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SALERNO v. O'ROURKE

January 18, 1983

EUGENE F. SALERNO, Plaintiff,
v.
THOMAS J. O'ROURKE, Individually and in his capacity as Camden County Sheriff; JOSEPH BORREGGINE, EUGENE FELDMAN, MICHAEL J. HAYES, JOSEPH MILANO, HILLARD T. MOORE, SR., EDWARD W. SAYERS, WILLIAM J. SIMON, Individually and in their capacity as members of the CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendants



The opinion of the court was delivered by: COHEN

 Plaintiff, Eugene F. Salerno, a Deputy Warden employed by the County of Camden, County Jail Division, instituted this civil rights action alleging that defendants, each acting in his official capacity, deprived him of freedom of speech and due process as guaranteed by the First, Fifth, and Fourteenth Amendments to the United States Constitution. Specifically, plaintiff claims: (1) that he was not accorded the duties, powers, shift rotation and other indicia of a Deputy Warden, in violation of the substantive and procedural due process protections afforded him by the Fourteenth Amendment; and (2) that the Camden County Sheriff's Department Rules and Regulations, under which he was disciplined, are facially overbroad and therefore invalid under the First and Fourteenth Amendments. *fn1" He seeks a preliminary and permanent injunction barring defendants, their agents, employees and successors from continuing the alleged pattern and practice of harassment against him. Additionally, he seeks compensatory damages for the alleged deprivation of his constitutional rights, for his lost earnings, lost sick leave, lost retirement contributions, and for the humiliation, embarrassment, and loss of reputation as a public employee he suffered. *fn2"

 Jurisdiction is based on Section 1343(3) of Title 28 of the United States Code, Section 1983 of Title 42 of the United States Code, and the First, Fifth, and Fourteenth Amendments to the United States Constitution.

 A non-jury trial was held in this matter. At the close of plaintiff's case, defendant members of the Camden County Board of Chosen Freeholders *fn3" moved to dismiss the entire Complaint as to them, on the ground that plaintiff failed to raise a colorable claim against them. In addition, defendant O'Rourke moved to dismiss certain specific allegations contained in Count 3 of plaintiff's Complaint for lack of evidence. *fn4" These oral motions were taken under advisement by the Court, (Tr. 145), pursuant to Fed. R. Civ. P. 7(b)(1), and defendants were permitted to present their case. This Opinion is written in lieu of findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 FACTUAL BACKGROUND

 At all times pertinent to this action, plaintiff was employed as a Deputy Warden by the County of Camden. His employment commenced on April 5, 1966 as a Corrections Officer, and he became a permanent employee on October 20, 1967. During his seventeen years with the Sheriff's Department, plaintiff passed competitive examinations for and was promoted to the positions of Camden Corrections Sergeant, Sheriff's Officer Sergeant, Sheriff's Officer Lieutenant, Sheriff's Officer Captain, and, finally, to his present position as Deputy Warden. In addition, plaintiff served as Undersheriff from November 1974 to February 1976. (Tr. 7-9).

 Plaintiff's duties as Deputy Warden were to assist the Warden in managing the county jail, in both an administrative and policy-making capacity. (Tr. 17). During his years of service with the Sheriff's Department, he received several departmental awards and honors and, with one exception, obtained the highest performance rating possible each time he was evaluated. (Tr. 11-12).

 Defendant O'Rourke served as Sheriff of Camden County from September 1976, when he was appointed by the Governor, *fn5" until his elected term expired in 1980. (Tr. 146). Plaintiff unsuccessfully opposed O'Rourke as a candidate for the position of Sheriff in the general election in November 1976. (Tr. 13). In addition, both men were successful candidates for Sheriff in the primary elections of 1979, plaintiff on the Republican ticket, and defendant on the Democratic slate. *fn6" (Tr. 113).

