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Saleh v. City of New York

December 17, 2007

WAHEED SALEH, PLAINTIFF,
v.
THE CITY OF NEW YORK, KEVIN NICHOLSON, KISHON HICKMAN, AND JOHN DOES I-II, DEFENDANTS.



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

OPINION

Plaintiff Waheed Saleh brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants -- the City of New York and four law enforcement officers -- deprived him of his right to petition the government for a redress of grievances in violation of the First Amendment to the U.S. Constitution. Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment in their favor. Because Saleh's retaliation claim against the individual officers cannot be resolved as a matter of law based on the evidentiary record before this Court, defendants' motion is denied with respect to the individual defendants. Saleh has failed, however, to produce sufficient evidence for a jury to find the City of New York liable for the alleged acts of retaliation; therefore, defendants' motion for summary judgment is granted with respect to the City of New York.

I. BACKGROUND

The following facts are undisputed. Waheed Saleh entered the United States on November 24, 2000 and, as a visitor, was authorized to stay in this country for six months. (Defs.' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' 56.1") ¶ 5; Pl.'s Response to Defs.' Local Civil Rule 56.1 Statement of Undisputed Facts ("Pl.'s 56.1") ¶ 5.) At the conclusion of that six-month period, however, Saleh did not return to his home country; nor had he obtained permission to remain in the United States. (Defs.' 56.1 ¶ 6; Pl.'s 56.1 ¶ 6.)

Two and one half years later -- on November 25, 2003 -- Police Officer Kishon Hickman of the New York City Police Department ("NYPD") issued Saleh a summons for disorderly conduct. (Defs.' 56.1 ¶ 12; Pl.'s 56.1 ¶ 12.) A subsequent record check indicated that Saleh was the subject of several open warrants, and acting on that information, Hickman arrested him. (Defs.' 56.1 ¶ 13; Pl.'s 56.1 ¶ 13.) Within two weeks, Hickman issued Saleh another summons, this time for double parking. (Defs.' 56.1 ¶ 14; Pl.'s 56.1 ¶ 14.)*fn1 Saleh, in turn, lodged a complaint against Hickman with the Civilian Complaint Review Board ("CCRB") on December 19, 2003, alleging essentially that Hickman was harassing him. (Defs.' 56.1 ¶ 15; Pl.'s 56.1 ¶ 15.) Over the course of the next year, Saleh received at least one more summons, for disorderly conduct, from the NYPD. (Defs.' 56.1 ¶¶ 17, 19; Pl.'s 56.1 ¶¶ 17, 19.)

On December 20, 2004 -- one year after filing the CCRB compliant -- Saleh was arrested for overstaying his visa, and the Bureau of Immigration and Customs Enforcement ("ICE") placed him in removal proceedings.*fn2 (Defs.' 56.1 ¶¶ 8, 11; Pl.'s 56.1 ¶¶ 8, 11.) Thereafter, Saleh continued to file complaints against Hickman, including two with the NYPD Internal Affairs Bureau in June 2005, again alleging harassment by Hickman. (Defs.' 56.1 ¶¶ 25-26; Pl.'s 56.1 ¶¶ 25-26.)

Saleh then commenced this section 1983 action in early 2007, alleging that Hickman and three other NYPD officers -- defendants Kevin Nicholson and two officers whose names he does not know -- contacted federal immigration authorities in retaliation for Saleh's filing of the December 19, 2003 CCRB complaint. (Compl. ¶ 26.) Saleh contends that the officers' report of his immigration status violated his rights to freedom of speech and to petition the government secured by the First Amendment to the U.S. Constitution.*fn3 The City of New York is named as a defendant in this action pursuant to the doctrine of municipal liability.

After full discovery in this action, defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. They contend that, as a matter of law, (1) Saleh cannot prove the necessary elements of his retaliation claim, (2) the individual defendants are entitled to qualified immunity, and (3) no evidence supports municipal liability.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); LaFond v. Gen. Physics Serv. Corp., 50 F.3d 165, 171 (2d Cir. 1995). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). When determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); see also LaFond, 50 F.3d at 171.

Nevertheless, the party opposing summary judgment "must offer some hard evidence" in support of its factual assertions, D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), such that "'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party,'" Golden Pac. Bancorp v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004) (quoting Anderson, 477 U.S. at 249). Evidence that is "merely colorable" or "not significantly probative" is insufficient to prevent a court from granting summary judgment. Anderson, 477 U.S. at 249-50. Thus, mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

B. Saleh's Retaliation Claim Does Not Fail as a Matter of Law

Defendants contend that Saleh cannot prove all the elements of his retaliation claim based on the record in this action. To prevail on a retaliation claim, a plaintiff must show: "'(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). The parties do not contest the existence of the first element, but the second and third elements are very much in dispute.

Defendants maintain that the second element -- that defendants took adverse action against Saleh -- cannot be established unless Saleh shows that his speech was actually chilled by the alleged retaliatory act, but Saleh cannot do so, according to defendants, because the factual record unequivocally contradicts such a showing. With respect to the third element, defendants urge two reasons for the Court to find insufficient causation: First, they contend that because probable cause supported reporting Saleh to ICE -- i.e., defendants' reasonable belief that Saleh had overstayed his visa -- a fact-finder is barred from concluding that it was Saleh's filing of the CCRB complaint that caused defendants to report him to ICE. Second, defendants assert that ICE's investigation of Saleh was sufficiently independent of defendants' alleged retaliatory act to break the causal chain.

For the reasons described below, however, this Court does not find that Saleh is barred as a matter of law from proving his retaliation claim at trial, and therefore defendants are not entitled to summary judgment on that basis.

1. Saleh Need Not Prove That His Speech Was Actually Chilled to Prevail on His Retaliation Claim

As set forth above, the second element of Saleh's retaliation claim is that defendants took adverse action against him. See Gill, 389 F.3d at 380. Defendants contend that an act cannot constitute adverse action unless it actually chills plaintiff's speech. Saleh is unable to show that his speech was actually chilled, according to defendants, because, far from being chilled, he in fact continued filing complaints against NYPD officers -- including defendant Hickman -- even after his immigration status was allegedly reported to ICE. Defendants conclude, therefore, that Saleh's retaliation claim must fail as a matter of law.

Saleh disputes defendants' interpretation of the record. Pointing to evidence -- including his own deposition testimony -- that he contends would permit a jury to find that his speech was chilled notwithstanding his post-retaliatory complaints against the NYPD, Saleh ...


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