McAdam v. Suffolk County Police Department, et al

Filing 27

MEMORANDUM OF DECISION & ORDER - For the reasons stated above, the Defendants' 12 motion to dismiss the complaint pursuant to Rule 12(c) is granted in its entirety. The Plaintiff's federal and New York State constitutional due process cla ims are barred by the Rooker-Feldman doctrine, and the Plaintiff has failed to state a claim for defamation upon which relief can be granted. The Clerk of the Court is respectfully directed to close the case. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 7/26/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
CHRISTOPHER MCADAM,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
16-cv-6283 (ADS)(AKT)

-againstSUFFOLK COUNTY POLICE DEPARTMENT,
COUNTY OF SUFFOLK, TIMOTHY D. SINI
in his official and individual capacities,
Defendant(s).
---------------------------------------------------------X
APPEARANCES:
Law Offices of Christopher J. Cassar, P.C.
Attorneys for the Plaintiff
13 East Carver Street
Huntington, NY 11743
By:
Christopher J. Cassar, Esq.,
Joseph John Karlya, III, Esq., Of Counsel

Suffolk County Attorney’s Office
Attorneys for the Defendants
100 Veterans Memorial Highway
Hauppauge, NY 11788
By:
Drew W. Schirmer, Deputy County Attorney
SPATT, District Judge:
This civil rights action was brought by the Plaintiff Christopher McAdam (the “Plaintiff”)
against the Defendants County of Suffolk (the “County”), the Suffolk County Police Department
(the “SCPD”), and the SCPD Police Commissioner Timothy D. Sini (“Sini”) (collectively, the
“Defendants”), alleging that they violated his constitutional due process rights in violation of 42
U.S.C. §1983 (“Section 1983”) and defamed him.

1

Presently before the Court is a motion by the Defendants for a judgment on the pleadings
pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(c) dismissing the
complaint. For the following reasons, the Defendants’ motion is granted in its entirety.
I. BACKGROUND
A. The Relevant Facts
In June 2011, the Plaintiff sat for an open written competitive examination for entry into
the SCPD. He received a passing grade; became an eligible candidate for the SCPD; and entered
the SPCD Academy (the “Academy”) in July 2015.
On July 18, 2015, the Plaintiff appeared for a physical fitness screening test at the
Academy. The exam had three portions: sit-ups, push-ups, and a run. Each portion was timed,
and the Plaintiff had to run a mile and a half, and complete a certain number of push-ups and situps. The Plaintiff failed the sit-up portion of the exam, but was told that he could retake the exam
at a later time.
His second physical exam was scheduled for August 1, 2015, but the Plaintiff was
permitted to delay it until August 26, 2015 with a note from his doctor.
On August 26, 2015, the Plaintiff retook the physical exam under the supervision of
Lieutenant Sweeney and Police Officer Santarpia. The Plaintiff claims that the supervising
officers told him to complete the exam “out of order.” That is, there is a standard order of sit-ups,
push-ups, then the run. However, the Plaintiff states that he was told to complete the test in some
other order.
On August 27, 2015, the Plaintiff was informed that the results from his exam the previous
day were void because he completed the steps out of order. He was purportedly told that he could
take the exam again.

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The next day, August 28, 2015, the Plaintiff took the physical exam a third time, and
passed.
Subsequently, he joined the Academy as a recruit with an expected graduation date of April
1, 2016.
On November 20, 2015, the Plaintiff avers that he was “temporarily discharged from the
Academy without a notice or hearing,” because of “alleged impropriety [in] allowing him to
complete the August 28, 2015 physical examination.” (Compl. ¶ 20).
On November 24, 2015, the Plaintiff filed suit (the “State Action”) in the Supreme Court
of the State of New York against the County, the SCPD, the Suffolk County Department of Civil
Service, and the Police Commissioner (the “State Action Defendants”). He sought a preliminary
injunction pursuant to N.Y. C.P.L.R. § 6301, asking that the Court enjoin the State Action
Defendants from temporarily discharging him, and therefore permit him to complete his training.
The action was also brought pursuant to Article 78 of the N.Y. C.P.L.R. (“Article 78”). The
Plaintiff alleged that the decision to terminate him was arbitrary, capricious, unfair, and an abuse
of discretion. He sought to be reinstated to his position, along with back pay and benefits.
On November 25, 2015, Justice John Bivona of the New York State Supreme Court,
Nassau County, signed the Plaintiff’s Order to Show Cause, and directed the State Action
Defendants to show cause why the Plaintiff’s requested relief should not be granted.
Thereafter, the Plaintiff was reinstated and completed his training at the Academy. His
expected graduation date was April 1, 2016.
On March 29, 2016, applying New York State common law, Justice Arthur Pitts (“Justice
Pitts”) of the New York State Supreme Court issued a decision and order denying the Plaintiff’s
requested relief. Determining how to analyze the Plaintiff’s claims, Justice Pitts stated:

