06-3890-cv
Rolon v. Henneman


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       August Term, 2007

(Argued: October 2, 2007                                             Decided: February 25, 2008)

                                 Docket No. 06-3890-cv
                    _____________________________________________

                                       DENNIS ROLON,

                                                                               Plaintiff-Appellant,

                                              – v. –

                        ROBERT HENNEMAN and ARI MOSKOWITZ,

                                                                  Defendants-Appellees.
                       ____________________________________________

             Before:     NEWMAN, SOTOMAYOR and WESLEY, Circuit Judges.
                       ____________________________________________

       We hold that testifying witnesses in police disciplinary hearings of the type at issue here
have absolute immunity from suit for their testimony.
                      ____________________________________________

                                             MICHAEL H. SUSSMAN, Goshen, New York, for
                                             plaintiff-appellant.

                                             JOHN F. O’REILLY, Elmsford, New York, for
                                             defendant-appellee Robert Henneman.

                                             BRIAN SOKOLOFF (Miranda Sokoloff
                                             Sambursky, on the brief), Mineola, New York, for
                                             defendant-appellee Ari Moskowitz.




                                                 1
SOTOMAYOR, Circuit Judge:

         This appeal principally concerns whether acting Police Chief Robert Henneman

(“Henneman”), as a witness testifying at police disciplinary hearings, is absolutely immune from

civil liability for offering allegedly perjurious testimony at those hearings. Plaintiff-appellant

Dennis Rolon (“Rolon”), a police officer in the town of Wallkill, New York, also alleges that

police officer Ari Moskowitz (“Moskowitz”) falsely accused him of misconduct and caused him

to suffer humiliation and economic loss. We AFFIRM the district court’s dismissal of the claims

against both Henneman and Moskowitz on the ground that Henneman is absolutely immune

from civil suit based on his testimony at the disciplinary hearings, and on the ground that Rolon

failed to state a constitutionally cognizable deprivation of liberty or property rights as a result of

Moskowitz’s alleged false accusations.

                                          BACKGROUND

         The facts of this case as they relate to each defendant are set forth more fully in the

district court opinions, familiarity of which is presumed. Rolon v. Henneman (“Rolon I”), 389 F.

Supp. 2d 517, 517-18 (S.D.N.Y. 2005); Rolon v. Henneman (“Rolon II”), 443 F. Supp. 2d 532,

534-35 (S.D.N.Y. 2006). For purpose of this appeal, following a grant of judgment on the

pleadings, we accept as true the complaint’s factual allegations and draw all reasonable

inferences in the plaintiff’s favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.

2006).

                                                  A.

         Rolon has served as a police officer in Wallkill, New York, since 1997. On April 7,

2000, then-Chief of Police James Coscette signed a notice of disciplinary charges against Rolon


                                                   2
(the “April discipline”), specifying that on February 19, 2000, when Henneman asked Rolon a

series of questions concerning a harassment claim reported by Police Officer Paul Besser, Rolon

replied using “coarse, violent, profane, insolent and/or abusive” language, and refused to respond

to Henneman’s inquiry. Coscette suspended Rolon without pay on April 10, 2000, for an

indefinite period of time pending resolution of the charges. Rolon subsequently served a five-

day unpaid suspension relating to this matter.

       In May 2000, Henneman replaced Coscette and became Acting Chief of the Town of

Wallkill Police Department. Three months later, in August 2000, Henneman served Rolon with

a second notice of discipline (the “August discipline”). This notice contained nine charges of

misconduct and fifteen specifications arising from events that took place between May 10 and

July 24, 2000. Several of these alleged incidents of misconduct were not witnessed by

Henneman but were reported to him by Moskowitz. Pursuant to this second notice of discipline,

Henneman suspended Rolon without pay pending resolution of the charges.

                                                 B.

       Prior to the initiation of the August disciplinary proceedings, on May 1, 2000, Rolon

filed suit in the United States District Court for the Southern District of New York (Conner, J.),

alleging that defendants Coscette and Henneman, among others, had violated his constitutional

right to due process. Moskowitz was not named as a defendant in this suit.

