Singer et al v. Ferro et al

Filing 73

MEMORANDUM-DECISION & ORDER that defts' 50 Motion for Summary Judgment is GRANTED; pltfs' 65 Motion to File a Supplemental Complaint is DENIED; and the complaint is DISMISSED in its entirety. The Clerk is directed to enter judgment accordingly and close the file. Signed by Judge David N. Hurd on 9/12/2011. (Attachments: # 1 Addendum "A") (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------KENT SINGER; THOMAS NOLLNER; and
JONATHAN DECKER,
Plaintiffs,
-v-

1:09-CV-690

CHRISTOPHER C. FERRO, in his individual
capacity; JON BECKER, in his individual
capacity; PAUL J. VAN BLARCUM, Ulster
County Sheriff, in his individual capacity;
JAMES R. HANSTEIN, Superintendent of
Corrections, in his individual capacity;
FRANK FALUOTICO, in his individual capacity;
and COUNTY OF ULSTER,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

BERGSTEIN & ULLRICH, LLP
Attorneys for Plaintiffs
15 Railroad Avenue
Chester, NY 10919

STEPHEN BERGSTEIN, ESQ.

ROEMER WALLENS GOLD & MINEAUX LLP
Attorneys for Defendants
13 Columbia Circle
Albany, NY 12203

EARL T. REDDING, ESQ.

DAVID N. HURD
United States District Judge

MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiffs Corporal Kent Singer ("Cpl. Singer"), Corrections Officer Thomas Nollner
("CO Nollner"), and Corrections Officer Jonathan Decker ("CO Decker") (collectively
"plaintiffs") bring this action against defendants Sergeant Christopher C. Ferro ("Sgt. Ferro"),
Captain Jon Becker ("Cpt. Becker"), Ulster County Sheriff Paul J. Van Blarcum ("Sheriff Van
Blarcum"), Superintendent of Corrections James R. Hanstein ("Superintendent Hanstein"),
Ulster County Undersheriff Frank Faluotico ("Undersheriff Faluotico"), and the County of
Ulster ("County") (collectively "defendants") under Title 42, United States Code, section
1983. Plaintiffs contend defendants violated the First Amendment to the United States
Constitution by retaliating against them for their protected speech and associations.
Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure
56 ("Rule __"). Plaintiffs opposed and moved to file a supplemental complaint pursuant to
Rule 15. The motions were considered on their submissions without oral argument.
II. BACKGROUND
In September 2008, during his employment hours and on a work computer, Cpl.
Singer created a parody using the well-known Absolut Vodka advertisement. A computer
program allowed him to rename the advertisement "Absolut Corruption." Acting alone, he
pasted the faces of four jail supervisors inside the vodka bottle: defendant Sgt. Ferro,
defendant Cpt. Becker, Warden Ray Acevedo ("Warden Acevedo"), and thenSuperintendent of Corrections Brad Ebel ("Former Superintendent Ebel"). A copy of the
parody is attached to this decision as Addendum "A."

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After creating the parody, Cpl. Singer showed it to five colleagues in or near the
control room of the Ulster County Jail: James Dugan, Bradley Higgins, Matthew Bogart,
plaintiff CO Nollner, and plaintiff CO Decker. Plaintiff CO Nollner disputes that Cpl. Singer
showed him the parody. Shortly after showing his co-workers the parody, Cpl. Singer threw
the parody in the garbage in the control room. According to him, he did not intend to show
the parody to any of his supervisors or to make it public.
Cpl. Singer believed certain individuals at the jail were corrupt, including those
portrayed in the parody. According to him, "[i]t was a political statement. I thought it was
funny." Redding Aff., Ex. C., Dkt. No. 50-4, 24 ("Singer Dep."). The alleged unethical
conduct at the jail included Former Superintendent Ebel pre-arranging promotions of
defendant Cpt. Becker and defendant Sgt. Ferro without appropriate procedures or
interviews; promotion of Cpt. Becker to lead the Sheriff’s Emergency Response Team
("SERT")1 without enough supervisory experience; Cpt. Becker's dual role as head of SERT
and Internal Affairs which created a conflict of interest because Internal Affairs investigates
complaints against officers; and Cpt. Becker and Sgt. Ferro's friends at the jail receiving jobrelated perks, such as special assignments and equipment. Cpl. Singer also believed
Warden Acevedo was corrupt because he was once arrested for soliciting a prostitute and
thought defendant Sgt. Ferro was a womanizer who manipulated schedules to give his
friends time off, which resulted in payroll discrepancies. Despite another officer, Sergeant

