The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs Corporal Kent Singer ("Cpl. Singer"), Corrections Officer Thomas Nollner ("CO Nollner"), and Corrections Officer Jonathan Decker ("CO Decker") (collectively "plaintiffs") bring this action against defendants Sergeant Christopher C. Ferro ("Sgt. Ferro"), Captain Jon Becker ("Cpt. Becker"), Ulster County Sheriff Paul J. Van Blarcum("Sheriff Van Blarcum"), Superintendent of Corrections James R. Hanstein ("Superintendent Hanstein"), Ulster County Undersheriff Frank Faluotico ("Undersheriff Faluotico"), and the County of Ulster ("County") (collectively "defendants") under Title 42, United States Code, section 1983. Plaintiffs contenddefendants violated the First Amendment to the United States Constitution by retaliating against them for their protected speech and associations.
Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule __"). Plaintiffs opposed and moved to file a supplemental complaint pursuant to Rule 15. The motions were considered on their submissions without oral argument.
In September 2008, during his employment hours and on a work computer, Cpl. Singer created a parody using the well-known Absolut Vodka advertisement. A computer program allowed him to rename the advertisement "Absolut Corruption." Acting alone, he pasted the faces of four jail supervisors inside the vodka bottle: defendant Sgt. Ferro, defendant Cpt. Becker, Warden Ray Acevedo ("Warden Acevedo"), and then-Superintendent of Corrections Brad Ebel ("Former Superintendent Ebel").A copy of the parody is attached to this decision as Addendum "A."
After creating the parody, Cpl. Singer showed it to five colleagues in or near the control room of the Ulster County Jail: James Dugan, Bradley Higgins, Matthew Bogart, plaintiff CO Nollner, and plaintiff CO Decker. Plaintiff CO Nollner disputes that Cpl. Singer showed him the parody. Shortly after showing his co-workers the parody, Cpl. Singer threw the parody in the garbagein the control room.According to him, he did not intend to show the parody to any of his supervisors or to make it public.
Cpl. Singer believed certain individuals at the jail were corrupt, including those portrayed in the parody. According to him, "[i]t was a political statement. I thought it was funny." Redding Aff., Ex. C., Dkt. No. 50-4, 24 ("Singer Dep."). The alleged unethical conduct at the jail included Former Superintendent Ebel pre-arranging promotions of defendant Cpt. Becker and defendant Sgt. Ferro without appropriate procedures or interviews; promotion of Cpt. Becker to lead the Sheriff's Emergency Response Team ("SERT")*fn1 without enough supervisory experience; Cpt. Becker's dual role as head of SERT and Internal Affairs which created a conflict of interest because Internal Affairs investigates complaints against officers; and Cpt. Becker and Sgt. Ferro's friends at the jail receiving jobrelated perks, such as special assignments and equipment. Cpl. Singer also believed Warden Acevedo was corrupt because he was once arrested for soliciting a prostitute and thought defendant Sgt. Ferro was a womanizer who manipulated schedules to give his friends time off, which resulted in payroll discrepancies. Despite another officer, Sergeant Kerry Winters ("Sgt. Winters"), alerting Former Superintendent Ebel of the payroll issues, no misconduct was charged in connection with the discrepancies.
One day after discarding the parody, Cpl. Singer learned that someone retrieved it from the garbage and posted it on a bulletin board in the jail. According to Sgt. Winters, defendant Sgt. Ferro saw the parody on the bulletin board and he and defendant Cpt. Becker were upset by it. Sgt. Ferro heard that Cpl. Singer was the one who created it. Sgt. Ferro then sent the parody to Warden Acevedo for an investigation. Warden Acevedo testified that he found the parody disturbing, but did not think it violated jail rules or regulations. No further investigation was conducted.
On September 25-26, 2008, shortly after creating the parody, Cpl. Singer was assigned to prisoner transports. The assignments were made by defendant Sgt. Ferro and another corporal, subject to the watch commander's deferential review. Assignment to prisoner transports involves taking prisoners to and from court, the hospital, and other places. Officers are sometimes required to work overtime and cancel personal obligations to complete the transports. Prior to this time, Cpl. Singer was assigned to prisoner transports on occasion. However beginning in April 2008 when his mother became ill, he was not assigned to prisoner transports at his request.*fn2
On October 1, 2008, Cpl. Singer met with defendant Cpt. Becker. Cpl. Singer took a micro-cassette recorder to the meeting in Cpt. Becker's office, which was not in a secure part of the jail. According to Cpl. Singer, "I had no idea what I was getting into" and "heard that [defendants Cpt. Becker and Sgt. Ferro] were head-hunting over this [parody]." Singer Dep., 77-78, 80-82. Without telling defendant Cpt. Becker, Cpl. Singer secretly recorded the conversation. At the meeting, Cpl. Singer informed Cpt. Becker he could not perform prisoner transports anymore because of his mother's health problems and requested that his work be limited to inside the facility. Cpt. Becker granted the request. Cpt. Becker then told Cpl. Singer that he knew Cpl. Singer was the one who created the parody, even though he could not prove it. He also suspected, since they were all friends, that plaintiffs CO Decker and CO Nollner were in the room when Cpl. Singer created it. Cpt. Becker believed CO Decker and CO Nollner had a duty to report Cpl. Singer's misconduct to their supervisors.