       On January 23, 2001, the parties reached a settlement and, with respect to the named

defendants, Rolon agreed to a general release of claims arising from the April and August

disciplinary actions. The settlement, however, did not reach the issue of Rolon’s entitlement to

back pay; rather, the parties agreed to submit this issue to arbitration. The police department and


                                                 3
Rolon also agreed to submit the August disciplinary charges to arbitration, pursuant to the terms

of the Collective Bargaining Agreement (“CBA”) between the Town of Wallkill and the Town’s

Police Benevolent Association.

                                                   C.

        The August discipline charges were considered during arbitration hearings held on

fourteen days between January 24 and August 31, 2001. Henneman and Moskowitz both

provided testimony at the arbitral hearings. During Moskowitz’s cross-examination, the

arbitrator directed Moskowitz to produce his personal notebooks for the period of February 1

through August 23, 2000. Moskowitz left the hearing with the intention to retrieve the

notebooks, explaining that he had taken them home during lunch. He failed to return, and the

Town refused to order Moskowitz to return with the notebooks. Because of Moskowitz’s

actions, the arbitrator struck his testimony in its entirety.

        In a sixty-page decision and award dated February 15, 2002, the arbitrator found that

neither Henneman nor Moskowitz provided truthful or credible testimony, and that Henneman’s

personal hostility toward Rolon motivated many of his actions as Acting Chief of the

Department. The arbitrator found Rolon guilty of only three charges of misconduct and ordered

two days’ suspension without pay and oral counseling.1 Rolon was found not guilty of the

remaining charges and was ordered reinstated to the police force with full back pay and



        1
          Rolon was found guilty of charges that he (1) failed timely to comply with directives
from Acting Chief Henneman ordering Rolon to move his vehicle from the spot in which it was
parked; (2) failed timely to respond to a written directive from Henneman ordering Rolon to
answer certain questions regarding an arrest he made; and (3) “prepared a memorandum
disrespectful of [his] superior, . . . Henneman . . . in which [Rolon] accuse[d] . . . Henneman of
‘carelessness and stupidity.’”

                                                   4
restoration of his benefits.



                                                 D.

        On August 13, 2002, Rolon filed suit under 42 U.S.C. § 1983 in the United States District

Court for the Southern District of New York (McMahon, J.). Rolon alleged that by “[bearing]

false witness” against him, Henneman and Moskowitz caused him anguish and injury,

intentionally violated his right to due process of law, and abused their supervisory positions.

The injury he alleged included humiliation and economic loss in the form of lost overtime pay.

Rolon also claimed that Moskowitz lied to Henneman about Rolon’s misconduct, which led to

the preferment of disciplinary charges and caused Rolon emotional distress.

        In response, Henneman and Moskowitz moved for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c), claiming that, as a result of the January 2001 settlement,

Rolon’s claims were barred by res judicata. In the alternative, Henneman and Moskowitz

claimed either they were protected by qualified or absolute immunity, or Rolon failed to state a

cognizable claim for the denial of any substantive due process rights. The district court granted

Henneman judgment on the pleadings, ruling that “absolute immunity attaches to Henneman’s

witness testimony at the arbitration proceedings at issue” because “testifying witnesses,

including police officers, are entitled to absolute immunity from liability under § 1983 based on

their testimony.” Rolon I, 389 F. Supp. 2d at 519. In a subsequent opinion—which was delayed

in issuing by Moskowitz’s military service—the district court granted Moskowitz judgment on

the pleadings. The district court first ruled that Moskowitz was not entitled to absolute immunity

as a testifying witness because his testimony was struck in its entirety by the arbitrator and,


                                                  5
“[a]ccordingly, there is no testimony to which immunity can attach.” Rolon II, 443 F. Supp. 2d

at 536. Second, the district court interpreted Rolon’s claim that Moskowitz lied to Henneman

and initiated false charges against him as comprising two separate claims, one for malicious

prosecution and the other for fabrication of evidence. Id. at 537. With respect to the malicious

prosecution claim, the district court found that Moskowitz was not eligible for absolute

immunity because he was a “complaining witness.” Id. Although Moskowitz may have been

entitled to qualified immunity by virtue of this role, the district court found it unnecessary to

reach the question because it found that Rolon failed to state a cognizable constitutional claim.

