Murphy v. Onondaga County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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KEVIN MURPHY,

Plaintiff,

-v- 5:18-CV-1218

ONONDAGA COUNTY,

THE ONONDAGA COUNTY

SHERIFF’S DEPARTMENT,

EUGENE CONWAY, MICHAEL

DICKINSON, JAMMIE BLUMER,

JONATHAN ANDERSON,

JOSEPH PELUSO, ROY

GRATIEN, CARL HUMMEL,

WILLIAM FITZPATRICK,

MELANIE S. CARDEN,

and LINDSEY M. LUCZKA,

Defendants.

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APPEARANCES: OF COUNSEL:

OFFICE OF JEFFREY R. PARRY JEFFREY R. PARRY, ESQ.

Attorneys for Plaintiff

7030 East Genesee Street

Fayetteville, NY 13066

OFFICE OF JARROD W. SMITH JARROD W. SMITH, ESQ.

Attorneys for Plaintiff

11 South Main Street

P.O. Box 173

Jordan, NY 13080

ONONDAGA COUNTY JOHN E. HEISLER, JR., ESQ.

DEPARTMENT OF LAW

Attorneys for Defendants Onondaga

County, Onondaga County Sheriff’s

Department, Hummel, Fitzpatrick,

Carden, and Luczka

421 Montgomery Street, 10th Floor

Syracuse, NY 13202

COSTELLO, COONEY & ROBERT J. SMITH, ESQ.

FEARON, PLLC ELIZABETH A. HOFFMAN, ESQ.

Attorneys for Defendants Conway, KELLY JOSEPH PARE, ESQ.

Dickinson, Blumer, Anderson,

Peluso, and Gratien

211 West Jefferson Street

Syracuse, NY 13202

DAVID N. HURD

United States District Judge

DECISION and ORDER

I. INTRODUCTION

On October 11, 2018, plaintiff Kevin Murphy (“Murphy” or “plaintiff”), a

retired sergeant with the Onondaga County Sheriff’s Department, filed this

civil action alleging that high-ranking personnel in the Sheriff’s Department

and in other County leadership positions retaliated against him for reporting,

or otherwise speaking out about, certain unlawful or inappropriate incidents

that took place during his tenure as a Sheriff’s Department employee.

Plaintiff’s eleven-count amended complaint1 alleged federal claims under

42 U.S.C. §§ 1983 and 1985, the civil provision of the Racketeer Influenced

and Corrupt Organizations (“RICO”) Act, and related New York law against

the County of Onondaga (the “County”), the County Sheriff’s Department (the

“Sheriff’s Department”), County Sheriff Eugene Conway (“Sheriff Conway”),

Chief Police Deputy Joseph Ciciarelli (“Chief Police Deputy Ciciarelli”),

Captain Michael Dickinson (“Captain Dickinson”), Lieutenant Jammie

Blumer (“Lt. Blumer”), Lieutenant Jonathan Anderson (“Lt. Anderson”),

Sergeant Joseph Peluso (“Sgt. Peluso”), Assistant Chief Roy Gratien (“Ass’t

Chief Gratien”), Undersheriff Jason Cassalia (“Undersheriff Cassalia”),

Acting Personnel Commissioner Carl Hummel (“Commissioner Hummel”),

District Attorney William Fitzpatrick (“DA Fitzpatrick”), Administrator

Stefano Cambareri (“Administrator Cambareri”), Assistant DA Melanie S.

Carden (“ADA Carden”), Assistant DA Lindsey M. Luczka (“ADA Luczka”), a

private individual named Bryan Edwards (“Edwards”), and his company,

Westcott Events, LLC (“Westcott Events”).

On March 18, 2022, Senior U.S. District Judge Gary L. Sharpe issued a

62-page Decision & Order that cleaned up a blizzard of motion practice filed

by several of the defendants and by plaintiff himself. Dkt. No. 174; Murphy

1 For reasons explained in Judge Sharpe’s March 18, 2022 Decision & Order, plaintiff’s amended

complaint (Dkt. No. 60) is the operative pleading in this action.

v. Onondaga County, 2022 WL 819281 (N.D.N.Y.). Judge Sharpe’s Order left

a few of plaintiff’s claims remaining against a subset of named defendants:

(1) § 1983 First Amendment retaliation claim(s)

against the County, the Sheriff’s Department, Sheriff

Conway, Captain Dickinson, Lt. Blumer, Lt.

Anderson, Sgt. Peluso, Ass’t Chief Gratien,

Commissioner Hummel, DA Fitzpatrick, ADA Carden,

and ADA Luczka (Counts Three and Four);

(2) state-law claims for defamation, defamation per se,

libel, and slander, and conspiracy to commit those

state-law torts, against the County, the Sheriff’s

Department, Commissioner Hummel, DA Fitzpatrick,

ADA Carden, and ADA Luczka (Counts Eight and

Nine);

(3) a state-law claim for intentional infliction of

emotional distress against the County, the Sheriff’s

Department, and Commissioner Hummel (Count Ten);

and

(4) a state-law claim for negligent infliction of

emotional distress against the County, the Sheriff’s

Department, Commissioner Hummel, DA Fitzpatrick,

ADA Carden, and ADA Luczka (Count Eleven).