3

The proper test to be applied is whether there is a rational basis for the
administrative order. [Colton v. Berman, 21 N.Y.2d 322, 329, 234 N.E.2d 679, 681
(N.Y. 1967)][.] “It is well settled that a court may not substitute its judgment for
that of the board or body it reviews unless the decision under review is arbitrary
and unreasonable and constitutes an abuse of discretion[.]” [Diocese of Rochester
v. Plan. Bd. of Town of Brighton, 1 N.Y.2d 508, 520, 136 N.E.2d 827
(N.Y. 1956)][.] A county’s civil service commission is afforded wide discretion in
determining the fitness of candidates for appointment. Such discretion is
particularly necessary in hiring police officers, to whom higher standards of fitness
and character may be applied[.] [] [S]ee[] Havern v. Senko, 210 A.D.2d 480, 481,
620 N.Y.S.2d 470 ([N.Y. App. Div.] 1994)[]. A court should not interfere with the
discretion of the civil service commission in determining the qualifications of
candidates for police officer unless the decision is irrational and arbitrary so as to
warrant judicial intervention[.] [][S]ee[] [id.]; Matter of Shedlock v. Connelie, 66
A.D.2d 433, 414 N.Y.S.2d 55 ([N.Y. App. Div.] 1979), aff’d, 48 N.Y.2d 943, 42
N.Y.S.2d 95, 401 N.E.2d 217; Matter of Metzger v. Nassau [Cty.] Civ. Serv.
Comm., 54 A.D.2d 565, 386 N. Y.S.2d 890 ([N.Y. App. Div.] 1976))[;] [][] Ressa
v. [Cty.] of Nassau, 224 A.D.2d 534, 638 N .Y.S .2d 158 ([N.Y. App. Div.]
1996)[][.]
(Defs.’ Ex. 4 at 5). Justice Pitts found that the decision to terminate the Plaintiff was not arbitrary
and capricious, or an abuse of discretion. He so ruled because a county’s civil service commission
is granted wide latitude in determining the qualifications of candidates for police officer; the
Director of Personnel of the Suffolk County Department of Civil Service (the “Director”) stated
in an affidavit that the department has a policy of granting only one re-test, and the Plaintiff was
impermissibly given two re-tests; and the Director further stated that the Plaintiff was given “an
unexplained additional twenty-five days . . . after other candidates were given their re-test
opportunity on August 1, 2015.” (Id. at 6). Therefore, because the State Action Defendants gave
reasons for the Plaintiff’s dismissal, Justice Pitts found that his dismissal was not arbitrary or
capricious.
On March 30, 2016, two days before his scheduled graduation date, the Plaintiff was
permanently dismissed from the SCPD. The Plaintiff claims that he was not afforded notice or a
hearing prior to his discharge.

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On June 10, 2016, Justice Pitts dismissed the Plaintiff’s Article 78 proceeding against the
County and the SCPD. (Defs.’ Ex. 5).
B. The Relevant Procedural Background
The Plaintiff filed the instant complaint on November 11, 2016. The complaint specifies
three causes of action: deprivation of federal constitutional due process in violation of Section
1983; deprivation of state constitutional due process; and common law defamation. As the
Plaintiff did not specify in his complaint whether his due process claims were procedural or
substantive, the Court will assume that he has brought claims for both causes. The Defendants
filed an answer on December 30, 2016.
On January 20, 2017, the Defendants filed the instant motion for a judgment on the
pleadings pursuant to Rule 12(c). The Defendants attached six exhibits to their motion: a
declaration in support of the Defendants’ motion from the Defendants’ counsel; the instant
complaint; the Defendants’ answer in the instant case; the signed Order to Show Cause and the
Plaintiff’s petition and supporting documents from the State Action; Justice Pitts’ March 29, 2016
decision denying the Plaintiff’s requested relief; and Justice Pitts’ June 10, 2016 Decision
dismissing the Plaintiff’s complaint in the State Action.
DISCUSSION
A. The Applicable Legal Standard
The standard for a motion for a judgment on the pleadings pursuant to Rule 12(c) is the
same as a motion to dismiss a complaint pursuant to Rule 12(b)(6). Irish Lesbian & Gay Org. v.
Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of

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the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d
Cir. 1995); Reed v. Garden City Union Free School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y.
2013).
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule
12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice. Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss and [d]etermining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129
S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).
Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and . . . determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556
U.S. at 679.
B. The Parties’ Arguments
The Defendants contend that they are entitled to a judgment on the pleadings pursuant to
Rule 12(c) based on several grounds: the Plaintiff is barred from bringing his claims by res
judicata, collateral estoppel, and the Rooker-Feldman doctrine; as a probationary employee, the
Plaintiff had no property interest in his position with the SCPD, and therefore has no protectable

