Sharpe v. City of N.Y.

WYNTON SHARPE, Plaintiff,

v.CITY OF NEW YORK, et al., Defendants.

11 Civ. 5494 (BMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: May 28, 2013

MEMORANDUM

DECISION AND ORDER

COGAN, District Judge.

Plaintiff, a former Assistant District Attorney, brought this suit pursuant to 42 U.S.C. § 1983, asserting claims in connection with his May 2011 termination by the Kings County District Attorney's Office ("KCDAO"). Defendants have moved to dismiss plaintiff's amended complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted.

BACKGROUND

The following facts are taken from the amended complaint and are assumed true for purposes of this motion. See Bryant v. New York State Educ. Dep't, 692 F.3d 202, 210 (2d Cir. 2012).

Plaintiff was hired as an Assistant District Attorney in the KCDAO on or about November 11, 2004. Plaintiff was not a political appointee; he was hired based on merit. At the time that plaintiff was hired, defendant Charles Hynes, the Kings County District Attorney, knew plaintiff's father, Wellington Sharpe ("Wellington"), and was aware that Wellington had previously been a candidate for public office in Brooklyn. Plaintiff never kept his familyrelationship with Wellington a secret.

Throughout his employment at the KCDAO, plaintiff's job performance was satisfactory. In October 2009, plaintiff was transferred to the Red Zone General Trial Bureau ("Red Zone"), which was responsible for a specific geographic area of Brooklyn.

At some point prior to plaintiff's assignment to Red Zone in 2009, Kevin Parker, a New York State Senator from Brooklyn, was arrested for several crimes, including assault, and ultimately indicted by a Grand Jury. Red Zone handled the prosecution of the case. Although he worked in Red Zone, plaintiff was not involved in Parker's prosecution, nor was he aware of any facts relating to the prosecution.

Plaintiff's father, Wellington, was a candidate in the 2010 State Senate race and was running against Parker. Wellington had run unsuccessfully against Parker on two occasions prior to 2010. Between his assignment to Red Zone in October 2009 and August 11, 2010, plaintiff was not employed by or involved in his father's campaign for State Senate in any way. Plaintiff alleges that Hynes and others in the KCDAO knew that Wellington was running against Parker in the 2010 State Senate race.¹

On August 11, 2010, defendant James Leeper, the Bureau Chief of Red Zone, asked plaintiff if Wellington was his father, and plaintiff replied "yes." Leeper told plaintiff to report to defendant Amy Feinstein's office.² Feinstein was the Chief Assistant District Attorney. Feinstein also asked if Wellington was plaintiff's father and, after plaintiff confirmed that he was, Feinstein placed plaintiff on immediate suspension without pay or benefits. Feinstein didnot explain her decision, reference any violation of policy, or give plaintiff an opportunity to be heard.

The next day, Leeper appeared before Justice Neil Firetog of the New York Supreme Court in People v. Kevin Parker. Leeper informed Justice Firetog that:

[T]he People learned just yesterday afternoon that an assistant district attorney by the name of Wynton Sharpe, who works in the Red Zone . . . his father is running in the primary against Senator Parker. He did not reveal that in time - I can't explain why he did not reveal that . . . .

We do not know why Mr. Sharpe did not disclose this to myself or anybody else in the office, that his father was running against the defendant in this matter. If nothing else, it was profoundly flawed judgment that Mr. Sharpe did not disclose that to either myself or anybody else in the office.³

Leeper requested that a Special Prosecutor be appointed in the People v. Parker matter and advised that the KCDAO was seeking the appointment of a Special Prosecutor to investigate plaintiff's failure to disclose the potential conflict of interest.

On August 17, 2010, a Special District Attorney was appointed to prosecute the Parker case. That same day, Feinstein advised plaintiff that the Special District Attorney had also been appointed to review plaintiff's conduct and that the KCDAO would decide what action was appropriate when the inquiry was complete. Plaintiff cooperated with the Special District Attorney's investigation. Then, on September 28, 2010, the Special District Attorney informed plaintiff that the investigation had been concluded and that no criminal charges would be brought against him.

