Miron v. Stratford et al
Filing
213
ORDER granting in part and denying in part 199 Motion for Summary Judgment. See attached memorandum of decision. Specifically, summary judgment is GRANTED in favor of Defendants as to Plaintiff's federal constitutional privacy and intimate association claims. The Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims. The Clerk is directed to enter judgment in favor of Defendants on Plaintiff's federal claims and to close this file. Signed by Judge Vanessa L. Bryant on 9/30/13. (Ives, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHRISTIAN MIRON,
Plaintiff,
:
:
:
v.
:
:
TOWN OF STRATFORD,
:
STRATFORD POLICE DEPARTMENT, :
ORLANDO SOTO, JOSEPH MCNEIL, :
and SHAWN FARMER,
:
Defendants.
:
CIVIL ACTION NO.
3:11-CV-446 (VLB)
September 30, 2013
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. #199]
I.
Introduction
The Plaintiff, Christian Miron (“Miron”), brings this action for alleged
federal and state violations of his rights stemming from the public release of a
background investigation report prepared for the purposes of assessing Miron’s
suitability to become a police officer with the Stratford Police Department
(“SPD”). At this stage of the litigation, seven broad claims remain against
Stratford Police officers Orlando Soto (“Soto”), Joseph McNeil (“McNeil”), and
Shawn Farmer (“Farmer”) in their individual capacities only. Miron alleges claims
against the Defendants for deprivation of his constitutional privacy rights
pursuant to 42 U.S.C. § 1983 (counts 1 – 3); deprivation of his First Amendment
right to freedom of association pursuant to 42 U.S.C. § 1983 (counts 5 – 7);
violations of Connecticut’s computer crimes statute as encompassed in Conn.
Gen. Stats. §§ 53a-251 (enforced through Conn. Gen. Stat. § 52-570b) and § 53-451
(enforced through Conn. Gen. Stat. § 53-452) (counts 9 – 14); common law
1
invasion of privacy (counts 15 – 17); civil conspiracy (counts 18 – 20); and
tortious interference with business relations (counts 21 – 23). Currently pending
before the court is the Defendants’ Motion for Summary Judgment. For the
reasons that follow, the Defendants’ Motion is GRANTED IN PART AND DENIED IN
PART.
II.
Rule 56 Statements
As an initial matter, the Court notes that both the Plaintiff and the
Defendants have failed to comply with the Federal Rules of Civil Procedure for
asserting and contesting facts on a motion for summary judgment. The Federal
Rules provide that
A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials;
or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A), (B). Moreover, “[t]he court need consider only the cited
materials, but it may consider other materials in the record.” Fed. R. Civ. P.
56(c)(3).
Rule 56(a) of the Local Rules of Civil Procedure for the District of
Connecticut makes clear the procedure for prosecuting and opposing a motion
for summary judgment. A party filing a summary judgment motion must annex a
2
“concise statement of each material fact as to which the moving party contends
there is no genuine issue to be tried.” D. Conn. L. Civ. R. 56(a)1. Local Rule
56(a)2 further makes the opponent’s duty abundantly clear by stating that a party
opposing a motion for summary judgment must file an answering document
which states “whether each of the facts asserted by the moving party is admitted
or denied” and must also include a “list of each issue of material fact as to which
it is contended there is a genuine issue to be tried.” D. Conn. L. Civ. R. 56(a)2.
Each statement of material fact in a Local Rule 56(a)1 or Local Rule 56(a)2
statement, as well as each denial in a summary judgment opponent’s Local Rule
56(a)2 statement, “must be followed by a specific citation to (1) the affidavit of a
witness competent to testify as to the facts at trial and/or (2) evidence that would
be admissible at trial.” D. Conn. L. Civ. R. 56(a)3. The Local Rule further clarifies
that “[a]ll material facts set forth in [a moving party’s 56(a)1] statement and
supported by the evidence will be deemed admitted unless controverted by the
statement required to be filed and served by the opposing party.” D. Conn. L. Civ.
R. 56(a)1. Where a party fails to appropriately deny material facts set forth in the
moving party’s 56(a)1 statement, and where those facts are supported by
evidence in the record, those facts are deemed to be admitted. See SEC v. Global
Telecom Servs. L.L.C., 325 F. Supp. 2d 94, 109 (D. Conn. 2004); Knight v. Hartford
Police Dep't, 3:04CV969 (PCD), 2006 WL 1438649 (D. Conn. May 22, 2006).
The parties here have submitted Local Rule 56 Statements that cite to
evidence in the record, but that are incomplete in that they do not provide the
Court with a full view of the events forming this action. Both parties have further
3
proffered statements or portions of statements in their 56 Statements and briefs
unsupported by the evidence to which they cite. The parties also cite to evidence
in the bodies of their briefs that does not appear in their Rule 56 Statements.
Moreover, the parties have submitted hundreds of pages of evidence but cite
specifically to a mere fraction. Lastly, Defendants have made a number of
impermissible legal conclusions in their 56(a)1 Statement and Plaintiff has done
the same in his Statement of Disputed Issues of Material Fact. [See Dkt. 199-1,
Ds’ 56(a)1 Stmnt. ¶¶34, 35, 37, 38, 39, 40, 41; Dkt. 203-1, P’s 56(a)2 Stmnt.
Disputed Fact ¶12].
Thus, the court will take as true relevant facts that are supported by
admissible evidence in the record but will not credit statements or portions of
statements that are unsupported by the evidence cited. The court will cite
directly to the evidence cited by the parties where appropriate, and will consider
evidence cited in the parties’ briefs where such evidence assists the court in
understanding the facts of this case or where an omission of such fact would
materially alter the Court’s conclusions. The court will not consider evidence in
the record to which the parties have not cited, and will also disregard any legal
conclusions in the parties’ 56 Statements. The court will note disputes as to
facts.
III.
Factual Background
At all times relevant to this action, Defendant Orlando Soto was employed
as a Lieutenant in the SPD, Joseph McNeil was a Captain in the SPD and Vice
4
President of the Stratford Police Union Local 407 (the “Union”), and Shawn
Farmer was a sergeant in the SPD and the President of the Union. [Dkt. 199-1, Ds’
56(a)1 Stmnt. ¶¶3, 4, 5; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶3, 4, 5].
In or around October 2007, the Plaintiff, Christian Miron, applied for a
position as a police officer with the Stratford Police Department. [Dkt. 199-1, Ds’
56(a)1 Stmnt. ¶6; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶6]. At the time the Plaintiff applied
for this position with the SPD, his brother, James Miron, was the Mayor of the
Town of Stratford. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶7; Dkt. 203-1, P’s 56(a)2 Stmnt.
¶7]. The Plaintiff has testified and the evidence confirms that in March 2008 the
SPD extended Miron a verbal offer of employment which was later confirmed by
letter dated April 18, 2008. [Dkt. 203, P’s Opp. to Ds’ MSJ, pp. 3-4; Dkt. 203-8, Exh.
5, Miron Depo. 254:4-9; Dkt. 203-11, Exh. 8, Offer Letter].
Lieutenant Soto and Captain McNeil both sat on the Chief’s oral Interview
Panel with Christian Miron. On the attendant “Candidate Interview Sheets” dated
February 5, 2008, Soto noted that he recommended Miron for hire by the SPD, and
McNeil highly recommended him. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶33; Dkt. 203-1,
P’s 56(a)2 Stmnt. ¶33]. Sergeant Farmer testified that he agreed it would be a
good idea to have the Mayor’s brother in the SPD. [Dkt. 199-1, Ds’ 56(a)1 Stmnt.
¶35; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶35]. The record does not indicate that either
Soto or McNeil had read Miron’s background investigation report (which was
finalized on March 21, 2008) at the time they made these recommendations; and
the report itself notes that Miron’s background investigation commenced on
February 10, 2008. [Dkt. 210, Exh. K, Incident Report 08-3321, p.1 (sealed)].
5
As part of the hiring process for a position with the Stratford Police
Department, Christian Miron was required to and did sign an Authorization for
Release of Personal Information authorizing, in relevant part,
a review of and full disclosure of all records or any part
thereof, concerning myself, by and to Lt. Freer, of the Stratford
Police Department, whether said records are of a public,
private or confidential nature.
[Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶10; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶10; Dkt. 199-4,
Exh. B, Miron authorization]. This Authorization further states, in relevant part,
[t]he intent of this authorization is to give my consent for full
and complete disclosure of the records of . . . medical and
psychiatric treatment and/or consultation . . . employment and
pre-employment records, including background reports. . . . It
is the intent of this authorization to provide full and free
access to the background and history of my personal life, for
the specific purpose of pursuing a background investigation
that may provide pertinent data for the Police Department to
consider in determining my suitability for employment by that
Department. It is my specific intent to provide access to
personal information, however personal or confidential it may
appear to be, and the sources of information specifically
enumerated above are not intended to deny access to any
records not specifically mentioned herein. I hereby release
you, your organization or others from liability or damage that
may result from furnishing the information requested.
[Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶10; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶10; Dkt. 199-4,
Exh. B, Miron authorization].
At the time Mr. Miron submitted his application to the SPD, the SPD had in
place policy 7.14, regarding processing of official reports, which was issued in
1994. [Dkt. 199-1, Ds’ 56(a)(1) Stmnt. ¶19; Dkt. 203-1, P’s 56(a)(2) Stmnt. ¶19].
6
Policy 7.14 states that its purpose is to “establish procedures for reviewing,
controlling, maintaining, and retrieving all incident reports submitted by
employees of the Stratford Police Department.” [Dkt. 199-12, Exh. J, Incident
Report Policy p. 1]. It contains a section entitled “Control of Reports,” which
reads in relevant part:
Original case file reports will not be removed from the records
division for any reason. Reports will, under normal
conditions, be released by records division staff only.
Department personnel will request copies of records through
the records division commander. The records division
personnel will make the copies and deliver them to the
requesting officer as soon as possible. Copies are not to be
made without the knowledge and consent of the records
division commander or the commanding officer.
Records information will be accessible to police operational
personnel at all times. Officers may, if necessary, request
records division personnel to make copies of reports for
investigative purposes, preparation for court, or other lawful
purposes.
Access to the records will be only with the knowledge and
consent of the commanding officer when the records division
commander is not available.
