Thursday, June 12, 2014

An alleged § 1983 violation.

Practice point:  An employee of the county police department, plaintiff brought this action to recover damages pursuant to 42 USC § 1983 for the violation of constitutional rights under color of state law.

The Appellate Division reversed the denial of the defendants' motion to dismiss, and found that the defendants demonstrated their entitlement to judgment as a matter of law dismissing the first cause of action, which alleged violations of the plaintiff's rights to equal protection and due process. The plaintiff based her equal protection claim on the "class of one" theory, that is, she alleged that she was subject to adverse employment consequences not because of her membership in an identified class of persons based on categories such as race, sex, and national origin, but simply for arbitrary, vindictive, and malicious reasons. .However, an equal protection claim based on a "class of one" theory cannot be asserted in the public employment context. With respect to the due process claim, the defendants established that the plaintiff was not deprived of a constitutionally protected property right.

Student note: The defendants established their prima facie entitlement to judgment as a matter of law dismissing the plaintiff's First Amendment retaliation claim as the conduct claimed by the plaintiff to have triggered the alleged retaliation, consisting of the filing of a prior lawsuit and the ticketing of the plaintiff's off-duty police coworker for a traffic infraction, did not constitute protected speech.

Case:  Bein v. County of Nassau. NY Slip Op 03967 (2d Dept. 2014)

 Here is the decision.

Tomorrow's issue: A certification order to file a note of issue, and dismissal.