12-4795-cv Prince v. County of Nassau



### UNITED STATES COURT OF APPEALS
**FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED**

**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**

**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 16 th** **day of April, two thousand fourteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **GERARD E. LYNCH,** 8 9 **Circuit Judges**

**.** 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **MATTHEW PRINCE,** 13 14 **Plaintiff-Appellant ,**  15 16 **-v.- No. 12-4795-cv** 17 18 **COUNTY OF NASSAU; “JOHN” FITZGERALD,** 19 **Lieutenant, Nassau County Police** 20 **Department, 1st Precinct; JOHN/JANE** 21 **DOES # 1-5 (Police Supervisory and** 22 **Training Personnel); “JOHN” SOTO,** 23 **“JOHN” HERMAN, ARNOLD ROTHENBERG,** 24 **Sergeants, 1st Precinct; JOHN/JANE** 25 **DOES # 6-20 (police officers); SCOTT** 26 **TUSA, Associate Fire Marshal, Nassau** 27 **County Office of Fire Marshal;** 28

1**JOHN/JANE DOES # 21-25 (Fire Marshal** 1 **Supervisory and Training Personnel);** 2 **and JOHN/JANE DOES # 26-30 (Associate** 3 **Fire Marshals),** 4 5 **Defendants-Appellees**

**.** ***** 6
- - - - - - - - - - - - - - - - - - - -X 7 8
**FOR PLAINTIFF-APPELLANT:** FRANK J. SCATURRO, FisherBroyles 9 LLP, New York, NY. 10 11
**FOR DEFENDANTS-APPELLEES:** JOSEPH E. MACY (Donna A. 12 Napolitano, Daniel J. Evers, on 13 the brief ), Berkman, Henoch, 14 Peterson, Peddy & Fenchel, P.C., 15 Garden City, NY. 16 17 Appeal from a judgment of the United States District 18 Court for the Eastern District of New York (Hurley, J. ). 19 20 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 21
**AND DECREED**that the judgment of the district court be 22

**AFFIRMED**

. 23 24 Matthew Prince appeals a judgment dismissing his 25 complaint against Defendants County of Nassau (the “County”) 26 and various of its police officers and fire marshals. 27 Prince claims that Defendants engaged in a years-long 28 campaign of harassment against him and restaurants 29 affiliated with him in retaliation for his parents’ October 30 2002 Internal Affairs Unit complaint and for his January 31 2003 grand jury testimony, which helped a police suspect 32 avoid indictment. The district court granted summary 33 judgment and judgment as a matter of law in favor of 34 Defendants on Prince’s 42 U.S.C. § 1983 municipal liability 35 and First Amendment retaliation claims (among others). The 36 remaining claims, including a § 1983 claim against two 37 individual defendants and an intentional infliction of 38 emotional distress (“IIED”) claim, went to a jury, which 39 returned a verdict in favor of Defendants. 40 41

*The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.

2Prince argues that the district court erred by: (1) 1 dismissing the § 1983 municipal liability claim; (2) 2 dismissing the First Amendment retaliation claim; (3) 3 inadequately responding to a jury question regarding the 4 IIED claim; (4) failing to take necessary remedial action to 5 prevent prejudice from trial delays; and (5) precluding a 6 witness from offering testimony regarding the witness’s own 7 fear of retaliation. We assume the parties’ familiarity 8 with the underlying facts, the procedural history, and the 9 issues on appeal. 10 11 1. § 1983 Municipal Liability. We review de novoa 12 grant of summary judgment, drawing all reasonable inferences 13 in the non-moving party’s favor. SeeWrobel v. Cnty. of 14 Erie , 692 F.3d 22, 27 (2d Cir. 2012). Summary judgment is 15 appropriate if the record shows that “there is no genuine 16 dispute as to any material fact and the movant is entitled 17 to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

. 18 19 We also review de novoa grant of judgment as a matter 20 of law. SeePeters v. Baldwin Union Free School Dist. , 320 21 F.3d 164, 167 (2d Cir. 2003). Judgment as a matter of law 22 is proper “[i]f a party has been fully heard on an issue 23 during a jury trial and the court finds that a reasonable 24 jury would not have a legally sufficient evidentiary basis 25 to find for the party on that issue.” Fed. R. Civ. P. 26 50(a)(1). 27 28 Prince has advanced four theories of municipal 29 liability: (1) that the County failed to properly train 30 Internal Affairs Unit investigators; (2) that the County 31 failed to properly train police officers and fire marshals 32 in the enforcement of the licensed premises codes; (3) that 33 County police officers and fire marshals implemented a 34 policy of harassment targeted at Prince; and (4) that senior 35 policy makers demanded Prince’s termination from a 36 restaurant with which he was affiliated or ratified their 37 subordinates’ improper behavior. SeePrince v. Cnty. of 38
Nassau , 837 F. Supp. 2d 71, 103-06 (E.D.N.Y. 2011). The 39 district court properly rejected all four of Prince’s 40 theories. 41 42 Municipal liability may be premised on a failure to 43 train employees if inadequate training “reflects deliberate 44 indifference to the constitutional rights of its 45 inhabitants.” City of Canton v. Harris , 489 U.S. 378, 392 46 (1989). To prove deliberate indifference, plaintiff must 47