Release of records will meet Freedom of Information
restrictions, as well as all Connecticut General Statutes.
Requests for Criminal History Information will be supplied
pursuant to the Freedom of Information Act in accordance with
Connecticut General Statute 1-15.
[Dkt. 199-12, Exh. J, Incident Report Policy p. 2].
Miron’s background investigation was assigned Incident Report number
08-3321 and a file with that number was created in the SPD’s Hunt computer
7
system, the system in which incident reports were generated. [See Dkt. 199-1, Ds’
56(a)1 Stmnt. ¶12; Dkt. 203-1, P’s 56(a)(2) Stmnt. ¶12; Dkt. 199-21, Exh. S, Buturla
Depo. 18:14 – 19:1; 85:16-24]. The final nine-page Incident Report, which was
filed on the Hunt system and completed on March 21, 2008, contained a narrative
by Detective Grindrod discussing, inter alia, the results of a psychological
examination and a polygraph test Miron was required to undergo in connection
with his application along with a psychologist’s recommendation as to his hire,
details about Miron’s financial and academic history, information regarding past
drug use, Miron’s medical history, and his response to a question regarding
sexual intercourse, as well as criminal and investigatory information on two of
Miron’s family members. [Dkt. 210, Exh. K, Incident Report 08-3321 (sealed); Dkt.
199-19 Exh. Q, Popik Depo. 59:7-18]. Detective Grindrod noted in the background
investigation report that Miron’s background investigation began on February 10,
2008. [Dkt. 210, Exh. K, Incident Report 08-3321, p.1 (sealed)].
In or around March 27, 2008, Incident Report number 08-3321 from the Hunt
computer system, which included Plaintiff’s background investigation report, was
sent in an envelope to Michael Henrick, the Chairman of the Town Council of
Stratford, and to other Council members, with a cover letter signed “The very
disgusted residents of the Town of Stratford.”1 [Dkt. 199-1, Ds’ 56(a)(1) Stmnt. ¶¶
8, 9, 12; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶¶ 8, 9, 12 ]. The cover letter charges that the
“amount of negative aspects” of Miron’s background investigation would have
disqualified any other applicant from employment as an officer were it not for
1
The cover letter is addressed to “Council Members and Media Personnel.”
8
Miron’s relationship to Stratford’s mayor. It notes concern that Miron’s disclosed
5% neck disability may lead to future disability pension payouts, and concern that
Miron’s use of marijuana within two years of his application and his receipt of
numerous recent traffic tickets would affect his ability to act safely as an officer
entrusted with a weapon and a vehicle. The letter further noted as cause for
concern Miron’s polygraph results, which demonstrated a “physiological
reaction” to driving after drinking and to physical condition questions which the
report noted could warrant further background investigation. The copy of the
background report sent to the Council was dated March 25, 2008 in the bottom
right corner and was nine pages long. [Dkt. 203, P’s Opp. to Ds’ MSJ, p.8; Dkt.
203-9, Exh. 6, LoSchiavo Depo. 262:21 – 263:6; Dkt. 203-3, Exh. 2, Internal
Investigation Executive Summary, p.7; Dkt. 210, Exh. K, Incident Report 08-3321
(sealed)]. It contained, along with the information noted previously, a summary of
the somewhat negative results of Miron’s psychological evaluation required as a
part of his application to the SPD, and in which the mental health professional
who performed the report recommended Miron for employment, but “with strong
reservations for a police officer position.” [Dkt. 210, Exh. K, Incident Report 083321 (sealed)].
After its release to the Council, the Council discussed Miron’s background
investigation report at a Town Council Meeting open to the public, Henrick
discussed Miron’s background report with members of the media, and various
news outlets (both print and television) featured stories about the leak of Miron’s
background report, which included discussions of the report’s contents. [Dkt.
9
199-21, Exh. S, Buturla Depo. 31:17 – 32:10; Dkt. 203-3, Exh. 2., News Articles,
pp.58-62; Dkt. 203-7, Exh. 4, Miron Aff. ¶¶12,13].
As a result of the publicity stemming from the release of his background
investigation, the Plaintiff was not placed in the Connecticut Police Academy, and
was not among the group of new officers hired by the SPD.2 [Dkt. 203-8, Exh. 5,
Miron Depo. 270:25 – 271:6; Dkt. 199-21, Exh. S, Buturla Depo. 60:15 – 61:11].
Captain Popik testified that he reviewed Miron’s background report and
discussed with Deputy Chief LoSchiavo his opinion that Miron should not be
hired because of Miron’s response during the application process to a question
about marijuana use, which Popik described as “one of the questions that
normally eliminate people from candidacy.” [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶¶21,
23; Dkt. 203-1, P’s 56(a)2 Stmnt. ¶¶21, 23; Dkt. 199-19 Exh. Q, Popik Depo. 50:9 –
52:25]. Specifically, Plaintiff admitted to smoking marijuana within two years of
applying for a position as a police officer. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶22; Dkt.
203-1, P’s 56(a)2 Stmnt. ¶22]. Captain Popik also testified that on March 21, 2008
he accessed Miron’s background report and had the report open on his computer
for two hours before locking access to it in the Hunt system; he testified that he
did not use his computer for these two hours. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶29;
Dkt. 203-1, P’s 56(a)2 Stmnt. ¶29; Dkt. 199-19 Exh. Q, Popik Depo. 58:8-13].
2
After the release of the background report, Chief Buturla testified that “based on
the disclosure of all the information, it was a mutual decision [between him and
the Plaintiff] that he would not proceed further [to the Police Academy] at that
point” as “having his background disclosed to the public could potentially give
him additional challenges as a police officer.” [Dkt. 199-21, Exh. S, Buturla
Depo. 60:15 – 61:11].
10
On March 27, 2008 Popik sent an email to several SPD officers stating that
“narratives for candidate background checks will no longer be put into the HUNT
[computer] system,” although case numbers for the backgrounds would still be
generated in the computer system. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶20; Dkt. 203-1,
P’s 56(a)2 Stmnt. ¶20].
All three Defendants admit accessing or reviewing Christian Miron’s
background investigation report. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶16; Dkt. 203-1,
P’s 56(a)2 Stmnt. ¶16; see also Dkt. 199-2, Ds’ MSJ p.12].
The Plaintiff has offered a timeline of events from March 25, 2008
supported by closed circuit video evidence and the log of access to Miron’s
background report offered into evidence by the Defendants themselves.
Although the Defendants contend that the evidence presented is not credible in
terms of time and is non-dispositive, they do not deny the existence of the
evidence.
The access log provided by Defendants indicates that Defendant Soto
accessed Miron’s background report on the Hunt system at 17:43 on March 25,
2008. [Dkt. 199-16, Exh. N, Report Access List; Dkt. 203, P’s Opp. to Ds’ MSJ, p.5].
Closed circuit video evidence presented by the Plaintiff shows that, at 17:42:323
on March 25, Defendant Soto walked to the front/sergeants’ desk, behind which
3
The Court notes that this time is before the time at which the record indicates
that Defendant Soto accessed Miron’s background report on the Hunt system. As
further discussed later in this opinion, the times printed on the access log derive
from individual computer towers in the Stratford Police Department, and not from
a centralized server or system. The towers are not synchronized.
11
Sergeant Farmer was sitting.4 [Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶1].
While at the window, the video appears to show Soto handing a slip of paper to
Farmer around 17:44:10. [Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶2]. Plaintiff
claims that this piece of paper contained the report number of Miron’s
background report; although the court notes that this slip of paper cannot be
read. According to the access log provided by Defendants, Farmer then
accessed Miron’s background report at 17:46, while Soto was present at the
window and intermittently speaking with Farmer. [Dkt. 203-1, P’s 56(a)(2) Stmnt.
Disputed Fact ¶¶3, 4; Dkt. 199-16, Exh. N, Report Access List]. Soto can be seen
leaving the front desk area at approximately 17:48. [Dkt. 203-6, P’s Exh. 3,
manually filed SPD video, camera 14 (17:48)].
At approximately 18:10, Sergeant Farmer exited the front desk area through
the back door leading to the SPD’s records area, one of two routes Farmer has
testified could be taken to reach Joseph McNeil’s office. [Dkt. 203, P’s Opp. to Ds’
MSJ, p.6; Dkt. 203-6, P’s Exh. 3, manually filed SPD video, camera 14 (18:10:28);
Dkt. 199-22, Exh. T, Farmer Depo. 88:11-19; 85:21 – 86:21]. Plaintiff alleges that
Farmer left the front desk area, walked to McNeil’s office, and handed McNeil a
slip of paper with Plaintiff’s background report number on it. [Dkt. 203-1, P’s
56(a)(2) Stmnt. Disputed Fact ¶5]. Joseph McNeil’s deposition testimony, to
which Plaintiff cites, supports this assertion:
4
Both Soto and Farmer have verified their identities on the video evidence
referenced. [[Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶1; Dkt. 199-25, Exh. W,
Soto Depo. 74:23 – 77:9; Dkt. 199-22, Exh. T, Farmer Depo. 78:8-21].
12
Q: And what did you speak with Shawn Farmer about on that
date, March 25, 2008?
A: He asked me if [Miron] was hired.
Q: What did you tell him?
A: I didn’t know.
Q: Did he say anything else to you?
A: He asked me to, gave me a case - - a slip of paper with the
case number on it, asked me to check, give my opinion.
Q: And that was the number of the Miron report?
A: Correct.
Q: And did you access the Miron report once he gave you that
number?
A: Yes.
Q: Was he in the room when you accessed it?
A: I don’t recall.
[Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶5; Dkt. 199-26, Exh. X, McNeil Depo.
29:2-17]. At his deposition, Farmer did not dispute that he may have given McNeil
the number of Miron’s background report:
Q: Did you ever give the report number for the Christian Miron
background report to any other officer at the Stratford Police
Department?
A: No.
Q: But you’re not disputing that you may have given it to
Joseph McNeil, correct?
A: I may have.
13
[Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶5; Dkt. 199-22, Exh. T, Farmer Depo.
85:9-15].
