Schoolcraft v. The City Of New York et al

Filing 456

OPPOSITION BRIEF to Plaintiff's Letter Motion for Reconsideration (re-filing). Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Timothy Caughey(Tax Id. 885374 Individually), Kurt Duncan(Shield No. 2483, Individually), William Gough(Tax Id. 919124, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Shantel James(Shield No. 3004 in his official capacity), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), The City Of New York.(Scheiner, Alan)

Case 1:10-cv-06005-RWS Document 450 Filed 07/06/15 Page 1 of 29

10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S
MOTION
FOR
RECONSIDERATION

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Street
New York, N.Y. 10007
Of Counsel: Alan Scheiner
Tel: [phone]
Cheryl Shammas
Tel: [phone]
Matter #: 2010-033074

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
PRELIMINARY STATEMENT .................................................................................................... 1
THE STANDARD GOVERNING A MOTION FOR RECONSIDERATION ............................. 1
POINT I
THE COURT CORRECTLY RULED THAT PLAINTIFF
MAY NOT ASSERT A FIRST AMENDMENT CLAIM
FOR HIS ARREST ON OCTOBER 31, 2015 PURSUANT
TO THE MENTAL HYGIENE LAW OR DEFENDNTS’
VISITS TO HIS RESIDENCE TO SERVE PAPERS............................................ 4
A.

Plaintiff’s purported claim for retaliation against a
private citizen was never advanced in prior briefing
and should not be considered now. ............................................................. 4

B.

Plaintiff’s seizure pursuant to the mental hygiene
law and subsequent visits to the vicinity of his
residence to serve papers are not “adverse
employment action,” and therefore cannot be the
basis of the government employee retaliation First
Amendment claim that the Court has ruled may be
tried. ............................................................................................................ 9

C.

The conduct of defendants’ in visiting the outside of
plaintiff’s apartment cannot be the basis of a
retaliation claim by a private citizen under the First
Amendment. .............................................................................................. 13

D.

Plaintiff’s retaliation claim cannot survive summary
judgment because the undisputed facts are
insufficient to support a finding of retaliatory
motive. ...................................................................................................... 15

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Page
POINT II
THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO
QUALIFIED IMMUNITY FROM ANY FIRST
AMENDMENT CLAIM BASED ON PLAINTIFF’S
INTERNAL WORKPLACE SPEECH, WHICH WAS
NOT PROTECTED UNDER THE FIRST AMENDMENT
BY “CLEARLY ESTABLISHED LAW” AT THE TIME
OF THE EVENTS AT ISSUE .............................................................................. 17
POINT III
THE COURT CORRECTLY RULED THAT
PLAINTIFF’S EXPERT DR. HALPREN-RUDER
SHOULD NOT TESTIFY AT TRIAL ................................................................. 20
CONCLUSION ............................................................................................................................. 21

ii

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TABLE OF AUTHORITIES
Cases

Pages

Alali v. DeBara,
2008 U.S. Dist. LEXIS 86760 (S.D.N.Y. Oct. 24, 2008) .......................................................... 8
Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36 (2d Cir.).............................................................................................................. 1, 2
Anglo Am. Insurance Group v. CalFed, Inc.,
940 F. Supp. 554 (S.D.N.Y. 1996) ............................................................................................ 2
Arar v. Ashcroft,
585 F.3d 559 (2d Cir. 2009)..................................................................................................... 19
Ashcroft v. al-Kidd,
131 S. Ct. 2074 (2011) ........................................................................................................ 18-19
Bennett v. Watson Wyatt & Co.,
136 F. Supp. 2d 236 (S.D.N.Y. 2001)...................................................................................... 11
Blue v. Koren,
72 F.3d 1075 (2d Cir. 1995)..................................................................................................... 15
Caribbean Trading & Fid. Corp. v. Nigerian Nat’l Petroleum Corp.,
948 F.2d 111 (2d Cir. 1991)....................................................................................................... 3
Castro v. New York City Bd. of Educ. Pers.,
1998 U.S. Dist. LEXIS 2863, No. 96 Civ. 6314, 1998 WL 108004,
(S.D.N.Y. Mar. 12, 1998) .................................................................................................. 11, 16
Church of Scientology Int’l v. Time Warner, Inc.,
1997 U.S. Dist. LEXIS 12839 (S.D.N.Y. Aug. 27, 1997) ........................................................ 3
City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015).............................. 18
Connell v. Signoracci,
153 F.3d 74 (2d Cir. 1998)......................................................................................................... 6
Curley v. Village of Suffern,
268 F.3d 65 (2d Cir. 2001)....................................................................................................... 16
Dean v. Blumenthal,
577 F.3d 60 (2d Cir. 2009)....................................................................................................... 19
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
282 F.3d 83 (2d Cir. 2002)....................................................................................................... 13
iii

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Cases

Pages

Esmont v. City of New York,
371 F. Supp. 2d 202 (E.D.N.Y. 2005) ..................................................................................... 14
Ferring B.V. v. Allergan, Inc.,
2013 U.S. Dist. LEXIS 111374 (S.D.N.Y. Aug. 5, 2013) ................................................. 2, 3, 8
Figueroa v. City of New York,
198 F. Supp. 2d 555 (S.D.N.Y. 2002)................................................................................ 11, 15
Gagliardi v. Vill. of Pawling,
18 F.3d 188 (2d Cir. 1994)....................................................................................................... 13
Galabya v. New York City Bd. of Educ.,
202 F.3d 636 (2d Cir. 2000)..................................................................................................... 10
Gill v. Pidlypchak,
389 F.3d 379 (2d Cir. 2004)..................................................................................................... 13
Hygh v. Jacobs,
961 F.2d 359 (2nd Cir. 1992)................................................................................................... 21
Image Processing Techs., LLC v. Canon Inc.,
2012 U.S. Dist. LEXIS 9479 (E.D.N.Y. Jan. 26, 2012) ............................................................ 3
In re Bear Stearns Cos., Inc. Sec., Derivative and ERISA Litig.,
2009 U.S. Dist. LEXIS 61588 (S.D.N.Y. Jul. 16, 2009) ........................................................... 3
Kerman v. City of New York,
261 F.3d 229 (2d Cir. 2001)....................................................................................................... 6
Lauro v. Charles,
219 F.3d 202 (2d Cir. 2000)..................................................................................................... 18
LaVertu v. Town of Huntington,
2014 U.S. Dist. LEXIS 77424 (E.D.N.Y. Apr. 4, 2014) ......................................................... 14
Lewis v. Snow,
2003 U.S. Dist. LEXIS 15700 (S.D.N.Y. Sept. 8, 2003) ......................................................... 11
Lichtenberg v. Besicorp Grp. Inc.,
28 Fed. Appx. 73 (2d Cir. 2002) ................................................................................................ 2
Linden v. Dist. Council 1707-AFSCME,
415 Fed. Appx. 337 (2d Cir. 2011) ............................................................................................ 2

