12-4795-cv

Prince v. County of Nassau

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 16th 4 day of April, two thousand fourteen.

5

6 PRESENT: AMALYA L. KEARSE,

7 DENNIS JACOBS,

8 GERARD E. LYNCH,

9

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 MATTHEW PRINCE, 

14

15 Plaintiff-Appellant,

16

17 -v.- No. 12-4795-cv

18

19 COUNTY OF NASSAU; “JOHN” FITZGERALD,

20 Lieutenant, Nassau County Police

21 Department, 1st Precinct; JOHN/JANE

22 DOES # 1-5 (Police Supervisory and

23 Training Personnel); “JOHN” SOTO,

24 “JOHN” HERMAN, ARNOLD ROTHENBERG,

25 Sergeants, 1st Precinct; JOHN/JANE

26 DOES # 6-20 (police officers); SCOTT

27 TUSA, Associate Fire Marshal, Nassau

28 County Office of Fire Marshal;

1
1 JOHN/JANE DOES # 21-25 (Fire Marshal

2 Supervisory and Training Personnel);

3 and JOHN/JANE DOES # 26-30 (Associate

4 Fire Marshals),

5

Defendants-Appellees.* 6

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8

9 FOR PLAINTIFF-APPELLANT: FRANK J. SCATURRO, FisherBroyles

10 LLP, New York, NY.

11

12 FOR DEFENDANTS-APPELLEES: JOSEPH E. MACY (Donna A.

13 Napolitano, Daniel J. Evers, on

14 the brief), Berkman, Henoch,

15 Peterson, Peddy & Fenchel, P.C.,

16 Garden City, NY.

17

18 Appeal from a judgment of the United States District

19 Court for the Eastern District of New York (Hurley, J.).

20

21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

22 AND DECREED that the judgment of the district court be

23 AFFIRMED. 

24

25 Matthew Prince appeals a judgment dismissing his

26 complaint against Defendants County of Nassau (the “County”)

27 and various of its police officers and fire marshals. 

28 Prince claims that Defendants engaged in a years-long

29 campaign of harassment against him and restaurants

30 affiliated with him in retaliation for his parents’ October

31 2002 Internal Affairs Unit complaint and for his January

32 2003 grand jury testimony, which helped a police suspect

33 avoid indictment. The district court granted summary

34 judgment and judgment as a matter of law in favor of

35 Defendants on Prince’s 42 U.S.C. § 1983 municipal liability

36 and First Amendment retaliation claims (among others). The

37 remaining claims, including a § 1983 claim against two

38 individual defendants and an intentional infliction of

39 emotional distress (“IIED”) claim, went to a jury, which

40 returned a verdict in favor of Defendants. 

41

* The Clerk of Court is respectfully directed to amend

the official caption in this case to conform with the

caption above.

2
1 Prince argues that the district court erred by: (1)

2 dismissing the § 1983 municipal liability claim; (2)

3 dismissing the First Amendment retaliation claim; (3)

4 inadequately responding to a jury question regarding the

5 IIED claim; (4) failing to take necessary remedial action to

6 prevent prejudice from trial delays; and (5) precluding a

7 witness from offering testimony regarding the witness’s own

8 fear of retaliation. We assume the parties’ familiarity

9 with the underlying facts, the procedural history, and the

10 issues on appeal.

11

12 1. § 1983 Municipal Liability. We review de novo a

13 grant of summary judgment, drawing all reasonable inferences

14 in the non-moving party’s favor. See Wrobel v. Cnty. of

15 Erie, 692 F.3d 22, 27 (2d Cir. 2012). Summary judgment is

16 appropriate if the record shows that “there is no genuine

17 dispute as to any material fact and the movant is entitled

18 to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

19

20 We also review de novo a grant of judgment as a matter

21 of law. See Peters v. Baldwin Union Free School Dist., 320

22 F.3d 164, 167 (2d Cir. 2003). Judgment as a matter of law

23 is proper “[i]f a party has been fully heard on an issue

24 during a jury trial and the court finds that a reasonable

25 jury would not have a legally sufficient evidentiary basis

26 to find for the party on that issue.” Fed. R. Civ. P.

27 50(a)(1). 

28

29 Prince has advanced four theories of municipal

30 liability: (1) that the County failed to properly train

31 Internal Affairs Unit investigators; (2) that the County

32 failed to properly train police officers and fire marshals

33 in the enforcement of the licensed premises codes; (3) that

34 County police officers and fire marshals implemented a

35 policy of harassment targeted at Prince; and (4) that senior

36 policy makers demanded Prince’s termination from a

37 restaurant with which he was affiliated or ratified their

38 subordinates’ improper behavior. See Prince v. Cnty. of

39 Nassau, 837 F. Supp. 2d 71, 103-06 (E.D.N.Y. 2011). The

40 district court properly rejected all four of Prince’s

41 theories.