The access report provided by the Defendants indicates that McNeil
accessed the Plaintiff’s background report at 18:11 on March 25, 2008. [Dkt. 19916, Exh. N, Report Access List]. A printer log from March 25, 2008 demonstrates
that McNeil printed a nine page document at 6:12 pm (or 18:12 pm), and McNeil
testified that, at the time he accessed Miron’s background report, which the
access log demonstrates was at 18:11 pm, he printed a copy of the report.5 [Dkt.
203, P’s Opp. to Ds’ MSJ, p.7; Dkt. 203-3, Exh. 2, Printer Log p. 99; Dkt. 199-26,
Exh. X, McNeil Depo. 30:9-11]. Closed circuit video shows Sergeant Farmer
returning to the front desk area at approximately 18:12:30 on March 25 with
documents in his hand. [Dkt. 203, P’s Opp. to Ds’ MSJ, p.7; Dkt. 203-6, P’s Exh. 3,
manually filed SPD video, camera 14 (18:12:30)].
The access log demonstrates that the report was accessed once again by
Soto at 19:19; and again by McNeil – but with Grindrod’s badge number – at 20:11.
[Dkt. 199-16, Exh. N, Report Access List]. According to this access log, no one
other than Soto, Farmer, or McNeil accessed Miron’s background report on March
25. [Dkt. 199-16, Exh. N, Report Access List]. The log demonstrates that a
number of SPD employees accessed the report before this date, and that the
5
Although Plaintiff contends that this document was printed to the printer in the
SPD records room, which was the closest printer to McNeil’s office, the evidence
to which Plaintiff points does not demonstrate to which printer this document
was sent. [See Dkt. 203-5, Internal Affairs Investigation, McNeil Interview, p.213
(interview transcript page 24:4-7); Dkt. 203-3, Exh. 2, Printer Log p. 99].
14
report was last accessed on March 26, 2008: four times by Captain Popik and
once by an employee named Freer. [Dkt. 199-16, Exh. N, Report Access List].
The Plaintiff and Defendants have all presented evidence that the access
times in the access log are pulled from the computer tower of the user who
accesses a given background report and not from a network server. [Dkt. 199-20,
Exh. R, Meole Depo. 38:22 – 39:2; Dkt. 199-2, Ds’ MSJ p.15; Dkt. 203, P’s Opp. to
Ds’ MSJ, p. 8]. Plaintiff notes and the record reflects that Richard Hatcher, an
Information Technology administrator employed by the Town of Stratford in 2008,
testified that in March 2008 only a few of the Town’s Information Technology
employees had the ability to alter the time and date on the SPD’s computer
towers, a restriction that included the Chief of Police. [Dkt. 203, P’s Opp. to Ds’
MSJ, p.8; Dkt. 199-23, Exh. U, Hatcher Depo. 23:3 – 25:6]. The access log
indicates that only the three Defendants accessed Miron’s background report on
March 25.
After the release of Miron’s background report, the SPD initiated an internal
investigation of the incident. During the investigation, the copy of Miron’s
background report printed by Defendant Soto was found in his office underneath
the blotter on his desk. [Dkt. 203, P’s Opp. to Ds’ MSJ, p.10; Dkt. 199-21, Exh. S,
Buturla Depo. 38:20-25]. The investigation also found that Defendants McNeil and
Farmer had violated various SPD policies, including Policy 7.14. [Dkt. 203, P’s
Opp. to Ds’ MSJ, p.10; Dkt. 203-3, Exh. 2, Internal Investigation findings, pp.3645].
15
Criminal charges were also brought against the Defendants. DNA analysis
conducted on Defendants McNeil, Farmer, and Soto during the criminal
investigation of the release of Miron’s background report revealed that all three
Defendants were “eliminated as contributors to the DNA profile” of a swabbing
from the flap of the envelope containing the report sent to the Town Council.6
[Dkt. 199-1, Ds’ 56(a)(1) Stmnt. ¶18; Dkt. 203-1, P’s 56(a)(2) Stmnt. ¶18; Dkt. 199-11,
Exh. I, DNA and printer analysis]. A printer analysis conducted on the copies of
the report sent to the Town Council as compared to a printout of Miron’s
background report “reportedly produced on a printer used by Joseph McNeil”
concluded that “it cannot be determine [sic] if the device that produced the
printing on Submission #009 [reportedly printed on printer used by McNeil] was
used to produce the printing appearing on Submission #002, #003, #005 or #006
[copies sent to Town Council].”7 [Dkt. 199-1, Ds’ 56(a)(1) Stmnt. ¶18; Dkt. 203-1,
P’s 56(a)(2) Stmnt. ¶18; Dkt. 199-11, Exh. I, DNA and printer analysis].
Although Defendants contend that the criminal charges brought against
them were dismissed “based on the conclusive evidence of DNA analysis,” this
conclusion is not supported by the evidence to which Defendants cite. [Dkt. 199-
6
A buccal swab was obtained from each of the Defendants. [Dkt. 199-11, Exh. I,
DNA and printer analysis]. While the Defendants claim that this DNA evidence
“proved that the three defendants were excluded as possible candidates
responsible for distributing the plaintiff’s background investigation to the Town
Council,” the evidence does not support this conclusion. [Dkt. 199-1, Ds’ 56(a)1
Stmnt. ¶18].
7
While the Defendants claim that this printer evidence “proved that the three
defendants were excluded as possible candidates responsible for distributing the
plaintiff’s background investigation to the Town Council,” the evidence does not
support this conclusion. [Dkt. 199-1, Ds’ 56(a)1 Stmnt. ¶18].
16
1, Ds’ 56(a)1 Stmnt. ¶36]. As Plaintiff notes, Soto8 and McNeil9 both applied for
accelerated rehabilitation, and Farmer pled guilty to a lesser charge of disorderly
conduct in connection with the release of Miron’s background investigation
report to the Town Council. [Dkt. 203-1, P’s 56(a)2 Stmnt. ¶36; Dkt. 203-14, Exh.
11, Acc. Rehab. Apps.; Dkt. 203-13, Exh. 10, Farmer guilty plea transcript pp. 2, 6,
8, 9].
Finally, the Plaintiff and Defendants disagree on a number of issues
presented in their 56 Statements, among them: whether and to what extent the
Defendants had the authority to access background investigation reports; the
amount of access that officers in general had to reports on the Hunt system; the
credibility of the evidence as to the dates and/or times stamped on the closed
circuit videos, the SPD’s individual computer towers, and the incident reports
printed from the Hunt computer system, whether a record of access is always
created when incident reports are accessed, and whether more than one method
of printing reports from the Hunt system existed.
IV.
Legal Standard
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
8
According to his Accelerated Rehabilitation application, Soto was charged with
violations of Conn. Gen. Stat. §53a-254 (computer crime in the 3rd degree and
conspiracy to commit computer crime). [Dkt. 203-14, Exh. 11, Acc. Rehab. Apps.].
9
According to his Accelerated Rehabilitation application, McNeil was charged
with 3rd degree computer crimes and conspiracy pursuant to Conn. Gen. Stats. §§
53a-254(a)(1), 53a-251(e)(1), and 53a-48. [Dkt. 203-14, Exh. 11, Acc. Rehab. Apps.].
17
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106
(2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,
2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011
WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon
which a jury could properly proceed to find a verdict for the party producing it
and upon whom the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further support in the record,
18
summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604
F.3d 712 (2d Cir. 2010).
V.
Discussion
a. Federal Claims Pursuant to 42 U.S.C. § 1983
The Plaintiff brings two federal causes of action pursuant to 42 U.S.C. §
1983, alleging violations of his constitutional right to privacy in his personal
affairs and of his right to freedom of association. The Defendants first argue that
summary judgment of the federal claims is appropriate because the Plaintiff has
failed to specify any unlawful acts taken under color of law. Plaintiff counters
that the Defendants are liable pursuant to § 1983 because they would not have
been able to access or disseminate Plaintiff’s background report but for their
status as employees and police officers of the Town of Stratford. Defendants
further argue that Miron’s federal privacy claim must fail because his background
investigation report is a matter of public concern, and that his right to association
claim is insufficient as a matter of law.
Any person who, under color of state law, deprives another person of his or
her Constitutional rights is liable for injuries caused by the deprivation. 42 U.S.C.
§ 1983. “To establish a constitutional violation under § 1983, a plaintiff must
show that: (1) the defendants acted under color of state law; and (2) the
defendants’ actions resulted in a deprivation of plaintiff's constitutional rights.”
Bhatia v. Yale Sch. of Med., 347 F. App'x 663, 664 (2d Cir. 2009). The Plaintiff has
failed to proffer sufficient evidence that the Defendants were acting under color
19
of law when they allegedly disseminated his background report, and has also
failed to adduce sufficient evidence of either his constitutional right to privacy or
freedom of association.
b. Actions Under Color of Law
Because the U.S. Constitution regulates only the Government, not private
parties, a plaintiff alleging a § 1983 violation “must show that the allegedly
unconstitutional conduct is ‘fairly attributable’ to the state.” Cranley v. Nat'l Life
Ins. Co. of Vermont, 318 F.3d 105, 111 (2d Cir. 2003); Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999). “For the conduct of a private entity to be fairly
attributable to the state, there must be such a close nexus between the State and
the challenged action that seemingly private behavior may be fairly treated as
that of the State itself.” Cranley, 318 F.3d at 111 (internal quotation marks and
citations omitted). It is “axiomatic that under ‘color’ of law means under
‘pretense’ of law and that acts of officers in the ambit of their personal pursuits
are plainly excluded.” Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994)
(internal quotation marks and citation omitted). “An official acts under color of
state law for Section 1983 purposes when the official exercises a power
possessed by virtue of state law and made possible only because the wrongdoer
is cloaked with the authority of state law.” Zherka v. DiFiore, 412 F. App'x 345, 347
(2d Cir. 2011); Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (substantially
same). An off-duty police officer may act under color of law if his or her conduct
“invokes the real or apparent power of the police department,” or if he or she is
performing “duties prescribed generally for police officers.” Pitchell, 13 F.3d at
20
548. The color of law requirement is also met if the official “gains access to the
victim in the course of official duty” or if his “misuse of official power made the
commission of a constitutional wrong possible, even though the official
committed abusive acts for personal reasons far removed from the scope of
official duties.” U.S. v. Giordano, 442 F.3d 30, 43, 44 (2d Cir. 2006).
