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Lieberman v. City of Rochester

February 4, 2010

JOSH LIEBERMAN, ET AL., PLAINTIFFS,
v.
CITY OF ROCHESTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge

DECISION & ORDER

PRELIMINARY STATEMENT

By order dated August 20, 2007, the above-captioned matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 7).

This case arises out of an alleged "gay-bashing" incident and the response thereto by various officers of the Rochester Police Department ("the Incident") that took place on June 1, 2007 in the area of South Goodman and Harvard Streets in the City of Rochester. On June 26, 2007, plaintiffs filed this action against the City of Rochester (the "City") and the following members of the Rochester Police Department ("RPD"): Chief David Moore, Sergeant Shaw, Lieutenant Ward, and Officers Tortora, MacFall and Yodice. (Docket # 1). Their complaint asserts constitutional claims under 42 U.S.C. § 1983, as well as common law claims for assault and battery, intentional infliction of emotional distress and negligent infliction of emotional harm. (Docket # 21 (the "Complaint")). Plaintiffs also seek punitive damages. ( Id .). All defendants are currently represented by the City's Corporation Counsel ("Corporation Counsel").

Following the Incident, RPD's Professional Standards Sections commenced an internal investigation of the conduct of defendants Lieutenant Ward and Officers Tortora, MacFall and Yodice (collectively, "the Officers") during the Incident. (Docket # 26-2 at ¶ 4). Based on that investigation, each of the Officers was charged with violations of several RPD rules and regulations. ( Id .). Each was also suspended from work for a period of time. (Docket # 26-3 at ¶¶ 15-21, 26). At the time this motion was argued, the charges were still pending.

On March 9, 2009, the Officers, represented by private counsel, filed a civil complaint in federal court against the City and several individual RPD officers, including Chief Moore.*fn1 (Docket # 26-4). The complaint asserts due process and First Amendment violations under 42 U.S.C. § 1983, as well as claims for defamation and intentional and negligent infliction of emotional distress, in connection with RPD's internal investigation of the Incident. ( Id .).

Currently pending before this Court is a motion brought by the Officers to disqualify Corporation Counsel from representing them in this action. (Docket # 26). Specifically, the Officers contend that Corporation Counsel suffers from a conflict of interest arising from the City's roles in the three separate proceedings -- this civil action, the Officers' civil action and the disciplinary proceedings. (Docket # 26-2 at ¶¶ 5-7). The Officers are represented on this motion by the same attorney who represents them in their Section 1983 action against the City.

Although the circumstances presented through this motion appear unusual and raise issues that require careful attention and consideration, I conclude that disqualification of Corporation Counsel is not warranted at this time.

FACTUAL BACKGROUND

I. Plaintiffs' Lawsuit Against the Officers

According to the Complaint, plaintiffs were walking home in the early hours of June 1, 2007, near South Goodman and Harvard Streets in the City of Rochester, when a group of four individuals exited a cab and began shouting anti-gay epithets at them. (Docket # 21 at ¶¶ 21-23). Plaintiffs allege that the group then attacked them by kicking, punching and beating them with a metal pipe. ( Id . at ¶ 24). Plaintiffs Herrick, Barrett and Terrance allege that they were injured by the beatings. ( Id . at ¶¶ 24, 28). After a flurry of telephone calls, including to 911, plaintiffs left the scene of the confrontation and returned a short time later to find that their attackers were still present and that RPD officers had arrived. ( Id . at ¶¶ 28-31).

According to plaintiffs, Officers Tortora and MacFall took no action against the perpetrators and refused to address their complaints that they had been attacked because of their perceived sexual orientation. ( Id . at ¶ 33). According to plaintiffs, the officers instead directed them to go home or face arrest. ( Id . at ¶¶ 33-37). Plaintiff Terrance further alleges that when he persisted in asking the police to file a complaint against the attackers, Officer MacFall made derogatory comments about his perceived sexual orientation and then assaulted him. ( Id . at ¶¶ 38-43). Plaintiff Lieberman also alleges that a police officer assaulted him and used similar derogatory epithets. ( Id . at ¶¶ 50-52). Lieberman was charged with three counts of disorderly conduct, taken to jail and released on bail a short time later. ( Id . at ¶ 59). Terrance was also taken into custody and subsequently released on charges of failure to disperse. ( Id . at ¶ 60).

Each of the plaintiffs in this action has asserted claims against the Officers and Sergeant Shaw for violations of the Equal Protection Clause under 42 U.S.C. § 1983, for common law torts of intentional and negligent infliction of emotional harm, and for punitive damages. ( Id . at ¶¶ 61-237). In addition to those claims, plaintiffs Terrance and Lieberman have asserted claims against the Officers and Shaw for excessive use of force under 42 U.S.C. § 1983 and for common law torts of assault and battery. ( Id .). Chief Moore is a named defendant only in the Section 1983 equal protection claims. ( Id. ). The City is a named defendant in Section 1983 claims brought under Monell v. Dep't of Soc. Servs. of the City of New York , 436 U.S. 658 (1978), as well as in the equal protection claims. ( Id. ).

II. The Officers' Lawsuit Against the City

Following the Incident, RPD's Professional Standards Section ("PSS") commenced an investigation of the Officers' conduct during the Incident. (Docket # 26-4 at ¶ 39). Days later, the RPD also initiated an internal criminal investigation of the Officers' actions. ( Id . at ¶ 41). The criminal investigation apparently concluded on October 18, 2007, with a determination by a Monroe County grand jury that no criminal charges against the Officers were warranted. ( Id . at ¶ 88).

At the conclusion of the PSS investigation on September 14, 2007, each of the Officers was charged with disciplinary violations and suspended from work with pay. ( Id . at ¶¶ 80-83). Specifically, Officers MacFall, Tortora and Yodice were charged with use of profane and/or discourteous remarks, failure to prepare reports*fn2 and violation of truthfulness. ( Id . at ¶¶ 80, 81, 83). Lieutenant Ward was charged with use of profane and/or discourteous remarks, failure to prepare reports and failure to supervise.*fn3 ( Id . at ¶ 82). Each of the Officers pleaded not guilty. ( Id . at ¶¶ 89-92). In accordance with Section 75 of the New York Civil Service Law, a hearing is required to be held on the disciplinary charges (the "Article 75 proceeding"), after which the hearing officer must make a recommendation whether the charges should be sustained.*fn4 (Docket # 29 at ¶ 13). RPD, through the Chief of Police, will then determine whether to accept or reject the recommendation of the hearing officer.

In April 2008, the Officers' suspensions ended and they were permitted to return to work. (Docket # 26-4 at ¶ 95).

In September 2008, the Officers served the City with a notice of claim pursuant to N.Y. Gen. Mun. Law § 50-e. (Docket # 26-2 at ¶ 6). On March 9, 2009, the Officers filed their federal Section 1983 complaint against the City, Chief Moore and various other RPD officers and officials. (Docket # 26-4). In the complaint, the Officers allege that the City's investigation and the disciplinary charges instituted against them were politically motivated in order to get the "gay vote" following criticism in the media of the Officers' conduct during the Incident. ( Id . at ¶¶ 40, 70-71). The Officers allege that the PSS was intent to charge them with misconduct and deliberately ignored exculpatory evidence in reaching its decision to lodge charges. ( Id . at ¶¶ 64-66). The Officers' causes of action include Section 1983 ...


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