Appendix — Sheppard v. Beerman
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Vesizoam 9 2003
No.
IN THE
Supreme Court of the United States
BRIAN SHEPPARD,
Petitioner,
V.
LEON BEERMAN,
as an individual and in his official capacity as Justice of the
Supreme Court of the State of New York,
Respondent.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
BRIAN SHEPPARD
Counsel of Record
for Petitioner
516 N. 9th Street
Second Floor
New Hyde Park, NY 11040
(516) 358-7599
LIST OF CONTENTS
Page
Second Circuit Opinion of
BEOGR DS, Tee CTT Bo. ee ones Meese wes la
Second Circuit Opinion of
September 6, 1996 (Sheppard I ..........05055. lla
Second Circuit Opinion of
January 28, 2003 (Sheppard Ill) ..............44. 22a
District Court Opinion of
May 21, 1993 (Sheppard Ibelow) ............... 3la
District Court Opinion of
December 20, 1995 (Sheppard ITbelow) ........... 54a
District Court Opinion of
February 7, 2002 (Sheppard IlTbelow) ............ 77a
Magistrate Judge's Opinion of March 31, 1998
Restricting Discovery on Misconduct ............ 118a
Magistrate Judge's Opinion of June 23, 1998
Denying Reargument of Above Order ........... 134a
District Court's Opinion of July 31, 1998
Affirming Above Two Orders ................. 137a
Magistrate Judge's Opinion of May 16, 2000
Denying Renewed Motion for Discovery
We I oo pein ss Pe es OES PN Gee eek 139a
District Court's Opinion of July 17, 2000
PE FDO OE i es ea ee 144a
ii
Second Circuit Denial of Rehearing
and Rehearing En Banc of March 11, 2003 ......... 148a
COMUNE 8 ids ce ee 150a
Excerpts of Transcript of Respondent's
Deposition on July 9,1998 .................... 160a
Excerpts of Transcript of Queens County
Prosecutorial Supervisor Jack Warsawsky
on Apel 5, TP... sa ec ee 169a
Excerpts of Transcript of Queens County
Prosecutorial Supervisor Kenneth
Appelbaum on January 5,1999 ................ 184a
Excerpts of Transcript of Queens County
Prosecutorial Supervisor Herbert Leifer
on january 5, 2900... 196a
SECOND CIRCUIT'S 1994 DECISION (SHEPPARD y))
United States Court of Appeals,
Second Circuit.
Brian SHEPPARD, Plaintiff-Appellant,
V.
Leon BEERMAN, as an individual and in his official
capacity as Justice of the Supreme Court
of the State of New York, Defendant-Appellee.
No. 536, Docket 93-7658.
Argued Nov. 2, 1993.
Decided March 3, 1994.
Brian Sheppard, New Hyde Park, N.Y., Pro Se.
John J. Sullivan, Assistant Attorney General of the State of
New York, New York, N.Y. (Robert Abrams, Attorney
General of the State of New York, Albany, N.Y., of counsel),
for Defendant-Appellee.
Before: OAKES, KEARSE, and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge.
Plaintiff-appellant Brian Sheppard, appearing pro se, ap-
peals from a judgment of the United States District Court for
the Eastern District of New York (Glasser, J), dismissing his
complaint on the pleadings pursuant to Fed. R. Civ. P. 12(c)
("Rule 12(c)"). Sheppard, a law clerk to defendant-appellee
Leon Beerman, a justice of the Supreme Court of the State of
New York, was discharged following a heated dispute with
Beerman. Sheppard subsequently brought an action under
42 U.S.C. § 1983 (1988) alleging that his discharge and
Beerman's conduct following the discharge violated his First
and Fourth Amendment rights. In his complaint, Sheppard
claimed that he was fired in "retaliation for [his] protesting,
and [sic] considering to expose, judicial misconduct." He
further alleged that subsequent to the discharge, Beerman
2a
SHEPPARD J
illegally searched his office and seized his belongings. The
district court dismissed Sheppard's claims on the pleadings,
finding that he failed to state any cognizable constitutional
claims. On appeal, Sheppard challenges the dismissal of each
of his claims, generally arguing that the district court made
certain improper factual findings in ruling on Beerman's Rule
12(c) motion to dismiss on the pleadings. For the reasons
discussed below, we agree with Sheppard only as to one of
his First Amendment claims. Accordingly, we affirm, in part,
and vacate and remand, in part.
BACKGROUND
Sheppard served as a law clerk to Beerman from 1986
until he was fired on December 11, 1990. Because this case
comes to us on a motion to dismiss, we must view the facts
in the light most favorable to Sheppard. Accordingly, his
view of the facts alleges the following series of events
preceding and following his discharge.
Sheppard alleges that on December 6, 1990, after engaging
in ex parte communications with the prosecution in a pend-
ing murder case, Beerman ordered him to draft a decision
denying the defendant's pending speedy trial motion without
a hearing, regardless of the motion's merits, so that the
defendant would stand trial at a time advantageous to the
prosecution. Sheppard refused to follow Beerman's direction,
stating that he would not take part in the "railroading" of the
_ defendant. Beerman responded that although Sheppard was
not being discharged, he should seek other employment if he
felt that way.
At this time, Sheppard informed Beerman that he had
taken extensive notes of instances of other judicial miscon-
duct by Beerman during the preceding four years of Shep-
pard's service in chambers. As an example, Sheppard noted
a case that Beerman had assigned to himself in order to take
personal revenge against the accused. Beerman expressed
concern about Sheppard making his notes public. Harsh
3a
SHEPPARD I
words were exchanged between the parties: Sheppard called
Beerman "corrupt" and a "son of a bitch," and Beerman called
Sheppard "disturbed" and "disloyal." Sheppard immediately
apologized for his characterization. The argument ended
with no resolution, and Sheppard worked the remainder of
the day.
When Sheppard next returned to work on December 11,
1990, he was removed from chambers by court officers, who
informed him that Beerman had fired him. Sheppard was
forced to leave immediately and not allowed to take his
belongings with him. Both before and after his discharge on
that day, Sheppard's property was searched by Beerman or
by others at his direction. Specifically, Sheppard's file
cabinets and desk drawers were searched, and a box of his
personal file cards was seized and removed to Beerman's
private office and examined. On Decemiber 13, 1990, Shep-
pard was permitted to return to chambers accompanied by
court officers to retrieve certain of his belongings. On
December 21, 1990, he was permitted to retrieve the rest of
his personal files.
Following his discharge, Sheppard returned to Beerman's
courtroom on a number of occasions. On January 18, 1991,
while attending Beerman's calendar call, Sheppard began
ruffling through court files. Beerman subsequently directed
him to leave the courtroom if he wished to examine docu-
ments. On January 28, 1991, Beerman told an attorney not to
speak with Sheppard and warned Sheppard not to involve
himself in the cases Sheppard had worked on when he was
a clerk. On February 11, 1991, Sheppard was told not to
keep coming in and out of the courtroom, and was told to be
quiet when he sought to reply to this direction.
Sheppard's Lawsuit
In April 1991, Sheppard commenced an action under 42
U.S.C. § 1983, alleging that the above actions by Beerman
violated Sheppard's First Amendment right to free speech,
4a
SHEPPARD I
his First Amendment right of access to criminal proceedings
and documents, his First Amendment right to petition the
government for redress of grievances, and his Fourth
Amendment right to be free from unlawful searches and
seizures. Sheppard also asserted pendent state law tort
claims for, among other things, false imprisonment, trespass,
conversion, and defamation. Beerman filed an answer and
then moved for judgment on the pleadings pursuant to Rule
12(c) on the grounds that Sheppard had not met threshold
pleading requirements, that the complaint failed to state a
cause of action, and that Beerman was entitled to qualified
immunity.
On May 21, 1993, the United States District Court for the
Eastern District of New York (Glasser, J.) granted Beerman's
motion for judgment on the pleadings on the grounds that
Sheppard could not state any cognizable constitutional claim
under any set of facts as a matter of law. Having held that
plaintiff failed to state any cognizable constitutional claims,
the court declined to exercise its pendent jurisdiction over
piaintiff's state law claims.
Sheppard now appeals.
DISCUSSION
We review the district court's grant of Beerman's motion
to dismiss Sheppard's claims de novo. See Grimes v. Ohio
Edison Co,, 992 F.2d 455, 456 (2d Cir.), cert. denied, 1145S. Ct.
467 (1993). In deciding a Rule 12(c) motion, we apply the
same standard as that applicable to a motion under Rule
12(b)(6). See Ad-Hoc Comm. of Baruch Black and Hispanic
Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980,
982 (2d Cir. 1987). Under that test, a court must accept the
allegations contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant; it should
not dismiss the complaint "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief."" /d. (quoting Conley
—— — . - .
5a
SHEPPARD I
v. Gibson, 355 U.S. 41, 45-46 (1957)). This standard is
"applied with particular strictness when the plaintiff com-
plains of a civil rights violation." Branum v. Clark, 927 F.2d
698, 705 (2d Cir. 1991) (citations omitted).
On appeal, Sheppard generally contends that the district
court erred in finding that he had not stated cognizable
constitutional claims. Each of Sheppard's First and Fourth
Amendment claims will be discussed in turn.
I. First Amendment Claims
a. Free speech claims
Sheppard first contends that the district court made im-
proper factual findings in dismissing his claim that his
discharge amounted to a violation of his First Amendment
right to free speech. We agree, and for the reasons discussed
below vacate the district court's dismissal of that claim and
remand for proceedings not inconsistent with this opinion.
A state may not discharge an employee for reasons which
infringe on that employee's constitutionally protected interest
in freedom of speech. See Perry v. Sindermann, 408 U.S. 593,
997 (1972). If an employee is discharged for making state-
ments concerning a matter of public concern, the employee's
freedom of speech may have been violated. See Rankin v.
McPherson, 483 U.S. 378, 384 (1987); Connick v. Myers, 461
U.S. 138, 146 (1983). In such a situation, the Court must
balance the employee's interest in making the statement
against "the interest of the State, as an employer, in promot-
ing the efficiency of the public services it performs through
its employees." Rankin, 483 U.S. at 388 (quoting Pickering v.
Board of Educ., 391 U.S. 563, 568 (1968)).
Sheppard specifically alleges that he was dismissed in
retaliation for his exercise of free speech in confronting
Beerman about the judge's alleged misconduct. In order for
Sheppard's claim to withstand a motion to dismiss on the
pleadings, he must establish that his speech concerned a
6a
SHEPPARD I
matter of public concern, and that the speech was a motivat-
ing factor in his discharge. See Frank v. Relin, 1 F.3d 1317,
1330 (2d. Cir.), cert. denied, 114 S. Ct. 604 (1993). Speech will
be fairly characterized as a matter of public concern if the
speech "relat[es] to any matter of political, social, or other
concern to the community." Connick, 461 U.S. at 146. Wheth-
er speech involves a public concern is 2 question of law to be
determined on the basis of the "the content, form, and
context of a given statement, as revealed by the whole
record." /d. at 147-48 & n. 7.
In analyzing the validity of Sheppard's claim, the district
court made a determination that Sheppard was actually
discharged for insubordination and not for his speech. We
find this determination problematic for two reasons. First,
the motive behind Sheppard's firing in his retaliation claim
is clearly a question of fact. See Frank v. Relin, 1 F.3d at
1328-29. Because this question is in dispute, it was improper
for the district court to answer it on a motion for dismissal
on the pleadings. Second, the district court's determination
that Sheppard was actually dismissed for insubordination
seemed to impact its determination that Sheppard's speech
was not a matter of public concern. Because the reason for
Sheppard's dismissal is not relevant to the legal determina-
tion of whether his speech was a matter of public concern,
we find fault with the district court's public concern analysis.
Accordingly, we reverse the district court's dismissal of
Sheppard's First Amendment free speech claim and remand
for proceedings not inconsistent with this opinion.
b. Remaining First Amendment claims
Sheppard next contends that the district court erred in
dismissing his claims concerning a violation of his First
Amendment right of access to criminal cases, and his First
Amendment right to petition the government for redress of
grievances. As to these contentions we disagree. Even
assuming that all the facts alleged by Sheppard in his
7a
- SHEPPARD I
complaint are true, we find, as did the district court, that the
facts do not support either of those claims.
Sheppard claims that Beerman violated his right to access
to criminal proceedings by (i) directing Sheppard to examine
court files outside of the courtroom; (ii) telling certain
attorneys that it would be improper for them to speak to
Sheppard about anything that Sheppard had learned during
his tenure as Beerman's law clerk; (iii) refusing to field
courtroom questions by those who were not parties to cases
on the calendar; and (iv) admonishing Beerman to stop using
the courtroom as a "revolving door" when Sheppard went in
and out of Beerman's courtroom during a calendar call. Even
assuming that all of the above incidents occurred, they do
not indicate that Sheppard was denied a right of access to
criminal proceedings. Sheppard admits that he was allowed
to examine files outside of Beerman's courtroom, and that he
was also permitted to listen to cases as long as he did not
disrupt Beerman's courtroom proceedings or waste the
court's time. Clearly, Beerman was entitled to exercise his
discretion in keeping decorum in his courtroom.
Sheppard's claim that he was deprived of his right to
petition for redress of grievances is equally without merit.
The instant action provides such a vehicle. Accordingly, we
affirm the district court's dismissal of these claims.
Il. Fourth Amendment Claims
A. Search/Seizure of Office, Desk, and File Cabinets
Sheppard alleges that after the dismissal, Beerman
searched his office, desk, and file cabinets in violation of his
Fourth Amendment rights. "A ‘search’ occurs when an
expectation of privacy that society is prepared to consider
reasonable is infringed." United States v. Jacobsen, 466 US.
109, 113 (1984). See also O'Connor v. Ortega, 480 U.S. 709,
715 (1987). The district court ultimately concluded that
Sheppard had no reasonable expectation of privacy in his
8a
SHEPPARD I
office furniture or file cabinets, and therefore any search was
not violative of Sheppard's Fourth Amendment rights. For
the reasons discussed below, we agree.
An "employee's expectation of privacy must be assessed
in the context of the employment relation[ship]." Ortega, 480
U.S. at 717. The working relationship between a judge and
her law clerk, as noted by the district court, is unique.
Unlike a typical employment relationship where an employer
may limit the information she wants to share with her
employees, in order for a judicial chambers to function
efficiently, an absolute free flow of information between the
clerk and the judge is usually necessary. Accordingly, the
clerk has access to all the documents pertaining to a case.
More importantly, clerks regularly have access to the judge's
confidential thoughts on a case. The judge may discuss her
feelings with her clerk, or may allow the clerk access to her
personal notes. In turn, the judge necessarily has access to
the files and papers kept by the clerk, which will often
include the clerk's notes from discussions with the judge.
Because of this distinctive open access to documents charac-
teristic of judicial chambers, we agree with the district court's
determination that Sheppard had "no reasonable expectation
of privacy in chambers' appurtenances, embracing desks, file
cabinets or other work areas." Accordingly, the district court
was correct in finding that there was no violation of Shep-
pard's Fourth Amendment rights.
Moreover, we also agree with the district court's finding
that any alleged seizure done in connection with the search
was similarly not violative of Sheppard's Fourth Amendment
rights. Even assuming that Sheppard's belongings were
seized for a short time during the judge's search of his
things, a short delay by a judicial employer in returning a
disgruntled employee's belongings after the employee has
been fired does not rise to the level of a Fourth Amendment
violation. The unlawfulness of an interference with an
individual's possessory interest in property depends on the
reasonableness of the seizure. See Soldal v. Cook County, 113
9a
SHEPPARD I
S. Ct. 538, 549 (1992). Because a judicial employer has an
overriding interest in securing the confidentiality of cham-
bers' work product and in making sure that an angry clerk
does not attempt to confiscate or destroy important court
property, the brief alleged withholding of Sheppard's belong-
ings while they were searched was not unreasonable.
B. Seizure of Sheppard's Person
Sheppard's final claim is that there was an unlawful sei-
zure of his person when he was escorted out of the court-
house by court officers on December 11, 1990. The district
court dismissed this claim finding that Sheppard's liberty was
never restrained. We agree.
In order to determine whether a particular encounter
between police officers and an individual constitutes a
"seizure" for the purposes of the Fourth Amendment, a court
must decide "if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that
he was not free to leave." United States v. Mendenhall, 446
US. 544, 554 (1980).
In the present case, as correctly noted by the district court,
Sheppard was "free to go anywhere else that he desired,"
with the exception of Beerman's chambers and the court
house. Had Beerman retained Sheppard's car keys or his
wallet, then perhaps Sheppard arguably could have been
seized, because it would have prevented him from being
"free to leave." See, e.g., United States v. Lee, 916 F.2d 814,
819 (2d Cir. 1990) (noting factors that might suggest a seizure
include "prolonged retention of a person's personal effects,
such as airplane tickets or identification."). Because there are
no such allegations in Sheppard's complaint, Sheppard has
failed to state a claim that his person was seized.
We have examined Sheppard's remaining contentions and
find them to be without merit.
10a
SHEPPARD I
CONCLUSION
Based on the foregoing, we affirm the district court's dis-
missal of all of Sheppard's claims other than his First
Amendment free speech claim. Regarding that claim, we
find that in concluding that Sheppard failed to state a
violation of his First Amendment right to free speech, the
district court made certain factual determinations that were
not appropriate on a motion for judgment on the pleadings.