“[W]hile it is clear that ‘personal pursuits' of police officers do not give rise
to section 1983 liability, there is no bright line test for distinguishing ‘personal
pursuits’ from activities taken under color of law.” Pitchell, 13 F.3d at 548.
Whether specific conduct constitutes state action is a “necessarily fact-bound
inquiry.” Cranley, 318 F.3d at 112. “In conducting this [inquiry], courts often look
to the nature of the individual’s act as well as the individual’s official status.”
Zherka, 412 F. App’x at 347. Courts in this Circuit have held that the ultimate
resolution of whether a defendant acted under color of state law is a question of
law for the court. Vega v. Fox, 457 F. Supp. 2d 172, 181 (S.D.N.Y. 2006) (citing
Blum v. Yaretsky, 457 U.S. 991, 997-98 (1982) (itself noting that “whether there is
state action” is one of “several issues of law”)); Rodriguez v. Hynes, 94-CV-4578,
1995 WL 350042, at *4 (E.D.N.Y. June 8, 1995) aff'd sub nom. Rodriguez v. Weprin,
116 F.3d 62 (2d Cir. 1997); Rivoli v. Gannett Co., Inc., 327 F. Supp. 2d 233, 239
(W.D.N.Y. 2004) (collecting and citing 4th, 6th, 10th Cir. cases); Folino v. Town of
Niagara, 07-CV-407, 2007 WL 4224635 (W.D.N.Y. Nov. 27, 2007); VanBrocklen v.
Gupta, 09-CV-00897 A M, 2012 WL 7801682, at *3 (W.D.N.Y. Sept. 20, 2012) report
and recommendation adopted, 09-CV-897, 2013 WL 1194727 (W.D.N.Y. Mar. 22,
2013).
21
The Court notes that Plaintiff’s federal claims are based specifically on the
Defendants’ dissemination of his background report to the Town Council, rather
than the Defendants’ access to the report on the SPD’s computer system.10 The
record though is entirely devoid of any evidence demonstrating that the
Defendants acted under color of law when they allegedly took the action of
disclosing the report to the Council on or about March 27, 2008. Instead, the
record evidence sufficiently supports the contention that the Defendants
accessed Miron’s report on March 25, 2008 while they were on duty at the SPD,
which precludes this court from finding that no genuine issue of material fact
exists as to whether the Defendants then disseminated the report to the Town
Council around two days later.
No evidence in the record speaks to the actions taken in disseminating
Miron’s background report. There is no indication that the Town Council
members to whom the report was released gained access to the report through
any official channels. No evidence in the record demonstrates that the
Defendants used their authority as police officers to allow them access to the
10
Plaintiff’s Opposition to the Defendants’ Motion for Summary Judgment
contains a section specifically entitled “Defendants’ Dissemination of Plaintiff’s
Confidential Background Report Deprived Plaintiff Of His Constitutionally
Protected Right to Privacy in Violation of 42 U.S.C. 1983,” which alleges that
“Plaintiff has proffered evidence that Defendants disseminated materials relating
to extremely private and sensitive aspects of his personal life …” [Dkt. 203, P’s
Opp. to Ds’ MSJ, p.15 (emphasis added)]. This section references the
dissemination of Plaintiff’s report throughout as the unlawful behavior that forms
the basis of Plaintiff’s privacy claim. Plaintiff also bases his freedom of
association claim on the dissemination of his background information rather than
on the Defendants’ access of it. [See Dkt. 203, P’s Opp. to Ds’ MSJ, p.21.3
“Defendants’ Dissemination of Plaintiff’s Confidential Background Report
Deprived Plaintiff Of His Constitutionally Protected Right to Freedom of
Association …”; and throughout, pp. 21-23].
22
parties to whom the report was distributed, or that the Defendants were either on
or off duty at the time they did so. There is no evidence that the Defendants held
themselves out as police officers while they were disseminating the report by
wearing their police uniforms, identifying themselves as members of the SPD, or
by otherwise distinguishing themselves from private citizens. No affirmations,
depositions, or other witness statements from Council members or others with
personal knowledge shed any light on how this report was disseminated, or
indeed by whom or when, nor could they as such witness statements do not
appear in the record before the court. Nor is there any indication that the
envelope in which the cover letter and report were sent was either mailed from or
bore the return address or seal of the Stratford Police Department. The cover
letter is written on plain paper instead of on police letterhead and purports to be
authored by “The very disgusted residents of the Town of Stratford.” In short,
there is nothing in the record upon which this court can base a conclusion that
the Defendants acted under color of state law when they disseminated Miron’s
background report.
Moreover, assuming arguendo that one or more of the Defendants did
disseminate Plaintiff’s background report to the Council, and that they were off
duty at the time, this case bears little resemblance to Circuit precedent under
which off duty officers have acted under color of law by conveying the actual or
implied authority of their positions to their victims in a manner out of line with
their professional duties. Here, there is no indication that the Defendants held
themselves out as police officers in order to accomplish their goal of publicizing
23
Miron’s background report, or that they threatened the weight of their authority to
effect their ends. See, e.g., Giordano, 442 F.3d at 47 (mayor convicted of counts
stemming from his sexual abuse of two minors acted under color of state law
where he “actively and deliberately used his apparent authority as mayor to
ensure that the victims did not resist or report the ongoing abuse”); Jocks v.
Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (holding that off-duty police officer
acted under color of law when he identified himself as a police officer and drew
his gun on a motorist with whom he had an argument over the use of a roadside
payphone); Hayut v. State Univ. of New York, 352 F.3d 733 (2d Cir. 2003) (state
university professor acted under color of state law in sexually harassing student
in light of professor's power and authority over student); Rivera v. La Porte, 896
F.2d 691, 695–96 (2d Cir. 1990) (holding that off duty corrections officer acted
under color of law when he arrested and assaulted driver following private
argument during traffic jam); Rosenberg v. City of New York, 09-CV-4016 CBA LB,
2011 WL 4592803, at *7 (E.D.N.Y. Sept. 30, 2011) (in the context of harassment
among public co-workers, “where the harassment in question does not involve
use of state authority or position, the harasser is generally found not to be acting
under color of state law.”).
Proof of action under color of state law is an essential element of a claim
brought under 42 U.S.C. § 1983. Plaintiff has failed to present evidence that the
Defendants disseminated his background report under color of state law, and
thus has failed to prove a necessary element of his federal claims. In sum, no
evidence in the record exists such that this court could conclude that the
24
Defendants’ alleged dissemination of Plaintiff’s background report was anything
other than the private appropriation of a public record. “A defendant need not
prove a negative when it moves for summary judgment on an issue that the
plaintiff must prove at trial. It need only point to an absence of proof on plaintiff's
part, and, at that point, plaintiff must ‘designate specific facts showing that there
is a genuine issue for trial.’” Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100,
111 (2d Cir. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
However, Plaintiff has pleaded and argued that the Defendants’ accessing
of Miron’s report constituted action under color of state law, and the court agrees.
Here, Miron authorized the disclosure of his personal information to the SPD
solely for its evaluation of his suitability to serve as a Stratford police officer and
not for purposes of public dissemination. There is no evidence that any
Defendant accessed Miron’s background report in furtherance of his official duty
to evaluate Miron’s suitability as a candidate for employment. Further, the
Defendants were only able to access Miron’s background investigation report
because of their official positions as SPD police officers, as non-employees of the
SPD did not have access to the Hunt computer system. Therefore, to the extent
that the Defendants were responsible for its dissemination, the Defendants acted
under color of state law for Section 1983 purposes because they were only able
to access Miron’s background investigation report through abuse of their official
power. This conclusion, though, is not dispositive as it is but one of two prongs
in the § 1983 analysis for which a genuine issue of material fact must be evident,
25
and Miron’s federal constitutional claims fail under the second prong of this
analysis.
c. Deprivation of Constitutional Rights
Even if the Plaintiff has satisfied his burden of proving that the Defendants
acted under color of state law in disseminating his background information, to
establish a constitutional violation under § 1983, Miron must also demonstrate
that the Defendants’ actions resulted in a deprivation of his constitutional rights,
namely his right to privacy and his right to freedom of association. See Bhatia,
347 F. App'x at 664. Miron has not met this burden.
i. Right to Privacy
The Defendants urge the court to grant summary judgment in their favor
because the Plaintiff has failed to proffer sufficient evidence that the Defendants
acted with callous indifference and because the information in Plaintiff’s
background investigation report is a matter of public concern. Plaintiff counters
that the Defendants did not have the unilateral right to release his background
report without first affording him notice or an opportunity to object to the release,
and also that the release of this report violated his constitutional right to privacy
because the report contains “extremely private and sensitive aspects of his
personal life, including financial history, familial history, academic history,
medical history, information related to a psychological evaluation, as well as
questions directed toward past drug use and sexual encounters.” [Dkt. 203, P’s
Opp. to MSJ, p.16].
26
“In two cases decided more than 30 years ago, [the Supreme] Court
referred broadly to a constitutional privacy ‘interest in avoiding disclosure of
personal matters.’” NASA v. Nelson, 131 S. Ct. 746, 751 (2011) (quoting Whalen v.
Roe, 429 U.S. 589, 599 (1977) and Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 457
(1977)).11 The Second Circuit has since recognized the existence of such a right,
which more precisely “can be characterized as a right to ‘confidentiality,’ to
distinguish it from the right to autonomy and independence in decision-making
for personal matters” also recognized in Supreme Court precedent. Doe v. City of
New York, 15 F.3d 264, 267 (2d Cir. 1994); see also Matson v. Bd. of Educ. of City
Sch. Dist. Of New York, 631 F.3d 57, 63-64 (2d Cir. 2011) (“As a general matter,
there exists in the United States Constitution a right to privacy protecting the
individual interest in avoiding disclosure of personal matters.”) (internal
quotation marks omitted). The right to privacy remains “one of the less
delineated constitutional guarantees.” Statharos v. New York City Taxi &
Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999). Potential violations of this
right to privacy in personal information and matters have been analyzed as
violations of the Fourteenth Amendment. See Men of Color Helping All Soc., Inc.
v. City of Buffalo, 12-3067-CV, 2013 WL 3285208 (2d Cir. July 1, 2013); Palkimas v.