According to Cpl. Singer, he left Cpt. Becker's office without turning off the recorder. Because he did not know how to work the device, he showed it to another officer in the control room (a secure part of the facility) who helped him turn it off. He contends he did not play the recording to that officer or to anyone else. According to defendants, Cpl. Singer disclosed the body of his conversation with Cpt. Becker to plaintiff CO Nollner and another subordinate officer.
The cassette tape was produced in discovery in this case pursuant to Rule 26. After learning about the recording, jail officials investigated Cpl. Singer's conduct and found it violated jail rules and regulations. Cpl. Singer was charged, pursuant to New York Civil Service Law section 75, with violating a jail rule prohibiting the installation of a microphone or device in the building (Charge 1); a jail rule prohibiting staff from bringing electronic devices into secure areas (Charge 2); and with "conduct unbecoming" of a corrections supervisor for allegedly sharing the recording with his subordinates (Charge 3).
A disciplinary hearing was held on June 17, 2010. Since the filing of defendants' motion for summary judgment on January 14, 2011, the Hearing Officer rendered findings of fact and a penalty recommendation. On January 17, 2011, the Hearing Officer issued a decision finding Cpl. Singer not culpable of Charge 1 but culpable of Charges 2 and 3. He recommended a penalty of ten days suspension without pay. In a February 15, 2011, letter to Cpl. Singer, defendant Sheriff Van Blarcum rejected the Hearing Officer's recommendation and instead terminated Cpl. Singer.
Plaintiffs CO Nollner and CO Decker also allege they were retaliated against after Cpl. Singer created the parody. According to CO Decker, on October 24, 2008, defendant Sgt. Ferro threatened him after he requested to take sick time. CO Decker testified that Sgt. Ferro accused him of helping to create the parody and told him they would "deal with this the old fashioned way" and "take it outside." Redding Aff., Ex. B, Dkt. No 50-3, 62-64. Sgt. Ferro testified that he did not believe plaintiffs CO Decker nor CO Nollner had anything to do with the parody, and that he raised his voice to CO Decker because CO Decker was bullying other officers.
Plaintiffs CO Nollner and CO Decker contend they were further harassed at a SERT meeting led by defendant Cpt. Becker in March 2009. CO Nollner and CO Decker were on SERT for approximately ten years. They contend that at the meeting, Cpt. Becker accused SERT members of being in the room when Cpl. Singer made the parody and said that he wanted to kick some officers off the SERT team. CO Nollner indicated at the meeting that he had nothing to do with the parody, but defendant Sgt. Ferro said he did not trust him nor CO Decker to handle SERT functions, in part, because of the parody.
Plaintiffs filed this action on June 15, 2009. Two weeks later, Warden Acevedo removed plaintiffs CO Nollner and CO Decker from SERT, at defendant Undersheriff Faluotico's direction. Warden Acevedo told the officers that they were suspended from SERT pending the instant litigation. According to defendant Cpt. Becker, the lawsuit created tension among SERT members which resulted in trust issues, making it difficult to "run a formidable paramilitary team when you know two members are suing you for something." Redding Aff., Ex. E, Dkt. No. 50-7, 53-54. Defendant Undersheriff Faluotico testified that he removed the plaintiffs from SERT because "[t]he lawsuit had caused a breakdown in communication which was a breakdown in officer safety and therefore everyone's safety." Redding Aff., Ex. G, Dkt. No. 50-9, 16.
In their amended complaint, plaintiffs allege the following under § 1983: 1) that after making the parody, Cpl. Singer was retaliated against in violation of the First Amendment right to free speech by being reassigned to prisoner transports; 2) that after filing this lawsuit, Cpl. Singer was retaliated against in violation of the First Amendment right to free speech by the commencement of disciplinary charges against him for an infraction which similarly situated officers were not disciplined for; 3) that after Cpl. Singer made the parody, CO Nollner and CO Decker were retaliated against in violation of the First Amendment right to freely associate by being subjected to verbal abuse and false allegations; and 4) that after filing this lawsuit, CO Nollner and CO Decker were retaliated against in violation of the First Amendment right to free speech by being removed from SERT.
Defendants move for summary judgment dismissing Cpl. Singer's freedom of speech claims on the grounds that his alleged speech is not protected, he suffered no adverse actions, and there was no causal connection between the speech and actions. Defendants contend CO Nollner and CO Decker cannot prevail on freedom of association claims merely because they are friends with Cpl. Singer at the jail. They also assert the filing of this lawsuit is not protected and thus CO Nollner and CO Decker's free speech claim must fail. Defendants further argue defendants Sheriff Van Blarcum and Superintendent Hanstein must be dismissed for lack of personal involvement and the remaining individual defendants are entitled to qualified immunity. In response, plaintiffs withdraw all claims against defendant Superintendent Hanstein.
Plaintiffs move to file a supplemental complaint incorporating Cpl. Singer's wrongful discharge claim, which accrued (in February 2011) after plaintiffs filed ...