Claims of malicious prosecution, the district court observed, are limited to the criminal arena,

and “[o]nly those malicious prosecution claims that implicate Fourth Amendment rights can be

brought under § 1983.” Id. at 538 (citing Albright v. Oliver, 510 U.S. 266, 273 (1994)). Because

Rolon did not face criminal charges and was not arrested or otherwise detained, the district court

concluded that his Fourth Amendment rights were not implicated and that Rolon failed to state a

claim for malicious prosecution under § 1983. Id.

       With respect to Rolon’s claim for fabrication of evidence, the district court explained that

the Second Circuit has only recognized a constitutional right “‘not to be deprived of liberty as a

result of the fabrication of evidence by a government officer acting in an investigation

capacity.’” Id. (quoting Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000)). The district court

rejected Rolon’s argument that deprivation of a property interest caused by fabrication of

evidence must also give rise to a due process claim. Id. at 539. It further noted that even were

Rolon’s claim cognizable, such a right was not clearly established in 2000 when Moskowitz

made the allegedly false accusations. Thus, under the doctrine of qualified immunity, Rolon


                                                  6
could not prevail against Moskowitz. Id. at 539-40. In closing, the court noted that its dismissal

“does not mean that [it] condones Moskowitz’s conduct—indeed, it was truly contemptible. It

simply means that plaintiff must avail himself of other means of redress.” Id. at 540.

       This appeal followed.

                                           DISCUSSION

       As in the district court, Rolon principally contends on appeal that Henneman is not

entitled to absolute immunity and that he asserted a valid § 1983 claim against Moskowitz. We

disagree.

                                          I. Jurisdiction

         We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. Contrary to

Henneman’s assertions, Rolon’s appeal of the district court’s dismissal of the claim against him

was timely. The date triggering the start of Rolon’s thirty days to file a notice of appeal ran from

the day, August 4, 2006, the district court entered its final judgment disposing of the entire

case—when it entered Moskowitz’s judgment on the pleadings. See Citizens Accord, Inc. v.

Town of Rochester, 235 F.3d 126, 128 (2d Cir. 2000) (holding that a “final” judgment is one that

conclusively determines the pending claims of all parties to the litigation, unless the district court

directs entry of a final judgment as to the dismissed claims or parties pursuant to Federal Rule of

Civil Procedure 54(b)). Rolon filed this appeal twelve days after the final judgment was entered,

and it is thus timely. See Fed. R. App. P. 4(a)(1).

                                      II. Absolute Immunity

       The Supreme Court has extended absolute immunity to police officers testifying at

judicial proceedings on the ground that this type of immunity existed at common law for citizen-


                                                  7
witnesses. It reasoned that without such immunity, “[a] witness’s apprehension of subsequent

damages liability might induce . . . self-censorship,” either by making witnesses reluctant to

come forward in the first place or by distorting their testimony. Briscoe v. LaHue, 460 U.S. 325,

333 (1983). Such self-censorship may “deprive the finder of fact of candid, objective, and

undistorted evidence.” Id. Yet, the Court also acknowledged the danger that a police officer or

other witness may provide purposefully false testimony and escape liability. Id. at 345. To

balance against this risk, the Court emphasized the presence of “truthfinding safeguards of the

judicial process,” id., and rejected the contention that absolute immunity should only apply to

private witnesses because “functional categories, not . . . the status of the defendant” control the

immunity analysis, id. at 342.

