Montalbano v. The Port Authority of New York and New Jersey et al
Filing
38
OPINION AND ORDER re: 22 CROSS MOTION for Summary Judgment Notice of Motion filed by John Montalbano, 16 MOTION for Summary Judgment filed by Francine Silver, Michael Guarnieri, Kenneth Kohlmann, The Port Authority of New York and New Jers ey, Doris Francis. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The defendants' motion for summary judgment is granted as to the plaintiff's federal claims, and denied as to the plaintiff's state law claims. The plaintiff's motion for summary judgment is denied. The plaintiff's state law claims are dismissed without prejudice. The Clerk is directed to enter Judgment and to close this case. The Clerk is also directed to close all pending motions. (Signed by Judge John G. Koeltl on 2/16/2012) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
JOHN MONTALBANO,
Plaintiff,
10 Civ. 5973 (JGK)
- against OPINION AND ORDER
THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
This case arises out of the plaintiff John Montalbano’s
(“Montalbano”) desire for a gun permit.
The plaintiff, a former
officer with the Port Authority Police Department (“PAPD”),
brought this action against the Port Authority and two
psychologists employed by the Port Authority, Dr. Doris Francis
and Dr. Francine Silver, alleging violations of his
constitutional rights under the Second and Fourteenth
Amendments, as well as violations of 42 U.S.C. § 1983.
The
plaintiff also brought state common law negligence claims
against the Port Authority and Drs. Francis and Silver, and
state common law defamation claims against two other PAPD
employees, Inspector Michael Guarnieri and Sergeant Kenneth
Kohlmann.
Before the Court are the parties’ cross-motions for
summary judgment.
§ 1332 and § 1367.
Jurisdiction is proper pursuant to 28 U.S.C.
I.
The standard for granting summary judgment is well
established.
“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Gallo v. Prudential Residential
Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
trial court's task at the summary judgment
“[T]he
motion stage of the
litigation is carefully limited to discerning whether there are
any genuine issues of material fact to be tried, not to deciding
them.
Its duty, in short, is confined at this point to issue-
finding; it does not extend to issue-resolution.”
F.3d at 1224.
Gallo, 22
The moving party bears the initial burden of
informing the district court of the basis for its motion and
identifying the matter that it believes demonstrates the absence
of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
The substantive law governing the case will identify those facts
that are material and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is appropriate if it appears that the
nonmoving party cannot prove an element that is essential to the
2
nonmoving party's case and on which it will bear the burden of
proof at trial.
See Cleveland v. Policy Mgmt. Sys. Corp., 526
U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v.
Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
In
determining whether summary judgment is appropriate, a court
must resolve all ambiguities and draw all reasonable inferences
against the moving party.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
Gallo, 22 F.3d at 1223.
Summary judgment is improper if there
is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party.
See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Cir. 1994).
If the moving party meets its initial burden of
showing a lack of a material issue of fact, the nonmoving party
must produce evidence in the record and “may not rely simply on
conclusory statements or on contentions that the affidavits
supporting the motion are not credible.”
Ying Jing Gan v. City
of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto
v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).
II.
The following facts are undisputed unless otherwise noted:
3
Montalbano served as an officer with the PAPD from 1978
until 2010.
1.)
(Def.’s R. 56.1 Stmt. ¶ 1; Pl.’s R. 56.1 Resp. ¶
He lives with his wife and their two children in New York
City.
(Def.’s R. 56.1 Stmt. ¶ 2; Pl.’s R. 56.1 Resp. ¶ 2.)
On March 9, 2009, while Montalbano was working as a Squad
Leader for the PAPD’s Emergency Services Unit (“ESU”) at
Building 254 in John F. Kennedy Airport, an incident occurred
between Montalbano and Kohlmann, who was Montalbano’s immediate
supervisor.
¶¶ 7, 12.)
(Def.’s R. 56.1 Stmt. ¶¶ 7, 12; Pl.’s R. 56.1 Resp.
The next day, Kohlmann submitted a handwritten
statement to Guarnieri, the commanding officer at JFK, alleging
that Montalbano had made verbal threats to another officer, and
had brandished a knife at the workplace.