3show: (1) “that a policymaker knows to a moral certainty 1 that . . . employees will confront a given situation”; (2) 2 “that the situation either presents the employee with a 3 difficult choice of the sort that training or supervision 4 will make less difficult or that there is a history of 5 employees mishandling the situation”; and (3) “that the 6 wrong choice by the . . . employee will frequently cause the 7 deprivation of a citizen’s constitutional rights.” Walker 8 v. City of New York , 974 F.2d 293, 297-98 (2d Cir. 1992) 9 (internal quotation marks omitted). 10 11 Prince presents insufficient evidence that Internal 12 Affairs Unit investigators improperly handled his parents’ 13 complaint, and no evidence that the investigators’ training 14 instilled deliberate indifference to constitutional rights. 15 Similarly, Prince’s argument that the officers and marshals 16 were not properly trained on inspection procedure is 17 premised on minor enforcement inconsistencies (e.g. , whether 18 tickets were issued to a bar manager or owner), which fall 19 short of evidencing deliberate indifference. Both failure20 to-train theories were therefore properly rejected. 21 22 As for the alleged pattern of harassment, it is true 23 that a “governmental ‘custom’” may sometimes constitute 24 official policy. Monell v. Dep’t of Soc. Servs. , 436 U.S. 25 658, 691 (1978). To “generate municipal liability,” 26 however, the “discriminatory practices of [municipal] 27 officials” must be “persistent and widespread,” “so 28 permanent and well settled as to constitute a custom or 29 usage with the force of law,” and “so manifest as to imply 30 the constructive acquiescence of senior policy-making 31 officials.” Sorlucco v. New York City Police Dep’t , 971 32 F.2d 864, 870-71 (2d Cir. 1992) (internal quotation marks 33 omitted). There is insufficient evidence that the 34 harassment Prince cites, which was personal to himself, rose 35 to the level of a “permanent and well settled . . . custom 36 or usage with the force of law.” Nor was there sufficient 37 evidence for a rational juror to conclude that the County’s 38 “senior policy-making officials” knew or should have known 39 of the pattern of harassment described by Prince. 40 41 Finally, “[w]here a plaintiff seeks to hold a 42 municipality liable for a single decision by a municipal 43 policymaker, the plaintiff must show that the official had 44 final policymaking power.” Roe v. City of Waterbury , 542 45 F.3d 31, 37 (2d Cir. 2008) (citation, internal quotation 46 marks, and brackets omitted). “Whether the official in 47

4question possessed final policymaking authority is a legal 1 question, which is to be answered on the basis of state 2 law.” Jeffes v. Barnes , 208 F.3d 49, 57 (2d Cir. 2000) 3 (citations omitted). 4 5 All of Prince’s assorted policymaker-based theories 6 fail. County Executive Thomas Suozzi’s statement--that he 7 was “aware” that a problem at the restaurant had been 8 resolved--does not demonstrate his involvement in Prince’s 9 termination, or approval of it. As for a June 2007 meeting 10 at which Prince’s termination was allegedly coordinated, two 11 of the attendees--Fire Marshal Michael Krummenacker and 12 Assistant Chief Kevin Lowry--were not policymakers. There 13 is no evidence that the other attendees specifically pressed 14 for the restaurant owner to fire Prince. The officials 15 appear to have been focused on helping the restaurant 16 succeed, not on carrying out a vendetta against Prince. 17 18 Prince’s theories of municipal liability were therefore 19 appropriately rejected by the district court before the jury 20 returned a verdict. 1 21 22 2. First Amendment Retaliation. The district court 23 granted summary judgment to Defendants on Prince’s First 24 Amendment retaliation claim because, “even assuming that 25 plaintiff has engaged in conduct protected by the First 26 Amendment . . . his claim must still fail because he has 27 . . . failed to demonstrate that any action taken by 28 defendants ‘effectively chilled the exercise of his First 29 Amendment right.’” Prince , 837 F. Supp. 2d at 96 (quoting 30 Williams v. Town of Greenburgh , 535 F.3d 71, 76 (2d Cir. 31 2008)). We have since clarified, however, that “[c]hilled 32 speech is not the sine qua nonof a First Amendment claim.” 33 Dorsett v. Cnty. of Nassau , 732 F.3d 157, 160 (2d Cir. 34 2013). Rather, “[t]o plead a First Amendment retaliation 35 claim[,] a plaintiff must show: (1) he has a right protected 36 by the First Amendment; (2) the defendant’s actions were 37 motivated or substantially caused by his exercise of that 38

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.

