Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005). · Go Syfert
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Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005). Cases Citing This Book View Copy Cite
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cited 4× by 4 distinct cases, 2020–2021 · 2 courts · …a stigmatizing statement plus a deprivation of a tangible interest. at p. 138 ✓ Topic ↗
80 citation events (79 in the last 25 years) across 11 distinct courts.
Strongest positive: Williams v. Buffalo Board of Education (ca2, 2018-12-12)
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Top citers, strongest first. 44 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Williams v. Buffalo Board of Education
2d Cir. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
we may affirm on any ground supported by the record
discussed Cited as authority (rule) Henry v. Hill-Lilly
D. Conn. · 2025 · confidence medium
While defamation claims usually sound in state rather than constitutional law, a plaintiff may assert a procedural due process claim on the so-called “stigma plus” theory by alleging “a stigmatizing statement plus a deprivation of a tangible interest.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)); see DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003) (“‘Stigma plus’ refers to a claim brought for injury to one’s 18 reputation (the stigma) coupled with the deprivation of some ‘tangible interest’ or p…
discussed Cited as authority (rule) Garcia Jimenez v. County of Suffolk
E.D.N.Y · 2025 · confidence medium
Due Process Claims i. Stigma-Plus While defamation claims usually sound in state rather than constitutional law, a plaintiff may assert a procedural due process claim on the so-called “stigma plus” theory by alleging “a stigmatizing statement plus a deprivation of a tangible interest.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)).
discussed Cited as authority (rule) Diallo v. New York City Police Department
S.D.N.Y. · 2025 · confidence medium
As to the claim against NYC, to make a federal claim for defamation a Plaintiff must demonstrate “a stigmatizing statement plus a deprivation of a tangible interest.” Burgos Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)).
discussed Cited as authority (rule) Miller v. James
N.D.N.Y. · 2024 · confidence medium
App. Div. 2015). “[A]n individual plaintiff must be clearly identifiable [in an allegedly defamatory statement] to support a claim for defamation.” Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir. 2005) (quoting Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir. 2002)). “[A]n individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about the group, by showing that he is a member of the group . . . [b]ecause the group is small and includes few individuals, reference to the individual plaintiff reasonably follows.” Brady v. …
discussed Cited as authority (rule) Mustafa v. Stanley
D. Conn. · 2022 · confidence medium
Thus, in order to state a due process violation, a plaintiff must “demonstrate ‘a stigmatizing statement plus a deprivation of a tangible interest.’” Id. at 81 (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)); see also Moore v. Chapdelaine, No. 3:15-CV-775 (VAB), 2018 WL 638995 , at *6 (D.
cited Cited as authority (rule) Leo v. New York State Department of Environmental Conservation
W.D.N.Y. · 2022 · confidence medium
Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005).
discussed Cited as authority (rule) Robinson v. Spanno
S.D.N.Y. · 2021 · confidence medium
Specifically, an action can be grounded in 42 U.S.C. § 1983 when that plaintiff can demonstrate “a stigmatizing statement plus a deprivation of a tangible interest.” Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.2005); see also Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir.2004).
discussed Cited as authority (rule) Notz v. Connecticut Commission on Human Rights and Opportunities
D. Conn. · 2021 · confidence medium
But federal constitutional relief is available for defamation committed by government officials if a plaintiff can demonstrate “a stigmatizing statement plus a deprivation of a tangible interest.” Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005).
discussed Cited as authority (rule) Harmon v. Bogart
W.D.N.Y. · 2020 · confidence medium
An “action can be grounded in 42 U.S.C. § 1983 when that plaintiff can demonstrate ‘a stigmatizing statement plus a deprivation of a tangible interest,’” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)).
discussed Cited as authority (rule) Mustafa v. Stanley
D. Conn. · 2020 · confidence medium
Thus, in order to state a due process violation, a plaintiff must “demonstrate a stigmatizing statement plus a deprivation of a tangible interest.” Id. at 81 (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)); see also Moore v. Chapdelaine, No. 3:15- CV-775 (VAB), 2018 WL 638995 , at *6 (D.
discussed Cited as authority (rule) Lawrence v. Agramonte
D. Conn. · 2020 · confidence medium
In order to state such a due process violation, Mr. Lawrence must “demonstrate a stigmatizing statement plus a deprivation of a tangible interest.” Id. at 81 (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)); see also Moore v. Chapdelaine, No. 3:15-cv-775 (VAB), 2018 WL 638995 , at *6 (D.