(Def.’s R. 56.1 Stmt.
¶¶ 11, 13; Pl.’s R. 56.1 Resp. ¶¶ 11, 13; Kromm Decl. Ex. I
(Kohlmann Report).)
The parties vigorously contest whether the
incident actually took place as Kohlmann describes it.
Kohlmann
maintains that the incident took place as he describes it, and
alleges that Montalbano regularly “bull[ied]” other officers.
(Kromm Decl. Ex. D (“Kohlmann Dep.”), at 13-24.)
Montalbano
claims that the incident did not occur and that Kohlmann is
lying.
(Kromm Decl. Ex. A (“Montalbano Dep.”), at 65-70;
Montalbano Aff. ¶ 3.)
As a result of this incident, Montalbano
was ordered to see Dr. Silver, a consultant psychologist
employed by the Port Authority’s Office of Medical Services.
4
(Def.’s R. 56.1 Stmt. ¶¶ 9, 14; Pl.’s R. 56.1 Resp. ¶¶ 9, 14.)
Montalbano thereafter returned to work at the same job, and was
transferred to a different building.
(Def.’s R. 56.1 Stmt. ¶
15; Pl.’s R. 56.1 Resp. ¶ 15.)
On August 12, 2009, New York City police officers were
called to Montalbano’s home in response to an alleged domestic
incident involving Montalbano and his children.
Stmt. ¶ 16; Pl.’s R. 56.1 Resp. ¶ 16.)
(Def.’s R. 56.1
Montalbano’s daughter
alleged that he punched her, and submitted a written complaint
to that effect to the police.
(Def.’s R. 56.1 Stmt. ¶ 16; Pl.’s
R. 56.1 Resp. ¶ 16; Kromm Decl. Exs. L (written police report),
M (typed police report).)
L.)
No arrest was made.
(Kromm Decl. Ex.
Montalbano asserts that he did not hit his daughter, and
that his daughter has since recanted her statement to the
police.
(See Montalbano Dep. 82-87.)
A separate domestic
incident involving Montalbano occurred four years earlier, on
May 17, 2005.
(Def.’s R. 56.1 Stmt. ¶ 6; Pl.’s R. 56.1 Resp. ¶
6; Kromm Decl. Ex. J.)
In that incident, police came to
Montalbano’s home in response to reports that Montalbano had
locked his family out of the house and that Montalbano had
threatened the family with a gun.
(Def.’s R. 56.1 Stmt. ¶ 6;
Pl.’s R. 56.1 Resp. ¶ 6; Kromm Decl. Exs. J (written police
report), K (911 call audio).)
No arrest was made, and the
written statement made by Montalbano’s wife only reflects that
5
Montalbano had allegedly locked his family out of the house.
(See Kromm Decl. Ex. J.)
Montalbano admits that he locked his
family out of the house, but denies that there was a gun
involved.
(See Montalbano Dep. 50-55.)
After the August 12, 2009 incident, Montalbano voluntarily
secured his two personal firearms at his workplace.
56.1 Stmt. ¶ 17; Pl.’s R. 56.1 Resp. ¶ 17.)
(Def.’s R.
Montalbano was then
sent for an evaluation by Dr. Francis, the senior psychologist
for OMS, because of the domestic incident.
(Def.’s R. 56.1
Stmt. ¶¶ 8, 18; Pl.’s R. 56.1 Resp. ¶¶ 8, 18; Montalbano Dep.
91.)
Dr. Francis found Montalbano fit for duty with the
restriction that he could carry his firearm on duty only.
(Def.’s R. 56.1 Stmt. ¶ 18; Pl.’s R. 56.1 Resp. ¶ 18; Compl. Ex
1 (disposition noting “firearm on duty only” restriction);
Montalbano Dep. 94-95.)
The parties dispute the basis for Dr.
Francis’ restriction: the defendants suggest that Dr. Francis’
determination was based on her review of Montalbano’s record and
the 911 call from the August 12 incident, while Montalbano
claims that Dr. Francis was abusive and that the restriction was
baseless. (Compare Montalbano Aff. ¶ 5 with Def.’s R. 56.1 Stmt.
¶ 18.)
