Colvin v. State University College at Farmingdale, State University of New York et al

Filing 113

OPINION & ORDER: For the reasons set forth herein, (1) defedants' motion, in effect, for reconsideration of the January Order is granted and, (2) upon reconsideration, (a) so much of the January Order as construed the Report to find, in essence, that there are genuine disputes of material fact with respect to plaintiff's Section 1983 First Amendment retaliation claims against defendants and, as such, accepted so much of the Report as recommends that the branch of defendants' motio n seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's Section 1983 First Amendment retaliation claims against them be denied is vacated; (b) the Report is rejected to the extent it finds th at plaintiff was speaking on a matter of public concern during the Yoga Incident and insofar as it recommends that the branch of defendants' motion seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing P laintiff's Section 1983 first Amendment claims against them be denied; (c) the branch of defendants' motion seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's Section 1983 First Amendment retaliation claims against them is granted; and (d) defendants are granted judgment as a matter of law dismissing plaintiff's remaining claims in this action, i.e., her Section 1983 First Amendment retaliation claims against def endants, in their entirety with prejudice. The Clerk of the Court shall enter judgment in favor of defendants W. Hubert Keen, Lucia Cepriano, Marybeth Incandela, and James Hall and close this case. SO Ordered by Judge Sandra J. Feuerstein on 9/28/2016. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
AMY L. COLVIN,

FILED 
CLERK 

9/28/2016 2:03 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff,
- against-

OPINION AND ORDER
13-CV-3595 (SJF)(ARL)

HUBERT KEEN, President, in his official and
individual capacity; LUCIA CEPRIANO, Provost,
in her official and individual capacity;
MARYBETH INCANDELA, Director, in her
official and individual capacity; and JAMES
HALL, in his official and individual capacity,
Defendants.
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FEUERSTEIN, District Judge:
Pending before the Court, inter alia, is a pretrial memorandum of law filed by defendants
W. Hubert Keen (“Keen”), Lucia Cepriano (“Cepriano”), Marybeth Incandela (“Incandela”) and
James Hall (“Hall”) (collectively, “defendants”), (Docket Entry [“DE”] 105), seeking judgment
as a matter of law on plaintiff’s remaining claims in this action, which the Court construes to be a
motion pursuant to Rule 54(b) of the Federal Rules of Civil Procedure to reconsider so much of
its opinion and order, dated January 19, 2016 (“the January Order”), as (1) accepted the branch of
the Report and Recommendation of the Honorable Arlene R. Lindsay, United States Magistrate
Judge, dated November 30, 2015 (“the Report”), recommending that the branch of defendants’
motion seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure
dismissing plaintiff’s claim pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging that
defendants retaliated against her for exercising her First Amendment right to free speech be
denied; and (b) denied the branch of defendants’ motion seeking summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff’s Section 1983 First
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Amendment retaliation claims against them. For the reasons set forth herein, (1) defendants’
motion, in effect, for reconsideration of the January Order is granted and, (2) upon
reconsideration, (a) so much of the January Order as construed the Report to find, in essence, that
there are genuine disputes of material fact with respect to plaintiff’s Section 1983 First
Amendment retaliation claims against defendants and, as such, accepted so much of the Report as
recommends that the branch of defendants’ motion seeking summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure dismissing plaintiff’s Section 1983 First Amendment
retaliation claims against them be denied is vacated; (b) the Report is rejected to the extent it
finds that plaintiff was speaking on a matter of public concern during the Yoga incident and
insofar as it recommends that the branch of defendants’ motion seeking summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff’s Section 1983
First Amendment retaliation claims against them be denied; (c) the branch of defendants’ motion
seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure
dismissing plaintiff’s Section 1983 First Amendment retaliation claims against them is granted;
and (d) defendants are granted judgment as a matter of law dismissing plaintiff’s remaining
claims in this action, i.e., her Section 1983 First Amendment retaliation claims against
defendants, in their entirety with prejudice.

I.

Discussion
A.