discussed Cited as authority (rule) Hill v. Tyburski
D. Conn. · 2020 · confidence medium
But federal constitutional relief is available for defamation committed by government officials when a plaintiff can demonstrate “a stigmatizing statement plus a deprivation of a tangible interest.” Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005).
discussed Cited as authority (rule) Jackson v. Moochie
D. Conn. · 2019 · confidence medium
In order to state a due process violation, the inmate must “demonstrate ‘a stigmatizing statement plus a deprivation of a tangible interest.’” Vega, 596 F.3d at 81 (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)); see also Moore v. Chapdelaine, No. 3:15- cv-775 (VAB), 2018 WL 638995 , at *6 (D.
cited Cited as authority (rule) Duffy v. Wallace
2d Cir. · 2018 · confidence medium
“We may affirm on any ground supported by the record[.]” Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir. 2005).
examined Cited as authority (rule) Elias v. Rolling Stone LLC (4×) also: Cited "see", Cited "see, e.g."
2d Cir. · 2017 · confidence medium
But however the doctrine is defined 15 under New York law, here the alleged facts and claimed defamatory 16 statement fall even further afield, for reasons to which I now turn. 17 First, as we have previously explained in affirming the dismissal of a 18 complaint premised on the small group defamation doctrine, “[t]he claim that 2 1 the Appellate Division allowed in Brady concerned a statement made against 2 all members of the group.” Algarin v. Town of Wallkill, 421 F.3d 137, 140 (2d 3 Cir. 2005).
examined Cited as authority (rule) Elias v. Rolling Stone LLC (4×) also: Cited "see", Cited "see, e.g."
2d Cir. · 2017 · confidence medium
But however the doctrine is defined 15 under New York law, here the alleged facts and claimed defamatory 16 statement fall even further afield, for reasons to which I now turn. 17 First, as we have previously explained in affirming the dismissal of a 18 complaint premised on the small group defamation doctrine, “[t]he claim that 2 1 the Appellate Division allowed in Brady concerned a statement made against 2 all members of the group.” Algarin v. Town of Wallkill, 421 F.3d 137, 140 (2d 3 Cir. 2005).
examined Cited as authority (rule) Elias v. Rolling Stone LLC (3×) also: Cited "see", Cited "see, e.g."
2d Cir. · 2017 · confidence medium
First, as we have previously explained in affirming the dismissal of a complaint premised on the small group defamation doctrine, “[t]he claim that the Appellate Division allowed in Brady concerned a statement made against all members of the group.” Algarin v. Town of Wallkill, 421 F.3d 137, 140 (2d Cir. 2005).
discussed Cited as authority (rule) Williams v. Carpenter
W.D.N.Y. · 2016 · confidence medium
Furthermore, “to allege a cognizable claim under 42 U.S.C. § 1983 predicated upon an act of defamation, a plaintiff must allege what is colloquially referred to as ‘stigma-plus’ claim: ‘a stigmatizing statement plus a deprivation of a tangible interest’ without due process of law.” Balentine v. Tremblay, 554 Fed.Appx. 58, 60 (2d Cir. 2014) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)).
discussed Cited as authority (rule) Elias v. Rolling Stone LLC (2×) also: Cited "see"
S.D.N.Y. · 2016 · confidence medium
For such claims, if a group is sufficiently small and a statement defames all of its members, “courts have permitted an unnamed member of a group to maintain a claim for defamation where a defamatory statement has been made against the group.” Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005); see also Haefner, 82 A.D.3d at 482 , 918 N.Y.S.2d 103 (“vague reference to a ‘NYPD/DEA strike force’ failed to provide sufficient identifiers sufficient to make it ‘of and. concerning’ plaintiffs so as to avail them of the small-group libel doctrine.”).
discussed Cited as authority (rule) Galley Schuler v. Rainforest Alliance, Inc.
D. Vt. · 2016 · confidence medium
Indeed, “an individual plaintiff must be clearly identifiable [in an allegedly defamatory statement] to support a claim for defamation.” Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005) (internal quotation marks omitted).
discussed Cited as authority (rule) Three Amigos SJL Rest., Inc. v. CBS News Inc. (2×)
N.Y. App. Div. · 2015 · confidence medium
“Under some circumstances, courts have permitted an unnamed member of a group to maintain a claim for defamation where a defamatory statement has been made against the group” (Algarin v Town of Wallkill, 421 F3d 137, 139 [2d Cir 2005]).
discussed Cited as authority (rule) Nawrocki v. New York State Office of Children & Family Services
W.D.N.Y. · 2014 · confidence medium
Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.2005). 1 To make out such a claim, a plaintiff must allege two elements: (1) “the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false,” plus (2) “a material state-imposed burden or state-imposed alteration of the plaintiffs status or rights.” Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.2004) (internal citations and quotation marks omitted).
cited Cited as authority (rule) Balentine v. Tremblay
