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Fall v. City of Rochester

October 27, 2010

DAVID S. MAC FALL, STEPHEN B. TORTORA, STEPHEN J. WARD, MICHAEL V. YODICE, PLAINTIFFS,
v.
THE CITY OF ROCHESTER, CHIEF DAVID T. MOORE, GEORGE MARKET, EXECUTIVE DEPUTY CHIEF, DEPUTY CHIEF MICHAEL SMITH, SERGEANT RONALD MALLEY, SERGEANT JOSEPH WUKITCH, LIEUTENANT HERB BROWN, DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

INTRODUCTION

Lending credence to the adage that "nothing good happens after midnight," this action has its roots in an altercation involving two groups of people and several officers of the Rochester (New York) Police Department ("RPD") in the wee hours on the morning of June 1, 2007. What might have seemed at the time like an unexceptional late-night ruckus that would soon be forgotten ended up garnering considerable attention in the news media, spawning public accusations of "gay bashing" against the police officers, and generating no less than three lawsuits.

Two of those three suits were brought by five of the civilians who were involved in the June 1 incident, against some of the RPD officers and various other governmental defendants. In this, the third action, four of the RPD officers--David MacFall, Stephen Tortora, Stephen Ward, and Michael Yodice--have sued the City of Rochester ("City"), Police Chief David Moore ("Chief Moore"), and several other individuals, alleging due process and other constitutional claims under 42 U.S.C. § 1983.

Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By Order entered July 6, 2010 ("Rule 12(d) Order"), the Court notified the parties of its intent, pursuant to Rule 12(d), to convert the motion to a motion for summary judgment under Rule 56. Both sides have since filed additional materials in support of their respective positions.

BACKGROUND

In the early morning hours on June 1, 2007, the plaintiff police officers, while on duty, received a call reporting a fight in the area of South Goodman and Harvard Streets in Rochester. When they arrived on the scene, plaintiffs found two groups of people, who had been involved in an altercation with each other.

Initially, the officers made no arrests, and instead simply separated the combatants and directed them all to go home. According to the complaint in this action, however, the members of one group ("the first group") refused to leave, and began shouting profanities at, and otherwise verbally abusing, the officers.*fn1 Despite repeated orders to disperse, the first group remained in the area, continuing to scream at the officers, until the officers arrested three members of the group and took them into custody.*fn2

Within days after the incident, some of the members of the first group began publicly accusing plaintiffs of various forms of misconduct.*fn3 In particular, these individuals alleged that not only was the initial assault by the other group motivated by anti-gay bias, based on their actual or perceived sexual orientation, but also that some of the RPD officers had directed anti-gay slurs at them. They also alleged that the officers had used excessive force against them.

The RPD, through its Professional Standards Section ("PSS"), launched an internal investigation of the incident within a few days after it occurred. The focus of that investigation was on the officers' actions, to determine if any misconduct had occurred. In addition, the RPD began a separate investigation to determine whether criminal charges should be brought against any of the participants in the events of June 1.

While the complaint goes on at some length about these investigations and related events, the gist of plaintiffs' allegations is that the internal PSS investigation was politically driven, with the intent to scapegoat the police officers, in the hope of drumming up political support among the local gay community for the administration of Rochester Mayor Robert Duffy. Complaint ¶¶ 70, 71. According to plaintiffs, the result of the investigation was virtually preordained. On September 13, 2007, Chief Moore, in an internal email distributed throughout the RPD, announced that the internal investigation had been completed, and that the allegations against the police officers (i.e., the plaintiffs in the instant case) were sustained.

The day after Chief Moore's announcement, all four plaintiffs were suspended with pay. On September 19, 2007, each plaintiff also "received a letter with four (4) charges [against them]." Complaint ¶¶ 80-83. These were not criminal charges, but internal charges of misconduct, such as "use of profane and/or discourteous remarks" and "failure to prepare a C[rime ]R[eport]." Id.

On October 17, 2007, the separate criminal investigation was concluded. In a written report issued that day, the three RPD officers who had conducted that investigation found that plaintiffs had not engaged in any misconduct, and that no "gay bashing" had occurred. Complaint ¶ 86. The day after that report was issued, Monroe County District Attorney ("D.A.") Michael Green announced that a grand jury had concluded that there was no basis for any criminal charges against the officers, or any other participants in the June 1 incident. Complaint ¶ 88.

