The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs, fifteen individuals and two community organizations, brought this action seeking declaratory and injunctive relief plus attorneys' fees and costs against the County of Albany and its Board of Elections (collectively the "County"); Jamie Gilkey ("Gilkey"), Tyler Trice ("Trice"), and Dyann Parker ("Parker"); and others who are no longer part of the case.*fn1 Plaintiffs contend in four causes of action that the defendants conspired to deprive them of their constitutional and statutory rights by abusing the absentee ballot process in Albany County in violation of the First and Fourteenth Amendments, 42 U.S.C. § 1983, and the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq ('VRA"). Presently pending are the following motions for summary judgment pursuant to Fed. R. Civ. P. 56:
1. Plaintiffs' motion against Gilkey and Trice on all claims (Docket No. 100);
2. The County's cross-motion*fn2 as to two causes of action (Docket No. 102); and
3. The motion of Gilkey and Trice as to all claims (Docket Nos. 103, 104*fn3 ). For the reasons which follow, plaintiffs' motion is denied, the County's cross-motion is granted, and the motions of Gilkey and Trice are granted in part and denied in part.
The claims in this case follow from two earlier cases, one in this Court and the other in Albany County Supreme Court. In 2003, certain plaintiffs in this case commenced an action challenging a redistricting plan for the Albany County Legislature as violating the VRA. That challenge succeeded and resulted in an order for a special election. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 357 F.3d 260 (2d Cir. 2004). The special primary election was scheduled for March 2, 2004 and the special general election was scheduled for April 27, 2004.
Gilkey was employed by the Albany Housing Authority ("AHA") as an employment liaison officer in the Wage Center. Gilkey also served as a Democratic Party ward leader and the campaign manager for two candidates for the Albany County Legislature in the special election. Trice was also employed by the AHA as a grant implementation assistant. Leading up to the special primary election on March 2, 2004, Gilkey obtained blank applications for absentee ballots. Gilkey, Trice, and others brought applications to residents of the two districts in which his candidates were seeking nomination in the special primary. Those districts included apartment buildings operated by the AHA.
Under New York law, an individual may vote as an absentee voter if he or she will be absent from the county at the time of the election or is disabled, either permanently or temporarily, from appearing at the designated polling place on the day of the election. N.Y. Elec. Law § 8-400(1) (McKinney 1998). Applications for absentee ballots are made to the voter's county-of-residence Board of Elections on forms designated by that board. Id. at § 8-400(2). An applicant may direct that an absentee ballot be mailed or delivered "to any person designated for such purpose in writing by him, at the office of the board . . . ." Id. at § 8-406.
From the evidence proffered on these motions, it appears that Gilkey principally approached residents of the Townsend Park Homes on Central Avenue in Albany prior to the March 2004 special primary election. Townsend Park is an eighteen-story building operated by the AHA with approximately 158, one-bedroom apartments available to qualifying low-income senior and disabled individuals. Saunders Decl. (Docket No. 113(2)) at ¶ 2. The residents are predominantly African-American. Id. The building is designated as a polling place and residents may vote in the building. Id. at ¶ 13. The building is kept locked and is accessible only to residents, their guests, and AHA personnel. Id. at ¶ 3.
Prior to the primary election, Gilkey submitted numerous absentee ballot applications to the County Board of Elections ("Board").*fn4 The applications were signed by the voters, asserted various reasons for needing to vote by absentee ballot, and in many instances directed that the absentee ballot be held by the Board for Gilkey for delivery to the voter. Tr. of Gilkey Testimony at DeWitt Hr'g (Docket No. 100(2), Ex. D) ("Gilkey DeWitt Tr.") at 188. Gilkey submitted approximately 160 applications to the Board, which rejected approximately thirty and issued approximately 130 absentee ballots to Gilkey. Id. at 218. Most of those ballots were completed, signed, and submitted to the Board for the March 2 primary. Id.
Wanda Willingham, Lucille McKnight, and Ward DeWitt, plaintiffs in this action, then commenced an action in Albany County Supreme Court challenging the primary results in the three districts in which they were candidates based on the absentee ballot activities of Gilkey and Trice. A hearing on these allegations was held on March 17 and 18, 2004 during which Gilkey testified. See Gilkey DeWitt Tr. As a result of that hearing, the parties stipulated that the results in two of the three challenged districts would be accepted but that a new special primary election would be held in Albany County Legislature District 3, where Willingham was a candidate and the one most affected by Gilkey's activities. DeWitt Settlement Tr. (Docket No. 100(2), Ex. E) at 4-6.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
1. The County's "Cross-Motion"
Within the deadline for filing dispositive motions, plaintiffs moved for summary judgment against Gilkey and Trice but made no such motion as to either the County or Parker. The County then filed a "cross-motion" opposing plaintiffs' motion for summary judgment on their due process and equal protection claims under § 1983 to the extent that plaintiffs contend that Gilkey and Trice conspired with the County and seeking summary judgment against plaintiffs on their VRA and right of association claims. Plaintiffs contend that the County's cross-motion is improper since plaintiffs made no motion against the County.
In support of their motion against Gilkey and Trice, plaintiffs contend, inter alia, that the element of those claims requiring that Gilkey and Trice acted "under color of state law" has been demonstrated by their conspiring with the County to deprive plaintiffs of their constitutional rights. Pls. Mem. of Law (Docket No. 100(28)) at 13-15. If plaintiffs prevail on this argument against Gilkey and Trice, such a holding will arguably become the law of the case or at least persuasive authority against the County's denial of this element of plaintiffs' claims. See United States v. Thorn, 446 F.3d 378, 383 (2d. Cir. 2006) ("The law of the case doctrine counsels against revisiting . . . prior rulings in subsequent stages of the same case absent 'cogent' and 'compelling' reasons . . . ."). The County would potentially be prejudiced in its subsequent litigation of this case by foreclosing its opposition to plaintiffs' contention that the defendants acted "under color of state law." Given the County's stake in the outcome of this issue, then, its arguments in opposition to plaintiffs' motion against Gilkey and Trice on this ground will be considered.