2d Cir. · 2014 · confidence medium
Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.2005).
discussed Cited as authority (rule) Gilman v. Spitzer
2d Cir. · 2013 · confidence medium
That is, the plaintiff must show that “the allegedly defamatory comment refer[s] to the plaintiff,” Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226 , 445 N.Y.S.2d 786, 788 (1981), such that those knowing the plaintiff “understand that [he] was the person meant,” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). “[W]here the person defamed is not named in a defamatory publication, it is necessary, if it is to be held actionable as to him, that the language used be such that persons reading it will, in the light of the surrounding circumstances, be able to understand that it ref…
discussed Cited as authority (rule) William Gilman v. Eliot Spitzer and The Slate Group, LLC
2d Cir. · 2013 · confidence medium
That is, the plaintiff must show 4 that “the allegedly defamatory comment refer[s] to the plaintiff,” Brady v. Ottaway 5 Newspapers, Inc., 445 N.Y.S.2d 786, 788 (2d App. Div. 1981), such that those knowing the 6 plaintiff “understand that [he] was the person meant,” Geisler v. Petrocelli, 616 F.2d 636 , 639 7 (2d Cir. 1980). “[W]here the person defamed is not named in a defamatory publication, it 8 is necessary, if it is to be held actionable as to him, that the language used be such that 9 persons reading it will, in the light of the surrounding circumstances, be able to understand …
discussed Cited as authority (rule) Hefferan v. Corda
2d Cir. · 2012 · confidence medium
“Stigma-Plus” Defamation and False Light Claims A defamation action “can be grounded in 42 U.S.C. § 1983 when th[e] plaintiff can demonstrate ‘a stigmatizing statement plus a deprivation of a tangible interest.’ ” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir.2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.2005)). “[I]n order to bring a successful stigma-plus claim, the plaintiff also must demonstrate that her liberty was deprived without due process of law.
discussed Cited as authority (rule) Lawson v. Rochester City School District
2d Cir. · 2011 · confidence medium
State Senate, 599 F.3d 148, 158 (2d Cir.2010). “[A]n individual plaintiff must be clearly identifiable in an allegedly defamatory statement to support a claim for defamation.” Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005) (internal citation and alterations omitted).
discussed Cited as authority (rule) Diaz v. NBC Universal, Inc. (2×) also: Cited "see"
2d Cir. · 2009 · confidence medium
See New York Times, 376 U.S. at 288-89 , 84 S.Ct. 710 ; Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005).
discussed Cited as authority (rule) Diaz v. NBC Universal, Inc. (2×) also: Cited "see"
2d Cir. · 2009 · confidence medium
See New York Times, 376 U.S. at 288-89 , 84 S.Ct. 710 ; Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005).
discussed Cited as authority (rule) Diaz v. NBC Universal, Inc. (2×) also: Cited "see"
S.D.N.Y. · 2008 · confidence medium
“Whether the complaint alleges facts sufficient to demonstrate a reasonable connection between the plaintiff and the alleged libel is thus a question for the Court.” Church of Scientology, 806 F.Supp. at 1157 ; see also Carlucci, 57 N.Y.2d at 885 , 456 N.Y.S.2d at 45 , 442 N.E.2d 442 ; Cohn v. National Broadcasting Co., 67 A.D.2d 140 , 414 N.Y.S.2d 906, 907-08 (1st Dep’t 1979); Algarin v. Town of Wallkill, 421 F.3d 137, 139-40 (2d Cir.2005); Friends of Falun Gong v. Pacific Cultural Enterprise, Inc., 288 F.Supp.2d 273, 282 (E.D.N.Y.2003), aff'd 109 Fed.Appx. 442 (2d Cir.2004); Drug Resea…
discussed Cited as authority (rule) Pisani v. Westchester County Health Care Corp.
S.D.N.Y. · 2006 · confidence medium
This claim, known as a “stigma-plus” claim, see Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.2005), requires plaintiff to meet the “stigma-plus” standard, which demands that plaintiff establish that: (1) he was defamed; and (2) the defamation occurred in the course of the termination of governmental employment or was coupled with a deprivation of a legal right or status.
discussed Cited "see" FIORE, MICHAEL v. TOWN OF WHITESTOWN
N.Y. App. Div. · 2015 · signal: see · confidence high
We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because “members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties” (Baumblatt v Battalia, 134 AD2d 226, 228 ), and “[t]he privilege of absolute immunity . . . ‘extends to those of subordinate rank who exercise delegated powers’ ” (Firth v State of New York, 12 AD3d 907, 907-908 , lv denied 4 NY3d 709 , quoting Ward Telecom. & Comp…
discussed Cited "see" Fiore v. Town of Whitestown
N.Y. App. Div. · 2015 · signal: see · confidence high
We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because “members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties” (Baumblatt v Battalia, 134 AD2d 226, 228 [1987]), and “[t]he privilege of absolute immunity . . . ‘extends to those of subordinate rank who exercise delegated powers’ ” (Firth v State of New York, 12 AD3d 907, 907-908 [2004], lv denied 4 NY3d 709 [2005], quoting Wa…
discussed Cited "see" Fiore v. Town of Whitestown
N.Y. App. Div. · 2015 · signal: see · confidence high