Dkt. No. 174. At that time, Judge Sharpe also dismissed Chief Police Deputy

Ciciarelli, Undersheriff Cassalia, Administrator Cambareri, Edwards, and

Westcott Events as defendants in this action. Id. Thereafter, the remaining

parties completed discovery. The remaining defendants break down into two

camps: (a) Sheriff Conway, Captain Dickinson, Lt. Blumer, Lt. Anderson, Sgt.

Peluso, and Ass’t Chief Gratien (collectively the “Sheriff’s defendants”); and

(b) the County, the Sheriff’s Department, Commissioner Hummel, DA

Fitzpatrick, ADA Carden, and ADA Luczka (the “County defendants”).

On May 5, 2023, the first camp; i.e., the Sheriff’s defendants, moved under

Federal Rule of Civil Procedure (“Rule”) 56 for summary judgment on the

remaining claims asserted against them; i.e., the § 1983 First Amendment

retaliation claims in Counts Three and Four. Dkt. No. 202. The second

camp; i.e., the County defendants, filed a notice of non-opposition, Dkt. No.

203, and have not participated in the briefing on this motion.

After the Sheriff’s defendants’ motion for summary judgment was fully

briefed, Dkt. Nos. 206, 208–209, 211, the case was reassigned to this Court

for a decision, Dkt. No. 212. The motion will be decided on the basis of the

submissions without oral argument.

II. BACKGROUND

In October of 1990, the Sheriff’s Department hired Murphy to work as a

deputy road patrol officer. Defs.’ Facts ¶¶ 1–2. Plaintiff worked in that role

until February of 2000, when he was promoted to the rank of road patrol

sergeant. Id. ¶ 2. As a road patrol sergeant, plaintiff’s job responsibilities “in

general terms, [were] to review the work of the deputies assigned to ensure

the policies and procedures [were] adhered to, criminal investigations [were]

followed up on, and the public [was] served.” Id. ¶ 3. In addition, plaintiff

supervised the road patrol deputies and reviewed accident reports. Id. ¶ 4.

It was also plaintiff’s responsibility to “know and adhere to the policies

and procedures of the Sheriff’s Department” and to “identify those times in

which the policies are violated and make notification to [his] immediate chain

of command, which [he] did.” Defs.’ Facts ¶ 5. During plaintiff’s tenure as a

road patrol sergeant, he became aware of “improprieties” that he reported to

his supervisors. Id. ¶ 6. Plaintiff contends that one or more of the named

defendants retaliated against him after he made these or other reports.

1. November of 2008 – A suicide at the Jail

First, in November of 2008, an individual committed suicide at the Justice

Center. Defs.’ Facts ¶ 7. Plaintiff believed that a medical director involved in

reviewing the suicide altered the inmate’s medical records. Id. ¶ 8. Plaintiff

reported this belief to his supervisor. Id. ¶¶ 8–9. He also reported this belief

to the County Attorney’s Office and to the District Attorney’s Office. Id.

Thereafter, Lt. Anderson, who was the head of the Sheriff’s Department’s

internal affairs, investigated the incident. Defs.’ Facts ¶¶ 34–37. Based on

his investigation, he filed “internal charges” against plaintiff. Id. ¶¶ 10–11,

38–39. Those charges accused plaintiff of “failing to adhere to a written

directive on the proper and safe handling of evidence.” Id. ¶ 10. This was

“because a detective under plaintiff’s supervision did not properly secure the

original medical records from the suicide incident.” Id.

However, Lt. Anderson was not responsible for determining whether or

not plaintiff would face any discipline as a result of this investigation. Defs.’

Facts ¶ 40. Nor did Lt. Anderson play any role in determining whether or not

plaintiff should or should not be promoted at any time. Id. ¶ 43. As relevant

here, Lt. Anderson never disciplined plaintiff, did not supervise plaintiff, and

was not involved in assigning plaintiff any job duties. Id. ¶ 44. Other than

this investigation into the suicide that happened at the jail, Lt. Anderson was

not involved in plaintiff’s employment in any way. Id. ¶¶ 41, 45.

Ass’t Chief Gratien was also involved in the investigation into this suicide

incident. Defs.’ Facts ¶ 58. Plaintiff believes that Ass’t Chief Gratien “made

comments to a captain stating plaintiff ‘interfer[ed] [sic] with investigations’

and that was why plaintiff was not being promoted.” Id. ¶ 60. But it is

unclear if, when, or to whom any such statements were made. Id. ¶¶ 61–62.

2. The Timber Tavern Incident – May of 2015

Second, on May 30, 2015, an African-American woman complained to the

Sheriff’s Department about an incident that occurred at the Timber Tavern

Bar. Defs.’ Facts ¶ 13. Plaintiff believed that this incident was not properly

addressed or investigated by the department. Id. Plaintiff was not assigned

to this incident. Id. ¶ 14. Even so, plaintiff performed his own investigation

into what happened. Id. Plaintiff notified his commanding officers about the

“Timber Tavern incident” and explained that he believed that the incident

had been improperly investigated. Id. ¶ 15. Plaintiff believes he was denied

a promotion as a result of his reports about this incident. Id. ¶¶ 21, 23.

