ROBERT F. JULIAN, P.C., ROBERT F. JULIAN, ESQ., Utica, New York, Counsel for Plaintiff.
DELBUONO & DIODATI, DAVID R. DIODATI, ESQ., New Hartford, New York, Counsel for County of Oneida.
KERNAN PROFESSIONAL GROUP, LLP, DAVID A. BAGLEY, ESQ., Oriskany, New York, Counsel for Scott McNamara.
MEMORANDUM-DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this civil rights action filed by plaintiff, William Hendricks ("Hendricks") are separate motions for summary judgment by defendants, County of Oneida ("the County") and Scott McNamara ("McNamara"). See Dkt. Nos. 22, 23. For the reasons set forth below, both motions are granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Amended Complaint
Generally, Plaintiff's Amended Complaint asserts nine causes of action stemming from Plaintiff's prosecution for aggravated harassment in the second degree regarding a letter he "signed and delivered" to members of the Board of Legislators of the County as well as various news media outlets. ( See generally Dkt. No. 11 [Pls.' Am. Compl.].)
More specifically, Plaintiff's Amended Complaint alleges claims of: (1) libel; (2) slander; (3) violation of his rights to equal protection pursuant to 42 U.S.C. § 1981; (4) violation of his First Amendment right to freedom of speech pursuant to 42 U.S.C. § 1983; (5) First Amendment retaliation pursuant to § 1983; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) violation of his right to freedom of speech under Article I, Section 8 of the New York State Constitution; and (9) violation of his right to equal protection and freedom from discrimination in civil rights under Article I, Section 11 of the New York State Constitution. ( Id. )
B. Recitation of Undisputed Facts
The following material facts have been asserted and supported by one or both Defendants in their Local Rule 7.1 Statements of Undisputed Material Facts, and unopposed by Plaintiff. ( See Dkt. No. 22-8 [Def. McNamara's Unopposed Rule 7.1 Statement]; Dkt. No. 23-1 [Def. County's Unopposed Rule 7.1 Statement].) Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3). It further provides that, to the extent that the nonmoving party fails to do so, the facts asserted in the movant's Statement of Material Facts will be deemed admitted, as long as they are supported by the record. Id. Here, Plaintiff, who is represented by counsel, has failed to submit a response to either of the Defendants' Statement of Material Facts. Accordingly, where supported by admissible record evidence, the Court deems the following facts admitted.
Plaintiff was an Oneida County legislator who was re-elected in November 2009 after having been defeated for one term, and resumed office commencing January 4, 2010. Defendant McNamara is and was at all relevant times the District Attorney of Oneida County. Defendant County is a municipal organization organized and existing pursuant to the laws of the State of New York.
On or about November 4, 2009, Plaintiff signed a letter addressed to Gerald Fiorini, Chairman of the Oneida County Board of Legislators, which questioned the integrity of Mr. Fiorini, requested his resignation, and made statements concerning Plaintiff's opponent in the recently completed election, Larry Tanoury ("the Letter"). Specifically, the Letter contained allegations concerning an extramarital affair and the use of taxpayer funds to pay blackmail. The Letter was distributed to local news media outlets and to members of the Oneida County Board of Legislators. Also on or about November 4, 2009, Fiorini met with McNamara and stated that the allegations in the Letter were false, that he considered the dissemination of the Letter wrongful, and that he wanted something done. McNamara told Fiorini he would look into the matter. The next day, McNamara received an email from Tanoury, wherein Tanoury complained about the Letter and asked that McNamara consider the pursuit of criminal charges. McNamara responded that his office would open an investigation.
Thereafter, McNamara assigned to Assistant District Attorney Joseph Saba the task of determining what actions should be taken regarding the circumstances of the Letter, including possible submission of the matter to the grand jury. Oneida County District Attorney's Office Investigator James Helmer was assigned the task of investigating the preparation and dissemination of the Letter and related factual circumstances. Helmer conducted an investigation regarding the Letter, which included interviewing Fiorini and Tanoury and attempting without success to interview Plaintiff. Neither McNamara not Saba directed or participated in the investigation, except by way of receiving reports from Helmer concerning the status and results thereof.
Saba reviewed Helmer's reports, interviewed witnesses and presented the factual circumstances to a grand jury. The grand jury returned an indictment of Plaintiff, charging him with violations of the New York Penal Law, § 240.30, Aggravated Harassment in the Second Degree. Saba prepared the written Indictment of Plaintiff and McNamara signed it.
Saba handled the prosecution of Plaintiff, including, among other things, dealing with defense counsel, preparing written submissions, and preparing for trial. During the course of the prosecution of Plaintiff, Saba and McNamara discussed the case on a number of occasions.
During January 2010, McNamara became aware that Tanoury had posted a message on his blog sharing, among other things, his view that the Letter constituted protected expression under the First Amendment and his mixed feelings about the prosecution of Berry. Soon thereafter, Fiorini informed McNamara that he did not want to be involved further in the prosecution of Plaintiff. McNamara discussed with Saba the communications from Tanoury and Fiorini. McNamara and Saba decided to suggest disposition of the prosecution by adjournment in contemplation of dismissal ("ACD"). Saba's offer of an ACD was rejected by Plaintiff's defense counsel. After discussing the matter further, McNamara directed Saba to dismiss the prosecution of Plaintiff. On or about January 25, 2010, Saba appeared in court and moved to dismissed the Indictment against Plaintiff.