1

The SERT team is called to respond when there is a problem with an inm ate. They m ove inm ates
from one pod to another and are also responsible for high security transports. Mem bership on SERT is
voluntary but officers have to qualify to join. According to plaintiffs, it is regarded as an elite unit and officers
receive overtim e pay for SERT training (twice a m onth). As officers have to apply and pass a physical, it is
also a prestigious position. CO Nollner testified, "[i]t's a good deal to have." Redding Aff., Ex. A, Dkt. No. 502, 13. Sim ilarly, Sgt. Ferro and Acevedo testified that officers aspire to join the elite unit.
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Kerry Winters ("Sgt. Winters"), alerting Former Superintendent Ebel of the payroll issues, no
misconduct was charged in connection with the discrepancies.
One day after discarding the parody, Cpl. Singer learned that someone retrieved it
from the garbage and posted it on a bulletin board in the jail. According to Sgt. Winters,
defendant Sgt. Ferro saw the parody on the bulletin board and he and defendant Cpt. Becker
were upset by it. Sgt. Ferro heard that Cpl. Singer was the one who created it. Sgt. Ferro
then sent the parody to Warden Acevedo for an investigation. Warden Acevedo testified that
he found the parody disturbing, but did not think it violated jail rules or regulations. No further
investigation was conducted.
On September 25-26, 2008, shortly after creating the parody, Cpl. Singer was
assigned to prisoner transports. The assignments were made by defendant Sgt. Ferro and
another corporal, subject to the watch commander's deferential review. Assignment to
prisoner transports involves taking prisoners to and from court, the hospital, and other
places. Officers are sometimes required to work overtime and cancel personal obligations to
complete the transports. Prior to this time, Cpl. Singer was assigned to prisoner transports
on occasion. However beginning in April 2008 when his mother became ill, he was not
assigned to prisoner transports at his request.2
On October 1, 2008, Cpl. Singer met with defendant Cpt. Becker. Cpl. Singer took a
micro-cassette recorder to the meeting in Cpt. Becker's office, which was not in a secure part
of the jail. According to Cpl. Singer, "I had no idea what I was getting into" and "heard that
[defendants Cpt. Becker and Sgt. Ferro] were head-hunting over this [parody]." Singer Dep.,
2

Cpl. Singer was responsible for looking after his m other's health needs and driving her to the doctor
and em ergency room . He did so from April 2008 until her death in Novem ber 2008. By not being assigned to
prisoner transports, Cpl. Singer was free to handle his m other's m edical em ergencies.
-4-