Accordingly, we vacate the district court's dismissal of
Sheppard's First Amendment freedom of speech claim on the
pleadings and remand for proceedings not inconsistent with
this opinion. In doing so, however, we make no comment on
the merits of the claim nor do we preclude the district court
from re-examining the matter at some future, more appropri-
ate time in the proceedings. Our ruling today is based only
on the procedural posture in which the case came before the
district court.
lla
SECOND CIRCUIT'S 1996 DECISION (SHEPPARD rf)
United States Court of Appeals,
Second Circuit.
Brian SHEPPARD, Plaintiff-Appellant,
v.
Leon BEERMAN, as an individual and in his official
capacity as Justice of the Supreme Court
of the State of New York, Defendant-Appellee.
No. 1791, Docket 96-7112.
Argued June 19, 1996.
Decided Sept. 6, 1996.
Brian Sheppard, pro se, for Plaintiff-A ppellant.
Amy L. Abramowitz, Asst. Atty. Gen. of N.Y., New York
City (Dennis C. Vacco, Atty. Gen. of N.Y., New York City, of
counsel), for Defendant-Appellee.
Michael Colodner, John Eiseman, John J. Sullivan, New York
City, submitted a brief, for amicus curiae Jonathan Lippman,
Chief Administrative Judge of the Courts of the State of New
York.
Before: KEARSE, MAHONEY, and McLAUGHLIN, Circuit
Judges.
McLAUGHLIN, Circuit Judge.
Plaintiff Brian Sheppard appeals from a Memorandum
and Order of the United States District Court for the Eastern
District of New York (I. Leo Glasser, Judge ), see Sheppard
y. Beerman, 911 F. Supp. 606 (E.D.N.Y. 1995), granting
defendant Judge Leon Beerman's motion to dismiss Shepp-
ard's complaint on the grounds of qualified immunity. For
the reasons stated below, we vacate the district court's order
12a
SHEPPARD II
and remand for further proceedings consistent with this opinion.
BACKGROUND
This case is before us for the second time. See Sheppard
v. Beerman, 18 F.3d 147 (2d Cir. 1994). In our first opinion,
we set forth the essential facts, none of which have changed:
[Brian] Sheppard served as a law clerk to [New York
State Supreme Court Justice Leon] Beerman from 1986
until he was fired on December 11, 1990.
Sheppard alleges that on December 6, 1990, after
engaging in ex parte communications with the prosecu-
tion in a pending murder case, Beerman ordered him to
draft a decision denying the defendant's pending speedy
trial motion without a hearing, regardless of the motion's
merits, so that the defendant would stand trial at a time
advantageous to the prosecution. Sheppard refused to
follow Beerman's direction, stating that he would not take
part in the "railroading" of the defendant. Beerman re-
sponded that although Sheppard was not being dis-
charged, he should seek other employment if he felt that
way.
At this time, Sheppard informed Beerman that he had
taken extensive notes of instances of other judicial miscon-
duct by Beerman during the preceding four years of Shep-
pard's service in chambers. As an example, Sheppard
noted a case that Beerman had assigned to himself in
order to take personal revenge against the accused.
Beerman expressed concern about Sheppard making his
notes public. Harsh words were exchanged between the
parties: Sheppard called Beerman "corrupt" and a "son of
a bitch," and Beerman called Sheppard "disturbed" and
"disloyal." Sheppard immediately apologized for his
characterization. The argument ended with no resolution,
and Sheppard worked the remainder of the day.
13a
SHEPPARD II
When Sheppard next returned to work on December
11, 1990, he was removed from chambers by court offi-
cers, who informed him that Beerman had fired him.
Sheppard was forced to leave immediately and not
allowed to take his belongings with him. Both before and
after his discharge on that day, Sheppard's property was
searched by Beerman or by others at his direction.
Specifically, Sheppard's file cabinets and desk drawers
were searched, and a box of his personal file cards was
seized and removed to Beerman's private office and
examined. On December 13, 1990, Sheppard was per-
mitted to return to chambers accompanied by court
officers to retrieve certain of his belongings. On Decem-
ber 21, 1990, he was permitted to retrieve the rest of his
personal files.
Following his discharge, Sheppard returned to Beer-
man's courtroom on a number of occasions. On January
18, 1991, while attending Beerman's calendar call, Shep-
pard began ruffling through court files. Beerman subse-
quently directed him to leave the courtroom if he wished
to examine documents. On January 28, 1991, Beerman
told an attorney not to speak with Sheppard and warned
Sheppard not to involve himself in the cases Sheppard
had worked on when he was a clerk. On February 11,
1991, Sheppard was told not to keep coming in and out of
the courtroom, and was told to be quiet when he sought
to reply to this direction.
Id. at 149-50.
Sheppard sued Beerman in the United States District
Court for the Eastern District of New York, under 42 U.S.C.
§ 1983, alleging that Beerman's actions:
violated Sheppard's First Amendment right to free speech,
his First Amendment right of access to criminal proceed-
ings and documents, his First Amendment right to
petition the government for redress of grievances, and his
14a
SHEPPARD IT
Fourth Amendment right to be free from unlawful
searches and seizures. Sheppard also asserted pendent
state law tort claims for, among other things, false impris-
onment, trespass, conversion, and defamation.
Sheppard, 18 F.3d at 150. Beerman answered, and then
moved for judgment on the pleadings, pursuant to Fed. R.
Civ. P. 12(c) ("Rule 12(c)"), on the grounds that Sheppard had
failed to state a cause of action, and that Beerman was in any
event entitled to qualified immunity.
The district court granted Beerman's motion for judgment
on the pleadings, finding that, as a matter of law, Sheppard
could not state a constitutional claim. See Sheppard v.
Beerman, 822 F. Supp. 931 (E.D.N.Y. 1993). The district court
also declined to exercise jurisdiction over plaintiff's pendent
state law claims. Sheppard appealed to this Court; we
affirmed most of the district court's rulings, but vacated the
dismissal of Sheppard's First Amendment free speech claim.
See Sheppard, 18 F.3d at 151, 153. Specifically, we stated:
In analyzing the validity of Sheppard's claim, the
district court made a determination that Sheppard was
actually discharged for insubordination and not for his
speech. ... Because this question is in dispute, it was
improper for the district court to answer it on a motion
for dismissal on the pleadings.
Based on the foregoing . . . we find that in concluding
that Sheppard failed to state a violation of his First
Amendment right to free speech, the district court made
certain factual determinations that were not appropriate
on a motion for judgment on the pleadings.... [W]e
make no comment on the merits of the claim nor do we
preclude the district court from re-examining the matter
at some future, more appropriate time in the proceedings.
Id.
15a
SHEPPARD IT
On remand, the district court again granted judgment to
Beerman on the pleadings. See Sheppard, 911 F. Supp. 606.
Finding, as a matter of law, that Sheppard's speech was on
a matter of public concern and that Sheppard had shown a
prima facie case of unconstitutional discharge, the district
court found nevertheless that Beerman was entitled to
qualified immunity. It concluded that Beerman "acted within
the realm of objective reasonableness in terminating Shep-
pard's employment," and thus was entitled to judgment on
the pleadings. /d. at 616. -
The court also held that, because Beerman's qualified
immunity deprived Sheppard of an actionable claim, his
request for declaratory relief had no foundation, and also had
to be dismissed. It further found that Sheppard had not
shown a sufficient likelihood of future harm to warrant his
requested injunctive relief. With that, the district court again
dismissed Sheppard's claim in its entirety. Sheppard now
appeals, arguing that the district court erred in its pivotal
finding that Beerman was entitled to qualified immunity.
DISCUSSION
We review the district court's Rule 12(c) dismissal of Shep-
pard's complaint de novo. See Sheppard, 18 F.3d at 150;
Ad-Hoc Comm. of the Baruch Black and Hispanic Alumni
Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d
Cir. 1987). All allegations in the complaint must be accepted
as true; all inferences must be drawn in favor of the plaintiff;
and dismissal is proper only when it "appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Sheppard, 18 F.3d
at 150 (internal quotations and citation omitted). When there
has been a dismissal on the grounds of qualified immunity,
whether there are disputed issues of fact that should have
prevented the dismissal is also subject to our de novo review.
See Weaver v. Brenner, 40 F.3d 527, 533 (2d Cir. 1994);
Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 1992); see also
l6a
SHEPPARD IT
Tompkins v. Vickers, 26 F.3d 603, 606 (Sth Cir. 1994),
Government employees have a limited right under the
First Amendment to speak on matters of public concern. See
Connick v. Myers, 461 U.S. 138, 146 (1983); Frank v. Relin, 1
F.3d 1317, 1328 (2d Cir.), cert. denied, 510 US. 1012 (1993).
To plead a prima facie case that he was fired in violation of
his First Amendment rights, a plaintiff must establish that:
(1) his speech can be "fairly characterized as .. . speech ona
matter of public concern;" and (2) the speech was "at least a
substantial or motivating factor in the discharge." Frank, 1
F.3d at 1328 (internal quotations and citations omitted).
It is clear, though, that a government official may, in
certain circumstances, fire an employee for speaking~even on
a matter of public concern-where that speech has the
potential to disrupt the work environment. See Rankin v.
McPherson, 483 U.S. 378, 384 (1987). In Jeffries v. Harleston,
52 F.3d 9 (2d Cir.), cert. denied, 116 S. Ct. 173 (1995), we
stated that termination does not violate the employee's First
Amendment rights where:
(1) the employer's prediction of disruption is reasonable;
(2) the potential disruptiveness is enough to outweigh the
value of the speech; and (3) the employer took action
against the employee based on this disruption and not in
retaliation for the speech.
Id. at 13; see also Waters v. Churchill, 511 US. 661, _., 114
S. Ct. 1878, 1889-91 (1994); see generally Board of County
Comm'rs v. Umbehr, __ US. —__ 116 S. Ct. 2342, 2347-48,
2352 (1996). Thus, even if the potential disruption to the
office outweighs the value of the speech, the employer may
fire the employee only because of the potential disruption,
and not because of the speech. That is to Say, it matters not
that the potential disruption outweighs the value of the
speech if the employer subjectively makes the speech the
basis of his termination decision: such "retaliatory" discharge
is always unconstitutional.
17a
SHEPPARD IT
As with any "constitutional tort," a governmental employ-
er (such as a state court judge) may be entitled to qualified
immunity for firing an employee in apparent breach of the
First Amendment. See Tompkins, 26 F.3d at 607; Frank, 1
F.3d at 1327-28. If the employer's firing of the employee
actually violates the employee's First Amendment rights, the
employer will nonetheless be qualifiedly immune from suit
if an objective, reasonable officer could believe that the firing
did not violate the employee's rights. See Anderson v.
Creighton, 483 U.S. 635, 638 (1987); Frank, 1 F.3d at 1327-28.
This case presents the risk of conflating a constitutional
test that focuses, at least in part, on the subjective state of
mind of the actor--the employer's actual motive for firing the
employee--with the objective focus of the qualified immunity
doctrine. Obviously, applying an objective test to a subjec-
tive element is a contradiction in terms: it would compel an
inquiry as to whether a person reasonably could have
thought that he in fact thought something.
The district court reasoned that, in a mixed case of this
sort, the subjective prong of the constitutional test simply
drops out--that Beerman's actual motive in firing Sheppard
is "irrelevant." Sheppard, 911 F. Supp. at 616. Thus, the court
held that: (1) an objective judge could have reasonably
thought that the potential disruption caused by Sheppard's
speech outweighed the value of that speech; (2) Beerman's
actual motive in firing Sheppard was inconsequential; and (3)
Beermean was therefore qualifiedly immune from suit.
Sheppard asserts that qualified immunity is not available
where he has alleged that Beerman had an actual unconsti-
tutional motive in firing him. To a limited extent, we agree.
Contrary to the district court's decision, the employer's
actual (subjective) motive is not irrelevant in a qualified
immunity inquiry. Rather, where the subjective state of mind
of the actor is part of the constitutional mix, we have
developed a rule that balances the interests of the official
claiming immunity against the interests of the employee
asserting unconstitutional motive:
18a
SHEPPARD II
Upon a motion for summary judgment asserting a
qualified immunity defense in an action in which an
official's conduct is objectively reasonable but an unconsti-
tutional subjective intent is alleged, the plaintiff must
proffer particularized evidence of direct or circumstantial
facts .. . supporting the claim of an improper motive in
order to avoid summary judgment.
Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995). This
standard allows an allegedly offending official sufficient
protection against baseless and unsubstantiated claims, but
stops short of insulating an official whose objectively rea-
sonable acts are besmirched by a prohibited unconstitutional
motive. See Tompkins, 26 F.3d at 607-08.
Thus, to defeat Beerman's claim of qualified immunity,
Sheppard must show "particularized evidence of direct or
circumstantial facts" supporting his claim of unconstitutional
motive. And, the district.court would obviously have to
consider matters outside the pleadings. Rule 12(c) provides
that a motion for judgment on the pleadings may be convert:
ed to a motion for summary judgment (under Fed. R. Civ. P.
56) if the court chooses to consider evidence extrinsic to the
complaint and answer. See Fed. R. Civ. P. 12(c). However,
Rule 12(c) also commands that, when so converting the
motion to one for summary judgment, each party "shall be
given a reasonable opportunity to present all material"
pertinent to a summary judgment determination. /d.; see also
Villante v. Department of Corrections of New York, 786 F.2d
516, 521 (2d Cir. 1986).
The problem here is that the district court dismissed
Sheppard's complaint without allowing Sheppard any
discovery. According to Sheppard's complaint, Beerman
expressed deep concern over Sheppard's claim to have kept
notes detailing Beerman's instances of public corruption, and
the possibility that those notes would be made public. And,
after firing Sheppard, Beerman seized Sheppard's personal
files, and inspected them before returning them to Sheppard.
19a
SHEPP4RD IT
If substantiated through discovery, these facts may tend to
show that Beerman's actual motive for firing Sheppard was
the content of his speech, and not Beerman's fear that
Sheppard would disrupt the office working environment.
The district court therefore erred in finding that Beer-
man's actual intent was "irrelevant," and in not allowing
Sheppard discovery to support his claim of unconstitutional
motive. If, after sufficient discovery, Sheppard cannot
present particularized (direct or circumstantial) evidence of
unconstitutional motive, Beerman is then, but only then,
entitled to summary judgment on the grounds of qualified
immunity.
Sheppard argues that the district court also improperly
dismissed his claims for injunctive and declaratory relief.
The court dismissed Sheppard's claim for declaratory relief
because, having found that Beerman was immune from
damages, there was no case or controversy remaining upon
which Sheppard could base a request for declaratory relief.
Because we vacate the district court's dismissal of Sheppard's
claim for monetary damages, the foundation for dismissing
the declaratory relief claim erodes. See generally Ashcroft v.
Mattis, 431 U.S. 171, 172 (1977). We therefore reinstate
Sheppard's claim for declaratory relief, subject to the discus-
sion above concerning his claim for monetary damages.
The district court dismissed Sheppard's claim for injunc-
tive relief because Sheppard had "failed to show an ‘actual or
imminent’ threat of injury to a legally protected right."
Sheppard, 911 F. Supp. at 617. Even assuming Sheppard can
succeed on his legal claim for unconstitutional termination,
this "past" injury, "while presumably affording [Sheppard]
standing to claim damages . . . , does nothing to establish a
real and immediate threat that he would again suffer similar
injury in the future." Adarand Constructors, Inc. v. Pena, 115
S. Ct. 2097, 2104 (1995) (citations omitted).
In his complaint, Sheppard alleges that Beerman "em-
barked on a course of conduct. . . designed to . . . punish
[Sheppard] for his objecting to, or considering to expose,"
20a
SHEPPARD II
Beerman's alleged judicial misconduct, and to prevent
Sheppard from disclosing that misconduct. Specifically,
Sheppard alleges that Beerman seized Sheppard's files,
gratuitously told others that Sheppard was insubordinate and
was fired for that insubordination, and asked (or even
instructed) others not to talk with Sheppard. The complaint
also states that these statements, designed to impede Shep-
pard's First Amendment rights, have continued since
Sheppard's termination, and that Beerman intends to take
further steps in the future.
These facts, if substantiated, may be sufficient to show
that Sheppard faces a credible threat of future actions
designed to stifle his First Amendment rights. Because we
are vacating and remanding for discovery on Sheppard's
claim for monetary damages and declaratory relief, we also
vacate and remand the dismissal of his claim for injunctive
relief to allow Sheppard through discovery to substantiate his
claims of future harm. If after discovery, however, Sheppard
cannot produce sufficient facts to support his claimed threat
of future harm, the district court may properly dismiss the
claim for injunctive relief at an appropriate time.
Finally, Sheppard asks us to remand this case to a differ-
ent district court judge, claiming that Judge Glasser has
shown distinct signs of "bias" against Sheppard's claims. We
find Sheppard's arguments and assertions insufficient to meet
the high standard for such relief. See Jn re International
Business Machines Corp., 49 F.3d 641, 643-45 (2d Cir. 1995).
CONCLUSION
An amicus brief, submitted on behalf of the Chief Admin-
istrative Judge of the Courts of the State of New York,
reminds us of what we well know-—that the relationship
between a judge and clerk is one based upon trust and faith.
If a judge cannot believe that his clerk is competent, loyal,
and discrete, the working relationship between the two is not
just injured, it is nonexistent. We also recognize that
21a
SHEPPARD II
Sheppard's choice of language was inappropriate for a
professional setting. But the First Amendment protects the
eloquent and insolent alike.
The judgment of the district court is VACATED, and the
case is REMANDED to the district court for proceedings
consistent with this opinion.
a
22a
SECOND CIRCUIT'S 2003 DECISION (SHEPPARD II)
United States Court of Appeals,
Second Circuit.
