Case 8:17-cv-00659-GLS-DJS Document 193 Filed 09/24/21 Page 1 of 10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
________________________________
ORAL NICHOLAS HILLARY,
8:17-cv-659
Plaintiff, (GLS/DJS)

v.

VILLAGE OF POTSDAM et al.,

Defendants.
________________________________
APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

Barket, Epstein & Kearon Aldea & ALEXANDER ROBERT KLEIN,
LoTurco, LLP ESQ.
666 Old Country Road, Suite 700 BRUCE A. BARKET, ESQ.
Garden City, NY 11530 DONNA ALDEA, ESQ.

Office of Mani C. Tafari MANI C. TAFARI, ESQ.

445 Hollow Road, Suite 25
Melville, NY 11747

FOR THE DEFENDANTS:

Village of Potsdam, Village of
Potsdam Police Department,
& Mark Murray
Johnson Laws, LLC GREGG T. JOHNSON, ESQ.
646 Plank Road, Suite 205 APRIL J. LAWS, ESQ.
Clifton Park, NY 12065 COREY A. RUGGIERO, ESQ.
LORAINE CLARE JELINEK, ESQ.

Unidentified Jane/John Doe

Village Of Potsdam Employees
#31-40 NO APPEARANCES
Case 8:17-cv-00659-GLS-DJS Document 193 Filed 09/24/21 Page 2 of 10

Onondaga County &

William Fitzpatrick
Onondaga County Department JOHN E. HEISLER, JR., ESQ.
of Law
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, NY 13202

Unidentified Jane/John Doe #41-50

New York State Police Employees NO APPEARANCES

Gary L. Sharpe
Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Oral Nicholas Hillary brings this action against defendants

Village of Potsdam, Village of Potsdam Police Department, Mark Murray,

Onondaga County, William Fitzpatrick, John and Jane Doe defendants,

and others that have been dismissed, alleging violations of his First,

Fourth, and Fourteenth Amendment rights pursuant to New York State law

and 42 U.S.C. § 1983. (Compl., Dkt. No. 1.) Pending is Murray’s motion

for summary judgment. (Dkt. No. 178.) For the following reasons, the

motion is granted.

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II. Background1

In February 2018, Murray moved to dismiss Hillary’s complaint as

against him, (Dkt. No. 70), which the court granted in part and denied in

part, allowing the following claims to proceed against Murray: a violation of

the Equal Protection Clause of the Fourteenth Amendment under a theory

of selective prosecution; retaliatory prosecution in violation of the First

Amendment; due process and stigma-plus defamation; and conspiracy,

(Dkt. No. 83 at 59-60).

Murray now moves for summary judgment on the remaining claims

asserted against him. (Dkt. No. 178, Attach. 13.) In response, Hillary

opposes Murray’s motion only as to his claim alleging a Section 1983

violation of the Equal Protection Clause of the Fourteenth Amendment.

(Dkt. No. 185.) Accordingly, because Hillary does not oppose the entry of

summary judgment on three out of the four remaining claims against

Murray, and Murray’s arguments regarding such claims are facially

meritorious, the following claims are dismissed as against Murray:

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Unless otherwise noted, the facts are undisputed. Given the two lengthy decisions
that have been issued in this litigation, (Dkt. Nos. 83, 170), as well as one in the earlier filed
case, (No. 7:12-cv-01669, Dkt. No. 84), the court assumes the parties’ familiarity with the
underlying facts. A full recitation of the facts can be found in the court’s February 28, 2019
Memorandum-Decision and Order. (Dkt. No. 83 at 4-12.)

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conspiracy; retaliatory prosecution in violation of the First Amendment; and

due process and stigma-plus defamation. (Compl. ¶¶ 195-208, 222-27,

228-33, 234-40); see Johnson v. Lew, No. 1:13-CV-1072, 2015 WL

4496363, at *5 & n.6 (N.D.N.Y. July 23, 2015).

Insofar as Murray’s motion for summary judgment is concerned, the

following facts are relevant to Hillary’s equal protection claim. Hillary

testified to driving to, and parking his blue Honda CRV in, the Potsdam

High School parking lot on the date that the victim (hereinafter “GP”) died

for only a few minutes before leaving the parking lot; he did not exit his

vehicle while parked there; there was video footage that depicted his blue

Honda CRV presented during his criminal trial in connection with GP’s

homicide; and he possessed a key to GP’s apartment in the past until

September 2011. (Def.’s Statement of Material Facts (SMF) ¶¶ 15, 37-40,

42, Dkt. No. 178, Attach. 14.)

Hillary is not aware of any action Murray took concerning Hillary that

was based on Hillary’s national origin. (Id. ¶ 26.) However, the parties

dispute whether Murray took action based on Hillary’s ethnicity and race.

(Id. ¶¶ 25, 27; Pl.’s SMF ¶¶ 25, 27, Dkt. No. 185, Attach. 42.) Hillary

maintains that Murray “targeted, arrested, strip searched, helped indict,

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perp-walked, withheld exculpatory information from, tanked investigations

in favor of, and testified against . . . Hillary—but not the similarly situated

[w]hite counterpart, John Jones, and he engaged in this targeting based in

part upon the color of [Hillary’s] skin.” (Pl.’s SMF ¶ 25.) According to

Hillary, his “indictment and prosecution were based upon and natural

outgrowths of this selective treatment.” (Id.)