77-78, 80-82. Without telling defendant Cpt. Becker, Cpl. Singer secretly recorded the
conversation. At the meeting, Cpl. Singer informed Cpt. Becker he could not perform
prisoner transports anymore because of his mother's health problems and requested that his
work be limited to inside the facility. Cpt. Becker granted the request. Cpt. Becker then told
Cpl. Singer that he knew Cpl. Singer was the one who created the parody, even though he
could not prove it. He also suspected, since they were all friends, that plaintiffs CO Decker
and CO Nollner were in the room when Cpl. Singer created it. Cpt. Becker believed CO
Decker and CO Nollner had a duty to report Cpl. Singer's misconduct to their supervisors.
According to Cpl. Singer, he left Cpt. Becker's office without turning off the recorder.
Because he did not know how to work the device, he showed it to another officer in the
control room (a secure part of the facility) who helped him turn it off. He contends he did not
play the recording to that officer or to anyone else. According to defendants, Cpl. Singer
disclosed the body of his conversation with Cpt. Becker to plaintiff CO Nollner and another
subordinate officer.
The cassette tape was produced in discovery in this case pursuant to Rule 26. After
learning about the recording, jail officials investigated Cpl. Singer's conduct and found it
violated jail rules and regulations. Cpl. Singer was charged, pursuant to New York Civil
Service Law section 75, with violating a jail rule prohibiting the installation of a microphone or
device in the building (Charge 1); a jail rule prohibiting staff from bringing electronic devices
into secure areas (Charge 2); and with "conduct unbecoming" of a corrections supervisor for
allegedly sharing the recording with his subordinates (Charge 3).
A disciplinary hearing was held on June 17, 2010. Since the filing of defendants'
motion for summary judgment on January 14, 2011, the Hearing Officer rendered findings of
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fact and a penalty recommendation. On January 17, 2011, the Hearing Officer issued a
decision finding Cpl. Singer not culpable of Charge 1 but culpable of Charges 2 and 3. He
recommended a penalty of ten days suspension without pay. In a February 15, 2011, letter
to Cpl. Singer, defendant Sheriff Van Blarcum rejected the Hearing Officer's recommendation
and instead terminated Cpl. Singer.
Plaintiffs CO Nollner and CO Decker also allege they were retaliated against after Cpl.
Singer created the parody. According to CO Decker, on October 24, 2008, defendant Sgt.
Ferro threatened him after he requested to take sick time. CO Decker testified that Sgt.
Ferro accused him of helping to create the parody and told him they would "deal with this the
old fashioned way" and "take it outside." Redding Aff., Ex. B, Dkt. No 50-3, 62-64. Sgt.
Ferro testified that he did not believe plaintiffs CO Decker nor CO Nollner had anything to do
with the parody, and that he raised his voice to CO Decker because CO Decker was bullying
other officers.
Plaintiffs CO Nollner and CO Decker contend they were further harassed at a SERT
meeting led by defendant Cpt. Becker in March 2009. CO Nollner and CO Decker were on
SERT for approximately ten years. They contend that at the meeting, Cpt. Becker accused
SERT members of being in the room when Cpl. Singer made the parody and said that he
wanted to kick some officers off the SERT team. CO Nollner indicated at the meeting that he
had nothing to do with the parody, but defendant Sgt. Ferro said he did not trust him nor CO
Decker to handle SERT functions, in part, because of the parody.
Plaintiffs filed this action on June 15, 2009. Two weeks later, Warden Acevedo
removed plaintiffs CO Nollner and CO Decker from SERT, at defendant Undersheriff
Faluotico's direction. Warden Acevedo told the officers that they were suspended from
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SERT pending the instant litigation. According to defendant Cpt. Becker, the lawsuit created
tension among SERT members which resulted in trust issues, making it difficult to "run a
formidable paramilitary team when you know two members are suing you for something."
Redding Aff., Ex. E, Dkt. No. 50-7, 53-54. Defendant Undersheriff Faluotico testified that he
removed the plaintiffs from SERT because "[t]he lawsuit had caused a breakdown in
communication which was a breakdown in officer safety and therefore everyone's safety."
Redding Aff., Ex. G, Dkt. No. 50-9, 16.
In their amended complaint, plaintiffs allege the following under § 1983: 1) that after
making the parody, Cpl. Singer was retaliated against in violation of the First Amendment
right to free speech by being reassigned to prisoner transports; 2) that after filing this lawsuit,
Cpl. Singer was retaliated against in violation of the First Amendment right to free speech by
the commencement of disciplinary charges against him for an infraction which similarly
situated officers were not disciplined for; 3) that after Cpl. Singer made the parody, CO
Nollner and CO Decker were retaliated against in violation of the First Amendment right to
freely associate by being subjected to verbal abuse and false allegations; and 4) that after
filing this lawsuit, CO Nollner and CO Decker were retaliated against in violation of the First
Amendment right to free speech by being removed from SERT.
III. DISCUSSION
Defendants move for summary judgment dismissing Cpl. Singer's freedom of speech
claims on the grounds that his alleged speech is not protected, he suffered no adverse
actions, and there was no causal connection between the speech and actions. Defendants
contend CO Nollner and CO Decker cannot prevail on freedom of association claims merely
because they are friends with Cpl. Singer at the jail. They also assert the filing of this lawsuit
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is not protected and thus CO Nollner and CO Decker's free speech claim must fail.
Defendants further argue defendants Sheriff Van Blarcum and Superintendent Hanstein must
be dismissed for lack of personal involvement and the remaining individual defendants are
entitled to qualified immunity. In response, plaintiffs withdraw all claims against defendant
Superintendent Hanstein.
Plaintiffs move to file a supplemental complaint incorporating Cpl. Singer's wrongful
discharge claim, which accrued (in February 2011) after plaintiffs filed their amended
complaint in December 2009.
A. Legal Standard—Motion for Summary Judgment
Summary judgment is warranted when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505,
2509-10 (1986). All facts, inferences, and ambiguities must be viewed in a light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).
Initially, the burden is on the moving party to demonstrate the absence of a genuine
issue of material fact. Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S. Ct. at
2511. A fact is ‘material' if it "might affect the outcome of the suit under the governing law."
Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of N.Y., 426 F.3d
549, 553 (2d Cir. 2005). The non-moving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at
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586, 106 S. Ct. at 1356. There must be sufficient evidence upon which a reasonable fact
finder could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248-49,
106 S. Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356.
1. Plaintiff Cpl. Singer
a. Parody
Defendants move to dismiss Cpl. Singer's First Amendment retaliation claim on the
ground that the parody was not protected speech because it did not relate to a matter of
public concern. They argue Cpl. Singer created the parody because of purely internal
reasons and his own dissatisfaction with the conditions of his employment. Further, he did
not intend to show the parody to anyone or to make it public. Therefore, they maintain Cpl.
Singer was not speaking on a matter of public concern. They also dispute that the
reassignment to prisoner transports was an adverse employment action—they contend it was
actually a preferable assignment. Finally, defendants assert there was no causal connection
between the creation of the parody and Cpl. Singer's reassignment.
Cpl. Singer argues the parody was protected speech because it addressed municipal
corruption which is a matter of public concern. He disputes that his grievances about the jail
corruption related to his specific employment or ill-treatment towards himself—instead he
alleges the favoritism and corruption in general affected other officers and hurt morale. He
maintains that simply because he has a personal interest in the subject matter does not mean
his speech is unprotected. Cpl. Singer also contends that his reassignment to prisoner
transports was an adverse employment action because of his obligations to his sick mother.
Finally, he claims the decision to assign him to prisoner transports was motivated by his
making the parody.
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To establish a retaliation claim in violation of the First Amendment right to free speech,
a plaintiff must show: (1) his speech addressed a matter of public concern; (2) he suffered an
adverse employment action; and (3) a causal connection between the protected speech and
the adverse employment action. Singh v. City of N.Y., 524 F.3d 361, 372 (2d Cir. 2008).
"Whether public employee speech is protected from retaliation under the First Amendment
entails two inquiries: (1) 'whether the employee spoke as a citizen on a matter of public
concern' and, if so, (2) 'whether the relevant government entity had an adequate justification
for treating the employee differently from any other member of the general public.'" Ruotolo
v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008) (quoting Garcetti v. Ceballos, 547 U.S. 410,
418, 126 S. Ct. 1951, 1958 (2006)).
"[P]ublic concern is something that is a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public at the time of publication."
City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84, 125 S. Ct. 521, 525-26 (2004).
Determining if "'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.'" Ruotolo, 514 F.3d at 189 (quoting Lewis v.
Cowen, 165 F.3d 154, 163 (2d Cir. 1999)). The inquiry is "whether the employee's speech
was 'calculated to redress personal grievances or whether it had a broader public purpose.'"
Id. (quoting Lewis, 165 F.3d at 163-64).
In considering the content, form, and context of the speech, a court may evaluate the
manner in which the employee made the speech, such as whether it was made publicly or
privately. See Dorcely v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178, 210
(E.D.N.Y. 2009). Further, while an employee's motivation for making the statements at issue
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is not dispositive, it may be considered. See Burns v. Cook, 458 F. Supp. 2d 29, 40
(N.D.N.Y. 2006) (Hurd, J.) (concluding speech was not protected where the plaintiff spoke in
a private and direct matter with no apparent intention of voicing her discontent to the public at
large).
In Dorcely, the plaintiff (a school psychologist) alleged he was retaliated against after
he wrote a letter complaining about the poor conditions for Haitian students and their
treatment in the defendant school district. The court determined his speech was not
protected because there was no evidence, "aside from Plaintiff's conclusory statements in his
opposition papers and Complaint, that this speech was designed to reveal District-wide
discrimination or to address the impact of discrimination on the school environment."
Dorcely, 665 F. Supp. 2d at 210. The court noted there was "no evidence that Dorcely's
speech was voiced to the public at large or had a broader public purpose." Id.
A defendant's conduct constitutes adverse employment action, with regard to a First
Amendment retaliation claim, if the conduct "would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional rights." Zelnik v. Fashion Inst. of
Tech., 464 F.3d 217, 225 (2d Cir. 2006) (internal quotations omitted). Thus, in addition to
"discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand,"
less severe actions such as "negative evaluation letters, express accusations of lying,
assignment of lunchroom duty, reduction of class preparation periods, failure to process
teacher's insurance forms, transfer from library to classroom teaching as an alleged
demotion, and assignment to classroom on fifth floor which aggravated teacher's physical
disabilities" can be considered adverse employment actions. Id. at 226.

