09-1961-cv
Rodriguez v. The City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING
A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of February, two thousand and ten.
PRESENT: PETER W. HALL,
DEBRA ANN LIVINGSTON, Circuit Judges,
*
DENNY CHIN, District Judge.
_______________________________________________________
Edgardo Rodriguez,
Plaintiff-Appellant,
v. No. 09-1961-cv
The City of New York, Police Commissioner Raymond Kelly, of the New York City Police
Department, individual and professional capacities, Captain Albert Pignataro, individual and
professional capacities, Sergeant Anthony Pignataro, individual and professional capacities,
Captain George O’Brien, individual and professional capacities, Detective Dolores Weiner,
individual and professional capacities, Sergeant Gemma Masterson, individual and professional
capacities, Lieutenant Andrew Smith, individual and professional capacities,
Defendants-Appellees,
Admin. Lieutenant Cander, individual and professional capacities, Robert Amato, Suffolk
County D.A. Squad, Richard A. Brown, Queens County District Attorney, Thomas J. Spota,
Suffolk County District Attorney, County of Suffolk, Suffolk County Police Department of the
State of New York.
Defendants.
*
The Honorable Denny Chin, of the United States District Court for the Southern District
of New York, sitting by designation.
For Appellant: ROCCO G. AVALLONE, Cronin & Byczek, LLP, Lake Success, New
York.
For Appellees: PHYLLIS CALISTRO , counsel (Elizabeth S. Natrella, Pamela Seider
Dolgow, on the brief), for Michael A. Cardozo, Corporation
Counsel of the City of New York, New York, New York.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Castel, J.), filed April 7, 2009, which, in accordance with the court’s memorandum
and order dated April 6, 2009, granted defendants-appellees’ motion for summary judgment and
dismissed the complaint. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Edgardo Rodriguez appeals from a judgment of the United States
District Court for the Southern District of New York (Castel, J.) granting defendants-appellees’
motion for summary judgment and dismissing the claim. Appellant claims that the district court
erred in granting summary judgment for appellees on appellant’s claim for unlawful termination
in violation of the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983. We review a
district court’s grant of summary judgment de novo, drawing all inferences in favor of the
nonmoving party. See SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009).
We assume the parties’ familiarity with the factual and procedural history of the case, as well as
the issues on appeal, which we reference only to the extent necessary to explain our decision to
affirm.
We affirm for substantially the reasons stated in the district court’s thorough and
well-reasoned opinion. Rodriguez v. Kelly, No. 05-civ-10682, 2009 WL 911085 (S.D.N.Y. Apr.
6, 2009).
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The Fifth Amendment to the U.S. Constitution states, in relevant part, that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself . . ..” U.S. Const.,
Amend. V. In order to bring a successful section 1983 claim based on this privilege against
self-incrimination, a plaintiff must establish a violation of the underlying privilege. See Chavez
v. Martinez, 538 U.S. 760, 772-73 (2003) (plurality opinion) (holding that sergeant’s failure to
read Miranda warnings to suspect before questioning him did not violate suspect’s constitutional
rights, and thus could not be grounds for section 1983 action against sergeant). The privilege is
not limited to compelled testimony in criminal cases and may be asserted “in proceedings in
which answers might be used to incriminate [witnesses] in a subsequent criminal case.” United
States v. Patane, 542 U.S. 630, 638 (2004). Even when an individual has legitimate reasons to
fear that statements may be used against him, however, the Supreme Court has “long permitted
the compulsion of incriminating testimony so long as those statements (or evidence derived from
those statements) cannot be used against the speaker in any criminal case.” Chavez, 538 U.S. at
768; see also Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (Constitution permits
testimony to be compelled if neither it nor its fruits are available for such use). If a plaintiff is
coerced into waiving his Fifth Amendment rights and utters self-incriminating or inculpatory
statements later used against him in a criminal proceeding, he may have a potentially successful
section 1983 claim. See, e.g., Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir.
1998).
The district court held that Rodriguez:
set forth neither facts nor legal authority to support a claim that his Fifth
Amendment rights were violated. The plaintiff explicitly denies that he refused to
answer any questions that [his interrogator] posed. (Pl. 56.1 Resp. ¶¶ 4-5) He
does not contend that any statements uttered by him during the interview were
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used against him at a criminal proceeding. Nowhere in plaintiff’s affidavit,
opposition memo or Local Rule 56.1 response does the plaintiff maintain that he
exercised his Fifth Amendment privilege against self-incrimination, and the
interview transcript does not reflect any assertion of Fifth Amendment
protections.
Rodriguez, 2009 WL 911085, at *3.
We agree with the district court that Rodriguez failed to establish a violation of the Fifth
Amendment. It follows that Rodriguez’s claim for unlawful termination under section 1983 fails
because he did not establish that his Fifth Amendment rights were violated. See Chavez, 538
U.S. at 772-73.
We have considered Rodriguez’s remaining claims and find them to be without merit.
CONCLUSION
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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