United States District Court, W.D. New York
WILLIAM J. MURRAY, Plaintiff,
GARY COLEMAN, et al., Defendants.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
This is a pro se civil rights action under 42 U.S.C. § 1983 brought by William A. Murray. Murray asserts two claims against twenty-one individual defendants, twenty of whom are employees of the New York State Department of Correctional Services ("DOCS"), and one of whom is an employee of the Department of Civil Service.
Plaintiff alleges that he has been a DOCS employee since 1997 and that he is currently employed at Five Points Correctional Facility. He alleges that since he began working at Five Points, he has identified and reported on various instances of fraud within DOCS, and that he has been retaliated against as a result of his activities in this regard, in violation of his free-speech and due process rights.
Currently pending before the Court are defendants' motion for summary judgment (Dkt. #172) and plaintiff's motion for summary judgment (Dkt. #174). For the following reasons, both motions must be denied.
I. First Amendment Retaliation: General Principles
The background of this case has been set forth in prior decisions of this Court, see 2013 WL 5490083 (W.D.N.Y. Sept. 30, 2013); 604 F.Supp.2d 581 (W.D.N.Y. 2009), and need not be repeated at length here. The gist of defendants' argument on the present motion is that plaintiff's speech at issue is not constitutionally protected because he spoke in his capacity as a public employee, not as a private citizen. Defendants also contend that plaintiff received all the process to which he is due.
A public-employee plaintiff pursuing a claim for First Amendment retaliation must demonstrate that: (1) his speech addressed a matter of public concern; (2) he suffered an adverse employment action; and (3) there is a causal connection between his speech and the adverse action, so that it can be said that his protected speech was a motivating factor in the adverse action. See Campanella v. County of Monroe, 853 F.Supp.2d 364, 373 (W.D.N.Y. 2012) (citing Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2004).
Once a plaintiff establishes these elements, the governmental entity may avoid liability by showing either (1) that it would have taken the same adverse action regardless of the protected speech, or (2) that the plaintiff's expression was likely to disrupt the employer's activities, and that the likely disruption was sufficient to outweigh the value of the plaintiff's First Amendment expression. Cobb, 363 F.3d at 102 (citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)).
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court reaffirmed the principle that "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Id. at 417. In so holding, the Court stated that its prior decisions in Pickering and Pickering 's progeny "identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech":
The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.
Garcetti, 547 at 417 (internal citations omitted).
The first of these inquiries can be further broken down into two separate elements. The first involves whether the subject of the employee's speech was a matter of public concern. The second involves whether the employee spoke "as a citizen" rather than solely as a public employee. Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir.), cert. denied, ___ U.S. ___ , 132 S.Ct. 1634 (2011).
Whether speech is on a matter of public concern is a question of law. Id. (citing Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). That question "is to be answered by the court after examining the "content, form, and context of a given statement, as revealed by the whole record, " id. (quoting Connick, 461 U.S. at 147-48). "Exposure of official misconduct... is generally of great consequence to the public." Id. at 236 (quotation omitted).
As the Supreme Court has recently pointed out, "[t]here is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees, " since "[g]overnment employees are often in the best position to know what ails the agencies for which they work.'" Lane v. Franks, __ U.S. __, 2014 WL 2765285, at *6 (June 19, 2014) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion)). "The interest at stake is as much the public's interest in receiving informed ...