Opinion
00 Civ. 3884 (RCC) (GAY)
August 27, 2002
Opinion Order
Plaintiff Gregory Olori ("Plaintiff") filed this 42 U.S.C. § 1983 claim alleging that Village of Haverstraw Police Officers Ronald Webeck and George Lutz (collectively "Police Officer Defendants") subjected him to excessive force when they arrested him on February 2, 1998. Additionally, Plaintiff seeks to hold Defendant Village of Haverstraw liable. Defendant Village of Haverstraw moves for summary judgment on the basis that Plaintiff cannot demonstrate an official policy or custom. By Report and Recommendation dated July 24, 2002, Magistrate Judge George Yanthis recommended that Defendant's motion be denied. The Village has filed objections to the Report and Recommendation. Accordingly, the Court reviews the matter de novo. Fed.R.Civ.P. 72.
I. Background
Police Officer Defendants arrested Plaintiff on February 2, 1998 for violating New York Vehicle and Traffic Laws. While apprehending Plaintiff, the Police Officer Defendants and Plaintiff were involved in a physical altercation and as a result, all three claimed personal injuries. Plaintiff was charged with resisting arrest, two counts of assault in the second degree and criminal possession of a controlled substance. Plaintiff stipulated that the white powder found on the front of his clothing was cocaine. The Honorable William A. Kelly of the County Court of the State of New York, County of Rockland held a bench trial and dismissed all the charges except for that of criminal possession.
Magistrate Judge Yanthis recommended denying Defendant Village of Haverstraw's motion for summary judgment on Plaintiff's subsequent § 1983 claims. Magistrate Judge Yanthis found that the record supported a finding by a reasonable jury that the Village had failed to train or supervise the Defendant Police Officers. For example, Defendant Police Officer Lutz did not know if use of force training was mandatory. Report at 4-5. The Police Chief testified at his deposition that training regarding use of force was included in the officers' annual firearm training programs. Report at 5. The Police Chief explained that there were no consequences for an officer who failed to attend use of force training and that he did not have any records of attendance for his officers other than his belief that they fulfilled their training requirements. Report at 5-6.
Additionally, the Magistrate found examples in the record that would support a finding that the Defendant Village had failed to supervise its police officers. Magistrate Judge Yanthis found that at least five of the seven notices of claim filed prior to the arrest alleged use of excessive force by Village police officers. Report at 10. Accordingly, since the Police Chief only investigated one of the allegations, Magistrate Judge Yanthis concluded that a reasonable jury could find a failure to supervise by the Village. Report at. 10.
The Village of Haverstraw objects to the Magistrate's Report on four grounds. The first two objections stem from the Defendant's claims that the Magistrate overlooked Board of Commissioners v. Brown, 520 U.S. 397, 404 (1997), which explained a § 1983 "plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." The Defendant claims there is no causal connection between any alleged failure to train or supervise and the alleged excessive force on February 2, 1998. Defendant also claims that the Magistrate incorrectly surmised from deposition testimony that the Police Officer Defendants did not attend the required training. Finally, the Village claims that there have only been three notices of claim alleging excessive force during the Police Chief's approximately ten-year tenure, which is insufficient to demonstrate a failure to supervise.
Although Plaintiff does not address the causal requirement explained in Board of Commissioners v. Brown, he does argue that the Village does not ensure that its officers attend training or read the Police Department's regulations. Second, Plaintiff brings to the Court's attention the state court judge's finding that the Police Officer Defendants offered inconsistent testimony regarding Plaintiff's arrest and argues Defendants are asking the Court to ignore the facts. Third, Plaintiff claims the record does not demonstrate that training was mandatory. Finally, Plaintiff submits that the number of ignored notices of claim is inconsequential. Plaintiff argues the Court should focus on the fact that Defendant did nothing to adequately investigate any of the complaints it received.