Reconsideration

Rule 54(b) of the Federal Rules of Civil Procedure provides, in relevant part, that “any
order or other decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry
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of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ.
P. 54(b). Nonetheless, the Second Circuit “ha[s] limited district courts’ reconsideration of earlier
decisions under Rule 54(b) by treating those decisions as law of the case, which gives a district
court discretion to revisit earlier rulings in the same case, subject to the caveat that where
litigants have once battled for the court’s decision, they should neither be required, nor without
good reason permitted, to battle for it again.” Official Comm. of Unsecured Creditors of Color
Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quotations and citation
omitted); see also Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992) (“Even if Rule 54(b) allows parties to request district courts to revisit earlier rulings, the
moving party must do so within the strictures of the law of the case doctrine.”)
The law of the case “doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983); accord
DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73, 76 (2d Cir. 1992). Accordingly, the Court
generally may not revise an earlier decision it made in a case “unless there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
prevent a manifest injustice.” Official Comm., 322 F.3d at 167 (quotations and citation omitted);
see also Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal
Van Saybolt International B.V. v. Schreiber, 407 F.3d 34, 44 (2d Cir. 2005) (“[A] district court’s
discretion to reconsider its own decisions is limited, at least absent an intervening change of law,
to circumstances in which new evidence is available, an error must be corrected, or manifest
injustice would otherwise ensue.”) Specifically, “the doctrine of law of the case permits a change

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of position if it appears that the court’s original ruling was erroneous.” DiLaura, 982 F.2d at 77
(quotations and citation omitted); see also Prisco v. A&D Carting Corp., 168 F.3d 593, 607 (2d
Cir. 1999) (finding that the district court’s departure “from its prior ruling on order to correct an
error of law[] . . . is an obviously valid reason for . . . a departure [from the law of the case
doctrine].”)

B.

Section 1983 First Amendment Retaliation Claims

The Report correctly provides, in relevant part, that the issue of “[w]hether a public
employee’s speech addresses a matter of public concern is a question of law that ‘must be
determined by the content, form, and context of a given statement, as revealed by the whole
record.’” (Report at 27 (quoting Connick v. Myers, 461 U.S. 138, 147-48, 148 n. 7, 103 S. Ct.
1684, 75 L. Ed. 2d 708 (1983))). However, the Report further provides, in relevant part:
“Accepting Plaintiff’s recitation of the facts as true, the Court finds that Plaintiff’s
speech addressed a matter of public concern. There is evidence in the record that:
(1) Plaintiff advised Ms. Buch and the police that Ms. Buch had a right to counsel
and union representation; (2) the police were annoyed that Plaintiff was trying to
help Ms. Buch; and (3) at the end of the incident, one of the police officers
threatened to handcuff Plaintiff and arrest her, but she told them she was an
attorney and it would be unfair for her to be arrested for trying to help someone
obtain legal counsel and union representation. Pl.’s Decl. ¶ 21. [sic]; Buch Aff.;
Amato Aff. . . . Although Defendants argue that Plaintiff’s speech was directed
solely at Ms. Buch and not the officers, the record permits an inference otherwise.
Accordingly, the Court finds that viewing the facts in the light most favorable to
the Plaintiff, Plaintiff was speaking as a citizen on a matter of public concern
during the Yoga Incident.[]”

(Report at 28-29) (footnote omitted; emphasis added). In light of the italicized language, the
January Order erroneously construed that branch of the Report as finding that there are genuine
disputes of material fact requiring a trial with respect to plaintiff’s Section 1983 First
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Amendment retaliation claim, including the issue of whether plaintiff’s speech addressed a matter
of public concern. (January Order at 7). See Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658,
2677, 174 L. Ed. 2d 490 (2009) (“On a motion for summary judgment, facts must be viewed in
the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” (emphasis added) (internal quotations and citation omitted)). As such, I accepted so
much of the Report as recommends that the branch of defendants’ motion for summary judgment
seeking dismissal of plaintiff’s Section 1983 First Amendment retaliation claim against them be
denied.
However, while the determination of whether speech addressed a matter of public concern
“may be somewhat fact-intensive, it presents a question of law for the court to resolve.” Johnson
v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003). Accordingly, defendants’ motion, in effect, for
reconsideration of the January Order pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure is granted in order to correct the clear error in construing the Report to find that there
are genuine disputes of material fact requiring a trial on the issue of whether plaintiff’s speech
addressed a matter of public concern.
To the extent that the Report actually determines that plaintiff’s speech addressed a matter
of public concern, I respectfully reject that branch of the Report because, inter alia, it
“[a]ccept[ed] Plaintiff’s recitation of the facts as true” and does not appear to consider all of the
evidence in the record, particularly plaintiff’s deposition testimony.1 (Report at 28). However, in