Montalbano continued seeing Dr. Francis on a weekly
basis until October 22, 2009.
R. 56.1 Resp. ¶ 21.)
(Def.’s R. 56.1 Stmt. ¶ 21; Pl.’s
Thereafter, he began seeing Dr. Silver,
the consultant psychologist. (Def.’s R. 56.1 Stmt. ¶ 22; Pl.’s
6
R. 56.1 Resp. ¶ 22.)
On August 21, 2009, Montalbano also began
seeing a private psychologist, Dr. Martin Weinberg, whom he had
previously seen, and he saw Dr. Weinberg 12 times over the
remainder of 2009.
(See Kromm Decl. Ex. H (“Weinberg Letter”).)
On November 6, 2009, Dr. Silver requested that Dr. Weinberg
opine on whether the gun restriction should be lifted.
R. 56.1 Stmt. ¶ 23; Pl.’s R. 56.1 Resp. ¶ 23.)
(Def.’s
On January 8,
2010, Dr. Weinberg wrote a letter to Dr. Silver stating that
Montalbano “remains behaviorally under control and despite his
verbal complaints he does not present in a dangerous manner.”
(Weinberg Letter.)
Dr. Weinberg’s letter discussed Montalbano’s
“interest in having gun restrictions rescinded” but did not
specifically recommend that the on duty only restriction be
lifted.
(Weinberg Letter.)
Dr. Silver testified at her
deposition that she told Montalbano that, if Dr. Weinberg
disagreed with her continued recommendation of the restriction,
then he would be entitled to a third-party evaluation.
(Kromm
Decl. Ex. B (“Silver Dep.”), at 57-58.)
At no point was the on duty only restriction lifted.
January 19, 2010, Montalbano retired from the PAPD.
On
(Def.’s R.
56.1 Stmt. ¶ 25; Pl.’s R. 56.1 Resp. ¶ 25.)
Montalbano never filed a grievance with the Port Authority
Patrolmen’s Benevolent Association, his union, in connection
with the firearms restriction.
(Def.’s R. 56.1 Stmt. ¶ 24;
7
Pl.’s R. 56.1 Resp. ¶ 24; Montalbano Dep. at 97-98.)
Montalbano
never filed an Article 78 proceeding in New York State Supreme
Court challenging the on duty only restriction.
(Def.’s R. 56.1
Stmt. ¶ 27; Pl.’s R. 56.1 Resp. ¶ 27.)
After Montalabano retired in January 2010, he applied for a
firearms permit.
(See Montalbano Aff ¶ 6.)
Montalbano claims,
and the defendants do not dispute, that the City of New York,
which issues such permits, would not accept his application
without a Certificate of Good Standing from the Port Authority. 1
(Montalbano Aff. ¶¶ 5-6.)
Montalbano has not specified whether
he has applied for a specific type of gun license.
In a
February 16, 2010 letter to Montalbano’s attorney, the Port
Authority refused to conduct “further review of Mr. Montalbano’s
fitness”—in effect, to modify the firearms restriction which
remains on his record with the Port Authority— because
Montalbano was no longer a PAPD employee.
(Kromm Decl. Ex P.)
Montalbano filed this lawsuit in August 2010.
He alleges
that the Port Authority and its two psychologists violated his
constitutional rights under the Second and Fourteenth Amendment,
1
There is little direct evidence in the record about what such a
certificate is. In his deposition testimony, Montalbano
referred to this certificate as an “atta boy letter,” and
explained that such letters are normally given to retired PAPD
officers as a matter of course. (Montalbano Dep. at 127-134.)
There is no other evidence in the record explaining what a
Certificate of Good Standing or an “atta boy letter” is, or
pursuant to what if any policy it is given.
8
as well as his rights to substantive and procedural due process
under the Fourteenth Amendment, which rights he seeks to
vindicate under 42 U.S.C. § 1983.
Montalbano also asserts state
common law negligence claims against those defendants for their
failure to assess his mental condition accurately, and state
common law defamation claims against Guarnieri and Kohlmann for
their accusations relating to the March 9, 2009 incident.
Before the Court are the parties’ cross-motions for summary
judgment.
III.
