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Hoover v. County of Broome

April 15, 2008


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff Keith Hoover commenced the instant action pursuant to 42 U.S.C. § 1983 claiming that he was retaliated against for engaging in protected speech (reporting the assault of an inmate by corrections officers at the Broome County Jail) and asserting violations of his right to due process of law and New York Civil Service Law § 75-b. Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety.


At all time relevant hereto, Plaintiff Keith Hoover was employed as a corrections officer ("CO") with the Broome County Sheriff's Department ("BCSD"). On June 25, 2005, COs were called to respond to a "Code Yellow" (fight between inmates) at the A-Pod of the Broome County Correctional Facility (the "Facility") involving inmate Theodore Burke (the "Burke incident"). Plaintiff was among the COs that responded to remove Burke. Plaintiff observed as other COs removed Burke from the area.

A day or two after the Burke incident, Plaintiff told Sergeant Ronald Evans that some of the COs used excessive force in removing Burke. Plaintiff also apparently reported an incident concerning another inmate wherein Plaintiff claimed that certain COs destroyed some of the other inmate's property. Plaintiff claims that Sergeant Evans pressured Plaintiff into omitting reference to the destruction of property incident from the report concerning the Burke incident. Evans denies that he pressured Plaintiff in any way.

On July 6, 2005, Plaintiff requested to be considered for participation in the Crisis Management Suicide/Hostage negotiations course. On July 13, 2005, Plaintiff was selected to attend the training. Thereafter, Plaintiff requested to be removed from the training program. Plaintiff never participated in the training program.

On July 14, 2005, Plaintiff was involved in a verbal dispute with a lieutenant at the facility. During that dispute, Plaintiff defied the lieutenant's orders to draft a report; told the lieutenant that he did not have to talk to him until he (Plaintiff) was in uniform; told the lieutenant to get away from him; and used profanity towards the lieutenant. Thereafter, Plaintiff apologized to the lieutenant in person, in writing, and over the AS400 system.*fn1

On July 14, 2005, the Broome County Executive issued an Executive Order concerning whistleblower protections.

On July 19, 2005, Plaintiff met with Facility Administrator Mark Smolinsky to discuss the Burke incident. Plaintiff surreptitiously audio-taped a portion of the meeting. Smolinsky advised Plaintiff to file a report regarding the incident. After the meeting, Smolinsky ordered a full investigation of the incident. Stephen Barlow, the Facility's chief investigator, was assigned to conduct the investigation. After the investigation, Smolinsky concluded that the COs did not use excessive force upon Burke.*fn2

On July 25, 2005, Plaintiff wrote a letter to Smolinky requesting whistleblower protection. The letter requested protection from retaliation by certain employees of the BCSD, including Sergeant Castellano, Sergeant Guinan, Sergeant W. Shea, Sergeant Evans, and investigation officers Borchardt, Connors, and Kleinsmith. The bulk of the letter appears to reference Plaintiff's concern that he would be singled out by other COs because of his complains regarding other COs' activities while at work.*fn3 Although the letter stated that "I'm writing in response to our talk on 07/20/05,"*fn4 it makes no mention of the Burke incident. On August 16, 2005, Defendant Sheriff Harder received a copy of the July 25, 2005 letter and discussed the matter with Smolinsky.

On August 10, 2005, Defendant Harder sent Plaintiff a letter requesting written notice of any "prescribed controlled substance and potential side effect of any medication" that Plaintiff was then taking. Plaintiff contends that this request was in furtherance of a conspiracy to retaliate against him for reporting the Burke incident. Defendants claim the request was made because Plaintiff had been engaging in erratic behavior. Plaintiff complied with the request. No further course of action was taken.

On January 4, 2006, Plaintiff was involved in an incident whereby he used force on an inmate. Plaintiff wrote a report concerning the incident. The inmate also filed a complaint concerning the incident. Smolinsky directed that the matter be investigated. Barlow was assigned to investigate the matter. As a result of the incident, Defendant Undersheriff Gary O'Neill filed administrative charges against Plaintiff. Because these charges were pending, Plaintiff was temporarily reassigned to the overnight shift. On February 3, 2006, Plaintiff admitted to pushing the inmate and using profanity overheard by the public. Plaintiff accepted a three day suspension without pay.

On January 6, 2006, Plaintiff was involved in an argument with another CO regarding visitation practices. Lieutenant Irwin directed both COs to prepare reports concerning the argument. Ultimately, Irwin drafted a memorandum regarding work rules and expectations. The memo was issued to all second shift visitation officers.

Between March 16, 2006 and December 13, 2006, Plaintiff filed 12 grievances with the Undersheriff. The dates these grievances were filed is as follows: (1) March 16, 2005 (4 grievances); (2) April 1, 2006; (3) August 29, 2006; (4) December 1, 2006; (5) December 6, 2006; (6) December 8, 2006; (7) December 12, 2006; and (8) December 13, 2006 (two grievances). Under the grievance procedure in place, a grievant first makes a complaint with the Undersheriff (Step 1). If the grievant is unhappy with the Undersheriff's decision, he may proceed to have the Sheriff review the Undersheriff's decision (Step 2). The next step is to have the Sheriff's decision reviewed by the County's Personnel Officer (Step 3). If the grievant is still not satisfied after these steps, he may request that the matter proceed to arbitration.

With respect to the April 1 grievance, Plaintiff withdrew his appeal of the Step 1 decision. Plaintiff's August 29 grievance was accepted and the Undersheriff provided the requested relief. The Sheriff ruled in favor of Plaintiff on the December 1 grievance. Plaintiff dropped his December 6 grievance because he accepted the Undersherrif's reasoning. With regard to all the grievances except the December 8 grievance (which was denied for failure to use proper forms), Plaintiff admits that the County attempted to provide him with a good faith explanation of their denials.

On December 13, 2006, Plaintiff (together with his union representative) met with Undersheriff O'Neil to discuss Plaintiff's use of the grievance process. Plaintiff surreptitiously tape-recorded this meeting. The Undersheriff also sent a letter regarding Plaintiff's use of the grievance process to the Union president. Ultimately, Plaintiff directed that all eight of the grievances for which he requested arbitration be withdrawn.

On December 22, 2006, Plaintiff was issued a written counseling for allowing an inmate from another pod to enter the pod in which he was working. Plaintiff drafted a report denying any misconduct.

Plaintiff further alleges that, since he reported the Burke incident, he has been the subject of continued harassment, including being called a "rat bastard," "rat," "snitch" and other similar terms, being held for lengthy times between ...

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