1

The Report relies upon the following evidence with respect to the issue of whether
plaintiff’s speech addressed a matter of public concern: (a) paragraph twenty-one (21) of
plaintiff’s undated “Declaration in Opposition to Motion for Summary Judgment” (the
“Declaration”); (b) the affidavits of Sherry Buch and Deborah Amato; and (c) the counseling
memorandum issued by defendant Marybeth Incandela. (Report at 28). It appears that
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determining whether speech addresses a matter of public concern, the facts must be taken from
“the whole record” before the Court, Connick, 461 U.S. at 147-48, 103 S. Ct. 1684, albeit “while
drawing all reasonable inferences and resolving all ambiguities in favor of” plaintiff. Singer v.
Ferro, 711 F.3d 334, 341 (2d Cir. 2013).
By accepting plaintiff’s recitation of the facts in the Declaration as true, instead of
considering all of the evidence in the record, Magistrate Judge Lindsay overlooked the significant
inconsistencies between plaintiff’s deposition testimony and the Declaration. “[F]actual
allegations that might otherwise defeat a motion for summary judgment will not be permitted to
do so when they are made for the first time in the plaintiff’s affidavit opposing summary
judgment and that affidavit contradicts her own prior deposition testimony.” Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001); see also In re Fosamax Products Liab. Litig., 707
F.3d 189, 193 (2d Cir. 2013) (holding that a party is prohibited “from defeating summary
judgment simply by submitting an affidavit that contradicts the party’s previous sworn
testimony.”) Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) (“[I]t is well
settled in this circuit that a party’s affidavit which contradicts his own prior deposition testimony
should be disregarded on a motion for summary judgment.” (quotations and citation omitted)).
Thus, rather than accepting plaintiff’s recitation of facts in paragraph twenty-one (21) of the
Declaration as true, Magistrate Judge Lindsay should have disregarded the Declaration and
considered plaintiff’s sworn deposition testimony instead.
During her deposition on December 15, 2014, plaintiff testified that while she was

Magistrate Judge Lindsay accepted plaintiff’s recitation of the facts in paragraph twenty-one (21)
of the Declaration as true without considering, inter alia, her deposition testimony.
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attending an on-campus yoga class on May 18, 2011, two (2) police officers entered the class and
said that “they wanted to arrest” another person who was attending the class, Sherry Buch (“the
Yoga Incident”). (Declaration of Toni Logue [“Logue Decl.”], Ex. A at 77-78). Plaintiff then
testified as follows:
“And I said, ‘Officers, I would like to get her union rep’ – ‘union representation
and an attorney.’ And then we went outside. And then they talked – One officer
talked to her. And one officer talked to me. And I continued to say, ‘Sherry,
we’re going to work on getting you a lawyer and a union rep.’ And they said to
me, ‘Well, we’re going to arrest you now.’ And I said, ‘I believe that would be a
false arrest.’”
(Id. at 78). Plaintiff was not, in fact, arrested. (Id. at 88-89).
Plaintiff also testified, (1) that she said, “I would like to accompany her [Ms. Buch] to the
police station[,]” (Logue Decl., Ex. A at 83); (2) that she “identified [her]self as an attorney and
offered advice and guidance to the employee being arrested[,]” (id. at 106) (emphasis added); and
(3) that she advised Ms. Buch “to wait to say anything until we got an attorney and a union rep.”
(Id. at 86).
Plaintiff testified that at the time of the Yoga Incident, she was not aware that Ms. Buch
was under a disciplinary suspension and had been asked to leave the campus and not return; that
Ms. Buch never requested that plaintiff represent her as an attorney or help her, (Logue Decl., Ex.
A at 80-81, 92); that she “had no knowledge as to why” the police officers were present or Ms.
Buch was being arrested, (id. at 108); and that she “believe[d] [she] was being a help to Sherry
Buch.” (Id. at 106). Plaintiff testified that she did not “recall what [her] tone was” during the
Yoga Incident, (id. at 82); that she did not “believe [she] was yelling,” (id. at 86); and that the
officers told her “that the incident did not concern [her] and that [she] should remain
uninvolved[.]” (Id. at 82). When asked if there was “any other speech that you’re claiming that
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you were discriminated [sic] against for making,” plaintiff responded, “No.” (Id. at 94).
On April 24, 2015, defendants served plaintiff with a motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure, contending, in relevant part:
“Here, Plaintiff cannot demonstrate that her purported speech was made on a
matter of public concern, and thus was not entitled to First Amendment protection.
Plaintiff testified that she did not know why the police officers were at the yoga
class or why Ms. Buch was being arrested, and never assumed that the police
officers were acting improperly. . . . Plaintiff has never claimed that the police
officers were physically or verbally aggressive with Ms. Buch. Moreover,
Plaintiff admits that she was not a member of Ms. Buch’s union or Ms. Buch’s
attorney. . . .
Even assuming that Plaintiff’s rendition of what she said during the yoga class
incident is accurate, the speech was directed solely at Ms. Buch and not at the
police officers. . . . Plaintiff’s alleged speech was yelling to the arrestee, Ms. Buch,
that ‘we are going to work on getting you a lawyer and a union rep.’” . . . Such
speech alone is patently not of the kind that ‘contibute[s] to debate on public
issues, the very kind of speech the first amendment was designed to protect.’”
Bieluch v. Sullivan, 999 F.2d 666, 671 (2d Cir. 1993). The speech was not
directed toward the two police officers to complain about their actions and
certainly was not speech which criticized the police. Therefore, Plaintiff’s claim
that her speech was protected by the First Amendment fails in this situation.”
(Defendants’ Memorandum of Law in Support of Motion for Summary Judgment [“Def. Mem.”]
at 15-16) (emphasis and brackets in original; citations to deposition transcript omitted)).
In response to defendants’ motion, plaintiff filed, inter alia, a “Declaration in Opposition
to Motion for Summary Judgment” (the “Declaration”) which contradicts her deposition
testimony, inter alia, as follows: (1) in the Declaration, plaintiff indicated that when they
“stepped into the hallway, . . . [she] stated that, as a union member, [she] would like to get Ms.
Buch a union representative and a legal representative to help her[,]”2 (Plf. Decl., ¶ 21), whereas