3. The Holding Cells & A Suspect’s Blood Draw – April of 2016

Third, in April of 2016, plaintiff believed that temporary holding cells at

the Justice Center were being used to hold prisoners in violation of a certain

department policy. Defs.’ Facts ¶¶ 16–17. Plaintiff reported this to Sheriff

Conway and raised it “internally in front of other sergeants and lieutenants

as well as the chain of command in the jail.” Id. ¶ 17.

Fourth, a few weeks later on April 23, 2016, plaintiff learned about an

“unconstitutional search and seizure of a suspect’s blood.” Defs. Facts ¶ 18.

Plaintiff notified his chain of command about this event. Id. Lt. Blumer

issued a police report about the suspect’s blood draw that plaintiff believed to

be false. Id. ¶¶ 48–49. Plaintiff believes he was denied a promotion as a

result of his report about this incident. Id. ¶ 21. However, Lt. Blumer never

supervised plaintiff or had any other authority over the terms and conditions

of plaintiff’s employment. Id. ¶¶ 50–51, 54.

4. Sgt. Peluso & Schedule Changes – August of 2016

Plaintiff also contends that Sgt. Peluso retaliated against him by yelling

and screaming at him on several occasions. See Defs.’ Facts ¶ 72. Notably,

Sgt. Peluso filed a complaint against plaintiff in 2016. Id. ¶ 75. Plaintiff

contends that this was an attempt to block him from getting promoted. Id.

Ass’t Chief Gratien acknowledges that he and Captain Dickinson altered

plaintiff’s and Sgt. Peluso’s work schedules so that their shifts no longer

overlapped with each other. Defs.’ Facts ¶¶ 66–67. However, Ass’t Chief

Gratien never disciplined plaintiff for any reason. Id. ¶ 69. Instead, a memo

was prepared to reflect the changes. Id. ¶¶ 76–78.

Captain Dickinson interviewed Sgt. Peluso, plaintiff, and both of their

direct supervisors to determine what, if anything should be done. Defs.’

Facts ¶¶ 79, 89–93. Shortly after Sgt. Peluso’s schedule was adjusted, he

retired from the road patrol unit. Id. ¶ 82.

Sgt. Peluso did not have the authority to supervise, discipline, recommend,

authorize, or otherwise approve any employment actions against plaintiff,

who was a fellow sergeant. Defs.’ Facts ¶¶ 73, 80. Nor did Sgt. Peluso speak

to anyone outside the Sheriff’s Department to try to influence any decisions

about plaintiff’s duties or responsibilities. Id. ¶ 74. Sgt. Peluso never sat on

any promotion panel and never discussed with anyone about whether or not

plaintiff should be promoted. Id. ¶ 83.

5. Errata & Other Named Defendants

Plaintiff’s direct supervisor is not a defendant in this litigation. Defs.’

Facts ¶ 52. Lt. Blumer never disciplined plaintiff. Id. ¶ 53. Plaintiff was

never ordered not to do police work by Captain Dickinson. Id. ¶ 94. Instead,

plaintiff was encouraged by Captain Dickinson “to refrain from involving

himself in detailed investigations” and to “instead focus on supervising and

training the deputies assigned to him.” Id. ¶ 95.

Captain Dickinson never sat on a promotions panel, played any role in

determining whether or not plaintiff should be promoted, or spoke to anyone

about that topic. Defs.’ Facts ¶ 86–88, 93. Captain Dickinson never took any

action against plaintiff based on any reports, comments, complaints, or

notifications plaintiff made to others. Id. ¶ 96.

Sheriff Conway had no personal involvement in any determinations about

whether or not plaintiff should be promoted. Defs.’ Facts ¶ 31. Nor did

Sheriff Conway speak to anyone about whether or not plaintiff should be

promoted. Id. Sheriff Conway did not supervise the road patrol sergeants,

did not assign plaintiff any job duties, and never opined on the adequacy of

plaintiff’s job performance. Id. ¶ 32. Sheriff Conway was not involved in

recommending, authorizing, or approving any employment actions taken

against plaintiff, and is not aware of any such actions. Id. ¶ 33.

In January of 2020, plaintiff retired from the Sheriff’s Department and

began working at Onondaga Community College. Defs.’ Facts ¶ 24. He now

works for the Village of Homer’s Police Department. Id. ¶ 25.

III. LEGAL STANDARD

The entry of summary judgment is warranted “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). An issue of fact is

material for purposes of this inquiry if it “might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). And a dispute of material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id.

In assessing whether there are any genuine disputes of material fact,

“a court must resolve any ambiguities and draw all inferences from the facts

in a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F.

Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Summary judgment is

inappropriate where a “review of the record reveals sufficient evidence for a

rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of

Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).

IV. DISCUSSION

As a result of Judge Sharpe’s March 18, 2022 Decision & Order, only the

following claims remain: (1) § 1983 First Amendment retaliation claim

against the County, the Sheriff’s Department, Sheriff Conway, Captain

Dickinson, Lt. Blumer, Lt. Anderson, Sgt. Peluso, Ass’t Chief Gratien,

Commissioner Hummel, DA Fitzpatrick, ADA Carden, and ADA Luczka

(Counts Three and Four); (2) state-law claims for defamation, defamation per

se, libel, and slander, and conspiracy to commit those torts, against the

County, the Sheriff’s Department, Commissioner Hummel, DA Fitzpatrick,

ADA Carden, and ADA Luczka (Counts Eight and Nine); (3) a state-law claim

for intentional infliction of emotional distress against the County, the

Sheriff’s Department, and Commissioner Hummel (Count Ten); and (4) a

state-law claim for negligent infliction of emotional distress against the

County, the Sheriff’s Department, Commissioner Hummel, DA Fitzpatrick,

ADA Carden, and ADA Luczka (Count Eleven).

