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McAllan v. Essen

September 26, 2007

RICHARD J. MCALLAN, PLAINTIFF,
v.
THOMAS VON ESSEN, ET AL., DEFENDANTS.
RICHARD J. MCALLAN, PLAINTIFF,
v.
MICHAEL BLOOMBERG, INDIVIDUALLY AND AS MAYOR OF THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell United States District Judge

MEMORANDUM ORDER AND OPINION

Pro se plaintiff Richard McAllan commenced actions in 2001 and 2003 against the City of New York ("City") and several city officials, pursuant to 42 U.S.C. § 1983, alleging that defendants retaliated against him for asserting his First Amendment rights and for filing a False Claims Act ("FCA") action against them. Plaintiff also alleges that defendants violated his due process rights by subjecting him to a disciplinary proceeding. Defendants move for summary judgment dismissing the Second Amended Consolidated Complaint. For the reasons stated below, defendants' motion is granted.

BACKGROUND

This case arises from plaintiff's employment in the Emergency Medical Services ("EMS") Telemetry Unit of the New York City Fire Department ("FDNY"), which provides medical guidance to EMS field units. Plaintiff, a vocal and litigious critic of the FDNY and the City, filed suit in 2001 (the "Von Essen action") against various municipal entities, officials, and employees, including then-Mayor Rudolph Giuliani, alleging, inter alia, that defendants changed his duty status from light-duty to full-duty, threatened to remove him from his position within the FDNY, and otherwise treated him "unprofessionally," all in retaliation for exercising his First Amendment rights and for filing an FCA action against the City in 1998. Plaintiff also alleged that FDNY media policy had the effect of chilling plaintiff's speech; the Court has already dismissed this claim. In 2004, plaintiff served many of the same defendants with an amended complaint in a second action (the "Bloomberg action"), in which he alleges denial of due process in connection with a disciplinary hearing, retaliatory impairment of his pension rights, and discovery misconduct by defendants in the Von Essen action. The Court has previously dismissed the claims related to discovery misconduct. The Court consolidated the Von Essen and Bloomberg actions and plaintiff filed a Second Amended Consolidated Complaint.

The facts are laid out fully in the detailed Report and Recommendation ("Report") of Magistrate Judge Henry B. Pitman, dated September 29, 2006, familiarity with which is assumed. Judge Pitman recommended granting defendants' motion for summary judgment and dismissing the Second Amended Consolidated Complaint. Plaintiff filed timely objections ("Objections"), which defendants oppose, in which plaintiff argues that he has raised genuine issues of fact regarding whether defendants' actions towards him have been retaliatory. Plaintiff also renewed his request, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, to stay the motion for summary judgment while plaintiff conducts additional discovery. Finally, plaintiff has requested review of two orders issued by Judge Pitman: an order denying plaintiff's motion for sanctions and an order denying plaintiff's request for leave to file a Second Supplemental Affirmation in opposition to defendants' motion for summary judgment.*fn1

DISCUSSION

I. Plaintiff's Rule 56(f) Motion

Plaintiff has submitted a purported Rule 56(f) affidavit (Pl.'s 56.1 Counterstatement ¶¶ 241--248), arguing that summary judgment would be premature in light of the fact that discovery has not been completed. Under Rule 56(f) of the Federal Rules of Civil Procedure, parties lacking information necessary to oppose a summary judgment motion may seek further discovery. See Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 573 (2d Cir. 2005). To oppose a motion on the basis of Rule 56(f), a party must file an affidavit detailing: "(1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999) (quoting Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995)).

