The opinion of the court was delivered by: Frederick P. Stamp, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Joseph F. Rasulo, Jr., a former Yonkers Police Department detective in the narcotics unit, filed the above-styled civil action pursuant to 42 U.S.C. § 1983, alleging violations of his due process rights. The complaint sets forth a claim that the defendants, in order to offset adverse publicity from allegations of excessive force by members of the Yonkers Police Department, falsely accused the plaintiff of robbing a drug dealer. The plaintiff claims that the defendants' actions forced him to involuntarily retire from the Yonkers Police Department, and that his constructive discharge violated his Fourteenth Amendment right to due process. The plaintiff later amended his complaint to add a second claim that the defendants' conduct violated his right to liberty as guaranteed by the Fourteenth Amendment.
Prior to the filing of the amended complaint, the defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The docket sheet indicates, in a text order only, that on February 4, 2009, proceedings were held before United States District Judge Stephen C. Robinson and that the defendants' motion to dismiss was withdrawn.
On April 30, 2010, the defendants filed a motion for summary judgment. In this motion, the defendants argue that the plaintiff did not suffer a constructive discharge and his Fourteenth Amendment rights were not violated. Also on April 30, 2010, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment. The third pleading filed on April 30, 2010 was a reply in support of the defendants' motion for summary judgment. On May 27, 2010, the plaintiff requested permission from the Court to submit a sur-reply on the issue of the alleged improper submission of the defendants' Rule 56.1 statement. Judge Robinson granted the plaintiff permission to submit a sur-reply not to exceed ten pages, but the plaintiff never filed a sur-reply. Even so, the defendants' motion for summary judgment has been fully briefed and is now pending before this Court. For the reasons stated below, the defendants' motion for summary judgment is granted.
Over the course of several years, Edmund Hartnett, Commissioner of Police for the City of Yonkers ("Commissioner Hartnett") and Philip Amicone, Mayor of Yonkers, were the subject of negative media coverage due to police brutality allegedly engaged in by certain rogue members of the Yonkers Police Department. The media reported extensively on a number of incidents of excessive force, including three assaults by Yonkers police officers that occurred in August and September 2008. In part due to this negative media coverage, the United States Department of Justice commenced an investigation of the Yonkers Police Department with regard to excessive force and discriminatory policing.
In order to offset this negative press, Commissioner Hartnett, Charles Gardner, First Deputy Chief of the Yonkers Police Department ("Chief Gardner"), and Edward Geiss, Chief of Investigative Services in the Yonkers Police Department ("Chief Geiss"), acting with other city officials, commenced an investigation of the plaintiff for a crime that he claims he did not commit -- the armed robbery of a drug dealer.
On the evening of September 16, 2008, the plaintiff used a Yonkers Police Department unmarked vehicle to conduct a stop of a van.*fn2 The plaintiff searched the van, and in the process cut up and destroyed the passenger seat of the vehicle. The plaintiff claims that he found nothing in the vehicle during the search. After completing the search, the plaintiff had his informant drive the undercover police vehicle to Fullerton Avenue, while he drove the van, which he left on Fullerton Avenue with the keys in the ignition. The occupants of the van later complained to the Yonkers Police Department, and the Police Department notified Internal Affairs of the plaintiff's potential involvement in the incident.
The press, through unidentified sources, eventually learned of the investigation and made inquiries. The plaintiff, however, asserts that the defendants identified him to news reporters and told them that he was under investigation by the Police Department's Internal Affairs Bureau and the Westchester County District Attorney's Public Integrity Bureau for committing an off-duty armed robbery of a street-level drug dealer, stealing in excess of $100,000.00. The defendants allegedly further informed the press that the plaintiff had been placed on modified duty and had been required to surrender his duty weapons and police identification card.
During a press conference held on October 10, 2008, Commissioner Hartnett, Chief Garner, and Chief Geiss allegedly informed the media that the plaintiff was under investigation for stealing from a drug dealer in connection with off-duty armed robbery, that the robbery involved only one member of the Yonkers Police Department, that the plaintiff's service weapon was taken, and that the plaintiff had been placed on modified duty. These facts were then reported by News Channel 12 on October 10, 2008 and published by The Journal News on October 11, 2008. Additionally, the plaintiff claims that a blogger disclosed his name at the request of the defendants. The defendants, however, claim that no one in the Yonkers Police Department ever revealed the plaintiff's name to members of the media.
On December 18, 2008, the plaintiff was questioned by Internal Affairs at a hearing with regard to the incident that occurred on September 16, 2008. At the hearing, the plaintiff refused to answer any questions, despite being fully informed that his failure to answer could result in disciplinary actions, including termination. As a consequence of the October 10, 2008 press conference, the plaintiff decided to "buy back" military time in order to retire early from the Police Department. On December 8, 2008, the plaintiff filed for retirement from his position, and he retired on January 9, 2009.
Under Rule 56(c) of the Federal Rules of Civil Procedure, A party asserting that a fact cannot be or is genuinely ...