Summary
concluding that the speech was too vague to create a public concern even though the subject involved governmental corruption, which was "plainly a potential topic of public concern"
Summary of this case from Rogers v. RiggsOpinion
Docket No. 11–3919–cv.
2013-04-1
Kent SINGER, Thomas Nollner, Jonathan Decker, Plaintiffs–Appellants, v. Christopher C. FERRO, sued in his individual capacity, Jon Becker, sued in his individual capacity, Paul J. Van Blarcum, Ulster County Sheriff, sued in his individual capacity, James R. Hanstein, Superintendent of Corrections, sued in his individual capacity, Frank Faluotico, sued in his individual capacity, County of Ulster, Defendants–Appellees.
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, New York, for Plaintiffs–Appellants. Earl T. Redding, Roemer Wallens Gold & Mineaux LLP, Albany, New York, for Defendants–Appellees.
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, New York, for Plaintiffs–Appellants. Earl T. Redding, Roemer Wallens Gold & Mineaux LLP, Albany, New York, for Defendants–Appellees.
Before: NEWMAN, CABRANES, and SACK, Circuit Judges.
SACK, Circuit Judge:
Plaintiffs Kent Singer, Thomas Nollner, and Jonathan Decker appeal from a judgment of the United States District Court for the Northern District of New York (David N. Hurd, Judge) granting summary judgment to the defendants on the plaintiffs' First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983. The plaintiffs allege that the defendants, who are supervisors or officials at the Ulster County, New York Sheriff's Office and the county jail, took adverse employment actions against them in retaliation for a parody created by Singer that suggested corruption among jail officials, and for subsequently filing a lawsuit based upon this alleged retaliation. Because we agree with the district court that neither Singer's parody nor the plaintiffs' lawsuit were what the law considers to be, for these purposes, speech “[1] as a citizen [2] on a matter of public concern,” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), we affirm.
BACKGROUND
This lawsuit arises out of events that took place during the autumn of 2008 at the Ulster County Jail (the “UCJ”) in Ulster County, New York. At the time, Singer, Decker, and Nollner were employed at the UCJ, Singer as a corporal, and Decker and Nollner as corrections officers.
A. The Parody
During a shift in mid-September 2008, Singer created a parody on his work computer. A copy of it is annexed to this opinion. It was a spoof on the familiar Absolut Vodka advertisements, which typically display an Absolut Vodka bottle adorned or transformed in some thematic fashion, and beneath the bottle a two-word phrase beginning with the word “Absolut.” Singer's version displayed in or on the bottle pictures of four UCJ officials—two of whom are defendants Becker and Ferro—and the caption read, “Absolut Corruption.” The parody was not original; Singer got the idea from a similar “Absolut Corruption” parody that he had found on the Internet. He printed out the previous version and then overlaid it with IMAGE
Warden Ray Acevedo, who is not a named defendant, also received a copy.
Singer was apparently employing a slang use of the expression: “The process of attempting to remove influence and power from enemies, especially political enemies.” http:// www. thefree dictionary. com/ headhunting (last visited Mar. 28, 2013).