Opinion
01 Civ. 2884 (RWS)
September 5, 2002
DANIEL M. PEREZ, ESQ. of Counsel, LAW OFFICE OF RONALD L. KUBY, for Plaintiff,
DAVID SCHWARTZ, ESQ. of Counsel, Corporation Counsel of the City of New York, for Defendants.
OPINION
Defendants City of New York (the "City") and New York City Police Lieutenant Stephen J. Hughes ("Hughes") have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 in response to a complaint filed by plaintiff Antonia Codling ("Codling") alleging, inter alia, false arrest and malicious prosecution under 42 U.S.C. § 1983. For the reasons stated below, the motion is granted.
Parties
Plaintiff Codling is a staff attorney with the Legal Aid Society ("Legal Aid") in New York City.
Defendant Hughes was at times relevant to this case a Lieutenant with the New York Police Department (NYPD) and was assigned to the Manhattan South Task Force (MSTF)
Prior Proceedings
Codling was arrested by Hughes on March 18, 2000 while attending a demonstration and march in midtown Manhattan. The criminal information filed against her on March 19, 2000 charged her with disorderly conduct, in violation of Penal Law 240.20(5), and harassment, in violation of Penal Law 240.26(1).
On May 30, 2000, Codling moved to dismiss the information in the interests of justice under N.Y. Crim. Proc. Law § 170.40. On July 10, 2000, Honorable Neil Ross of the Criminal Court of the City of New York granted Codling's motion, dismissing the charges after considering the factors set forth in Section 170.40.
Codling subsequently filed a complaint in this Court on April 5, 2001, alleging, inter alia, that pursuant to 42 U.S.C. § 1983 she was subject to false arrest and malicious prosecution. Discovery commenced, and on September 6, 2001, this Court ordered the parties to complete all discovery, inspections, and motions by January 8, 2002. By order of January 11, 2002, that date was extended to April 9, 2002.
On March 5, 2002, the defendants filed the instant motion to dismiss pursuant to Rule 12(c) or, in the alternative, pursuant to Rule 56 of the Federal Rules of Civil Procedure. No Local Rule 56.1 statement of material facts was filed with the motion. Codling responded to the motion by memorandum on March 26, 2002, attaching her own Rule 56.1 statement. Defendants filed a reply on April 9, 2002, this time including the Rule 56.1 statement. Codling then filed a supplemental memorandum in opposition, which included a "Supplemental" Rule 56.1 statement that was identical to her original statement of material facts, except that it responded to the factual allegations contained in the statement submitted by the defendants.
Oral argument was held on May 8, 2002, at which time the motion was deemed fully submitted.
Facts
The defendants' motion comes in the posture of a motion to dismiss on the pleadings under Fed.R.Civ.P. 12(c) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. Both the defendants and Codling have submitted materials outside the pleadings, and both have, after extensive briefing, filed Local Rule 56.1 statements.
When "matters outside the pleadings are presented to and not excluded by the court," Rule 12(c) permits a court to treat a motion for judgment on the pleadings "as one for summary judgment" under Rule 56. Fed.R.Civ.P. 12(c). Whether to consider additional materials and thereby convert a Rule 12 motion into a summary judgment motion is within the sound discretion of the Court. See Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) ("If a judge looks to additional materials, the motion should be converted into a motion for summary judgment"); Diezcabeza v. Lynch, 75 F. Supp.2d 250, 256 (S.D.N.Y. 1999) ("The Court may, at its discretion, consider the affidavits attached to the motion and thereby treat the instant motion as one for summary judgment")
The instant motion will be treated as a motion for summary judgment. Therefore, the following facts are gleaned from the parties' Rule 56.1 statements and, as required, are construed in the light most favorable to the non-movant, as applicable. They do not constitute findings of fact by the Court.
Codling, a Legal Aid attorney, attended a march and demonstration on March 18, 2000 related to the death of Patrick Dorismond, an African-American who was killed by NYPD Detective Anthony Vasquez in March 2000. The march and demonstration also protested the decision of then — Mayor Giuliani to release Dorismond's criminal history to the public, after Dorismond died. Hundreds of demonstrators attended the march, including family members of Dorismond. Numerous members of the NYPD were also present at the march, which started at 42nd Street (where Dorismond was shot) and ended at 34th Street.