Plaintiffs correctly note that the County's cross-motion as to plaintiffs' VRA and right of association claims were improperly cast and filed as a cross-motion rather than as a regular motion filed within the deadline for such motions. The only consequence of this choice, however, was to limit plaintiffs' time to respond. Compare N.D.N.Y.L.R. 7.1(b)(1) (granting seventeen days to file a response to a motion), with N.D.N.Y.L.R. 7.1(c) (granting eleven days to file a response to a cross-motion). Here, plaintiffs were granted additional time to respond, obviating any prejudice, and did in fact file a response. See Stipulation/Order filed Nov. 29, 2005 (Docket No. 112); Pls. Reply (Docket No. 113). Accordingly, the County's cross-motion will be considered in all respects.
2. Gilkey and Adverse Inferences
Gilkey testified at length under oath on March 17-18, 2004 during the DeWitt hearing in state court. See Docket No. 100(3), Ex. D. At his deposition in this case on January 28, 2005, Gilkey asserted his Fifth Amendment privilege against self-incrimination in declining to answer various questions. Gilkey Dep. Tr. (Docket No. 100(3), Ex. F) at 11-29. Plaintiffs contend that they are entitled to an adverse inference from Gilkey's refusal to answer those questions. Defs. Mem. of Law at 11-12.
A party testifying in a civil proceeding retains the right under the Fifth Amendment to refuse to answer questions if the answers might tend to incriminate him or her, but an adverse party may then be entitled to have the trier of fact "'draw a negative inference from the invocation of that right.'" Wechsler v. Hunt Health Sys., Ltd., No. 94 Civ. 8294(PKL), 2003 WL 21998980, at *2 (S.D.N.Y. Aug. 22, 2003) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318-20 (1976)); see also Brink's, Inc. v. City of New York, 717 F.2d 700, 710 (2d Cir. 1983). Any inference drawn from the invocation of the privilege must be reasonable under the circumstances. See Brink's, Inc., 717 F.2d at 710. Thus, on these motions, Gilkey's invocation of his Fifth Amendment privilege during his deposition will permit whatever negative inferences are reasonable under the circumstances in favor of plaintiffs.
The circumstances presented here, however, include not only Gilkey's invocation of his privilege during his deposition but also his unrestricted testimony during the DeWitt hearing. The purpose underlying the allowance of an adverse inference in civil cases is equitable, not punitive, and serves to vitiate the prejudice to the party denied discovery by invocation of the privilege. See United States v. 4003-05 5th Ave., 55 F.3d 78, 82-83 (2d Cir. 1995). In those instances where Gilkey answered a question during the DeWitt hearing, plaintiffs have not been denied discovery as to an answered question and no basis exists for an adverse inference against Gilkey. Therefore, plaintiffs are entitled to adverse inferences from Gilkey's invocation of his Fifth Amendment privilege only to the extent that the questions to which he asserted the privilege were not otherwise answered during his testimony in the DeWitt hearing.
The question remains, however, whether any adverse inference from Gilkey's invocation of the privilege is limited to Gilkey or should also be applied against Trice, the County, or both. In LiButti v. United States, 107 F.3d 110 (2d Cir. 1997), the Second Circuit held that where a non-party declines to answer questions at a deposition in a civil case on the basis of the Fifth Amendment privilege against self-incrimination, adverse inferences may be drawn against a party associated with the witness depending on the circumstances of the particular case. Id. at 120-21. The court identified "a number of non-exclusive factors" to guide this determination, including the nature of the relevant relationships, the degree of control over the non-testifying witness, the compatibility of the interests between the non-testifying witness and the party, and the role of the non-testifying witness in the litigation. Id. at 123-24. However, "[w]hether these or other circumstances unique to a particular case are considered by the trial court, the overarching concern is fundamentally whether the adverse inference is trustworthy under all of the circumstances and will advance the search for the truth." Id. at 124.
LiButti concerned the invocation of the privilege by a non-party witness where the court found that such invocation merited an adverse inference against a party. However, the rationale and analysis of LiButti have equal application to a case, as here, where a party invokes the privilege and the question presented is whether the party's invocation merits application of an adverse inference against other parties. At least one district court has followed LiButti in determining whether to apply an adverse inference from a party's invocation of the privilege against another party. See John Paul Mitchell Sys. v. Quality King Distrib., Inc., 106 F. Supp. 2d 462, 471 (S.D.N.Y. 2000). Accordingly, the LiButti factors will be considered in determining whether any adverse inference drawn against Gilkey from his invocation of the privilege at his deposition should also be applied against Trice, the County, or both.
As to Trice, his relationship with Gilkey appears to have been close politically and through their employment by the AHA, and their interests have remained intertwined leading up to and continuing through this litigation. Gilkey played a critical role in the events giving rise to this action. There is no evidence that Trice exercised any control over Gilkey's actions, but it appears throughout the underlying events and the course of this litigation that Trice has accepted and followed Gilkey's leadership and actions and joined with Gilkey. See Trice Dep. Tr. (Docket No. 100(3), Ex. G) at 58-59 (Trice accompanied Gilkey to solicit absentee ballot applications at Gilkey's request), 79-80 (same); Trice Aff. at ¶ 43 (same); Answers (Docket Nos. 24, 76) (Gilkey and Trice assert joint defenses). Accordingly, under all of the circumstances presented ...