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Finally, a causal connection between the protected speech and the adverse
employment decision may be established with direct evidence of retaliatory animus or
circumstantial evidence such as temporal proximity. Morris v. Lindau, 196 F.3d 102, 110 (2d
Cir. 1999).
Taking into account the content, form, and context of the parody, as well as Cpl.
Singer's apparent motivation for engaging in it, his speech is not related to a matter of public
concern. As can be readily seen from a review of the parody attached to this decision as
Addendum "A," it does not communicate a matter of public concern. It merely shows the
photographs of four people's faces cut and pasted inside a vodka bottle with the words
"Absolut Corruption" printed below the bottle. It is entirely unclear who the people are or what
is corrupt. None of the four individuals on the bottle are identified by name. There are no
words or graphics suggesting who or what is corrupt, and there is no indication that the
corruption relates to the Ulster County Jail or the Ulster County Sheriff's Department.
Additionally, Cpl. Singer communicated this speech in a private manner with no
apparent intention of voicing his discontent to the public at large. He admitted he did not
intend to show it to any of his supervisors or to make it public. This is further evidenced by
his disposal of the parody in the garbage after showing it to five of his colleagues. It would
likely never have been seen by anyone beside Cpl. Singer's five colleagues had it not been
removed from the garbage by someone else. There is nothing in the record, aside from Cpl.
Singer's post-speech allegations in the complaint and conclusory statements in opposition to
summary judgment, to suggest his speech was designed to address a matter of public
concern. To the contrary, like in Burns, there is no evidence which indicates that Cpl. Singer
was motivated by anything other than his own personal interests. The fact that his speech
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concerned municipal corruption, which may be a matter of public concern generally, is not
enough to make the parody protected speech. Cpl. Singer was not speaking as a concerned
citizen; rather, he created the parody for entertainment purposes and in fact, admittedly
thought the parody was funny. Accordingly, Cpl. Singer's speech is not protected.
Because Cpl. Singer's creation of the parody is not protected, he cannot satisfy the
first element of a First Amendment retaliation claim. There is no need to consider whether his
reassignment to prisoner transports was an adverse employment action or whether there was
a causal connection. Accordingly, his claim that he was retaliated against for making the
parody will be dismissed.
b. Lawsuit
Defendants also move to dismiss Cpl. Singer's First Amendment retaliation claim
related to the filing of this lawsuit. They contend the lawsuit is not protected speech because
it does not relate to a matter of public concern. Cpl. Singer argues that the filing of this
lawsuit in June 2009 was protected speech and that the disciplinary charges brought against
him in July 2009 pursuant to New York Civil Service Law section 75 was an adverse
employment action taken because of the lawsuit. Defendants concede that the initiation of
disciplinary charges may constitute an adverse employment action, but argue there was no
connection between the filing of the lawsuit and the disciplinary charges. Instead, they
contend the charges were brought solely because Cpl. Singer violated the jail's rules and
regulations regarding the introduction of a recording device in the facility.
"The filing of litigation alone does not automatically constitute protected speech."
Miller v. City of Ithaca, No. 3:10-cv-597, 2010 WL 3809842, at *11 (N.D.N.Y. Sept. 22, 2010)

