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David K. Lord v. Erie County

September 8, 2011


The opinion of the court was delivered by: McLAUGHILIN, Sean J., District J.,


In this civil action, Plaintiff David K. Lord has sued the County of Erie under 42 U.S.C. §1983, claiming that his federal constitutional rights were violated when he was terminated from his employment as a Training Coordinator in the County‟s Department of Corrections ("DOC"). While so employed, Lord associated with an individual by the name of Teo Underhill while Underhill was serving a county probationary sentence. The prison warden concluded that this association constituted a violation of the DOC‟s anti-fraternization policy and informed Lord that he could either resign or be fired. Lord refused to resign and was terminated from his job. He later filed this lawsuit in the Erie County Court of Common Pleas.

Upon removal of the case to this Court,*fn1 the matter was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. The Magistrate Judge's Report and Recommendation [46], entered on June 30, 2011, recommends that the Defendant‟s motion for summary judgment [36], which is presently pending before the Court, be denied. The County filed its objections [48] on July 14, 2011, and Plaintiff filed his response to the objections [49] on July 28. For the reasons set forth below, this Court declines to adopt the Magistrate Judge‟s report and recommendation and will instead enter summary judgment in favor of the County.


The following undisputed facts are gleaned from the Magistrate Judge‟s Report and Recommendation. At various times between 1997 and 2007, Lord worked within the Erie County DOC at the Erie County Prison. Also employed at the Prison, at all times relevant to this case, was Warden James Veshecco, Deputy Warden James Senyo, Deputy Warden Vincent Kinnane, and Officer Scott Gorring.

In 2005, Lord met Underhill and the two moved into an apartment together shortly thereafter. On January 1, 2006, while the two were sharing an apartment, Underhill was arrested. He was later released into Lord‟s custody pending trial. Following a jury trial, Underhill was found guilty of misdemeanor simple assault and summary disorderly conduct. He was sentenced to 48 hours in the Erie County Prison and 21 months of probation.

After Underhill served his term of incarceration, but while he was still on probation, he and Lord communicated by telephone and in person. Lord was aware that Underhill was on probation, and he spoke with two superiors at the Erie County Prison concerning his relationship with Underhill. Both Veshecco and Senyo instructed Lord to avoid Underhill. However, Lord continued to associate with Underhill much as he had been doing before.

In August of 2007, Officer Gorring observed Lord and Underhill together in a local bar. Gorring later saw the two leave the bar in the same vehicle. Gorring prepared a report detailing his observations and submitted it to Veshecco.

That same month, Lord met with Veshecco, Senyo, and Kinnane to discuss Lord‟s continued association with Underhill. After Lord confirmed that the contents of Gorring‟s report were true, Veshecco offered Lord the opportunity to resign. When Lord refused, he was terminated.

Lord contends (and for present purposes we will assume it is true) that he was terminated for violating Paragraph 27 of the DOC‟s "Standards of Conduct and Code of Ethics," (informally referred to herein as the "anti-fraternization policy"). In relevant part, that policy provides:

27. Fraternization with Inmates

a. Employees shall not develop a personal relationship with inmates during or for at least one year after, the inmate‟s incarceration. (Examples of personal relationships include romance, co-habitation, business dealings or provision of legal assistance).

b. Fraternization exposes the employee, other staff, inmates and the public to increased risks of security compromise or danger at the prison and in the community. (See Def.‟s Concise Statement of Material Facts [38] at ¶ 7.)*fn2

Based on these facts, Lord filed the instant action, claiming that his federal constitutional rights to freedom of association and privacy were abridged when he was terminated for ...

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