The internal charges against plaintiffs remained pending, however, and on December 11, 2007, the RPD offered each plaintiff a plea deal, under the terms of which each officer would agree to an unpaid suspension, ranging from five to twenty days, if he would agree to plead guilty to all four charges against him. Complaint ¶¶ 89-92. Each officer refused, and maintained his innocence.

In the meantime, five members of the first group involved in the June 1 incident had filed two lawsuits stemming from that incident. The first, Lieberman v. City of Rochester, 07-CV-6316, was filed on June 26, 2007 against the City and other defendants, including the four plaintiffs in this case, alleging that the RPD officers had violated those five individuals' civil rights. The second action, Doe v. Green, 07-CV-6538, which was filed on November 1, 2007, was brought against D.A. Green, Monroe County, and other defendants, based on events that occurred after the June 1 incident. The gist of the claims in that action was that Green had made public comments that were prejudicial to those plaintiffs' Lieberman lawsuit, and that he had manipulated the grand jury proceedings in order to exonerate the police officers, in an effort to curry political favor with the police union in advance of Green's upcoming re-election campaign.*fn4

In April 2008, all four plaintiffs were allowed to return to work at the RPD. Allegedly, no explanation was given for the decision to allow them to return. The internal charges against plaintiffs remained pending, and in fact they remain pending to this day, as will be explained in greater detail below. Complaint ¶ 95. Plaintiffs allege that although they resumed working, they were denied certain assignments and promotions, which has caused them to earn less than they otherwise would have.

Plaintiffs filed the complaint in this action on March 9, 2009. The defendants are the City, Chief Moore, RPD Executive Deputy Chief George Market, RPD Deputy Chief Michael Smith, RPD Sergeants Ronald Malley, Joseph Wukitch, and Daniel Beradini, and RPD Lieutenant Herb Brown.

The first two causes of action allege that defendants violated plaintiffs' rights to due process, although the difference between these two claims is not entirely clear. The third cause of action alleges a violation of plaintiffs' First Amendment rights, based on defendants' alleged retaliation against plaintiffs for refusing to plead guilty to the administrative charges against them.

The fourth through seventh causes of action assert claims under New York law. The fourth cause of action asserts a claim for intentional or negligent infliction of emotional distress. The fifth cause of action asserts a claim against the City and the RPD based on their alleged negligence in hiring, training and supervising the officers who conducted the PSS investigation. The sixth and seventh causes of action assert claims for defamation, although like the first two causes of action the difference between them is less than clear.*fn5

The eighth cause of action asserts a claim "for violation of civil rights under color of law." Complaint at 32. This appears to be something of a catch-all § 1983 claim, or a claim for attorney's fees under 42 U.S.C. § 1988; see Complaint ¶¶ 149, 152. Plaintiffs seek compensatory and punitive damages on all their claims, as well as attorney's fees.*fn6

DISCUSSION

I. Plaintiffs' Request for Discovery

In their memorandum of law filed in response to the Court's Rule 12(d) Order, plaintiffs state that summary judgment would be premature at this stage because there has been no discovery. Plaintiffs contend that they lack essential facts to defend against the motion (though they do not state what those facts are), and that the motion should therefore be denied under Rule 56(f)(1). See Dkt. #16 at 2.

Pursuant to Rule 56(f), the Court may deny summary judgment where the opposing party "cannot for reasons stated present by affidavit facts essential to justify the party's opposition." To support a Rule 56(f) application, the opposing party's attorney must file an affidavit describing: "(I) the information sought and how it will be obtained; (ii) how it is reasonably expected to raise a genuine issue of material fact; (iii) prior efforts to obtain the information; and (iv) why those efforts were unsuccessful." Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 167 (2d Cir. 2003), rev'd on other grounds, 544 U.S. 197 (2005). Whether to grant a Rule 56(f) motion lies within the discretion of the district court. MM Arizona Holdings LLC v. Bonanno, 658 F.Supp.2d 589, 596 (S.D.N.Y. 2009).

Plaintiffs' attorney has not submitted such an affidavit, and plaintiffs' request could be denied on that ground alone. Even aside from that, however, the Court finds that plaintiffs' arguments in this regard are not well taken. The Court's Rule 12(d) Order made clear that the basis for converting the motion was that both sides had referenced disciplinary proceedings against plaintiffs that were ongoing at the time of the filing of the complaint, and that have continued since then. Plaintiffs, who are represented by separate counsel in those proceedings, presumably are well aware of the progress of the ...


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