According to Codling, she was asked to serve as a legal observer by Michael Letwin, the president of the local union chapter of Legal Aid attorneys, UAW-ALAA. As a legal observer, she monitored the actions of the police officers present at the march; noted any improper conduct committed by police officers; ascertained the identities of any police officers who acted unlawfully or who were involved in arrests; and acted as an interface between the police and demonstrators. Two colleagues, Lisa Edwards ("Edwards"), another Legal Aid attorney, and Jorge Irizarry ("Irizarry"), a Legal Aid summer intern, accompanied Codling at the march. All legal observers, including Codling, wore bright orange or yellow armbands, which identified them as legal observers.
At approximately 6:25 p.m. on March 18, 2000, the march ended at 34th Street and 6th Avenue. At that time, Codling was standing on a pedestrian island with Edwards and Irizarry. At that same intersection (34th Street and 6th Avenue), defendant Hughes made several announcements with a bullhorn, directing pedestrians in the immediate area to move through the intersection when the light changed. Codling heard these announcements and saw Hughes making them with the bullhorn.
Before the light changed Hughes walked toward Codling with the working bullhorn, stopping within a few inches of Codling. He positioned the open end of the bullhorn within two inches of Codling's ear, raised the bullhorn to his mouth, and spoke into it. According to Codling, Edwards, and Irizarry, it appeared that Hughes was intentionally trying to harm someone by placing the bullhorn in such close proximity to them.
As a result of the incident, Codling raised her hand, coming into physical contact with the bullhorn. According to Codling, the response was a reflexive or spontaneous act of self-defense, and she also yelled "Hey!" due to her pain and in order to get Hughes' attention. Codling also alleges that Hughes did not sustain any physical injury as a result of the act. According to the defendants, however, the bullhorn was intentionally pushed into Hughes' face, causing him pain in his mouth and his front teeth.
Hughes then said to Edwards, in substance, "You saw what she did; she pushed the megaphone in my face. You're my witness." Edwards responded to him, in substance, "No, I did not see that. I saw you push that megaphone in her face. That's what I saw." Hughes then went to a legal observer and said, "She's my witness," referring to Edwards. Edwards said to the legal observer, in substance, "He screamed with that megaphone in her face."
Hughes arrested Codling, and the next day, March 19, 2000, Codling was charged with harassment and Disorderly Conduct in violation of Penal Law §§ 240.26(1) and 240.20(5). She was incarcerated for a period of 22 hours. Between March 18, 2000 and July 10, 2000, the date Judge Ross dismissed the criminal charges against her, Codling was compelled to attend criminal court on four occasions.
Discussion
I. The Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Lana v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact, Celotex, 477 U.S. at 322; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990), but he or she may discharge this burden by demonstrating that there is an absence of evidence to support the non-moving party's case on an issue for which the non-movant has the burden of proof. Celotex, 477 U.S. at 323. To defeat a motion for summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
In evaluating the record to determine whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). However, to withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the non-movant. Matsushita, 475 U.S. at 587.
II. Summary Judgment is Appropriate Because Hughes Is Entitled to Qualified Immunity
A. A Factual Dispute Exists as to the Existence of Probable Cause
Section 1983 provides, in relevant part:
Every person who, under color . . . of any state law subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law.42 U.S.C. § 1983. It is well established that § 1983 is a vehicle that provides redress to a person who was arrested without probable cause, and that the elements of a false arrest claim under § 1983 are substantially the same as the elements under New York State Law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Raysor v. Port Auth. of New York and New Jersey, 768 F.2d 34, 39-40 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). False arrest is the intentional detention of a person against his will and without a privilege to do so. Oakley v. City of Rochester, 71 A.D.2d 15, 18 (4th Dept. 1979), aff'd, 51 N.Y.2d 908, 415 N.E.2d 966, 434 N.Y.S.2d 977 (1980). An arrest is presumed to be unlawful where, as here, a person is arrested without a warrant. Wu v. City of New York, 934 F. Supp. 581, 586 (S.D.N.Y. 1986). However, if there is probable cause to arrest, then the warrantless arrest will be privileged. Weyant, 101 F.3d at 852.
