United States District Court, S.D. New York
FRANCIS E. HOEFER, Plaintiff,
BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF MIDDLETOWN, DR. KENNETH EASTWOOD, WILLIAM GEIGER, JOHN DOE 1, JOHN DOE 2, Defendants.
OPINION AND ORDER
EDGARDO RAMOS, U.S.D.J.
Francis E. Hoefer (“Hoefer”) commenced this
action on April 16, 2010 against the Board of Education of
the Enlarged City School District of Middletown (the
“Middletown Board”), Dr. Kenneth Eastwood
(“Eastwood”), William Geiger
(“Geiger”) (together the
“Defendants”), claiming violations of the First
and Fourth Amendments. Doc. 1 (“Compl.”). Before this
Court is Eastwood's motion for summary judgment to
dismiss Hoefer's First Amendment claim.
following reasons, Eastwood's motion is DENIED.
times relevant to the Complaint, Hoefer was a resident of the
City of Oswego, and an elected member of the City School
District of the City of Oswego Board of Education (the
“Oswego Board”). Eastwood's 56.1 Stmt. at
¶ 14; Miller Aff. Ex. D (“Hoefer Dep. Tr.”)
8:5-9; 12:19-25. He was first elected to the Oswego Board in
2000, but was subsequently removed from that office in 2004
for various acts of alleged misconduct, namely, disclosing
sensitive and/or confidential information on his personal
website, including personal comments about Eastwood, who was,
at the time, the Superintendent of Schools for the Oswego
City School District (“Oswego District”).
Eastwood's 56.1 Stmt. at ¶¶ 2-4; Miller Aff.
Ex. B at 2. Hoefer appealed his removal to the Commissioner
of Education, naming Eastwood as one of the respondents.
Eastwood's 56.1 Stmt. at ¶ 5. The appeal was denied.
Id. In 2008, he was re-elected to the Oswego Board.
Hoefer Dep. Tr. 12:19-25.
2004, and at all times relevant to the Complaint, Eastwood
has been the Superintendent of Schools for the Enlarged City
School District of Middletown (“Middletown
District”). Eastwood's 56.1 Stmt. at ¶ 1.
The March 4, 2010 Middletown Board Meeting
March 4, 2010 at 7:30 p.m., the Middletown Board held a
regular meeting at Middletown High School (the “Board
Meeting”). Id. at ¶ 6. Geiger, the
Middletown Board President, presided over the meeting.
Id. at ¶ 8. Hoefer arrived at the high school
shortly before the meeting began. Id. at ¶ 7.
He had been invited to the meeting by Nicholas Mauro
(“Mauro”), a member of the Middletown Board.
Pl.'s 56.1 Counterstmt. at ¶ 1. Mauro had informed
Hoefer that Eastwood was involved in an effort to remove
another Board member, Roy Paul (“Paul”), and had
asked Hoefer to speak in support of Paul, by relating his own
experience of being removed from the Oswego Board. Pl.'s
56.1 Counterstmt. at ¶¶ 2-3; Hoefer Dep. Tr. at
52:22-54:3, 59:21-60:18; 57:22-58:4, 66:5-8.
approximately thirty minutes after the Board Meeting began,
Geiger opened the floor for public comments, noting that this
portion of the meeting was reserved for “community
members who live here and choose to address the Board of
Education.” Eastwood's 56.1 Stmt. at ¶¶
9-10; see also Pl.'s 56.1 Counterstmt. at
¶¶ 7-8. After Geiger's announcement, Hoefer
approached the microphone near the front of the auditorium,
at which time Eastwood passed Geiger a note. Pl.'s 56.1
Counterstmt. at ¶¶ 11-12; Miller Aff. Ex F. Hoefer
began reading from a prepared statement (the “Prepared
Statement”), identifying himself by name and stating
that he was a member of the Oswego Board. Eastwood's 56.1
Stmt. at ¶ 12; Pl.'s 56.1 Counterstmt. at ¶ 15.
Geiger inquired whether Hoefer lived or worked in Middletown,
and Hoefer responded that he was a “member of New York
State” and reiterated that he was from Oswego.
Eastwood's 56.1 Stmt. at ¶¶ 13-14; see
also Pl.'s 56.1 Counterstmt. at ¶¶ 16-18.
