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ALBERTS v. CITY OF NEW YORK

October 5, 1982

GLORIA ALBERTS, Plaintiff, against THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, P.O. JAMES OGLETREE and "JOHN DOE" and "JANE DOE", the aforesaid names being fictitious, identities unknown to the plaintiff, Defendants.


The opinion of the court was delivered by: DUFFY

OPINION & ORDER

KEVIN THOMAS DUFFY, D.J.:

Plaintiff initiated this $3.5 million lawsuit against the City of New York, the New York City Police Department and New York City Police Officers James Ogletree, "Jane Doe" and "John Doe", pursuant to 42 U.S.C. § 1982, after her arrest on August 8, 1980, for disorderly conduct, harassment, and resisting arrest. The amended complaint *fn1" added causes of action for false arrest and assault and battery, and it requests punitive damages. Defendants' motions for judgment on the pleadings and default were denied leading to a non-jury trial on June 9, 1982. *fn2" The following shall constitute my findings of fact and conclusions of law.

 I.

 On August 8, 1980 at approximately 9:30 p.m. a van driven by Kosmas Bidales was stopped for running a red light by Police Officers James Ogletree and Hillery Simmons who were in marked car patrol on Amsterdam Avenue near 168th Street. Ogletree left Simmons behind in the patrol car, walked to the driver's side of the van and asked to see Bidales' driver's license and registration. *fn3" Ms. Gloria Alberts, the plaintiff, was seated in the passenger side of the van and was in the middle of a vociferous argument with Mr. Bidales when Officer Ogletree approached the van. The plaintiff, who was shouting obscenities when the van pulled over, now directed her foul language at the police officer. Trial Transscipt at 46-48, 76. Ogletree warned Ms. Alberts that if she persisted in her verbal abuse he "was going to lock her up." Trial Transcript at 75. Ms. Alberts did not heed the officer's warning. Officer Ogletree then walked to the passenger side of the van to confront the plaintiff and to again warn her: "You keep on, I'm going to lock you up." Trial Transcript at 76. At that point Ms. Albert struck the officer in the face with her hand, the officer countered by striking her with his hand and Ms. Alberts struck back. Trial Transcript at 80. Officer Ogletree then told Ms. Alberts that she was under arrest and he opened the van door. Ms. Alberts refused to be led out of the van by the officer and to avoid him she moved into the space between the van seats simultaneously kicking the officer in the stomach and groin area. Trial Transcript at 80. At this point, to restrain the plaintiff, Ogletree punched Ms. Alberts with full force on her left cheek. This blow quieted the plaintiff. She was then placed under arrest for disorderly conduct, harassment of an officer, and resisting arrest, and transported to the 34th Precinct. At the station house, the plaintiff for the most part remained handcuffed except for her visit to the one bathroom available. Before being allowed to utilize the facilities, plaintiff underwent a visual strip search by a police matron in the empty bathroom. It was standard procedure within the police department at that time for all persons charged with a crime more serious than a violation to be strip searched. Trial Transcript at 104-05.

 Shortly after Ms. Alberts returned from the bathroom she was transported by police car to Central Booking at 100 Centre Street for booking and fingerprinting. Trial Transcript at 27-29, 54. Officer Ogletree called Ms. Alberts' sister after their arrival and the plaintiff waited with the officer while he began to complete the paper work generated by the plaintiff's arrest. It was close to 2:00 a.m., August 9, 1980, before Ms. Alberts was released from custody and driven home by Mr. Bidales. Trial Transcript 30-31. Early that afternoon, Ms. Alberts went to Roosevelt Hospital to have her eye examined. The doctor at Roosevelt advised her to keep cold compresses on her eye and to see an ophthalmologist. An ophthalmologist at New York Hospital, which is affiliated with her employer, Cornell University Medical College, examined the plaintiff and prescribed drops to aid in the healing process. Trial Transcript at 35. Ms. Alberts has had no permanent damage from the injury and her vision is fully restored. As a result of this incident, Ms. Alberts missed two weeks of work and lost sick leave and vacation benefits.

 The criminal complaint against Ms. Alberts eventually proceeded to a jury trial in February, 1981, on only the charges of disorderly conduct and harassment. *fn4" Ms. Alberts was found not guilty of all the charges.

 II.

 Ms. Alberts now seeks over $3 million in damages from New York City, the New York City Police Department, and individual police officers, arising out of the alleged assault and battery and false arrest of the plaintiff. What began with the filing of a civilian complaint against Officer Ogletree, (Plaintiff's Exhibit 4), escalated into a full scale lawsuit. Before addressing the merits of Ms. Alberts' allegations, I must first resolve the threshold immunity issue raised by the defendants.

 It is well settled that a municipality cannot be held liable in a section 1983 suit under the doctrine of respondeat superior for the torts of its employees, Monell v. New York City Dep't of Social Services, 436 U.S. 658, 663 n.7, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) ("Monell"), see Polk County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981); Tomarkin v. Ward, 534 F. Supp. 1224, 1232 (S.D.N.Y. 1982). However, a direct suit pursuant to section 1983 against a municipality is appropriate when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690; Redcross v. County of Rensselaer, 511 F. Supp. 364, 369 (N.D.N.Y. 1981). In support of a direct suit against the City the plaintiff points to the now defunct policy or custom of the New York City Police Department to strip search all prisoners charged with a crime more serious than a violation. Plaintiff asserts that this official policy permits her direct suit against the City.As was discussed above, this strip search is not part of the instant case. *fn5" Therefore, absent any further proof at trial of a constitutionally infirm policy or custom, the complaint is dismissed against defendant New York City.

 The Monell analysis is equally applicable to the New York City Police Department. In order to maintain her suit against the Police Department, the plaintiff was obligated to prove at trial that Ms. Alberts' injuries resulted from a policy or custom of the New York City Police Department, or that policy-making officials of the Police Department were directly involved in her arrest. See Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976), DiGiovanni v. City of Philadelphia, 531 F. Supp. 141, 144-45 (E.D. Pa. 1982). This burden was not met. Furthermore, although plaintiff's amended complaint alleged otherwise, there was no evidence at trial establishing either negligent supervision of policemen or a Police Department policy to encourage lawless conduct. Accordingly, the complaint also must be dismissed as to this defendant. See Redcross v. County of Rensselaer, 511 F. Supp. at 372.

 The remaining defendant is Police Officer James Ogletree. In essence, plaintiff argues that this officer's alleged false arrest and assault of Ms. Alberts was violative of section 1983. In recognition of the inherent discretion which must be afforded police officers to promote effective law enforcement, the law entitles a police officer "to qualified immunity from an assessment of damages against him if he acted with a reasonable and good faith belief that he had acted lawfully." Street v. Cherba, 662 F.2d 1037, 1039 (4th Cir. 1981). See Butz v. Economou, 438 U.S. 478, 496, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1341 (2d Cir. 1972).

 Plaintiff unavailingly argues that her arrest lacked the requisite probable cause and therefore could not be defended on the basis of "reasonable and good faith belief" otherwise. Ms. Alberts has the burden of showing "that the arresting officer did not have knowledge of facts and circumstances sufficient to warrant a prudent man in believing that an offense had been committed." Pratt v. Bernstein, 533 F. Supp. 110, 114 (S.D.N.Y. 1982). This burden has not been met. The arrest of Ms. Alberts was justified by her behavior and was based on probable cause. The statutes proscribing disorderly conduct and harassment provide:

 A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or ...


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