Bella, 510 F. App'x 64 (2d Cir. 2013) (characterizing right as “Due Process right to
privacy”); Sealed Plaintiff No. 1 v. Farber, 212 F. App'x 42 (2d Cir. 2007).
11
The Supreme Court has recently declined to conclusively confirm the existence
of a constitutional right to privacy in personal matters. In N.A.S.A., the Court
“assume[d], without deciding, that the Constitution protects a privacy right of the
sort mentioned in Whalen and Nixon.” N.A.S.A. v. Nelson, 131 S. Ct. at 751.
27
Two distinct standards exist in the Second Circuit for analysis of alleged
breaches of the right to confidentiality. “When legislation burdens
constitutionally protected privacy rights, we will apply intermediate scrutiny and
uphold the statute only if a substantial government interest outweighs the
burdened privacy right.” O'Connor v. Pierson, 426 F.3d 187, 202-03 (2d Cir. 2005).
See also Statharos, 198 F.3d at 323 (applying intermediate scrutiny to financial
disclosure law); Bertoldi v. Wachtler, 952 F.2d 656 (2d Cir. 1991) (same); Barry v.
City of New York, 712 F.2d 1554, 1559 (2d Cir. 1983), cert. denied, 464 U.S. 1017
(1983) (same). “Whether a state actor violated a plaintiff’s constitutional right to
privacy always entails a balancing of the individual’s right to keep personal
information private and the government’s sufficient interest in disclosing or
disseminating that information. That is, any right to preclude its disclosure is not
automatic and has to be balanced against the government’s justification for
disclosure or dissemination in order to determine whether the right to privacy is
violated.” Palkimas, 510 F. App'x at 66. Thus, “[u]nder intermediate scrutiny, if [a
law or regulation] is ‘designed to further a substantial governmental interest and
does not land very wide of any reasonable mark in making its classifications,’ it
must be upheld.” Statharos, 198 F.3d at 324.
However, “[t]o prevail when challenging executive action that infringes a
protected right, a plaintiff must show not just that the action was literally
arbitrary, but that it was ‘arbitrary in the constitutional sense,’ … Mere irrationality
is not enough: ‘only the most egregious official conduct,’ conduct that ‘shocks
the conscience,’ will subject the government to liability for a substantive due
28
process violation based on executive action.” O'Connor, 426 F.3d at 203 (internal
citations omitted). See also Farber, 212 F. App'x at 43 (“A violation of the
Fourteenth Amendment’s due process clause in the context [of a violation of
privacy in regard to personal matters] requires that [the defendant]’s conduct
‘shock the conscience.’”). Intentional actions or those taken with “deliberate
indifference” may give rise to a constitutional violation. Farber, 212 F. App'x at
43.
The Second Circuit has recognized a constitutional right to privacy in
personal matters or information in very limited circumstances. Constitutional
protection exists in this Circuit for information regarding the state of one’s health,
but within “narrow parameters.” Matson, 631 F.3d at 65. The extent of the privacy
right varies with the nature of the medical condition; “[c]onfidential medical
conditions are those that are ‘excruciatingly private and intimate in nature’ such
as those ‘likely to provoke ... an intense desire to preserve one's medical
confidentiality.’” Id. at 64 (citing Powell v. Schriver, 175 F.3d 107, 111 (2d Cir.
1999)). Such a privacy right exists in the Second Circuit, for instance, with regard
to a person’s HIV status or transsexualism, but not with regard to a diagnosis of
fibromyalgia. Matson, 631 F.3d at 64, 67 (“although fibromyalgia is a serious
medical condition, it does not carry with it the sort of opprobrium that confers
upon those who suffer from it a constitutional right of privacy as to that medical
condition.”); Powell, 175 F.3d 107 (transsexualism entitled to privacy protection);
Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994) (HIV status entitled to privacy
protection). The Second Circuit has also recognized that “a person’s status as a
29
juvenile sex abuse victim is clearly the type of ‘highly personal’ information that
we have long recognized as protected by the Constitution from governmental
dissemination absent a substantial government interest in disclosure.” Farber,
212 F. App'x at 43.
The right to privacy in personal matters has often been analyzed in the
context of laws and regulations that require the disclosure of personal financial
information to the government. See Barry, 712 F.2d 1554; Eisenbud v. Suffolk
County, 841 F.2d 42 (2d Cir. 1988); Bertoldi, 952 F.2d 656; Statharos, 198 F.3d 317.
The Second Circuit has routinely upheld regulations that require financial
disclosures of both public employees and private employees regulated by the
government on the grounds that the public interest in a transparent government
that takes steps to deter corruption and conflicts of interest outweighs an
individual’s right to absolute privacy of financial information. The Second Circuit
has stated that “[w]e do not think that the right to privacy protects public
employees from the release of financial information that is related to their
employment or indicative of a possible conflict of interest. Nor do we think the
release of information that is not ‘highly personal’ rises to the level of a
constitutional violation.” Barry, 712 F.2d at 1562. Where a financial disclosure
statute’s purpose is to “deter corruption and conflicts of interest among
[municipal] officers and employees, and to enhance public confidence in the
integrity of its government,” such a statute furthers a “substantial, possibly even
a compelling, state interest.” Id. at 1560. Such laws “derive considerable
strength from the benefits widely felt to be derived from openness and from an
30
informed public,” as there is a “compelling state interest in the maintenance of an
honest civil service … and [ ] an informed public is essential to the nation’s
success, and a fundamental objective of the first amendment.” Id. at 1560
(citations omitted). See also Bertoldi, 952 F.2d at 660 (“It is the interest in
reducing the risk of corruption and conflict of interest in the discharge of
important public and quasi-public responsibilities in order to enhance public
confidence in the integrity of government. We have repeatedly recognized that
this is the state interest advanced by financial disclosure laws and have also
recognized the substantiality of that interest.”). In examining such disclosure
laws, courts must examine “whether the duties of the categories of employees
subject to such requirements were of sufficient public responsibility and
sensitivity so that disclosure furthers the substantial state interest of lessening
the apprehended risks of corruption or conflict of interest.” Id. at 660.
The Second Circuit has additionally noted that financial disclosure laws
that contain provisions protecting against the public disclosure of particularly
sensitive information – such as provisions that allow an individual to plead a
compelling privacy interest in certain information such that limited disclosure to
the public is warranted – comply with constitutional privacy restrictions. Barry,
712 F.2d at 1561, 1563 (privacy claim procedures “strengthened” financial
disclosure statute’s constitutionality, but “in any event, … the City’s interest in
public disclosure outweighs the possible infringement” of privacy rights).
First, Miron’s argument that his privacy rights were infringed because the
Defendants did not afford him an opportunity to or a mechanism by which he
31
could object to the public release of his information is inapposite as the
dissemination of Miron’s background report to the public did not occur pursuant
to a law or regulation requiring disclosure of this information to a government
entity, but rather was allegedly the result of rogue actions by municipal
employees. Thus, the court’s analysis is subject to the “shocks the conscious”
test employed when information is disclosed by individual government entities
and a plaintiff does not seek to challenge a regulation or law requiring disclosure.
Second, Miron’s broad argument that the Defendants violated his
constitutional privacy interests by releasing his background report in its entirety
must fail as (1) Miron has not proffered sufficient evidence that the majority of the
information contained in the report is so personal or intimate that it would be
entitled to constitutional protection, and (2) even if portions of the report are
constitutionally protectable, Miron cannot overcome the public interest involved
in the content of his background report as a whole or in the specific information
revealed. As well as relating to the Fourteenth Amendment’s amorphous
protection of personal information, this case also implicates the Defendants’
rights to First Amendment freedom of speech. These two interests must be
balanced. “The mere fact of government employment does not result in the
evisceration of an employee’s First Amendment rights. . . . [F]ew values are more
carefully and thoroughly protected than the citizen's right to speak his mind on
matters of public concern without interference by the government.” Johnson v.
Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (citations omitted). “Speech by a public
employee is on a matter of public concern if it relates ‘to any matter of political,
32
social, or other concern to the community.’” Id. at 112 (quoting Connick v. Myers,
461 U.S. 138, 146 (1983)). “Whether an employee’s speech addresses a matter of
public concern is a question of law for the court to decide, taking into account the
content, form, and context of a given statement as revealed by the whole record.”
Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999).12
Here, Mr. Miron applied to become a police officer in the town in which his
brother served as Mayor. He received a verbal offer of employment with the SPD
in March, 2008 and received a letter confirming his offer of employment on April
18, 2008. His background investigation report was released to the Town Council
on or about March 27, 2008. The cover letter that was sent to the Town Council
along with Miron’s background report – which both the Plaintiff and the
Defendants reference in their briefs and their 56(a) statements – charges the
Stratford Police Department and Mayor Miron’s administration with “corruption”
and further accuses the SPD of imminently employing Christian Miron on the
basis of nepotism and in contradiction of various red flags in his background
investigation report. [Dkt. 199-10, Exh. H, Cover Letter to Council]. The letter
charges that the “amount of negative aspects” of Miron’s background
investigation would have disqualified any other applicant from employment as an
officer, and notes concern that Miron’s disclosed 5% neck disability may lead to
future disability pension payouts. It also expresses concern that Miron’s use of
marijuana within two years of his application and his receipt of numerous recent
traffic tickets would affect his ability to act safely as an officer entrusted with a
12
The referenced cases occurred in the context of government employee claims
of First Amendment retaliation for speech purported to be of public concern.
33
weapon and a vehicle. The letter further noted as cause for concern Miron’s
polygraph results, which demonstrated a “physiological reaction” to driving after
drinking and to physical condition questions which the report noted could
warrant further background investigation. Further, the background report itself
contains a summary of the fairly negative results of Miron’s psychological
evaluation, in which the mental health professional who performed the evaluation
recommended Miron for employment, but “with strong reservations for a police
officer position.” [Dkt. 210, Exh. K, Incident Report 08-3321 (sealed)].