Brian SHEPPARD, Plaintiff-Appellant,
v.
Leon BEERMAN, as an individual and in his official
capacity as Justice of the Supreme Court
of the State of New York, Defendant-Appellee.
Docket No. 02-7292.
Argued: Oct. 23, 2002.
Decided: Jan. 28, 2003.
Brian Sheppard, Law Office of Brian Sheppard, New Hyde
Park, NY, pro se, for Plaintiff-Appellant.
Michael B. Siller, for Eliot Spitzer, Att'y Gen. of N.Y., New
York, N.Y. (Michael S. Belohlavek, Deputy Solicitor Gen. of
N.Y., New York, NY, of counsel) for Defendant-Appellee.
Before: WINTER, McLAUGHLIN and CABRANES, Circuit
Judges.
McLAUGHLIN, Circuit Judge.
Former law clerk Brian Sheppard appeals from the district
court's grant of summary judgment to his former employer,
Judge Leon Beerman. In an earlier opinion in this case, we
noted that the First Amendment protects the eloquent and
the insolent alike. Plaintiff has now conducted ample
discovery, but has failed to create a genuine issue of material
fact as to Judge Beerman's intent in terminating him. We
hold, therefore, that the district court correctly granted
summary judgment.
23a
SHEPPARD IIT
BACKGROUND
This case is before us for the third time. Sheppard v. Beer-
man, 18 F.3d 147 (2d Cir. 1994) ("Sheppard I"); Sheppard v.
Beerman, 94 F.3d 823 (2d Cir. 1996) ("Sheppard II").
I. Factual Background
The core facts have been reported in the two earlier opin-
ions. Extensive discovery has supplemented those facts, see
Sheppard v. Beerman, 190 F. Supp. 2d 361 (E.D.N.Y. 2002),
negative publicity generated thereby. Sheppard also believed
that Judge Beerman had unfairly accommodated the prosecu-
tion's request to delay the trial until January on the notion
that a trial during the holiday season would be less likely to
result in a conviction.
On the morning of December 7, 1990, Sheppard came to
sponded that, although Sheppard was not being discharged,
if he felt that way he should seek other employment.
24a
SHEPPARD III
In response, Sheppard called Judge Beerman a "corrupt
son of a bitch," but he quickly apologized for the character-
ization. Sheppard then informed Beerman that he had
preserved extensive notes of other judicial misconduct by
Beerman during the preceding four years. When asked by
Judge Beerman to provide examples, Sheppard noted a case
that Beerman had allegedly assigned to himself in order to
exact revenge against the accused. He told Judge Beerman
that he would go public with the notes if he was forced to
resign. Then Judge Beerman called Sheppard "disturbed"
and "disloyal." After the confrontation, Sheppard offered to
go home but Judge Beerman instructed him to work the rest
of the day, which he did.
Judge Beerman testified during his deposition that he
conferred with his son, an attorney, that evening, and
decided that he and Sheppard should part ways. Judge
Beerman also testified that he had resolved to speak with
Administrative Judge Alfred Lerner ak Sut the incident when
he returned to the courthouse on the following Monday,
December 10, 1990.
Sheppard did not show up for work that Monday. On
Tuesday, December 11, Judge Beerman met with Judge
Lerner about the incident. Judge Lerner was astonished by
Sheppard's behavior and confirmed Judge Beerman's view
that Sheppard could no longer remain in either Judge
Beerman's employ, or indeed, in the employ of the court
system.
When Sheppard arrived at work on December 11, four
days after the confrontation, court officers informed him that
Judge Beerman had fired him. Sheppard was forced to leave
immediately and was not allowed to take his belongings with
him. Several days later, Sheppard was permitted to return
to chambers, accompanied by court officers, to retrieve his
personal belongings.
25a
SHEPPARD IIT
Il. Procedural! History
In April 1991, Sheppard sued Beerman in the United
States District Court for the Eastern District of New York
(Glasser, /), under 42 U.S.C. § 1983. The complaint alleged,
inter alia, that Beerman's discharge of Sheppard and his
subsequent conduct violated Sheppard's First and Fourteenth
Amendment rights.
The district court granted Beerman's motion for judgment
on the pleadings, finding that, as a matter of law, Sheppard
could not state a § 1983 claim. Sheppard v. Beerman, 822 F.
Supp. 931 (E.D.N.Y. 1993). Sheppard appealed to this Court.
We affirmed most of the district court's rulings, but salvaged
just Sheppard's First Amendment free speech claim because
the district court had made an improper factual determina-
tion--at the pleadings Stage--"that Sheppard was actually
discharged for insubordination and not for his speech."
Sheppard I, 18 F.3d at 151, 153.
On remand, the district court again granted judgment to
Beerman on the pleadings. Sheppard 911 F. Supp. 606
(E.D.N.Y. 1995). Finding, as a matter of law, that Sheppard's
speech touched on a matter of public concern and that he
had shown a prima facie case of unconstitutional discharge,
the district court nevertheless held that Beerman was entitled
to qualified immunity. The court concluded that Beerman
‘acted within the realm of objective reasonableness in
terminating Sheppard's employment," and thus was entitled
to judgment on the pleadings. /d. at 616.
Sheppard again appealed to this Court, arguing that the
district court erred in finding that Beerman was entitled to
qualified immunity. We agreed, holding that the district
court had erred in finding that Judge Beerman’s actual intent
in terminating Sheppard was "irrelevant" and in not allowing
Sheppard discovery to support his claim of unconstitutional
motive. Sheppard II, 94 F.3d at 829. We stated that Beerman
would be entitled to summary judgment, "[iJf, after sufficient
discovery, Sheppard cannot present particularized (direct or
26a
SHEPPARD III
circumstantial) evidence of unconstitutional motive." /d.
On remand, Sheppard conducted exhaustive discovery,
deposing over thirty witnesses, including Judge Beerman. In
addition, Sheppard himself was deposed over the course of
three days. In January 2001, Judge Beerman eventually
moved for summary judgment.
In February 2002, the district court granted Beerman
summary judgment, holding that Sheppard had failed to
establish that his interest in commenting on a matter of
public concern (Judge Beerman's alleged corruption) out-
weighed Judge Beerman's interest in the smooth, efficient
operation of his chambers. See Shepp2rd v. Beerman, 190 F.
Supp. 2d at 381-82 (citing Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968)). The district court further stated that "no
reasonable juror could infer from the facts alleged by
Sheppard that the termination resulted from an unlawful
desire to curb speech on a matter of public concern rather
than a legitimate desire by Judge Beerman to maintain the
efficiency, discipline and harmony of his public office." Jd. at
384.
Sheppard now appeals again. For the reasons set forth
below, we affirm the decision of the district court.
DISCUSSION
We review a grant of summary judgment de novo,
examining the evidence in the light most favorable to, and
drawing all inferences in favor of, the non-movant. See, e.g.,
IBM Corp. v. Liberty Mut. Fire Ins. Co., 303 F.3d 419, 423 (2d
Cir. 2002). Summary judgment is appropriate only if it can
be established "that there is no genuine issue as to any
material fact and that the moving party is entitled to judg-
ment as a matter of law." Fed. R. Civ. P. 56(c).
Government employees have a limited right under the
First Amendment to speak on matters of public concern.
Connick v. Myers, 461 U.S. 138, 140 (1983); Frank v. Relin, 1
F.3d 1317, 1328 (2d Cir. 1993). In measuring the extent of
27a
SHEPPARD IIT
this right, the interests that must be carefully balanced are
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." Pickering, 391
U.S. at 568.
To make out a prima facie case that he was fired in viola-
tion of his First Amendment rights, a government employee
must show that: (1) his speech can be "fairly characterized
as constituting speech on a matter of public concern," and (2)
the speech was "at least a ‘substantial' or ‘Motivating’ factor
in the discharge." Frank, 1 F.3d at 1328.
A government official may nonetheless fire an employee
for speaking on a matter of public concern if the employee's
speech is reasonably likely to disrupt the effective function-
ing of the office, and the employee is fired to prevent this
disruption. Jeffries y. Harleston, 52 F.3d 9, 12-13 (2d Cir.
1995); see also Rankin v. McPherson, 483 U.S. 378, 388 (1987).
Thus, termination does not violate the employee's rights
where: "(1) the employer's prediction of disruption is
reasonable; (2) the potential disruptiveness is enough to
outweigh the value of the speech; and (3) the employer took
action against the employee based on this disruption and not
in retaliation for the speech." Sheppard II, 94 F.3d at 827
(quoting Jeffries, 52 F.3d at 13).
1. Prediction of Disruption
Doubtless, Judge Beerman’s Prediction of disruption
caused by Sheppard's outburst was reasonable. We stated in
Sheppard IT that "[i]f a judge cannot believe that his clerk is
competent, loyal, and discreet, the working relationship
between the two is not just injured, it is nonexistent." 94 F.3d
at 829. Indeed, in their role as employees, law clerks amount
to "extensions of the judges at whose pleasure they serve."
Oliva v. Heller, 839 F.2d 37, 40 (2d Cir. 1988) (quoting Oliva
_v. Heller, 670 F. Supp. 523, 526 (S.D.N.Y. 1987)). Thus, at the
CC IEIES'’'S';s eS
a PREY BOM ys BMP BIOS RS.
28a
SHEPPARD III
very minimum, a respectful, if not congenial, relationship
between clerk and judge is a prerequisite to a productive
work environment within a judge's chambers.
During the incident in question, it is undisputed that
Sheppard yelled at Judge Beerman and called him an obscene
epithet. Sheppard's outburst was grossly disrespectful and
an expression of personal contempt for Judge Beerman.
Given the nature of the judge-clerk relationship, we conclude
that Judge Beerman's prediction that Sheppard's outburst
would disrupt the efficient operation of chambers was
eminently reasonable.
2. Disruption and Value of the Speech
For similar reasons, we find that the potential disruptive-
ness to Judge Beerman's chambers outweighed whatever
value there was in Sheppard's speech. The vitriolic manner
in which Sheppard expressed himself, regardless of the
substance of his remarks, made a harmonious working
relationship between Sheppard and Beerman difficult to
imagine. Sheppard's use of the word "corrupt" and his
several references to Beerman's alleged misconduct during
his invective are not of sufficient import to outweigh the
potential disruption his outburst caused.
Where an employee, such as Sheppard, "holds an extreme-
ly confidential or highly placed advisory position, it would
be unlikely [for] the Pickering balance . . . to be struck in his
favor." McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997).
Sheppard was undoubtedly in such a position here, and we
agree with the district court that the Pickering factors favor
Judge Beerman.
3. Employer's Motivation
"[E]ven if the Pickering balance isresolved in the employ-
er's favor,.the employee may still demonstrate liability by
proving that the employer discipined the employee in
29a
SHEPPARD IIT
retaliation for the speech, rather than out of fear of the
disruption." Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999).
Indeed, we remanded this case to the district court to allow
Sheppard "sufficient discovery .. . [to] present particularized
(direct or circumstantial) evidence of unconstitutional
motive." Sheppard IT, 94 F.3d at 829. Thus, Sheppard's claim
could survive summary judgment only if he could introduce
sufficient evidence to create a genuine issue of material fact
with respect to Judge Beerman's intent. We agree with the
district court that he has not succeeded.
Despite exhaustive discovery, Sheppard has been unable
to produce an iota of evidence that Judge Beerman termi-
nated him to prevent him from speaking about Beerman's
alleged misconduct. At its core, Sheppard's argument is that
he was terminated because he threatened to go forward and
expose Beerman's corruption. As the district court observed,
however, this contention "is disproved, rather than proved,
by the act of termination, since that act, as described by
Sheppard, was akin to an invitation to speak." Sheppard v.
Beerman, 190 F. Supp. 2d at 377. As we have noted before,
and as Judge Beerman surely understood, terminating an
employee "is far more likely to cause [one] to 'go public' than
to silence him or her." Giaca/one v. Abrams, 850 F.2d 79, 88
(2d Cir. 1988).
In response, Sheppard contends that Beerman told him to
"look for another job" before Sheppard actually tarred him as
a "corrupt son of a bitch." However, this comment was made
after Sheppard professed unhappiness with working for
Judge Beerman; Beerman's suggestion that Sheppard should
consider looking for another job "if that's how you feel" is
unremarkable in this tableau.
Sheppard's other arguments point out minor and immate-
rial discrepancies in Judge Beerman's deposition testimony.
Sheppard essentially suggests that Judge Beerman is lying
about his motive for firing Sheppard. A plaintiff, however,
"cannot defeat summary judgment on a retaliation claim
merely by impugning [a defendant's] honesty." McCullough
RT NETS Se NC NPS NO ANCASTER ech Renee Ne te UN OT ag
30a
SHEPPARD III
v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d
Cir. 1999). Sheppard has produced no other evidence, direct
or circumstantial, to support his claim despite voluminous
discovery.
Given the explosive exchange between Beerman and
Sheppard and Sheppard's inability to produce any evidence
supporting his claim of improper motive, the district court
did not err in granting summary judgment to Judge Beer-
man. After the December 7 confrontation, Judge Beerman
did not believe that maintaining a productive, harmonious
working relationship in chambers was possible. On this
record, no reasonable juror could infer from the facts alleged
by Sheppard that his termination resulted from an unlawful
desire to curb speech on a matter of public concern rather
than a legitimate desire by Beerman to maintain the efficien-
cy and harmony of his chambers.
CONCLUSION
We have considered Sheppard's other arguments and
find them to be without merit. Therefore, the judgment of
the district court is hereby AFFIRMED.
3la
1993 DIST. CT. DECISION (SHEPPARD I BELOW)
United States District Court,
E.D. New York.
Brian SHEPPARD, Plaintiff,
Vv.
Leon BEERMAN, as an individual and in his officia]
capacity as Justice of the Supreme Court
of the State of New York, Defendant.
No. CV-91-1349.
May 21, 1993.
Brian Sheppard, pro se.
Lisa M. Evans, Asst. Atty. Gen., New York City, for defen-
dant.
MEMORANDUM AND ORDER
GLASSER, District Judge:
Plaintiff Brian Sheppard commenced this civil rights ac-
tion against defendant Leon Beerman, Justice of the Supreme
Court of the State of New York, alleging that the defendant
violated his First and Fourth Amendment rights in discharg-
ing him from employment as defendant's law clerk. Defen-
dant moves for a judgment of dismissal on the pleadings
under Fed. R. Civ. P. 12(c). In addition, plaintiff appeals
various determinations of the magistrate judge relating to
discovery matters, and moves this Court to vacate its prior
referral order to the magistrate judge. For the following
reasons, defendant's motion is granted and plaintiff's motions
are denied.
32a
SHEPPARD I BELOW
FACTS
Plaintiff served as a law clerk to defendant until he was
fired on December 11, 1990. Plaintiff claims that his dis-
missal resulted from a heated dispute on December 7, 1990,
over the ethical propriety of defendant's actions and deci-
sions in two criminal cases. The complaint notes that harsh
words were exchanged between the parties: plaintiff admits
calling defendant "corrupt" and a "son of a bitch", and further
asserts that he in turn was called "disturbed" and "disloyal."
Id. § 14. In addition, plaintiff alleges that he informed
defendant at that time that he had written extensive notes of
instances of other judicial misconduct during the preceding
four years of his service in chambers. Complaint 4 8-15.
When plaintiff returned to work on December 11, 1990, he
was removed from chambers by court officers, who informed
him that defendant had fired him. Jd. § 22. The complaint
further alleges that plaintiff was not permitted to retrieve his
personal effects at that time, and that both before and after
his discharge on that day, plaintiff's property was searched
by defendant or by others at defendant's direction. Jd.
19-20, 24. However, plaintiff concedes that he was allowed
to return to chambers to retrieve his property on December
13 and 21, 1990, when accompanied by court officers, and
plaintiff indicates that he is unsure whether all of his
personal effects were returned. Jd. | 24-28.
Plaintiff also alleges that defendant made, and has contin-
ued to make, untrue and defamatory statements about him.
Id. J§ 30-33. He also asserts that on January 18, 1991, when
he attended calendar call in defendant's courtroom, Justice
Beerman directed him to leave the courtroom if he wished to
examine court files. Jd. § 34. In addition, during a subse-
quent visit to the courtroom on February 11, plaintiff was
allegedly told not to keep coming in and out of the room,
and was told to be quiet when he sought to reply to this
direction. Jd. | 37.
33a
SHEPPARD I BELOW
Plaintiff commenced this action in April 1991 under 42
U.S.C. § 1983, alleging that defendant deprived him of his
First and Fourth Amendment rights in the events sur-
rounding and subsequent to plaintiff's dismissal. Plaintiff
also asserts pendent state law tort claims for, inter alia, false
imprisonment, trespass, conversion, and defamation.
Defendant filed an answer to the complaint on May 8, 1991.
Defendant now moves for judgment on the pleadings
under Fed. R. Civ. P. 12(c). Plaintiff appeals from certain
pre-trial orders of the magistrate judge and requests that this
Court vacate its prior referral order to the magistrate judge.
These motions will be addressed in turn.
I. Rule 12(c) Motion
Normally, a motion to dismiss all or part of an action for
failure to state a claim may be brought under Fed. R. Civ. P.
12(b)(6). However, because the language of Rule 12(b) limits
motions under its terms to the time period before the close
of the pleadings, and because Rule 12(h)(2) nevertheless
permits motions to dismiss for failure to state a claim at any
time up to and during the trial, Rule 12(c) may be used as a
vehicle for making such a motion after the close of pleadings.