The Sheriff’s defendants have moved for summary judgment on the § 1983

First Amendment claims for workplace retaliation that remain against them

in Counts Three and Four.2 Dkt. No. 202; see also Dkt. No. 174 at 59–60.

1. Sheriff’s Defendants’ Statement of Material Facts

Before turning to the merits of the § 1983 retaliation claims, the Sheriff’s

defendants have requested that the Court deem admitted the facts set forth

in their Statement of Material Facts. Defs.’ Reply, Dkt. No. 211 at 4 n.1.3

Upon review, defendants’ request must be granted. Briefly summarized,

our Local Rules require the moving party to identify—in a separate document

called a statement of material facts—the undisputed material facts that

entitle them to judgment as a matter of law on the claim(s) or defense(s) at

issue. N.D.N.Y. L.R. 56.1(a). In response, the party seeking to justify the

2 These § 1983 claims are also asserted against the County defendants, who have not moved.

3 Pagination corresponds to CM/ECF headers.

need for a trial on that claim or defense (i.e., the non-movant), is supposed to

respond—in a separate-but-matching document—by admitting or denying

each material fact offered by the movant. N.D.N.Y. L.R. 56.1(b). And for

each denial, the non-movant is supposed to identify the specific record

evidence that creates a “genuine” dispute over that material fact. Id.

The Sheriff’s defendants did their part. Dkt. No. 202-19. They submitted

a statement of material facts supported by record citations. Id. But plaintiff

did not do his part in following this Local Rule. Instead, in opposition to the

Sheriff’s defendants’ motion for summary judgment, plaintiff has filed three

things: (1) a memorandum of law, Dkt. No. 206; (2) an affidavit, Dkt. No. 208;

and (3) an attorney affirmation, Dkt. No. 209.

The affidavit is sworn to by plaintiff and includes several exhibits. Dkt.

No. 208. But these exhibits are not a sufficient response to a moving party’s

statement of material facts: these documents are a state-court “complaint to

the New York State Commission on Judicial Conduct” against a non-party

state-court judge (Ex. A), an affidavit from a non-party witness (Ex. B), and a

“[t]imeline w[ith] short narratives” (Ex. C). Id.

The Court has reviewed these materials. None of these documents can be

accepted as a response to the Sheriff’s defendants’ statement of material

facts. The “timeline”—which is the closest plaintiff comes to identifying facts

that would establish his own version of events—is a narrative series of

assertions, but it is unsworn, devoid of citations to record evidence that might

have been produced in discovery, and describes several events for which

plaintiff would lack personal knowledge. Ex. C to Dkt. No. 2018 at 33–55.

Plaintiff’s attorney affirmation is not an acceptable response, either: it

includes a letter from a non-party state-court judge that plaintiff later filed a

judicial conduct complaint against (Ex. A) and a letter from DA Fitzpatrick, a

non-moving defendant, (Ex. B) about an investigation conducted into plaintiff

that resulted in a non-prosecution decision. Dkt. No. 209.

In his memorandum of law, plaintiff refers to a “sworn rendition of the

facts of this case” made by plaintiff and “proffered to the Judicial Grievance

Committee.” Dkt. No. 206 at 6. This reference apparently refers to Exhibit A

attached to plaintiff’s affidavit.

But that is not an acceptable response to the defendants’ statement of

material facts, either. First, it reads much more like a legal argument than a

sworn affidavit. See Dkt. No. 208 at 4–29. Even assuming otherwise, it does

not mirror the Sheriff’s defendants’ assertions (as the Local Rules require)

and does not specifically admit, deny, or respond to any of the Sheriff’s

defendants’ specific factual averments. See id.

There is no excuse for this procedural error. Plaintiff is counseled. His

attorneys practice in this judicial district. They should know better than to

flout basic requirements of the Local Rules. But even assuming they were

not otherwise on notice of this briefing requirement, defendants’ statement of

material facts explicitly warns plaintiff’s counsel about the obligation to file a

“counterstatement” of material facts. Dkt. No. 202-19 at 16. This warning

language was enough to put plaintiff’s counsel on notice of his obligations: it

even cites the appropriate Local Rule. Id.

To be sure, plaintiff’s memorandum of law goes on for nearly nineteen full

pages telling a version of certain events that, presumably, favor plaintiff’s

side of this story. Dkt. No. 206 at 9–24. But notably absent from this factual

recitation are citations to the record. Id. In short, none of plaintiff’s filings

constitute an appropriate response to defendants’ statement of material facts.

When faced with a motion for summary judgment, “the judge must ask

himself not whether he thinks the evidence unmistakably favors one side or

the other but whether a fair-minded jury could return a verdict for the

plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. “In order to

answer that bottom-line question, the Court needs to know what issues are

really in dispute, and what plaintiff’s version of the proof at trial would

actually look like.” Krul v. DeJoy, –F. Supp. 3d–, 2023 WL 8449589, at *13

(N.D.N.Y. Dec. 6, 2023).