iv

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Cases

Pages

Lumhoo v. Home Depot USA, Inc.,
229 F. Supp.2d 121 (E.D.N.Y. 2002) ...................................................................................... 11
Marx & Co. v. Diners Club, Inc.,
550 F.2d 505 (2d Cir. 1976)..................................................................................................... 21
Matthews v. City of New York,
779 F.3d 167 (2d Cir. 2015)............................................................................................... 19, 20
McAvey v. Orange-Ulster BOCES,
2012 U.S. Dist. LEXIS 5685 (S.D.N.Y. Jan. 17, 2012)......................................................... 2, 3
Morser v. AT & T Information Sys.,
715 F. Supp. 516 (S.D.N.Y. 1989) ............................................................................................ 2
Nagle v. Marron,
663 F.3d 100 (2d Cir. 2011)....................................................................................................... 7
Nonnenmann v. City of New York,
2004 U.S. Dist. LEXIS 8966 (S.D.N.Y. May 20, 2004).................................................... 10, 12
Paige v. N.Y. City Police Dep’t,
2012 U.S. Dist. LEXIS 47078 (E.D.N.Y. Mar. 30, 2012) ....................................................... 15
Patrolmen’s Benevolent Assoc. v. City of New York,
310 F.3d 43 (2d Cir. 2002)....................................................................................................... 10
Polsby v. St. Martin’s Press, Inc.,
2000 U.S. Dist. LEXIS 596 (S.D.N.Y. Jan. 18, 2000)............................................................... 2
Redd v. Wright,
597 F.3d 532 (2d Cir. 2010)............................................................................................... 17, 18
Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) ............................................ 15
Reyes Canada v. Rey Hernandez,
221 F.R.D. 294 (D.P.R. 2004) ................................................................................................... 1
Schonberger v. Serchuk,
742 F. Supp. 108 (S.D.N.Y. 1990) ............................................................................................ 3
Schoolcraft v. City of New York,
2012 U.S. Dist. LEXIS 82888 (S.D.N.Y. June 13, 2012).................................................... 5, 10
Schoolcraft v. City of New York,
2012 U.S. Dist. LEXIS 101317 (S.D.N.Y. July 18, 2012) ........................................... 2, passim
v

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Cases

Pages

Schoolcraft v. City of New York,
2012 U.S. Dist. LEXIS 128557 (S.D.N.Y. Sept. 7, 2012) ....................................................... 10
Schoolcraft v. City of New York,
2015 U.S. Dist. LEXIS 58831 (S.D.N.Y. May 5, 2015)............................................... 1, passim
Schwartz v. Anderson,
2015 U.S. Dist. LEXIS 39745 (D. Conn. Mar. 29, 2015).................................................... 7, 19
Shrader v. CSX Transp., Inc.,
70 F.3d 255 (2d Cir. 1995)......................................................................................................... 1
Sikhs for Justice v. Nath,
893 F. Supp.2d 598 (S.D.N.Y. 2012)......................................................................................... 1
Skehan v. Vill. of Mamaroneck,
465 F.3d 96 (2d Cir. 2006)..................................................................................................... 5, 6
Southwick Clothing LLC v. GFT (USA) Corp.,
2004 U.S. Dist. LEXIS 25336 (S.D.N.Y. Dec. 15, 2004) ......................................................... 8
Torres v. Pisano,
116 F.3d 625 (2d Cir. 1997)..................................................................................................... 11
United States v. Duncan,
42 F.3d 97 (2d Cir. 1994)......................................................................................................... 21
United States v. Hayes,
551 F.3d 138 (2d Cir. 2008)..................................................................................................... 14
United States v. Thomas,
2003 U.S. Dist. LEXIS 7110 (D. Conn. Apr. 28, 2003) .......................................................... 14
Weeks v. New York State Div. of Parole,
273 F.3d 76 (2d Cir. 2001)................................................................................................. 11, 12
Wilson v. Layne,
526 U.S. 603 (1999) ........................................................................................................... 17, 18
Young v. County of Fulton,
160 F.3d 899 (2d Cir. 1998)..................................................................................................... 18
Zherka v. Amicone,
634 F.3d 642 (2d Cir. 2011)............................................................................................... 12, 13

vi

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Cases

Pages

Statutes
Fed. R. Civ. P. 59(e) ....................................................................................................................... 1
Fed. R. Civ. P. 60 ............................................................................................................................ 1
Local Rule 6.3 ............................................................................................................................. 1, 3

vii

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PRELIMINARY STATEMENT
The City Defendants respectfully submit this memorandum of law in opposition
to plaintiff’s motion for reconsideration of the Court’s ruling on summary judgment of May 5,
2014, Schoolcraft v. City of New York, 2015 U.S. Dist. LEXIS 58831 (S.D.N.Y. May 5, 2015)
(“Schoolcraft IV”).
THE STANDARD GOVERNING A MOTION FOR RECONSIDERATION
The pending motions for reconsideration are properly considered under Local
Rule 6.3. 1 Reconsideration of a court's prior order under Local Rule 6.3 “is an extraordinary
remedy to be employed sparingly in the interests of finality and conservation of scarce judicial
resources.” Sikhs for Justice v. Nath, 893 F. Supp.2d 598, 605 (S.D.N.Y. 2012) (citations
omitted). Accordingly, the standard of review applicable to such a motion is “strict.” Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“It is well-settled that [a motion for reconsideration] is not a vehicle for
relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir.), as amended (July 13, 2012) (quotation marks omitted). The burden is
on the movant to demonstrate that the Court overlooked controlling decisions or material facts
that were before it on the original motion, and that might “‘materially have influenced its earlier

1

The City defendants incorrectly cited Fed. R. Civ. P. 60 in support of their own motion for
reconsideration, which is not applicable because it applies only to appealable, final orders, and
the City defendants respectfully correct their error. It is also unclear whether Fed. R. Civ. P.
59(e), relied on by the plaintiff, is an appropriate procedural vehicle, because it governs motions
to alter or amend a “judgment,” and no “judgment” has been entered on any claim. See Reyes
Canada v. Rey Hernandez, 221 F.R.D. 294, 295 (D.P.R. 2004) (“In this case, the Court finds
Rule 59(e) inapplicable as the Court has never entered a partial judgment dismissing the claims,”
although it had ruled some claims dismissed upon partial summary judgment.) In any event, the
standard upon a motion for reconsideration is the same under Local Rule 6.3, regardless of the
particular Federal Rule that applies, if any.