See generally 5A Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1367 (2d ed. 1990).
In deciding a Rule 12(c) motion, the court should apply
the same standard as that applicable to a motion under
12(b)(6). Ad-Hoc Comm. of Baruch Black & Hispanic Alumni
Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d
Cir. 1987). Under that test, a court must accept the allega-
tions contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant; it should
not dismiss the complaint "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Jd. (quoting Conley
v. Gibson, 355 U.S. 41, 45-46 (1957)).
34a
SHEPPARD I BELOW
As a preliminary matter, defendant challenges the com-
plaint as being too broad and conclusory to sapport a § 1983
claim. A fair reading of the complaint, however, reveals that
it sets forth in detail the particular events and transactions
giving rise to this action, as well as the specific constitutional
violations of which the plaintiff complains. An analysis of
the claims follows.
1. First Amendment claims
While a state "may not discharge an employee on a basis
that infringes that employee's constitutionally protected
interest in freedom of speech,’ Rankin v. McPherson, 483 U.S.
378, 383-84 (1987) (citing Perry v. Sindermann, 408 U.S. 593,
597 (1972)), it has long been recognized that "the government
has a legitimate interest in regulating the speech of its
employees that differs significantly rom its interest in
regulating the speech of [the] general (public]." Piesco v. City
of New York, Dep't of Personnel, 933 F.2d 1149, 1155 (2d
Cir.) (citing Rankin, 483 U.S. at 383-84), cert. denied, US.
__, 112 S. Ct. 331 (1991)).
Asa threshold matter, an employee asserting a First Ame-
ndment claim must show that the speech in question "may be
‘fairly characterized as constituting speech on a matter of
public concern." Rankin, 483 U.S. at 384 (quoting Connick
v. Myers, 461 U.S. 138, 146 (1983)). This determination is a
question of law for the court, Connick, 461 U.S. at 148 n. 7,
based on "the content, form, and context of a given state-
ment, as revealed by the whole record." Rankin, 483 U.S. at
385 (quoting id. 461 U.S. at 147-48). If the court determines
that the state employee's statement pertains to a matter of
public concern, it must then balance the employee's interest
in making the statement against "the interest of the State, as
an employer, in promoting the efficiency of the public
services it performs through its employees." Rankin, 483 U.S.
at 388 (quoting Pickering v. Board of Educ., 391 US. 563, 568
(1968)). In balancing the countervailing interests of the
35a
SHEPPARD I BELOW
public employee and employer under Pickering, the court
must not consider the employee's statement in a vacuum;
rather, "the manner, time, and place of the employee's
expression are relevant, as is the context in which the dispute
arose." Jd,’
In this case, even after accepting the allegations in the
complaint as true, it appears "beyond doubt" that plaintiff
cannot prove any facts which would entitle him to relief.
Because Sheppard's statements did not address a matter of
public concern, his First Amendment rights were not impli-
cated by his discharge. The content, form, and context of his
statements reflect convincingly that they manifest a law
clerk's insubordination to his employer, a state judge, and
were not uttered to address a matter of public concern. He
called the defendant judge "corrupt" and used the expletive
‘son- of-a-bitch." Complaint J 14. In addition, plaintiff
concedes that his statements were made in the context of his
refusal to follow the defendant judge's direction to draft a
decision on a pending speedy trial motion. /d. ]§ 10, 11.
it is crucial to note that the relationship between a judge
and law clerk is an intensely personal and confidential one.
It is a relationship of a considerably different dimension than
the conventional relationship between an employer and an
employee. The personal and professional demeanor of a law
clerk reflects not only upon the judge with whom he works,
but upon the judiciary as a whole. It is not overstating the
case to'say that "the punctilio of an honor the most sensitive,"
Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546
(1928) (Cardozo, J.), is the standard of behavior that a law
'The Pickering balancing test is also a question of law for the court.
Piesco, 933 F.2d at 1154-55 (citing Connick, 461 U.S. at 148 n. 7, 103 S. Ct.
at 1691 n. 7); but see Vasbinder v. Ambach, 926 F.2d 1333, 1340 (2d Cir.
1991) ("We can envision cases in which the question of the degree to which
the employee's speech couid reasonably have been deemed to impede the
employer's efficient operation would properly be regarded as a question
of fact, to be answered by the jury prior to the court's application of the
Pickering balancing test.").
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SHEPPARD I BELOW
clerk must observe. The plaintiff's behavior fell egregiously
short of that standard. That shortfall and his insubordina-
tion, not a disregard for his First Amendment rights, com-
pelled his discharge.
The unassailable validity of the uniqueness of that rela-
tionship, even in the context of First Amendment consider-
ations, was plainly recognized in Pickering v. Board of Educ.,
391 U.S. 563 (1968), which points the way to decision here.
In that case, the plaintiff, a high school teacher, was dis-
missed for sending a letter to a local newspaper that was
critical of the way the defendant Board of Education and the
superintendent of the schools had handled past proposals to
increase taxes for the benefit of the schools. /d. at 565-66.
The Court decided that the plaintiff's rights to freedom of
speech were violated, but in the course of its opinion made
the following observations which are peculiarly pertinent
here:
Because of the enormous variety of fact situations in
which critical statements by teachers and other public
employees may be thought by their superiors, against
whom the statements are directed, to furnish grounds for
dismissal, we do not deem it either appropriate or feasible
to attempt to lay down a general standard against which
all such statements may be judged. However, ... we shall
indicate some of the general lines along which an analysis
of the controlling interests should run.
The [plaintiff's] statements are in no way directed towards
any person with whom [he] would normally be in contact
in the course of his daily work as a teacher. Thus no
question of maintaining either discipline by immediate
superiors or harmony among coworkers is presen ted here.
[Plaintiff's] employment relationships with the Board and,
to a somewhat lesser extent, with the superintendent are
not the kind of close working relationship for which it can
persuasively be claimed that personal loyalty and confi-
Se ee
37a
SHEPPARD I BELOW
dence are necessary to their proper functioning.
Id. at 569-70 (emphasis added).
Connick v. Myers, 461 U.S. 138 (1983), is also instructive.
The plaintiff there, an Assistant District Attorney, was
discharged for preparing and distributing a questionnaire
soliciting the views of fellow employees regarding office
transfer policy, office morale, the need for a grievance
committee, the level of confidence in superiors and whether
they felt pressure to work in political campaigns. /d. at 141.
This questionnaire was prepared after the plaintiff resisted a
transfer to prosecute cases in a different section of the
criminal court. /d. at 140. The reasons for her discharge were
stated to be her refusal to accept the transfer and that her
distribution of the questionnaire was regarded as an act of
insubordination. /d. at 141. She then brought suit under 42
U.S.C. § 1983, contending that her employment was wrong-
fully terminated because she had exercised her constitutional-
ly protected right of free speech. Jd. The District Court
ordered her reinstatement and awarded her back pay,
damages and attorney's fees, holding that the true basis for
her discharge was the questionnaire which involved matters
of "public concern" and was not clearly demonstrated to -
interfere substantially with the operation of the District
Attorney's Office. /d. at 141-42.
The Supreme Court reversed, holding that the plaintiff's
discharge did not offend the First Amendment. In the course
of its opinion the Court, speaking through Justice White said:
When employee expression cannot be fairly characterized
as relating to any matter of political, social, or other con-
cern to the community, government officials should enjoy
wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amend-
ment. ...
Whether an employee's speech addresses a matter of pub-
lic concern must be determined by the content, form, and
OEE SO'SSgsy ee
38a
SHEPPARD I BELOW
context of a given statement, as revealed by the whole
record.... /Plaintiff] did not seek to inform the public that
the District Attorney's Office was not discharging its
governmental responsibilities in the investigation and
prosecution of criminal cases. Nor did [plaintiff] seek to
bring to light actual or potential wrongdoing or breach of
public trust on the part of [defendant] and others... .
To presume that all matters which transpire within a gov-
ernment office are of public concern would mean that
virtually every remark--and certainly every criticism
directed at a public official-would plant the seed of a
constitutional case. While as a matter good judgment,
public officials should be receptive to constructive criti-
cism offered by their employees, the First Amendment
does not require a public office to be run as a roundtable
for employee complaints over internal office affairs.
461 U.S. at 146-49 (emphasis added). See also Arnett v.
Kennedy, 416 U.S. 134, 168 (1974) (highlighting importance
of maintaining discipline in government offices).
Likewise, in Berry v. Bailey, 726 F.2d 670 (11th Cir. 1984),
cert. denied, 471 U.S. 1101 (1985), a deputy sheriff com-
menced an action under 42 U.S.C. § 1983, alleging that he
was terminated for exercising his First Amendment rights. Jd.
at 673. The deputy had incurred the disfavor of the sheriff
when he refused to recommend to a prosecutor that certain
charges be dismissed against the daughter of an influential
state court judge. /d. at 672. All of plaintiff's statements,
except for one, concerned that disagreement with his superi-
or. /d. at 674. In granting the defendant's motion for judg-
ment notwithstanding the verdict, the district court held that
the employee's refusal to obey his superior was not protected
by the First Amendment. /d. at 675.
The Eleventh Circuit affirmed, noting that:
While corruption in the Sheriff's office is a matter of legiti-
mate public concern, it is not so vital a matter that it
39a
~ SHEPPARD I BELOW
would justify our protection of an employee's flagrant
defiance of his direct supervisor... All of the statements
except [one] were in direct conflict with the Sheriff They
took place on the job and concerned [the deputy's] per-
formance of his official duties. These statements are the
kind that Pickering described as implicating the govern-
ment's interest; they threaten office discipline and harmo-
ny in the day-to-day close working relationships with
immediate superiors necessary for efficient office function-
ing. Under the Pickering analysis, the -y are not protected
speech. ...
We agree with the district court that [the-plaintiff] is
trying to claim that he was fired for doing his job expedi-
tiously and honestly. While in this case, [the plaintiff's]
approach to law enforcement might have yielded a more
pristine sheriff's department than that of his superior, we
cannot encourage employees to dety their employers and
refuse to perform their duties every time they that the
employer is running the office improperly. This is not a
case where [the plaintiff] performed his duties according
to his superior's wishes, and pursued some outside course
of action against the office's inadequate enforcement of
the law. Such a fact pattern would have presented a
closer case. On these facts, we cannot find any speech
that passes the Pickering test and is thus constitutionally
protected.
/d. at 676 (emphasis supplied). Accord Finch v. City of
Vernon, 877 F.2d 1497, 1502 (11th Cir. 1989) (employee could
be discharged lawfully if failed to heed orders of superior);
Cox v. Dardanelle Pub. Sch. Dist, 790 F.2d 668, 675 (8th Cir.
1986) (same holding; applying Pickering balancing test). See
Rankin v. McPherson, 483 US. 378, 386 n. 10 (1987) (recog-
nizing that plaintiff could have been deemed an insubordi-
nate and would then face the possibility "of being fired for
failing to follow orders"); Connick v. Myers, 461 U.S. 138, 163
n. 3 (1983) (Brennan, J., dissenting) (where employee answers
40a
SHEPPARD I BELOW
"No" to an employer's request to perform a lawful task in the
scope of his duties, then "[a]lthough such a refusal is 'speech,’
which implicates First Amendment interests, it is also
insubordination, and as such may serve as the basis for a
lawful dismissal.").
In his opposition papers, plaintiff artfully seeks to charac-
terize his statements as touching upon matters of public
concern ihvolving allegations of misconduct by a state court
judge. See, e.g., Landmark Communications, Inc. v. Virginia,
435 U.S. 829, 839 (1978); Vasbinder v. Ambach, 926 F.2d 1333,
1339-40 (2d Cir. 1991); Rookard v. Health and Hosps. Corp.,
710 F.2d 41, 46 (2d Cir. 1983). However, the content, form,
and context of his statements, as set forth above, belie that
characterization. :
Sheppard did not make his statements "as a citizen upon
matters of public interest, but instead_as an employee upon
matters only of personal interest." Connick, 461 U.S. at 147.
Those statements were not made to reveal any alleged
judicial misconduct because Sheppard never filed a complaint
with the proper authorities. In upholding First Amendment
claims of state employees, many courts note that the employ-
ee notified persons for the purpose of obtaining corrective
action. See, e.g., Vasbinder v. Ambach, 926 F.2d 1333, 1340
~ (2d Cir. 1991) (upholding First Amendment claim of termi-
nated state employee who reported wrongdoing and corrup-
tion in federally funded program to the FBI); Rookard v.
Health and Hosps. Corp., 710 F.2d 41, 46 (2d Cir. 1983) ("An
allegation of corrupt and wasteful practices . .. made to the
city official empowered to investigate such charges, obvious-
ly involves a matter of public concern) (emphasis added); cf
Berry, v. Bailey, 726 F.2d 670, 676 (11th Cir. 1984) (rejecting
plaintiff's First Amendment claim and noting that the
plaintiff did not pursue any outside action with the proper
authorities).
Here, Sheppard alleges that he observed numerous in-
stances of judicial misconduct while he was defendant's law
clerk. Complaint J 7. Yet, during that four year period, he
4la
SHEPPARD I BELOW
never sought to file a grievance against defendant with the
Proper authorities. Instead, plaintiff told his employer of the
alleged improprieties during a_ personal, employment
dispute. This demonstrates convincingly that plaintiff was
engaged in an ad hominem attack on the judge, and not
did not address matter of public concern because he did not
intend to disclose malfeasance of government officials, but to
air his own frustrations).? Consequently, "absent the most
unusual circumstances, a federal court is not the appropriate
taken by a public [employer] allegedly in reaction to the
employee's behavior." Connick, 461 U.S. at 147. Accordingly,
NYC Health & Hosps. Corp., 940 F.2d 773, 781 (2d Cir.), cert
denied, anim OSS 657 (1991), nor does this case
‘It is clear that a statement made in private "does not . . . Vitiate the
Status of the statement as addressing a matter of public concern," where
indeed it relates to a matter of public concern. Rankin, 483 U.S. at 386 n.
11; Givhan v. Western Line Consol. Sch. Dist, 439 US. 410, 415-16 (1979),
However, since plaintiff's statements were made during the course of his
a public or private forum, "a [statement] not otherwise of public concern
does not attain that status because its subject matter could, in different
circumstances, have een the topic of a communication to tiie public that
might be of general interest.").
‘
et a ee ne i eC el, oe ERR Sse, OTTER Re 6 HE aM Mel ge A me cn a ee
ar a pe ae a a a ll a hc lh
42a
SHEPPARD I BELOW
involve a discharge based on speech that contains both
protected and unprotected categories of speech, see Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977).
Were this Court to balance Sheppard's interest in making
the statements against the State's interest in promoting the
efficiency of the vital judicial services it provides through its
employees, it would unhesitatingly strike the balance in favor
of the State. By confronting his immediate superior, Shep-
pard threatened the institutional efficiency of the judiciary
not only by the content of that insubordinate confrontation,
but by the manner, time and place in which it occurred. See
Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415
n. 4 (1979). There is no constitutional interest to be guarded
which required Justice Beerman to tolerate the insolent
insubordination of a law clerk which he justifiably believed
would "undermine his authority, and destroy close working
relationships." Connick, 461 U.S. at 154.
Sheppard's additional claims under the First Amendment
must likewise be dismissed. He claims that defendant
deprived him of his right to petition for redress of griev-
ances. However, he has not pleaded a cognizable claim for
deprivation of that right because this very action affords
Sheppard a vehicle for redress within the court system.
Similarly, his contention that he was denied access to
criminal proceedings and documents, based on defendant's
remarks to Sheppard from the bench in January and Febru-
ary 1991, must be denied. It is clear beyond doubt that
defendant is clothed with complete power to manage the
routine comings and goings in his courtroom, even to the
extent of requiring visitors to conduct their research into
court records elsewhere or excluding specific persons entirely
from the courtroom. It is also worth noting, as defense
counsel does, that Sheppard's access to proceedings claim
hinges on the requirement that he was not permitted to
review court records in defendant's courtroom; his claim
does not assert that he was in-fact denied access to the
ke STI ae eS a Rt tk tl Ni ca A A
43a
SHEPPARD I BELOW
courtroom or any court records. Accordingly, Sheppard's
sub-claims under the First Amendment for violation of the
rights to redress and access to criminal proceedings must be
dismissed.
2. Fourth Amendment claims
Plaintiff asserts that defendant violated his Fourth Amen-
dment rights in connection with the search and seizure of his
personal effects in chambers. None of these claims warrant
extensive discussion. The Fourth Amendment, applicable to
the states via the Fourteenth Amendment, protects the "right
of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures."
Plaintiff claims that his property was unlawfully seized when
defendant prevented him from collecting his property after
he was discharged. Property is seized when "there is some
meaningful interference with the individual's possessory
interests in that property," United States v. Jacobsen, 466 US.
109, 113 (1984), to further the investigatory purposes of
government agents. See id. at 114, 120-21, 104 S. Ct. at 1656,
1660 (seizure of package occurred when federal agents took
custody of package to determine whether it contained
narcotics); United States v. Place, 462 US. 6%, 701, 705-708
(1983) (travelers luggage was "seized" when government
agents detained luggage while they sought to obtain a search
warrant). A reasonable seizure does not run afoul of the
1 Fourth Amendment. Jacobsen, 466 U.S. at 121-22.
__ In this case, plaintiff agrees that defendant was not inves-
tigating him for suspected criminal activity. Plaintiff simply
alleges that defendant restrained him from collecting his
personal effects upon his discharge, but concedes that he was
able to retrieve all of his belongings approximately one week
later. It is objectively reasonable for a judge .to safeguard
court files and to ensure that a terminated law clerk does not
remove or destroy court documents in retaliation for his
firing. Consequently, requiring plaintiff to return twice to
Ne ee Lee boutiontumemin Le om -
44a
SHEPPARD I BELOW
retrieve his property in the company of court officers was
reasonable and does not give rise to a § 1983 cause of action.
