The opinion of the court was delivered by: Telesca, Chief Judge.
The plaintiffs, Sam Loria, his wife Catherine, his son Jeff
and his daughter-in-law Suzann, filed these two actions
pursuant to 42 U.S.C. § 1983, 1985 and 1988 as the result of
certain events which occurred on February 8, 1983. In their
complaints, the plaintiffs allege federal causes of action for
deprivations of their Fourth and Fourteenth Amendment rights,
as well as various pendent state law claims for assault, false
arrest, malicious prosecution and abuse of process. Defendants
Town of Irondequoit (the "Town"), Irondequoit Police Department
("Police Department"), Irondequoit Chief of Police William
Frey, Officer Stephen Gerhardt, Officer Bernard Guinta, John
Doe, Jane Doe and other Supervisors of Irondequoit Police
Personnel now move for an order of summary judgment dismissing
all or some of the claims against them. For the reasons
discussed below, the defendants' motions are granted in part
and denied in part.
On December 31, 1982, Officer Bernard Guinta issued Jeffrey
Loria a ticket for speeding. After issuing the ticket and
returning to police barracks, defendant Guinta ran a routine
check on Jeffrey's license and learned that it had been
previously suspended for failure to pay a fine. Deposition of
Bernard Guinta, October 15, 1986, at 27-30, 32. Guinta
thereafter sought to ticket Jeffrey for driving with a
suspended license and for failure to surrender a suspended
item. When attempts to personally serve these upon Jeffrey at
his home failed, Guinta decided to present the tickets at the
time of Jeffrey's trial on the speeding violation.
That trial took place around 10:00 pm on February 8, 1983 in
the Irondequoit Town Hall. Following the testimony of both
Guinta and Jeffrey, Jeffrey was found guilty of speeding and
fined $25. Immediately after the trial, Guinta took Jeffrey
into a back room in the Court House to inform him of the
additional charges against him. Guinta Dep. at 52; Deposition
of J. Loria, at 20-21; Gerhardt Dep. at 158. The two were
joined at some point by defendant Gerhardt, a police officer
who had testified that night in another unrelated matter.
Gerhardt was dressed in civilian clothes at the time and was
carrying an off-duty .45 caliber revolver. Defendant Gerhardt's
Statement of Material Facts Not in Dispute, ¶¶ 7, 16.
During the course of his discussions with Guinta and
Gerhardt, Jeffrey disclaimed ever having received notice from
the Department of Motor Vehicles that anything was wrong with
his license. Despite these contentions, Guinta issued Jeffrey
an appearance ticket for driving with a suspended license and
Jeffrey thereafter left the room. The parties dispute whether
Jeffrey was then told not to drive, although Jeffrey admits
that he may have been so advised. J. Loria Dep. at 27, 30.
Defendant Gerhardt followed Jeffrey from the building and,
after observing him walk to his car, returned to the small room
and advised Guinta that Jeffrey was about to drive. The two
then entered Guinta's assigned vehicle, radioed for assistance,
and began pursuing Jeffrey with flashing lights engaged.
Jeffrey had stopped at an intersection, and as he approached,
Guinta turned off the flashing lights. When the light turned
green, Guinta pulled his vehicle directly behind Jeffrey's,
reengaged the lights, ran the spotlight across Jeffrey's
mirrors and hit the siren for one cycle. Despite these actions,
Jeffrey claims that he did not hear the siren and that he was
otherwise unaware of the police officers' presence at the
Guinta and Gerhardt, along with Catherine Loria, followed
Jeffrey to his parents' home where they arrived shortly
thereafter. While the exact nature and sequence of the
subsequent events remains in dispute, a scuffle eventually
ensued during the course of which Jeffrey alleges that Gerhardt
struck him on several occasions while he and Guinta were trying
to handcuff him. This scuffle was interrupted by Sam Loria who,
apparently alerted by the flashing lights, appeared from the
garage to determine the source of the commotion. Upon seeing
his son wrestling with the two officers, Sam Loria grabbed
Gerhardt about the shoulders and the two fell to the ground
with the elder Loria ending up on top. Gerhardt withdrew his
off-duty revolver and, with his finger on the trigger, pushed
it against Sam Loria's side. Defendants Town, Police
Department, et. al. Statement of Material Facts Not in Dispute,
at ¶¶ 59, 60. The gun ultimately discharged, striking Sam Loria
in the right groin.
Jeffrey, Catherine and Sam Loria were thereafter charged with
various offenses, including resisting arrest and obstructing
governmental administration. Catherine and Sam Loria were both
"no-billed" by the grand jury and Jeffrey Loria was acquitted
on all counts following a trial in Irondequoit Town court.
In their complaints, plaintiffs allege that Gerhardt and
Guinta intentionally and negligently used deadly force in
violation of their Fourth and Fourteenth Amendments rights, and
that such conduct evidences a failure by the Town, its Police
Department and its Chief of Police to properly train its
officers. The defendants now raise a number of arguments in
their summary judgment papers, all of which are treated below.
1. Motion to Dismiss Plaintiffs' Claims Involving
Negligent Use of Excessive Force
The initial inquiry in a § 1983 action, including those
involving excessive force, focuses on two issues: (1) whether
the conduct complained of was committed by persons acting under
color of state law; and (2) whether the conduct deprived a
person of the rights secured by the Constitution or the laws of
the States. Graham v. O'Connor, 109 S.Ct. 1865, 1870 (1989);
Parrat v. Taylor, 451 U.S. 527, 535 (1981), overruled in part
on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).
While essentially conceding that they were acting "under color
of state law," the defendants argue initially that plaintiffs'
claims for ...