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(McAvoy, S.J.) (citing Ruotolo, 514 F.3d at 189). Instead, the basis for the lawsuit must
implicate matters of public concern. Id.
While the original June 2009 complaint and subsequent December 2009 amended
complaint contain actual allegations of corruption, unlike the September 2008 "Absolut
Corruption" parody, the lawsuit still does not qualify as speech on a matter of public concern.
The lawsuit did not arise out of or relate to any matters of public concern. The parody did not
implicate a matter of public concern for the reasons previously explained. Further, Cpl.
Singer's grievances about the disciplinary charges brought against him are entirely personal
in nature and relate to his own employment situation. His alleged violation of the jail's rules
and regulations and the subsequent investigation and disciplinary action do not implicate
matters of public concern. Therefore, the filing of the amended complaint cannot serve as
the basis for a First Amendment retaliation claim.
Accordingly, Cpl. Singer's claim that he was retaliated against for filing this lawsuit will
be dismissed.
2. Plaintiffs CO Nollner and CO Decker
a. Parody
Defendants move to dismiss CO Nollner and CO Decker's First Amendment retaliation
claims on the ground that they do not have the ability to assert a § 1983 claim to vindicate
Cpl. Singer's rights. They argue CO Nollner and CO Decker cannot assert a claim of
retaliation based on Cpl. Singer's creation of the parody. CO Nollner and CO Decker argue
that Cpl. Singer engaged in protected speech by creating the parody, and they were retaliated
against because of their association with Cpl. Singer at the jail. Specifically, CO Decker
contends defendant Sgt. Ferro physically threatened him and verbally abused him because
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he believed he was involved in creating the parody. CO Decker and CO Nollner also assert
they were berated in front of other members of the SERT team because of the parody and
were told by defendant Cpt. Becker that they could not be trusted. They also contend two
less-senior employees with spotty disciplinary histories were chosen over them by defendants
Sgt. Ferro and Cpt. Becker to be SERT team leaders.
"[I[n order to prevail on a First Amendment freedom-of-expressive-association claim, a
government employee must show, inter alia, that his expressive association involved a matter
of public concern-just as would a government employee complaining of a violation of his right
to freedom of speech." Piscottano v. Murphy, 511 F.3d 247, 273 (2d Cir. 2007) (citing Cobb
v. Pozzi, 363 F.3d 89, 102-07 (2d Cir. 2004)).
As previously discussed, the parody did not implicate a matter of public concern.
Therefore, even if plaintiffs CO Nollner and CO Decker's relationship to Cpl. Singer was close
enough to entitle them to freedom of association protection, the claim would still fail because
their association with plaintiff Cpl. Singer did not relate to a matter of public concern.
Accordingly, CO Nollner and CO Decker's claim that they were retaliated against for
associating with Cpl. Singer will be dismissed.
b. Lawsuit
Defendants also move to dismiss CO Nollner and CO Decker's First Amendment
retaliation claim related to the filing of this lawsuit. Defendants contend the lawsuit is not
protected speech because it does not relate to a matter of public concern. CO Nollner and
CO Decker argue that the filing of this lawsuit in June 2009 was protected speech and their
removal from SERT on July 31, 2009, was in retaliation for filing the lawsuit. On that date,