V. Standard of Review

The standard of review under Fed. R. Civ. P. 56 is well settled and

will not be repeated here. For a full discussion of the governing standard,

the court refers the parties to its prior decision in Wagner v. Swarts, 827 F.

Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489

F. App’x 500 (2d Cir. 2012).

IV. Discussion

Murray argues that summary judgment is appropriate as to the

selective prosecution claim because Hillary has failed to show that Hillary

and Jones were similarly situated, and has failed to “proffer any direct or

circumstantial evidence that [Hillary’s] race (or national origin or ethnicity)

motivated” Murray’s involvement in the investigation of Hillary. (Dkt. No.

178, Attach. 13 at 9.) In response, Hillary contends that he and Jones

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were similarly situated, were treated differently, and whether that treatment

was motivated by race is a question of fact that should be decided by a

jury. (Dkt. No. 185 at 16.)

To prevail on an equal protection claim based on the theory of

selective prosecution, a plaintiff must allege that “(1) the person, compared

with others similarly situated, was selectively treated, and (2) the selective

treatment was motivated by an intention to discriminate on the basis of

impermissible considerations, such as race.” Hu v. City of New York, 927

F.3d 81, 91 (2d Cir. 2019) (citation omitted). “A plaintiff cannot merely rest

on a demonstration of different treatment from persons similarly situated.”

Id. (internal quotation marks and citations omitted). “Instead, he must

prove that the disparate treatment was caused by the impermissible

motivation.” Id. (internal quotation marks and citation omitted).

In arguing that Hillary and Jones were not similarly situated and that

Murray was not motivated by Hillary’s race during the investigation, Murray

provides several reasons why Hillary was investigated. (Dkt. No. 178,

Attach. 13 at 9.) For example, Murray explains that Hillary was an “obvious

person of interest” based on his familiarity with GP and GP’s mother, his

“physical ability to accomplish the second-story escape from the homicide

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scene,” and because Hillary was among “prospects for entering [GP’s]

apartment without force.” (Id. at 9.) Murray also contends that Hillary was

a target because he had a “hostile relationship” with and “motive to

eliminate [GP] who . . . stood in the way of [a] continued romance with

[GP’s] mother,” showed a “lack of cooperation” with police, “stalk[ed]” GP

in his car, and had a “flawed alibi theory.” (Id.)

In response, Hillary contends that many of these circumstances also

apply to Jones, and that many of Murray’s “allegations are simply wrong.”

(Dkt. No. 185 at 18-24.) According to Hillary, he and Jones were similarly

situated because they had similar backgrounds—they both served in the

United States military, had athletic careers, and had a long-term and live-in

relationship with GP’s mother. (Id. at 16-17.) Each of them had a key to

GP’s home, each of their relationships with GP’s mother ended prior to

GP’s death, they were both seen in GP’s vicinity shortly before his death,

and they “both had alibis that strongly cut against the likelihood that they

were responsible for [GP’s] death.” (Id. at 17-18.)

Assuming, without deciding, that Hillary and Jones were similarly

situated, Hillary has failed to come forward with admissible evidence to

support the notion that Murray’s conduct was motivated by Hillary’s race.

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Hillary’s arguments in that regard are unavailing. He asserts the following:

the Potsdam Police Department has no black officers; “the only other

[b]lack people associated with this case were Hillary’s lawyer, his daughter,

and the mother of his children”; when Officer Mark Wentworth was asked

about racial bias trainings at the Potsdam Police Department, he

answered, “I don’t remember any”; Jones was allowed to be present in

Murray’s office with GP’s mother right after GP’s death; and, “[i]f Hillary’s

race were not a factor in targeting him, then one would expect a race-

neutral explanation for why he was targeted so quickly, narrowly and

extensively whereas Jones was scarcely suspected of wrongdoing at all.”

(Id. 24-26.)

These assertions are largely irrelevant and specious. Hillary’s

burden requires him to offer admissible evidence that demonstrates that

Murray’s conduct in connection with the investigation and prosectuion was

motivated by Hillary’s race. Racism in the air, or a lack of diversity in the

Village of Potsdam or its police department — which is the sum total of

Hillary’s attempt to show a triable issue of fact — is insufficient. See

Callwood v. City of Kingston, No. 1:15-cv-1298, 2020 WL 2838602, at *22

(N.D.N.Y. 2020) (finding allegations that the defendants referred to the

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plaintiff’s religion “as a cult that participated in human trafficking” and “used

a reprehensible racial slur against” the plaintiff to be sufficient to

demonstrate a triable issue of fact); McLoughlin v. Rensselaer Cty. Dep’t of

Soc. Servs., No. 1:18-CV-0487, 2019 WL 3816882, at *13 (N.D.N.Y. Aug.

14, 2019) (finding that “conclusory statements” that the defendant’s

treatment of the plaintiff was “motivated by . . . racial animus and bias”

were insufficient to maintain a selective enforcement equal protection

claim).

Accordingly, Murray’s motion for summary judgment is granted, and

all remaining claims against him are dismissed.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Murray’s motion for summary judgment (Dkt.

No. 178) is GRANTED; and it is further

ORDERED that all claims against Murray are DISMISSED; and it is

further

ORDERED that the Clerk shall terminate Murray from this action; and

it is further

ORDERED that the Clerk provide a copy of this Memorandum-

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Decision and Order to the parties.

IT IS SO ORDERED.

September 24, 2021

Albany, New York

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