 Prior to the November 1976 election won by Sheriff O'Rourke, plaintiff was exclusively assigned to the day shift, 8 a.m. to 4 p.m., and his place of work remained constant. After the 1976 election, however, he was reassigned to the 4 p.m. to midnight shift, and, in 1979, he experienced additional changes, to the 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. shifts, and changes in his place of work from the main jail in Camden City, where he had been exclusively assigned, to the Lakeland annex, in Camden County, (Tr. 35-37), approximately twelve miles from the main jail.

 In December 1976, defendant O'Rourke appointed plaintiff to a newly-created position, Staff Inspector, (Tr. 19), which he held concomitantly with his position as Deputy Warden. As Staff Inspector, plaintiff reported directly to Sheriff O'Rourke, whereas in his capacity as Deputy Warden, he reported to the Warden. Plaintiff's primary duties as Staff Inspector were to make inspections of the jail personnel and facilities, and provide the Sheriff with status reports. His position as Staff Inspector was terminated by O'Rourke in March 1977, after he submitted a report to him alleging overtime abuses and double salaries, and recommending the implementation of various personnel systems to increase efficiency and cut down on waste and abuse of department funds. Thereafter, he was returned full time to his present position and title as Deputy Warden. (Tr. 19-22).

 On March 22, 1979, plaintiff received a Notice of Minor Disciplinary Action which suspended him for four days without pay. This disciplinary action was based on three incidents in which Sheriff O'Rourke accused plaintiff of being insubordinate and uncooperative: (1) a discussion between plaintiff, O'Rourke, and two other Sheriff's Department employees in which O'Rourke interpreted a remark by plaintiff that O'Rourke's election efforts resembled those of a perennial candidate named Moffa to be an insulting reference to Jimmy Hoffa (Tr. 24-27); (2) a series of communications during the fall of 1978 and early 1979 in which O'Rourke claimed that the plaintiff misinformed the Sheriff's Department of the cause of a back injury which resulted in plaintiff's absence from work for a period of time (Tr. 27-29; Tr. 208); and (3) plaintiff's alleged failure to complete a new personnel questionnaire. (Tr. 170-72).

 During the four-day suspension period, two additional incidents relevant to the instant action occurred. First, plaintiff received a hand delivered letter on March 29, 1979 from defendant O'Rourke ordering him to submit, within twenty-four hours, "a written report setting forth all facts within your knowledge concerning the pending investigation of allegations by Yvonne Sturtevant," (Tr. 44), an inmate, whose accusations that several employees of the Camden County Jail were guilty of sexual misconduct were under investigation by the County Prosecutor and the Sheriff's Department. (Tr. 167). Plaintiff responded to defendant O'Rourke's request in writing the following day, as ordered, notifying defendant that the alleged misconduct occurred while plaintiff was not on duty, and therefore, he had no detailed knowledge of it. (Tr. 48). The next day, plaintiff received a telephone delivered telegram from an apparently dissatisfied Sheriff O'Rourke, notifying him that unless he "fully compl[ied]" with the terms of the March 29, 1979 order, he would be suspended from duty without pay. (Ex. P-32). The telegram further ordered that plaintiff report to O'Rourke's office on April 2, 1979 for an interview. (Ex. P-32).

 On April 2, 1979, plaintiff reported to O'Rourke who told him that "he'd be right with [him]." (Tr. 57). Plaintiff then was approached by an Internal Affairs Unit Officer for an interview. Plaintiff refused to be interviewed by the Officer, on the ground that earlier that day, counsel for both plaintiff and defendant had agreed that the meeting was to be solely between plaintiff and O'Rourke, (Tr. 59), and on the ground that O'Rourke never ordered plaintiff to speak with Internal Affairs. (Tr. 58).

 Plaintiff next reported for work on April 9, 1979, after receiving a telephone call from Undersheriff Gass instructing him to do so. (Tr. 60). On April 10, 1979, he received a Notice of Minor Disciplinary Action retroactively suspending him from April 2 through April 6, 1979. (Ex. P-38). Plaintiff at that time had not and to this date has not been provided with charges which specifically relate to the five-day suspension. (Tr. 61). In addition to the above Notice, plaintiff also received a Preliminary Notice of Disciplinary Action with two pages of charges and specifications attached. This Notice called for removal as the penalty. (Ex. P-39). On April 12, 1979, plaintiff received a second Preliminary Notice of Disciplinary Action, which again called for removal as a penalty. (Ex. P-41).

