United States District Court, N.D. New York
SAMUEL R. AMEDURI, III, Plaintiff,
THE VILLAGE OF FRANKFORT, STEVEN CONLEY, As Chief of Police of the Village of Frankfort Police Department and in his Individual Capacity, and DAN HERRMAN as a Police Officer in the Village of Frankfort Police Department and in his Individual Capacity, Defendants
For the Plaintiff: James B. Tuttle, Esq., OF COUNSEL, THE TUTTLE LAW FIRM, Latham, New York.
For Village of Frankfort and Steven Conley, Defendants: Kevin G. Martin, Esq., OF COUNSEL, MARTIN & RAYHILL, P.C., Utica, New York.
For Dan Herrman, Defendant: William C. Firth, Esq., OF COUNSEL, BAILEY KELLEHER & JOHNSON, P.C., Albany, New York.
MEMORANDUM-DECISION AND ORDER
Norman A. Mordue, Senior U.S. District Judge.
Plaintiff is a police officer employed by the Village of Frankfort, currently out of work due to injuries suffered as a result of an incident that occurred during the course of events that are the subject of this litigation. Plaintiff brings this action against the defendants Village of Frankfort, former Police Chief Steven Conley in his individual and official capacities and
former police officer Dan Herrman in his official and individual capacities under § 1983 alleging violations of his First, Fourth, Fifth, Eighth and Fourteenth Amendment rights for events that occurred on February 22, 2010, and during the months thereafter.
The fundamental allegation is that defendant Conley, while he was the Chief of Police for the Village of Frankfort, beat and seriously injured plaintiff when he refused to change testimony he had previously given in order to aid defendant Conley in defeating litigation brought against him and the Village of Frankfort by one Harold Griffin. Plaintiff further alleges that after this incident, defendant Herrman, another officer employed by the Village of Frankfort Police Department, then investigated him personally to discredit his anticipated litigation against defendants Conley and the Village by, among other things, unlawfully obtaining his cell phone records on 4 separate occasions. Plaintiff alleges that defendant Herrman was criminally prosecuted for having unlawfully obtained plaintiff's cell phone records and pled guilty to one count of Forgery, a Class D Felony, and one count of Official Misconduct, a Class A Misdemeanor.
The complaint asserts causes of action under § 1983 and § 1988 against all defendants, against the Village under Monell principles and pendent state law claims. Plaintiff also seeks punitive damages defendants Conley and Herrman. Presently before the Court are three motions. Defendants move separately for partial summary judgment of plaintiff's claims and plaintiff cross-moves for partial summary judgment.
II. RELEVANT FACTUAL BACKGROUND
The facts as set forth in plaintiff's complaint are as follows: Prior to February 22, 2010, defendant Conley became involved in disputes, disagreements and/or altercations with, among others, an individual named Harold Griffin on two separate occasions. Prior to February 22, 2010, defendant Conley also became involved in disputes, disagreements and/or altercations with, among others, an individual named Daniel Enea. The afore-referenced disputes, disagreements and/or altercations between defendant Conley and Griffin and Enea all occurred while defendant Conley was acting in his capacity as Chief of Police of the Village of Frankfort. Plaintiff was an eyewitness to some of the conduct involved in the disputes, disagreements and/or altercations between defendant Conley and Griffin.
During the course of inquiries into the incidents between defendant Conley and Griffin, plaintiff gave statements and/or information which was truthful but which did not favor defendant Conley. Defendant Conley ordered plaintiff to change the statement to omit portions that did not favor him. On multiple occasions prior to February 22, 2010, defendant Conley approached plaintiff and demanded that he give oral testimony with regard to the incident with Griffin that favored Conley, which plaintiff declined to do.
With regard to the incidents between Conley and Enea, plaintiff was not directly involved, but he was friendly with Enea's stepmother. On multiple occasions prior to February 22, 2010, Conley approached plaintiff and urged him to intervene with Enea's stepmother on his behalf to persuade Enea to drop the charge he was pressing against Conley, which plaintiff declined to do.
On February 22, 2010, at approximately 8:15 p.m, plaintiff was on-duty performing his functions as a Village of Frankfort police officer. At the time he was in his police cruiser in the parking lot entrance of the Herkimer County Fairgrounds in Frankfort, New York. Defendant Conley drove into the parking entrance from Cemetery Road and parked his vehicle parallel to plaintiff's assigned vehicle but heading in the opposite direction. Defendant Conley then directed plaintiff to exit his vehicle, and plaintiff complied. Defendant Conley exited his vehicle as well. As they stood between the two police cars, defendant Conley reiterated his demand that plaintiff lie and give false testimony regarding Conley's incidents with Griffin so as to assist Conley in the ongoing investigation of those incidents and that he intervene with Enea's stepmother on threat of plaintiff's employment with the Village Police Department.