Sometime in late January 2010 or early February 2010, McNamara made on-air statements at a local radio station, WIBX, concerning the prosecution of Plaintiff. Those statements include the following:
I think most people would agree that the letter was done to harass Jerry Fiorini and to annoy Jerry Fiorini and the only way that  letter then becomes protected speech is that if the people who wrote it believed it to be true....
Now had this letter only alleged, and I think that's what [Judge] Dal[e]y was talking about, the whole issue with the dollar lease and all that other stuff, that's fair game and that is open for public debate, but when you start alleging people are blackmailing people and start alleging people are paying off blackmail with taxpayer's money and that's not true, and you don't have a good faith foundation to make that statement, why did you do that? And the thing that bothers me the most about this letter if it wasn't done for the purpose of annoying somebody, then why did they take it to the media and not take it to the police?...
Based upon the way this went down, and the information we had available to us, there [was intent] to harass Tanoury and Fiorini. Clearly the way it looks to me, but obviously I don't think we can prove that if we went forward especially based on Larry [Tanoury] changing his position.
(Dkt. No. 11-5 [Ex. 5 to Am. Compl.].) ( See also Dkt. No. 22-8, at ¶ 25 [Def. McNamara's Rule 7.1 Statement.])
C. Parties' Arguments on Defendants' Motions for Summary Judgment
1. Defendant McNamara's Motion for Summary Judgment
Generally, in his memorandum of law, McNamara asserts the following arguments: (1) Plaintiff's federal claims fail as a matter of law because (a) McNamara is absolutely immune under the doctrine of prosecutorial immunity, (b) the grand jury indictment precludes a finding of wrongful prosecution, and (c) claims for defamation are not cognizable as a "stigma plus" claim under the Fourteenth Amendment; and (2) Plaintiff's state law claims fail because (a) there are no cognizable federal causes of action and therefore, this Court should dismiss the state law claims for lack of supplemental jurisdiction, (b) the defamation claims are barred by privilege because (i) Plaintiff was both a public figure and a public official at the time the alleged defamatory statements were made; (ii) the alleged defamatory statements were statements of opinion; (iii) the alleged defamatory statements were in the discharge of a public legal or moral duty; and (iv) the alleged defamatory statements were made regarding a matter of public concern, (c) Plaintiff's New York Constitutional claims should be dismissed for the same reasons asserted regarding Plaintiff's federal Constitutional claims, and (d) Plaintiff's emotional distress claims are barred by prosecutorial immunity and because Plaintiff has failed to adduce evidence of extreme or outrageous conduct. ( See generally Dkt. No. 22-9, at 6-20 [Def. McNamara's Mem. of Law].)
2. Defendant County's Motion for Summary Judgment
Generally, in its memorandum of law, the County argues that (1) Plaintiff's federal claims against it must be dismissed because (a) there is no evidence that it had a policy or custom pursuant to which Plaintiff's constitutional rights were violated and (b) a District Attorney in New York State prosecuting a criminal matter represents the State, not the County; and (2) Plaintiff's emotional distress claims against it must be dismissed because there is no evidence of conduct on behalf of the County that would support those claims. ( See generally Dkt. No. 23-3, at 4-5 [Def. County's Mem. of Law].)
3. Plaintiff's Opposition to Defendants' Motions
Generally, in his brief in opposition to Defendants' motions for summary judgment, Plaintiff asserts the following arguments: (1) McNamara is not entitled to absolute prosecutorial immunity from the claims asserted by Plaintiff because McNamara's acts underlying those claims were not prosecutorial in nature; (2) McNamara is not entitled to qualified immunity because he violated Plaintiff's First Amendment rights and should have known he was doing so; and (3) Defendants are liable on Plaintiff's emotional distress claims because the actions of McNamara and Helmer provoked extreme emotional distress. ( See generally Dkt. No. 27, at 9-25 [Pl.'s Br.].)
4. Defendant McNamara's Reply to Plaintiff's Opposition
Generally, in his memorandum of law in reply to Plaintiff's opposition brief, McNamara argues that (1) he is entitled to absolute prosecutorial immunity for his conduct in initiating a prosecution against Plaintiff; (2) even if McNamara is not entitled to absolute immunity, he is entitled to qualified immunity because his actions were objectively reasonable; and (3) Plaintiff's defamation claim fails because McNamara's statements were privileged. ( See generally Dkt. No. 30, at 3-8 [Def. McNamara's Reply Mem. of Law].)
II. GOVERNING LEGAL STANDARDS
A. Standard Governing a Motion for Summary Judgment
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether a genuine dispute as to a material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970)). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must identify evidence in the record that creates a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986)).
As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248 (citation omitted).
As for the genuineness requirement, a dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Id. As a result, "[c]onclusory allegations, conjecture and speculation... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) (citation omitted; emphasis added). Similarly, inadmissible hearsay is insufficient to create a genuine issue of fact, "absent a showing that admissible evidence will be ...