We therefore conclude that Brooks, Sullivan, and Ulinski were entitled to absolute immunity because “members of the Town Board enjoy an absolute privilege against a claim of defamation where . . . the defamatory statements are made in the discharge of their responsibilities about matters within the ambit of their duties” (Baumblatt v Battalia, 134 AD2d 226, 228 [1987]), and “[t]he privilege of absolute immunity . . . ‘extends to those of subordinate rank who exercise delegated powers’ ” (Firth v State of New York, 12 AD3d 907, 907-908 [2004], lv denied 4 NY3d 709 [2005], quoting Wa…
discussed Cited "see" Gilman v. Spitzer
S.D.N.Y. · 2012 · signal: see · confidence high
See Algarin, 421 F.3d at 139 (“It is not possible to set definite limits as to the size of the group or class, but the cases in which recovery has been allowed usually have involved numbers of 25 or fewer.” (quoting Restatement (Second) of Torts § 564A cmt. b)); Sack on Defamation § 2:9.4.
cited Cited "see" Rogers v. Capital One Services, LLC
2d Cir. · 2011 · signal: see · confidence high
See Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005) (holding that judgment may be affirmed on any ground supported by record).
discussed Cited "see" Tibbetts v. Kulongoski
9th Cir. · 2009 · signal: see · confidence high
See Algarin v. Town of Wallkill, 421 F.3d 137, 139-40 (2d Cir. 2005); Restatement (Second) of Torts § 564A (“One who publishes defamatory matter con- cerning a group or class of persons is subject to liability if, but only if (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the con- clusion that there is particular reference to the member.”). [5] In this case, we express no opinion concerning whether the statements made in these Releases were stigmatizing as a matter of l…
discussed Cited "see" Tibbetts v. Kulongoski
9th Cir. · 2009 · signal: see · confidence high
See Algarin v. Town of Wallkill, 421 F.3d 137, 139-40 (2d Cir.2005); Restatemént (Second) of Torts § 564A (“One who publishes defamatory matter concerning a group or class of persons is subject to liability if, but only if (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.”).
discussed Cited "see" Herrera v. Union No. 39 School District
Vt. · 2009 · signal: see · confidence high
See Algarin v. Town of Wallkill, 421 F.3d 137 , 138 n.1 (2d Cir. 2005) (tracing the genesis of the stigma-plus claim to Paul v. Davis, 424 U.S. 693 (1976), and the first use of the term “stigma-plus” to Danno v. Peterson, 421 F. Supp. 950, 954 (N.D.
cited Cited "see" Minsky v. Kelley
2d Cir. · 2007 · signal: see · confidence high
See Algarin v. Town of Wallkill 421 F.3d 137, 139 (2d Cir.2005) (“We may affirm on any ground supported by the record.”).
discussed Cited "see, e.g." Daytree at Cortland Square, Inc. v. Walsh
E.D.N.Y · 2018 · signal: see also · confidence medium
"In determining whether the 'of and concerning' requirement has been sufficiently pleaded, the Court must consider whether those who know the plaintiff, upon reading the statements, would understand that the plaintiff was the target of the allegedly libelous statement." Church of Scientology Int'l , 806 F.Supp. at 1160 ; see also Algarin , 421 F.3d at 139 (affirming decision to dismiss complaint where it failed to "set forth circumstances from which to infer the identity of any particular officers who might be understood to have been the subject of any defamatory allegations in the Report"); D…
discussed Cited "see, e.g." Bertuglia v. City of New York
S.D.N.Y. · 2012 · signal: see also · confidence medium
Office of Mental Health, 163 F.3d 119 , 124 (2d Cir.1998); see also Vega, 596 F.3d at 81 (“[A]n action can be grounded in 42 U.S.C. § 1983 when that plaintiff can demonstrate ‘a stigmatizing statement plus a deprivation of a tangible interest.’ ”) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir.2005)).
discussed Cited "see, e.g." Pisani v. Staten Island University Hospital
E.D.N.Y · 2006 · signal: see also · confidence medium
“In determining whether the ‘of and concerning’ requirement has been sufficiently pleaded, the Court must consider whether those who know the plaintiff, upon reading the statements, would understand that the plaintiff was the target of the allegedly libelous statement.” Church of Scientology Int’l, 806 F.Supp. at 1160 ; see also Algarin v. Town of Wallkill, 421 F.3d 137, 139 (2d Cir.2005) (dismissing complaint where it failed to “set forth circumstances from which to infer the identity of any particular officers who might be understood to have been the subject of any defamatory all…
Retrieving the full opinion text from the archive…
Darrell Algarin, Dennis Rolon, Joseph Pirrone, James A. Mattatall, John Beletempo, Antonio Spano, Dan Negersmith, John Dimilia, Steve Walsh, Keith Borkenhagen, Kenneth Hassan King, Robert Scheuering, Kelly Scheuering, Brian Quinn, Chris Korba, Robert Kamarada, Brenda Caruso, Darrell Honkala, Frank Denardo, Paul Besser, Harry Dennis Lohr, Jr., Michael Orapello and Charles Bodensieck
v.
Town of Wallkill, Oscar Dino, Jay Anthony, Frank Schumaci, George Green, Sued in Their Individual Capacities, Docket No. 04-2607-Cv
137.
Court of Appeals for the Second Circuit.
Aug 30, 2005.
421 F.3d 137
Cited by 31 opinions  |  Published