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decision.’” Ferring B.V. v. Allergan, Inc., 2013 U.S. Dist. LEXIS 111374, *2-3 (S.D.N.Y. Aug.
5, 2013) (quoting Anglo Am. Ins. Group v. CalFed, Inc., 940 F. Supp. 554, 557 (S.D.N.Y. 1996)
(quoting Morser v. AT & T Information Sys., 715 F. Supp. 516, 517 (S.D.N.Y. 1989)).
“Motions for reconsideration ‘are not vehicles for taking a second bite at the apple
. . . and [the court] [should] not consider facts not in the record to be facts that the court
overlooked.’” Schoolcraft v. City of New York, 2012 U.S. Dist. LEXIS 101317, *8 (S.D.N.Y.
July 18, 2012) (“Schoolcraft II”) (citation omitted)). “The moving party must demonstrate
controlling law or factual matters put before the court on the underlying motion that the movant
believes the court overlooked and that might reasonably be expected to alter the court's
decision.” Schoolcraft II, 2012 U.S. Dist. LEXIS 101317, at *6 (emphasis added) (citing Linden
v. Dist. Council 1707-AFSCME, 415 Fed. Appx. 337, 338-39 (2d Cir. 2011) (affirming dismissal
of reconsideration motion as movant did not identify any relevant facts or controlling authority
that the lower court overlooked); Lichtenberg v. Besicorp Grp. Inc., 28 Fed. Appx. 73, 75 (2d
Cir. 2002) (affirming dismissal of reconsideration motion where movant "failed to demonstrate
that the [lower] court overlooked any fact of consequence or controlling legal authority at the
time the court decided [the case]")); accord McAvey v. Orange-Ulster BOCES, 2012 U.S. Dist.
LEXIS 5685, 1-4 (S.D.N.Y. Jan. 17, 2012); see also Ferring B.V. v. Allergan, Inc., 2013 U.S.
Dist. LEXIS 111374, *2-3 (S.D.N.Y. Aug. 5, 2013).
The reason for the rule confining reconsideration to matters that were
“overlooked” is to “ensure the finality of decisions and to prevent the practice of a losing party
examining a decision and then plugging the gaps of a lost motion with additional matters.”
Schoolcraft II, 2012 U.S. Dist. LEXIS 101317, at *7 (quoting Polsby v. St. Martin's Press, Inc.,
2000 U.S. Dist. LEXIS 596, at *2-3 (S.D.N.Y. Jan. 18, 2000) (citation and quotation marks

2

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omitted)). “A court must narrowly construe and strictly apply Local Civil Rule 6.3, so as to
avoid duplicative rulings on previously considered issues, and to prevent the rule from being
used as a substitute for appealing a final judgment.” Id. (citing In re Bear Stearns Cos., Inc. Sec.,
Derivative and ERISA Litig., 2009 U.S. Dist. LEXIS 61588, at *4-5 (S.D.N.Y. Jul. 16, 2009) ("A
motion for reconsideration is not a motion to reargue those issues already considered when a
party does not like the way the original motion was resolved."); accord McAvey v. OrangeUlster BOCES, 2012 U.S. Dist. LEXIS 5685, 1-4 (S.D.N.Y. Jan. 17, 2012).
A party seeking reconsideration may neither repeat “arguments already briefed,
considered and decided,” nor “advance new facts, issues or arguments not previously presented
to the Court.” Ferring B.V. v. Allergan, Inc., 2013 U.S. Dist. LEXIS 111374, *2-3 (S.D.N.Y.
Aug. 5, 2013) (quoting Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)
(citations omitted)). Arguments raised for the first time on reconsideration are not proper
grounds for reconsideration. See Image Processing Techs., LLC v. Canon Inc., 2012 U.S. Dist.
LEXIS 9479, *3-4 (E.D.N.Y. Jan. 26, 2012) (“[A] party is not permitted to 'advance new facts,
issues or arguments not previously presented to the Court' on a motion for
reconsideration.”)(citing Caribbean Trading & Fid. Corp. v. Nigerian Nat'l Petroleum Corp.,
948 F.2d 111, 115 (2d Cir. 1991)); see also Church of Scientology Int'l v. Time Warner, Inc.,
1997 U.S. Dist. LEXIS 12839, at *7-8 (S.D.N.Y. Aug. 27, 1997) ("[A] party requesting
[reconsideration] is not supposed to treat the court's initial decision as the opening of a dialogue
in which that party may then use Rule [6.3] to advance new facts and theories in response to the
court's rulings.").

3

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POINT I
THE COURT CORRECTLY RULED THAT
PLAINTIFF MAY NOT ASSERT A FIRST
AMENDMENT CLAIM FOR HIS ARREST ON
OCTOBER 31, 2015 PURSUANT TO THE
MENTAL HYGIENE LAW OR DEFENDNTS’
VISITS TO HIS RESIDENCE TO SERVE
PAPERS
The Court should deny plaintiff’s motion for reconsideration of its ruling
dismissing plaintiff’s First Amendment claim for post-suspension conduct because: (A) plaintiff
advances a new theory of retaliation against a private citizen that he never previously asserted in
this case, despite three amendments to the complaint and three prior rounds of briefing on
plaintiff’s First Amendment claim; (B) neither the defendants’ taking of plaintiff into custody for
evaluation pursuant to the mental hygiene law, nor subsequent visits to the vicinity of his
residence, were adverse employment actions that could support an employee retaliation claim
under the First Amendment; (C) visits to the vicinity of plaintiff’s home were insufficient to
support First Amendment liability; (D) plaintiff failed to proffer sufficient evidence to support a
triable issue of retaliatory motive to support a First Amendment claim.
A.

