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June 20, 1985

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


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.


 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.


 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 of the 'pattern' or 'plan' [will] not suffice without this causal link."

 Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (citations omitted).

 In support of its motion for summary judgment, the City has submitted voluminous records from plaintiff's state criminal proceedings, as well as transcripts of the depositions of plaintiff and his mother, Linda Martin. In addition, the City has submitted the affidavit of Richard Koehler, Assistant Chief of the New York Police Department Personnel Bureau, which presents in great detail the process by which the Bureau recruits, selects and investigates applicants for the position of police officer, establishes standards for officer performance and monitors the same. The affidavit also details the training process for officers, as well as means by which officers' conduct is screened during the course of their employment. In addition, the City has submitted evidence that there are no records of the Civilian Complaint Review Board ("CCRB") with respect to Officers Krueger, Ciulla, Policare and Gounaris. Defendant's Exh. G. Magistrate Chrein also received Police Officer Krueger's personnel file and found in it nothing relevant to this lawsuit. Id., Exh. H.

 The plaintiff has presented two arguments which he contends present a genuine issue of material fact precluding summary judgment, i.e., which support plaintiff's claims that the City acts pursuant to a policy which violated plaintiff's rights under § 1983. First, the plaintiff offers the recent affidavit of plaintiff's mother, who witnessed plaintiff's arrest. Therein Linda Martin stated in relevant part:

 At a few moments before 9:00 a.m. on July 6, 1981, Police Officer Krueger arrested my son and during the process, struck him with his gun and used excessive force in making the arrest since Durvan did not resist in any way. We were overcome with fright and no force at all was required by Krueger. In addition, he slammed my son into a tree for absolutely no reason.

 After my son's arrest, two uniformed police officers arrived. While the three officers spoke with each other, I distinctly heard Krueger state, "My daughter was raped. Any nigger will do. I want a 'oust' before I get out."

 One of the other officers seeing that I was within earshot, told Krueger, "Don't worry, we've got one, be quiet, she can hear you."

 Affidavit of Linda Martin, dated April 9, 1985. Plaintiff asserts that this statement is evidence of a City policy of racial discrimination, here implemented by the arresting officers.

 The City has responded to the new Linda Martin affidavit by invoking the well-settled rule that "a party cannot create a material question of fact simply by contradicting testimony given at a deposition." City's Reply Brief at 3. As the Second Circuit has clearly stated: "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Perma Research & Development Co. v. Singer Co, 410 F.2d 572, 578 (2d Cir. 1969); see also e.g., United States v. Dercacz, 530 F. Supp. 1348, 1351 (E.D.N.Y. 1982); Lester v. Pickwick International, Inc., 528 F. Supp. 1011, 1013 (E.D.N.Y. 1981). That Linda Martin is not a "party" to this action will not permit her to defeat the City's motion by contradicting her deposition testimony. The City correctly points out that Ms. Martin's recent affidavit directly controverts both the sworn statements of herself and her son, the plaintiff. For example, Ms. Martin's statement that plaintiff was struck by Police Officer Krueger is directly contradicted by plaintiff's deposition testimony. Durvan Martin Deposition at 136, 144. In addition, plaintiff also denied being hit at his § 50(h) hearing. City's Exh. B at 12. Ms. Martin's own deposition testimony is also in conflict with this recent statement. L. Martin Deposition at 13-14, 45, 85-87. The portion of the Linda Martin affidavit asserting the police officers' racist remarks similarly directly contradicts her own deposition testimony. L. Martin Deposition at 24-25, 27. See City's Reply Affidavit at [PP] 14-18.

 The rule set forth by Perma Research and its progeny prohibits plaintiff from coming forward with the Linda Martin Affidavit for the purpose of attempting to defeat the City's motion for summary judgment. Even if it were appropriate for the Court to consider her recent statement, summary judgment should still be entered on the City's behalf. This is so because the single instance of the use of force and allegedly racist comment described in this statement cannot be said to establish the existence of a municipal custom, policy or practice which authorizes the practice of racial discrimination by New York Police Department officers. See, e.g., Rizzo v. Goode, 423 U.S. 362, 371, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976) (court found no municipal liability under § 1983 absent demonstration of an affirmative link between the occurrence of the various "incidents of police misconduct and the adoption of any plan or policy by [the municipality] . . . showing [it authorization, or approval of such misconduct"); Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied sub nom., Turpin v. City of West Haven, 449 U.S. 1016, 66 L. Ed. 2d 475, 101 S. Ct. 577 (1980) (municipality can be held liable only where it implicity or tacitly authorizes, approves or encourages harassment by police).