Plaintiff has not satisfied the second prong of this test. Plaintiff argues that further discovery will establish the basis for defendants' alleged retaliatory animus towards him. Specifically, he argues that defendants have in their possession information that will prove that his criticism of the City's public safety radio system and FDNY contracts with a private ambulance company was valid, and, as a result, a jury will be more likely to conclude that defendants retaliated against him. (Objections ¶ 63.) However, as this Court has reminded plaintiff on several occasions, see, e.g., McAllan v. Von Essen, 2006 U.S. Dist. LEXIS 68138, 2006 WL 2724029, at *1 (S.D.N.Y. Sept. 22, 2006), this action addresses whether defendants retaliated against plaintiff because he filed a False Claims Act case and engaged in protected First Amendment activities criticizing the City and the FDNY; it does not address whether the underlying False Claims Act action had merit or whether plaintiff's comments were true. It is irrelevant for purposes of the First Amendment retaliation analysis whether the protected speech was also accurate. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) ("[N]either factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct."); Reuland v. Hynes, 460 F.3d 409, 414 (2d Cir. 2006) ("False speech, as well as hyperbole, is still entitled to First Amendment protection, as long as it is not made with knowledge or reckless disregard of its falsity."). Accordingly, the Report correctly assumes that plaintiff's comments on these issues qualify as constitutionally protected speech. (See Report 19.) Because additional discovery regarding the truth of plaintiff's comments will not uncover any additional evidence relevant to this action, plaintiff's Rule 56(f) motion is denied.

II. Review of Magistrate Judge's Orders

Plaintiff requests review of two orders issued by Judge Pitman: (1) an order denying plaintiff's motion for sanctions, see McAllan v. Von Essen, 2006 U.S. Dist. LEXIS 68138, 2006 WL 2724029 (S.D.N.Y. Sept. 22, 2006), and (2) an order denying plaintiff's request for leave to file a Second Supplemental Affirmation in opposition to defendants' motion for summary judgment. A judge may reconsider a pretrial order regarding nondispositive issues "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A decision is "clearly erroneous" when the Court is, "upon review of the entire record, [] left with the definite and firm conviction that a mistake has been committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006). "It is well-settled that a magistrate judge's resolution of a nondispositive matter should be afforded substantial deference and may be overturned only if found to have been an abuse of discretion." RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587 (PKL), 2000 U.S. Dist. LEXIS 4892, 2000 WL 420548, at *2 (S.D.N.Y. Apr. 17, 2000).

A matter is nondispositive if it "does not dispose of the litigation." Nikkal Indus., Ltd. v. Salton, Inc., 689 F. Supp. 187, 189 (S.D.N.Y. 1988). Orders concerning Rule 11 sanctions and orders denying supplemental briefing are both considered nondispositive and are thus subject to the "clearly erroneous or contrary to law" standard. See Weeks Stevedoring Co. v. Raymond Int'l Builders, Inc., 174 F.R.D. 301, 303--04 (S.D.N.Y. 1997) ("The imposition of sanctions is reviewable under the 'clearly erroneous or contrary to law' standard unless the sanction itself can be considered dispositive of a claim.").

Here, plaintiff's objections to Judge Pitman's order denying sanctions are completely groundless. This Court has already rejected plaintiff's argument that the determination of the New York City Workers' Compensation Board that he is "permanently partially disabled" has preclusive effect with respect to the FDNY's determination of his duty status. See McAllan v. Von Essen, 2004 U.S. Dist. LEXIS 17052, 2004 WL 1907752, at *2 (S.D.N.Y. Aug. 25, 2004) (denying plaintiff's motion for reconsideration of order denying plaintiff's motion for partial summary judgment in the Von Essen action and granting in part defendants' motion to dismiss the amended complaint in the Bloomberg action). The Court also agrees with Judge Pitman's determination that none of the evidence produced by plaintiff would compel defendants to concede that plaintiff had been assigned to some sort of permanent light-duty status.

The Court likewise finds no error in Judge Pitman's Order denying plaintiff leave to file a Second Supplemental Affirmation in opposition to defendants' motion for summary judgment. In his proposed affirmation, which the Court has reviewed, plaintiff offers evidence that he claims demonstrates that his criticism of the FDNY and other city agencies was accurate. As the Court has just ruled, however, evidence related to the accuracy of plaintiff's criticism of the FDNY and the City is in no way related to plaintiff's ...


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