which was the final step in the investigative process. Thereafter, Sergeant Frawley advised him that contrary to what he had said to Gallo at the interview, Gallo would be deemed to be unqualified on the basis of his steroid use more than five years earlier. Sergeant Frawley advised Gallo to sign a second declination letter, but Gallo refused.

Then, in the spring of 2001, Gallo learned that he had been bypassed on the eligibility list and that the Town had appointed other candidates from the list who had scores equal to or less than Gallo's score of 87.5. Consequently, in May 2001, Gallo made inquiries with regard to his status on the eligibility list. Gallo discovered that a declination letter dated October 2, 2000 was in his applicant file and that based on this declination, he was removed from consideration for appointment as a police officer.

Gallo challenged the declination document and the Suffolk County District Attorney's Office investigated his claim. The investigation revealed that an unidentified individual had forged the declination letter. Gallo then requested reinstatement, and on October 24, 2001, County's Civil Service Department subsequently invalidated the October 8, 2000 letter and notified him that he was being restored to the eligibility list for police officers.

On or about March 11, 2002, Gallo was advised that his eligibility for appointment as a police officer was being challenged by the Police Department pursuant to Civil Service §§ 50 and 58 and Suffolk County Civil Service Rule 8. In a letter dated April 11, 2002, Gallo refuted the Police Department's allegations. While the Section 50 proceeding was pending, Gallo remained on the list of eligible candidates.

On April 22, 2002, after reviewing the Police Department's allegations and Gallo's response, the County Civil Service Department determined that his disqualification was not warranted. As result of this decision, Gallo claims that his retroactive reinstatement to the eligible list based on his score of 87.5 should have remained undisturbed.

On or about April 22, 2002, the Town appointed three candidates as police officers, and all three candidates were rated lower than Gallo on the eligibility list. These candidates entered the Suffolk County Police Academy on or about April 22, 2002 which was the last class open to candidates on the eligibility list established after the May 22, 1999 examination. Upon inquiry, the Town informed Gallo that he ranked first on the eligibility list, but that the Police Department had advised the Town that he should not be considered for appointment because the Police Department wanted to disqualify him pursuant to Section 50. According to the complaint, this representation "effectively removed" him from the eligible list and "deprived him of an opportunity" for appointment as a police officer for the Town before April 2002.

On May 1, 2002, Gallo commenced this action. In papers dated June 3, 2002, the defendants move to dismiss the complaint for lack of subject matter jurisdiction, or alternatively, for failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that (1) Gallo fails to allege facts sufficient to invoke federal jurisdiction in this action; and (2) ...


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