       Because absolute immunity is “justified and defined by the functions it protects and

serves, not by the person to whom it attaches,” Forrester v. White, 484 U.S. 219, 227 (1988), in

Austern v. Chicago Board of Options Exchange, Inc., 898 F.2d 882 (2d Cir. 1990), we extended

the common law protection of immunity accorded to judges to arbitrators in contractually-agreed

upon arbitration proceedings. We reasoned:

       We are persuaded by the[] policy concerns [of the need for independent judgment,
       protection from undue influence, and protection from reprisals by dissatisfied
       litigants,] and agree that the nature of the function performed by arbitrators
       necessitates protection analogous to that traditionally accorded to judges.
       Furthermore, we note that individuals cannot be expected to volunteer to arbitrate
       disputes if they can be caught up in the struggle between the litigants and saddled
       with the burdens of defending a lawsuit. Accordingly, we hold that arbitrators in
       contractually agreed upon arbitration proceedings are absolutely immune from
       liability in damages for all acts within the scope of the arbitral process.

Id. at 886 (internal quotation marks and citation omitted). Rolon urges that our holding in

Austern should represent the limit of absolute immunity conferred to participants in the


                                                  8
arbitration process; he argues that there is no sound basis for extending the absolute immunity

doctrine to witnesses testifying at police disciplinary hearings of the type involved in this case.

We do not agree.

        As we suggested in Austern, the truth-seeking function of arbitration is no less robust

than that of the judicial process itself. Id. Similar to a fact-finder in the judicial process, the

arbitrator here had to determine the propriety of the charges listed in Rolon’s Notice of

Discipline of August 2000. The policy rationale for witness immunity, as articulated by the

Supreme Court in Briscoe, applies with equal or near equal force in the arbitral context: “[T]he

truthfinding process is better served if the witness’s testimony is submitted to ‘the crucible of the

judicial process so that the factfinder may consider it, after cross-examination, together with the

other evidence in the case to determine where the truth lies.’” 460 U.S. at 333-34 (citation

omitted). Indeed, in this case, after weighing Henneman’s testimony, the arbitrator did not find

it credible and dismissed the majority of the charges against Rolon.

        In addition to alike policy considerations, Henneman performed substantially the same

function as witnesses in judicial proceedings with nearly identical procedural safeguards: he took

an oath, offered testimony, responded to questions on direct and cross-examination, and could

have been prosecuted for perjury. See id. at 342 (listing the functions of a witness in the judicial

process); N.Y. C.P.L.R. 7505 (empowering arbitrators with the ability to issue oaths); N.Y.

Penal Law § 210 (authorizing perjury charges for making false statements under oath). Applying

the Supreme Court’s reasoning in Briscoe, we therefore conclude that because the nature of this

arbitration was materially indistinguishable to that of formal judicial proceedings, and because

Henneman performed the same function as his judicial witness counterpart, absolute immunity


                                                   9
should attach to Henneman as a testifying witness at the arbitration hearings.2 We acknowledge,

however, that not all arbitrations will be conducted in a manner equivalent to that of the judicial

process. See Coppinger v. Metro-North Commuter R.R., 861 F.2d 33, 39 (2d Cir. 1988) (noting

possible differences). The procedural safeguards employed in arbitrations may vary, altering the

function of witnesses accordingly. We need not and do not opine as to the minimum safeguards

required in order for absolute immunity to attach in other arbitral settings. It suffices for our

decision that the arbitral proceeding at issue encompassed an adequate number of safeguards so

as to ensure that its function and the function of the witnesses sufficiently mirrored the judicial

process. Accordingly, we hold that, under a functional approach to immunity, Henneman is