Montalbano argues that the defendants have violated his
rights under the Second Amendment, and denied his right to
substantive and procedural Due Process under the Fourteenth
Amendment.
1983.
He seeks to vindicate those rights under 42 U.S.C. §
Section § 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.
9
“To state a § 1983 claim, a plaintiff must establish that
the defendant deprived him of a federal or constitutional right
while acting under the color of state law.”
Cox v. Warwick
Valley Cent. School Dist., 654 F.3d 267, 272 (2d Cir. 2011).
A.
Montalbano’s first cause of action is asserted against the
Port Authority for violation of his Second Amendment Rights.
The Port Authority cannot be held vicariously liable for
the acts of its employees in a § 1983 action.
See, e.g.,
Caceres v. Port Authority of New York and New Jersey, 631 F.3d
620, 625 (2d Cir. 2011).
Rather, Montalbano must produce
evidence showing that the alleged deprivation of his Second
Amendment rights was the result of a policy, custom, or practice
of the Port Authority itself.
See, e.g., Damato v. City of New
York, No. 06 Civ. 3030, 2008 WL 2019122, at *3 (S.D.N.Y. May 12,
2008).
Montalbano’s counsel conceded at oral argument that
there was no evidence in the discovery record indicating that
any other former Port Authority employee “was unduly given a
firearms restriction.”
(Oral Arg. Tr. at 6-7.)
Moreover, while
there is some deposition testimony by the plaintiff explaining
the existence of “atta boy” letters that allegedly serve as
unofficial certificates of good standing for retired PAPD
officers applying for gun permits, (See Montalbano Dep. at 128-
10
134), there is no evidence in the record indicating that any
other former PAPD employee was denied such a letter.
Because
there is no evidence to support the existence of a policy,
custom, or practice of improperly restricting employees or
former employees’ handgun use by the Port Authority, the first
cause of action must be dismissed.
Even if Montalbano were able to establish a policy, custom
or practice based on a “single-incident” theory of municipal
liability, 2 Montalbano has not shown that he has experienced a
deprivation of his Second Amendment Rights, and his claim must
fail on that basis as well.
The Second Amendment protects the right of a person to
possess a firearm in the home for self defense.
See District of
Columbia v. Heller, 554 U.S. 570, 635 (2008) (recognizing “the
2
In certain specific circumstances, a single incident may
suffice to establish a municipal custom, policy, or practice
sufficient to create liability under § 1983; for example, a
single action taken directly by a municipal policymaker may be
sufficient to establish a municipal policy. See, e.g., Amnesty
America v. Town of West Hartford, 361 F.3d 113, 127 (2d Cir.
2004) (Sotomayor, J.) (“[B]ecause a single action on a
policymaker's part is sufficient to create a municipal policy, a
single instance of deliberate indifference to subordinates'
actions can provide a basis for municipal liability.”).
Alternatively, Montalbano might have argued that there was a
policy of providing “atta boy” letters as a basis to recieve gun
permits, but there is no evidence from which a reasonable jury
could find such a policy. In any event, these arguments were
not pressed in this case, and in any event, as explained below,
there has been no deprivation of Montalbano’s Second Amendment
rights.
11
right of law-abiding, responsible citizens to use arms in
defense of hearth and home.”); see also McDonald v. City of
Chicago, 130 S. Ct. 3020, 3036 (2010).
The Second Amendment is
“fully applicable to the States,” as well as the federal
government.
Id. at 3026.
However, “the right secured by the Second Amendment is not
unlimited” and is “not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.”
Heller, 554 U.S. at 626.
The Supreme Court has therefore
explained that its recent decisions in Heller and McDonald do
not “cast doubt on longstanding prohibitions on the possession
of firearms by felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.”
Id. at 626-627;
see also McDonald, 130 S. Ct. at 3047 (plurality op.).
Reasonable restrictions may be imposed on the right to keep and
bear arms without the right being denied.
See id.; Nordyke v
King, 644 F.3d 776, 786 (9th Cir. 2011) (analogizing to the
First Amendment context and noting that “‘the government may
impose reasonable restrictions on the time, place, or manner of
protected speech,’ provided, inter alia, that the restrictions
are not too cumbersome” (quoting Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989))), rehearing en banc granted, 2011 WL
12
5928130 (9th Cir. Nov 28, 2011); Mallard v. Potenza, 376 F.