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property interest; in failing to succeed on an Article 78 proceeding, the Plaintiff failed to satisfy a
condition precedent for his Section 1983 action; the Plaintiff does not set forth adequate facts for
a defamation claim; Sini has qualified immunity; and the claims against the SCPD must be
dismissed because it is an agency of the County and cannot be sued as a separate entity.
Before addressing the merits of the Defendants’ arguments, the Plaintiff asks the Court
to procedurally deny the Defendants’ motion because he claims that the Defendant’s motion is, in
truth, one for summary judgment. As to the substance of the Defendants’ contentions, the Plaintiff
argues that his claims are not barred by any of the doctrines cited by the Defendants; he had a
cognizable property interest in his position with the SCPD; he was not required to succeed on an
Article 78 proceeding before initiating this suit; his defamation claim is sufficiently pled; and Sini
is not entitled to qualified immunity.
C. As To Whether the Defendants’ Motion is a Motion for Summary Judgment Disguised
as One for a Judgment on the Pleadings
The Plaintiff does not argue that the Defendants’ submission of the court documents from
the state proceeding convert their motion into one for summary judgment. Instead, the Plaintiff
states that by asking the Court to make a judicial determination of the defenses raised in the
Defendants’ answer, the Defendants have converted their motion into one for summary judgment.
This argument is completely unsupported, and in direct contravention of case law. It is not
clear why the Plaintiff believes that the Defendants have converted the motion into one for
summary judgment. The Court assumes that the Plaintiff refers to the Defendants’ inclusion of
multiple exhibits. It is true that when a party submits additional evidence to the Court in
connection with a motion to dismiss, and that additional evidence was not attached to the
complaint, incorporated in it by reference, or it is not a matter of which the court can take judicial
notice, “a district court must either ‘exclude the additional material and decide the motion on the
7

complaint alone’ or ‘convert the motion to one for summary judgment under FED. R .CIV. P. 56
and afford all parties the opportunity to present supporting material.’” Friedl v. City of N.Y., 210
F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v. Bd. of Mgrs. of Cont’l Towers Condo., 848 F.2d 24,
25 (2d Cir. 1988)). However, a court may consider documents upon which the Plaintiff relied in
bringing the suit, as well as documents of which the Court may take judicial notice. Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
While the Defendants ask the Court to consider documents outside the pleadings, those
documents are admissible for the purposes of deciding a motion for a judgment on the pleadings.
Namely, the Plaintiff’s state court filings and the decisions of the state court judge. Tirse v. Gilbo,
No. 615CV0987GTSATB, 2016 WL 4046780, at *14 (N.D.N.Y. July 27, 2016) (citing Johnson
v. Pugh, 11-CV-0385, 2013 WL 3013661, at *2 (E.D.N.Y. June 18, 2013) (stating that, “[a] court
may take judicial notice of matters of public record, including . . . decisions in prior state court
adjudications”); accord, Nemeth v. Vill. of Hancock, 10-CV-1161, 2011 WL 56063, at *1 n.3
(N.D.N.Y. Jan. 7, 2011) (McAvoy, J.) (collecting cases); Barnes v. Cty. of Monroe, 85 F. Supp.
3d 696, 723 (W.D.N.Y. 2015)). While it is true that the Court may only take judicial notice of
these opinions to establish the existence of the opinion, not for the truth of the facts asserted in the
opinion, as the Court will discuss below, the Court only need consider the fact that the decision
was made, how it was made, and what was decided.
Therefore, the Court finds that the Defendants have not converted their motion into one for
summary judgment.