2

Plaintiff’s statement in the declaration that she introduced herself as a union member is
not only contradicted by her testimony that she identified herself to the officers as an attorney,
(Logue Decl., Ex. A at 106), but is also contradicted by Ms. Buch’s affidavit, which indicates,
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during her deposition, she testified that she told the officers in the classroom that she “would like
to get her [Ms. Buch] union rep – union representation and an attorney[,]” (Logue Decl., Ex. A at
78), that when they stepped outside the classroom, she “continued to say, “Sherry [Ms. Buch],
we’re going to work on getting you a lawyer and a union rep[,]”3 (id.) (emphasis added), and that
at some point during the Yoga Incident she identified herself to the officers as an attorney, (id. at
106), not as a union member; (2) in the Declaration, plaintiff indicates that “[a]t the end of the
incident, the other officer suggested that this matter was not [her] concern, and threatened to
handcuff and arrest [her],” (Plf. Decl., ¶ 21), whereas during her deposition, plaintiff testified that
she “continued to say, ‘Sherry, we’re going to work on getting you a lawyer and a union rep.’
And [the officers] said to [her], ‘Well, we’re going to arrest you now[,]’”4 (Logue Decl., Ex. A at
78); and (3) in the Declaration, plaintiff claims that after the officer said he would arrest her, she
said she “was an attorney and . . . it would be unfair to arrest [her] for trying to help someone get
a lawyer and a union representative[,]”5 (Plf. Decl., ¶ 21), whereas during her deposition, plaintiff
inter alia, that plaintiff “introduced herself as a friend.” (Ingoglia Decl., Ex. J, ¶ 3).
3

Ms. Buch’s affidavit is consistent with plaintiff’s deposition testimony, not her
Declaration, insofar as Ms. Buch indicates that when they stepped outside of the classroom,
plaintiff “reminded [her] that [she] ha[d] a right to a union representative and a lawyer.”
(Ingoglia Decl., Ex. J, ¶ 3). Indeed, Ms. Buch does not assert that plaintiff directed any speech to
the officers during the Yoga Incident other than “introduc[ing] herself as a friend” to the officers
when they were still in the classroom. (Id.)
4