Plaintiff also claims that defendant violated his Fourth
Amendment rights by unlawfully searching his property.
However, whether a search implicates the warrant require-
ment of the Fourth Amendment depends on whether society
objectively recognizes a privacy interest in the area to be
searched. O'Connor v. Ortega, 480 U.S. 709, 715 (1987);
United States v. Jacobsen, 466 U.S. 109, 113 (1984). In
O'Connor, a psychiatrist at a state hospital commenced a §
1983 action alleging that his employer violated the Fourth
Amendment by conducting an unlawful search of his private
office and by seizing a few personal items, which were
subsequently used in an administrative proceeding. 480 U.S.
at 712-13. The Court upheld the psychiatrist's cause of
action, recognizing that a state employee does not relinquish
his constitutional rights against unreascnable searches and
seizures conducted by his employer in the employee's work
area, provided that society would recognize a reasonable
expectation of privacy in the area to be searched. /d. at
715-717. Since the plaintiff in O'Connor had a reasonable
expectation of privacy in the personal files stored in his
private office containing sensitive psychological data of his
private patients, the Court held that his employer's search
implicated the Fourth Amendment because society would
recognize a reasonable expectation of privacy in that work
setting. Jd. at 718, 107 S. Ct. at 1498. See also Gillard v. :
Schmidt, 579 F.2d 825, 828 (3d Cir. 1978) (guidance counselor
who mairitains sensitive student records has a reasonable
expectation of privacy in school desk).
In contrast, the plaintiff's asserted right to the exclusive
dominion and control of the appurtenances of a judge's
chambers is a dubious one, indeed. As has been discussed
above, the relationship between a judge and his law clerk is
sui generis. The case files, memoranda and correspondence
pertaining to judicial matters which virtually inundate the
chambers of a judge in large metropolitan areas, whether
Pe
45a
SHEPPARD I BELOW
found in file cabinets or desk drawers, must be deemed to be
subject to the control of, and inspection by, the judge.
As the Court noted in O'Connor:
Public employees' expectations of privacy in their offices,
desks, and file cabinets .. . may be reduced by virtue of
actual office practices and procedures, or by legitimate
regulation . . . [and] some government offices may be so
open to fellow employees or the public that no expecta-
tion of privacy is reasonable. ... Given the great variety
of work environments in the public sector, the question of
whether an employee has a reasonable expectation of
privacy must be addressed on a case-by-case basis.
480 U.S. at 717-18. The very nature of the work environment
that pervades judicial chambers drives this Court to conclude
that Sheppard had no reasonable expectation of privacy in
chambers' appurtenances, embracing desks, file cabinets or
other work areas. Accordingly, the Fourth Amendment
claims must be dismissed.°
II. Plaintiff's Appeal from the Magistrate Judge's Order
This court entered a general referral of all pre-trial matters
‘Plaintiff also claims that his person was seized when defendant
ordered court officers to remove him from chambers on December 11,
1990, and when defendant ordered him to "sit down and not speak" when
he was entering and exiting the courtroom on February 11, 1991. PI.'s
Memo. of Law in Opp'n at 38-39. However, it is clear that these claims are
frivolous because plaintiff's person was never "seized" as his liberty was
not restrained in either of those instances.Graham v. O'Connor, 490 U.S.
386, 396 n. 10 (1989). After defendant discharged plaintiff on December 11,
the court officers simply escorted him from chambers and from the
courthouse; plaintiff was free to go anywhere else that he desired.
Similarly, plaintiff's liberty was not restrained on February 11 because he
was free to remain in or to leave defendant's courtroom.
: ae a - wee meal aa
46a
SHEPPARD I BELOW
to Magistrate Judge Ross on May 17, 1991. Since that time,
the magistrate judge has met with counsel for the parties on
several occasions and has entered several orders. Plaintiff
now appeals from four separate elements assertedly incorpo-
rated into the magistrate judge's oral order at the conference
of January 16, 1992:
The four discrete rulings . . . to which plaintiff objects are
(1) that counsel will not be permitted to administer oaths
at the audiotaped depositions, and that plaintiff will have
to provide a third person to do so in the event that Ms. -
Evans [counsel for defendant] arbitrarily decides not to do
so; (2) that counsel will not be permitted to operate the
tape machines at the depositions, and thus that plaintiff
will have to provide a third person to do so at each
taping; (3) that all such third persons proffered by
plaintiff must be pre-screened by Ms. Evans under vague
standards of competence and independence; and (4) that
all audiotaped depositions taken on plaintiff's behalf must
be transcribed, and that even though it is defendant, and
not plaintiff, who wants them all transcribed, plaintiff
must pay for all transcriptions unless he can justify
shifting the costs to defendant.
Pl.'s Memo. of Law in Supp. of Pl.'s Objections to Magis-
trate's Orders at 2.
For the reasons set out below, the appeal as to each of
these elements is denied.
As to issue number four--the matter of whether all deposi-
tions must be transcribed, and which side must pay the cost
of transcription--it is clear that this matter is not properly
presented for appeal. The magistrate judge's written order,
labeled "For purposes of clarification" and endorsed on
Sheppard's January 21 letter offering his summary of the
January 16 orders, states explicitly that "no requirement was
imposed that all depositions be transcribed...." § 2. As
regards the allocation of costs, it is clear that this question
47a
SHEPPARD I BELOW
was never in fact conclusively settled before the magistrate
judge. The transcript of the January 16 conference reveals
the following remarks:
THE COURT: I would like you to brief that limited issue,
okay? And not massive, just send me a letter brief, just
on that issue--
MR. SHEPPARD: Right.
THE COURT: --not other issues.
MR. SHEPPARD: Right.
THE COURT: Okay?
MR. SHEPPARD: Okay.
MS. EVANS: The issue? I'm sorry.
THE COURT: Of who bears the cost of the transcription.
MR. SHEPPARD: Can I get a time frame for when we're
supposed to have our letter briefs in on the issue of bear-
ing the cost of transcription?
THE COURT: And when I get all the briefs, then we'll
have a phone conference and I'll make a decision.
48a
SHEPPARD I BELOW
Tr. 55, 59, 61.* This state of affairs was left unresolved, as
demonstrated by plaintiff's January 21 letter, in which he
states, "I cannot intelligently respond to Your Honor's request
for briefing on the issue of which party bears the cost of
transcription. ... I am left with no conception as to how to
address the issue left open." Letter of 1/21/92 at 2.
As to the first issue raised--who should administer the
oath at depositions-- this court finds Fed. R. Civ. P. 28 dis-
positive:
(c) Disqualification for Interest. No deposition shall be
taken before a person who is a relative or employee or
attorney or counsel of any of the parties, or is a relative or
employee of such attorney or counsel, or is financially
interested in the action.
While Rule 28(c) is subject to waiver, the magistrate judge
correctly concluded that defendant had not waived his
objection. However, the question of who should administer
oaths--specifically, whether defense counsel would be
permitted to do so--was never resolved. As the January 16
transcript reveals, resolution of this question (while discussed
briefly) was deferred to a later conference which apparently
has never taken place. See Tr. 34-35. As above, this matter
is not ripe for appeal.
Plaintiff's second objection of the four raised here--that he
should be allowed to operate the tape recorders used at
depositions--is likewise unavailing. As plaintiff himself
concedes, the terms of Rule 28(c) are equally applicable to
this issue. While he cites cases holding that the policy
informing the Rule--to assure impartiality in the creation of
the record of the deposition--is inapplicable where tape
recorders are used, rather than stenographers or court
‘The official calendar filed with the Clerk, sometimes referred to as the
“day sheet," also notes the pendency of this issue.
EL Aa EE vera
49a
SHEPPARD I BELOW
reporters, see, eg., Marlboro Products Corp. v. North
American Philips Corp., 55 F.R.D. 487, 489 (S.D.N.Y. 1972),
plaintiff fails to make the crucial distinction that those cases
universally involve situations in which the attorney permit-
ted to operate the device was not also a party. While
plaintiff's proposed plan allowing him to operate the ma-
chines would require him to perform such subsidiary tasks
as identifying speakers, a reading of the January 16 transcript
strongly suggests that this approach would be unworkable.
Not only have the proceedings in this case been marked by
acrimony, but plaintiff has also conducted himself at times in
a volatile manner, to say the least:
THE COURT: Please don't get excited Mr. Sheppard. It'll
be a lot easier--
MR. SHEPPARD: I am very excited what does this
mean--
MS. EVANS: Mr. Sheppard—
MR. SHEPPARD: --if she thinks that someone--
MS. EVANS: Mr. Sheppard, I have--
MR. SHEPPARD: That's absurd.
THE COURT: Mr. Sheppard, this is one of the reasons
why I have a problem with you doing everything all by
yourself because you're just completely losing it. Please.
MR. SHEPPARD: No, no.
THE COURT: Please.
MR. SHEPPARD: Okay, okay.
50a
SHEPPARD I BELOW
THE COURT: We're having a conference in a Court of
law and you know that.
THE COURT: We're not talking about sanctions [against
defense counsel].
MR. SHEPPARD: I am talking about sanctions.
THE COURT: Well, I'm not talking about sanctions.
MR. SHEPPARD: Well, I think we--
THE COURT: Mr. Sheppard--
MR. SHEPPARD: We are building into this [sic] more
ways of drawing it out. She says I can talk to her. She
still has not returned my phone call.
MS. EVANS: Mr. Sheppard, I think that you're--
THE COURT: Mr. Sheppard, you're proving Ms. Evans'
point. Please calm down.
MR. SHEPPARD: No.
THE COURT: Please calm down. What's going to hap-
pen in the middle of a deposition when you get very
excited and something goes wrong with the machine? I
want, I think there has got to be somebody else to run
that machine. I will not permit the depositions to go
forward with you running the machine.
Tr. 44, 47. In light of this illuminating record, and in light of
the "clearly erroneous" standard applicable to this appeal,
see 28 U.S.C. § 636(b)(1)(A), this court will not reverse the
5la
SHEPPARD I BELOW
prudent decision of the magistrate judge.
Finally, plaintiff objects to the decision that defendant be
notified of the identity of the third-party individual(s)
selected by plaintiff to operate the recording devices. It is
clear to this court that the magistrate judge's order merely
preserves the defendant's ability to make advance objections
under Rule 28(c) or other such provisions of the Rules or
applicable statutes. It is equally clear that the magistrate
judge promised to resolve any disputes that might emerge
concerning the propriety of that person's service. See Tr. 45.
Under these circumstances, there is no principled basis for
vacating the order of the magistrate judge.
III. Plaintiff's Motion to Vacate the Referral
Plaintiff also moves this court for an order withdrawing
its earlier referral of pre-trial matters to the magistrate judge.
Plaintiff contends that the magistrate judge has deliberately
ignored the rules and case law governing the matters before
her to plaintiff's detriment, and that she continues to engage
in a course of conduct whose purpose is to deprive plaintiff
of his ultimate day in court by making it "as drawn-out and
expensive as possible for plaintiff to prosecute the case." Pl.
Memo of Law at 5.
It is clear that a district court possesses the authority to
withdraw a reference of pre-trial matters to a magistrate
judge. Although neither Fed. R. Civ. P. 72 nor 28 U.S.C. §
636 addresses this question,’ a leading commentator sensibly
observes that the district court retains the power to vacate its
own orders, and consequently to withdraw all or part of a
referral order. See 7 J. Moore, Moore's Federal Practice 14
It is true that both Fed. R. Civ. P. 73(b) and § 636(c)(6) permit
withdrawal of a referral order in a civil case only on the basis of good
cause (if by motion of the court) or extraordinary circumstances (on
application of a party). Those two provisions, however, relate solely to
referrals for trial on the merits upon consent of the parties.
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72.02[4.-4], 72.02 [4.-10], 72.03[7.-4]. It appears that the
decision rests entirely in the discretion of the ‘listrict court.
Id. In particular, under Rule 4(b) and (c) of the Standing
Orders of the Eastern District on Effective Discovery in Civil
Cases, a district court may enlarge or diminish the scope of
a pre-trial referral order as it relates to discovery matters.
In this case, plaintiff objects to the magistrate judge's
"procedural masterplan" requiring orderly resolution of
discovery disputes and other disagreements. He contends
that this prejudicial treatment, as well as the magistrate
judge's frequent, but unspecified, disregard for applicable
law, effectively deprives him of the ability to seek legal
redress for his injuries. In this respect, the core of plaintiff's
assertion is that as an unemployed pro se litigant (albeit one
with a law degree) he cannot endure the lengthy procedural
complications of a case such as this one.
Even a brief examination of the January 16 conference
transcript, see, e.g., Tr. 26-33, 42-47, indicates that the mag-
istrate judge in this case has been called upon to show
superhuman patience in the face of plaintiff's intransigence.
To the extent that plaintiff disagrees with the magistrate
judge's rulings, he is free to appeal them to this court, and
has done so.° At this juncture, there is no reasoned basis for
a finding that the magistrate judge has proceeded improper-
ly, or that this court is more capable of resolving the acrimo-
nious pre-trial disputes between the parties.
CONCLUSION
For the feregoing reasons, defendant's motion for judg-
ment on the pleadings is granted in its entirety. This § 1983
action must be dismissed because plaintiff cannot state a
cognizable claim for a First or Fourth Amendment violation
under any set of facts as a matter of law. Accordingly, this
‘For example, plaintiff has appealed one of the January 16 rulings
regarding the conduct of depositions. That appeal is addressed herein.
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Court declines to exercise supplemental jurisdiction over
plaintiff's pendent state law tort Claims under 28 U.S.C. §
1367(c)(3) and United Mine Workers of America v. Gibbs, 383
U.S. 715 (1966). Plaintiff's appeal from the magistrate judge's
rulings is denied, and his motion to vacate the prior referral
order is also denied.
SO ORDERED.
——
54a
1995 DIST. CT. DECISION (SHEPPARD IT BELOW)
United States District Court,
E.D. New York.
Brian SHEPPARD, Plaintiff,
v.
Leon BEERMAN, as an individual and in his official
capacity as Justice of the Supreme Court
of the State of New York, Defendant.
No. CV-91-1349.
Dec. 20, 1995.
Brian Sheppard, New Hyde Park, NY, Pro Se.
Amy Abramowitz, Assistant Attorney General, New York
City, for defendant.
MEMORANDUM AND ORDER
GLASSER, District Judge:
SUMMARY
—_
This civil rights action is before the Court on remand from
the Second Circuit solely on the issue of alleged violations of
plaintiff's First Amendment right to free speech. Plaintiff,
Brian Sheppard ("Sheppard"), seeks a declaratory judgment,
injunctive relief, and monetary damages pursuant to 42
U.S.C. § 1983 ("Section 1983"; "§ 1983"). Defendant, Judge
Leon Beerman, a justice of the Supreme Court of the State of
New York for the County of Queens ("Judge Beerman"),
moves for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). For the reasons discussed
below, the motion is granted.
i
|
:
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BACKGROUND
I. Factual Background
The facts of this case are summarized briefly here; they
are recounted in greater detail in an opinion reported at 822
F. Supp. 931 (E.D.N.Y. 1993), familiarity with which is pre-
sumed.
The following material facts are undisputed. Sheppard
worked as Judge Beerman's law clerk from October of 1986
until December of 1990. Complaint § 3. This suit is based on
his December 11, 1990 dismissal and events leading up to it.
Sheppard alleges that during his tenure as Judge Beer-
man's law clerk, he perceived many instances of judicial
misconduct and attempted to dissuade the judge from
engaging in such conduct. Complaint 7. Sheppard specifi-
cally alleges two instances of judicial misconduct: (1) that
Judge Beerman arranged to have a case assigned to him for
improper personal reasons; and_(2) that on December 6, 1990,
Judge Beerman ordered Sheppard to draft a decision denying
a defendant's speedy trial motion for reasons unrelated to the
merits. Complaint 44 9-10.
When Sheppard refused to draft the decision because he
felt it was improper, Judge Beerman told him that, although
Sheppard was not being discharged, "he should seek other
employment if he felt that way." Complaint J 11. Sheppard
alleges that "he declined, saying that he was not the one who
had acted improperly," and told Judge Beerman that he had
kept notes of alleged judicial improprieties. Complaint § 12.
Sheppard alleges that Judge Beerman expressed concern
about the notes and that Sheppard said "that he would no
longer have a duty of loyalty to defendant if defendant
continued to pressure him into taking part in misconduct."
Complaint § 13. Sheppard alleges that he called Judge
Beerman "corrupt" and a "son-of-a-bitch," and alleges that
Judge Beerman called him "disturbed" and "disloyal."
Complaint § 14.
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The following work day, Sheppard was out sick. When
Sheppard returned to work on Tuesday, December 11, he
was discharged and directed to leave the courthouse.
Complaint § 22.
Il. Procedural Background
Sheppard commenced this case in April 1991 under 42
US.C. § 1983, alleging that his former employer, Judge
Beerman, violated various Constitutional rights in the events
surrounding and subsequent to Sheppard's dismissal.
Sheppard Brief at 2. Judge Beerman filed an answer on May
8, 1991.