When plaintiff refused to give false testimony or to intervene, defendant Conley assaulted plaintiff, picking him up by the throat and hurling him bodily onto the trunk of plaintiff's police cruiser from which position he slid off onto the ground, injuring his back, knee, shoulder and elbow.
On March 16, 2010, defendant Herrman, at the direction of defendant Conley, submitted to Verizon Wireless an " Emergency Information Request" form seeking plaintiff's cell phone records for the period February 22, 2010, through February 26, 2010. By signing the Emergency Information Request Form, defendant Herrman represented to Verizon Wireless that he was a law enforcement officer authorized by applicable law to request the information and that there was an immediate danger of death or serious physical injury to a person requiring that the information requested be provided without waiting for a court order. The Emergency Information Request Form was false and fraudulent because there was no danger of death or serious physical injury to a person that required the production of plaintiff's cell phone records. Plaintiff alleges that the " true reason" defendants Herrman and Conley were seeking hiss cell phone records was to discredit him in the civil and criminal proceedings they knew would follow the incident of February 22, 2010. Plaintiff served defendant Conley with a Notice of Claim on March 26, 2010, pursuant to § 50-e of the General Municipal Law based on the incident of February 22, 2010.
On March 26, 2010, plaintiff received a phone call from defendant Conley in which defendant Conley threatened his life, saying " You and Pat [referring to Pat Fracolla, another Frankfort Police Officer and a friend of plaintiff] arc dead, little boy." According to plaintiff, throughout his tenure as Chief of Police in the Village of Frankfort, defendant Conley always drove a department-owned vehicle - a black Crown Victoria with dark tinted windows - and " no one else in the Department was allowed to drive or even go into the vehicle." On
April 14, 2010, defendant Conley stopped his vehicle in front of plaintiff's house and sat there for a period of time, putting plaintiff in fear for his life. Plaintiff complained of defendant Conley's conduct to, among others, James Getman from the Town of Frankfort Police Department, and Officer Getman undertook to investigate the merits of plaintiff's complaints. On May 17, 2010, defendant Conley issued a memorandum to all officers in the Village of Frankfort Police Department instructing the officers not to speak to Jim Getman about anything or for any purpose because " Jim Getman is currently working with Sam Ameduri in an attempt to discredit this Department and the officers employed by this Department."
On August 10, 2010, plaintiff filed a second Notice of Claim against the Village based on the defendants having wrongfully obtained his cell phone records in violation of the Electronic Communications Privacy Act of 2006 and the Fourth Amendment. On or about September 21, 2010, the defendant Village commenced disciplinary proceedings against plaintiff based on information placed in plaintiff's personnel file by defendant Conley without plaintiff's knowledge and on materials falsely generated by other officers in the department who were pressured by defendant Conley to do so. The pendency of the disciplinary charges forced plaintiff to obtain counsel to represent him, all at significant cost and expense, and put him in jeopardy of losing his job with the Department. Plaintiff alleges that the disciplinary proceedings were not brought for any legitimate purpose but were brought to retaliate against him for filing the two Notices of Claim against defendants.
Topix.com is a website or chatroom frequented by members of the police community in Central New York. Since February 26, 2010, there has been a steady stream of comments posted on Topix.com defaming plaintiff and his father, Sam Ameduri, Jr., all or which plaintiff asserts are attributable to defendant Conley. A list and summary of some of those Topix.com publications include the following:
o February 26, 2010: " Sam Ameduri, Sr. and Sam Ameduri, Jr. are psychopathic women beaters"
o August 18, 2010: " Sam made false allegations about Steve because he didn't get promoted as supervisor investigator or sergeant."
o October 15, 2010: Topix.com article entitled " Sam Ameduri" with statement underneath " I wish him dead"
o October 16, 2010: Statement on Topix.com: " I wish Sam and his father dead."
o October 27, 2010: Topix.com article stating that " Sam is on permanent disability in that he is psycho."
o October 29, 2010: Topix.com article accuses plaintiff of using cocaine, flashing a gold police badge, carrying a police radio and gun and driving drunk; asserts that plaintiff is on " psycho leave from the department" in violation of HIPAA.
