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Kempkes v. Downey

March 31, 2008

THOMAS KEMPKES, PLAINTIFF,
v.
BRIAN M. DOWNEY, INDIVIDUALLY, MARY C. MARVIN, INDIVIDUALLY, GLENN D. BELLITO, INDIVIDUALLY, ROBERT J. UNDERHILL, INDIVIDUALLY, ANNE W. POORMAN, INDIVIDUALLY, WILLIAM H. BARTON, INDIVIDUALLY, AND THE VILLAGE OF BRONXVILLE, N.Y., DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

ORDER

Plaintiff Thomas Kempkes ("Plaintiff"), a police officer employed by Defendant Village of Bronxville ("Bronxville"), brings this action pursuant to 42 U.S.C. § 1983, alleging that Bronxville, its police chief, and the members of its town board: (1) violated his First Amendment rights by means of a retaliatory reduction in salary; (2) violated his Fourteenth Amendment right to equal protection by means of selective prosecution with regard to institution of disciplinary proceedings; (3) violated his First Amendment rights by means of retaliatory institution of disciplinary proceedings; (4) violated his First Amendment rights by means of retaliatory deprivation of disability benefits for injuries incurred in the performance of police duties; and (5) violated his First Amendment rights by means of retaliatory denial of health insurance coverage for his spouse. Defendants move to dismiss all claims. For the reasons stated in this Order, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

I. Background

A. Alleged Facts

For the purpose of this Motion, the Court accepts as true all facts alleged by Plaintiff in his Amended Complaint, which are as follows:

Plaintiff was at all relevant times an officer of the Bronxville Police Department. (Am. Compl. ¶ 3.) Beginning on or about September 6, 2002, Plaintiff received pecuniary and related benefits for injuries incurred in the performance of police duties, pursuant to New York General Municipal Law § 207-c ("Section 207-c"). (Id.)

On July 7, 2006, Defendant Brian M. Downey ("Chief Downey"), Bronxville Chief of Police, revoked Plaintiff's Section 207-c status and terminated benefits under it by written notice that Plaintiff was "suspended without pay pending the investigation into potential disciplinary charges being pursued against [him] . . . related to [his] failure to remain at home, while injured, on Thursday July 6, 2006." (Id. ¶ 6.) On or about August 21, 2006, Chief Downey instituted disciplinary charges against Plaintiff. (Id. ¶ 7.)

On December 13, 2006, the Bronxville Board of Trustees ("Town Board") commenced a hearing on the disciplinary charges brought by Chief Downey against Plaintiff.*fn1 (Id. ¶ 7.) At this hearing, attended by the Town Board Defendants and by Chief Downey, Plaintiff's counsel alleged that Plaintiff was being charged in retaliation for having "repeatedly expressed his concern" that the Bronxville Police Department was discriminating in its employment practices and in its law enforcement practices on the basis of gender and of race. (Id. ¶ 8.)

On December 21, 2006, Plaintiff submitted a letter to each of the Town Board Defendants again stating that the Bronxville Police Department was discriminating in its employment practices and in its law enforcement practices on the basis of gender and of race. (Id. ¶ 9.)

Beginning with the pay period ending February 2, 2007, Plaintiff's net bi-weekly salary was reduced by approximately $570. (Id. ¶ 9.) Plaintiff alleges that this "unilateral reduct[ion]" was made by Chief Downey as a result of Plaintiff's accusations raised at the hearing on December 13 and in his letters of December 21. (Id.)

At an unspecified time, the Bronxville Police Department denied Plaintiff health insurance coverage for his spouse, "to whom he was married subsequent to December 13, 2006." (Id. ¶ 11.) Plaintiff alleges that this, too, was a result of Plaintiff's allegations raised at the hearing on December 13 and in his letters of December 21. (Id.)

Finally, Plaintiff alleges that the actions of Defendants have caused him "to suffer: pecuniary losses and benefits; a loss of Section 207-c benefits; public humiliation; public embarrassment; emotional upset; anxiety; punishment for the exercise of his rights to free speech and to petition government for the redress of grievances; and ha[ve] otherwise [] rendered [Plaintiff] sick and sore." (Id. ¶ 12.)

B. Procedural History

Plaintiff filed his initial Complaint on February 21, 2007. On March 26, 2007, Plaintiff filed an Amended Complaint, adding the Town Board Defendants.

On April 16, 2007, Defendants filed this Motion to Dismiss all claims. The Motion was fully briefed on May 7, 2007, and submitted to Magistrate Judge George A. Yanthis, to whom it was referred for report and recommendation.*fn2

On October 12, 2007, Magistrate Judge Yanthis issued a Report and Recommendation ("R&R") recommending that "defendants' motion to dismiss should be (1) granted as to plaintiff's First Amendment claim based upon the revocation of his section 207-c status and the initiation of disciplinary proceedings and (2) denied in all other respects." (R&R 8-9.)

Defendants filed timely objections to the R&R, which are as follows:

1) The R&R applied the incorrect standard of review by failing to use the plausibility standard stated in Bell Atlantic Corp. v. ...


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