     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,
 4       on the 16th 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
 6            Defendants-Appellees.*
 7   - - - - - - - - - - - - - - - - - - - -X
 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 failure-
21   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
21   returned a verdict.1
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