421 F.3d 137

Darrell ALGARIN, Dennis Rolon, Joseph Pirrone, James A. Mattatall, John Beletempo, Antonio Spano, Dan Negersmith, John Dimilia, Steve Walsh, Keith Borkenhagen, Kenneth Hassan King, Robert Scheuering, Kelly Scheuering, Brian Quinn, Chris Korba, Robert Kamarada, Brenda Caruso, Darrell Honkala, Frank Denardo, Paul Besser, Harry Dennis Lohr, Jr., Michael Orapello and Charles Bodensieck, Plaintiffs-Appellants,
v.
TOWN OF WALLKILL, Oscar Dino, Jay Anthony, Frank Schumaci, George Green, sued in their individual capacities, Defendants-Appellees.
Docket No. 04-2607-CV.

United States Court of Appeals, Second Circuit.

Argued: May 18, 2005.

Decided: August 30, 2005.

Stephen Bergstein, Thornton, Bergstein, & Ullrich, LLP, Chester, NY, for Plaintiffs-Appellants.

David E. Cassidy, Florio & Perrucci, LLC, Phillipsburg, NJ, for Defendant-Appellee, Town of Wallkill.

James M. Fedorchak, Gellert & Cutler, Poughkeepsie, NY, for Defendant-Appellees Dino, Anthony, Schumaci, and Green.

Before: MESKILL, NEWMAN, and CABRANES, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

[*~137]1

This appeal presents the issue of whether, in a suit under 42 U.S.C. § 1983, allegedly defamatory statements sufficiently identified the alleged victims to satisfy the requirements of a so-called "stigma plus" claim, i.e., a claim of a stigmatizing statement plus a deprivation of a tangible interest such as government employment, see Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir.2004).[1] The Plaintiffs-Appellants, twenty-three current or former members of the Wallkill, New York, police department, appeal from the May 4, 2004, judgment of the District Court for the Southern District of New York (Colleen McMahon, District Judge), dismissing their complaint, brought under section 1983, against the Town of Wallkill and its four police commissioners. The complaint was based on the contents of an allegedly false investigative report ("the Report"). Although the complaint was dismissed on grounds of immunity, we conclude, without considering the immunity issue, that the Report did not identify any of the plaintiffs sufficiently to constitute a viable "stigma plus" claim. We therefore affirm.