App’x. 132, 134 (2d Cir. 2010) (summary order) (Heller “did not
hold reasonable licensing requirements unconstitutional.”).
The Port Authority did not categorically bar Montalbano
from keeping a firearm at home for self-defense.
Compare
Heller, 554 U.S. at 636 (“[T]he enshrinement of constitutional
rights necessarily takes . . . off the table. . . . the absolute
prohibition of handguns held and used for self-defense in the
home.”).
Rather, the Port Authority limited Montalbano’s
possession of a firearm to on duty possession as a condition of
his employment.
Cf. Jackler v. Byrne, 658 F.3d 225, 234 (2d
Cir. 2011) (“It is by now well established . . . that a citizen,
upon entering government service, ‘by necessity must accept
certain limitations on his or her freedom.’”) (quoting Garcetti
v. Ceballos, 547 U.S. 410, 418 (2006)).
It is uncontested that
this restriction was put in place in the wake of a documented
domestic incident in which police were sent (for the second time
in five years) to Montalbano’s home after his family members
called 911.
The Port Authority’s on duty restriction was a reasonable
condition of Montalbano’s continued employment. The possession
of a firearm was a reasonable part of his employment with the
PAPD.
At the same time, the PAPD could assure that the
plaintiff only had access to the weapon while on duty.
13
Having
one of its police officers involved in an episode of domestic
gun violence, or allowing an officer to be armed and
unsupervised when the officer had a prior domestic incident,
would severely undermine the Port Authority’s ability “to
operate efficiently and effectively” in providing security to
the public.
Garcetti, 547 U.S. at 419.
Moreover, Montalbano
did not object to the Port Authority’s restriction at the time.
Montalbano argues now that his rights under the Second
Amendment have effectively been denied by the Port Authority’s
refusal to give him a certificate of good standing now that he
has retired, because he cannot get a permit to carry a firearm
without such a certificate. 3
This argument is meritless.
Nothing in the Second Amendment’s “right to keep and bear arms”
3
The papers and the evidence in the record do not explain
whether Montalbano would receive a permit if he had the
certificate of good standing, and Montalbano asserts only that
he cannot get a permit without such a certificate. See NY PENAL
LAW § 400.00(4)(a) (“[T]he licensing officer shall either deny
the application for reasons specifically and concisely stated in
writing or grant the application and issue the license applied
for.”); see also N.Y.C. Rules, tit. 38, § 5-10(c), (g), (n)
(listing grounds for denial of a handgun permit). Moreover,
Montalbano does not explain whether he applied for a specific
type of permit or exemption which may have more stringent
requirements, see, e.g., N.Y.C. Rules, tit. 38, § 5-04 (special
requirements for carry guard license), or how it is that he was
not already permitted by the City given that he had been
carrying a gun for over two decades. Neither party has
identified the statutory basis for the requirement that
Montalbano procure a “certificate of good standing.”
Nevertheless, the parties do not appear to dispute these points,
and they are therefore not at issue on this motion for summary
judgment.
14
requires that the Port Authority expunge from the records of its
former employee a firearms restriction that was reasonably
imposed after a documented domestic incident, in order to
facilitate the former employee’s gun ownership and use as a
private citizen. 4
Cf. Ysursa v. Pocatello Educ. Ass'n, 555 U.S.
353, 358 (2009) (noting, in the First Amendment context, that
“[w]hile in some contexts the government must accommodate
expression, it is not required to assist others in funding the
expression of particular ideas, including political ones.”).
The Port Authority no longer employs Montalbano, and whatever
duty it had to evaluate his ability to perform his job has now
concluded.
To the extent that Montalbano alleges that the City of New
York has, by requiring that he submit a certificate of good
standing from the Port Authority in order to get a firearm
permit, unreasonably restricted his Second Amendment rights, his
complaint should have been directed at the City of New York.