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Warden Acevedo issued a personnel order which removed CO Nollner and Decker from
SERT while this lawsuit is pending, per defendant Undersheriff Faluotico's order.
Plaintiffs assert their removal from SERT was an adverse employment action because
they served on the team for ten years and it was a prestigious assignment at the jail.
Defendants contend plaintiffs CO Nollner and CO Decker were removed from SERT because
of a tense working environment and breakdown in communication among SERT members
during this lawsuit. According to defendant Undersheriff Faluotico, he received unsolicited
concerns from two SERT members stating that there was a very tense working condition that
could spill over if an incident were to happen in the jail and CO Nollner and CO Decker were
to respond to it. Based on this, he contends the decision to remove CO Nollner and CO
Decker from SERT was not in retaliation for the commencement of this lawsuit, but rather
based on his reasonable prediction that disruption to SERT would result given the complaints
from squad members.
As previously discussed, the filing of litigation is not by itself protected speech.
Ruotolo, 514 F.3d at 189. Instead, the basis for the lawsuit must implicate matters of public
concern. Id.
To the extent CO Nollner and CO Decker contend the allegations of corruption in the
amended complaint—the favoritism, undeserved promotions, and conflicts of interest—relate
to matters of public concern, that argument is rejected for the same reason Cpl. Singer
cannot prevail on a First Amendment retaliation claim for filing this lawsuit. Further, CO
Nollner and CO Decker's denial of SERT team leadership assignments and their removal
from SERT are purely matters of personal concern. The alleged acts of retaliation in the