8

D. As to whether the Plaintiff’s Claims Are Barred by the Rooker-Feldman Doctrine
1. The Relevant Law
Although the Defendants address collateral estoppel/res judicata and the Rooker-Feldman
doctrine separately in their original memorandum of law, “[t]he [Rooker-Feldman] doctrine is
generally applied coextensively with principles of res judicata (claim preclusion) and collateral
estoppel (issue preclusion). If a suit or claim would be barred in state court by either, Rooker–
Feldman prevents the federal court from asserting subject matter jurisdiction.” Vargas v. City of
N.Y., 377 F.3d 200, 205 (2d Cir. 2004).
“Under the Rooker–Feldman doctrine [which is drawn from two Supreme Court cases],
inferior federal courts have no subject matter jurisdiction over suits that seek direct review of
judgments of state courts, or that seek to resolve issues that are ‘inextricably intertwined’ with
earlier state court determinations.” Id.
“‘[I]nextricably intertwined’ means, at a minimum, that where a federal plaintiff had an
opportunity to litigate a claim in a state proceeding . . . , subsequent litigation will be barred under
the Rooker–Feldman doctrine if it would be barred under principles of preclusion.” Phifer v. City
of New York, 289 F.3d 49, 55–56 (2d Cir. 2002) (internal citations omitted); see also Pennzoil Co.
v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) (Marshall, J., concurring)
(“The federal claim is inextricably intertwined with the state-court judgment if the federal claim
succeeds only to the extent that the state court wrongly decided the issues before it.”). The Second
Circuit has explained that:
Rooker–Feldman bars a federal claim, whether or not raised in state court, that
asserts injury based on a state judgment and seeks review and reversal of that
judgment; such a claim is “inextricably intertwined” with the state judgment. But
the phrase “inextricably intertwined” has no independent content. It is simply a
descriptive label attached to claims that meet the requirements outlined [by the
Supreme Court].
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Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 86 (2d Cir. 2005)
Here, res judicata, or claim preclusion, is not triggered because an Article 78 proceeding
does not implicate the same claims or relief as one brought pursuant to Section 1983. See id.
(“[W]here, as here, a section 1983 action is brought by an unsuccessful Article 78 plaintiff, only
issue preclusion triggers the Rooker–Feldman bar. New York’s claim preclusion rule does not
apply because a state court entertaining an Article 78 proceeding does not have the power to award
the full measure of relief available in subsequent section 1983 litigation.”); Colon v. Coughlin, 58
F.3d 865, 870 n.3 (2d Cir. 1995) (“[C]laim preclusion generally does not operate to bar a § 1983
suit following the resolution of an Article 78 proceeding, since the full measure of relief available
in the former action is not available in the latter.”); Fortunatus v. Clinton Cty., N.Y., 937 F. Supp.
2d 320, 332 (N.D.N.Y. 2013) (“However, because an Article 78 court does not have the power to
award the type of relief available in a § 1983 action, res judicata—a bar of the litigation—would
not be applicable.”); Sorano v. Taggart, 642 F. Supp. 2d 45, 52 (S.D.N.Y. 2009) (“Since Sorano
could not have sought actual damages from the defendants in her Article 78 petition,[] she should
not be precluded under the doctrine of res judicata from seeking monetary damages from the
defendants in this Section 1983 federal action.” (internal citations omitted)). Therefore, the
Plaintiff’s claims are not barred by res judicata.
The Second Circuit has said that issue preclusion, or collateral estoppel:
bars litigation of an issue when (1) the identical issue was raised in a previous
proceeding; (2) the issue was actually litigated and decided in the previous
proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4)
the resolution of the issue was necessary to support a valid and final judgment on
the merits.
Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013) (quoting Ball v. A.O. Smith Corp., 451 F.3d
66, 69 (2d Cir. 2006)).
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However, “[t]he mere failure to raise an issue in state court does not . . . invariably save a
federal plaintiff from issue preclusion under Rooker-Feldman.” Vargas, 377 F.3d at 206; see also
Fuchsberg & Fuchsberg v. Galizia, 300 F.3d 105, 109 (2d Cir. 2002) (holding that a prior decision
will have preclusive effect with regard to an issue, notwithstanding the failure of that prior decision
to

explicitly address

that

issue,

“if

resolution

of

the

issue

was

by necessary

implication . . . contained in that which was explicitly decided.” (quotations, brackets and citation
omitted)).
2. As to Whether the Plaintiff is Collaterally Estopped from Bringing His
Instant Claims
The Defendants argue, without analyzing the issues determined by the New York State
Supreme Court, that the Plaintiff is precluded from bringing any of his claims in federal court. The
Plaintiff similarly sweeps broadly over the issues to contend that Article 78 proceedings do not bar
Section 1983 actions. While it is true that Section 1983 claims are not barred by res judicata
because a plaintiff previously commenced an Article 78 proceeding, such proceedings can
collaterally estop a plaintiff from bringing Section 1983 claims in federal court. Here, in this case,
the Plaintiff is collaterally estopped from bringing such claims. While the Plaintiff is not barred
by the Rooker-Feldman doctrine from bringing his defamation claim, he has failed to plead
sufficient facts to state a claim for such relief; and therefore that claim must also be dismissed.
The Plaintiff’s federal suit includes claims for a violation of procedural and substantive
due process in violation of Section 1983 and the New York State Constitution; and a claim for
defamation. The Court notes that “[t]he due process guarantees of the New York Constitution
have been interpreted by New York courts generally to be coextensive with federal due process
protections.” DeMartino v. N.Y. State Dep’t of Labor, 167 F. Supp. 3d 342, 373–74 (E.D.N.Y.
2016) (citing Oneida Indian Nation of N.Y. v. Madison Cty., 665 F.3d 408, 427 n.13 (2d Cir. 2011)
11