See, e.g., N.Y.C. Rules, tit. 38 § 5-07(e) (providing for the
right of appeal when an application for a handgun permit is
denied); see also, e.g., Kachalsky v. Cacace, --- F. Supp. 2d --, 2011 WL 3962550, *30 (S.D.N.Y. Sept. 2, 2011) (granting
4
This is doubly so where, as here, Montalbano acknowledges that
he seeks the gun permit not so that he may defend his home, see
Heller, 554 U.S. at 628-29, or oppose tyranny, see, e.g.,
McDonald, 130 S. Ct. 3107 n. 33 (Stevens, J., dissenting), but
so that he may work as a private security guard.
15
summary judgment to New York State in challenge to state handgun
licensing scheme under Heller).
Montalbano has not sued the
City or challenged its permitting rules in this lawsuit.
Because the Port Authority imposed a reasonable restriction on
Montalbano’s firearm use as a condition of his employment, and
because the Port Authority is not now required by the Second
Amendment expunge that restriction from Montalbano’s record or
pretend it was never imposed, Montalbano has not established a
denial of his Second Amendment rights.
B.
Montalbano also alleges that he has been denied substantive
due process under the Fourteenth Amendment.
“Substantive due
process protects against government action that is arbitrary,
conscience-shocking, or oppressive in a constitutional sense,
but not against government action that is incorrect or ill
advised.” Cunney v. Board of Trustees of Village of Grand View,
660 F.3d 612, 626 (2d Cir. 2011) (quoting Kaluczky v. City of
White Plains, 57 F.3d 202, 211 (2d Cir. 1995).
Substantive due
process “is the right to be free of arbitrary government action
that infringes a protected right.”
O'Connor v. Pierson, 426
F.3d 187, 200 n.6 (2d Cir. 2005) (emphasis in original).
“Action that merely harms one's professional or business
interests does not, alone, infringe a federally-protected right,
16
and thus does not implicate due process.”
Giammatteo v. Newton,
--- F. App’x ----, 2011 WL 6157339, at *4 (2d Cir. Dec. 13,
2011) (summary order).
Because Montalbano cannot establish, for the reasons
already explained, that his Second Amendment rights have been
infringed, he cannot establish that he has been denied
substantive due process on the basis of any alleged arbitrary
action by the defendants.
See Pierson, 426 F.3d at 200 n.6; see
also Kaluczky, 57 F.3d at 211 (“[W]here a § 1983 plaintiff
alleges a cause of action protected by an “explicit textual
source” of the Constitution, “that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the
guide for analyzing” that claim.”) (quoting Albright v. Oliver,
510 U.S. 266, 273 (1994)).
To the extent that Montalbano argues that he had a
federally-protected right, independent of his Second Amendment
claims, to a post-employment mental health re-evaluation by, or
a certificate of good standing from, the Port Authority, this
argument is without merit.
Montalbano cites no case to support
the proposition that the right to a post-employment
recommendation or evaluation from a government employer, in any
context, is “deeply rooted in this Nation's history and
tradition” or “implicit in the concept of ordered liberty.”
Washington v. Glucksberg, 521 U.S. 702, 721 (1997); cf. Trivedi
17
v. Thayer, No. 97 Civ. 1377, 1998 WL 799181, at *10 (S.D.N.Y.
November 16, 1998) (where a state employee plaintiff alleged
that falsified mental health evaluations by his employer had
caused his suspension from employment and the marring of his
employment record, the plaintiff “failed to offer evidence to
support a claim that he has been deprived of either a property
interest or a liberty interest protected by the Due Process
Clause”), aff’d 182 F.3d 901 (2d Cir. 1999) (table).
Nor in any event did the Port Authority act in a way that
was so arbitrary and capricious as to constitute illegitimate
governmental action.
See Natale v. Town of Ridgefield, 170 F.3d
258, 263 (2d Cir. 1999) (“Substantive due process is an outer
limit on the legitimacy of governmental action. It does not
forbid governmental actions that might fairly be deemed
arbitrary or capricious and for that reason correctable in a
state court lawsuit seeking review of administrative action.
Substantive due process standards are violated only by conduct
that is so outrageously arbitrary as to constitute a gross abuse
of governmental authority.”).
