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February 25, 1985

Joseph ARANCIBIA, Plaintiff,
Arthur BERRY, Thomas McGoldrick, and the City of New York, Defendants.

The opinion of the court was delivered by: SOFAER


SOFAER, District Judge.

 Plaintiff, Joseph Arancibia, brought this action for damages pursuant to 42 U.S.C. § 1983 (1982) and New York state law. He alleges that on May 23, 1981 defendants Berry and McGoldrick, who were then New York City police officers, seized him without probable cause and severely beat him. He also alleges that two other police officers who were called to the scene refused to take him to the hospital unless he promised not to report the conduct of defendants Berry and McGoldrick. These allegations are substantiated to some degree by the results of disciplinary proceedings undertaken by the Police Department ("Department"). After a hearing conducted on March 9-10, 1983, the Assistant Commissioner for Trials, Bruce E. Fogarty, issued an opinion on September 22, 1983. He found Arancibia's account of his ordeal "truthful," Opinion at 20 (Heinemann Affidavit, Apr. 24, 1984, Exh. A), and recommended that the two officers be dismissed from the police force. Id. at 23. This recommendation was adopted by Commissioner Maguire, and Berry and McGoldrick were dismissed on October 28, 1983.

 In 1984, defendants Berry and McGoldrick brought their own civil rights action, McGoldrick and Berry v. Koch et al., 84 Civ. 1335 (ADS), alleging that their constitutional rights to due process and equal protection had been violated by the Department's disciplinary procedures. They sought reinstatement to their positions as police officers and monetary damages. On April 17, 1984, the two actions were consolidated for pre-trial purposes only.

 In addition to his allegations concerning Berry and McGoldrick's behavior, Arancibia alleges that the City of New York ("City") is also responsible for his injuries. In his amended complaint, he identifies three theories by which he claims that the acts of defendants Berry and McGoldrick can be imputed to the City. First, he alleges that Berry, McGoldrick, and the two other officers were the "servants, agents, and employees" of the City at the time the alleged incident occurred. Amended Complaint P22. Second, he claims that the City "was grossly negligent and deliberately indifferent in the hiring, retention, training, supervision, discipline and assignment" of the officers involved in the incident, because it knew or should have known of Berry and McGoldrick's disposition to engage in the kind of behavior alleged in the complaint and of the willingness of other officers to cover up such behavior. Id. P23. Finally, he claims that the conduct of the officers involved in this case "resulted from a policy, plan, pattern, practice and custom that was acquiesced in and condoned" by the City. Id. P24.

 The City has moved for summary judgment pursuant to Fed.R.Civ.P. 56.

 Arancibia's first theory -- that the unconstitutional and illegal acts of Berry and McGoldrick may be imputed to the City because the City was their employer -- is nothing more than a claim based on respondeat superior. This basis for imposing liability upon a municipality was specifically rejected by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 663 n.7, 2036-38, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); see Turpin v. Mailet, 619 F.2d 196, 199 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980). Indeed, plaintiff himself concedes the insufficiency of a legal theory based solely upon the employment relationship. See Plaintiff's Memorandum of Law at 4 (Apr. 24, 1984).

 To maintain a cause of action against the City, plaintiff must allege facts sufficient to suggest that the unconstitutional and illegal acts of Berry and McGoldrick were taken pursuant either to an explicit municipal policy or "visited pursuant to governmental "custom" even though such a custom has not received formal approval. . . ." Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-36. Plaintiff here alleges no express Department policy either approving the brutal beating of civilians or ordering that police officers cover up the malfeasance of their fellows. Plaintiff must therefore present sufficiently specific factual allegations that there is in fact such a policy. See Turpin, 619 F.2d at 199. Plaintiff advances two distinct theories of such a policy.