Hiring officers with admitted permanent disabilities and turning a blind eye
to recent and frequent driving infractions by applicants for positions which
require them to drive public police vehicles are issues that implicate public
safety. Municipal government practices or customs which facilitate such hiring
implicate the trust the public places in its municipal government and in its peace
officers. As such, the concerns raised in the cover letter, including those of
corruption and its effects on the SPD’s ability to hire competent officers who
would not pose a risk to public safety, are quintessentially matters of public
concern in line with case law in this Circuit, especially where the department
charged with protecting the public is the agency charged with violating this
mandate by way of improper hiring practices. See, e.g., Ganim, 342 F.3d at 112
(“discussion regarding current government policies and activities is perhaps the
paradigmatic matter of public concern.”) (citation omitted); Griffin v. City of New
York, 880 F. Supp. 2d 384, 401 (E.D.N.Y. 2012) (“Speech relating to the functioning
of government is of particularly great import to the public.”); Anemone v. Metro.
34
Transp. Auth., 410 F. Supp. 2d 255, 265 (S.D.N.Y. 2006) (“Speech relating to public
corruption and/or a public entity’s failure to adequately or properly investigate
such corruption lies comfortably within these categories of protected
expression.”); Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) cert. denied, 132
S. Ct. 1634, 182 L. Ed. 2d 233 (2012) (“Exposure of official misconduct, especially
within the police department, is generally of great consequence to the public;”
holding that speech on police malfeasance consisting of the use of excessive
force is a matter of public concern) (quoting Branton v. City of Dallas, 272 F.3d
730, 740 (5th Cir. 2001)).
This court must therefore weigh the public interest in disclosure of such
matters of public concern against the need for continued confidentiality of
Miron’s personal information as contained in his background investigation report.
The court starts with the broad categories of information present in the
background report that could merit constitutional protections in certain
circumstances: personal financial information and information about the state of
one’s health. Here, none of the information that falls into these two categories
rises to the levels necessary under current Circuit precedent to warrant
constitutional protection. As noted previously, the Second Circuit protects
information regarding the state of one’s health, but only for medical conditions
that are “excruciatingly private and intimate in nature such as those likely to
provoke ... an intense desire to preserve one's medical confidentiality,” such as
HIV and transsexualism. Matson, 631 F.3d at 64 (citation omitted). Here, although
Miron claims that his medical information is entitled to constitutional protection,
35
his background report contains information relating only to a 5% permanent
disability in his neck as a result of a car accident and of a pulled muscle in his leg
that healed during the time his application to the SPD was pending. Neither of
these conditions is sufficiently serious to warrant constitutional protection.
Miron also claims that Defendants should be constitutionally liable for the
disclosure of information related to the psychological evaluation he underwent to
determine his suitability for employment with the SPD. While the Supreme Court
has long recognized the need for confidentiality in psychological treatment, see
Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (recognizing a federal privilege
protecting confidential communication between a patient and a licensed
psychotherapist or social worker), the psychological information contained in
Miron’s background report is easily distinguishable. While the psychotherapistpatient privilege “serves the public interest by facilitating the provision of
appropriate treatment for individuals suffering the effects of a mental or
emotional problem,” id. at 11, a psychological evaluation performed solely for the
purposes of determining suitability for employment contains no such implication
of treatment and does not presuppose a relationship between the therapist and
the candidate for public employment. Indeed, the results of Miron’s
psychological evaluation in the background report concern only the
professional’s assessment of Miron’s suitability to perform police work, an
assessment in which the public has a concern. As the Second Circuit has
recently noted, “[l]ay people are not qualified to determine other people’s medical
fitness, whether physical or mental; that is what independent medical experts are
36
for.” O'Connor, 426 F.3d at 202. The lay public, then, which may not determine
mental fitness for duty, have an interest in the ultimate conclusion a psychologist
or mental health professional may make as to a candidate’s fitness to perform
sensitive police work on the public payroll. No mental diagnosis is implicated in
Miron’s background report, nor is any past or ongoing psychological treatment
implied or recommended. The psychological evaluation merely lists the
psychologist’s assessment of whether Miron is a suitable candidate for police
work. The public interest in assuring that candidates who have been offered
employment with the police department have indeed passed the psychological
evaluations to which they are subjected is not overcome by a candidate’s privacy
interest in keeping the results of such an evaluation secret where, as here, the
professional expresses reservations about a candidate’s suitability for the job.
Likewise, the information in Miron’s background report relating to his
financial history – namely his credit score and information regarding small
delinquent accounts in collection – is not sufficiently intimate or particularized to
overcome the public’s entitlement to be informed about potential conflicts of
interest or the potential for corruption among police officers. As the Second
Circuit has often made clear in the context of financial disclosure requirements,
the public has an interest in the release of financial information that is related to a
public employee’s employment or indicative of a possible conflict of interest. See
Barry, 712 F.2d at 1562. Information revealing that a police officer owes financial
debts may be relevant to whether an officer will be tempted to wield his authority
in an improper manner, leading to a lack of public trust in law enforcement and/or
37
municipal government. As such, disclosure of the financial problems of a police
officer candidate who has received an offer of employment falls squarely within
the category of information whose “disclosure furthers the substantial state
interest of lessening the apprehended risks of corruption or conflict of interest.”
Bertoldi, 952 F.2d at 660.
Miron also claims a violation of his constitutional right to privacy in the
disclosure of his responses to questions about his past drug use and public
sexual encounters. Miron, though, has proffered no argument as to why these
two categories of responses are protectable aside from his conclusory allegation
that they are private matters. Neither, though, is salacious or scandalous enough
to prompt the type of privacy protection Miron posits. Miron’s disclosure of a
youthful indiscretion in an automobile (comprising two lines of the nine page
background investigation report), may merit the title of salacious, but such acts
are commonly depicted in modern culture and have become commonplace in the
public psyche -- hardly the type of highly intimate or stigmatizing personal
information that merits constitutional protection. Further, the sexual conduct
information in the report is scant; this court would be hard-pressed to conclude
that, with nine pages of background information to ponder (most of which
consists of positive employer and reference reviews), two lines of non-descriptive
information would merit a reaction larger than a mere ripple.
Moreover, Miron’s disclosure about his past marijuana use within two years
of his application to become a Stratford Police Officer, as noted previously, is of
public concern not outweighed by Miron’s interest in maintaining the privacy of
38
this admission. Nor is it particularly derogatory given current mores as reflected
in the decriminalization of marijuana in the quantities Miron admitted to having
used.
Similarly, the review and release of Miron’s academic information as a part
of his background investigation report is relevant to the public’s informed review
of police officer candidates and may speak to Miron’s suitability for the position
for which he applied. Although the academic information in Miron’s report is
largely unflattering, it is not universally so. Academic history is a routine
screening tool for both public and private employment. The simple release of
Miron’s academic information, then, is unlikely to cause irreparable harm in any
area in which it would not already have been considered. In other words,
because employers largely request academic records to determine eligibility for
employment, the public release of this information would not divulge anything to
a prospective employer that the employer would not be entitled to independently
request of a candidate. Where the Second Circuit has not afforded wide
constitutional protection to academic information, this court declines to expand
the understanding of the right to privacy in personal information.
Furthermore, although Miron claims that disclosure of his “familial history”
violates his right to confidentiality, this information is a matter of public record.
“[T]here is no question that an individual cannot expect to have a constitutionally
protected privacy interest in matters of public record.” Doe v. City of New York,
15 F.3d 264, 268 (2d Cir. 1994). As far as this court can discern, the only familial
history information in Miron’s background report relates to the potentially
39
criminal activities of two of Miron’s family members. The background report
explicitly notes that the activities of one family member led to her arrest, which
was publicized in the media. Additionally, the court takes judicial notice of the
fact that Miron’s father, the second family member featured in his background
investigation, was sued by the State Attorney General and the Department of
Consumer Protection in connection with unlawful activities relating to his
business shortly after Miron’s background report was released. See State of
Connecticut v. Lakeview Monument Co., et al, HHD-CV08-4036659-S, available at
http://civilinquiry.jud.ct.gov/GetDocket.aspx. The Office of the Attorney General
published a press release dated April 8, 2008 describing the suit. See
http://www.ct.gov/ag/cwp/view.asp?Q=412822&A=2795, “Press Release: Attorney
General, DCP Sue Defunct Bridgeport Headstone Company For Failure To Provide
Monuments.” Miron’s background report references the investigation of his
father that eventually led to the suit. Such public information is not
constitutionally actionable.
Given the narrow scope of the right to privacy of one’s personal
information in the Second Circuit, and given that none of the information revealed
in Miron’s report rises to the level of intimacy of those realms of public
information protected in this Circuit, this court declines to create new
constitutional privacy protections to encompass Miron’s academic or social
history. Nor does Miron’s financial or medical information meet the threshold for
constitutional protection within this Circuit. Put succinctly, public disclosure of
the personal information in Miron’s background report, although potentially
40
embarrassing to Mr. Miron, is not entitled to the very narrow constitutional
protection afforded by the 14th Amendment’s right to privacy where the
information is of relevance to the public’s knowledge and review of the
credentials of those candidates for hire into positions of trust and authority on
the police force. Moreover, as public information, the familial information in
Miron’s report is not protectable as a matter of law.
Consequently, the scales do not tip in Plaintiff’s favor. The release of Mr.
Miron’s background report or the specific information contained therein does not
rise to the level of a constitutional deprivation of the right to privacy where he
received an offer of employment despite valid public concerns as to his suitability
to become a police officer as contained in the background report. That is not to
say that the release of another candidate’s report – a candidate, for instance,
whose application does not raise the red flags that Miron’s report generated, or
whose report raises such issues and results in the candidate’s non-hire – would
not be a constitutional violation. To the contrary, it is probable that the release of
a background report containing, for instance, negative financial or psychological
evaluation information of a candidate who was not offered a position on the force
would merit constitutional protection and would not be abrogated by any public
interest in the content of the report. Indeed, absent an offer of employment to Mr.