Ms. Buch’s affidavit is consistent with plaintiff’s deposition testimony, not her
Declaration, insofar as it indicates that plaintiff “reminded [her] that [she] had a right to a union
representative and a lawyer[,]” (Ingoglia Decl., Ex. J, ¶ 3), and “[t]he police then threatened to
handcuff [plaintiff] and arrest her.” (Id., ¶ 5 [sic] [Ms. Buch’s affidavit does not contain a
paragraph numbered “4”]).
5

The Report specially cites to, inter alia, this statement in the Declaration to find that
plaintiff “was not speaking of a personal grievance; rather, she attempting [sic] to vindicate Ms.
Buch’s constitutional right to counsel and her right to union representation in the face of
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testified that she said, “‘I believe that would be a false arrest.’” (Logue Decl., Ex. A at 78).
“Generally speaking, a matter of public concern relates to any matter of political, social,
or other concern to the community.” Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014)
(quotations and citation omitted); accord Singer, 711 F.3d 334, 339 (2d Cir. 2013). “In
examining whether speech is on a matter of public concern, [courts] consider the motive of the
speaker, . . . cognizant that speech on a purely private matter [] does not pertain to a matter of
public concern and, conversely, that an individual motivated by a personal grievance can
simultaneously speak on a matter affecting the public at large[.]” Golodner, 770 F.3d at 203
(quotations, alterations and citations omitted). “[W]hile motive surely may be one factor in
making th[e] determination [of whether speech addresses a matter of public concern], it is not,
standing alone, dispositive or conclusive.” Sousa v. Roque, 578 F.3d 164, 175 (2d Cir. 2009);
see also Reuland v. Hynes, 460 F.3d 409, 418 (2d Cir. 2006) (“[T]he speaker’s motive is not
dispositive as to whether an employee’s speech relates to a matter of public concern.”)
“Speech that, although touching on a topic of general importance, primarily concerns an
issue that is personal in nature and generally related to the speaker’s own situation[] . . . does not
address matters of public concern.” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011)
(quotations and citation omitted). “Rather, a topic is a matter of public concern for First
Amendment purposes if it is ‘of general interest,’ or ‘of legitimate news interest,’ or ‘of value and
concern to the public at the time’ of the speech.” Id. (quoting City of San Diego v. Roe, 543 U.S.
77, 83-84, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004)). “[T]he primary question for First
Amendment purposes is whether the matter is of public concern, not whether the speech was also

perceived police misconduct.” (Report at 28).
10

made to serve some private interest.” Nagle v. Marron, 663 F.3d 100, 107 (2d Cir. 2011).
“In considering a First Amendment claim of deprivation of the right to free speech,
[courts] are compelled to examine for [them]selves the statements in issue and the circumstances
under which they were made to see whether or not they [] are of a character which the principles
of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment,
protect.” Piscottano v. Murphy, 511 F.3d 247, 270 (2d Cir. 2007) (quotations, alterations and
citation omitted). If the employee’s expressive conduct was not speech addressed to a matter of
public concern, “the employee has no First Amendment cause of action based on his or her
employer’s reaction to the speech.” Id.
Considering plaintiff’s statements during the Yoga Incident and the circumstances under
which they were made, her speech did not address matters of public concern for First Amendment
purposes. Although, as indicated in the Report, “[e]xposure of official misconduct, especially
within the police department, is generally of great consequence to the public[,]” Jackler, 658 F.3d
at 236 (quotations and citation omitted), and “the First Amendment protects a significant amount
of verbal criticism and challenge directed at police officers[,]” City of Houston, Tex. v. Hill, 482
U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987); see also Kerman v. City of New York,
261 F.3d 229, 242 (2d Cir. 2001), plaintiff does not dispute the legality of Ms. Buch’s arrest or
claim that the arresting officers engaged, or that she perceived the officers to be engaging, in any
misconduct while arresting Ms. Buch. Moreover, since plaintiff testified that she “had no
knowledge as to why” the police officers were present on campus or Ms. Buch was being arrested
at the time she made the statements, (Logue Decl., Ex. A at 108), she could not have known
whether the police officers were acting properly or not in arresting Ms. Buch. Furthermore,