       2
           To the extent Rolon claims that Henneman should not be viewed as a testifying witness
but as a complaining witness because of the role he played in initiating the charges against him,
see White v. Frank, 855 F.2d 956, 959 (2d Cir. 1988) (defining complaining witness as one “who
played a role in initiating a prosecution”), we find this argument unpersuasive. In the January
2001 settlement, Rolon released Henneman, inter alia, “from all causes of action, and claims and
demands whatsoever, in law or equity, arising from the notices of discipline dated April 7 and
August 23, 2000, provided that the arbitration arising from the later notice of discipline shall
proceed and remain unaffected by this resolution.” According to the terms of this release,
Henneman is therefore absolved of any liability for his role in initiating the disciplinary action.
         With respect to Moskowitz, the district court did not decide whether he was entitled to
absolute immunity from liability under § 1983 based on his testimony at the proceedings. The
court reasoned that because “Moskowitz’s testimony . . . was struck in its entirety[,] . . . there is
no testimony to which immunity can attach,” and therefore any false testimony could not have
affected the outcome of Rolon’s arbitration hearings. Rolon II, 443 F. Supp. 2d at 536. Because
the relevant inquiry for purposes of immunity is not the function of the testimony in the
arbitration but rather the function of the witness in the proceeding, immunity could attach if
Moskowitz was acting as a testifying witness. Rolon argues, however, that Moskowitz’s role in
initiating the complaint extended to his testimony at the disciplinary proceedings, thus making
him a complaining witness. See White, 855 F.2d at 961 (suggesting that a witness testifying at a
judicial proceeding could, in certain circumstances, be considered a complaining witness). We
need not decide this issue because, as discussed infra, we conclude that Rolon has failed to state
a legally cognizable claim as a result of Moskowitz’s allegedly false testimony.

                                                 10
absolutely immune for his testimony in the arbitration proceedings.3

                                 III. Claims Against Moskowitz

       Rolon alleges that Moskowitz lied to Henneman about his misconduct, which led to the

preferment of disciplinary charges and Rolon’s emotional and economic distress. Although

Rolon contends that he is not attempting to bring a claim for malicious prosecution, other

statements in his brief suggest the contrary. Thus, similar to the district court, we interpret

Rolon’s claims against Moskowitz as encompassing two possible causes of action: malicious

prosecution or fabrication of evidence. See Rolon II, 443 F. Supp. 2d at 537. We hold that

Rolon fails to state a claim under either theory.

                                    A. Malicious Prosecution

       Rolon’s claim for malicious prosecution is foreclosed by our decision in Washington v.

County of Rockland, 373 F.3d 310 (2d Cir. 2004), in which we stated that “to sustain a § 1983

malicious prosecution claim, there must be a seizure or other perversion of proper legal

procedures implicating the claimant’s personal liberty and privacy interests under the Fourth

Amendment.” Id. at 316 (internal quotation marks omitted); see also Rohman v. New York City

Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000) (“In order to allege a cause of action for

malicious prosecution under § 1983, [the plaintiff] must assert, in addition to the elements of



       3
          For the reasons discussed in this opinion, the Supreme Court’s two-step approach for
determining whether an immunity defense is available in a § 1983 suit is satisfied. See White,
855 F.2d at 958 (setting forth approach) (citing Malley v. Briggs, 475 U.S. 335, 339-40 (1986)
and Tower v. Glover, 467 U.S. 914, 920 (1984)). First, absolute immunity for testifying
witnesses was available at common law. See Briscoe, 460 U.S. at 330-32. Second, there is
nothing in § 1983’s legislative history or purpose that counsels against recognizing immunity
available at common law in § 1983 actions. See id. at 341-43 (concluding that the reasons
supporting common law testimonial immunity apply with equal force to police officers).

                                                    11
malicious prosecution under state law, that there was . . . a sufficient post-arraignment liberty

restraint to implicate the plaintiff’s Fourth Amendment rights.” (emphasis omitted)). Because of

this antecedent issue, in Washington we rejected a malicious prosecution claim made by

correctional officers against their superiors, who were alleged to have made false disciplinary

charges against the plaintiffs. We observed that the plaintiffs were “charged in an administrative

proceeding, and, critically, were never taken into custody, imprisoned, physically detained or

seized within the traditional meaning of the Fourth Amendment.” Washington, 373 F.3d at 316

(emphasis omitted).

       The instant case is materially indistinguishable from Washington. Rolon suffered no

“seizure” within the meaning of the Fourth Amendment. He was not imprisoned or detained,

and he was never the subject of a criminal prosecution. Rolon, moreover, does not explicitly

allege a violation of his Fourth Amendment rights; he only claims that Moskowitz’s conduct

violated his Fourteenth Amendment right to due process. Our holding in Washington therefore

governs and we affirm the district court’s dismissal of this claim.