Background

2

Wallkill maintains a Police Commission of four volunteer individuals to supervise its police department pursuant to N.Y. Town Law §§ 150-57. In July 2000, the Commission published the Report, which was critical of the town's police department and especially its Chief. The Report named no names nor linked any officer to misconduct except the Chief of Police, who is not a party to this action. The Town's counsel advised against release of the Report, but it was given to the local paper and other media. The Plaintiffs claim that the "vast preponderance" of the allegations in the Report were false. Two officers, already on probation at the time the Report was released, were terminated, and the Report allegedly caused the resignation of another officer. The Town allegedly sought to "terminate or discipline" another seven officers. The Plaintiffs claim that the Report "besmirched and sullied" their names, caused them humiliation, disrespect, and emotional harm, and caused other police departments to fear hiring Wallkill officers, resulting in denial of transfers.

3

Rather than attempt to pursue state court remedies for defamation, the Plaintiffs filed this section 1983 suit in the District Court in August 2002, endeavoring to allege a so-called "stigma plus" claim, a type of denial of liberty without due process of law. The District Court granted the Town's motion to dismiss the complaint on the ground that the four Police Commissioners enjoyed "absolute immunity for the creation and issuance of the [R]eport," Algarin v. Town of Wallkill, 313 F.Supp.2d 257, 260 (S.D.N.Y.2004), and that the Town could have no liability in the absence of liability of the individual defendants, see id. at 262.

[*~138]4

The District Court reasoned that, as a matter of state law, "[a]bsolute immunity is conferred upon government officials entrusted with significant `administrative or executive policy-making responsibilities,'" id. at 260 (citing Stukuls v. State, 42 N.Y.2d 272, 278, 397 N.Y.S.2d 740, 744, 366 N.E.2d 829 (1977)), and that the Commissioners' issuance of the Report qualified as "setting policy," id. at 261, for which absolute immunity was available, see id. The Court implicitly assumed that state law immunity provided a defense to section 1983 liability, at least in circumstances where an element of the section 1983 constitutional tort was the state law tort of defamation.

Discussion

[*139]5

We may affirm on any ground supported by the record, see, e.g., Ore & Fertilizer Corp., 38 F.3d 1279, 1286 (2d Cir.1994), and in this case, we turn initially to the issue of whether the Report sufficiently identified any of the plaintiffs to support a "stigma plus" claim. "[A]n individual plaintiff must be clearly identifiable [in an allegedly defamatory statement] to support a claim for defamation." See Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir.2002) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 288-89, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). As the complaint in this case acknowledges, the Report was written "[w]ithout naming names or associating alleged incidents . . . with specific officers." Nor does the complaint set forth circumstances from which to infer the identity of any particular officers who might be understood to have been the subject of any defamatory allegations in the Report. See DeBlasio v. North Shore University Hospital, 213 A.D.2d 584, 584, 624 N.Y.S.2d 263, 263 (2d Dep't 1995) ("Where the person defamed is not named in a defamatory publication, it is necessary, if it is to be held actionable as to him, that the language used be such that persons reading it will, in the light of the surrounding circumstances, be able to understand that it refers to the person complaining.") (citation omitted); 1 Robert D. Sack, Sack on Defamation, Libel, Slander and Related Problems § 2.9.1 at 2-128-30 (3d ed.2005) (person need not be mentioned by name if identity readily understood). In the pending case, it is impossible to directly tie any of the statements in the Report to individual officers (except the Chief who is not a plaintiff) without information not contained in the Report.

6

Although the Plaintiffs recognize that the Report does not identify any of them, they nonetheless defend the sufficiency of their defamation allegations on the theory that each is a member of a group, the Wallkill Police Department, that has been defamed. Under some circumstances, courts have permitted an unnamed member of a group to maintain a claim for defamation where a defamatory statement has been made against the group. See Sack, supra, § 2.9.4 (collecting cases). Whether such a claim suffices presents "thorny questions." Id. § 2.9.4.1., at 2-134.