Since the time for pleadings had already closed, the defen-
dant made a motion under Federal Rule of Civil Procedure
12(c) ("Rule 12(c)") for a judgment on the pleadings. This
court heard argument in April 1992 and granted Judge
Beerman's motion, dismissing the complaint in its entirety.
Sheppard v. Beerman, 822 F. Supp. 931 (E.D.N.Y. 1993).
The Court of Appeals affirmed this court's judgment on
the pleadings in all respects except insofar as the complaint
alleged a violation of Sheppard's First Amendment right to
free speech. Sheppard v. Beerman, 18 F.3d 147 (2d Cir.), cert.
denied, 115 S. Ct. 73 (1994). In vacating and remanding that
portion of the case, the Court of Appeals held that this court
improperly made the factual finding that the cause of
Sheppard's employment termination was insubordination,
rather than the exercise of his right to free speech. /d. at 151.
Therefore, the only claim before this court on remand is the
allegation that Judge Beerman violated Sheppard's First
Amendment right to free speech.
Since this court did not consider the qualified immunity
claim in its initial ruling, the Court of Appeals did not
review that issue. This Court examines that issue for the first
time here.
ms a ae
Pe ee ey
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DISCUSSION
Sheppard's surviving claim alleges that Judge Beerman,
acting under color of New York law, deprived him of his
First Amendment right to freedom of speech. Complaint 7
9, 38. Sheppard alleges this deprivation took the form of a
retaliatory dismissal for Sheppard's having accused Judge
Beerman of judicial misconduct. Complaint 7 1, 18.
Judge Beerman argues in the alternative (1) that Shep-
pard's speech was not protected by the First Amendment
because it was not on a matter of public concern;! and (2)
that he is entitled to qualified immunity from liability for
damages.
I. Rule 12(c) Standards
Judgment on the pleadings is appropriate where material
facts are undisputed and where a judgment on the merits is
possible merely by considering the contents of the pleadings.
Fed. R. Civ. P. 12(c).’ If the Court goes beyond the pleadings
'The contention that Sheppard's speech was not a matter of public
concern might appear curious if not disingenuous. Since Sheppard has
never alleged that he was prevented from publishing his grievance to any
third party or to any body duly constituted to hear his complaint (nor does
it appear that he has ever done so), the Court assumes that the defendant's
contention is intended to convey that Sheppard's speech was not a matter
of "public concern" in that sense.
*Rule 12(c) provides:
After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings. If, on a
motion for judgment on the pleadings, matters outside the pleadings
are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
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to decide an issue, the Rule 12(c) motion will be treated as
one for summary judgment. Id.; Sellers v. M.C. Floor
Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Frerks by
Frerks v. Shalala, 848 F. Supp. 340, 347 (E.D.N.Y. 1994), aff'd
52 F.3d 412 (2d Cir. 1995).
A motion for judgment on the pleadings may be granted
when ail material allegations of fact are admitted in the
pleadings and only questions of law remain. See George C.
Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix
Corp., 554 F.2d 551, 553 (2d Cir. 1977); Burns International
Security Services, Inc. v. International Union, 47 F.3d 14, 16
(2d Cir. 1995). In deciding a motion under Rule 12(c), the
court applies the same standard as that applicable to a
motion under 12(b)(6). See Ad-Hoc Comm. of Baruch Black
and Hispanic Alumni Ass'n v. Bernard M. Baruch College,
835 F.2d 980, 982 (2d Cir. 1987). Under that test, a court
must accept the allegations contained in the complaint as
true, and draw all reasonable inferences in favor of the
non-movant; it should not dismiss the complaint "unless it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief." Jd. (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). This standard is "applied with particular strictness
when the plaintiff complains of a civil rights violation."
Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citations
omitted).
There is no factual dispute as to the content of Sheppard's
speech or the sequence of events leading up to his dismissal.
Thus, this motion requires the Court to reach two issues of
law not fully addressed in the initial consideration of this
case: (1) whether Sheppard has raised a valid First Amend-
ment claim under § 1983; and (2) whether Judge Beerman is
entitled to qualified immunity from Sheppard's § 1983
damages claim.
Fed. R. Civ. P. 12(c).
Jot Sar eer apnea 7
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Il. Prima Facie Case Under § 1983
A suit against a public official in an individual, as op-
posed to official, capacity "seek[s] to impose individual
liability upon a governmental officer for actions taken under
color of state law." Hafer v. Melo, 112 S. Ct. 358, 362 (1991).
To raise a prima facie claim for relief under Section 1983, a
claimant need allege only that some person acting under
color of state law deprived the claimant of a federal right.
Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir. 1983) (citing
Gomez v. Toledo, 446 U.S. 635, 640 (1980)); Fields v. Soloft
920 F.2d 1114, 1119 (2d Cir. 1990).
In general, an employee who claims that his employment
was terminated in violation of the First Amendment must
establish that: (1) his speech can be "fairly characterized as
constituting speech on a matter of public concern," Piesco v.
Koch, 12 F.3d 332, 342 (2d Cir. 1993) (citing Connick v.
Myers, 461 U.S. 138, 147-48 & n.7 (1983)); and (2) the speech
was at least a substantial or motivating factor in the dis-
charge, id. (citing Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, 287 (1977)).
Public Concern
Whether an employee's speech addresses a matter of
public concern is a question of law. See Luck v. Mazzone, 52
F.3d 475, 476 (2d Cir. 1995). The more serious the nature of
the public concern expressed in the speech, the more protec-
tion the speech is accorded. See Jeffries v. Harleston, 52 F.3d
9, 13 (2d Cir. 1995) ("[T]he closer the employee's speech
reflects on matters of public concern, the greater must be the
employer's showing that the speech is likely to be disruptive
before it may be punished."); Vasbinder v. Ambach, 926 F.2d
1333, 1339 (2d Cir. 1991) ("An employee's charge of unlawful
conduct . . . is given far greater weight .. . than is a com-
plaint as to the fairness of internal office procedures.")
Accusations of corruption do touch on matters of colorably
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SHEPPARD IT BELOW
public concern. See e.g., Rookard v. Health and Hospitals
Corp., 710 F.2d 41, 46 (2d Cir. 1983) (allegation of "corrupt
and wasteful practices . . . obviously involves a matter of
public concern").
Since Sheppard allegedly vciced concern that Judge Beer-
man was "corrupt," the Court hoids that Sheppard's speech,
as a matter of law, involved a matter of public concern.
Therefore, Sheppard has properly pled that element of a
prima facie case under Section 1983.
Ketaliatory Intent
Whether the speech was a motivating factor in the dis-
charge "presents a question of fact." See Piesco v. Koch, 12
F.3d at 342. "While a bald and uncorroborated allegation of
retaliation might prove inadequate to withstand a motion to
dismiss, it is sufficient to allege facts from which a retaliatory
intent on the part of the defendants reasonably may be
inferred." Gagliardi v. Village of Pawling, 18 F.3d 188, 195
(2d Cir. 1994).
Sheppard's complaint describes in detail the content of his
speech and the events precipitating his dismissal. Giving
due deference to the fact that Sheppard has alleged an injury
to his civil rights, see Branum, 927 F.2d at 705, the Court
concludes that Sheppard has alleged sufticient facts from
which a retaliatory intent may be inferred.
The Court holds that Sheppard has raised a prima facie
case under Section 1983. Therefore, Judge Beerman can
prevail on this motion only if, as a matter of law, he is
entitled to qualified immunity.
III. Qualified Immunity
Qualified immunity may be raised "as a defense to liabili-
ty at any stage in the litigation." A/varado v. Picur, 859 F.2d
448, 451 n. 3 (7th Cir. 1988). Since it is an immunity from
suit, and not just from liability, the Supreme Court "repeat-
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edly [has} stressed the importance of resolving immunity
questions at the earliest possible stage in litigation." Hunter
v. Bryant, 502 US. 224, 227 (1991).
Ordinarily, qualified immunity is resolved on a motion for
summary judgment. See Harlow, 457 U.S. 800, 818 (1982);
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). However, :t is
also proper to raise the defense of qualified immunity on a
motion to dismiss, see Landstrom v. II Department of
Children & Family Services, 892 F.2d 670, 675 n. 8 (7th Cir.
1990); Lundblad v. Celeste, 874 F.2d 1097, 1100 n. 3 (6th Cir.
1989), modified, 924 F.2d 627, cert denied, 501 U.S. 1250
(1991), or on motions for a directed verdict or judgment
notwithstanding the verdict, see Krause y. Bennett, 887 F.2d
362, 368 n. 3 (2d Cir. 1989) (citing Stubbs v. Dudley, 849 F.2d
83, 85 (2d Cir. 1988), cert. denied, 109 S. Ct. 1095 (1989)).
Furthermore, it is a defense that must be affirmatively
pleaded by a defendant official. Siegert v. Gilley, 111 S. Ct.
1789, 1793 (1991) (citing Gomez v. Toledo, 446 US. 635
(1980)); Oliver Schools v. Foley, 930 F.2d 248, 253 (2d Cir.
1991); Castro v. United States, 34 F.3d 106, 111-12 (2d Cir, 19-
94). Since Judge Beerman has affirmatively pleaded the
defense of qualified immunity, it is a proper subject for the
Court's consideration.
Standards and Policy
The doctrine of qualified immunity provides that govern-
ment officials, performing administrative and executive
functions, generally are shielded from suits for civil damages
in § 1983 actions insofar as "their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow vy. Fitzger-
ald, 457 U.S. 800, 818 (1982); Ying Jing Gan v. City of New
York, 996 F.2d 522, 531 (2d Cir. 1993). Qualified immunity
even applies in cases "where the rights were clearly estab-
lished, if it was objectively reasonable for the official to
believe that his acts did not violate those rights." Frank v.
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Relin, 1 F.3d 1317, 1328 (2d Cir.), cert. denied, 114 S. Ct. 604
(1993); Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d
Cir. 1995).
The policy behind qualified immunity is to protect public
officials from vexatious and unnecessary litigation. Harlow,
457 U.S. at 817-18 ("[B]are allegations of malice should not
suffice to subject government officials either to the costs of
trial or to the burdens of broad- reaching discovery."). If the
district court determines that the defendant's alleged actions
were those a reasonable officer could have believed lawful,
the defendant is entitled to dismissal prior to discovery. See
1 Schwartz & Kirklin, Section 1983 Litigation § 9.25, at 577
(1991) (citing Anderson v. Creighton, 107 S. Ct. 3034, 3042 n.
6 (1987)).
Qualified Immunity Standards Applied
In the Second Circuit, a defendant may prevail on the
defense of qualified immunity by showing that: (1) "it was
not clear at the time of the official acts that the interest
asserted by the plaintiff was protected by a federal statute or
the Constitution"; (2) "it was not clear at the time of the acts
that an exemption did not permit those acts"; or (3) "it was
objectively reasonable for [the officer] to believe that his acts
did not violate [the plaintiff]'s rights." Robison v. Via, 821
F.2d 913, 920-21 (2d Cir. 1987).
In evaluating a defense of qualified immunity, a court
must analyze the specific federal right at issue in light of the
specific facts of the case. Anderson v. Creighton, 107 S. Ct.
3034, 3039 (1987) ("The contours of the right must be suffi-
ciently clear that a reasonable official would understand that
what he is doing violates that right."). The trial court
"appropriately may determine, not only the currently
applicable law, but whether that law was clearly established
at the time an action occurred." Harlow, 457 U.S. at 818. In
doing so, the court "focuses on the objective legal reason-
ableness of an official's acts." Jd. at 819.
Li Pree MG
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When the factual record is not in serious dispute, "the
application of qualified immunity is . . . ultimately a question
of law for the court to decide." See Lennon v. Miller, 66 F.3d
416, 421 (2d Cir. 1995) (quoting Finnegan v. Fountain, 915
F.2d 817, 821 (2d Cir. 1990)). Thus, the Court must deter-
mine, as a matter of law: (1) the law defining the right
alleged to be injured; (2) the clarity with which such law was
established at the time of the alleged injury; and (3) the
objective reasonableness of Judge Beerman's actions.
The Law Defining the Right
In general, government employees have "a right under the
First Amendment, though not an unlimited right, to speak on
matters of public concern." Frank v. Relin, 1 F.3d at 1328. A
public employer, however, may escape liability by showing
that the employee's conduct "threatened to interfere with
government operations" and that this threat outweighed the
employee's First Amendment rights. See Waters v. Churchill,
911 U.S. __, 114 S. Ct. 1878, 1887; Jeffries v. Harleston, 52
F.3d 9, 13 (2d Cir. 1995).
Courts have formulated a balancing test to measure the
level of First Amendment protection a public employee's
speech will receive within a given government context. If the
employee's interest in speaking outweighs the government's
interest in promoting the efficiency of the services it per-
forms, the First Amendment prevents the government from
discharging the employee for such speech. See Vasbinder v.
Ambach, 926 F.2d 1333, 1341 (2d Cir. 1991) (citing Pickering
v. Board of Education, 391 U.S. 563 (1968)). This weighing of
competing interests is commonly referred to as the "Pickering
balancing test."
Determining the proper balance under Pickering is a mat-
ter of law. See Connick, 461 U.S. at 150 & n. 10. The recent
Supreme Court opinion in Waters v. Churchill emphasized
that speech by public employees receives somewhat less
protection under the First Amendment than it does in
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general.
[MJany of the most fundamental maxims of our First
Amendment jurisprudence cannot reasonably be applied
to speech by government employees. The First Amend-
ment demands a tolerance of "verbal tumult, discord, and
even offensive utterance," as "necessary side effects of . .
. the process of open debate," Cohen v. California, 403
US. 15, 24-25 (1971). But we have never expressed doubt
that a government employer may bar its employees from
using Mr. Cohen's offensive utterance to members of the
public, or to the people with whom they work.
Waters v. Churchill, 511 U.S. ___, 114 S. Ct. 1878, 1886 (1994).
The Supreme Court stressed that First Amendment protection
is less extensive where the employer is the government
because public agencies are charged, by law, with performing
the services they render. See id. at 1887.
The Second Circuit has interpreted Waters to mean that
the discharge of a public employee because of his speech
does not violate his constitutional rights if:
(1) the employer's prediction of disruption is reasonable;
(2) the potential disruptiveness is enough to outweigh the
value of the speech; and (3) the employer took action
against the employee based on this disruption and not in
retaliation for the speech.
Jettries v. Harleston, 52 F.3d at 13 (citing Waters, 114 S. Ct.
at 1887, 1889-91). Since the Second Circuit applied these
criteria to events that occurred in 1991, see id. it is appropri-
ate to consider them the "currently applicable law" for the
qualified immunity inquiry in this case.
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The Clarity of the Established Right
At first, it may appear that there is a paradox created by
the factual issue of an employer's motive in discharging an
employee and the Harlow test of "objective reasonableness."
However, the qualified immunity analysis entails an impor-
tant distinction between determining the underlying law
governing a corstitutional right and the clarity with which
such a law is established. After carefully considering the
issue, the Seventh Circuit, sitting en banc, ruled that
despite the apparent Harlow paradox, an objective
analysis is applicable to situations involving a public
official's state of mind. The objective determination in
these cases requires that courts not consider intent when
making the final determination at summary judgment of
whether the law is clearly established. ... Thus, when
intent is crucial to a party's claim, . . . the court's consider-
ation of intent is relevant to the determination of whether
a constitutional violation exists but not in deciding if the
constitutional standard was clearly established.
Auriemma Vv. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990), cert.
denied, 111 S. Ct. 2796 (1991) (emphasis added). Therefore,
the issue of whether a given right was clearly established at
the time of an alleged constitutional violation is an objective
determination that may be made as a matter of law.
Whether the challenged acts violated a "clearly protected"
right is determined by reference to the law in effect at the
time of the acts. See Ying Jing Gan, 996 F.2d at 531. In the
Second Circuit, law is normally "clearly established" for
qualified immunity purposes when there is a United States
Supreme Court or circuit court ruling on point. See Rich-
ardson v. Selsky, 5 F.3d 616, 623 (2d Cir. 1993); Jermosen v.
Smith, 945 F.2d 547,551 (2d Cir. 1991), cert. denied, 1125S. Ct.
1565 (1992).
Many circuit courts have held that law is rarely "clearly
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established" where the Pickering balancing test must be
applied.» As a result, such courts often grant qualified
immunity under these circumstances. The Sixth Circuit, for
example, grants qualified immunity if, at the time of the
contested employment determination, judges of reasonable
competence could disagree "as to where the Pickering
balance would ultimately come to rest." Guercio v. Brody,
911 F.2d 1179, 1189 (6th Cir. 1990), cert. denied, 111 S. Ct.
1681 (1991).
In addition, it may not have been "clear at the time of the
acts that an exemption did not permit those acts." See
Robison v. Via, 821 F.2d at 921. Courts have frequently held
that clearly dissident speech is almost per se unprotected
under the Pickering balancing test where an elected official's
policymaking ability depends on cooperation from his
subordinates. See e.g., Watters v. Philadelphia, 55-F.3d 886,
898 (3d Cir. 1995) ("[W]e could not expect a district attorney
to run an efficient office if his first assistant were free to
impugn his integrity in public"); Propst v. Bitzer, 39 F.3d 148,
>See, e.g., Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992) ("[B]ecause
Pickering 's constitutional rule turns upon a fact-intensive balancing test,
it can rarely be considered ‘clearly established' for purposes of theHlarlow
qualified immunity standard."); DiMeglio v. Haines, 45 F.3d 790, 806 (4th
Cir. 1995) ("[O]nly infrequently will it be ‘clearly established’ that a public
employee's speech . . . is constitutionally protected, because the relevant
inquiry requires a 'particularized balancing' that is subtle, difficult to
apply, and not yet well-defined.") (vacating district court's denial of
summary judgment); Hansen v. Soldenwagner, 19 F.3d 573, 575-76 (11th
Cir. 1994) ("[O]nly in the rarest of cases will reasonable government
officials truly know that the termination or discipline of a public employee
violated ‘clearly established' federal rights."); Moore v. City of Wyn-
newood, 57 F.3d 924, 935 n. 6 ("Even if [plaintiff] had shown that the
Pickering balance tipped in his favor, he would be hard pressed to
establish that his First Amendment rights were clearly established")
(reversing district court's denial of qualified immunity);see also Dahm v.