The existence of probable cause to arrest constitutes "a complete defense to an action for false arrest," whether the action is brought under state law or under § 1983. Weyant, 101 F.3d at 852 (2d Cir. 1996) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). In a federal civil rights action for false arrest, the burden is on the plaintiff to show the absence of probable cause. Weyant, 101 F.3d at 852. Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution to believe that (1) an offense has been or is being committed (2) by the person being arrested. Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1998); United States v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987)
Probable cause is also relevant to the question of whether Codling may successfully bringing a malicious prosecution cause of action. In order to establish malicious prosecution, a plaintiff must show: (1) the defendant commenced or continued a criminal proceeding against the plaintiff; (2) the proceeding terminated in the plaintiff's favor; (3) no probable cause existed for the proceeding; and (4) the defendants acted with actual malice in commencing or continuing the proceeding. See Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997); Standt v. City of New York, 153 F. Supp.2d 417, 434 (S.D.N.Y. 2001) (citations omitted). Hence, a finding of probable cause for an arrest will defeat a claim for malicious prosecution. Singer, 63 F.3d at 118; Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir. 1994); Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985).
The Court of Appeals has recognized malicious prosecution claims under § 1983 since the tort "typically implicates constitutional rights secured by the Fourteenth Amendment, such as a deprivation of liberty." Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994) (Quoting Easton v. Sundram, 947 F.2d 1011, 1017 (2d Cir. 1991)).
Probable cause requires only a probability or a substantial chance of criminal activity, not an actual showing of such activity. Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The inquiry is an objective one, and the subjective beliefs and motivations of the arresting officer are irrelevant. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Martinez v. Simonetti, 202 F.3d 625, 633 (2d Cir. 2000). In determining whether an arrest is valid, a court considers the information available to the officer at the time of the arrest. Anderson v. Chreighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Whether a suspect was acquitted later of the charges for which he or she was arrested is irrelevant to the determination of probable cause. Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); see also Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)
The defendants assert that Hughes had probable cause to charge Codling with violating New York's harassment statute, which states that a person commits second degree harassment when, "with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks, or otherwise subjects such other person to physical contact." N.Y. Penal Law § 240.26(1). According to the defendants, the mere fact that Codling pushed a bullhorn into his face while he was trying to control a crowd is sufficient to establish that probable cause existed to arrest Codling for harassment.
While the defendants' argument provides a convenient rule for assessing situations involving contact between police officers and civilians, there remain unresolved factual issues surrounding Codling's arrest that are relevant to the probable cause inquiry. First, the facts do not establish the extent to which Hughes may have perceived he was being harassed or assaulted by Codling. The defendants' version of the facts indicates that Codling pushed the bullhorn into Hughes' face and that he sustained an injury, while Codling maintains that no contact was made with Hughes' face and no injury occurred. Although New York's harassment statute only requires that a person "otherwise subject such other person to physical contact," the statute also contains an intent requirement. The degree of contact between Codling and Hughes is therefore relevant to the question of whether a person of reasonable caution could have believed that a violation had been committed.
Perhaps more importantly, there remains a factual question as to Hughes' own actions which motivated Codling to act in the way she did. Codling asserts that, in self-defense, she "reflexively" raised her hand to shield her ears after Hughes "assaulted" her with a bullhorn, which he used, she asserts, essentially as a weapon. Granting Codling all justified inferences based on the record, a jury could reasonably find that any physical contact between Codling and the bullhorn was precipitated by Hughes' assaulting her. In addition to Codling's own affidavit, the affidavits of the other eyewitnesses suggest that the physical contact between Codling and the bullhorn was "spontaneous," "reflexive," or inadvertent, and may have been precipitated by Hughes' own behavior. (Edwards-Nazario Aff. at 3, ¶ 8; Irizarry Aff. at 3, ¶ 8). Indeed, even Judge Ross, in his decision and order dismissing the charges against Codling, noted that Codling's "contention that her conduct was a reflex to eliminate a painful stimulus, and not undertaken with the intent to harass, annoy and alarm" appeared to be "reasonable" given her professional and personal background. (Perez Decl., Ex. G). All of this evidence stands in contrast to the defendants' assertion that Codling took a more "`aggressive" stance toward Hughes.