Geiger repeated that the public comment portion of the
meeting was reserved for Middletown residents. Eastwood's
56.1 Stmt. at ¶ 15.
then interjected, and a heated exchange between Mauro and
Geiger ensued. Eastwood's 56.1 Stmt. at ¶ 16. Mauro
insisted that the Middletown Board was not permitted to
discriminate between residents and non-residents, to which
Geiger responded that Mauro was out of order. Pl.'s 56.1
Counterstmt. at ¶¶ 19-20; Miller Aff. Ex F. During
this exchange, Hoefer attempted to read the introduction of
his Prepared Statement again. Eastwood's 56.1 Stmt. at
¶ 17; Pl.'s 56.1 Counterstmt. at ¶ 21. Geiger
advised Hoefer that his time to speak was up and instructed
Ken Haverlan, Middletown District's Head of Security at
the time, to remove Hoefer from the microphone.
Eastwood's 56.1 Stmt. at ¶ 18; Pl.'s 56.1
Counterstmt. at ¶ 22. A video recording of the meeting
shows that Hoefer stopped reading his Prepared Statement only
when Mauro resumed speaking loudly into the microphone.
Miller Aff. Ex F. Hoefer was only able to read the
introduction of his Prepared Statement during the Board
Meeting. Pl.'s 56.1 Counterstmt. at ¶ 29; Miller
Aff. Ex F.
the kerfuffle, Geiger made a motion to go out of session,
which was approved by a majority of the Board, and a recess
was taken at approximately 8:02 p.m. for 26 minutes.
Eastwood's 56.1 Stmt. at ¶¶ 20-21; Pl.'s
56.1 Counterstmt. at ¶¶ 24-25; Miller Aff. Ex. F.
At the time the recess was taken, Hoefer was still standing
in front of the microphone. Eastwood's 56.1 Stmt. at
¶ 22. Hoefer was subsequently arrested. Eastwood's
56.1 Stmt. at ¶ 23.
Hoefer's removal, the public comment portion of the
meeting continued. Pl.'s 56.1 Counterstmt. at ¶ 38;
see Sussman Decl. Ex. 3 at 2-3. A second public
comment portion was also held at the end of the meeting.
Pl.'s 56.1 Counterstmt. at ¶ 39; see
Sussman Decl. Ex. 2 at 2, Ex. 3 at 7-8. During the second
public comment portion, several speakers were allowed to
speak positively about Eastwood. Pl.'s 56.1 Counterstmt.
at ¶ 40; see Sussman Decl. Ex. 3 at 7-8.
Publication of the March 4 Statement and Defamation
days after the Board Meeting, Hoefer published the Prepared
Statement on his website blog, which was highly critical of
Eastwood. Eastwood's 56.1 Stmt. at ¶ 25; Pl.'s
56.1 Counterstmt. at ¶¶ 41-42; Miller Aff. Ex. G.
Thereafter, Eastwood commenced a defamation action in New
York State Supreme Court against Hoefer, alleging that four
separate statements in his published Prepared Statement
constituted defamation. Pl.'s 56.1 Counterstmt. at
¶¶ 43-44; see Eastwood v. Hoefer, 136
A.D.3d 655, 655-56 (2d Dep't. 2016). Allegations
regarding three of the challenged statements proceeded to
trial, and the jury found for Eastwood on all three
statements. Pl.'s 56.1 Counterstmt. at ¶¶
44-45; see Eastwood 136 A.D.3d at 656. However, on
September 9, 2013, the New York State Supreme Court
overturned the verdict as to two statements, upholding the
verdict only as to Hoefer's assertion that Eastwood
“use[d] his position to acquire enhanced grades for his
daughter.” Pl.'s 56.1 Counterstmt. at ¶ 46;
see Eastwood 136 A.D.3d at 655-56. On February 3,
2016, the Appellate Division, Second Department affirmed the
New York State Supreme Court's order. Pl.'s 56.1
Counterstmt. at ¶ 47; see Eastwood 136 A.D.3d
filed this instant action on April 16, 2010. Doc. 1. On March
23, 2012, the Defendants moved for partial summary judgment
only with respect to Hoefer's false arrest claim against
Eastwood, which the Court granted on January 9, 2013. Docs.
11, 21. They did ...