legally holds, see N.J. Stat. Ann. § 11:22-12 (West 1976), and federal law, under the substantive due process guarantees of the Fifth and Fourteenth Amendments.
It has been held that, in the context of public employment cases, "there is no separate, independent 'liberty' interest in being free from arbitrary and capricious governmental action; . . . the governmental conduct must deprive the plaintiff of some otherwise recognizable life, liberty or property interest before the plaintiff can recover." McKnight v. Southeastern Pennsylvania Transp. Auth., 438 F. Supp. 813, 826 (E.D. Pa.), vacated and remanded on other grounds, 583 F.2d 1229 (3d Cir. 1978). Plaintiff here satisfies this threshold requirement, because in our earlier discussion of his procedural due process claim, we found that he had established a cognizable property interest in his position as Deputy Warden. Therefore, the appropriate test to be applied here is whether defendant's actions, under color of state law, arbitrarily and capriciously infringed on plaintiff's protected interest in a way that was not rationally related to the attainment of legitimate governmental objectives. See McKnight, 438 F. Supp. at 826-27; United States Ex Rel. Hoss v. Cuyler, 452 F. Supp. 256, 281 n.9 (E.D. Pa. 1978); Calhoun v. Doster, 324 F. Supp. 736, 743 (M.D. Ala. 1971).
The evidence adduced at trial established that since his candidacy for election as Sheriff of Camden County in 1976 and again in 1979, plaintiff was subjected to constant shift changes, transfers, undesirable shift assignments, an unsatisfactory performance rating after years of commended service, and severe curtailment of his duties as Deputy Warden. It was also established that the Civil Service Commission desk audit, conducted on April 20, 1979, concluded that he was effectively demoted to a lower level job without compliance with his procedural rights under N.J. Stat. Ann. § 11:22-12, supra. Although defendant was directed by the Commission's report to either assign to plaintiff the duties commensurate with his position as Deputy Warden, or to initiate formal demotion proceedings pursuant to N.J. Admin. Code tit. 4 § 4:1-16-4(a)(1982), defendant's response, according to his own testimony, was that plaintiff did not understand the parameters of his job, and that he would have to be "reinstructed." (Tr. 162-63). The record does not establish whether plaintiff was in fact so "reinstructed."
Defendant O'Rourke's testimony offers no explanation which plausibly places his conduct within the range of legitimate governmental action; indeed, he baldly asserts that plaintiff was granted perquisites of office, not deprived of them. The evidence, however, suggests otherwise. The cumulative incidents of harassment, abuse, and reprisal established at trial sustain a finding by this Court that defendant did in fact deprive plaintiff of the powers and indicia of his position as Deputy Warden, in violation of his constitutional right to substantive due process. See Calhoun, supra, 324 F. Supp. 736. Moreover, it may reasonably be inferred that the political differences of the parties in this action, and their opposing candidacies for election to the office of Sheriff, were each a proximate cause of the defendant's discrimination against the plaintiff.
For the reasons heretofore indicated, the Court finds that plaintiff has not met his burden of proof 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, and they will be dismissed as party defendants in this action. As to defendant Sheriff O'Rourke, however, this Court finds that he has violated plaintiff's right to freedom of speech under the First Amendment to the Constitution, and his rights to procedural and substantive due process under the Fifth and Fourteenth Amendments to the U.S. Constitution. Judgment shall be entered in favor of plaintiff and against defendant O'Rourke.
Federal courts have the discretionary authority to use any available remedy to redress the violation of federally secured rights under § 1983. Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), cert. denied, 410 U.S. 955, 35 L. Ed. 2d 687, 93 S. Ct. 1419 (1973). Accordingly, a preliminary and permanent injunction shall be issued restraining defendant and his agents, employees and successors from continuing the pattern and practice of harassment against plaintiff. In addition, keeping in mind that "the basic purpose of a § 1983 damage award [is] to compensate persons for injuries caused by the deprivation of constitutional rights . . .", Carey v. Piphus, 435 U.S. 247, 254, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978), plaintiff shall also be awarded compensatory damages for sixty-five days of back pay at Eighty Dollars ($80.00) per day for a total of Five Thousand, Two Hundred Dollars ($5,200.00) (Stipulated Fact, Final Pretrial Order January 23, 1981); for six days of sick leave, with a value of Four Hundred and Eighty Dollars ($480.00) (Stipulated Fact, Final Pretrial Order January 23, 1981), for retirement contributions based on Five Thousand, Two Hundred Dollars ($5,200.00) of income for sixty-five days' work (Stipulated Fact, Final Pretrial Order January 23, 1981), in an amount to be submitted to this Court by plaintiff, and a total of Fifteen Thousand Dollars ($15,000.00) for the humiliation, hurt feelings, and embarrassment plaintiff suffered, which manifested themselves in lost sleep, lost appetite, and social dysfunction. In addition, plaintiff shall also be awarded attorney's fees pursuant to 42 U.S.C. § 1988, and costs of suit.
Counsel for plaintiff shall submit an appropriate order.