Plaintiff’s purported claim for retaliation against a private citizen was never
advanced in prior briefing and should not be considered now.
In moving for reconsideration to revive portions of his First Amendment claim,

plaintiff asserts a new theory that he may sue as a private citizen – not as a government employee
– for “retaliation” by the defendants after his employment by the City and NYPD was effectively
terminated by suspension for First Amendment purposes (according to the plaintiff and the
rulings of this Court 2), regardless of whether the retaliation had a chilling effect or constituted
2

Defendants do not concede that plaintiff’s government employment was terminated by his
suspension. Nevertheless, for the purposes of this motion defendants may rely, without waiver
of any argument, on plaintiff’s assertions and the prior rulings of this Court.
4

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adverse employment action. See Plaintiff’s June 2, 2015 Letter Motion Moving for
Reconsideration, Docket No. 440, at 4 (“June 2 Letter”) (“[I]n the context of a citizen who
alleged retaliation for criticism of public officials, the standard of law set out in both cases
[requiring a chilling effect] does not control.”).
In three rounds of prior briefing – a motion to amend to add a First Amendment
claim; a motion for reconsideration on the denial of leave to amend to add a First Amendment
claim; and again on summary judgment – plaintiff referred to his First Amendment claim, and
argued for it, as either: (i) a claim by a government employee for adverse employment action
taken in retaliation for protected speech; or (ii) as a claim for prior restraint, which requires an
actual chilling effect. See Plaintiff’s Letter of April 25, 2012, Deemed a Motion to Amend,
Docket No. 85, at 2 (the “First Motion to Amend”) (arguing for claim for retaliation by “adverse
employment action,” citing and quoting Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d
Cir. 2006)); Schoolcraft v. City of New York, 2012 U.S. Dist. LEXIS 82888, *10 (S.D.N.Y. June
13, 2012) (“Schoolcraft I”) (requiring “adverse employment action” for plaintiff’s First
Amendment claim, citing Skehan); Plaintiff’s June 20, 2012, Letter Motion for Reconsideration
of the Court’s June 14, 205 Decision, Docket No. 92, at 1-4; Plaintiff’s August 1, 2012 Letter
Moving to Amend the Complaint, Docket No. 98, at 1-4 & n. 1 (moving to amend the complaint
to add a prior restraint claim based on speech and conduct occurring after plaintiff’s suspension
on October 31, 2015); Schoolcraft II, 2012 U.S. Dist. LEXIS 101317, at *15-16 (plaintiff could
move to amend to add a “prior restraint” claim); Plaintiff’s Opposition to Motion for Summary
Judgment, Docket No. 383, at 27.
This is what plaintiff said about his claim for “retaliation” when he first proposed
his First Amendment claim to the Court: “In order to establish a First Amendment retaliation

5

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claim the plaintiff must show he engaged in protected speech and that the adverse employment
action that resulted was motivated by its utterance.” First Motion to Amend, at 2 (citing and
quoting Skehan, 465 F.3d at 108 (concerning government employee First Amendment claims).
Plaintiff at all times continued to advocate for a government employee retaliation claim,
including on summary judgment and even in the present motion: Plaintiff argued in prior
briefing ,and now, that it “was clearly established at the relevant time that a governmental entity
or individual could not lawfully take adverse action against a public employee in retaliation for
that employee’s speech on matters of public concern.” June 2 Letter at 3 (emphasis added).
Even on summary judgment, when asserting a change in the law providing greater
protections for Schoolcraft’s workplace speech, plaintiff failed to argue that he could pursue a
claim for government retaliation against a private citizen, i.e., with no required chilling effect or
adverse employment action. Plaintiff argued only that a chilling effect should be deemed to have
occurred due to his placement in custody for mental health evaluation at Jamaica Hospital
Medical Center. Indeed, the authority relied on by plaintiff, Kerman v. City of New York, 261
F.3d 229, 241-242 (2d Cir. 2001), used the formula requiring a chilling effect on plaintiff’s
speech: “[plaintiff] must show that (i) he has an interest protected by the First Amendment, (ii)
the defendants' actions were motivated by or substantially caused by the plaintiff's exercise of
that right and (iii) the defendants' actions chilled the exercise of those rights. Id. (quoting Connell
v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998)); see Plaintiff’s Opposition to Motion for Summary
Judgment, Docket No. 383, at 27 (“The Second Circuit held that the plaintiff’s speech was
protected and that “an involuntary overnight trip to Bellevue has an obvious chilling effect.”)
The Court, in ruling on summary judgment, found that plaintiff could pursue a
claim for “adverse employment action” by the City, allegedly taken in retaliation against him,

6

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which did not require a chilling effect. Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *106107:
[T]o survive summary judgment, a public employee alleging an
adverse employment action must bring forth evidence showing
that: (1) he has engaged in protected First Amendment activity; (2)
he suffered an adverse employment action; and (3) there was a
causal connection between the protected activity and the adverse
employment action. [citations omitted] This is the standard that
applies to Schoolcraft's pre-suspension speech.. 3
The Court did not hold that Schoolcraft could assert a generic retaliation claim as a private
citizen, which is not surprising given that plaintiff never argued for such a claim, even after three
amended complaints, and had always argued only for a claim for adverse employment action or
prior restraint.
Government employee retaliation claims under the First Amendment implicate a
host of special issues, including, inter alia, whether there was adverse employment action;
whether or not the speech was made pursuant to official duties; whether the speech was a matter
of public concern; whether the government action was justified by the need to prevent disruption
of the workplace; and whether the adverse action would have occurred even without the
protected speech. See, e.g., Nagle v. Marron, 663 F.3d 100, 105-107 (2d Cir. 2011) (stating
requirements for government employee retaliation claim under the First Amendment); Schwartz
v. Anderson, 2015 U.S. Dist. LEXIS 39745, *15-17 (D. Conn. Mar. 29, 2015) (same);
Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831 at *93, *107. The City defendants reserve all of
their arguments on these issues (and more) for trial.