Flynn, 60 F.3d 253, 260 (7th Cir. 1994) (‘Pickering set up a balancing
approach, and a call for 'balancing' does not establish anything 'clearly,' or
at all.") (Easterbrook, J., dissenting in part).
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153 (7th Cir. 1994) (finding speech "highly disruptive to close
working relationships in a workplace that required loyalty
and confidence"), cert. denied, 115 S. Ct. 1400 (1995). Courts
sometimes refer to such a rule as the "policymaker exception'"
to the general retaliatory dismissal analysis. See Kaluczky v.
City of White Plains, 57 F.3d at 208 (collecting cases).
Sheppard argues that "in New York, where state sup’ eme
court justices are elected," the Court should accord "para-
mount public concern" to issues concerning judges in
conducting a Pickering-style balancing. Sheppard Brief, at 1
(incorporating by reference, his Original Brief, at 17).
However, if anything, the reasoning behind the policy maker
exception suggests the opposite result. Since Judge Beerman
is accountable to an electorate, there are other checks on his
conduct besides internal organizational criticism.
Based on the continual flux in this area of First Amend-
ment jurisprudence, and the policy reasons behind qualified
immunity, this court would have great difficulty in holding
that the law in effect at the time of Sheppard's dismissal
established the violation of a "clearly established" right. See,
e.g. DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir. 1995)
(Therefore, it was, and is, not clear that when an individual
presents himself as speaking in his Capacity as a public
employee, that his speech is protected.") Whether or not the
right in this case was "clearly established" in December 1990
is academic, however, because Judge Beerman's conduct, as
a matter of law, was objectively reasonable.
The Objective Reasonableness of the Defendant's Conduct
Even where a right is clearly established, a defendant is
entitled to qualified immunity if it was objectively reasonable
for the official to believe that his acts did not violate that
right. See Kaluczky v. City of White Plains, 57 F.3d at 207;
Frank v. Relin, 1 F.3d at 1328. Hence, Judge Beerman's acts
are entitled to qualified immunity if he has "adduce[d]
sufficient facts [such] that no reasonable jury, looking at the
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evidence in the light most favorable to, and drawing all
inferences most favorable to, the plaintiffs, could conclude
that it was objectively unreasonable" for him to believe that
he could dismiss Sheppard without violating clearly defined
law. See Frank, 1 F.3d at 1328.
Since the Court is considering whether qualified immunity
applies and not deciding the merits of the constitutional
claim, it is unnecessary to determine the actual reason for
Sheppard's dismissal on this motion. See, e.g., DiMeglio v.
Haines, 45 F.3d 790, 798 (4th Cir. 1995) ("An official's entitle-
ment to qualified immunity has never turned on whether his
conduct actually violated the law; rather, it has always
turned on [ ]the ‘objective legal reasonableness' of [his]
action.") (citing Anderson v. Creighton, 483 U.S. at 639).
Although the Court must accept all factual allegations in the
complaint as true, the Court need not accept the claimant's
legal characterizations of events. See Mitchell, 472 U.S. at 528
("[A] court reviewing . . . the defendant's claim of immunity
need not consider the correctness of the plaintiff's version of
the facts ... All it need determine is a question of law").
Furthermore, as the Supreme Court recently demonstrat-
ed, in certain cases it is possible to determine, as a matter of
law, that the Pickering balance tipped against the plaintiff.
As a matter of law, th[e] potential disruptiveness was
enough to outweigh whatever First Amendment value the
speech might have had. ... An employee who makes an
unprotected statement is not immunized from discipline
by the fact that this statement is surrounded by protected
statements.
Waters v. Churchill, 114 S, Ct. at 1891 (remanding for factual
determination of which speech caused employee's dismissal).
Moreover, a holding that speech is on a matter of public
concern does not preclude a holding that the speech's value
was nevertheless outweigl ed by its potential disruptiveness,
since the speech's context may be examined independently of
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its content. :
[A]lthough providing an insider's perspective on an
important issue, [the plaintiff] did not reveal any new
information to the public... "An employee's first
amendment interest is entitled to more weight where he
is acting as a whistleblower exposing government corrup-
tion."
Moore v. City of Wynnewood, 57 F.3d 924, 933 (10th Cir.
1995) (quoting Hughes v. Whitmer, 714 F.2d 1407, 1423 (8th
Cir. 1983), cert. denied, 465 U.S. 1023 (1984)). Therefore, even
though the Court holds that Sheppard's speech touched on
a matter of public concern, it may still conclude that the First
Amendment value of the speech was outweighed by the
state's interest in the efficient functioning of Judge Beerman's
chambers,
Unlike Waters, this case presents no dispute as to the
content of the speech, nor raises any genuine issue as to
which speech prompted the termination of the employee.
The issue of qualified immunity can be decided-on the
undisputed material facts. Sheppard alleges in his own
pleadings that he called Judge Beerman a "son of a bitch':
stated that he would not draft the opinion assigned to him;
and told the defendant that he would no longer owe him a
duty of loyalty if he persisted in the alleged judicial mis-
conduct.
Assuming the truth of the factual allegations in the com-
plaint (that Sheppard was fired for his speech) and drawing
all inferences in favor of the non-moving party (that the
speech was on a matter of public concern), Judge Beerman
would be entitled to qualified immunity if he reasonably
believed "that he was acting in a fashion that did not clearly
violate an established federally protected right." Frank vy.
Relin 1 F.3d at 1328. Under Jeffries, this would entail an
objectively reasonable belief that (1) Sheppard's speech was
likely to be disruptive; (2) that the disruptiveness of
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Sheppard's speech outweighed his First Amendment interest
in speaking; and (3) that he was firing Sheppard for this
disruptiveness. See 52 F.3d at 13.
It is not necessary, however, to determine Judge Beerm-
an's actual motive in firing Sheppard, since defendant
officials are generally entitled to qualified immunity "as long
as their actions could reasonably have been thought consis-
tent with the rights they are alleged to have violated."
Anderson v. Creighton, 483 U.S. at 638 (citing Malley v.
Briggs, 475 U.S. 335, 341 (1986)). Indeed, it is the test of
"objective legal reasonableness' that is the touchstone of
Harlow." Id. at 639.
This court holds that, as a matter of law, Judge Beerman
acted within the realm of objective reasonableness in termi-
nating Sheppard's employment. Whether Sheppard was fired
for speech that was or was not on a matter of public concern
is irrelevant, since under the circumstances, the Pickering
balancing test would have tipped against Sheppard in any
case. In other words, it would have been objectively reason-
able for Judge Beerman to believe that whatever First
Amendment value Sheppard's speech may have had was
outweighed by its likely disruptiveness. Indeed, in light of
Sheppard's disavowal of loyalty and his announcement that
he would not draft the requested opinions, it is difficult to
conceive of any other personnel action that would have
vindicated "the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees." Waters, 114 S. Ct. at 1884 (quoting —
Connick, 461 U.S. at 142). Therefore, the Court holds that
Judge Beerman is entitled to qualified immunity from
damages on the First Amendment claim.
In the interest of clarity, the Court notes that this ruling
does not constitute factual findings that Judge Beerman
actually held certain beliefs, made specific predictions, or had
a particular motive in firing Sheppard. Rather, since the
qualified immunity inquiry turns on "the objective legal -
reasonableness of an official's acts," Harlow, 457 U.S. at 819,
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SHEPPARD IT BELOW
the Court hereby holds, as a matter of law, that Judge
Beerman's conduct was objectively reasonable and is protect-
ed by qualified immunity.
IV. Declaratory and Injunctive Relief
In addition to damages, Sheppard seeks a declaratory
judgment and injunctive relief. Complaint at 10-11. Standing
to seek injunctive and declaratory relief in a § 1983 action
must be analyzed separately from standing to seek damages.
See Los Angeles v. Lyons, 461 U.S. 95, 101-03 (1983). There-
fore, the Court will briefly address whether Sheppard has
standing to maintain these claims.
Injunctive Relief
In general, the standard for seeking prospective, equitable
relief is quite strict. In order to gain prospective relief such
as the injunction Sheppard seeks,’ a party must-demonstrate:
(1) "injury in fact," which means an invasion of a legally
protected interest that is (a) "concrete and particularized,"
and (b) "actual or imminent, not conjectural or hypothetical";
(2) a causal relationship between the injury and the chal-
lenged conduct, which means the injury "fairly can be traced
‘Specifically, Sheppard prays for an order
permanently enjoining defendant, and all those acting in concert with
him, from (a) stating that the reason for plaintiff's discharge or removal
was anything other than his objecting to, and contemplating the
exposure of, judicial misconduct; (b) interfering with the efforts of
plaintiff, or anyone who wishes to assist him, in exposing such miscon-
duct or vindicating the rights of those prejudiced by it; and (c)
otherwise retaliating against plaintiff for his having exercised, or his
exercising, his First Amendment rights in relation to this action or the
issues involved therein.
Complaint at 10, 11.
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to the challenged action of the defendant"; and (3) a likeli-
hood that the injury will be redressed by a favorable deci-
sion, which means that the "prospect of obtaining relief from
the injury as a result of a favorable ruling" is not "too
speculative." See Northeastern Florida Chapter of Associated
General Contractors of America v. City of Jacksonville,
Florida, 113 S. Ct. 2297, 2301-02 (1993).
Sheppard's claim fails on several of these grounds. First,
as this decision makes plain, Sheppard has not adequately
demonstrated an actionable injury. Since it is not clearly
established that Sheppard's speech was protected under the
First Amendment, he has not adequately demonstrated
"injury in fact," let alone the requisite "real and immediate
threat that [he] will be wronged again--a likelihood of
substantial and immediate irreparable injury." See Los
Angeles v. Lyons, 461 US. at 111.
Second, Sheppard has failed to show an "actual or immi-
nent" threat of injury to a legally protected right. Even if
Sheppard successfully demonstrated a past violation of a
clearly protected legal interest, the mere fact of past injury,
"while presumably affording [the plaintiff] standing to claim
damages . . ., does nothing to establish a real and immediate
threat that he would again suffer sinuiar injury in the future."
Adarand v. Pena, 115 S. Ct. 2097, 2104 (1995) (citations
omitted). Sheppard has not alleged any facts from which one
could infer that Judge Beerman would seek to injure Shep-
pard's First Amendment rights in the future.
In general, it makes little sense to enjoin through equity
an action that is illegal. See 2 Dan B. Dobbs, Law of Reme-
dies § 7.2(14), at 297 (2d ed. 1993). This is especially true
where the plaintiff essentially seeks to enjoin the defendant
from publishing defamatory statements, for which a damages
action would lie in tort. /d. It is ironic that Sheppard,
complaining of a violation of his claimed First Amendment
right, should seek to enjoin the First Amendment right of
Judge Beerman. Regardless of whether Sheppard could
prove the allegations in his complaint, it would be antithet-
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ical to the First Amendment to impose a prior restraint on
Judge Beerman's speech, see Near v. State of Minnesota, 283
U.S. 697 (1931), or tc impose on the parties an official version
of events, see Herbert v. Lando, 441 US. 153, 184 (1979)
("The First Amendment bars the State from imposing upon
its citizens an authoritative vision of truth.")
Although the Court has only briefly touched upon some
of the factors that prevent Sheppard from obtaining a
forward-looking injunction, it is manifestly plain that
Sheppard falls short of the high standards articuiated in Los
Angeles v. Lyons and other Supreme Court cases. The Court
therefore hold that Sheppard lacks standing to maintain a
claim for an injunction restricting Judge Beerman from
discussing Sheppard's dismissal. That portion of his claim is
dismissed.
Dec aratory Judgment
Finally, standing to seek a declaratory judgment must also
be analyzed separately from standing to seek damages. See
Los Angeles v. Lyons, 461 U.S. at 104; Auletta v. T, ully, 576
F. Supp. 191, 197 (N.D.N.Y. 1983), aff, 732 F.2d 141 (2d Cir.
1984).
The Declaratory Judgment Act, 28 U.S.C. § 2201(a), pro-
vides in relevant part:
In a case of actual controversy within its jurisdiction . . .
any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought.
28 US.C. § 2201(a).
The Supreme Court recently emphasized that "the statute's
textual commitment to discretion, and the breadth of leeway
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we have always understood it to suggest, distinguish the
declaratory judgment from other areas of the law in which
concepts of discretion surface." Wilton v. Seven Falls Co., ___
U.S. ____, No. 94-562 (1995) (slip. op., at 9) ("We have repeat-
edly characterized the Declaratory Judgment Act as ‘an
enabling Act, which confers a discretion on the courts rather
than an absolute right upon the litigant."). Therefore, this
court's decision to exercise its jurisdiction over Sheppard's
declaratory judgment claim is discretionary.
Traditionally, courts do not "declare" facts. E. Borchard,
Declaratory Judgments, 391 (2d ed. 1941). Rather, declarato-
ry judgments are designed to furnish an authoritative and
reliable statement of the parties' rights. 1 Dobbs § 1.1, at 8.
Sheppard seeks a declaratory judgment that Judge Beerman
discharged plaintiff and had him physically removed from
the courthouse, not for the pretextual reasons defendant
has proffered, but rather for his protesting, and [sic] con-
sidering to air, judicial misconduct.
Complaint at 10-11. Since Sheppard seeks a judgment
declaring the cause of his termination to be retaliation, he
essentially asks this court to declare facts. Ironically, the
Second Circuit remanded this case partly because this court
cannot make such a determination. See Sheppard v. Beerman,
18 F.3d at 151 ("[T]he motive behind Sheppard's firing in his
retaliation claim is clearly a question of fact . . . improper for
the district court to answer . . . on a motion for dismissal on
the pleadings.").
Moreover, the declaratory judgement claim presents a
severe ripeness problem. In order to determine whether a
claim is ripe for adjudication, courts should first determine
"the fitness of the issues for judicial decision and the hard-
ship of the parties of withholding court consideration."
Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). In
light of this court's grant of qualified immunity from damag-
es, there do not appear to be any remaining issues for
te ts
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adjudication, nor any hardship that could result to the parties
by withholding adjudication. Sheppard has already been
discharged and does not seek reinstatement to his former
position. Since there remains no live "case or controversy,"
Sheppard's claim for a declaratory judgment is not fit for
judicial decision. See Blanchette v. Connecticut Gen. Ins.
Corp., 419 U.S. 102, 138 (1974) ("[T]o the extent that questions
of ripeness involve the exercise of judicial restraint from
unnecessary decision of constitutional issues, the Court must
determine whether to exercise that restraint.") Therefore, the
case is moot inasmuch as Sheppard seeks a declaration as to
the basis of his discharge.
The Court holds in its discretion that this case is neither
an appropriate one for the proposed declaratory judgment,
nor does it present a live "case or controversy" necessitating
a ruling on these constitutional fact issues. Since "a district
court is authorized, in the sound exercise of its discretion, to
stay or to dismiss an action seeking a declaratory judgment
before trial," Wilton, at 11, this court, finding no useful
purpose to be served by proceeding to the merits of Shep-
pard's claim for a declaratory judgment, dismisses that
portion of the complaint.
CONCLUSION
The Court holds that Sheppard's speech concerned mat-
ters of public concern. However, the Court also holds that
Judge Beerman's actions did not constitute violations of
clearly established First Amendment freedom of speech
rights in 1990. The Court further holds that it would have
been reasonable for Judge Beerman to believe that he was
not violating Sheppard's First Amendment rights by termi-
nating his employment. Therefore, the Court concludes
that Judge Beerman is qualifiedly inmmune from suit for
Sheppard's damages claim. Those portions of the com-
plaint are dismissed accordingly.
In addition, the Court holds that Sheppard ’acks stand-
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ing to maintain his claim for a prospective injunction; and
that the case is moot as to the declaratory judgment Shep-
ard seeks. Therefore, the Court dismisses the remaining
claims of Sheppard's complaint.
SO ORDERED.
77a
2002 DIS1. CT. DECISION (SHEPPARD IIT BELOW)
United States District Court,
E.D. New York.
Brian SHEPPARD, Plaintiff,
Vv.
Leon BEERMAN, Defendant.
No. 91 CV 1349(ILG).
Feb. 7, 2002.
Brian Sheppard, New Hyde Park, NY, pro se.
Amy L. Abramowitz, Ass't. Attorney General's Office,
Michael B. Siller, Office of the Attorney General, New York
City, for defendant.
MEMORANDUM AND ORDER
GLASSER, District Judge.
Plaintiff Brian Sheppard alleges in this action that defen-
dant former Supreme Court Judge Leon Beerman terminated
him from his position as a law clerk in violation of his free
speech rights under the First Amendment to the United
States Constitution. Now before the court is Judge Beerman's
motion for summary judgment, as well as Sheppard's
cross-motion to strike certain evidence relied upon by Judge
Beerman in his motion. For the reasons that follow, Judge
Beerman's motion must be granted and Sheppard's cross-mo-
tion must be denied.