 On April 22, 1980, Departmental Hearings were held on the above charges. At that time, counsel for the Sheriff's Department stipulated that the charges were precipitated by the "Carney letter" incident. (Tr. 142). The "Carney letter," published in the March 19, 1979 edition of the Camden Courier-Post, was a letter written by Sheriff's Officer Edward Carney, expressing concern by several officers in the Sheriff's Department that the Sturtevant investigation was being mishandled. (Tr. 191). The letter also expressed dissatisfaction with prior press coverage of the incident - a press release jointly issued by the Prosecutor and defendant O'Rourke, and an article which appeared in the Courier-Post seven to ten days before the "Carney letter" was published in the same newspaper. (Tr. 180). The officers contended that such press coverage was detrimental to the morale and reputation of both the Sheriff's Department and its individual officers. (Tr. 54).

 Sheriff O'Rourke accused plaintiff of improperly participating in the "Carney letter" incident. (Tr. 166-67). Plaintiff did not author the "Carney letter." He edited it for spelling and grammatical errors, typed it, and provided a copy to a news reporter, all at Officer Carney's request. (Tr. 52). It is of some significance that although defendant O'Rourke stipulated that the disciplinary actions taken against plaintiff arose out of and were precipitated by the "Carney letter", (Tr. 142), no disciplinary actions of any kind were taken against Officer Carney for his participation in the incident. (Tr. 64).

 As a result of the disciplinary actions referred to above, plaintiff lost sixty-five days of pay, six days of leave, and public employee retirement account contributions for the sixty-five day period, all of which form the basis of his claim for compensatory damages.

 I. CAUSE OF ACTION AS TO DEFENDANT BOARD OF CHOSEN FREEHOLDERS

 To establish a claim under 42 U.S.C. § 1983, plaintiff must satisfy a two-prong standard: first, that he was deprived of a right secured by the Constitution or laws of the United States; and second, that the defendants who allegedly deprived him of that right were acting under color of state law at the time the alleged constitutional violation occurred. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Reid v. Barrett, 467 F. Supp. 124, 126 (D. N.J. 1979), aff'd, 615 F.2d 1354 (3d Cir. 1980). Plaintiff's satisfaction of the first prong is not in dispute. His Complaint alleges specific and cognizable violations of his right to freedom of speech, guaranteed by the First Amendment of the United States Constitution, and his right to substantive and procedural due process guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. *fn7" Rodes v. Municipal Authority of the Borough of Milford, 409 F.2d 16, 17 (3d Cir.) (per curiam), cert. denied, 396 U.S. 861, 24 L. Ed. 2d 114, 90 S. Ct. 133 (1969).

 As to the second prong, the Supreme Court has held that state officers and employees are found to be acting under color of state law when their actions are in fulfillment of tasks and obligations assigned to them, or made possible by the power conferred upon them by the government. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Defendant O'Rourke does not dispute that each time he took disciplinary action against plaintiff, he was acting in his official capacity pursuant to the mandate of the State of New Jersey, as set forth in N.J. Stat. Ann. § 40A:9-44 to 117 (West Cum. Supp. 1982-83), which creates and governs the position of Sheriff. Therefore, this Court finds that at all times pertinent hereto, defendant O'Rourke was acting under color of state law, and plaintiff has satisfied the second prong of the § 1983 standard as to him.

 The issue remains, however, whether plaintiff has satisfied the second prong as to defendants Joseph Borreggine, Eugene Feldman, Michael J. Hayes, Joseph J. Milano, Hillard T. Moore, Sr., Edward W. Sayers, and William Simon, individually and in their capacities as members of the Camden County Board of Chosen Freeholders (Freeholders). For the reasons set forth below, this Court finds that plaintiff has ...


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