3

As noted in the City defendants’ motion for reconsideration, even this claim is not pled in the
Third Amended Complaint, although plaintiff had at least previously argued for it. The claim is
infirm for this reason and others that will be addressed in later proceedings.
7

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Yet now plaintiff asserts, for the first time, that all of these issues surrounding
First Amendment claims by government employees are irrelevant because he asserts a claim for
retaliation against a private citizen. “It is well-settled that [a motion for reconsideration] is not a
vehicle for . . . presenting the case under new theories . . . or otherwise taking a second bite at the
apple.” Analytical Surveys, 684 F.3d at 52. “The moving party must demonstrate controlling law
or factual matters put before the court on the underlying motion that the movant believes the
court overlooked . . . .” Schoolcraft II, 2012 U.S. Dist. LEXIS 101317, at *6. A motion for
reconsideration is not the time to “advance new facts, issues or arguments not previously
presented to the Court.” Ferring B.V. v. Allergan, Inc., 2013 U.S. Dist. LEXIS 111374, at *2-3;
see supra at 1-4. Yet this is precisely what plaintiff attempts.
This is not the first time that plaintiff has introduced a novel First Amendment
theory upon a motion for reconsideration. See Schoolcraft II, 2012 U.S. Dist. LEXIS 101317, at
*15-16 (denying motion for reconsideration where “[p]laintiff's arguments regarding his
proposed amended complaint's prior restraint claim . . . were never raised in the briefing
accompanying Plaintiff's motion to amend and are presented for the first time in the present
motion for reconsideration, [and they therefore] cannot be addressed at this stage of the
litigation,” but allowing motion to amend the complaint). Although the Court previously
allowed the plaintiff to move to amend his complaint to add a new First Amendment theory – a
post-suspension claim for prior restraint – it is too late now for new theories of liability, on the
eve of trial and after motions for summary judgment. See Alali v. DeBara, 2008 U.S. Dist. LEXIS
86760, *3 n.6 (S.D.N.Y. Oct. 24, 2008); Southwick Clothing LLC v. GFT (USA) Corp., 2004 U.S.
Dist. LEXIS 25336, at *6 (S.D.N.Y. Dec. 15, 2004) (“A complaint cannot be amended merely by
raising new facts and theories in plaintiffs’ opposition papers, and hence such new allegations and
claims should not be considered in resolving the motion.”); see also Schoolcraft IV, 2015 U.S. Dist.

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LEXIS 58831, at *144-45 (“A complaint cannot be amended merely by raising new facts and
theories in [briefing] . . . .”) (quotation omitted); see City Defendants’ Reply Memorandum in
Support of Their Motion for Summary Judgment, Docket No. 411, at 24 n. 8. 4

Because plaintiff has never before argued a private-citizen retaliation theory, he
cannot do so now, and his motion for reconsideration of the dismissal of his post-suspension
First Amendment claim should be denied for that reason alone.
B.

Plaintiff’s seizure pursuant to the mental hygiene law and subsequent visits to the
vicinity of his residence to serve papers are not “adverse employment action,” and
therefore cannot be the basis of the government employee retaliation First
Amendment claim that the Court has ruled may be tried.
As set forth above, the sole First Amendment retaliation claim allowed by the

Court’s decision on summary judgment, and previously asserted by the plaintiff, is a claim that
requires as an element “adverse employment action.” Schoolcraft IV, 2015 U.S. Dist. LEXIS
58831, at *107. Plaintiff contends, and the Court has agreed, that Schoolcraft became a private
citizen for First Amendment purposes at the time when Deputy Chief Marino told him, while still
in his apartment and before he was arrested, that his employment as an NYPD officer was or
would be suspended. Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *43-44, *94. As this
Court stated:
Plaintiff alleges that he was suspended on the evening of October
31, 2009 after NYPD officers arrived at his home but prior to
Defendants' alleged involuntarily removal of Plaintiff to Jamaica
Hospital. SAC ¶ 153. Accordingly, Plaintiff's claim for prior
restraint - based both on his being held involuntarily at Jamaica
Hospital as an emotionally disturbed person as well as on
Defendants' alleged harassment of Plaintiff at his home upstate - is
based on conduct that occurred following Plaintiff's suspension.

4

Even if the Court entertained a motion to amend the complaint at this late date – and it should
not given the short time until trial – at least such a motion is required before the Court may rule
on a claim not yet asserted. The City defendants would oppose such a motion as untimely and
unduly prejudicial.
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Schoolcraft v. City of New York, 2012 U.S. Dist. LEXIS 128557, *15 (S.D.N.Y. Sept. 7, 2012)
(“Schoolcraft III”).
The Second Circuit has held that “to constitute an adverse employment action . . .
a change in working conditions must be ‘materially adverse.’” Patrolmen's Benevolent Assoc. v.
City of New York, 310 F.3d 43, 51 (2d Cir. 2002) (quoting Galabya v. New York City Bd. of
Educ., 202 F.3d 636, 640 (2d Cir. 2000)); accord, e.g., Nonnenmann v. City of New York, 2004
U.S. Dist. LEXIS 8966, *63-64 (S.D.N.Y. May 20, 2004). Accordingly, the retaliatory action
must at least be a “change in working conditions.” Id.
Neither the plaintiff nor the Court has specified what alleged conduct could constitute
“adverse employment action” in plaintiff’s newly revived First Amendment claim, and this lack
of pleading prejudices the defendants’ ability to respond to the purported claim. But even in the
most generous reading of the facts, the defendants’ potential ‘adverse employment actions’ are
limited to alleged harms occurring on October 31, 2009, at his apartment, prior to his suspension.
First, there is no potentially protected conduct by the plaintiff prior to August 2009. The Court
has held that only a jury should determine whether Schoolcraft’s complaints to QAD and IAB
were protected by the First Amendment, but his alleged refusal to comply with a quota was not
speech at all, Schoolcraft III, 2012 U.S. Dist. LEXIS 128557, at *27-30, and his appeal of his
personnel evaluation in January-February 2009 is not protected by the First Amendment,
Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *100-103. Plaintiff made no complaint
regarding any defendant to IAB until, at the earliest, on August 20, 2009, and did not complain
about quotas and downgrading until, at the earliest, September 2009. 5

