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MARTIN v. CITY OF NEW YORK

June 20, 1985

DURVAN MARTIN, Plaintiff,
v.
THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and their agents, among them Police Officer "JOHN KRUEGER," the first name being unknown at the present time, Defendants



The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Plaintiff has brought this action pursuant to 42 U.S.C. §§ 1983 and 1985, *fn1" as well as state law, seeking redress for violations of his constitutional rights allegedly committed by defendants. *fn2" Defendant City of New York ("the City") has moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint against it. *fn3" For the reasons that follow, the City's motion is granted.

 Background

 In this action, plaintiff seeks an award of compensatory and punitive damages *fn4" totalling $10,020,000 for unlawful acts allegedly committed in connection with plaintiff's arrest and prosecution for the rape and sodomy of Linda Krueger, the daughter of defendant Edward Krueger, which prosecution ultimately resulted in plaintiff's acquittal.

 Linda Krueger was attacked at knifepoint on February 26, 1981. On July 6, 1981, while riding in a car with her father, Ms. Krueger identified plaintiff as her attacker. Police Officer Krueger, who is now retired from the New York Police Department, summoned police from the local precinct and arrested the plaintiff. Police Officer Krueger admittedly pushed plaintiff up against a wall and pulled a gun while arresting plaintiff. *fn5" The only other officers allegedly involved with plaintiff's arrest and subsequent proceedings are Police Officer Gounaris, to whom Linda Krueger described her attacker while hospitalized after the incident, P.O. Policare, who initially investigated Ms. Krueger's complaint after the incident, P.O. Ciulla, who arrived at the scene of the arrest and subsequently filed a criminal court affidavit based upon the victim's statement, and an unidentified officer who assisted Police Officers Krueger and Ciulla at the scene of the arrest. The more detailed facts surrounding plaintiff's arrest and subsequent state court proceedings are summarized in the undisputed Local Rule 3(g) statement submitted by the City, *fn6" as well as in the City's memorandum at 1-5 and the Affidavit of Assistant Corporation Counsel John P. Woods.

 The complaint, albeit inartfully drawn, alleges seven causes of action: false arrest; punitive damages for false arrest and imprisonment; malicious prosecution; punitive damages for malicious prosecution; negligent hiring, retention and supervision by the City of the defendant officers; assault and conspiracy to violate plaintiff's constitutional rights. Clearly only the fifth and seventh claims are intended to invoke the protection of § 1983 and § 1985 as against the City of New York; the remaining causes of action allege pendent state claims. Because the validity of the federal claims is central to this motion, I shall focus only upon their merits.

 Plaintiff's fifth cause of action generally charges the City with the negligent hiring, employment and retention of Police Officer Krueger, as well as the negligent failure to instruct, supervise and control the individual police defendants. Plaintiff alleges that the City negligently authorized Krueger and other officers to work for the New York Police Department when the City "knew or should have known" that these officers were "incompetent, irresponsible, bore racial bias, were of vicious propensities, and of bad disposition." The New York Police Department is alleged to have had notice of the individual defendants' propensities to so act. Complaint, [PP] 88-93.

 In the seventh cause of action, plaintiff alleges that defendants' infringement of his first, fourth, fifth and fourteenth amendment rights "resulted from and were taken pursuant to a de facto policy of THE CITY OF NEW YORK which is implemented by its police officers, to summarily punish persons of the Negro race who refuse to obey police orders, whether lawful or not, by means of unlawful arrest, excessive use of force and malicious prosecution." Complaint, [P] 105. *fn7" This cause of action also charges that the above policy has been known to supervisory and policy-making personnel of the New York Police Department for a substantial period of time, that this policy was "covered up and concealed" from public knowledge and that the above personnel acted with deliberate indifference by not taking steps to terminate the above practices. See generally id. at [PP] 98-111.

 Discussion

 A. 42 U.S.C. § 1983

 It is well settled that a municipality may not be held liable for damages under § 1983 on a respondeat superior basis solely because it employs a tort-feasor; rather, a plaintiff must plead and prove the existence of an official municipal custom, policy or practice which causes the violation of plaintiff's rights. Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The Second Circuit has held:

 [T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. "[T]he mere invocation ...


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