Miron, it is unlikely that the Defendants would prevail on an argument that the
public had an interest in knowing the contents of his background report. Those
particular circumstances do not present themselves here. Instead, the crux of
this case is that the Plaintiff – the brother of the Mayor of the town in which he
41
applied to become a public police officer – received an offer of employment from
the SPD despite the inclusion in his background report of information that bore
negatively on his suitability to become a police officer. In sum, as Miron’s
background report is not so personal as to overcome the public’s concern in its
contents, its release to the public does not “shock the conscience.” O'Connor,
426 F.3d at 203; Farber, 212 F. App'x at 43.
Miron has thus not established a violation of his right to privacy under the
Fourteenth Amendment.
ii. Freedom of Association
Counts 5, 6, and 7 allege that Defendants, in their individual capacities,
undertook “an intentional effort to deprive Plaintiff of his freedom of familial
association” with his brother, James Miron, in contravention of the First
Amendment and pursuant to 42 U.S.C. § 1983, which irrevocably harmed his
employment opportunities with the SPD. [Dkt. 176, 3rd Am. Compl. ¶¶89, 90, 97,
98, 105, 106]. As with Plaintiff’s privacy claim, in order to make out a violation of
42 U.S.C. § 1983, Miron must demonstrate the deprivation of his constitutional
right to freedom of association by way of state action. The Defendants argue that
Plaintiff’s claim must fail because he has failed to allege any facts supporting his
right to association claim, has failed to denote how the Defendants’ actions have
interfered with this relationship with his brother, James Miron, and has not
demonstrated that he was not hired by the SPD as a result of his familial
relationship with his brother. The Plaintiff counters that he has proffered
42
sufficient evidence of the existence of a protected relationship. He also contends
that, “[a]s a result of the Defendants’ disagreement with the actions of Mayor
James Miron, Defendants violated Plaintiff’s constitutional rights for the purpose
of personal and political gain, as well as to punish Plaintiff for the fact that his
brother was the Mayor of Stratford,” as plainly evidenced by the cover letter sent
to the Council, which Plaintiff characterizes as a personal attack that occurred
solely due to the Miron brothers’ sibling relationship. The court concludes that
even where Plaintiff has successfully alleged state action pursuant to § 1983, he
has failed to allege a deprivation of his right to intimate association.
A constitutionally protected freedom of association exists in two distinct
contexts: (1) a right to enter into and maintain certain intimate relationships and
(2) a right to associate with others for purposes of engaging in activities
traditionally protected by the First Amendment, such as speech, assembly, the
exercise of religion, and other expressive conduct. See Roberts v. U.S. Jaycees,
468 U.S. 609, 617-18 (1984); Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999). In
recognizing this right, the Supreme Court emphasized that protection of certain
relationships is tantamount: “choices to enter into and maintain certain intimate
human relationships must be secured against undue intrusion by the State
because of the role of such relationships in safeguarding the individual freedom
that is central to our constitutional scheme.” Roberts, 468 U.S. 609, 617-18.
“[T]he source of the intimate association right has not been authoritatively
determined,” although it may lie under the First and Fourteenth Amendments,
depending on the context. Adler, 185 F.3d at 42, 43; see also Patel v. Searles, 305
43
F.3d 130, 133 (2d Cir. 2002) (“Although clearly recognized in a general way by the
Supreme Court and in scholarly writings, all of its boundaries have not yet been
fixed”). Where the government seeks to regulate an individual’s right to decide
whom to marry, for instance, such regulation “clearly require[s] assessment
under the substantive due process component of the Fourteenth Amendment.”
Id. at 44. The Second Circuit has also recognized the varied standards used to
determine whether this right has been violated:
Sometimes court opinions suggest that an intimate
association right is not violated unless the challenged action
has the likely effect of ending the protected relationship, … or
unless affecting the relationship was the purpose of the
challenged regulation, .... In other cases, the opinions consider
whether the challenged action alleged to burden an intimate
association is arbitrary or an ‘undue intrusion’ by the state
into the marriage relationship.
Adler, 185 F.3d at 43-44.
Nonetheless, the Second Circuit has concluded that though the matter is
not free from doubt, “a spouse’s claim that adverse action was taken solely
against that spouse in retaliation for conduct of the other spouse should be
analyzed as a claimed violation of a First Amendment right of intimate
association.” Id. at 44 (holding that claim that husband was terminated from
public employment in retaliation for wife’s lawsuit alleging employment
discrimination was rightly brought under First Amendment as an intimate
association claim). See also Agostino v. Simpson, 08-CV-5760 (CS), 2008 WL
4906140 (S.D.N.Y. Nov. 17, 2008) (“Where a plaintiff is allegedly retaliated against
for the First Amendment activities of a family member and asserts a claim based
44
on intimate association, the courts in this Circuit have considered the claim as
deriving from the First Amendment.”); Talley v. Brentwood Union Free Sch. Dist.,
08 CV 790 DRH ETB, 2012 WL 3841396 (E.D.N.Y. Sept. 5, 2012) (First Amendment
analysis applies to daughter’s claim that she was not hired for teaching position
because of animus toward father’s conduct as school board member); Jenkins v.
Tyler, 167 F. Supp. 2d 652, 653 (S.D.N.Y. 2001) (son’s termination so as to avoid
appearance of impropriety because of mother’s position as member of board of
directors warranted analysis under First Amendment); Sutton v. Vill. of Valley
Stream, N.Y., 96 F. Supp. 2d 189 (E.D.N.Y. 2000) (“Where, however, there is a claim
that the exercise of one spouse's First Amendment right harms a right of intimate
association, that right was held to be properly analyzed as the deprivation of a
right under the First Amendment,” which encompasses father-son relationship);
Rajaravivarma v. Bd. of Trustees for Connecticut State Univ. Sys., 862 F. Supp. 2d
127, 168 (D. Conn. 2012) (VLB) (employing the Adler standard and analyzing
under First Amend. claim that husband suffered retaliation for lawsuit brought by
his wife against the state). “Where the intimate association right at issue is tied
to familial relationships and is independent of First Amendment retaliation
concerns, however,” an analysis under the framework of the Fourteenth
Amendment right to substantive due process is proper. Garten v. Hochman, 08
CIV. 9425 (PGG), 2010 WL 2465479, at *4 (S.D.N.Y. June 16, 2010).
Neither of the parties dispute that Plaintiff’s intimate association claim is
properly analyzed under the First Amendment and both parties cite the Second
Circuit’s decision in Adler and its progeny in support of their positions. Nor do
45
the parties dispute that Christian Miron’s relationship with his brother warrants
protection under the First Amendment. Although this element is undisputed, the
Court notes that the Supreme Court has recognized that associations warrant
varying degrees of protection, with close family relationships involving “deep
attachments and commitments to the necessarily few other individuals with
whom one shares not only a special community of thoughts, experiences, and
beliefs but also distinctively personal aspects of one’s life,” evincing the
strongest need for protection. Roberts, 468 U.S. at 619-20. To determine whether
certain familial relationships warrant protection, a court must “assess such
factors as cohabitation and the precise degree of kinship.” Patel, 305 F.3d at 136.
The sibling relationship is one recognized as warranting protection. See, e.g.,
Patel, 305 F.3d at 136 (“the relationships at issue in this case—those between
[plaintiff] and his father, siblings, wife, and children—receive the greatest degree
of protection because they are among the most intimate of relationships”);
Berrios v. State Univ. of New York at Stony Brook, 518 F. Supp. 2d 409, 418
(E.D.N.Y. 2007) (“the right of intimate association encompasses the husband/wife
relationship … as well as the familial relationships between parents, siblings and
children”). Non-familial relationships, for the most part, do not fall within this
First Amendment protection. See Berrios, 518 F. Supp. 2d at 421 (alleged unfair
treatment and retaliation in the terms of research assistant’s employment based
upon close working relationship with research professor did not implicate First
Amendment right to freedom of association, as relationship was not one within
category of protected intimate relationships).
46
Here, Plaintiff contends that he suffered a loss of employment
opportunities with the Stratford Police Department as a result of Defendants’
release of his background report to the Town Council, which in turn was
prompted solely by Plaintiff’s relation to the Mayor of the Town of Stratford. This
claim, though, must fail as Plaintiff has not proffered sufficient evidence that his
loss of opportunity resulted from his relationship with his brother and not from
his own unsuitability for the job for which he applied. Plaintiff points to the cover
letter received by the Town Council as proof that his sibling relationship was the
reason for the dissemination of his background report. The cover letter though,
while tying Miron’s application to the SPD with his brother’s influence over the
hiring process, nonetheless indicts the Plaintiff primarily for the negative aspects
of his own application for a police officer position (namely his poor driving
record, marijuana use, and partial neck disability), which the letter writer or
writers perceived as indicative that Miron was not qualified to become a police
officer and would potentially pose a threat to public safety. The crux of the cover
letter is that Christian Miron received or was about to receive a positive benefit –
employment with the SPD – that he would not have received absent special
treatment because of his familial relationship with the Mayor. Plaintiff’s
relationship with his brother, then, was not the driving force behind his loss of
employment opportunity; rather, the deficiencies in Miron’s application led to his
loss of employment opportunities after these deficiencies were made public, and
his relationship allegedly provided an employment benefit that otherwise would
not have been available to him. According to the cover letter, Miron’s relationship
47
afforded him an opportunity for which he was not qualified because of his
unsuitability for the position. Miron cites no evidence that other applicants with
backgrounds comparable to his were hired by the SPD. In short, there is no
evidence to suggest that the actions taken against the Plaintiff were in retaliation
for animus towards Miron’s brother, but rather the release of Plaintiff’s
background report stemmed from the weakness of his own application for public
employment.
Indeed, the cover letter is the only admissible evidence to which Plaintiff
cites for the proposition that his intimate associational rights were violated.
Although Plaintiff claims that the Defendants violated this right “for the purpose
of personal and political gain,” Miron has cited to no evidence in the record – and
the court is aware of none – to support his proposition. [Dkt. 203, P’s Opp. to Ds’
MSJ, p. 22]. He has failed to name in even the broadest terms the alleged
personal or political gain the Defendants sought. Plaintiff also asserts that
Shawn Farmer had an “exceedingly hostile and unprofessional relationship” with
Mayor James Miron and that the two were political opponents but has cited to no
admissible evidence to support this proposition. [Dkt. 203, P’s Opp. to Ds’ MSJ,
p. 23; Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶¶14, 15]. Instead, he references
the deposition testimony of Captain Popik and of Deputy Chief LoSchiavo, who
noted without discussing any specific instances or details merely that they
perceived Farmer to have “butted heads with” Mayor Miron or had “been an
outspoken person against [Miron’s] administration.” [Dkt. 199-19 Exh. Q, Popik
Depo. 105:18; Dkt. 203-9, Exh. 6, LoSchiavo Depo. 343:1-3]. This testimony, aside
48
from being far too general to provide credible support for Plaintiff’s assertions,
and aside from its lack of any concrete instances from which the two deponents
could have perceived Farmer’s relationship with Miron, is inadmissible hearsay.