II. Discussion
Summary judgment is appropriate where the parties' submissions demonstrate "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. "Conclusory allegations, conjecture, and speculation, however, are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A municipality "cannot be held liable in a section 1983 suit under the theory of respondeat superior." Simms v. De Paolis, No. 99 Civ. 2776 (AKH), 2000 WL 1134564, at *3 (S.D.N.Y. Aug. 9, 2000) (citing Mondell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). Rather, the Plaintiff must demonstrate that the alleged constitutional deprivation resulted from a municipal policy or custom and that there is a causal connection between the policy and the deprivation. Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979); see also Sulkowska v. City of New York, 129 F. Supp.2d 274, 297 (S.D.N.Y. 2001). ("The plaintiff must establish that the municipality either authorized the employee to act in violation of the plaintiff's rights, or was the `moving force' behind the violation.") (citing Polk County v. Dodson, 454 U.S. 312, 326 (1981)). "The mere assertion . . . that a municipality has . . . a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).
"Similarly, there must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself." Dwares v. City of New York 985 F.2d 94, 100 (2d Cir. 1993) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)).
An official policy may also be inferred from circumstantial proof, "such as evidence that the municipality so failed to train its employees as to display deliberate indifference to the constitutional rights of those within its jurisdiction, . . . or evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges. . . ." Ricciuti v. N.Y.C. Trans. Auth., 942 F.2d 119, 123 (2d Cir. 1991) (internal citations omitted). The Second Circuit has outlined three requirements for municipal liability based on failure to supervise or train. "First, the plaintiff must show that a [municipal] policymaker knows `to a moral certainty' that her employees will confront a given situation. . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort of training and supervision will make less difficult or that there is a history of employees mishandling the situation. . . . Finally, the plaintiff must show that the wrong choices by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (internal citations omitted).
While the Magistrate did point to portions of the Police Chief's deposition testimony in which he was not certain about his officers' attendance at use of force training and in which he admitted to not investigating every notice of claim, the Court finds on the record before it that no reasonable jury could find the Defendant Village of Haverstraw liable for failure to train or supervise its officers. Both of the Police Officer Defendants are graduates of the police academy. Each Village of Haverstraw Police Officer receives a copy of the Department's rules regarding use of force when he or she is hired. Nov. 14, 2001 John Reilly Dep. at 51. Defendant Lutz testified that he attended firearms and use of force training every year. Sept. 24, 2001 George Lutz Dep. at 9-10. Similarly, Defendant Werbeck, who has been out on disability for at least three years, testified that he received periodic training while he was working. Sept. 24, 2002 Ronald Werbeck Dep. at 11. The Police Chief testified that the Department's Administrative Sergeant conducts mandatory yearly training sessions regarding the use of force and deadly physical force. Nov. 14, 2001 John Reilly Dep. at 24, 26, 28. The Administrative Sergeant is a certified police academy instructor. Id. at 24. Further, the Police Chief sends his officers to the police academy for additionally training every two to three years. Id. at 24, 26. That the Police Chief did not have attendance records for the Administrative Sergeant's or the police academy's seminars does not support a causal connection to an alleged violation of Plaintiff's rights. See id. at 29 (stating belief that the Administrative Sergeant keeps records of attendance at training seminars). Accordingly, the Court finds, on the record before it that no reasonable juror could find a failure to train.
With respect to Plaintiff's claim that the Village failed to supervise its police officers, Plaintiff submits that the Police Chief does not conduct an investigation into every notice of claim he receives. In the ten years the Police Chief has been in office, he estimates his department has completed over 10,000 arrests. Defendant's 56.1 Statement ¶ 28. Of those 10,000 arrests, there have been only seven notices of claim during the Police Chief's tenure. Id. at ¶ 29; Pl. Ex. M. Thus, only .07% of arrests under the Police Chief's ten-year watch have resulted in complaint. This negligible record of complaint can not support a finding of failure to supervise. Additionally, the Police Chief testified that he spoke to the officers involved in the notices of claim and read the reports and records of the arrests. Nov. 14, 2001 John Reilly Dep. at 66. He would conduct further investigations if the accusers contacted him or filed a lawsuit. The Defendant's practices regarding complaints can hardly be considered deliberate indifference amounting to a policy or custom that was the "moving force" behind the alleged excessive force. Cf. Fiacco v. City of Rensselaer, 783 F.2d 319, 331 (2d Cir. 1986) (upholding jut verdict in favor of plaintiff where five arrests within a 22 month period resulted in complaint).
III. Conclusion
For the reasons explained, the Court declines to adopt the Report and Recommendation and grants the Village's motion for summary judgment. Plaintiff is to continue pre-trial proceedings with the Police Officer Defendants before Magistrate Judge Yanthis.
So ordered.