It is not an abuse of government
authority to refuse to spend government resources performing a
mental health evaluation on a former employee who has
voluntarily retired, and who seeks the evaluation to aid in his
pursuit of private employment.
Nor is it an abuse of government
authority to refuse to issue a certificate of good standing to a
18
former employee for the former employee’s use in obtaining a
firearms permit when the employee retired from government with a
firearms restriction on his record.
Because Montalbano can establish neither the existence of a
protected right, nor constitutionally arbitrary and capricious
action by the defendants in this case, he has not established a
violation of Substantive Due Process under the Fourteenth
Amendment.
C.
Montalbano also alleges that he has been denied procedural
due process under the Fourteenth Amendment.
The procedural due
process analysis proceeds in two steps: “(1) whether [the]
plaintiff[] possessed a protected liberty or property interest,
and, if so, (2) what process [the] plaintiff[] w[as] due before
[he] could be deprived of that interest.”
Adams v. Suozzi, 517
F.3d 124, 127 (2d Cir. 2008) (internal quotation marks omitted);
see also Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (“We
first ask whether there exists a liberty or property interest of
which a person has been deprived, and if so we ask whether the
procedures followed by the State were constitutionally
sufficient.”).
“Property interests . . . are created and their dimensions
are defined by existing rules or understandings that stem from
19
an independent source such as state law-rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits.”
Pierson, 426 F.3d at 196
(quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,
577 (1972)).
The Supreme Court has recognized that “a benefit
is not a protected entitlement if government officials may grant
or deny it in their discretion.”
Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005).
Montalbano has adduced no evidence to indicate that the
Port Authority has a legal or customary obligation to conduct an
additional mental health evaluation on him as a former employee,
or to change retroactively the restrictions that were placed on
his firearm use, or to issue him a certificate of good standing.
See, e.g., N.Y.C. Rules, tit. 38, §§ 5-04 (placing burden of
employment-related handgun permit on the applicant and not the
employer).
Nor has Montalbano disputed that the Port
Authority’s decision to take or not to take these actions is
discretionary.
Montalbano therefore has not shown that he has a
“legitimate claim of entitlement” to a certificate of good
standing from the Port Authority.
Roth, 408 U.S. at 577.
He
therefore has not established a violation of procedural due
process in the defendants’ refusal to issue such a certificate
or to re-evaluate his mental health.
20
In any event, Montalbano challenges the underlying
determination by OMS that led to the firearms restriction.
The
reputational harm which stems from such determinations can
create a protected liberty interest which requires procedural
due process.
See, e.g., Wisconsin v. Constantineau, 400 U.S.
433, 437 (1971) (“Where a person's good name, reputation, honor,
or integrity is at stake because of what the government is doing
to him, notice and an opportunity to be heard are essential.”);
see also Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005).
Moreover, Montalbano argues that the underlying firearms
restriction deprived him of a liberty interest by preventing him
from keeping a gun in his home.
Cf. Kuck v. Danaher, 600 F.3d
159, 163 (2d Cir. 2010) (noting a liberty interest in the right
to carry a firearm created by the Connecticut State
Constitution).
Accepting for the moment the argument that
Montalbano was deprived of a liberty interest, the issue is
“whether the procedures followed” in restricting Montalbano’s
firearms use “were constitutionally sufficient.”
Swarthout, 131
S. Ct. at 861.
Whatever level of process was due in this case, 5 it was
available in the form of an Article 78 proceeding before the New
5
“[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Brody v.
Vill. of Port Chester, 434 F.3d 121, 134 (2d Cir. 2005). The
three-factor test established in Mathews v. Eldridge, 424 U.S.
21
York State Supreme Court.
See NY CPLR § 7803.
It is settled
law in this Circuit that “[a]n Article 78 proceeding provides
the requisite post-deprivation process—even if [a plaintiff]
failed to pursue it.”
Anemone v. Metropolitan Transp.
Authority, 629 F.3d 97, 121 (2d Cir. 2011); see Segal v. City of
New York, 459 F.3d 207, 218 (2d Cir. 2006).