11

plaintiff does not claim that the police officers attempted to stop her from speaking to Ms. Buch
or giving her advice until after they had left the yoga classroom and were standing in the
vestibule outside the classroom. (Id. at 86-97). Accordingly, I respectfully reject Magistrate
Judge Lindsay’s finding that “[p]laintiff was not speaking of a personal grievance; rather she
[was] attempting to vindicate Ms. Buch’s constitutional right to counsel and her right to union
representation in the face of perceived police misconduct.” (Report at 28). Rather, plaintiff was
merely imparting unsolicited legal advice and guidance to a colleague who was being lawfully
arrested in her presence, which is not the type of speech that is “of general interest” to the public
or “of legitimate news interest,” Jackler, 658 F.3d at 236, and, thus, does not address a matter of
public concern for First Amendment purposes.
Moreover, none of the statements made by plaintiff during the Yoga Incident can be
deemed critical of the officers’ conduct. Indeed, most of the speech was directed to Ms. Buch as
unsolicited legal advice and guidance, not toward the two police officers to complain about their
actions. Based on plaintiff’s deposition testimony, she identified herself as an attorney and
directed only three (3) statements to the arresting officers: (1) “Officers, I would like to get her
union rep – union representation and an attorney[,]” (Logue Decl., Ex. A at 78); (2) “I would like
to accompany her [Ms. Buch] to the police station[,]” (id. at 83); and (3) “I believe that would be
a false arrest.” (Id. at 78). Plaintiff does not contend that the officers even responded to those
statements, much less retaliated against her after she made them. Rather, after the first statement,
plaintiff, Ms. Buch and the officers merely left the yoga classroom; and, despite the other two (2)
statements, plaintiff was not arrested and merely returned to the yoga classroom after Ms. Buch
was handcuffed and taken to the university police station. Moreover, under the circumstances of

12

this case, the statement, “I believe that would be a false arrest[,]” (Logue Decl., Ex. A at 78), was
clearly personal in nature since the threat to arrest plaintiff when she “continued to say, ‘Sherry,
we’re going to work on getting you a lawyer and a union rep[,]’” (id.), after they had moved to
the vestibule outside the yoga classroom, even if improper, is not “a subject of general interest []
to the public[,]”6 Singer, 711 F.3d at 340 (quotations and alterations omitted), or a “concern to
the community.” City of San Diego, 543 U.S. at 84, 125 S. Ct. 521, 160 L. Ed. 2d 410. In other
words, since the alleged threat to falsely arrest plaintiff, even if improper, “had no practical
significance to the general public,” Nagle, 663 F.3d at 107, plaintiff’s speech related to that threat
was not protected under the First Amendment.
Since plaintiff’s speech did not address a matter of public concern, defendants are entitled
to judgment as a matter of law dismissing plaintiff’s Section 1983 First Amendment retaliation
claim against them. Accordingly, the branch of defendants’ motion seeking summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff’s First
Amendment retaliation claims against them is granted and plaintiff’s remaining claims in this
action are dismissed in their entirety with prejudice.

II.

Conclusion
For the reasons set forth herein, (1) defendants’ motion, in effect, for reconsideration of

the January Order is granted and, (2) upon reconsideration, (a) so much of the January Order as

6

Indeed, plaintiff seemingly recognized the personal nature of the statement since she
attempted to alter her sworn deposition testimony to that effect by indicating in her Declaration
that the statement she made after the officer said he would arrest her was that she “was an
attorney and . . . it would be unfair to arrest [her] for trying to help someone get a lawyer and a
union representative.” (Plf. Decl., ¶ 21).
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construed the Report to find, in essence, that there are genuine disputes of material fact with
respect to plaintiff’s Section 1983 First Amendment retaliation claims against defendants and, as
such, accepted so much of the Report as recommends that the branch of defendants’ motion
seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure
dismissing plaintiff’s Section 1983 First Amendment retaliation claims against them be denied is
vacated; (b) the Report is rejected to the extent it finds that plaintiff was speaking on a matter of
public concern during the Yoga Incident and insofar as it recommends that the branch of
defendants’ motion seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure dismissing plaintiff’s Section 1983 First Amendment retaliation claims against them
be denied; (c) the branch of defendants’ motion seeking summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure dismissing plaintiff’s Section 1983 First Amendment
retaliation claims against them is granted; and (d) defendants are granted judgment as a matter of
law dismissing plaintiff’s remaining claims in this action, i.e., her Section 1983 First Amendment
retaliation claims against defendants, in their entirety with prejudice. The Clerk of the Court
shall enter judgment in favor of defendants W. Hubert Keen, Lucia Cepriano, Marybeth Incandela
and James Hall and close this case.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: September 28, 2016
Central Islip, New York

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