The Court cannot make this assessment without the aid of the parties. At

the bare minimum, the non-movant needs to respond properly and place the

movant’s factual showing in dispute. That kind of bare-minimum effort is

especially important where, as here, the non-movant is the party who will

bear the initial burden of proof at trial.

Presumably, some of the statements in plaintiff’s memorandum of law,

Dkt. No. 206 at 9–24, and some of the statements made in the grievance

committee filing attached as an exhibit to plaintiff’s affidavit, Dkt. No 208-1,

would be within plaintiff’s personal knowledge.

Plaintiff could likely testify to those facts. See e.g., Serrano v. Cablevision

Sys. Corp., 863 F. Supp. 2d 157, 163 (E.D.N.Y. 2012) (explaining that the

relevant test is “whether a reasonable trier of fact could believe the witness

had personal knowledge” of the fact at issue).

But the Court cannot just deny summary judgment based on that kind of

assumption. That is why the Local Rules require the non-movant to identify

(and cite, even if it is just an affidavit from plaintiff) evidence in the record

that would establish a fact dispute worthy of a trial. In sum, plaintiff has not

complied with the Local Rules governing a non-movant’s response to a

movant’s statement of material facts. Accordingly, the Sheriff’s defendants’

statement of material facts will be deemed admitted.

1. § 1983 First Amendment Retaliation (Counts Three and Four)

The Sheriff’s defendants have moved for summary judgment on plaintiff’s

§ 1983 First Amendment Retaliation claims against Sheriff Conway, Captain

Dickinson, Lt. Blumer, Lt. Anderson, Sgt. Peluso, and Ass’t Chief Gratien.4

“To succeed on a First Amendment claim brought pursuant to Section

1983, a plaintiff must be able to demonstrate that (1) the conduct at issue

was constitutionally protected, (2) the alleged retaliatory action adversely

affected his constitutionally protected conduct, and (3) a causal relationship

existed between the constitutionally protected conduct and the retaliatory

action.” Wrobel v. County of Erie, 692 F.3d 22, 27 (2d Cir. 2012) (citing

Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir. 2003)).

a. Personal Involvement

As an initial matter, nearly all of the theories under which plaintiff might

still pursue a § 1983 First Amendment retaliation claim against the Sheriff’s

defendants fail because the admitted facts conclusively establish that they

were not “personally involved” in any alleged misconduct.

A § 1983 claim requires the plaintiff to show an individual defendant’s

“personal involvement” in the alleged violation. Walker v. Shult, 365 F.

4 Plaintiff has also asserted official-capacity claims against these defendants, which must be

dismissed. “[A]n official-capacity suit is, in all respects other than name, to be treated as a suit

against the entity.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). In short, these § 1983 official-

capacity claims are redundant of the § 1983 claim(s) directly against the County. See, e.g., Hulett v.

City of Syracuse, 253 F. Supp. 3d 462, 498–99 (N.D.N.Y. 2017).

Supp. 3d 266, 284 (N.D.N.Y. 2019) (“[C]onstitutional torts cannot be premised

on a theory of respondeat superior.”). In other words, “[i]f a defendant has not

personally violated a plaintiff’s constitutional rights, the plaintiff cannot

succeed on a § 1983 action against the defendant.” Raspardo v. Carlone, 770

F.3d 97, 115 (2d Cir. 2014) (emphasis in original). This basic rule applies to

supervisory defendants, too. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d

Cir. 2020) (clarifying the “personal involvement” requirement in the context

of a supervisory liability claim).

Sheriff Conway. Plaintiff argues that:

Amongst other things, took orders from Fitzpatrick to

attack Murphy by denying him the freedom to do his

job. This turned out to be an extension of a political

favor, a favor given to a Judge running for office, by

the late Judge Tormey.

Pl.’s Mem., Dkt. No. 206 at 30 (internal citation omitted).5

This argument is far too generalized to support a claim, especially since it

appears to be based on plaintiff’s speculation. Broadly speaking, plaintiff’s

basis for liability against Sheriff Conway seems to rely on his assertion that

Sheriff Conway, by virtue of his position as the sheriff, had to “authorize any

and all actions against [him].” Defs.’ Mem. at 20.

5 Oddly, plaintiff’s memorandum of law in opposition to summary judgment repeatedly cites to a

prior, non-operative iteration of his complaint as support for these points. See, e.g., Dkt. No. 206 at

30 (citing Dkt. No. 56 at passim). But this is summary judgment, not a motion to dismiss, so it is

unclear what plaintiff is trying to accomplish with these citations.

But this is not enough for a factfinder to conclude that he was “personally

involved” in misconduct. See Tangreti, 983 F.3d at 618. Further, at his

deposition, plaintiff could not recall any action taken against him in which

Sheriff Conway was personally involved. Ex. H to Pare Decl., Dkt. No. 202-9

at 29–32. Likewise, the admitted facts establish that Sheriff Conway had no

involvement in any determination about whether or not plaintiff should be

promoted. Nor did Sheriff Conway ever supervise plaintiff, assign him any

job duties, opine on his job performance, or recommend, authorize, or approve

any actions taken against plaintiff.

Captain Dickinson. Plaintiff argues that:

Amongst other things, ordered Murphy not to do police

work in the face of Murphy’s revelations of improper

police conduct, brought erroneous charges and

actually placed Murphy under surveillance.