(“With some exceptions, New York courts have interpreted the due-process guarantees of the New
York Constitution and the United States Constitution to be coextensive—or assumed that they
are.”); Spring v. Allegany–Limestone Cent. Sch. Dist., No. 14–CV–476, 2015 WL 5793600, at *9
(W.D.N.Y. Sept. 30, 2015) (“In the absence of a clear ruling that a different standard is to be
applied, New York courts generally interpret the due-process guarantees of the New York
Constitution and the United States Constitution as coextensive.” (citations omitted)); Hernandez
v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 14 (N.Y. 2006) (Graffeo, J., concurring)
(“Although our Court has interpreted the New York Due Process Clause more broadly than its
federal counterpart on a few occasions, all of those cases involved the rights of criminal
defendants, prisoners or pretrial detainees, or other confined individuals.”), abrogated by
Obergefell v. Hodges, ––– U.S. ––––, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015)). Therefore, the
New York constitutional due process claims will be analyzed in the same fashion as the federal
constitutional due process claims.
The Plaintiff’s Article 78 petition was brought pursuant to subsection three of Section 7803
of the N.Y. C.P.L.R., which defines the scope of Article 78 proceedings. It states that:
The only questions that may be raised in a proceeding under this article are:
...
3. whether a determination was made in violation of lawful procedure, was affected
by an error of law or was arbitrary and capricious or an abuse of discretion,
including abuse of discretion as to the measure or mode of penalty or discipline
imposed;
....
N.Y. C.P.L.R. § 7803. The Plaintiff’s Article 78 proceeding asked the Court to find that his
termination was “arbitrary, capricious, unfair, and an abuse of discretion and affected by error of
law because he had successfully completed all necessary requirements to enter the . . . Academy.”
(Defs.’ Ex. 3 at 10–11). The Plaintiff’s Article 78 petition did not explicitly claim that he was

12

deprived of due process, nor did it seek to have the New York State Supreme Court declare that
he was so deprived. However, as discussed below, in the Court’s opinion, the Plaintiff’s Article
78 petition and the decision of the New York State Supreme Court necessarily implicated both
substantive and procedural due process.
a. As to Whether the Plaintiff Can Be Estopped from Bringing These
Claims Against Sini
Although the issue was not raised by either party, the Court notes that collateral estoppel
would apply to the claims against Sini just as it would to the claims against the County and the
SCPD. Even though Sini was not a party to the State Action, if the Court finds that the Plaintiff is
collaterally estopped from bringing his claims, Sini receives the benefit of collateral estoppel. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337, 99 S. Ct. 645, 654, 58 L. Ed. 2d 552 (1979)
(holding that mutuality of parties is not required for application of the doctrine of collateral
estoppel); Robinson v. Scully, No. 89 CIV. 7244 (RJW), 1993 WL 340998, at *6 (S.D.N.Y. Aug.
23, 1993) (“Finally, although, unlike defendant Scully, defendant Artuz was not a party to
plaintiff’s Article 78 proceeding, he is nevertheless entitled to make defensive use of collateral
estoppel against plaintiff.”); Abdul–Matiyn v. City of N.Y., No. 90 Civ. 7070 (PNL), 1991 WL
130189 at *1 n.1 (S.D.N.Y. July 8, 1991) (“[C]ollateral estoppel (or issue preclusion) . . . does not
require identity of parties in the prior and subsequent litigation.”).
b. As to the Plaintiff’s Substantive Due Process Claims
In order to plead a claim for substantive due process, a plaintiff must show that the
government action complained of was “arbitrary, conscience-shocking, or oppressive in a
constitutional sense . . . .” Cunney v. Bd. of Trustees, 660 F.3d 612, 626 (2d Cir. 2011) (internal
quotation marks omitted). “In order to shock the conscience and trigger a violation of substantive
due process, official conduct must be outrageous and egregious under the circumstances; it must
13