 This result is also dictated by the recent decision of the United States Supreme Court in City of Oklahoma City v. Tuttle, 471 U.S. 808, 53 U.S.L.W. 4639, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (June 3, 1985), rendered during the preparation of this opinion. Reaffirming the principle that "[a]t the very least there must be an affirmative link between the [municipality's] policy and the particular constitutional violation alleged," id. at 4643, the Court found that the trial court improperly charged that "a single, unusually excessive use of force may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to 'deliberate indifference' or 'gross negligence' on the part of the officials in charge." Id. at 4640. In its plurality decision, the Court determined that such a charge would permit the jury to hold a municipality liable under § 1983 based on a respondeat superior theory -- a result prohibited by Monell. The Court noted that it was "difficult in one sense even to accept the submission that someone pursues a 'policy' of 'inadequate training' unless evidence be adduced which proves that the inadequacies resulted from conscious choice -- that is, proof that the policymakers deliberately chose a training program which would prove inadequate." Id. at 4643. The Court concluded:

 Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise, the existence of the unconstitutional policy, and its origin, must be satisfactorily proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the "policy" and the constitutional deprivation.

 Id. (footnotes omitted). In this case, the alleged misconduct is clearly less egregious than that challenged in Tuttle, and the plaintiff has made no showing of either an unconstitutional municipal policy or the causal connection which could defeat the City's motion for summary judgment.

 Although plaintiff has not at this time come forward with any appropriate evidence which would controvert the facts set forth in the Koehler Affidavit, discussed supra, plaintiff states as an additional basis for his opposition to the City's motion:

 [P]laintiff will offer expert testimony at the time of trial that the customs, policies and practices of the New York City Police Department, during the applicable time frames of P.O. Krueger's career development, involving his hiring, training and supervision, fell far below acceptable standards for the elimination of racial bias and constitutional deprivations. Time constraints have precluded its inclusion herein.

 Plaintiff's Brief at 5 (emphasis added). It is well settled that once a party seeking summary judgment has come forward with evidence demonstrating that no issue of material fact exists, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The numerous cases reciting this principle need not be cited here; suffice it to say that the party opposing summary judgment, including the plaintiff here, "does not have the right to withhold his evidence until trial." 10A C.Wright, A.Miller & M.Kane, Federal Practice & Procedure § 2739 at 521 (1983); Tomarkin v. Ward, 534 F. Supp. 1224, 1229 (S.D.N.Y. 1982). The plaintiff here has "failed to respond in any substantive way" to the documentary evidence which supports the City's argument that the City does not implement a policy which violates § 1983. Arancibia v. Berry, 603 F. Supp. 931, 934 (S.D.N.Y. 1985) (summary judgment di(smissing § 1983 complaint granted where plaintiff did not submit evidence to controvert affidavits of Koehler and Personnel Bureau Inspector Helblock). Thus, it is appropriate for summary judgment to be entered in favor of the City with respect to plaintiff's claim under 42 U.S.C. § 1983.

 B. 42 U.S.C. § 1985

 Plaintiff's seventh cause of action, discussed supra at 3-4, purports to raise a claim under § 1985. Although a municipality can be held liable under this statute, again it cannot be held liable based on a respondeat superior theory. Just as is required by § 1983, § 1985 requires proof of a municipal custom, policy or practice "stemming from or resulting in a conspiracy implicating the county itself." Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied sub nom., County of Nassau v. Owens, 444 U.S. 980, 62 L. Ed. 2d 407, 100 S. Ct. 483 (1979). *fn8" Having found that plaintiff has failed to prove the existence of such a policy in connection with his § 1983 claim, I am compelled to find plaintiff's § 1985 claim inadequate as well.


 For the reasons set forth above, I find that the City is entitled to summary judgment dismissing not only plaintiff's § 1983 and § 1985 claims, but plaintiff's pendent state claims as well. United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Suffolk County Patrolmen's Benevolent Ass'n, Inc. v. County of Suffolk, 751 F.2d 550, 551 (2d Cir. 1984); Dunton v. County of Suffolk, 729 F.2d 903, 910-11 (2d Cir.), modified on other grounds, 748 F.2d 69 (2d Cir. 1984).

 The complaint is therefore dismissed in its entirety as against the City defendant.


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