42

43 Municipal liability may be premised on a failure to

44 train employees if inadequate training “reflects deliberate

45 indifference to the constitutional rights of its

46 inhabitants.” City of Canton v. Harris, 489 U.S. 378, 392

47 (1989). To prove deliberate indifference, plaintiff must

3
1 show: (1) “that a policymaker knows to a moral certainty

2 that . . . employees will confront a given situation”; (2)

3 “that the situation either presents the employee with a

4 difficult choice of the sort that training or supervision

5 will make less difficult or that there is a history of

6 employees mishandling the situation”; and (3) “that the

7 wrong choice by the . . . employee will frequently cause the

8 deprivation of a citizen’s constitutional rights.” Walker

9 v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)

10 (internal quotation marks omitted).

11

12 Prince presents insufficient evidence that Internal

13 Affairs Unit investigators improperly handled his parents’

14 complaint, and no evidence that the investigators’ training

15 instilled deliberate indifference to constitutional rights. 

16 Similarly, Prince’s argument that the officers and marshals

17 were not properly trained on inspection procedure is

18 premised on minor enforcement inconsistencies (e.g., whether

19 tickets were issued to a bar manager or owner), which fall

20 short of evidencing deliberate indifference. Both failure21 to-train theories were therefore properly rejected. 

22 

23 As for the alleged pattern of harassment, it is true

24 that a “governmental ‘custom’” may sometimes constitute

25 official policy. Monell v. Dep’t of Soc. Servs., 436 U.S.

26 658, 691 (1978). To “generate municipal liability,”

27 however, the “discriminatory practices of [municipal]

28 officials” must be “persistent and widespread,” “so

29 permanent and well settled as to constitute a custom or

30 usage with the force of law,” and “so manifest as to imply

31 the constructive acquiescence of senior policy-making

32 officials.” Sorlucco v. New York City Police Dep’t, 971

33 F.2d 864, 870-71 (2d Cir. 1992) (internal quotation marks

34 omitted). There is insufficient evidence that the

35 harassment Prince cites, which was personal to himself, rose

36 to the level of a “permanent and well settled . . . custom

37 or usage with the force of law.” Nor was there sufficient

38 evidence for a rational juror to conclude that the County’s

39 “senior policy-making officials” knew or should have known

40 of the pattern of harassment described by Prince. 

41

42 Finally, “[w]here a plaintiff seeks to hold a

43 municipality liable for a single decision by a municipal

44 policymaker, the plaintiff must show that the official had

45 final policymaking power.” Roe v. City of Waterbury, 542

46 F.3d 31, 37 (2d Cir. 2008) (citation, internal quotation

47 marks, and brackets omitted). “Whether the official in

4
1 question possessed final policymaking authority is a legal

2 question, which is to be answered on the basis of state

3 law.” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000)

4 (citations omitted). 

5

6 All of Prince’s assorted policymaker-based theories

7 fail. County Executive Thomas Suozzi’s statement--that he

8 was “aware” that a problem at the restaurant had been

9 resolved--does not demonstrate his involvement in Prince’s

10 termination, or approval of it. As for a June 2007 meeting

11 at which Prince’s termination was allegedly coordinated, two

12 of the attendees--Fire Marshal Michael Krummenacker and

13 Assistant Chief Kevin Lowry--were not policymakers. There

14 is no evidence that the other attendees specifically pressed

15 for the restaurant owner to fire Prince. The officials

16 appear to have been focused on helping the restaurant

17 succeed, not on carrying out a vendetta against Prince. 

18

19 Prince’s theories of municipal liability were therefore

20 appropriately rejected by the district court before the jury

returned a verdict.1 21 

22

23 2. First Amendment Retaliation. The district court

24 granted summary judgment to Defendants on Prince’s First

25 Amendment retaliation claim because, “even assuming that

26 plaintiff has engaged in conduct protected by the First

27 Amendment . . . his claim must still fail because he has 

28 . . . failed to demonstrate that any action taken by

29 defendants ‘effectively chilled the exercise of his First

30 Amendment right.’” Prince, 837 F. Supp. 2d at 96 (quoting

31 Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.

32 2008)). We have since clarified, however, that “[c]hilled

33 speech is not the sine qua non of a First Amendment claim.” 

34 Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir.

35 2013). Rather, “[t]o plead a First Amendment retaliation

36 claim[,] a plaintiff must show: (1) he has a right protected

37 by the First Amendment; (2) the defendant’s actions were

38 motivated or substantially caused by his exercise of that

1 Moreover, the jury ultimately found that Prince was

not deprived of any constitutionally protected property

right by Sergeant Richard Soto and Assistant Chief Fire

Marshal Scott Tusa, who Prince alleged were major players in

the campaign of harassment and the only two individual

defendants against whom § 1983 liability claims remained at

trial.