be truly brutal and offensive to human dignity.” Lombardi v. Whitman, 485 F.3d 73, 81 (2d
Cir. 2007) (internal quotation marks omitted).
As to the substantive due process claim, although the New York State Supreme Court did
not explicitly rule on the issue, it found that the actions of the State Action Defendants were not
arbitrary or capricious. In fact, the entire State Action centered on whether the deeds of the State
Action Defendants were arbitrary or capricious. Since any finding for the Plaintiff on the issue of
substantive due process would require this Court to find that the actions of the Defendants were
arbitrary and capricious, see Cunney, 660 F.3d at 626, the Plaintiff is collaterally estopped from
bringing such a claim in federal court. That is, if the Court were to find for the Plaintiff on his
substantive due process claim, it would have to find that the state court committed error to find
that the Defendants’ actions were arbitrary and capricious. Therefore, the Plaintiff’s substantive
due process claims are inextricably intertwined with the state judgment because finding for the
Plaintiff on those claims would require a reversal of the state court’s judgment that the Plaintiff’s
dismissal was not arbitrary or capricious.
The Court notes that while the state court did not decide whether the Defendants’ actions
were oppressive or shocking to the conscience, its holding that their actions were not arbitrary
would almost certainly preclude such a finding. The issue of whether the Defendants’ actions were
arbitrary was actually raised and litigated in state court. There is no dispute that the Plaintiff had
a full and fair opportunity to litigate the issue; and the state court relied on the fact that the
Defendants’ decision was not arbitrary to resolve the state court action.
Therefore, collateral estoppel and the Rooker-Feldman doctrine prevent the Plaintiff from
bringing his substantive due process claims in federal court because the New York State Supreme
Court explicitly held that the actions of the State Action Defendants were not arbitrary.

14

Accordingly, the Defendants’ motion for a judgment on the pleadings pursuant to Rule 12(c)
dismissing the Plaintiff’s substantive due process claims is granted.
c. As to the Plaintiff’s Procedural Due Process Claims
In order to “plead a violation of procedural due process, . . . a plaintiff must first identify a
property right, second show that the government has deprived him of that right, and third show
that the deprivation was effected without due process.” J.S. v. T’Kach, 714 F.3d 99, 105 (2d
Cir. 2013) (alteration, emphasis, and internal quotation marks omitted).
In reaching the conclusion that the Plaintiff’s dismissal was not arbitrary or capricious,
Justice Pitts relied on the fact that the Plaintiff was a probationary employee. Under New York
law, a probationary employee may be dismissed without a hearing or a statement of reasons unless
the dismissal was arbitrary or capricious. Nash v. Bd. of Educ. of the City of N.Y., No. 99 CIV.
9611 (NRB), 2016 WL 5867449, at *6 (S.D.N.Y. Sept. 22, 2016) (citing Rameau v. N.Y. State
Dep’t of Health, 741 F. Supp. 68, 71 (S.D.N.Y. 1990) (collecting cases)); Abbondandolo v.
Lishansky, 174 A.D.2d 738, 738, 571 N.Y.S.2d 957, 957 (N.Y. App. Div. 1991) (“As a
probationary employee of the City of Glen Cove Police Department, the petitioner was assigned
to train at the Nassau County Police Academy, and could be dismissed from the Academy at any
time, without a hearing and without specific reasons being stated. In the absence of bad faith or
reasons prohibited by law, such a determination will be upheld.” (internal citations omitted));
compare N.Y. Civ. Serv. Law §75-1(a) (stating that individuals who have been permanently
appointed to the competitive class of the civil service may not be removed except upon a hearing).
Therefore, in finding that the dismissal of the Plaintiff was not arbitrary or capricious,
Justice Pitts necessarily found that the Plaintiff’s procedural due process was not violated because
he was not due a hearing. Said differently, Justice Pitts found that the Plaintiff was afforded

15

sufficient due process because the Plaintiff was a probationary employee, and the Defendants’
actions were not arbitrary and capricious.
Furthermore, the case law is clear when a judge presiding over an Article 78 proceeding
has to determine whether to intervene in the discharge of a probationary employee, the judge
should “intervene only where it is shown that the discharge was made in bad faith, and therefore
was arbitrary and capricious, or was due to constitutionally impermissible reasons, or was
prohibited by statute or case law.” Whelan v. Rozzi, 155 A.D.2d 603, 603, 547 N.Y.S.2d 660, 661
(N.Y. App. Div. 1989); see also York v. McGuire, 63 N.Y.2d 760, 761, 469 N.E.2d 838, 839 (N.Y.
1984) (“It is well settled that a probationary employee may be discharged without a hearing and
without a statement of reasons in the absence of any demonstration that dismissal was for a
constitutionally impermissible purpose or in violation of statutory or decisional law.”); Berry v.
Perales, 195 A.D.2d 926, 928, 600 N.Y.S.2d 838, 840 (N.Y. App. Div. 1993) (same); Cortijo v.
Ward, 158 A.D.2d 345, 551 N.Y.S.2d 36, 36 (N.Y. App. Div. 1990).
Therefore, by finding that the Plaintiff’s dismissal was not arbitrary and capricious, Justice
Pitts had to consider whether it was constitutionally impermissible. As stated above, the Plaintiff’s
failure to raise the issue of due process in the state court does not prevent the Court from finding
that he is nevertheless collaterally estopped from doing so because “resolution of the issue was by
necessary implication . . . contained in that which was explicitly decided.” Fuchsberg &
Fuchsberg, 300 F.3d at 109 (quotations, brackets and citation omitted)); see also Latino Officers
Ass’n v. City of N.Y., 253 F. Supp. 2d 771, 787 (S.D.N.Y. 2003) (where Article 78 petitioner raised
claims of discrimination and retaliation, “state court’s determination that . . . decision to terminate
him was supported by substantial evidence and that the penalty of dismissal did not ‘shock our
sense of fairness’ . . . necessarily implied rejection of [petitioner’s] claim that his termination was