5

The Court previously held that only two subjects of plaintiff’s internal complaints were matters
of public concern: quotas for police activity and the misreporting of crime statistics. Schoolcraft
I, 2012 U.S. Dist. LEXIS 82888, at *11-12. Schoolcraft’s allegation to IAB on August 20, 2009,
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Second, the harms allegedly suffered by plaintiff prior to October 31, 2009 do not
constitute ‘adverse employment action’ under the First Amendment. “Disciplinary notices,
threats of disciplinary action and excessive scrutiny do not constitute adverse employment
actions in the absence of other negative results such as a decrease in pay or being placed on
probation." Lewis v. Snow, 2003 U.S. Dist. LEXIS 15700, *24 (S.D.N.Y. Sept. 8, 2003)
(quoting Lumhoo v. Home Depot USA, Inc., 229 F. Supp.2d 121, 150 (E.D.N.Y. 2002) (citing
Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y. 2001) (reprimands and
threats of disciplinary action do not constitute adverse employment actions)); Torres v. Pisano,
116 F.3d 625, 639-640 (2d Cir. 1997) (feeling "frightened" and "intimidated" is not “a
materially adverse change in the terms and conditions of employment.”); Figueroa v. City of
New York, 198 F. Supp. 2d 555, 568 (S.D.N.Y. 2002) (“Being followed by supervisors is not a
materially adverse employment action. ‘Although reprimands and close monitoring may cause an
employee embarrassment or anxiety, such intangible consequences are not materially adverse
alterations of employment conditions.’”) (quoting Castro v. New York City Bd. of Educ. Pers.,
1998 U.S. Dist. LEXIS 2863, No. 96 Civ. 6314, 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12,
1998) (internal citations omitted))); see also Weeks v. New York State, Weeks v. New York State
Div. of Parole, 273 F.3d 76, 86-87 (2d Cir. 2001) (notice of discipline, counseling memo,
transfer of cases, removal from office, not an “adverse employment action”). Accordingly, the
only purported adverse actions that need be considered are those that occurred on October 31,
2015.

was that he had been told that Sgt. Weiss and Lt. Caughey inappropriately accessed Weiss’ own
personnel folder. Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *19 (paragraph 48) (citing
Pl.'s Consol. 56.1 Statement, ¶ 38 (citing PX 50)). This complaint is not properly the subject of
any First Amendment claim that may be asserted by Schoolcraft under the Court’s rulings,
because, inter alia, it was not made as a private citizen on a matter of public concern and was
unknown to all defendants.
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Since, according to plaintiff and the Court, Schoolcraft was no longer an
employee, at the time that he was taken into custody, the seizure could hardly be an adverse
employment action, which requires at a minimum that he be an employee and that the action be
directed towards his employment.
It follows a fortiori, that the defendants’ visits to the vicinity of plaintiff’s
apartment in upstate New York, even as alleged by the plaintiff – conducted after plaintiff’s
suspension on October 31, 2009 – could not constitute adverse employment action if
Schoolcraft’s employment had already ended, as argued by plaintiff and ruled by the Court.
Indeed, even if he were an employee at the time for First Amendment purposes, neither the
seizure nor the police department’s visits to the vicinity of his home would have constituted
‘adverse employment action,’ since they did not affect plaintiff’s working conditions. See Weeks
v. New York State Div. of Parole, 273 F.3d at 86-87 (“physical removal” from an office was not
an adverse employment action “because [plaintiff] does not allege what tangible adverse effect
this incident had on the terms and conditions of her employment”); Nonnenmann v. City of New
York, 2004 U.S. Dist. LEXIS 8966, *63-64 (physical touching and attempts at intimidation not
adverse employment action).
Accordingly, the post-suspension conduct cannot constitute adverse employment
action, and therefore cannot be the basis of a retaliation claim.
C.

The conduct of defendants’ in visiting the outside of plaintiff’s apartment cannot be
the basis of a retaliation claim by a private citizen under the First Amendment.
Even if plaintiff could pursue a private citizen retaliation claim, even the new

theory requires that a claim be grounded upon a concrete harm sufficient to substitute for a
chilling effect to provide standing. As the Second Circuit explained in a case relied on by
plaintiff (June 2, 2005 Letter at 4), Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir. 2011), only

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limited sorts of concrete harms will substitute for chilling effect in citizen retaliation cases, while
as a general matter chilling effect is still required:
However, in limited contexts, other forms of harm have been
accepted in place of this "actual chilling" requirement. See, e.g.,
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 91 (2d Cir. 2002) (alleging retaliatory revocation of
building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195
(2d Cir. 1994) (alleging retaliatory failure to enforce zoning laws);
see also [Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004)]
(explaining that “the Gagliardi plaintiffs' retaliation claim
apparently survived a motion to dismiss because . . . they
adequately pleaded non-speech injuries”). Despite these limited
exceptions, as a general matter, First Amendment retaliation
plaintiffs must typically allege "actual chilling."
Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir. 2011) (emphasis added). In holding that
allegedly per se defamatory statements are not a sufficiently concrete injury to support a First
Amendment citizen retaliation claim, the Second Circuit stated: “Where chilling is not alleged,
other forms of tangible harm will satisfy the injury requirement, since “standing is no issue
whenever the plaintiff has clearly alleged a concrete harm independent of First Amendment
chilling.” Zherka v. Amicone, 634 F.3d at 646 (citing Gill, 389 F.3d at 383) (emphasis added).
Here, the undisputed facts about the police visits to the vicinity of plaintiff’s
apartment do not establish a “concrete” or “tangible” harm upon which to ground a First
Amendment claim. Plaintiff contends that on eight separate occasions NYPD representatives
came to his home; it is undisputed that they went there to serve administrative notices related to
his employment, and that on one occasion Schoolcraft opened the door and spoke to them.
Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *71. Other than that one occasion, the
defendants did not even interact with Schoolcraft, let alone commit any crime or violation of his
rights. The police have the same rights as anyone else to be on the street near plaintiff’s home,
to knock on his door, or attempting to observe his public movements. “Even surveillance