                                   B. Fabrication of Evidence

       Alternatively, Rolon asserts a § 1983 claim against Moskowitz for the fabrication of

evidence. Specifically, he claims a deprivation of liberty interest due to the false disciplinary

charges and consequent public humiliation that he suffered. He claims a deprivation of property

interest due to his economic loss, namely the loss of opportunity to earn overtime pay.

       With respect to Rolon’s claim for damages arising from his humiliation, embarrassment,

and emotional distress from Moskowitz’s false accusations, such a claim is better left to state

defamation law, as the Supreme Court’s decision in Paul v. Davis, 424 U.S. 693 (1976), makes


                                                 12
clear. Id. at 712 (establishing that any allegedly defamatory statements harming a person’s

reputation “did not deprive [that person] of any ‘liberty’ or ‘property’ interests protected by the

Due Process Clause”). Although we acknowledge that Rolon repeatedly asserts in his brief that

he is not making a defamation claim, some of his analysis suggests otherwise and thus, similar to

our conclusion with regard to Rolon’s malicious prosecution claim, we hold that, to the extent

Rolon is making such a claim, it does not fall under the rubric of fabrication of evidence.

        With respect to Rolon’s claim for economic loss due to his denial of overtime pay, we

have not yet examined whether there is a constitutional due process right against the fabrication

of evidence where a deprivation of property is alleged. In Zahrey v. Coffey, 221 F.3d 342 (2d

Cir. 2000), we addressed “whether the deprivation of liberty may be considered a legally

cognizable result of the initial misconduct [of the manufacture of false evidence by a federal

prosecutor].” Id. at 351. We answered in the affirmative, holding that “there is a constitutional

right not to be deprived of liberty as a result of the fabrication of evidence by a government

officer acting in an investigatory capacity, at least where the officer foresees that he himself will

use the evidence with a resulting deprivation of liberty.” Id. at 344. By its broadest reading, our

decision in Zahrey instructs that in order to state a legally sufficient claim for the manufacture of

false evidence, a plaintiff must colorably allege that this evidence was used against him to cause

a constitutional injury.4

        Assuming that a deprivation of property without due process of law could constitute such


        4
         The Supreme Court in Albright v. Oliver, 510 U.S. 266 (1994), held that only violations
of the Fourth Amendment can support § 1983 claims for malicious prosecution. Id. at 271, 274-
75. For the reasons discussed below, we need not decide whether the reasoning of Albright
forecloses the possibility of substantive due process claims under the Fourteenth Amendment in
the context of fabrication of evidence.

                                                 13
a constitutional injury, Rolon’s claim still fails because he does not adequately allege an

unconstitutional deprivation of property. Property interests are not generally constitutionally

established; rather, “they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law-rules or understandings

that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Rolon has submitted no rules or

understandings to prove that he had a legitimate claim to overtime. He offered only a conclusory

assertion in his complaint that his alleged economic loss “includ[ed] the predictable loss of

overtime pay,” and a single page from the collective bargaining agreement that grants

managerial rights to assign overtime. While we “accept[] as true the factual allegations in the

complaint and draw[] all inferences in the plaintiff’s favor,” Allaire Corp. v. Okumus, 433 F.3d

248, 249-50 (2d Cir. 2006) (internal quotation marks omitted), we are not bound to accept

“conclusory allegations or legal conclusions masquerading as factual conclusions,” Smith v.

Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation marks

omitted). Thus, we hold that Rolon failed to state a legally sufficient claim against Moskowitz

for the fabrication of evidence.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment dismissing Rolon’s

action. We hold that Henneman is entitled to absolute immunity for his testimony. We also hold

that Rolon failed to state a legally sufficient claim against Moskowitz for his alleged remarks

that led to the preferment of the disciplinary charges, because Rolon demonstrated no rules or

understandings that proved he had a legitimate claim to overtime.


                                                14