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discriminatory and retaliatory”); Rameau v. N.Y. State Dep’t of Health, 741 F. Supp. 68, 71–72
(S.D.N.Y. 1990) (“In the Article 78 proceeding, the plaintiff claimed that his dismissal was
arbitrary, capricious, unlawful and made in bad faith because it was based on racial and ethnic
discrimination. Had the state court found that the allegations of discrimination were supported by
the facts it could not have found that plaintiff was properly discharged. Therefore, the finding that
plaintiff’s dismissal was not based on race or ethnicity was essential to the state court's holding
and that claim therefore cannot be relitigated here.”).
While the Plaintiff argues that he was not a probationary police officer once he had
completed all of his training and had been given a graduation date, the law does not support this
contention. First, the Court notes that the New York State Supreme Court relied upon the fact that
the Plaintiff was a probationary police officer in finding that his dismissal was not arbitrary and
capricious. If the plaintiff had been a permanent employee, he would have had to be afforded a
hearing, and the state court’s analysis would have been different. However, as stated above, the
state court found that because the Plaintiff was merely a probationary employee, he could be
dismissed from his position as long as his dismissal was not arbitrary and capricious. Second,
Rule 14 of the Suffolk County Civil Service Rules clearly states that “[e]very permanent
appointment to the position of police officer from an open-competitive or promotional eligible list
is for a probationary term of 18 months.” SUFFOLK CTY. CIV. SERV. R. § 1200-14 (D)(2) (2013);
see also Santoro v. Cty. of Suffolk, 20 A.D.3d 429, 429, 798 N.Y.S.2d 508, 509 (N.Y. App.
Div. 2005) (probationary period for SCPD is 18 months).

The Plaintiff was terminated

approximately seven months after he passed the mental and physical examinations, which is the
most generous starting point for his probationary period. Therefore, even if the Plaintiff was a
permanent appointee, he was still subject to the probationary term.

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The laws of New York State are clear that individuals appointed to competitive civil service
positions, including police officers, must serve probationary periods, which may include—but are
not coterminous with—training periods. See N.Y. CIV. SERV. LAW § 63-1 (“Every original
appointment to a position in the competitive class and every interdepartmental promotion from a
position in one department or agency to a position in another department or agency shall be for a
probationary term . . . . [W]hen a permanent appointment or promotion to a position in the
competitive class is conditioned upon the completion of a term of training service or of a period
of service in a designated trainee title, such service and the probationary term for such competitive
position shall run concurrently.”); N.Y. COMP. CODES R. & REGS. tit. 4, § 4.3 (“The Civil Service
Department may require that permanent appointments or promotions to designated positions shall
be conditioned upon the satisfactory completion of a term of service as a trainee in such a position
or in an appropriate, lower, training title or the completion of specified training or academic
courses, or both. The period of such term of training service shall be prescribed by the department.
Upon the satisfactory completion of such training term, and of specified courses if required, an
appointee shall be entitled to full permanent status in the position for which appointment was
made. Any appointment hereunder shall be subject to such probationary period as is prescribed in
these rules.”); N.Y. COMP. CODES R. & REGS. tit. 4, § 4.5 (“[P]ermanent appointments, promotions
or transfers shall require, as provided herein, satisfactory completion of a probationary term which
shall include a minimum and a maximum period of probation. Such probationary term shall
commence on the effective date designated by the appointing authority and approved by the Civil
Service Department for the appointment, promotion or transfer on a permanent basis. Such
appointments, promotions or transfers shall not become permanent prior to satisfactory completion