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activities conducted near but outside the curtilage of one's home — i.e., an area to which the
intimate activity associated with the sanctity of one's home and the privacies of life is extended
— do not violate one's Fourth Amendment rights.” United States v. Hayes, 551 F.3d 138, 145
(2d Cir. 2008) (internal citation and quotation marks omitted). Where officers are “physically
located in public places such as Plaintiff's workplace or public streets adjacent to or near
Plaintiff's home, without intruding upon the curtilage of Plaintiff's home, none of the alleged
activities has violated Plaintiff's Fourth Amendment right to privacy.” Paige v. N.Y. City Police
Dep't, 2012 U.S. Dist. LEXIS 47078, *12-13 (E.D.N.Y. Mar. 30, 2012); see also United States v.
Thomas, 2003 U.S. Dist. LEXIS 7110, *16 (D. Conn. Apr. 28, 2003) (holding surveillance from
across the street of plaintiff’s front porch and balcony does not infringe any reasonable
expectation of privacy); see also Hayes, 551 F.3d at 145 (police may use drug sniffing dogs in
front of suspect’s home without a warrant); Esmont v. City of New York, 371 F. Supp. 2d 202,
212 (E.D.N.Y. 2005) ("Unobstructed, open areas in front of a residence are not entitled to Fourth
Amendment protection.").
This sort of inchoate harm is very similar to other alleged harms that have been
held insufficient to support First Amendment standing. For example, allegations of an insulting
You Tube video disclosing publicly available tax information about the plaintiff; issuing
summonses for regulatory violations without basis; and the emotional and mental anguish that
plaintiff claims were induced by the same, are not sufficiently concrete to provide First
Amendment standing. LaVertu v. Town of Huntington, 2014 U.S. Dist. LEXIS 77424, *19-22
(E.D.N.Y. Apr. 4, 2014). Likewise, “[b]eing followed by supervisors is not a materially adverse
employment action. ‘Although reprimands and close monitoring may cause an employee
embarrassment or anxiety, such intangible consequences are not materially adverse alterations of

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employment conditions.’” Figueroa v. City of New York, 198 F. Supp. 2d 555, 568 (S.D.N.Y.
2002) (quoting Castro v. New York City Bd. of Educ. Pers., No. 96 Civ. 6314, 1998 U.S. Dist.
LEXIS 2863, * 21 (S.D.N.Y. Mar. 12, 1998) (internal citations omitted)).
Since it does not violate Schoolcraft’s rights for defendants merely to be near him,
plaintiff identifies nothing tortious or criminal in defendants’ actions near his home after he was
suspended. Accordingly, the officers’ presence near plaintiff’s home is not a cognizable harm.
D.

Plaintiff’s retaliation claim cannot survive summary judgment because the
undisputed facts are insufficient to support a finding of retaliatory motive.
In order to prevail on a retaliation claim, plaintiff must establish that the

retaliatory acts he complains of were motivated by a desire to retaliate for specific First
Amendment protected activity. “Specific proof of improper motivation is required in order for
plaintiff to survive summary judgment on a First Amendment retaliation claim.” Curley v.
Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citing Blue v. Koren, 72 F.3d 1075, 1082-83
(2d Cir. 1995). It is insufficient to show general animus towards plaintiff; i.e., that defendants
disliked him. Id. If the Court is willing to reconsider allowing plaintiff to assert a claim as a
private citizen for retaliation, then the Court should also reconsider the plaintiff’s proffered
evidence – which the Court appears to have misconstrued – of retaliatory motive.
For defendants to be motivated by a desire to retaliate against plaintiff for his First
Amendment protected activity, they must first know about the protected activity. See, e.g., Reed
v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (“To establish a prima facie case for
[Title VII] retaliation, a plaintiff must show that (1) the employee was engaged in protected
activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse
employment action; and (4) there was a causal connection between the protected activity and the
adverse employment action.” (citation omitted)). But there is no evidence that any defendants

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knew, on October 31, 2009, of the contents of Schoolcraft’s statements to IAB or QAD.
Although the Court considered this question, the Court apparently mistook deposition testimony
given by a third party – P.O. Pedro Serrano – about how own experience, not Schoolcraft’s – for
evidence that defendants knew about Schoolcraft’s allegations to QAD and IAB. Schoolcraft IV,
2015 U.S. Dist. LEXIS 58831, at *111. The Court cited Serrano’s testimony for the proposition
that “[w]hen Schoolcraft reported the existence of quotas and crime misclassifications to IAB,
his supervisors were notified.” Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *111 (citing
POX 41:559:1-21). But the transcript cited does not support that conclusion; rather, it is the
testimony of Serrano about alleged retaliation that he claims he suffered at another command, the
40th Precinct. POX 41:659:1-21; see POX 41:653. As the City defendants noted in prior
briefing, plaintiff has identified no evidence of knowledge of Schoolcraft’s alleged statements.
City Defendants’ Reply Memorandum of Law in Support of Motion for Summary Judgment
Docket No. 11 at 21. At most, the plaintiff could argue that some defendants knew that QAD
was conducting an investigation of something; that Schoolcraft was asking other officers about
their interviews with QAD; and that Schoolcraft put the name of someone from IAB in his memo
book. Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *21-22. This is hardly evidence of
knowledge that Schoolcraft made allegations at all to QAD or IAB, let alone knowledge of the
substance or even the target of his allegations.
Accordingly, plaintiff’s purported claim for retaliation in violation of the First
Amendment should be rejected for that reason as well.
* * *
In addition, as set forth below in Point II below, the individual defendants are
entitled to qualified immunity for any claim by plaintiff under the First Amendment, whether for

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retaliation against a private citizen, or for workplace retaliation, because plaintiff’s speech was
not protected by the First Amendment under clearly established law at the time of the events at
issue.
For the foregoing reasons, the Court should deny plaintiff’s motion for
reconsideration with respect to the First Amendment claim.
POINT II
THE INDIVIDUAL DEFENDANTS ARE
ENTITLED TO QUALIFIED IMMUNITY
FROM ANY FIRST AMENDMENT CLAIM
BASED ON PLAINTIFF’S INTERNAL
WORKPLACE SPEECH, WHICH WAS NOT
PROTECTED UNDER THE FIRST
AMENDMENT BY “CLEARLY
ESTABLISHED LAW” AT THE TIME OF
THE EVENTS AT ISSUE
Plaintiff argues incorrectly in his motion for reconsideration that qualified
immunity should not lie because it “was clearly established at the relevant time that a
governmental entity or individual could not lawfully take adverse action against a public
employee in retaliation for that employee’s speech on matters of public concern.” June 2 Letter
at 3 (citing Plaintiff’s March 17, 2015 Surreply Letter, Docket No. 424, at 8-9).
This argument misconstrues the law of qualified immunity and runs directly afoul
of the Supreme Court’s injunction to avoid analyzing qualified immunity at a high level of
generality. “[T]he Supreme Court has expressly cautioned against framing the constitutional
right at too broad a level of generality.” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (citing
Wilson v. Layne, 526 U.S. 603, 615 (1999)). The Supreme Court has “repeatedly told courts . . .
not to define clearly established law at a high level of generality.” City & Cnty. of San Francisco
v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084
(2011)). Accordingly, the Second Circuit has “interposed a ‘reasonable specificity’ requirement
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on defining the contours of a constitutional right for qualified immunity purposes. Redd v.
Wright, 597 F.3d at 536 (quoting Dean v. Blumenthal, 577 F.3d 60, 67-68 (2d Cir. 2009) (finding
qualified immunity applied at the appropriate level of specificity). At a sufficiently high level of
generality, any claim can be analogized to some other claim . . . .” Arar v. Ashcroft, 585 F.3d
559, 572 (2d Cir. 2009). Were “general principle[s]” alone enough, “it could plausibly be
asserted that any violation of the Fourth Amendment is ‘clearly established.’” Wilson, 526 U.S.
at 615. But “that result would be inconsistent with one of the policies behind the qualified
immunity doctrine: to relieve individual officials of the burden of anticipating every new
development in constitutional law. Lauro v. Charles, 219 F.3d 202, 215 (2d Cir. 2000) (holding
that although ‘perp walk’ violated Fourth Amendment individual defendants were entitled to
qualified immunity).
An officer's “conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080, 2083 (2011). “The question is not what a lawyer would learn or intuit from
researching case law, but what a reasonable person in [the] defendant's position should know
about the constitutionality of the conduct." Young v. County of Fulton, 160 F.3d 899, 903 (2d
Cir. 1998). Here, even judges – let alone police officers – did not anticipate the change in the law
that underpins this Court’s reversal of its First Amendment ruling.
The issue here is not whether the First Amendment prohibits retaliation for protected
speech: the issue, among others, is whether Schoolcraft’s speech for which he claims he was
retaliated was protected by the First Amendment. Initially the Court ruled (in defendants’ view,
correctly) that the speech was not protected. In light of very recent Second Circuit precedent,

