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.