Plaintiff believes the publication of these false and defamatory remarks about him and his family is an attempt by defendant Conley to threaten, harass, intimidate and retaliate against him for pursuing criminal and civil remedies against him.
Frank Moracco, the Mayor of the Village of Frankfort testified on behalf of the defendant Village concerning the hiring of defendant Conley as a Police Officer and future Chief for the Village of Frankfort. Moracco testified that the first time it came up for a vote, he was a member of the Village Board and he voted " no" because he had read in the papers that Conley had " issues" while he was employed
with the City of Utica Police Department. Moracco said he and another member named Jim Sgroi went to Utica and interviewed the chief and assistant chief of the Utica Police Department about Conley. Moracco said at first the two men were hesitant to discuss details of Conley's termination, but then opened up. Moracco asked if in the 15 years that Conley had worked for the Utica Police Department he ever had any " other" incidents, and the assistant chief said they had never had any other issues with Officer Conley. With respect to the issue that resulted in him getting terminated, Moracco said it had " something to do with the fact that he was making a deposit." Moracco said he read the article in the paper. The chief and assistant chief " did not highlight too much on the issue itself." Moracco said " [m]ost of what I got was out of the paper and those were the questions that I raised. And some of them they did answer and some they wouldn't answer because of -- I don't know if the case was -- if there was going to be an appeal on the case." Moracco acknowledged that he did not read the formal arbitrator's award in Conley's case. However, Moracco did speak to an investigator named Anthony Puccinata who was a retired detective from the Utica Police Department. He did the initial investigation on Steve Conley for employment and had worked with the Utica Police for 25 years. According to Moracco he had nothing but good things to say about Conley. After hearing from the assistant chief and this detective, Moracco felt more comfortable in changing his vote from " no" to " yes" on Conley.
According to Moracco, defendant Conley was hired as a part-time police officer in November 2002. Within six months, Conley moved up to a full-time position and was promoted to sergeant. Moracco became the Mayor in 2004. In April 2005, Conley became Assistant Chief and approximately one month later, he was designated the provisional Chief of Police pending his successful score on a civil service test. However, at this time, there were three other candidates who had already successfully passed the required civil service exam for the Chief position. The Village Board then elected to offer the Chief of Police position to one of the three candidates named Ron Petrie from Little Falls. However, two or three days prior to when Petrie was supposed to start the job, Little Falls made him an offer and he elected to stay. The Village Board elected not to make offers to either of the other two candidates on the civil service list. Rather, the Board decided to put defendant Conley back into the provisional Chief position until another exam date came up. Consequently, Conley was appointed provisional Chief in October 2006 and finally permanent Chief after passing the civil service exam in June 2007.
Moracco testified that there has been a lot of tension between the Village of Frankfort Police Department and the Town of Frankfort Police Department. According to Moracco, the Village Police Department has been in existence for over 100 years while the Town Police Department just recently came into existence. The two agencies have had what Moracco described essentially as a " turf" war over the 96 miles of streets they that they patrol. Moracco said there have been ongoing and unsuccessful discussions between the two agencies about consolidation of services. Moracco was aware of controversy arising from this tension between Conley and Jim Getman of the Town of Frankfort Police Department in which Conley had used " vulgar" language. According to Moracco, there was a police call that occurred in the Village and Conley thought Getman should turn the individual being arrested over to him. Moracco told
Conley he should " conduct himself as a professional" and apologize to Getman. However, Moracco didn't write Conley up for the incident. Moracco also thought that Getman, who was in charge of the Town Police Department, wanted to " make a name for himself " and " wanted complete control" over both agencies. Getman was in favor of consolidation of police services by the Town.
Moracco also testified concerning a report he received concerning a confrontation on Main Street between Conley and the Village coroner, Dan Enea. Enea was at a death scene with a Village police officer who happened to be his ex-fiancé , Officer Adrian Sansone. According to Moracco, Enea and Sansone got into a very verbal confrontation and defendant Conley finally went to the scene and told Enea that he did not appreciate his officers being yelled at and scolded in front of people. Enea also apparently called Officer Sansone on her cell phone at the police station and continued to badger her while she was on duty. As a result of this incident, defendant Conley instructed another officer - Officer Congdon - who was at the scene with Enea not to assist him with removing the body out of the building. Moracco said he later heard on the news from Enea's attorney that Enea was making a claim the defendant Conley had assaulted him. Moracco did not recall asking an officer named Pat Fraccola to do an internal investigation of Enea's allegations.