The next day, Feinstein refused plaintiff's request for reinstatement and informedplaintiff that he would be suspended with pay until the KCDAO completed its own internal review. In a subsequent correspondence, Feinstein explained that, unlike the Special District Attorney's investigation into possible criminal wrongdoing, the KCDAO was conducting a disciplinary review within its purview as plaintiff's employer. Plaintiff objected to the internal review, arguing that the KCDAO had not indicated at any time since plaintiff had been suspended that he would be subject to such review.

Several days later, Kin Ng, Director of Training in the KCDAO, requested that plaintiff appear for an inquiry regarding his failure to disclose his relationship with his father in the People v. Parker matter and advised plaintiff that if he chose not to appear for the inquiry, he could be subjected to additional disciplinary sanctions by the KCDAO. Ng scheduled the interview for October 15, 2010. However, on that day, before he could be interviewed, plaintiff was arrested following a dispute with his then-girlfriend and was therefore unable to attend the interview. He was charged with assault, among other crimes, and the KCDAO appointed a Special Prosecutor to handle these charges.

Ng informed plaintiff that it was in his best interests to put off the interview until resolution of the criminal charges. On March 4, 2011 the charges were dismissed and sealed pursuant to New York law. Plaintiff then contacted Ng and requested an interview.

Ng, along with John O'Mara of the KCDAO, interviewed plaintiff in connection with the KCDAO's internal disciplinary investigation on April 8, 2011. At the interview, plaintiff requested reinstatement with full back pay, a promotion to a position which he felt he would otherwise have achieved if not for the KCDAO's alleged wrongful treatment, and a statement by the KCDAO to counter previous statements made by KCDAO employees regarding plaintiff's actions. Because Ng and O'Mara were apparently not aware of Leeper's statements in courtabout plaintiff's conduct in the Parker matter, they asked plaintiff to provide copies of the relevant transcript and any news accounts referencing KCDAO statements about plaintiff. Shortly after the interview, plaintiff provided these items and asked that the KCDAO reinstate him and clear his name.

When plaintiff did not hear from Ng about the status of the investigation, he informed Ng that he would file suit to challenge what he viewed as his wrongful suspension and termination. Then, by letter dated May 27, 2011, Feinstein informed plaintiff that he was being terminated immediately.

DISCUSSION

Defendants move to dismiss plaintiff's three-count amended complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In Count One, plaintiff alleges that Hynes, Leeper and Feinstein deprived him of his due process, equal protection, and intimate familial association rights under the First and Fourteenth Amendments in violation of § 1983.⁴ Count Two alleges municipal liability on the part of the City of New York and the KCDAO under § 1983. Finally, in Count Three, plaintiff alleges that Hynes, Leeper, and Feinstein failed to intervene to prevent a deprivation of plaintiff's constitutional rights.

On a motion to dismiss under Rule 12(b)(6), the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Harrington v. Cnty. of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (2009)). The Court must also draw "all reasonable inferences in the plaintiff's favor." Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). Nevertheless, thefactual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). In other words, a complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Id. at 570, 127 S. Ct. at 1974. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

I. The Equal Protection Claim

Defendants argue that the portion of plaintiff's § 1983 claim in Count One predicated on a denial of equal protection should be dismissed because plaintiff is proceeding on a "class of one" theory of equal protection and such claims are unavailable in the context of public employment.⁵ Plaintiff, however, has clarified in his opposing papers that he "is not proceeding based on [a] 'Class of One' theory of Equal Protection" and, consequently, plaintiff has declined to respond to the arguments in defendants' motion with regard to this point. This is just as well, as the law is clear that public employees may not proceed on a class of one theory. See Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 598, 128 S. Ct. 2146, 2151 (2008).

But having withdrawn his "class of one theory," it is not clear what plaintiff's theory of an equal protection violation is. In his original complaint, plaintiff clearly pled a race-based equal protection claim based on his being African-American. He dropped the...