Pl.’s Mem. at 31. But the admitted facts establish that Captain Dickinson

never issued that order. Instead, the admitted facts establish that plaintiff

was only encouraged by Captain Dickinson “to refrain from involving himself

in detailed investigations” and to “instead focus on supervising and training

the deputies assigned to him.”

Further, although Captain Dickinson acknowledges that he and Ass’t

Chief Gratien altered plaintiff’s and Sgt. Peluso’s work schedules to avoid

future overlap, Captain Dickinson never played any role in determining

whether plaintiff should be promoted and never took any action against

plaintiff based on any reports, comments, complaints, or notifications

plaintiff made to others.

Lt. Blumer. Plaintiff argues that:

Amongst other things, brought wrongful blame upon

Murphy for his disclosure of their error in a search

warrant that led to an illegal seizure of a defendant’s

blood.

Pl.’s Mem. at 30. In other words, Lt. Blumer issued a police report about the

suspect’s blood draw that plaintiff believed to be false. Plaintiff believes he

was denied a promotion as a result of his report about this incident. But this

accusation seems wholly speculative. And the admitted facts establish that

Lt. Blumer never supervised plaintiff or had any other authority over the

terms and conditions of his employment.

Lt. Anderson. Plaintiff argues that:

Amongst other things, brought harassing charges

against Murphy for “silent insolence” in retribution to

[sic] Murphy’s influence on [Captain] Dickinson’s

paramour to stop their illicit affair, a matter of public

concern because she was a confidential informant.

Pl.’s Mem. at 30. In addition, plaintiff appears to rely on the fact that Lt.

Anderson investigated the internal affairs matter stemming from the suicide

at the jail. But the admitted facts establish that Lt. Anderson was not

responsible for deciding whether plaintiff would face any discipline, did not

play any role in deciding whether plaintiff should be promoted at any time,

never disciplined plaintiff, did not supervise him, and was not involved in

assigning plaintiff any duties.

Sgt. Peluso. Plaintiff contends that:

Amongst other things, brought wrongful blame upon

Murphy for his disclosure of their error in a search

warrant that led to an illegal seizure of a defendant’s

blood.

Pl.’s Mem. at 31. In addition, plaintiff contends that Sgt. Peluso retaliated

against him by screaming at him on several occasions. Sgt. Peluso also filed

a complaint against plaintiff in 2016 in an attempt to block him from getting

promoted. But the admitted facts establish that Sgt. Peluso did not have the

authority to supervise, discipline, recommend, authorize, or otherwise

approve any employment actions against plaintiff. The facts also establish

that Sgt. Peluso did not speak to anyone outside the Sheriff’s Department to

try to influence any decisions about plaintiff’s duties or responsibilities.

Ass’t Chief Gratien. Plaintiff believes that Ass’t Chief Gratien made some

comments to a captain stating that plaintiff interfered with investigations

and that he was involved in the internal affairs investigation into the suicide

incident. Again, however, this accusation is wholly speculative. Although

Ass’t Chief Gratien acknowledges that he and Captain Dickinson altered

plaintiff’s and Sgt. Peluso’s work schedules so that their shifts no longer

overlapped with each other, the admitted facts establish that Ass’t Chief

Gratien never disciplined plaintiff for any reason.6

b. Plaintiff’s Speech or Expressive Conduct

Even assuming that one or more of these defendants were “personally

involved,” plaintiff’s remaining § 1983 claims fail because the admitted facts

conclusively establish that plaintiff was speaking in his capacity as a public

employee. Even viewed in the light most favorable to him, no reasonable

factfinder could conclude that he was speaking as a private citizen.

First in Pickering v. Board of Education, 391 U.S. 563 (1968), and again in

Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court sought to strike “a

balance between the interests of the [employee], as a citizen, in commenting

upon matters of public concern and the interest of the State, as an employer,

in promoting the efficiency of the public services it performs through its

employees.” Connick, 461 U.S. at 140 (quoting Pickering, 391 U.S. at 568).

On one hand, “[a] government employee does not relinquish all First

Amendment rights otherwise enjoyed by citizens just by reason of his or her

employment.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). “On the other

hand, a governmental employer may impose certain restraints on the speech

6 Ass’t Chief Gratien acknowledges that he sat and others sat on a promotions panel that

presided over one of plaintiff’s applications. It is discussed briefly infra.

of its employees, restraints that would be unconstitutional if applied to the

general public.” Id.

More recently, though, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the

Supreme Court “narrowed [its] jurisprudence in the area of employee speech

by further restricting the speech activity that is protected.” Weintraub v. Bd.

of Educ. of City Sch. Dist. of City of N.Y., 593 F.3d 196, 201 (2d Cir. 2010)

(cleaned up). In particular, Garcetti held that “when public employees make

statements pursuant to their official duties, the employees are not speaking

as citizens for First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.” 746 F.3d at 421.

Under Garcetti, public employees speak in their capacity as public

employees, and not private citizens, when they “make statements pursuant to

their official duties.” 547 U.S. at 421. “Restricting speech that owes its

existence to a public employee's professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen.” Id. at

421–22. Instead, “[i]t simply reflects the exercise of employer control over

what the employer itself has commissioned or created. Id. at 422.

