# Murphy v. Onondaga County

> District Court, N.D. New York · February 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10316372

## Case

- **Court:** District Court, N.D. New York
- **Decided:** February 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10316372

## How later opinions describe it (automated extraction)

- explaining that the relevant test is “whether a reasonable trier of fact could believe the witness had personal knowledge” of the fact at issue

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316372. Public record. Not legal advice.