Schoolcraft v. The City Of New York et al

Filing 95

OPINION: #102095 For the reasons set forth above, Plaintiff's motion to reconsider the June 14 Opinion is denied. (Signed by Judge Robert W. Sweet on 7/18/2012) (lmb) Modified on 7/25/2012 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----x
ADRIAN SCHOOLCRAFT,
Plaintiff,
10 Civ. 6005
- against
OPINION
CITY OF NEW YORK, et al.,
Defendants.

A P P E A R A N C E S:
At

Plaintiff

THE LAW OFFICES OF JON L. NORINSBERG, ESQ.
225 Broadway, Suite 2700
New York, NY 10007
By: Jon L. Norinsberg, Esq.
COHEN & FITCH LLP
225 Broadway, Suite 2700
New York, NY 10007
By: Joshua Paul Fitch, Esq.
Gerald M. Cohen, Esq.

for the Ci

Defendants

MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By: Suzanna Hallie Publicker, Esq.
Maxwell Douglas Leighton, Esq.

Donna Anne Canfield, Esq.

William Solomon Jacob Fraenkel, Esq.

Sweet, D.J.

Plaintiff Adrian Schoolcraft
ftPlaintiff")

(ftSchoolcraft,U or the

has requested that the Court reconsider the

portion of its opinion filed June 14, 2012

(the "June 14

Opinion"), in which Plaintiff's motion to amend his complaint
to include a

rst Amendment claim was denied.

Specifically,

plaintiff contends that the June 14 Opinion overlooked the
actions of the NYPD defendants in harassing and intimidating
Plaintiff at his home

upstate New York after he was

suspended from the NYPD and no longer had any job duty to
speak out about the corruption he witnessed.
aintiff has

Because

led to raise any controlling law or facts

that the June 14 Opinion overlooked, Plaintiff's motion for
reconsideration is denied.

Facts & Prior Proceedings

The facts

the case are det

led in this Court's

opinion dated May 6, 2011 which granted in part and denied in
part Defendant Jamaica Hospital Medi
dismiss.

See

~ .. ~ .. ~----------------~~--~

6005(RWS), 2011 WL 1758635, at *1

1

Center's motion to
York, No. 10 Civ.

..- - - - - - - - ­

(S.D.N.Y. May 6, 2011).

Familiarity with those facts is assumed.

On April 25, 2012, Plaintiff wrote to the Court
requesting leave to amend the complaint to add a First
Amendment retaliation claim under 42 U.S.C.

§

1983.

The

letter was treated as a motion and a date set for argument.
After receiving several letters from both Plaintiff and
counsel for Defendants City of New York, the NYPD, and the
individual police officers (the "City Defendants"), the motion
was heard and marked

ly submitted on May 9, 2012.

On May

10, 2012, Plaintiff wrote to the Court to provide
supplementary authority from the United States Court of
Appeals for the Ninth

rcuit, and Defendants submitted a

letter in response.

In the June 14 Opinion,

aintiff's motion to amend

the complaint to include a First Amendment retaliation claim
was denied on the basis that the speech at issue was made
pursuant to Plaintiff's responsibilities as a government
employee:

Under Garcetti, if the speech at issue is not required by
the government employee's job duties, it is protected.

2

Evaluating whether the speech at issue in this action was
made "pursuant to" Plaintiff's official duties as a
government employee presents a difficult problem. On the
one hand, Plaintiff engaged in extraordinary efforts:
Plaintiff's complaint alleges that plaintiff objected to
the summons and arrest policy to
s supervisors, reached
out to a former NYPD detective who had assisted Frank
Serpico in the 1970s in uncovering corruption in the
NYPD, lodged a complaint with the Internal Affairs
Bureau, reported his findings to the Quality Assurance
Division, prepared a report
Commissioner Kelly
documenting the police misconduct and, ultimately,
prepared to disclose information to the public. However,
on the other hand, the NYPD Patrol Guide illustrates the
reporting of police misconduct to be squarely within
Plaintiff's job responsibilities.
Judge Jones' denial of
a First Amendment retaliation claim in the recent case of
Matthews v.
of New York also concluded that Garcetti
and its Second Circuit progeny preclude PI ntiff's First
Amendment claim.
Plaintiff's complaint alleges only that
Plaintiffll was specifically preparing to
sclose
information to the public at large," not that Plaintiff
actually disclosed any information to the press. As
such, Plaintiff's speech, which was confined to his
supervisors, the Internal Affairs Bureau and the Quality
Assurance Division is analogous to the internal speech
at issue
Garcetti, Matthews, Weintraub, Frisenda and
Brady.
Plaintiff's allegations concerning his intention
to go public, coupled with his duties as stated in the
NYPD Patrol Guide and the fact that government
ficials'
internal complaints have been previously deemed
insufficient to qualify for
rst Amendment protection,
I to nudge Plaintiff's claims over
I
created by
Garcetti from speech made by a government employee
pursuant to his duties to speech made by a private
citizen. Accordingly, Plaintiff's request to amend his
complaint to include a First Amendment retaliation claim
is denied.
l