5right; and (3) the defendant’s actions caused him some 1 injury.” Id. Prince’s retaliation claim still fails under 2 this clarified standard. 3 4 There is insufficient connection between Prince’s 5 testimony in the grand jury proceeding and the alleged 6 harassment against him years later. In the three years 7 following his grand jury testimony, Prince was issued fewer 8 appearance tickets than in the ten months preceding. Prince 9 has not raised a genuine issue of material fact as to 10 whether acts of County police officers and fire marshals 11 during the limitations period were motivated by retaliatory 12 animus, rather than by a good-faith desire to enforce the 13 licensed premises codes and to end the repeated instances of 14 fighting, overcrowding, and underage drinking. SeeCurley 15 v. Vill. of Suffern , 268 F.3d 65, 73 (2d Cir. 2001) 16 (“Specific proof of improper motivation is required in order 17 for plaintiff to survive summary judgment on a First 18 Amendment retaliation claim.”). 19 20 In any event, Prince was permitted to, and did, argue 21 to the jury that the motivation for the alleged misconduct 22 that remained at issue during the trial was police hostility 23 to Prince’s grand jury testimony, and all of the evidence 24 relevant to his First Amendment claim was presented to the 25 jury. It appears that the jury credited Defendants’ version 26 of events, rejecting Prince’s remaining §1983, tortious 27 interference with contract, and IIED claims. 28 29 3. Jury Instructions Regarding IIED. A jury note 30 sought “examples of outrageous [and] shocking” conduct, and 31 the court responded by reiterating the legal standard for an 32 IIED claim, without either providing concrete examples or 33 using language suggested by Prince’s counsel. 34 35 “Generally, we will reverse the judgment of a trial 36 court and grant a new trial because of an error in the jury 37 instructions only if we are persuaded, based on a review of 38 the record as a whole, that the error was prejudicial or the 39 charge was highly confusing.” Terminate Control Corp. v. 40 Horowitz , 28 F.3d 1335, 1345 (2d Cir. 1994) (emphasis 41 omitted). The instruction here was neither. 42 43 An IIED claim requires conduct “so outrageous in 44 character, and so extreme in degree, as to go beyond all 45 possible bounds of decency, and to be regarded as atrocious, 46 and utterly intolerable in a civilized community.” Murphy 47

6v. Am. Home Prods. Corp. , 58 N.Y.2d 293, 303 (1983) 1 (internal quotation marks omitted). The IIED inquiry is 2 inherently fact-specific and individualized. SeeHowell v. 3 N.Y. Post Co. , 81 N.Y.2d 115, 122 (1993) (“[The tort of] 4 intentional infliction of emotional distress does not 5 proscribe specific conduct, but imposes liability based on 6 after-the-fact judgments about the actor’s behavior.” 7 (citations omitted)). The district court did not err by 8 reiterating the correct legal standard and letting the jury 9 make up its own mind about whether the alleged conduct met 10 that standard. 11 12 4. Trial Delay. Prince argues that the thirteen-day 13 gap between the close of evidence and the start of jury 14 deliberations denied him a fair trial. The trial, however, 15 was expected to (and did) take many weeks, even without 16 weather-related delays. The jury appears to have 17 conscientiously performed its role, asking for read-backs 18 and for clarification when necessary. Prince’s claims of 19 prejudice are speculative and lack record support. 20 21 5. Preclusion of Green’s Testimony. Prince argues 22 that the district court improperly excluded testimony of 23 Christopher Greene, who was Prince’s friend and a restaurant 24 employee. Greene was to testify that he did not report 25 police misconduct because he feared that he would suffer a 26 similar campaign of harassment. The district court excluded 27 the testimony because it was conclusory and speculative, and 28 would likely confuse the jury and prejudice Defendants. See 29 Fed. R. Evid. 403. 30 31 We review “a challenge to [a] district court’s 32 evidentiary ruling . . . for abuse of discretion, reversing 33 only if we find manifest error.” United States v. Al 34
Kassar , 660 F.3d 108, 123 (2d Cir. 2011). “Rule 403 35 determinations command especial deference because the 36 district court is in the best position to do the balancing 37 mandated by Rule 403.” Id. (internal quotation marks 38 omitted). 39 40 Greene had already testified about his fear of police 41 action. Prince and his doctors also testified at length 42 about the anxiety Prince experienced as a result of police 43 harassment. The district court, therefore, did not abuse 44 discretion by precluding Greene’s additional testimony as 45 cumulative, potentially confusing and prejudicial, and 46 minimally probative. 47

7We have considered all of Prince’s remaining arguments 1 and conclude that they are without merit. The judgment of 2 the district court is hereby affirmed. 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7 8

8