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amended complaint affect only CO Nollner and CO Decker and the relief they seek is entirely
personal to them.
Accordingly, CO Nollner and CO Decker's claim that they were retaliated against in
violation of the First Amendment for filing this lawsuit will be dismissed.
B. Legal Standard—Motion to File a Supplemental Complaint
Plaintiffs move to file a supplemental complaint incorporating Cpl. Singer's wrongful
discharge claim, which accrued after plaintiffs filed their amended complaint in December
2009. They contend defendants would not be prejudiced by a supplemental complaint, the
proposed supplemental complaint is not futile, and there is no undue delay or dilatory motive.
Defendants argue they will be unduly prejudiced because Cpl. Singer failed to exhaust his
administrative remedies. They assert they will have to now litigate whether the
commencement of the disciplinary charges were retaliatory in addition to whether the charges
are supported by substantial evidence and whether the penalty shocks one's sense of
fairness.
Under Rule 15(d), "[o]n motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P.
15(d). Supplementation may be permitted "even though the original pleading is defective in
stating a claim or defense." Id. Initially, a court must consider whether "the supplemental
facts connect it to the original pleading." Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.
1995). If the facts are connected, leave to supplement should be "freely permitted" absent
"undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the
proposed pleading, or futility." Id.
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It is undisputed that the facts which plaintiffs seek to add are related to the original
pleading and that they occurred after the filing of the amended complaint. The parties
dispute whether defendants will be prejudiced by permitting the supplemental pleading. The
proposed supplemental pleading adds facts relating to Cpl. Singer's February 2011
termination and alleges that his discharge was an excessive punishment under the
circumstances, giving rise to a new cause of action for wrongful discharge in violation of the
First Amendment.
Prejudice need not be determined because the supplemental pleading would be futile.
The amended complaint alleges that the assignment to prisoner transports and
commencement of disciplinary charges were in retaliation for engaging in the protected
speech of creating the parody and filing this lawsuit. The new cause of action plaintiffs
include in the proposed supplemental complaint is essentially no different than the First
Amendment retaliation claims currently alleged in the amended complaint. The difference in
the new cause of action alleging wrongful discharge is the adverse employment action
taken—now termination, as opposed to assignment to prisoner transports or the initiation of
disciplinary charges included the amended complaint. Cpl. Singer's alleged protected speech
remains the same—the creation of the parody and the filing of this lawsuit. For the reasons
discussed above, neither is protected by the First Amendment because the speech does not
implicate matters of public concern.
Because the speech which forms the basis for Cpl. Singer's proposed new cause of
action—wrongful discharge in violation of the First Amendment—is not protected, filing the
proposed supplemental complaint would be futile. Accordingly, plaintiffs' motion to
supplement the pleadings will be denied.
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IV. CONCLUSION
Plaintiff Cpl. Singer cannot prevail on his First Amendment retaliation claims because
neither the "Absolut Corruption" parody nor the filing of this lawsuit implicate matters of public
concern. Therefore he did not engage in protected speech and defendants' motion for
summary judgment will be granted and Cpl. Singer's claims dismissed. Plaintiffs CO Nollner
and CO Decker's freedom of association claim fails because their association with Cpl. Singer
did not involve a matter of public concern. Nor can their First Amendment retaliation claim
based on the filing of this lawsuit survive because the lawsuit does not implicate matters of
public concern. Instead, the allegations in the amended complaint concern personal
grievances about their employment at the jail. Accordingly, defendants' motion for summary
judgment will be granted and CO Nollner and CO Decker's claims dismissed.
Finally, plaintiffs' motion to file a supplemental pleading to add allegations relating to
Cpl. Singer's discharge in February 2011, allegedly in violation of the First Amendment, will
be denied because it would be futile.
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED;
2. Plaintiffs' motion to file a supplemental complaint is DENIED; and

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3. The complaint is DISMISSED in its entirety.
The Clerk is directed to enter judgment accordingly and close the file.
IT IS SO ORDERED.

Dated: September 12, 2011
Utica, New York.

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