Schoolcraft v. Ci

_ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

~L_

of N'Y'I No. 10 Civ. 6005, 2012 WL

_ _ _ _ _ __ _

3

2161596, at *5, *8 (S.D.N.Y. June 14, 2012).

On June 20, 2012, Plaintiff submitted a

ter to

the Court requesting reconsideration of the portion

the

June 14 Opinion denying Plaintiff's motion to amend his
complaint to include a First Amendment claim.

The letter was

treated as a motion and heard on submission, and the motion
was marked fully submitt

on July 11.

The Applicable Standard

Defendants request reconsideration of the April 23
Opinion pursuant to Local Civil Rule 6.3.

The standard

governing motions under Local Civil Rule 6.3 is the same as
that governing motions made pursuant to Fed. R. Civ. P. 59,
see Henderson v. Metro. Bank & Trust Co., 502 F. Supp. 2d 372,
375 (S.D.N.Y. 2007), and a court may grant reconsideration
where "the moving party can point to controlling decisions or
data that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion reached
by the court."

rd. at 376.

Additionally, the party moving

for reconsideration can obtain relief by demonstrating an
"intervening change in controlling law, the availability of
4

new evidence, or the need to correct a clear error or prevent
manifest injustice."

rd.

(quotation marks and citations

omitted) ; Parrish v. Sollecito, 253 F. Supp. 2d 713, 715
(S.D.N.Y. 2003)

("Reconsideration may be granted to correct

clear error{ prevent manifest injustice or review the court's
ision in light of the availability of new evidence.")
(citing Vi

in Atl. Ai

Ltd. v. Nat'l Mediation Bd'

f

956

F.2d 1245, 1255 (2d Cir. 1992)) i Catskill Dev.

L.L.C. v. Park

Place Entm't

(S.D.N.Y.

'f

------------------~~

2001)

154 F. Supp. 2d 696,

701-02

(granting reconsideration due to the court's erroneous

application of a statute).

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.

See Linden

v~

Dist. Council 1707-AFSCME,

415 Fed. Appx. 337{ 338 39 (2d Cir. 2011)

(affirming dismissal

reconsideration motion as movant did not identify any
relevant facts or controlling authority that the lower court
overlooked) i Licht
73, 75

(2d Cir. 2002)

motion where movant"

, 28 Fed. Appx.
(affirming dismissal of reconsideration
iled to demonstrate that the [lower]

court overlooked any fact of consequence or controlling legal
authority at the time the court decided [the case]").
5

The reason for the rule confining reconsideration to
matters that were "overlooked" is to "ensure the finality of
isions and to prevent the practice of a losing party
examining a decision and then plugging the gaps of a lost
Martin's

motion with additional matters."

Press, Inc., No. 97 Civ. 690 (MBM) , 2000 WL 98057, at *1
(S.D.N.Y. Jan. 18, 2000)
omitted).

(citation and quotation marks

A court must narrowly construe and st

ctly apply

Local Civil Rule 6.3, so as to avoid duplicative rulings on
previously considered issues, and to prevent

rule from

being used as a substitute for appealing a final judgment.
See In re Bear Stearns Cos., Inc. Sec., Derivative and ERISA
Lit

., 08 M.D.L. No. 1963, 2009 WL 2168767, at *1

Jul. 16, 2009)

(S.D.N.Y.

(\\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.")

(quoting

v. Polan, 496 F. Supp. 2d 387, 389 (S.D.N.Y. 2007));
t.com v. Lansa
at *2

Inc., No. 01 Civ. 3578, 2008 WL 4376367,

(S.D.N.Y. Sept. 25, 2008)

("The standard for granting

such a motion is strict, and reconsideration will generally be
denied unless the moving party can point to controlling
decisions or data that the court overlooked-matters, in other
6

words, that might reasonably be expected to alter the
conclusion reached by the court.")
marks omitted)

i

(citations and quotation

Ballard v. Parkstone Ene

LLC, No. 06 Civ.

