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Ruotolo v. City of New York

July 19, 2006

ANGELO RUOTOLO, PLAINTIFF,
v.
CITY OF NEW YORK; RAYMOND KELLY, COMMISSIONER OF POLICE, CITY OF NEW YORK; PATRICK TIMLIN, FORMER CHIEF OF POLICE, CITY OF NEW YORK, BRONX; ANTHONY IZZO, CHIEF OF POLICE, CITY OF NEW YORK, BRONX; RAYMOND ROONEY, DEPUTY INSPECTOR, NEW YORK CITY POLICE DEPARTMENT, FORMERLY COMMANDING OFFICER, 50TH PRECINCT, BRONX; WILLIAM RILEY, LIEUTENANT, NEW YORK CITY POLICE DEPARTMENT, FORMERLY INTEGRITY CONTROL OFFICER, 50TH PRECINCT, BRONX; THOMAS DIRUSSO, DEPUTY INSPECTOR, 50TH PRECINCT, NEW YORK CITY POLICE DEPARTMENT, BRONX; PHILLIP WISHNIA, LIEUTENANT, 41ST PRECINCT, NEW YORK CITY POLICE DEPARTMENT, BRONX, DEFENDANTS.



The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge

OPINION & ORDER

Angelo Ruotolo, a retired New York City Police sergeant, brings this action against a number of individual officers of the New York City Police Department ("NYPD"), alleging that they subjected him to acts of retaliation after he gave his commanding officer a memorandum outlining possible environmental risks at his police precinct.*fn1 Ruotolo also asserts a claim against the City of New York pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 2d 611 (1978). He brings both claims pursuant to 42 U.S.C. § 1983 for violations of his rights under the First and Fourteenth Amendments to the United States Constitution.

Although the Court previously denied motions to dismiss the complaint and for summary judgment in this action, defendants have now renewed their motion to dismiss in light of the recent decision by the United States Supreme Court in Garcetti v. Ceballos, 547 U.S. ___, 126 S.Ct. 1951, 164 L.Ed. 2d 689 (May 30, 2006). In that action, heretofore unexamined in this circuit, the Supreme Court determined that the First Amendment does not protect a government employee "from discipline based on speech made pursuant to the employee's official duties." 126 S.Ct. at 1955. Because Ruotolo prepared his report pursuant to his official duties as his precinct's Command Safety Officer, the First Amendment does not protect that speech. The complaint is therefore dismissed on the basis of Garcetti.

I. BACKGROUND

This motion comes before the Court on the cusp of trial after three years of litigation, during which the parties beat a steady tattoo of motions for resolution by the Court. Among other matters, the Court ruled on a previous motion to dismiss the complaint as well as a motion for summary judgment, a motion to amend the complaint, various discovery motions and motions for reconsideration, as well as a motion to bifurcate the Monell claims from the claims against individual police officers. On May 30, the day the parties submitted the final Joint Pretrial Order, and with the trial only two weeks away, the U.S. Supreme Court issued its decision in Garcetti v. Ceballos. Defendants immediately renewed their motion to dismiss and the Court adjourned the trial pending resolution of this motion.

The following facts, relevant for the purposes of this motion, are taken from the complaint and are accepted as true. See Kirch v. Liberty Media Corp., 449 F.3d 388 (2d Cir. 2006). At the time the events giving rise to this action took place, Ruotolo had been an officer with the NYPD for 20 years and was serving as the Training and Safety Officer of the 50th Precinct in the Bronx, New York City. (Second Amended & Supplemental Complaint ("Amend. Compl.") ¶¶ 16-17.) "[I]n his capacity as safety officer," the complaint alleges, Ruotolo wrote a report identifying possible environmental risks at the precinct (the "Report"). (Id. ¶ 18.) In the Report, Ruotolo identified possible air and water contamination caused by spills from precinct gasoline storage tanks. He also listed a number of health problems reported in the precinct that, he suggested, could be linked to the contamination. (Id. ¶ 19.) The Report was dated October 28, 1999 and delivered to Ruotolo's commanding officer. (Id.) The complaint alleges that Ruotolo "asked, as Command Safety Officer," for a thorough environmental evaluation of the 50th Precinct. (Id. ¶ 20.) The precinct's environmental issues received publicity in several newspapers. At some point after Ruotolo submitted his report, the City of New York allegedly abated the hazard. (Id. ¶¶ 21-24.)

Ruotolo alleges that after he submitted his Report, he began to suffer a pattern of retaliatory acts by his superiors. For example, he was denied requested time off, stripped of his assignment as Training and Safety Officer, reassigned to lower-status patrol work, administratively transferred to a less desirable precinct and disciplined for allegedly trivial and fabricated reasons. (Id. ¶¶ 26-34.) Ruotolo claims that the pattern of retaliation worsened after he filed this action. (Id. ¶¶ 44-45.) Moreover, he received his first poor performance evaluation in 20 years on the job, was placed on "modified duty" and was stripped of his badge and right to carry a weapon for an allegedly minor infraction of NYPD rules. (Id. ¶¶ 44-52, 59.) Ruotolo ultimately applied for retirement, because he believed that the NYPD was attempting to force him to leave, and that if he did not retire voluntarily, his retirement with benefits would be jeopardized. (Id. ¶¶ 67-70.)

Ruotolo brought this action on July 8, 2003, claiming violations of his First and Fourteenth Amendment rights in that he was retaliated against for exercising his right to engage in free speech about a matter of public interest "that, as Safety Officer, was critical to the welfare of his colleagues and the public." (Id. ¶¶ 55.)

II. ANALYSIS

A. Legal Standards

(1) Motion to Dismiss the Complaint

A court may grant a motion to dismiss the complaint only if "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 L.Ed. 2d 80 (1957)) (internal quotation marks omitted). In reviewing a motion to dismiss, a court must accept as true the factual allegations set out in the plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff and construe the complaint liberally. See Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).

(2) The Scope of First Amendment Speech as Recently Construed by the Supreme Court

The United States Supreme Court clarified in Garcetti v. Ceballos, 547 U.S. ___, 126 S.Ct. 1951, 164 L.Ed. 2d 689 (May 30, 2006), that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 126 S.Ct. at 1960. In other words, the First Amendment does not protect a government employee "from discipline based on speech made pursuant to the employee's official duties." 126 S.Ct. at 1955. In Garcetti, a supervising calendar deputy named Richard Ceballos in the Los Angeles district attorney's office was responsible for investigating aspects of pending cases, including, at times, investigating the accuracy of search warrants and supporting affidavits. Although Ceballos prepared and submitted to his employer a memorandum that expressed concerns with ...


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