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George Thorsen v. County of Nassau

March 17, 2011

GEORGE THORSEN, PLAINTIFF,
v.
COUNTY OF NASSAU, ET AL., DEFENDANT.



The opinion of the court was delivered by: Lindsay, Magistrate Judge

MEMORANDUM AND ORDER

The plaintiff George Thorsen ("Thorsen") brought this action in February 2003 against the County of Nassau, the Nassau County Civil Service Commission (the "Commission"), and John Carway ("Carway") alleging, among other things, a violation of the First Amendment pursuant to42 U.S.C. § 1983, constructive discharge, and defamation. A jury trial was held before the undersigned from October 26, 2009 to November 6, 2009. Following the trial, the court granted, in part, the defendants' Rule 50(b) and 59(a) motions. The court found that the jury's award for emotional distress was excessive and indicated that there would be a new trial on damages unless Thorsen agreed to a reduction for his emotional distress damages. Thorsen accepted the remittitur and has now submitted his application for attorneys' fees and costs.

In addition to the expenses he incurred during the litigation before this court, Thorsen seeks to be reimbursed for expenses in connection with a related state court action. Thus, an understanding of the history of the case is necessary to a resolution of the attorneys' fees application.

BACKGROUND

In brief summary, Thorsen was employed by the Nassau County Department of Probation from sometime in the 1970s to 2002. In 1999, Thorsen who was serving as Assistant to the Director of Probation, applied for the position of Director. Thorsen had political support from Joseph Mondello, the Nassau County Republican Party Chairman. The defendant Carway, who was the Deputy Director of Probation, was also interested in the position. Carway's application was supported by Nassau County Executive Thomas Gulotta.In June 2000, the Commission found Thorsen unqualified for the position. Thorsen appealed their decision and, on June 27, 2000, the Commission denied Thorsen's appeal. See Amended Complaint at ¶ 14.

A. The Article 78 Proceeding

In July 2000, Thorsen commenced an Article 78 proceeding, challenging the Commission's decision to disqualify him from consideration for the position of Director of Probation due to a purported lack of managerial experience. Id. at ¶15. Thorsen sought an order compelling the Commission to process his application for appointment. Id.*fn1 On February 16, 2001, the Nassau County Supreme Court granted the petition in its entirety finding that the Commission's determination was both arbitrary and capricious. Id. at ¶ 16. A judgment was entered on April 9, 2001. On May 24, 2001, the Commission appealed the decision and, on December 16, 2002, the Appellate Division affirmed. The Commission then sought leave to appeal from the New York Court of Appeals.

B. The Federal Action and the Motion to Dismiss

On February 28, 2003, Thorsen filed his complaint in federal court. Thorsen alleged that he was denied due process under the Fourteenth Amendment and that his First Amendment right to free association had been violated. Thorsen also asserted claims under Article V, Section 6 of the New York State Constitution, unspecified sections of the New York State Civil Service Law, and for common law libel and slander. The defendants moved to dismiss.*fn2

By order dated December 9, 2003, Judge Platt dismissed Thorsen's Fourteenth Amendment due process claim with prejudice finding that (1) he never had a property interest in the Director's position, (2) he had divested himself of a property interest in the Assistant's position when he resigned; and (3) even if he did have a property interest, he had received and was continuing to receive due process at the state court level. Judge Platt also found that the First Amendment claim had not been sufficiently pled and dismissed the claim with leave to re-file a second amended complaint, but not until the underlying state court action was resolved. Judge Platt stated, in this regard, that:

State court litigation concerning the matters described above has yet to be resolved. The impression given at oral argument was that Plaintiff ultimately wishes this Court to force the Commission to grant him his appointment as Director of Probation. Yet this is not possible at the present time, for reasons of both federalism and judicial economy. The State courts may chose to issue such a mandamus to the Commission, but given the present posture of this case, the United States District Court lacks jurisdictional authority to do so. . . .

The case was administratively closed on February 12, 2004.

C. Thorsen's Subsequent State Court Proceeding

On April 20, 2004, Thorsen submitted a motion in the state court for an order of contempt for failure to comply with the state court judgment entered in April 2001. See Second Amended Complaint at ¶24. The Supreme Court denied the motion by order dated September 20, 2004. Id. at ¶25. On October 13, 2004, Thorsen appealed that decision. Id. at ¶26. On September 26, 2006, the Appellate Division affirmed the denial holding: several months before a judgment was even signed and entered in this proceeding, the position for which the petitioner was deemed qualified and for which the respondent was directed by judgment "to process the petitioner's application" was already filled . . . The petitioner never sought any injunctive relief as to that appointment. . . . As aptly noted by the Supreme Court, at this point, to compel the processing of the petitioner's application would be a futile gesture.

Additionally, because the judgment did not direct the actual appointment of the petitioner, it cannot be shown that the respondent's failure to comply with it caused the petitioner to lose the benefits of such an appointment. Therefore, . . ., he is not entitled to "full back pay, . . . benefits and all other emoluments of employment."

Upon receipt of the Appellate Division decision, Thorsen sought to have the ...


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