 In P23 of the amended complaint, he alleges gross negligence and deliberate indifference in the Department's personnel policies. See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.1979) (such claims, if proven, are sufficient for finding municipal liability under § 1983), cert. denied, 444 U.S. 980, 100 S. Ct. 483, 62 L. Ed. 2d 407 (1979). This theory rests on two factual predicates: first, that Officers Berry and McGoldrick had a propensity toward brutality and excessive use of force and that the other officers had a propensity toward covering up evidence of excessive use of force; and second, that the Department's personnel policy was grossly negligent of and indifferent toward such dangers.

 Arancibia has failed to present any facts to support either allegation. He fails to allege that either officer had ever engaged in any behavior that led or should have led the Department to foresee the likelihood of their administering a gratuitous beating to plaintiff. Apparently, plaintiff's counsel chose to rely for support of this suggestion solely on the possibility that the personnel files of the individual defendants might contain evidence of such acts that would suggest that the city was or should have been aware of a danger of brutality toward civilians. See Affidavit of Guy L. Heinemann P4 (Apr. 24, 1984). The files completely contradict plaintiff's assertions, however. Until the time of the incident which gave rise to this action, Berry had been the subject of only one civilian complaint -- for "discourtesy." Affidavit of James W. Helbock Regarding Arthur Berry P16 (May 18, 1984). Moreover, the Court's in camera examination of Berry's personnel file disclosed no evidence that could have suggested his "disposition" to use excessive force. Berry was commended five times for his performance as a police officer. The two reports concerning his discharge of a firearm both concluded that his actions were in keeping with departmental policy regarding the use of weapons. See Report from Commanding Officer, Patrol Borough Bronx to Chief of Operations (Aug. 13, 1980). The performance evaluation form used by the Department, PD439-157, specifically requires the rater "to comment as to the individual's overall behavior in enforcement and regulatory situations as well as his/her use of appropriate and justifiable force." His 1978 evaluations characterized him as a "stable individual [who has] no problem regarding use of force." Similar assessments appear in his 1980 and 1981 evaluations, as well as in the more detailed reports filed when he was a probationary police officer.

 The evidence concerning McGoldrick is similar. Until the time of this incident, he was the subject of only two civilian complaints for discourtesy, one of which was "ultimately unsubstantiated," the other of which was "informally conciliated." Affidavit of James W. Helbock Regarding Thomas McGoldrick P16 (May 18, 1984). He had received a commendation for "excellent police duty." His 1980 performance evaluation stated that he "[s]tays well within the department guidelines on the use of justifiable force," and his 1981 evaluation expressed similar sentiments.

 In support of his theory that the City's pesonnel policies were grossly negligent and deliberately indifferent, plaintiff relies on nothing more than sweeping assertions, unsupported by any specific factual allegations. Such claims cannot survive a motion for summary judgment. See Boorstin v. City of New York, 82 Civ. 7887, slip op. at 4 (S.D.N.Y.1984), Cattan v. City of New York, 523 F. Supp. 598, 601-02 (S.D.N.Y. 1981).

 In Cattan, Chief Judge Motley set out criteria for assessing claims of gross negligence and indifference against police departments based on allegations of brutality by individual police officers. She granted summary judgment for the municipal defendants in Cattan based upon the "unrebutted affidavit" of the chief of police department's personnel bureau "detail[ing] the steps taken by the police department to initially screen applicants to the police force, as well as the continuing efforts of the police department to provide further training for police officers throughout their careers, id. at 602, and upon the absence of any facts regarding the specific officer involved "to suggest violent tendencies," id. She concluded that under such circumstances, "it is untenable to say that the continued employment of [the defendant officer] was "gross negligence" amountng to "deliberate indifference." Id.

 This case is virtually identical to Cattan. The City has submitted detailed affidavits of James W. Helblock, Inspector in command of the Department's Personnel Bureau, and of Richard Koehler, Assistant Chief in command of the Bureau. These affidavits discuss the comprehensive background checks and psychological screening undertaken in evaluating candidates for positions as officers; the training that officers receive, in the classroom, in various role-playing workshops, and in a supervised recruit field training program; the periodic evaluations made of officers' performance; the various programs established to treat officers suffering from psychological ...

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