5
1 right; and (3) the defendant’s actions caused him some

2 injury.” Id. Prince’s retaliation claim still fails under

3 this clarified standard.

4 

5 There is insufficient connection between Prince’s

6 testimony in the grand jury proceeding and the alleged

7 harassment against him years later. In the three years

8 following his grand jury testimony, Prince was issued fewer

9 appearance tickets than in the ten months preceding. Prince

10 has not raised a genuine issue of material fact as to

11 whether acts of County police officers and fire marshals

12 during the limitations period were motivated by retaliatory

13 animus, rather than by a good-faith desire to enforce the

14 licensed premises codes and to end the repeated instances of

15 fighting, overcrowding, and underage drinking. See Curley

16 v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)

17 (“Specific proof of improper motivation is required in order

18 for plaintiff to survive summary judgment on a First

19 Amendment retaliation claim.”). 

20

21 In any event, Prince was permitted to, and did, argue

22 to the jury that the motivation for the alleged misconduct

23 that remained at issue during the trial was police hostility

24 to Prince’s grand jury testimony, and all of the evidence

25 relevant to his First Amendment claim was presented to the

26 jury. It appears that the jury credited Defendants’ version

27 of events, rejecting Prince’s remaining § 1983, tortious

28 interference with contract, and IIED claims. 

29

30 3. Jury Instructions Regarding IIED. A jury note

31 sought “examples of outrageous [and] shocking” conduct, and

32 the court responded by reiterating the legal standard for an

33 IIED claim, without either providing concrete examples or

34 using language suggested by Prince’s counsel. 

35

36 “Generally, we will reverse the judgment of a trial

37 court and grant a new trial because of an error in the jury

38 instructions only if we are persuaded, based on a review of

39 the record as a whole, that the error was prejudicial or the

40 charge was highly confusing.” Terminate Control Corp. v.

41 Horowitz, 28 F.3d 1335, 1345 (2d Cir. 1994) (emphasis

42 omitted). The instruction here was neither.

43

44 An IIED claim requires conduct “so outrageous in

45 character, and so extreme in degree, as to go beyond all

46 possible bounds of decency, and to be regarded as atrocious,

47 and utterly intolerable in a civilized community.” Murphy

6
1 v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (1983)

2 (internal quotation marks omitted). The IIED inquiry is

3 inherently fact-specific and individualized. See Howell v.

4 N.Y. Post Co., 81 N.Y.2d 115, 122 (1993) (“[The tort of]

5 intentional infliction of emotional distress does not

6 proscribe specific conduct, but imposes liability based on

7 after-the-fact judgments about the actor’s behavior.”

8 (citations omitted)). The district court did not err by

9 reiterating the correct legal standard and letting the jury

10 make up its own mind about whether the alleged conduct met

11 that standard.

12

13 4. Trial Delay. Prince argues that the thirteen-day

14 gap between the close of evidence and the start of jury

15 deliberations denied him a fair trial. The trial, however,

16 was expected to (and did) take many weeks, even without

17 weather-related delays. The jury appears to have

18 conscientiously performed its role, asking for read-backs

19 and for clarification when necessary. Prince’s claims of

20 prejudice are speculative and lack record support. 

21

22 5. Preclusion of Green’s Testimony. Prince argues

23 that the district court improperly excluded testimony of

24 Christopher Greene, who was Prince’s friend and a restaurant

25 employee. Greene was to testify that he did not report

26 police misconduct because he feared that he would suffer a

27 similar campaign of harassment. The district court excluded

28 the testimony because it was conclusory and speculative, and

29 would likely confuse the jury and prejudice Defendants. See

30 Fed. R. Evid. 403.

31

32 We review “a challenge to [a] district court’s

33 evidentiary ruling . . . for abuse of discretion, reversing

34 only if we find manifest error.” United States v. Al

35 Kassar, 660 F.3d 108, 123 (2d Cir. 2011). “Rule 403

36 determinations command especial deference because the

37 district court is in the best position to do the balancing

38 mandated by Rule 403.” Id. (internal quotation marks

39 omitted). 

40

41 Greene had already testified about his fear of police

42 action. Prince and his doctors also testified at length

43 about the anxiety Prince experienced as a result of police

44 harassment. The district court, therefore, did not abuse

45 discretion by precluding Greene’s additional testimony as

46 cumulative, potentially confusing and prejudicial, and

47 minimally probative. 

7
1 We have considered all of Prince’s remaining arguments

2 and conclude that they are without merit. The judgment of

3 the district court is hereby affirmed.

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

7

8

8