09-1961-cv
Rodriguez v. The City of New York

                             UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT


                                    SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING
A SUM M ARY 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 for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of February, two thousand and ten.

PRESENT:    PETER W. HALL,
            DEBRA ANN LIVINGSTON,         Circuit Judges,
                         *
            DENNY CHIN,                   District Judge.
_______________________________________________________

Edgardo Rodriguez,

                                           Plaintiff-Appellant,

                        v.                                              No. 09-1961-cv

The City of New York, Police Commissioner Raymond Kelly, of the New York City Police
Department, individual and professional capacities, Captain Albert Pignataro, individual and
professional capacities, Sergeant Anthony Pignataro, individual and professional capacities,
Captain George O’Brien, individual and professional capacities, Detective Dolores Weiner,
individual and professional capacities, Sergeant Gemma Masterson, individual and professional
capacities, Lieutenant Andrew Smith, individual and professional capacities,

                                           Defendants-Appellees,

Admin. Lieutenant Cander, individual and professional capacities, Robert Amato, Suffolk
County D.A. Squad, Richard A. Brown, Queens County District Attorney, Thomas J. Spota,
Suffolk County District Attorney, County of Suffolk, Suffolk County Police Department of the
State of New York.
                                            Defendants.


        *
       The Honorable Denny Chin, of the United States District Court for the Southern District
of New York, sitting by designation.
For Appellant:                   ROCCO G. AVALLONE, Cronin & Byczek, LLP, Lake Success, New
                                 York.

For Appellees:                   PHYLLIS CALISTRO , counsel (Elizabeth S. Natrella, Pamela Seider
                                 Dolgow, on the brief), for Michael A. Cardozo, Corporation
                                 Counsel of the City of New York, New York, New York.


          Appeal from a judgment of the United States District Court for the Southern District of

New York (Castel, J.), filed April 7, 2009, which, in accordance with the court’s memorandum

and order dated April 6, 2009, granted defendants-appellees’ motion for summary judgment and

dismissed the complaint. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Edgardo Rodriguez appeals from a judgment of the United States

District Court for the Southern District of New York (Castel, J.) granting defendants-appellees’

motion for summary judgment and dismissing the claim. Appellant claims that the district court

erred in granting summary judgment for appellees on appellant’s claim for unlawful termination

in violation of the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983. We review a

district court’s grant of summary judgment de novo, drawing all inferences in favor of the

nonmoving party. See SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009).

We assume the parties’ familiarity with the factual and procedural history of the case, as well as

the issues on appeal, which we reference only to the extent necessary to explain our decision to

affirm.

          We affirm for substantially the reasons stated in the district court’s thorough and

well-reasoned opinion. Rodriguez v. Kelly, No. 05-civ-10682, 2009 WL 911085 (S.D.N.Y. Apr.

6, 2009).

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         The Fifth Amendment to the U.S. Constitution states, in relevant part, that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself . . ..” U.S. Const.,

Amend. V. In order to bring a successful section 1983 claim based on this privilege against

self-incrimination, a plaintiff must establish a violation of the underlying privilege. See Chavez

v. Martinez, 538 U.S. 760, 772-73 (2003) (plurality opinion) (holding that sergeant’s failure to

read Miranda warnings to suspect before questioning him did not violate suspect’s constitutional

rights, and thus could not be grounds for section 1983 action against sergeant). The privilege is

not limited to compelled testimony in criminal cases and may be asserted “in proceedings in

which answers might be used to incriminate [witnesses] in a subsequent criminal case.” United

States v. Patane, 542 U.S. 630, 638 (2004). Even when an individual has legitimate reasons to

fear that statements may be used against him, however, the Supreme Court has “long permitted

the compulsion of incriminating testimony so long as those statements (or evidence derived from

those statements) cannot be used against the speaker in any criminal case.” Chavez, 538 U.S. at

768; see also Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (Constitution permits

testimony to be compelled if neither it nor its fruits are available for such use). If a plaintiff is

coerced into waiving his Fifth Amendment rights and utters self-incriminating or inculpatory

statements later used against him in a criminal proceeding, he may have a potentially successful

section 1983 claim. See, e.g., Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir.

1998).

         The district court held that Rodriguez:

         set forth neither facts nor legal authority to support a claim that his Fifth
         Amendment rights were violated. The plaintiff explicitly denies that he refused to
         answer any questions that [his interrogator] posed. (Pl. 56.1 Resp. ¶¶ 4-5) He
         does not contend that any statements uttered by him during the interview were

                                                   3
       used against him at a criminal proceeding. Nowhere in plaintiff’s affidavit,
       opposition memo or Local Rule 56.1 response does the plaintiff maintain that he
       exercised his Fifth Amendment privilege against self-incrimination, and the
       interview transcript does not reflect any assertion of Fifth Amendment
       protections.

Rodriguez, 2009 WL 911085, at *3.

       We agree with the district court that Rodriguez failed to establish a violation of the Fifth

Amendment. It follows that Rodriguez’s claim for unlawful termination under section 1983 fails

because he did not establish that his Fifth Amendment rights were violated. See Chavez, 538

U.S. at 772-73.

       We have considered Rodriguez’s remaining claims and find them to be without merit.

                                         CONCLUSION

       For the reasons stated above, the judgment of the district court is AFFIRMED.

                                                     FOR THE COURT:

                                                     Catherine O’Hagan Wolfe, Clerk




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