Plaintiff last cites to a media article published on May 1, 2008 that he contends
reported that “Farmer was leading a no confidence vote for Mayor James Miron.”
[Dkt. 203, P’s Opp. to Ds’ MSJ, p. 23; Dkt. 203-1, P’s 56(a)2 Stmnt. Disputed Fact ¶
15]. The article, however, says no such thing. Rather, the article reports low
morale within the SPD as reported by Union president Farmer “over alleged
violations of the union contract by Chief John Buturla and Deputy Chief Joseph
LoSchiavo.” [Dkt. 203-3, Exh. 2., News Article 5/1/08, p.60 (emphasis added)].
The article further cites Farmer as reporting that there was growing support for a
vote of no confidence “in the department leadership” based partially on “an
inconsistent hiring process that ‘bends and changes the rules’ for some
candidates – such as Christian Miron, the brother of Mayor James R. Miron.” [Id.
(emphasis added)]. This article – published more than one month after the
release of Plaintiff’s background report – notes displeasure with the SPD’s
leadership, namely Chief Buturla and Deputy Chief LoSchiavo, and growing
support for a union vote of no confidence in their leadership.
Moreover, even if this article supported Plaintiff’s assertions as to Farmer’s
relationship with Mayor Miron, it would cut against Plaintiff’s constitutional
argument. Any actions taken by Farmer in his capacity as union president (for
instance, in leading a no confidence vote as noted by the article Plaintiff cites or
in disseminating Plaintiff’s background report for reasons attributable to his
49
union involvement) are not taken under color of law. See Cahill v. O'Donnell, 75 F.
Supp. 2d 264, 278 (S.D.N.Y. 1999) (actions performed in union capacity were not
actions performed for the government, but solely for benefit of union); Kern v.
City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (same). Actions taken in this
capacity may not support a constitutional tort claim under 42 U.S.C. § 1983. The
court notes that in his opposition to the Defendants’ motion for summary
judgment, the Plaintiff has specifically alleged that “[t]he Union, particularly its
President, Defendant Farmer, was opposed to Mayor James Miron’s actions
regarding the SPD, including, but not limited to, his choice for Chief of Police.”
[Dkt. 203, P’s Opp. to Ds’ MSJ, p.3]. While this assertion is unsupported by any
admissible evidence to which the Plaintiff cites, it also seems to assert that
Defendant Farmer’s alleged involvement in the disclosure of Miron’s background
information was in furtherance of his position as President of the Union and not
of his position as an officer.
As to Defendants McNeil and Soto, Miron has failed to present any
evidence that they released his background report to the Town Council because
of his relationship with his brother. Miron has also presented no evidence in the
record that any of the three Defendants were involved in the decision not to place
Miron in the police academy. As stated previously, “a defendant need not prove a
negative when it moves for summary judgment on an issue that the plaintiff must
prove at trial. It need only point to an absence of proof on plaintiff's part, and, at
that point, plaintiff must ‘designate specific facts showing that there is a genuine
issue for trial.’” Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100, 111 (2d Cir.
50
2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Plaintiff has not
met this burden.
Importantly, Soto and McNeil recommended Miron for hire into the SPD on
February 5, 2008 by way of their participation in the Chief's oral interview panel of
Christian Miron. There is no evidence in the record that Soto and McNeil were
unaware at this point that Miron was the mayor's brother, nor is there any
evidence in the record that Soto or McNeil knew about the contents of Miron's
background investigation at this point. Moreover, Detective Grindrod did not
initiate Miron’s background investigation until February 10, 2008, several days
after Soto and McNeil recommended Miron for hire. To the extent that the
Defendants knew that Miron was the Mayor’s brother, they could not have learned
of this sibling relationship from Miron’s background investigation report because
the report does not contain this information. As the record indicates that Miron’s
report was disseminated only after the Defendants accessed it on March 25, 2008,
nearly two months after Soto and McNeil had recommended Miron for a job as an
officer, and the report does not contain information as to Miron’s sibling
relationship, the natural conclusion is that the Defendants did not disseminate
Miron's report because he was the mayor's brother.
Therefore, as Miron has not provided particularized admissible evidence in
the cited record that his background report was released because of his sibling
relationship with his brother, as opposed to his inherent unsuitability and lack of
qualifications for the job, his First Amendment intimate association claim may not
go forward. See Jenkins, 167 F. Supp. 2d at 653 (city human resources
51
administration did not violate First Amendment by interfering with intimate
associational rights of director of organization which had contract with
administration, when administration insisted upon director's ouster due to fact
that his mother was on board of directors of organization's parent, and where
director’s ability to perform his duties without the appearance of impropriety
would be compromised; “[t]here is no indication here that the intent or effect of
[defendant]'s action was to ‘penalize’ [plaintiff’s] mother-son relationship for any
reason not legitimately connected with [plaintiff]'s official duties in overseeing
proper compliance with the relevant provisions of the Agreement”);
Rajaravivarma, 862 F. Supp. 2d at 168 (professor plaintiff’s First Amendment
intimate association claim failed where plaintiff did not offer any evidence that his
wife's lawsuit was a factor in the decision to deny him tenure beyond the fact that
the defendant was aware of the lawsuit); Adler, 185 F.3d at 45 (reversing grant of
summary judgment for defendants on First Amendment intimate association
claim where plaintiff presented substantial evidence that his wife’s lawsuit, “not
his politics,” was the basis for his discharge, including that “[o]ne of his
supervisors in the week before discharge reportedly mentioned his wife’s
litigation and the embarrassment it was causing state officials,” a memo issued
the week before his discharge declaring that there would be no further dismissals
within plaintiff’s department, and evidence that employees similar to the plaintiff
were not terminated); Talley, 08 CV 790 DRH ETB, 2012 WL 3841396 (denying
summary judgment on intimate association claim where plaintiff provided
specific evidence – including public comments made by the board members in
52
question – that members of the board had abstained from a vote on whether to
hire plaintiff for a teaching position, thereby denying plaintiff the position,
because they harbored enmity towards plaintiff's father who was a member of the
board, despite plaintiff’s technical qualifications for the position).
As a last note, the court addresses various evidentiary arguments that the
Defendants make in support of summary judgment: (1) that the Plaintiff cannot
prove that the Defendants released Miron’s background report, and (2) that in
contrast to their lack of motive to harm Mr. Miron, “ample evidence” exists as to
Captain Popik’s belief that the SPD should not hire Miron. First, there are genuine
issues of material fact in dispute as to whether the Defendants released Miron’s
background report to the public which prevent summary judgment in favor of
Defendants on this basis. Second, while evidence of Popik’s reservations about
Miron’s hire appear in the record, the determination of whether Captain Popik or
the Defendants disseminated Miron’s background report to the Council and the
media is not an issue for the court to decide. “[A]t the summary judgment stage
the judge's function is not himself to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.” Redd v.
New York Div. of Parole, 678 F.3d 166, 173-74 (2d Cir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). It is well established that
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Redd, 678 F.3d
at 174; Aceto v. Town of Bloomfield, 3:04CV01877 (AWT), 2006 WL 1405579 (D.
53
Conn. May 19, 2006). Thus, neither of these arguments is sufficient to warrant
summary judgment in favor of Defendants on Plaintiff’s deprivation of the right to
association claim. Nonetheless, Defendants’ arguments are moot as Plaintiff has
not proffered sufficient evidence to support a claim of deprivation of his intimate
association rights.
In sum, Miron has not established a violation of his right of intimate
association under the First Amendment. As the Plaintiff has failed to proffer
sufficient evidence of any constitutional violation, summary judgment is
GRANTED as to his 42 U.S.C. § 1983 claims.
VI.
State Law Claims
Having granted summary judgment as to the federal law claims against the
Defendants, the court declines to exercise its supplemental jurisdiction over the
Plaintiff’s state law claims. “Supplemental or pendent jurisdiction is a matter of
discretion, not of right. Thus, the court need not exercise supplemental
jurisdiction in every case.” Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 165-66
(D. Conn. 2005) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966)).
“The federal court should exercise supplemental jurisdiction and hear a state
claim when doing so would promote judicial economy, convenience and fairness
to the litigants. The court should decline to exercise supplemental jurisdiction,
however, when state law issues would predominate the litigation or the federal
court would be required to interpret state law in the absence of state precedent.
In addition, the court may decline to exercise supplemental jurisdiction where the
54
court has dismissed all claims over which it has original jurisdiction.” Id. (citing
28 U.S.C. § 1367(c)(3)); Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“in the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction
doctrine-judicial economy, convenience, fairness, and comity-will point toward
declining to exercise jurisdiction over the remaining state-law claims”).
Because the court has granted summary judgment for Defendants McNeil,
Soto and Farmer on Plaintiff’s 42 U.S.C. § 1983 claims, over which it has original
jurisdiction, this Court declines to exercise supplemental jurisdiction over
Miron’s remaining claims, all of arise under state law. See Zito v. Fried, Frank,
Harris, Shriver & Jacobson LLP, 09 CIV. 9662, 2012 WL 2333303 (S.D.N.Y. June 19,
2012) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d. Cir.1994) (“Under 28 U.S.C.
1367(a)(c), a Court has the discretion to exercise supplemental jurisdiction over
pendent state law claims. If, however, ‘the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.’”)).
VII.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment is
GRANTED IN PART AND DENIED IN PART. Summary judgment is GRANTED in
favor of Defendants as to Plaintiff’s federal constitutional privacy and intimate
association claims pursuant to 42 U.S.C. § 1983 (counts 1, 2, 3, 5, 6, and 7). The
court declines to exercise supplemental jurisdiction over Plaintiff’s state law
55
claims. The Clerk is directed to enter judgment in favor of Defendants on
Plaintiff’s federal claims and to close this file.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 30, 2013
56
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?