Here, Montalbano
could have challenged the gun restriction as an arbitrary and
capricious determination pursuant to NY CPLR § 7803(3), which
would have entitled him to a full hearing, and possibly a trial,
before a New York State Supreme Court Justice with the power to
annul the Port Authority’s decision.
See N.Y. CPLR § 7806; see
319, 333 (1976) guides the analysis in determining what level of
process is required in a given case, and whether a predeprivation hearing was due. See Nnebe v. Daus, 644 F.3d 147,
158-59 (2d Cir. 2011) (analyzing the private interest, the risk
of erroneous deprivation, and the government interest).
Here, Montalbano has not argued that he was entitled to a
hearing before his gun use was restricted, and indeed he admits
that he voluntarily turned in his weapons after the August 12,
2009 domestic incident. Nor does he argue that he was deprived
of physical property, which might weigh in favor of a predeprivation hearing. See, e.g., Walters v. Wolf, 660 F.3d 307,
317-18 (8th Cir. 2011) (where handgun and ammunition were seized
pursuant to arrest, and charges were later dismissed as
unfounded, held that a predeprivation hearing was not required,
but that the continued retention of the plaintiff’s firearm
without a hearing was a potential violation of procedural due
process precluding summary judgment); but see Mallard, 376 F.
App’x at 134 (“Mallard had no legitimate possessory interest in
firearms for which he held no license.”). Accordingly, the
issue is whether he received sufficient post-deprivation
process.
22
generally Hellenic American Neighborhood Action Committee v.
City of New York, 101 F.3d 877, 881 (2d Cir. 1996).
Montalbano
chose not to avail himself of that process.
Montalbano’s argument that 42 U.S.C. § 1983 does not
require him to exhaust his remedies is misplaced.
The
availability of an Article 78 proceeding does not mean that
Montalbano was required to exhaust his administrative remedies.
Rather, the availability of an Article 78 proceeding ensures
that Montalbano had adequate procedural due process to vindicate
the alleged underlying right at the time that the deprivation
occurred.
See id.
Because Montalbano could have availed
himself of a constitutionally adequate process to vindicate his
alleged rights, he has not established a violation of Procedural
Due Process under the Fourteenth Amendment.
Montalbano has failed to establish a material issue of fact
as to whether he has been deprived of a constitutional right
under the Second or Fourteenth Amendments, in violation of 42
U.S.C. § 1983.
The defendants’ motion for summary judgment is
therefore granted with regard to Montalbano’s federal claims.
IV.
Having dismissed the federal claims in this case, the Court
declines to exercise supplemental jurisdiction over the
plaintiffs' remaining state-law claims.
23
See 28 U.S.C. §
1367(c)(3).
The Court of Appeals for the Second Circuit has
instructed that “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law
claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d
Cir. 2003) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S.
343, 350 n. 7 (1988)); see also Vincent v. Money Store, No. 03
Civ. 2876, 2011 WL 4501325, at *5 (S.D.N.Y. September 29, 2011).
This case presents no basis for deviating from the balance
articulated in Valencia.
While the Court of Appeals for the
Second Circuit has upheld the exercise of supplemental
jurisdiction over state-law claims when federal claims are
dismissed on the eve of trial, this is not such a case.
See
Valencia, 316 F.3d at 305–06 (citing Nowak v. Ironworkers Local
6 Pension Fund, 81 F.3d 1182, 1191–92 (2d Cir. 1996) (exercise
of supplemental jurisdiction proper when federal claim dismissed
just nine days before trial) and Raucci v. Town of Rotterdam,
902 F.2d 1050, 1055 (2d Cir. 1990) (supplemental jurisdiction
proper when case was ready for trial at the time federal claims
were dismissed)). Here, the case is not on the eve of trial, and
dismissal of the remaining state law claims without prejudice is
warranted.
24
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit.
The defendants' motion for summary judgment is granted as
to the plaintiff's federal claims, and denied as to the
plaintiff's state law claims.
summary judgment is denied.
The plaintiff's motion for
The plaintiff's state law claims
are dismissed without prejudice.
The Clerk is directed to enter Judgment and to close this
case.
The Clerk is also directed to close all pending motions.
SO ORDERED.
Dated:
New York, New York
February 16, 2012
Judge
25
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