13099, 2008 WL 4298572, at *1 (S.D.N.Y. Sept. 19, 2008)
("Local Rule 6.3 is to be narrowly construed and strictly
applied in order to avoid repetitive arguments on issues that
the court has fully considered.")

(quoting Abrahamson v. Bd.

of Educ. of the

st., 237 F. Supp. 2d

507, 510 (S.D.N.Y. 2002).

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
the court overlooked."
769 (2d Cir. 2008)

facts that

Rafter v. Liddle, 288 Fed. Appx. 768,

(citation and quotation marks omitted).

Plaintiff's Motion To Reconsider The June 14 Opinion Is Denied

According to Plaintiff, the June 14 Opinion
overlooked Plaintiff's

legations that, after the October 31,

2009 incident and Plaintiff's suspension from the NYPD,
several members of the NYPD repeatedly made uninvited trips to
Plaintiff's home in upstate New York.
7

During these trips,

uniformed officers banged on and kicked in Plaintiff's door,
shouted at Plaintiff to open the door and spied on PI
through the windows.

ntiff

Plaintiff notes that these alleged acts

occurred after he was suspended from the NYPD, so any
prospective speech following the October 31, 2009 incident
would not have been pursuant to Plaintiff's duties as an NYPD
officer.

Plaintiff contends that even if plaintiff were under

a duty at that time to report corruption, the subject matter
of the speech was broader than departmental corruption, as it
included Plaintiff's illegal and involuntary confinement,
which did not occur pursuant to any job duty.
Plaintiff, the all

According to

ions in the proposed amended complaint,

with respect to any speech that was uttered or intended to be
uttered after Plaintiff was suspended following the October
31, 2009 incident, establish the protected speech of a
citizen, or at least, a factual issue precluding resolution at
the pleading stage.

Additionally, Plaintiff contends that Defendants'
actions after Plaintiff was suspended constituted a prior
restraint on Plaintiff's speech.

The allegations of NYPD

officers traveling more than 300 miles outside of their
jurisdiction to spy on Plaintiff and yell at him demonstrate
8

that a reasonable person would have been intimidated.
Plaintiff emphasizes that the June 14 Opinion found that
Plaintiff's speech concerned a matter of public concern and
contends that Defendants' attempts to harass him after his
suspension constituted a prior restraint on his speech as a
citizen in violation of his First Amendment rights.

Although

Plaintiff acknowledges that his motion to amend focused on the
rst Amendment retaliation claim, Plaintiff states that his
proposed amended comp
prior rest

nt also asserts a claim based on the

nt of speech and that reconsideration should be

granted to address this separate claim.

Furthermore, according to Plaintiff, Plaintiff's
refusal to comply with the NYPD's unconstitutional quota
constituted protected speech under Jackler v.
225 (2d Cir. 2011).

,

658 F. 3d

In Jackler, a probationary police

ficer

brought a civil rights action against a police chief and
police officers, asserting First Amendment claims alleging
ret

iation for his refusals to make false statements in an

investigation into civilian complaints charging excessive use
of force.

The Second Circuit held that refusal by the police

officer to retract his truthful report and make statements
that would been

se constituted speech as a citizen on a
9

fulfilling the requirements

matter of public concern,

of Garcetti for First Amendment protection.
F.3d at 234.

See Jackler, 658

Plaintiff requests that the Court reconsider

denial of Plaintiff's First Amendment retaliation cl

based

on Plaintiff's refusal to comply with the allegedly illegal
and unconstitutional demands of his superiors.

Ac

ing to

Plaintiff, in finding that Plaintiff/s speech did not
constitute protected
Opinion distingui
with those of

under Garcetti

l

the actions Plaintiff in
ice officer in Jackler.

June 14
s case took
ificallYI

the June 14 Opinion characterized the speech at issue in
Jackler as the officer1s refusal to comply wi

orders to

suborn perjurYI

not the officer's reports filed in

connection with

e same orders.

the allegat
allege that

Plaintiff contends that

contained in the instant complaint clearly

a

iff also refused to comply with the

directives of his supervisors to issue summonses pursuant to
an alleged unconstitutional quota.
contends t
Ci

As such, Plaintiff

the courts in Jackler, as well as in Matthews v.

of New York (another case cit

the June 14 Opinion)

I

recognized that First Amendment protection was justified for
the

I

analog of refusing to comply with illegal or

unconstitutional orders

l

thereby providing a cognizable basis
10

a F

Amendment retaliation claim based on

aintiff's

refusal to adhere to the allegedly unconstitutional summons
policy.