Crediting Codling's factual averments and making all inferences in her favor, it cannot be said on the basis of undisputed facts that there was probable cause to arrest.
B. Hughes is Entitled to Qualified Immunity
Although it cannot be said that there is no genuine issue of material fact as to the existence of probable cause for Codling's arrest, the claims against Hughes must ultimately be dismissed since his actions on March 18, 2000 were protected by qualified immunity.
"The privilege of qualified immunity generally shields government officials from liability for damages on account of their performance of discretionary official functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Generally, public officials are entitled to qualified immunity if it can be shown that their conduct does not violate clearly established constitutional rights, or if it was objectively reasonable for them to believe their acts did not violate those rights. See Creighton, 483 U.S. at 638-39. The availability of the defense turns on whether "`a reasonable officer could have believed'" his action "`to be lawful, in light of clearly established law and the information [he] possessed.'" Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (quoting Chreighton, 483 U.S. at 641). This inquiry is distinct from the question of probable cause. See Warren v. Dwyer, 906 F.2d 70, 75 (2d Cir. 1990) ("[T]he question of immunity remains, as it should, distinct from the question of probable cause. . . . For example, evidence might be sufficient to support a verdict that probable cause for an arrest was lacking under the actual circumstances as determined by the jury, without a showing it was unreasonable for an officer to mistake the existence of probable cause at the time.") (citations omitted)
Qualified immunity is "an immunity from suit rather than the mere defense to liability and is effectively lost if the case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original). The doctrine is "an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (Quoting Mitchell, 472 U.S. at 526) "Because the defense of qualified immunity is designed to relieve government officials of the burdens of litigation as well as of the threat of damages, summary judgment is encouraged as a device for disposing of claims barred by qualified immunity." Ying Jing Gan, 996 F.2d at 532 (2d Cir. 1993) (citing Harlow, 457 U.S. at 818; Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 1992); Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991) "Disposition by summary judgment is ordinarily appropriate when the qualified immunity defense is based on a showing that it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by federal law [on when the defendant's premise is that "even if the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, it was objectively reasonable for [the official] to believe that his acts did not violate those rights.'" Ying Jing Gan, 996 F.2d at 532 (internal quotations and citations omitted)
As the Supreme Court stated in Saucier, the first question to be considered in considering the qualified immunity defense is, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" 533 U.S. at 201. If so, it must be determined whether that right was clearly established. Id. at 202. "In other words, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Caldarola v. Calabrese, No. 01-9053, 2002 WL 1759778, at *3 (2d Cir. Jul 31, 2002) (citations omitted). "The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (stating that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law")
The Court of Appeals recently applied the Saucier analysis in the context of a § 1983 claim for false arrest and stated that the claim "derives from an individual's right to remain free from unreasonable seizures," including "the right to remain free from arrest absent probable cause." Caldarola, 2002 WL 1759778, at *4 (citing Weyant, 101 F.3d at 852). Viewing Codling's complaint in the light most favorable to her, she has alleged that she was arrested without probable cause, a constitutional violation. This right was clearly established at the time of Codling's arrest. See Caldarola, 2002 WL 1759778, at *4 (citation omitted). The same established constitutional right has been held to have been implicated in the context of malicious prosecution. See Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995). "However, it was equally well established that the existence of probable cause is an absolute defense to a false arrest claim and affords the arresting officer qualified immunity from litigation." Id. (citing Weyant, 101 F.3d at 852). The same is true with regard to a malicious prosecution claim. See Lennon, 66 F.3d at 425. It must therefore be determined whether a reasonable officer could have believed that the circumstances of March 18, 2000 established the necessary probable cause for Codling's arrest.