Procedural History
Before turning to the motion, the procedural history of
this case is briefly recounted. Plaintiff commenced this action
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in April 1991. Plaintiff's Complaint asserted several claims
against Judge Beerman pursuant to 42 U.S.C. § 1983, in-
cluding a claim that his discharge and Judge Beerman's
conduct following the discharge violated his rights under the
First and Fourteenth Amendments to the United States
Constitution and several state law claims. In February 1992,
Judge Beerman moved, pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure, for judgment on the pleadings. In
May 1993, this Court granted Judge Beerman's motion and
dismissed the case in its entirety. Sheppard v. Beerman, 822
F. Supp. 931 (E.D.N.Y. 1993). Sheppard appealed and, in
March 1994, the Second Circuit affirmed in part and vacated
and remanded in part, vacating only this Court's dismissal of
Sheppard's First Amendment freedom of speech claim and
holding that this Court improperly made the factual finding
that the cause of Sheppard's employment termination was
insubordination, rather than the exercise of his right to free
speech. Sheppard v. Beerman ("Sheppard I"), 18 F.3d 147, 151
(2d Cir. 1994). Judge Beerman again moved for judgment on
the pleadings and, on December 20, 1995, this Court again
granted his motion and dismissed the case in its entirety.
Sheppard v. Beerman, 911 F. Supp. 606 (E.D.N.Y. 1995).
While this Court found that Sheppard's speech was on a
matter of public concern and that Sheppard had shown a
prima facie case of unconstitutional discharge, it also found
that Judge Beerman was entitled to qualified immunity
because he had acted within the realm of objective reason-
ableness in terminating Sheppard's employment. /d. at 616.
Upon Sheppard's appeal of that decision, the Second Circuit
again reversed, holding this time that this Court had erred in
finding that Judge Beerman's actual intent was irrelevant and
in not permitting plaintiff to engage in discovery to support
his claim of unconstitutional motive. Sheppard v. Beerman
(‘Sheppard II"), 94 F.3d 823, 828-29 (2d Cir. 1996). The
parties have engaged in extensive discovery, over the course
of which this Court has denied dozens of objections by
Sheppard, many of them frivolous, to the Magistrate Judge's
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SHEPPARD IIT BELOW
discovery rulings.
Judge Beerman now moves for summary judgment on the
ground that his actions did not infringe on Sheppard's First
Amendment rights and that, even if Sheppard could demon-
strate such an infringement, he is entitled to qualified
immunity. Sheppard also has cross-moved to strike certain
deposition transcripts, affidavits and other documents upon
Which Judge Beerman relies in his summary judgment
motion. Because Sheppard has failed to adduce any evi-
dence, direct or circumstantial, from which it can be inferred
that Judge Beerman's decision to terminate Sheppard from
his employ was prompted by anything other than a desire to
ensure an effective working relationship, and the efficient
conduct of his Chambers, Sheppard has failed to demonstrate
the existence of a genuine issue of material fact that would
permit a jury to conclude that his free speech rights under
the First Amendment were violated. Summary judgment
therefore must be granted as against Sheppard.
Factual Background
While the operative facts in this case are recited in both of
the Second Circuit's opinions and in this Court's previous
orders, extensive discovery--consisting of 31 depositions of
Judge Beerman and his two sons, other sitting and retired
judges, active and former district attorneys, and court
personnel, and various document requests and interrogato-
ries--has supplemented those facts and they therefore are
summarized here.!
‘Before examining Sheppard's factual allegations, a brief word must be
said about the form in which those allegations have been submitted to this
Court. In addition toa 43-page Memorandum of Law in Opposition to the
Motion for Summary Judgment, Sheppard has filed a 116-page document
labeled "Plaintiff's Statement Pursuant to Local Rule 56.1 and Federal Rule
of Civil Procedure 56(E) in Opposition to Defendant's Motion for Summary
Judgment." Local Rule 56.1 requires parties opposing a motion for
summary judgment to submit "a separate,short and concise statement of
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SHEPPARD IIT BELOW
Sheppard served as a law clerk to defendant. New York
State Supreme Court Judge Leon Beerman, from 1986 until
his termination on December 11, 1990. Sheppard testified at
his deposition that on December 6, 1990, he and Judge
Beerman had a discussion concerning Judge Beerman's
contemplated ruling on a speedy trial motion in a pending
murder case, People v. Mason & Williams. According to
Sheppard, Judge Beerman asked Sheppard to draft a decision
on that motion which Sheppard believed would be unfairly
prejudicial to Williams and not based on the merits. Shep-
pard avers that Judge Beerman wanted him to draft the
decision without considering the arguments raised by the
defendant, whose papers in opposition Sheppard had not yet
seen. Upset with this request, Sheppard claims that he said
to Judge Beerman: "Well why don't you have the district
attorney's office write the decision since you don't even want
me to look at the moving papers. You just say to deny it
and that they have done a good job." (Sheppard Dep. at 127.)
During his deposition Sheppard acknowledged that this
comment was sarcastic but claimed that it was meant not as
a sign of disrespect for Judge Beerman, but as an expression
of "disrespect for what he was doing." (/d. at 128.) Sheppard
elaborated at his deposition that he felt that Judge Beerman
was railroading Williams because of the pressure exerted by
the material facts as to which it is contended that there exists a genuine
issue to be tried." (Emphasis added). Sheppard's so-called Rule 56.1
Statement, apart from the fact that it ignores the Rule's requirement that
a statement be "short and concise," is problematic for the simple reason
that it is not limited to facts as to which it is contended that no genuine
triable issue exists, but is instead rife with opinions, legal arguments, and
blatant conjectures that clearly are disputed in this litigation. Nonetheless,
because Sheppard's Memorandum of Law contains no application of the
facts in this litigation to the applicable law identified by Sheppard other
than a reference to the Rule 56.1 "Statement", this Court is forced to parse
through that "Statement" in an attempt to discern whether Sheppard has
demonstrated the existence of a genuine material issue of fact which would
render summary judgment inappropriate.
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SHEPPARD IIT BELOW
ultimate merits of the case, Sheppard avers that Judge
Beerman was telling him, in effect: "] want this case to go
to trial. I want you to dismiss the speedy trial motion, to rule
against it without a hearing regardless of the merits.’ In light
conviction, so that no one could Say there was an acquittal."
(/c/, at 144.) Sheppard also believed that Judge Beerman had
unfairly accommodated the Prosecution's request to schedule
*Sheppard's allegations concerning the pressure Judge Beerman faced
to be tough on crime were framed within what he deemed to be a more
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SHEPPARD ITT BELOW
Judge Beerman's recollection of the discussion on Decem-
ber 6 was not that he had instructed Sheppard to draft a
decision in the case, but that he had simply told Sheppard
that he wished to proceed with the case without unnecessary
delay, as the case had already been pending for several years
and as he had already denied a speedy trial motion by
Williams once before. Judge Beerman fully expected that he
and Sheppard would discuss the case the next day. (Beerman
Aff. J 7, 8.)
On the morning of December 7, 1990, Sheppard testified
that he came to chambers and informed Judge Beerman that
he refused to work on the speedy trial motion in the Wil/-
liams case because of his belief that the defendant was being
railroaded by Judge Beerman. (Sheppard Dep. at 150.)
According to Sheppard, Judge Beerman disagreed with
Sheppard's accusation that he was railroading Williams and
maintained "that all that he had told me was that he would
prefer it if the motion can be decided quickly, if it could be."
(Id. at 350.) Notes prepared by Sheppard after this conversa-
tion’ reflect that Judge Beerman told Sheppard that there was
>On December 7, following this confrontation, Sheppard prepared a
series of notes documenting what had transpired between himself and
Judge Beerman, to which repeated reference was made during Sheppard's
deposition. (Notes prepared by Sheppard on Dec. 7, 1990, marked for
identification as Def.'s Ex. 1 ("Dec. 7, 1990 Notes").) Sheppard revealed in
subsequent deposition testimony that he prepared these written notes for
two reasons: the first being that he wanted to have some insight as to
whether or not Judge Beerman was searching his office and the second
being that, assuming Judge Beerman was in fact searching his office, he
wanted to suggest that he planned to report this allegation of corruption.
(Sheppard Dep. at 247.) Besides containing a recitation of the events that
had transpired between himself and Judge Beerman, the notes included the
names of members of the Commission of Government Integrity and judges
who had been accused of corruption. (/d. at 247-49.) Sheppard testified
that he hoped that Judge Beerman would not come in to his office at all,
but that, in the event he did come in, the notes would serve both to scare
Judge Beerman and also allow Sheppard to find out whether Judge
Beerman was searching through his office because he likely would mention
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; SHEPPARD IIT BELOW
no railroading taking place, to which Sheppard responded
"that he should drop the lies and face the truth," (Jd. at 163
(quoting Dec. 7 Notes).) Sheppard then "told Judge Beer-
man] to stop fooling himself and that it was obvious what
was going on [,]" by which Sheppard meant the railroading.
At that point, Sheppard recounts that Judge Beerman
specifically told him: "Well, if that's how you feel, then you
Should look for another job." (Sheppard Dep. at 151.)*
Sheppard testified, however, that Judge Beerman informed
him that he was not being fired. (/d. at 177.) In response,
Sheppard recalled telling Judge Beerman: "Why should I
look for another job? You're the corrupt son of a bitch doing
these things, and I am innocent, and I'm just saying I don't
want to do it. So why should I have to look for another
job?"’ During his deposition, Sheppard claimed that he was
saying to Judge Beerman, in effect: "[ will expose you if you
fire me." (Sheppard Dep. at 164.) When asked whether
Sheppard meant this as a threat, he answered:
No. It was meant to try to, well, just let him know that, in
fact, that was going to happen. I also told him that if my
only choice was to take part in the misconduct or to look
for another job, then I was going to expose him. Also, if
something he saw in the notes. (/d. at 249-50, 265-66.)
told him that I had taken notes, and some other things were said, then he
ultimately said, ‘Why didn't you look for a job somewhere else?' You
know, 'Why didn't you go back to Legal Aid?'" To which Sheppard
testified that he replied: " said I wanted to work as a law secretary, and
I didn't see any reason why I shouldn't continue working there. I wasn't
doing anything wrong." (Sheppard Dep. at 161.)
°At another point in his deposition, Sheppard recalled saying: "'[T]his
whole thing would blow up if he tried to fire me, since I was not going to
be the unemployed one, where he's the corrupt judge and I'm the innocent
party.'" (/d. at 164 (quoting Dec. 7, 1990 Notes).)
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SHEPPARD IIT BELOW
he fired me, I was going to expose him. I just let him
know these were the options.
(Id. at 165.) Sheppard also testified that he was attempting
to convey to Judge Beerman: "I'm letting you know full
ahead, if you fire me or if you force me to resign, this is
going to come out." (/d. at 182.) Judge Beerman then told
Sheppard that he had misunderstood his intentions with
respect to the motion in the Williams case, but Sheppard
insisted upon his belief that Judge Beerman was treating the
defendant in that case unfairly. (Beerman Dep. at 151.)
Sheppard further testified:
Well, after I called him a corrupt son of a bitch, then he
said, he got upset, and said, 'We can't have you saying
that,’ and then I said, 'Look, you're right. I'm sorry I
called you a son of a bitch. I shouldn't have said that, but —
as far as the corruption goes, you know, you are doing
these things, you know what you told me about Williams
is not what happened, and you know it. You've been
doing things in other cases.'
(Id. at 152-153.)
At this point, Sheppard avers that Judge Beerman asked
him to provide specific examples of what, other than his
accusation concerning the Williams case, Sheppard felt Judge
Beerman had done improperly. (/d. at 154.) Judge Beerman
too recalls asking Sheppard to explain what he meant in
accusing him of being corrupt, and Sheppard answered:
"Never mind. You know what." (Beerman Dep. at 223-25,
256-57.) Sheppard recounted:
And I said, you know, 'I've seen you make decisions
where you just decide one thing contrary to what you
believe, you know. You're doing the thing on the Babar-
cich case, and, you know, you may feel it's okay when
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SHEPPARD III BE LOW
you just come out with a decision, saying things, and no
one knows what you're really doing, and you can jus‘ say
to me, 'I don't believe that Police officer,’ and then write
your opinion you do, and no one knows, and I have sat
there and watched it. But for you to say to me that the
fight we had yesterday over this never happened,' I said,
‘who do you think you're kidding? Just because you're a
judge, vou can't Say the moon is blue, and it's blue.' |
said, 'You and I both know what happened yesterday. '
(dd. at 152-53.) ,
The Babarcich case, which Judge Beerman was then
trying, was a vehicular manslaughter case in which Sheppard
also felt that Judge Beerman was improperly succumbing to
case came into chambers by himself with an article about the
arrest and told Judge Beerman: "Take a look at this, remem-
ber Babarcich, he was just arrested for killing the father of
five children in a drunk driving case... . | just want to
remind you that this was your case and he's out now on a
Stay of your sentence" (/d. at 156.) After the prosecutor left,
Sheppard testified that:
[Judge Beerman] turned to me and said he was very
angry, and he said, 'I'm going to revoke his probation.
I'm going to violate his Probation.' And then I said, ‘No,
you are not able to do that. You are not going to do that.'
And then he said, 'Don't give me any of your--' these are
his exact words-- ‘legalistic arguments. I'm going to do it.'
And I said, 'There's no way you can do it. He's not going
to be charged with a violation of probation.
(dd. at 156-57.) Sheppard testified that he believed that, after
this conversation with the Prosecutor, Judge Beerman had
tried to get the vehicular manslaughter case assigned to him
so that he could "exact revenge" on Babarcich by obtaining a
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SHEPPARD IIT BELOW
conviction, since Babarcich already had a criminal case
pending before Judge Beerman when he was rearrested. (/d.
at 153, 155- 57, 168.) Babarcich's sentence in that prior
criminal case, a low level felony drug case, had been stayed
and Babarcich had been arrested in the second case for
driving while intoxicated and killing the father of five
children. (/d. at 156.)
Besides informing Judge Beerman that he felt he had
acted improperly in the Babarcich case, Sheppard referred,
vaguely, to how he remembered other "very serious things"
Judge Beerman had done, but he did not offer any other
specific instances of misconduct. Sheppard contends that
Judge Beerman then asked him how he remembered what
had happened in the earlier Williams case, because that case
had been tried a year earlier. Sheppard replied: "That's not
the sort of thing one forgets, and any of the other miscon-
duct." (Jd. at 351.) Sheppard then informed Judge Beerman
that he had kept notes concerning Judge Beerman's miscon-
duct which he would make public if he forced him to resign.°
(Id.) Sheppard also told Judge Beerman: "My mother told
me that I'm like the snake on the flag that says ‘don't tread
on me." (Jd. at 182; Beerman Dep. at 90.)
According to Sheppard, Judge Beerman expressed shock
at these accusations and told Sheppard that he was "dis-
turbed" and "disloyal" and asked him what he planned to
report. (Sheppard Dep. at 351.) Judge Beerman's recollection
of Sheppard's demeanor during this conversation is as
follows:
You [Sheppard] were ranting and raving about irrelevant
matters and making statements that made no sense, and
just continued by telling me I couldn't fire you. I don't
know why. You didn't explain why, and that you could-
*Because Sheppard only prepared these notes after the conversation on
December 7, this statement was false.
&. “a A ESET A ee NP NI, VE SE SS
FR OES a rg AONE ae OTSA T CDE tN TA Ly ETA ice OPTI TE eR EM NE Te
- “atc - CMB eaGaai Se SFO eee oe ates etal AUS os Gaiam tae. pe 4 . .
© eee aiealde SE: a
87a
SHEPPARD IIT BELOW
n't take it any more and you couldn't stand and watch
what was going on, and I asked you, ‘I don't know what
you're talking about. What did you ever see? What did
you ever hear? What did you ever watch?’ You never
gave me any responses except repeating over and over
again. That's it.
(Beerman Dep. at 218.) Sheppard alleges that, after the
confrontation, he offered to go home so that Judge Beerman
could think about the situation. However, Judge Beerman
instructed Sheppard to remain at work, which he did.
That evening, Judge Beerman conferred with his son, an
attorney, and came to the realization that he and Sheppard
could no longer work together in view of Sheppard's
behavior and its deleterious impact on the working rela-
tionship. (Beerman Dep. at 96-97.) Judge Beerman resolved
to speak with Administrative Judge Alfred Lerner about the
incident when he returned to the courthouse on the following
Monday, December 10, 1990.
Sheppard did not appear at work on the Monday follow-
ing this incident. On that Monday, December 10th, Judge
Beerman attempted to reach Judge Lerner, but was told by
his secretary that he would not be able to participate in a
meeting until the following day. On December 11, 1990,
Judge Beerman spoke with Judge Lerner about the incident.
Judge Lerner was astonished at Sheppard's behavior and
confirmed Judge Beerman's view that Sheppard could no
longer remain in either Judge Beerman's employ or the
employ of the court system. (/d. at 378.) Judge Lerner also
told Judge Beerman that he could terminate Sheppard for
cause or for no reason at all, since Sheppard was not a civil
servant. (Lerner Dep. at 34.) At that point, Judge Beerman _
determined that Sheppard would be discharged. (Beerman
Dep. at 386.) Given Sheppard's outburst of a few days
earlier, Judge Lerner expressed concern about how Sheppard
might react to the news of his termination and suggested that
court officers deliver a letter of termination to Sheppard and
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SHEPPARD IIT BELOW
that he be asked to leave the building immediately. (Lerner
Dep. at 17-19, 27-28, 31-34.) Court officers did delive
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