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Matthews v. City of New York, 779 F.3d 167 (2d Cir. 2015), reversing a district court opinion on
which this Court had relied, this Court reversed its prior ruling and held that some of
Schoolcraft’s speech for which he claims retaliation (complaints to IAB and QAD) may have
been protected by the First Amendment and that therefore the claim should be tried. Schoolcraft
IV, 2015 U.S. Dist. LEXIS 58831, at *98, *103-04, *111. That point was obviously not clearly
established under prior law, since the Court was required to reverse its own ruling, and therefore
it was not clear in 2009 that Schoolcraft had any First Amendment rights with respect to his
internal NYPD complaints.
In a similar case, the court granted qualified immunity from a First Amendment
claim for retaliation against a government employee, on the grounds that it was not sufficiently
clear under prior law that the speech was made as a private citizen rather than a government
employee, and that it was a matter of public concern. See Schwartz v. Anderson, 2015 U.S. Dist.
LEXIS 39745, *24-25 (D. Conn. Mar. 29, 2015) (defendants are “entitled to qualified immunity
as a matter of law because it would not have been clear to a reasonable official that the speech
was protected” where it was unclear whether speech was made as a private citizen and whether it
was a matter of public concern).
Plaintiff also argues that it would be unfair to apply qualified immunity because it
was first raised on this claim in a Reply brief. This argument is nearly frivolous. Qualified
immunity was raised on Reply because plaintiff’s opposition was grounded on a purported
“change in the law,” that plaintiff argued meant that “the Court should now hold that Officer
Schoolcraft’s speech before his suspension was protected by the First Amendment because
reporting misconduct is not an ordinary function of the position as a Police Officer . . . .”
Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment,

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Docket No. 383, at 21. There was no reason to raise qualified immunity before a Reply, since no
change in the law had been asserted and the claim at issue now had already been dismissed, and
the Matthews decision of the Second Circuit had not been issued (a development that defendants
candidly volunteered to the Court on Reply). 6 Were a surreply warranted on the issue of
qualified immunity, plaintiff has already had it, by his letters of March 17 and June 2, 2015. 7
Accordingly, there is no basis to disturb the Court’s ruling on qualified immunity.
POINT III
THE COURT CORRECTLY RULED THAT
PLAINTIFF’S EXPERT DR. HALPRENRUDER SHOULD NOT TESTIFY AT TRIAL
The City defendants reserve all objections to the admissibility of proffered expert
testimony for motions in limine and for trial. Nevertheless, since plaintiff has moved for
reconsideration of the Court’s determination that his emergency medical expert Dr. HalprenRuder should not testify, the City defendants join in the opposition to this motion by other
defendants. The City defendants agree with the Court’s basis for excluding the testimony.
Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at * 175-76. 8

6

Qualified immunity has not been waived, as it was asserted in the City defendants’ answer as to
all claims. See City Defendants’ Answer to Second Amended Complaint, Docket No. 140, ¶ 440;
Order of January 16, 2015, Docket No. 340 (granting leave in part to file Third Amended
Complaint but ruling that defendants’ need not Answer the Third Amended Complaint).
Therefore, qualified immunity to the extent not addressed on summary judgment may still be
raised at trial, and will be raised, as to any and all claims against the individual City defendants.
7

Indeed, the City defendants’ consented to it, provided there were concomitant adjustments to
the trial schedule. See City Defendants’ Letter of March 20, 2015, Docket No. 426, at 3.
8

The City defendants note that the testimony is inadmissible for the additional reason that it
includes legal conclusions on non-medical matters that would invade the province of the Court
and jury: namely, that plaintiff’s hospital admission was “unjustifiable” and that his “civil rights”
were violated. See Halpren-Ruder Report, PMX 36, at 1, 4. No expert (let alone a medical
expert) may testify to the requirements of the constitution, and the testimony should be ruled
inadmissible at trial for this reason as well. Hygh v. Jacobs, 961 F.2d 359, 363-64 (2nd Cir.
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CONCLUSION
For the foregoing reasons, the plaintiff’s motion for reconsideration should be denied.
Dated:

New York, New York
June 23, 2015
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorneys for City defendants
100 Church Street, Room 3-174
New York, New York 10007
[phone]
By:

/s/
Alan Scheiner
Senior Counsel
Cheryl Shammas
Senior Counsel

1992) (police practices expert’s testimony that defendants conduct was “totally improper” and
not “justified” or “warranted” should have been excluded because it “merely [told] the jury what
result to reach”); see also United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994); Marx & Co.
v. Diners Club, Inc., 550 F.2d 505, 508-12 (2d Cir. 1976). Indeed, the expert’s foray into legal
advocacy is so inappropriate that it further calls into question his reliability as a medical expert.
21