In Weintraub, the Second Circuit explained that “[t]he objective inquiry

into whether a public employee spoke ‘pursuant to’ his or her official duties is

‘a practical one.’” 593 F.3d at 202 (quoting Garcetti, 547 U.S. at 424); see also

Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (“The inquiry into whether a

public employee is speaking pursuant to her official duties is not susceptible

to a brightline rule.”).

To conduct this practical inquiry, “[c]ourts must examine the nature of the

plaintiff's job responsibilities, the nature of the speech, and the relationship

between the two.” Ross, 693 F.3d at 306. “Other contextual factors, such as

whether the complaint was also conveyed to the public, may properly

influence a court’s decision.” Id. For example, speech may be considered

“pursuant to” an employee's official responsibilities if it is “part-and-parcel of

[the employee’s] concerns about his ability to properly execute his

duties.” Weintraub, 593 F.3d at 203 (cleaned up). The same is true if the

speech in question lacks a “citizen analogue”; i.e., a “relevant analogue to

speech by citizens who are not government employees.” Id. at 203.

“Formal job descriptions often bear little resemblance to the duties an

employee actually is expected to perform, and the listing of a given task in an

employee's written job description is neither necessary nor sufficient to

demonstrate that conducting the task is within the scope of the employee's

professional duties for First Amendment purposes.” Garcetti, 547 U.S. at

424–25 (rejecting “the suggestion that employers can restrict employees’

rights by creating excessively broad job descriptions”).

Likewise, “the mere fact that a citizen's speech concerns information

acquired by virtue of his public employment does not transform that speech

into employee—rather than citizen—speech.” Lane v. Franks, 573 U.S. 228,

240 (2014). Instead, “[t]he critical question under Garcetti is whether the

speech at issue is itself ordinarily within the scope of an employee's duties,

not whether it merely concerns those duties.” Id.

Upon review, the application of Garcetti to the facts of this case leaves

plaintiff’s speech unprotected as a matter of law. Even viewed in the light

most favorable to him, plaintiff’s “complaints, “reports,” and “notifications,”

all of which were made to supervisors “regarding what he perceived to be

improprieties within the [Sheriff’s Department], were made internally and to

his commanding officers, and were made pursuant to his job obligations and

responsibilities as a sergeant.” Defs.’ Mem., Dkt. No. 202-20 at 10 (citing

record evidence establishing same).

This conclusion is compelled by the fact that all of plaintiff’s complaints,

reports, and notifications shared the same basic features:

(a) the reports plaintiff made were part of his job as a

sergeant at the [Sheriff’s Department]; (b) the persons

to whom plaintiff directed the speech and complaints

were his supervisors; (c) the reports resulted from

special knowledge plaintiff gained through his

employment; (d) the speech occurred internally within

plaintiff’s workplace; and (d) the speech concerned the

subject matter of [plaintiff’s] job, that is, to ensure

deputies and other police officers followed the policies,

procedures[,] and laws applicable to the [Sheriff’s

Department].

Defs.’ Mem. at 11–12. As the Sheriff’s defendants point out, there is nothing

to suggest that plaintiff ever went to the press with his concerns or otherwise

engaged in any speech about these issues that might support a conclusion

that this speech was made in the character of a private citizen. Id. at 12–13.

In his opposition memorandum, plaintiff asserts (apparently for the first

time) that he made reports or complaints to other state or federal authorities.

Pl.’s Mem., Dkt. No. 206 at 24–25. But as defendants argue in their reply,

there is no evidence in the existing record that any of these external reports

occurred. Defs.’ Reply, Dkt. No. 211 at 6.

Indeed, as defendants point out, “there is not a single reference to the FBI

or State Police in plaintiff’s deposition testimony,” and when he was asked

this question at his deposition, plaintiff “testified that each complaint he

made was an internal complaint made up the chain of command to one of his

supervisors.” Id.

In short, the record evidence conclusively establishes that plaintiff’s

reports, complaints, and notifications about improprieties or other improper

incidents, all of which occurred during his employment at the Sheriff’s

Department and squarely in his role as a sergeant, occurred “pursuant to” his

official duties. Accordingly, the Sheriff’s defendants are entitled to summary

judgment on plaintiff’s § 1983 First Amendment retaliation claims.

c. Adverse Action & Causation

Even assuming that plaintiff’s speech were protected under this general

body of law, plaintiff’s § 1983 claims would still fail because the admitted

facts establish that none of the named defendants took qualifying “adverse

action” against him. But even if one or more of the defendants’ actions was

adverse, there is no evidence of a causal relationship between the two.

“[T]he proper legal test in determining whether an employment action is

adverse in First Amendment retaliation cases is whether the alleged acts

‘would deter a similarly situated individual of ordinary firmness from

exercising his or her constitutional rights.’” Dillon v. Morano, 497 F.3d 247,

254 (2d Cir. 2007) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225

(2d Cir. 2006)). “In the First Amendment retaliation context, ‘[a]dverse

employment actions include discharge, demotion, refusal to hire, refusal to

promote, and reprimand.’” Fotopoulous v. Bd. of Fire Comm’rs of Hicksville

Fire Dist., 11 F. Supp. 3d 348, 364–65 (E.D.N.Y. 2014) (quoting Kaluczky v.

City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995)).