Moracco acknowledged that plaintiff had approached him a number of times about forming a police union and Moracco told him he did not think it was cost-effective for the Village to form a union. However, ultimately, the police force was unionized in any event.
Moracco also acknowledged that plaintiff had complained to him about defendant Conley because Conley had not considered him for an investigator position. Moracco told plaintiff that the investigator position within the Village Police Department had been eliminated. Plaintiff told Moracco that he and Conley had gotten into an argument over the position and Moracco told him he was going to mediate between the two of them. Later that same evening Moracco said that plaintiff pulled into his driveway in his patrol car and said essentially that things had been worked out between he and Conley. Plaintiff told Moracco there was no need for a meeting, that he and Conley had straightened everything out. Moracco testified that plaintiff said " Everything is fine. You know, Steve is like my father. We lock horns all the time, but you know, we're both hardheaded and -- we worked it out and everything's good." Moracco said this occurred in the late summer before the incident in February 2010. He does not know if plaintiff ever became an investigator.
Moracco denied that he had ever heard any complaints about plaintiff being responsible for spreading rumors or controversy about another officer in the Village Police Department named Brandon Jones. According to Moracco, Jones was hired after he was fired from the City of Utica Police Department for beating up a veteran. This incident resulted in a large civil rights verdict against the City of Utica and Officer Jones. In spite of the controversy, the Village hired Officer Jones because he was a certified police officer. Moracco denied that plaintiff complained that Conley had blamed him for " letting the word out" about Jones. Moracco also denied that plaintiff ever complained to him about Conley trying to " pull the badge off his chest" on one occasion.
In connection with the incident of February 22, 2010, Moracco first learned of it when he was on his way to work and received a phone call from plaintiff on
either plaintiff's cell phone or Getman's cell phone. Plaintiff told Moracco that he should get in touch with defendant Conley. Moracco testified that plaintiff said " Don't let him come down to the village hall. My father's down here. He wants to beat up the chief and I don't want my father to get arrested." When Moracco asked plaintiff what he was talking about plaintiff told him to talk to Conley. Moracco then called Conley and asked what was going on between him and plaintiff and Conley didn't seem to know what Moracco was talking about. Conley was at a diner with plaintiff's father. Plaintiff called in sick for a few days after the alleged incident.
Moracco said that the Village Board met in executive session and decided to do an internal investigation concerning the allegations of the dispute between Conley and plaintiff. The Board originally wanted an individual named Marty Quinn to do the investigation but he was unavailable. The only full-time employee available who was not involved in the case was Dan Herrman. So the Board elected to appoint Herrman to conduct the internal investigation. Moracco said that at one point they called troopers in to examine the vehicles for evidence of any type of scuffle in support of plaintiff's allegations and they could not find anything. The Board did not know at the time that Herrman's official police certification had expired. Moracco acknowledged that Herrman was later charged criminally in connection with the investigation and was terminated from his employment. Conley retired because he had 20 years of service with the Department and his pension had vested.
Moracco said that after the incident in February between plaintiff and Conley that plaintiff began taping conversations with people including him. Moracco acknowledged that he was aware of the website Topix. He acknowledged reading it to see what comments were being made about the Village of Frankfort. He referred to it as a " gossip column." Moracco said he often read Topix but never posted items on the website from his own personal computer or any other computer.
According to defendant Herrman's deposition testimony, he had a series of jobs prior to working for the Village of Frankfort Police Department. He worked for the Oneida County Sheriff's Office for one year prior to being terminated for no reason according to Herrman. Then he worked for Sears as a loss prevention specialist but was fired after he was accused of stealing a television set. He was working part-time with the Canastota Police Department at that time and resigned when he was accused of grand larceny by Sears. Herrman had previously obtained a Master's of Science Degree in Special Education so he went to worked for Jamesville-Dewitt School District after leaving his job with Sears and the Canastota Police Department. He worked for several different school districts in the area on and off over the years. He finally obtained employment as a part-time police officer with the Frankfort Police Department.
During the time relevant to this lawsuit, he was asked by Frank Moracco, the Mayor of the Village of Frankfort, to conduct an investigation into the charges plaintiff was raising against defendant Conley
sometime after the incident in February 2010. Defendant Herrman testified that he saw a document that was prepared by the Villages's insurance company and signed by the Mayor indicating that an internal investigation of the incident was underway. Herrman was directed to report the findings of his investigation to the Mayor. Herrman testified that when he completed his investigation, his report was ultimately submitted to the Village's worker's compensation or disability insurance carrier.