plaintiff's motion for recons
because Plaintiff has failed to identi

ion is denied
controlling

issues of law or fact that the June 14 Opinion overlooked.
Plaintiff's April 25 letter requesting
Plaintiff, after requesting

In

ssion to amend,

ssion to alter the name of a

misidentified defendant,

ssion to include a

First Amendment claim:

[T]he City defendants
so produced the documents
from the investigation conduct
by the Quality Assurance
Division (QAD) of the New York City Police Department,
which had performed an
st
ion into the allegations
made by plaintiff Adrian Schoolcraft while still an
active duty police
ficer at the 81 st Precinct.
Specifically, pr
to
events of October 31, 2009,
Adrian School
had made numerous complaints to
supervisory personnel
thin the department and to
outside invest
ive agencies regarding the enforcement
and establishment
an arrest and summons quota.
Additionally, he
so made specific allegations that
commanding officers
manipulated crime statistics and
civilian complaints so as to avoid classification as
index crimes. These
legations included, but were not
limited to, the
to take reports of civilian
complaints,
struction
civilian complaints,
downgrading
aints that would have been categorized
as index
s to
sser offenses and discouraging
civilians from
or pursuing criminal complaints.
11

Plaintiff believed, and still does, that this under­
reporting was occurring in order to avoid the statistical
categorization of these complaints as \\major crimes" for
purposes of reporting crime statist s to the publ
i.e. to make it appear to the public at large that a
certain manner of policing was [e]ffectively reducing
crime when in fact the numbers being provided to the
public were being falsified.
Further, these allegations
that plaintiff had made were eventually substantiated by
the QAD investigative findings, which found that civilian
complaints were in fact being falsified by the NYPD. As
such,
lowing the
sclosure of the QAD findings, the
merit and validity of
aintiff's First Amendment
retaliation claim became clear - namely, that the events
of October 31, 2009 and the subsequent campaign of
harassment was done directly in retaliation against
plaintiff because he had exercised his First Amendment
right to speak out regarding this breach of the public
trust and fraud on the public at large. Accordingly,
plaintiff now makes the instant request to add a
rst
Amendment [c]laim to the complaint.

In neither the April 25 letter, nor in Plaintiff's May 10
letter providing supplemental authority from the Ninth
Circuit, did Plaintiff raise the issue of protected speech
made after his suspension on October 31, 2009, nor did
Plaintiff raise the argument that he had no duty to report
misconduct following his suspension.

In fact, Plaintiff's

April 25 letter expressly highlights speech made "while still
an active duty police officer," "prior to the events of
October 31, 2009.

U

Although Plaintiff now highlights passages

from his proposed amended complaint alleging that Defendants
engaged in the unlawful prior restraint
12

Plaintiff's First

Amendment rights following

events of October 31, 2009,

these allegations in the proposed complaint, or even t
phrase "prior restra

," are not mentioned in either

April 25 or May 10 letters.
contention that his act

With respect to Plaintiff's
are akin to the action

protected in Jackler

illegal action cannot constitute

a police officer's

I

argument in his

Plaintiff could have rai

s

motion l but he did not.

the briefing PI

S

iff filed in support of his mot

never raised the issues
motion for reconsi

As not

aintiff has identified

ly putl
to amend
in his

ration.

"[t]he standard for

ing [a Rule

59 motion for reconsideration] is strict, and reconsideration
will generally
controlling

ed unless the moving

can point to

isions or data that the court overlooked[.]"

Shrader v. CSX

Inc' l 70 F.3d 255, 257 (2d Cir. 1995)

Plaintiff acknowledges "the fact that plaintiff1s motion [to
amend]
tight const

on the retaliation cIa
s imposed by the

"

Because of the
applicable to

motions for reconsideration l Plaintiff1s arguments regarding
his
arguments

amended complaint/s
were never raised
13

restraint claim ­
briefing accompanying

Plaintiff's motion to amend and are presented for the first
time in the present motion for reconsideration - cannot be
addressed at this stage of the litigation.

Accordingly,

Plaintiff's motion for reconsideration is denied.

To the

extent Plaintiff wishes to amend his complaint to include a
prior restraint claim, a motion to amend pursuant to Fed. R.
Civ. P. 15(a) should be filed.

Conclusion

For the reasons set forth above, Plaintiff's motion
to reconsider the June 14 Opinion is denied.

It is so ordered.

New York, NY
July
2012

IVr

U.S.D.J.

14