Importantly, though, “a combination of seemingly minor incidents [may

also] form the basis of a constitutional retaliation claim once they reach a

critical mass.” Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (citation

omitted). As the Second Circuit has explained:

[T]o prove a First Amendment retaliation claim in a

situation other than the classic examples of

termination, refusal to hire or promote, demotion,

reduction in pay, and reprimand, a plaintiff must show

that (1) using an objective standard; (2) the total

circumstances of her working environment changed to

become unreasonably inferior and adverse when

compared to a typical or normal, not ideal or model,

workplace.

Amato, 936 F. Supp. 2d at 433 (citation omitted).

To demonstrate causation, “a plaintiff must show that the protected

speech was a substantial motivating factor in the adverse employment

action.” Smith v. Cnty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (quoting

Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.

2006)). “A plaintiff may establish causation either directly through a

showing of retaliatory animus, or indirectly through a showing that the

protected activity was followed closely by adverse action.” Id. (citing Cobb v.

Pozzi, 363 F.3d 89, 108 (2d Cir. 2004)).

Plaintiff has identified three actions that were allegedly adverse.7 First,

he contends that he was passed over for a promotion to lieutenant in favor of

other, less-qualified candidates. Second, he claims he was ordered not to do

police work as a result of the notifications he made to his supervisors about

7 Plaintiff’s papers reference myriad other slights. See Pl.’s Mem. at 30–31 (repeatedly

adverting to “amongst other things”). Even viewed in the light most favorable to him, those other

events, viewed individually or in combination, are objectively insufficient to permit a fact-finder to

conclude that the circumstances of his working environment became unreasonable inferior and

adverse when compared to a typical or normal workplace.

the “improprieties” inside the Sheriff’s Department. Third, he claims he was

subjected to retaliatory investigations, including one conducted by internal

affairs shortly after the 2008 suicide incident.

Even viewed in the light most favorable him, none of these events gives

rise to a fact dispute on this element. As the Sheriff’s defendants concede,

plaintiff was passed over for promotion twice. Defs.’ Mem. at 15. But both

times, the Sheriff’s Department conducted an ordinary promotional process in

accordance with their policy that included interviews with plaintiff and other

candidates. Id. As defendants point out, Ass’t Chief Gratien is also the only

named defendant who even participated in these reviews. Id. at 15–16.

As to the alleged order not to do police work, the admitted facts establish

otherwise. Captain Dickinson presided over a dispute between plaintiff and

Sgt. Peluso that led to schedule changes so that both men would avoid each

other. At that time, Captain Dickinson only encouraged plaintiff “to refrain

from involving himself in detailed investigations” and to “instead focus on

supervising and training the deputies assigned to him.”

Finally, as to the internal affairs investigation, the Sheriff’s defendants

point out that the only individual involved was Lt. Anderson, who performed

an investigation but did not exercise any control over what happened as a

result of his findings. Defs.’ Mem. at 17. Plaintiff has not clearly articulated

what, if anything, occurred as a result of Lt. Anderson’s findings.

In sum, as defendants argued in their opening brief:

The record is devoid of evidence establishing that

plaintiff suffered an adverse employment action. It is

clear from plaintiff’s testimony that he was not

pleased that he was not promoted, he was not happy

his schedule changed as a result of his and Peluso’s

personal conflict, and he was not happy about being

the subject of an internal affairs investigation in 2009

or 2010. However, plaintiff’s dissatisfaction does not

render these “adverse employment actions” for

purposes of his retaliation claims.

Defs.’ Mem. at 18. To be sure, a different conclusion might be warranted on a

disputed fact record. But it is impossible to conclude that a fact-finder could

side with plaintiff on his § 1983 claims in light of the facts deemed admitted

for summary judgment. Accordingly, the Sheriff’s defendants motion for

summary judgment must be granted.

V. CONCLUSION

Therefore, it is

ORDERED that

1. Defendants’ motion for summary judgment is GRANTED;

2. Plaintiff’s § 1983 First Amendment retaliation claims against Sheriff

Conway, Captain Dickinson, Lt. Blumer, Lt. Anderson, Sgt. Peluso, and Ass’t

Chief Gratien are DISMISSED;

3. The Clerk of the Court is directed to TERMINATE Sheriff Conway,

Captain Dickinson, Lt. Blumer, Lt. Anderson, Set. Peluso, and Ass’t Chief

Gratien as defendants from this action;

4. Plaintiffs (a) § 1983 First Amendment retaliation claims against the

County, the Sheriffs Department, Commissioner Hummel, DA Fitzpatrick,

ADA Carden, and ADA Luczka (Counts Three and Four); (b) state-law claims

for defamation, defamation per se, libel, and slander, and conspiracy to

commit those state-law torts, against the County, the Sheriffs Department,

Commissioner Hummel, DA Fitzpatrick, ADA Carden, and ADA Luczka

(Counts Eight and Nine); (c) state-law claim for intentional infliction of

emotional distress against the County, the Sheriff's Department, and

Commissioner Hummel (Count Ten); and (d) state-law claim for negligent

infliction of emotional distress against the County, the Sheriff's Department,

Commissioner Hummel, DA Fitzpatrick, ADA Carden, and ADA Luczka

(Count Eleven) REMAIN FOR TRIAL.

IT IS SO ORDERED.

Dated: February 28, 2024 U.S. Disfrict Judge

Utica, New York.