The first step defendant Herrman took in his investigation of defendant Conley was to review the video tape from the police station. Herrman did not speak to plaintiff about what his allegations were against Conley because plaintiff would not return his calls. Hermann said he went to plaintiff's house in an attempt to speak with him three times, but he was not home. He also left him a number of voice mail messages saying he was investigating his allegations, but plaintiff never called him back. He never sent plaintiff any letters. The only way that Herrman knew what plaintiff's allegations were is that he relied on what was in the report from the Mayor stating what he was told by the plaintiff. According to the report from the Mayor, plaintiff called him and said that he had been assaulted at the police station by defendant Conley. Specifically, plaintiff said that Conley had thrown him down the stairs from his office at the station. However, Herrman learned by reading the newspaper, that plaintiff was alleging he had been assaulted at the Herkimer County fairgrounds. Herrman testified that he went to the fairgrounds to investigate and found nothing in the way of evidence to support plaintiff's story. Hermann acknowledged that he did not request medical records from any of plaintiff's doctors.
Herrman did talk to defendant Conley about the night of February 22, 2010, and Conley told him that he was in his office speaking with another officer, Paul Michione, when plaintiff walked in, appearing distraught. Conley told plaintiff he did not want him in his office and that he would talk to him at a later time. According to Herrman, Conley said plaintiff left his office and he and Michione continued their conversation. Conley told Herrman that later, when he was headed home, he saw plaintiff sitting at the Fairgrounds in his patrol car running radar. Conley told Herrman that he pulled up door to door and apologized to plaintiff for yelling at him and told him to go back to the station and relax and that they would talk about " the situation" later. According to Herrman, " the situation" that plaintiff was concerned about was a personal matter involving Officer Michione that he was worried he had some culpability in.
Insofar as defendant Conley's other interactions with plaintiff, Conley told Herrman that he had ordered plaintiff to pepper spray Harold Griffin as Griffin had alleged in his lawsuit against Conley, Ameduri and the Village. Herrman said Conley's statement was supported by a sworn deposition in the case file which Conley gave him to review. Herrman testified that plaintiff's allegations in the newspaper said he was being asked by defendant
Conley to say that he didn't pepper spray Griffin. Herrman didn't think it made any sense to proceed further with this part of his investigation when Conley's statements were clearly supported by sworn testimony in the case file.
In connection with the allegations that Conley had assaulted plaintiff, Herrman said after plaintiff's story appeared in the paper, many witnesses came forward and he received a lot of phone calls concerning prior incidents where plaintiff had claimed to be injured and lawsuits plaintiff had filed previously. For example, Hermann testified that he heard plaintiff had previously sued a corrections officer for a false injury. Plaintiff also had been paid a large sum of money in Rochester for an incident where he claimed full disability.
According to Herrman, plaintiff also made threats to kill defendant Conley and another officer in the Village Police Department. Plaintiff's father came to the police station and threatened to kill Conley as well. Hermann said that Paul Michione told him that he was present at plaintiff's residence when plaintiff pointed a gun at Officer Dan Trevisani's stomach and said something to effect of " Go with my story, or I'll fuckin' kill you." When asked " what story was being referred to," Herrman stated he " [did]n't know but [he] believe[d it] would be the allegations that [plaintiff] was assaulted by the Chief." Herrman reported these threats to Town of Frankfort Police Department and the Herkimer County District Attorney's Office in an attempt to get plaintiff arrested but he could not get any of the people involved to go on the record with what they had witnessed.
Herrman testified that he submitted an Emergency Information Request Form to Verizon Wireless on March 16, 2010, for plaintiff's cell phone records from February 22, 2010, through February 26, 2010, after he learned that plaintiff had made threats to kill people. Herrman had also learned that an individual named Charles Oblich had been asked by plaintiff to submit a fraudulent insurance claim concerning one of plaintiff's rental properties. Mr. Oblich also told Herrman that he was fearful of plaintiff's sporadic behavior and habit of " flashing guns" at people. Herrman acknowledged that Verizon only sent him the numbers called and received on plaintiff's cell phone. Verizon did not identify the persons or entities having those numbers. Herrman testified that he knew some of the numbers because they were in his phone. He called some of the numbers. He also used a computer in the police station to look up some of the numbers with a " reverse look up" service.
On March 21, 2010, Herrman submitted another Emergency Information Request Form to Verizon Wireless for plaintiff's cell phone records from February 27, 2010, through March 21, 2010. The " immediate threat" referenced in the request form referred to plaintiff's ...