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of at least the minimum period and may require satisfactory completion of the maximum period
of probation.”)
Therefore, as Justice Pitts’ decision necessarily implicated procedural due process, and it
was essential to his decision, the Plaintiff is collaterally estopped form bringing procedural due
process claims in federal court. In that case, the parties litigated whether the State Defendants’
actions were arbitrary and capricious. The decision that the actions were not arbitrary and
capricious was essential to Justice Pitts’ decision and the resolution of the merits; and as stated
above, there is no dispute that the Plaintiff had a full and fair opportunity to litigate the issues in
New York State Supreme Court. Accordingly, the Plaintiff’s procedural due process claims are
barred by collateral estoppel and the Rooker-Feldman doctrine.
The Court notes that even if the Plaintiff’s procedural due process claims were not barred
by the Rooker-Feldman doctrine, they would have to be dismissed for two interrelated reasons.
First, the Second Circuit has consistently held that an Article 78 proceeding is sufficient to satisfy
post-deprivation due process concerns. See Vargas, 377 F.3d at 208 (Article 78 proceeding
provided meaningful remedy to raise due process violations concerning termination); Lucarto v.
Safir, 264 F.3d 154, 174–75 (2d Cir. 2001) (plaintiffs failed to state due process claim because
Article 78 review of their terminations was “wholly adequate post-deprivation hearing”); Corredor
v. United Fed'n of Teachers, 162 F.3d 1147 (2d Cir.1998) (the Article 78 proceeding was a
sufficient post-deprivation remedy to afford due process for teacher's termination); Giglio v. Dunn,
732 F.2d 1133, 1134 (2d Cir. 1984) (“Due process requires only that a hearing be held at a
meaningful time and in a meaningful manner. Where a pre-deprivation hearing is impractical and
a post-deprivation hearing is meaningful, the State satisfies its constitutional obligations by

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providing the latter.”). Therefore, as the Plaintiff received a post-deprivation Article 78 hearing,
he cannot be said to have been deprived of either procedural or substantive due process.
Second, “[i]t is well settled that a probationary employee, unlike a permanent employee,
has no property rights in his position and may be lawfully discharged without a hearing and without
any stated specific reason.” Finley v. Giacobbe, 79 F.3d 1285, 1297–98 (2d Cir. 1996) (citing
Meyers v. City of New York, 208 A.D.2d 258, 262, 622 N.Y.S.2d 529, 532 (N.Y. App. Div. 1995);
York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 321, 469 N.E.2d 838, 839 (N.Y. 1984)
(probationary employee may be terminated without a hearing or statement of reasons); Flood v.
County of Suffolk, 820 F. Supp. 709, 713 (E.D.N.Y. 1993) (probationary employee had no property
right in her position)); see also S & D Maintenance Co. v. Goldin, 844 F.2d 962, 967 (2d Cir. 1988)
(“In the employment context, a property interest arises only where the state is barred, whether by
statute or contract, from terminating . . . the employment relationship without cause.” (emphasis
in original)). As the Plaintiff was a probationary employee, he did not have a property interest in
his position, and therefore fails to state a claim for procedural due process upon which relief can
be granted.
Accordingly, the Defendants’ motion to dismiss the Plaintiff’s procedural due process
claims pursuant to Rule 12(c) is granted.
d. As to the Plaintiff’s Defamation Claim
A claim for defamation under New York requires a plaintiff to show “(i) a defamatory
statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff,
(v) made with the applicable level of fault on the part of the speaker [or writer], (vi) either causing
special harm or constituting slander per se, and (vii) not protected by privilege.” Albert v. Loksen,
239 F.3d 256, 265–66 (2d Cir. 2001) (internal citations omitted). The New York Civil Practice

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Law and Rules mandate that in actions for defamation, “the particular words complained of shall
be set forth in the complaint, but their application to the plaintiff may be stated generally.” N.Y.
C.P.L.R. § 3016(a).
There is no evidence that the New York State Supreme Court considered any of the issues
presented by such a claim. Therefore, the Defendants’ motion to dismiss the Plaintiff’s defamation
claim on the ground that it is barred by the Rooker-Feldman doctrine is denied.
However, the Plaintiff has not alleged what “particular words” defamed him; to whom the
disclosure(s) were made; or that any special harm was caused. The only facts alleged by the
Plaintiff that relate to this cause of action are that he was discharged, dismissed, and that the
Defendants “engage[d] on a course of conduct to harass, ridicule, slander, libel and impugn the
character of the [P]laintiff.” (Compl. ¶ 34). These statements are conclusory and insufficient; and
do not state a claim upon which relief can be granted.
Accordingly, the Defendants’ motion to dismiss the Plaintiff’s defamation claim pursuant
to Rule 12(c) is granted.
III. CONCLUSION
For the reasons stated above, the Defendants’ motion to dismiss the complaint pursuant to
Rule 12(c) is granted in its entirety. The Plaintiff’s federal and New York State constitutional due
process claims are barred by the Rooker-Feldman doctrine, and the Plaintiff has failed to state a
claim for defamation upon which relief can be granted. The Clerk of the Court is respectfully
directed to close the case.

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It is SO ORDERED:
Dated: Central Islip, New York
July 26, 2017
_______/s/ Arthur D. Spatt________
ARTHUR D. SPATT
United States District Judge

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