In the context of a qualified immunity defense, the defending officer need only show "arguable" probable cause. Martinez, 202 F.2d at 634; see also Lennon, 66 F.3d at 425 ("In assessing whether [defendants] were objectively reasonable in their belief that they had probable cause . . . we apply the same standard that we use to evaluate qualified immunity in the false arrest context. . . . That is, was it objectively reasonable for the officers to believe that probable cause existed or could officers of reasonable competence disagree on whether the probable cause test was met"?) (citations omitted); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (qualified immunity is warranted if officers of reasonable competence could disagree on whether the probable cause test was met). "Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause . . . and in those situations courts will not hold that they have violated the Constitution." Saucier, 533 U.S. at 206. "Therefore, in situations where an officer may have reasonably but mistakenly concluded that probable cause existed, the officer is nonetheless entitled to qualified immunity." Caldarola, 2002 WL 1759778, at *5 (citing Lennon, 66 F.3d at 423)
As has been discussed, no party disagrees that Codling pushed a bullhorn into Hughes' face (regardless of whether it made contact with his mouth and injured him) while he was attempting to effectuate crowd control at a large demonstration. It is also undisputed that the demonstration itself had as part of its purpose the protestation of the actions of the NYPD. According to Codling's own witness, at the moment Hughes arrested Codling, Hughes stated "You just assaulted a police officer" and said to Edwards, "You saw what she did; she pushed the megaphone in my face. You're my witness." At worst, the situation and Codling's conduct would cause reasonable police officers to disagree as to whether there was probable cause to arrest Codling.
Accordingly, even if no actual probable cause existed because of the issue of Hughes's intent, Hughes is entitled to qualified immunity because a reasonable police officer would have probable cause to believe disorderly conduct existed if a police officer is pushed in the course of seeking to control a demonstration. The federal claims against Hughes accordingly must be dismissed.
The parties have raised the issue of whether there was a favorable termination of the criminal charges against Codling, a requirement for bringing a malicious prosecution claim. Because the Court finds that qualified immunity exists, it is not necessary to reach this issue.
IV. There Is No Municipal Liability Under § 1983
There is also an independent ground for dismissing the federal claims against the City. In order to hold a municipality liable as a "person" within the meaning of 42 U.S.C. § 1983, a plaintiff must establish that the municipality itself was somehow at fault. See Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell v. Dep't of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "The Plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries. . . . Second, the plaintiff must establish a causal connection — an "affirmative link' — between the policy and the deprivation of his constitutional rights." Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987) (citing Tuttle, 471 U.S. at 824 n. 8 (1985)). Therefore, in order to establish municipal liability, Codling must establish that an identified municipal policy or practice was the "moving force [behind] the constitutional violation." Monell, 436 U.S. at 694.
Codling lists a number of statistics, largely drawn from the Civilian Complaint Review Board's (CCRB's) annual status report for January through December 2000, as well as a New York City Police Department directive dated May 1, 2001. She concludes that the numbers establish, "if credited, that a police officer has a better chance of winning the lottery, or being struck by lightening, than he has of being disciplined by the NYPD or having a claim of abuse substantiated by the CCRB." (P1. Mem. at 34) However, such conclusory allegations and a directive dated more than a year after Codlings arrest are not sufficient to demonstrate a policy that is linked to the rights she alleges were violated. A municipality may not be held liable under § 1983 for the alleged wrongful conduct of its agents or employees under a theory of respondeat superior, Monell, 436 U.S. at 691, and a municipal defendant is not liable merely because one of its employees applied a policy in an unconstitutional manner; there must have been either affirmative action on the part of the municipality or supervisory indifference. Codling has established neither.
Codling also contends that she cannot more fully establish that the City was on notice that Hughes was a problematic officer because she has not yet been granted sufficient time for discovery. However, this argument is unavailing. While the parties exchanged initial discovery demands in August 2001, Codling did not provide responses to interrogatory requests to produce until January 28, 2002. This Court granted a joint request to extend the discovery deadline and the time to make dispositive motions to April 9, 2002. The defendants have provided full responses to Codling's interrogatories and request to produce documents, doing so on March 1, 2002, and the instant motion has been timely made in accordance with the scheduling order.
V. The Remaining State Claims are Dismissed
Codling alleges several additional state law claims, such as false imprisonment, intentional infliction of emotional distress, negligence, and respondeat superior. However, having disposed of Codling's federal claims, supplemental jurisdiction will not be exercised and the state claims will also be dismissed. See 28 U.S.C. § 1367 (c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Marcus v. ATT Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.")
Conclusion
For the reasons stated, summary judgment is granted in favor of the defendants on the false arrest and malicious prosecution claims. The remaining state claims are also dismissed without prejudice.
It is so ordered.