7

Often the size of a group is critical to the sufficiency of a claim by an unnamed member of a group. Compare Neiman-Marcus v. Lait, 13 F.R.D. 311, 313, 316 (S.D.N.Y.1952) (claim by members of a group of 25 salesmen sufficient), with Abramson, 278 F.3d at 102 (claim by members of a group of more than 1,000 people insufficient). See Restatement (Second) of Torts § 564A cmt. b. (1977) ("It is not possible to set definite limits as to the size of the group or class, but the cases in which recovery has been allowed usually have involved numbers of 25 or fewer."). The Plaintiffs rely on Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 445 N.Y.S.2d 786 (2d Dep't 1981), in which the Appellate Division allowed libel claims to go forward for a group of at least 53 unindicted police officers out of a department of more than 70. See id. at 788 n. 1. Because the record does not indicate the size of the Wallkill Police Department, we cannot readily determine — based on the size of the group — whether statements made about unnamed individuals in the group would necessarily reflect upon all members of the group. It is likely, however, that in July 2000 the Department of this community of 13,000 residents (according to the 2000 census) was small.[2]

8

Another relevant circumstance is whether the defamatory statement refers to "all" or only "some" members of the group. Compare Owens v. Clark, 154 Okla. 108, 6 P.2d 755 (1931) (claim based on statement referring to some members of Oklahoma Supreme Court not sufficient), with Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (Okla.1962) (claim based on statement referring to entire Oklahoma football team sufficient). The claim that the Appellate Division allowed in Brady concerned a statement made against all members of the group.[3]

9

Regardless of how rigorous or lenient the standards might be for permitting a member of a group to complain about defamatory statements directed at the group, the complaint in this case is plainly deficient. The Report not only made no defamatory statements about the entire Wallkill Police Department or even most of the police officers, it explicitly made the favorable finding that "most rank and file police officers are dedicated to their work and to serving the citizens of Wallkill." Although the Commission made recommendations to the Police Chief for disciplinary actions against some unnamed officers, the Report carefully explained, "The details of these actions will not be publicly discussed in this report in respect to the privacy interests of the police officers involved." The Report made one reference to "illegal" conduct, a private employer making cash payments to a few officers for off-duty security work, but the Report did not link this conduct to any particular officer.[4] The Report says that "[t]he major problem appears to be with the leadership of the Department," and singles out for most of its fire the Police Chief, who is not a plaintiff in this lawsuit. In sum, the Report is a conscientious effort by citizen-commissioners to identify and remedy serious administrative deficiencies in the Wallkill Police Department, and it does not provide a sufficient basis for a stigma plus claim by any of the Plaintiffs.

Conclusion

[*~140]10

The judgment of the District Court is affirmed.

Notes:

1

The phrase "stigma plus" appears to have begun life as "stigma plus failure to rehire/discharge,"Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir.1976), based upon the teachings of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), see Colaizzi, 542 F.2d at 972-73. One month after Colaizzi, an Illinois district court made what appears to be the first usage of "stigma plus," see Danno v. Peterson, 421 F.Supp. 950, 954 (N.D.Ill.1976) (internal quotation marks omitted), and that formulation was used by the Fifth Circuit a year later, see Moore v. Otero, 557 F.2d 435, 437 (5th Cir.1977). The phrase appears to have entered the Second Circuit lexicon almost twelve years later. See Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir.1989). The term "defamation-plus" is occasionally used as a substitute. See Aponte v. Calderon, 284 F.3d 184, 196 (1st Cir.2002) (internal quotation marks omitted).

When used as an adjective, the phrase usually appears without a hyphen, see, e.g., Siegert v. Gilley, 500 U.S. 226, 234, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Sadallah v. City of Utica, 383 F.3d 34, 36 (2d Cir.2004), but occasionally with a hyphen, see, e.g., Patterson v. City of Utica, 370 F.3d 322, 328 (2d Cir.2004).

2

The Department's website lists twenty-five employees in 2005See http://www.townofwall kill.com/towpd/personnel.htm (last visited Aug. 1, 2005).

3

The newspaper article inBrady, after noting that 18 officers had been indicted, stated:

We said at the time, and we still believe that the entire department was under a cloud. It is inconceivable to us that so much misconduct could have taken place without the guilty knowledge of the unindicted members of the department. If so, they were all accessories after the fact, if not before and during.

Brady, 445 N.Y.S.2d at 787.

4

The Report noted that the practice of such payments "is contrary to sound police practice and fosters attitudes which potentially lead to corruption hazards."