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December 13, 1990


The opinion of the court was delivered by: Haight, District Judge:


In this civil rights action arising out of the arrests of plaintiffs by a New York City Transit Police officer, certain defendants move to dismiss the complaint under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim upon which relief may be granted. Plaintiffs cross-move under Rule 15(a) for leave to file and serve an amended complaint.


Plaintiffs Alfred Ricciuti and Daniel Ricciuti are New Jersey residents. Alfred Ricciuti is the uncle of Daniel Ricciuti. Plaintiffs assert that on April 30, 1989, shortly before five p.m., they were walking along 161st Street in the Bronx, having watched a baseball game at Yankee stadium. Alfred Ricciuti became involved in an altercation with defendant Harlice Watson, a New York City Corrections officer who was not in uniform. Plaintiffs allege that during the course of that altercation Watson assaulted Alfred Ricciuti, knocked him to the ground, and menaced Ricciuti with a handgun. Watson then left the scene but returned with defendant Henry Lopez, a uniformed New York Transit Police officer from Transit Police District 11, located at the River Avenue subway station. Plaintiffs allege Lopez threw Alfred Ricciuti against a building wall, searched him, handcuffed him, and placed him under arrest. Lopez, Watson and Alfred Ricciuti then began to walk to the Transit Police Station located in the subway station at River Avenue. Lopez is alleged to have turned and kicked Daniel Ricciuti stating that Daniel Ricciuti, was following too closely. At the Transit Police Station plaintiffs allege that defendant R.L. Wheeler, a Transit Authority Police lieutenant and the commanding officer on duty, refused to permit Alfred Ricciuti to make a complaint against Watson. Wheeler authorized Lopez to process the arrest and to lock Alfred Ricciuti in a holding pen. Watson then threw Daniel Ricciuti against the wall of the police station and placed him under arrest as well, in the presence of Lopez and Wheeler, then processed Daniel Ricciuti's arrest and placed him in a holding pen. Plaintiffs further allege that Watson swore out a felony complaint falsely charging plaintiffs with felonious assault and aggravated harassment, and racial epithets against Watson by Alfred Ricciuti. These charges were ultimately dismissed by the Bronx Criminal Court. This civil rights action followed.

Plaintiffs have sued Lopez, Wheeler, and Watson, the three individuals involved in the alleged incidents. In addition, plaintiffs have named as defendants the New York City Transit Authority ("TA"); the New York City Transit Police Department, also referred to as the Transit Authority Police Department ("TAPD"); the Commissioner of the TAPD, Vincent del Castillo; the City of New York, and the New York City Corrections Commissioner, Richard Koehler. Plaintiffs asserted against these defendants direct constitutional claims, and also causes of action under 42 U.S.C. § 1981, 1983, 1985(2) and (3), and 1986, as well as pendent state common law claims.

The TA, TAPD and del Castillo moved to dismiss the claims against them under Rule 12(b)(6). In their response to that motion, plaintiffs cross-moved under Rule 15(a) to amend their complaint. The proposed amendment eliminates plaintiffs' claims under 42 U.S.C. § 1981, 1985 and 1986. The constitutional claims remain as do causes of action asserted under § 1983 and the state law claims.

Plaintiffs' proposed amended complaint quotes or summarizes three written reports referred to infra. The complaint is deemed to include documents incorporated in it by reference for Rule 12(b)(6) purposes. Goldman v. Belden, 754 F.2d 1059, 1065-1066 (2d Cir. 1985).

Plaintiffs' claims against the moving defendants are based upon Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that municipalities are "persons" within the meaning of § 1983. Subsequent to Monell, the Supreme Court has ruled that a municipality can be held liable in a § 1983 suit for a constitutional violation "only where its policies are the `moving force [behind] the constitutional violation.'" City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989) (citing Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611). Under Monell and subsequent cases, federal courts require § 1983 plaintiffs to prove (1) the existence of a municipal custom or policy, see Oklahoma v. Tuttle, 471 U.S. 808, 829-30 and n. 3, 105 S.Ct. 2427, 2439 and n. 3, 85 L.Ed.2d 791 (1985) and (2) some "affirmative link between the policy and the particular constitutional violation alleged." Oklahoma City v. Tuttle, at 823, 105 S.Ct. at 2436. In Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983), the Second Circuit said:

  to 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.

The issue is whether plaintiffs' proposed amended complaint contains factual allegations sufficient to satisfy these standards of recovery. In evaluating the pleading, I recognize that a motion to dismiss under Rule 12 must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of fact in support of his claim which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)), and that the court must accept the complaint's well-pleaded allegations of facts as true together with such reasonable inferences as may be drawn in the pleader's favor. Murray v. City of Milford Connecticut, 380 F.2d 468, 470 (2d Cir. 1967); Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686.

The gravamen of plaintiffs' charge against the TA, TAPD and Chief del Castillo is that they failed to supervise or provide proper training to Lopez and Wheeler in the making of lawful arrests, causing those individuals to violate plaintiffs' constitutional rights. Failure to supervise employees or to provide proper training is not actionable unless the failure "amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris, 489 U.S. at 388, 109 S.Ct. at 1204.

To the extent that plaintiffs contend the TA defendants' deliberate indifference to constitutional rights may be inferred from the single incident alleged in the complaint, I reject the contention. It is true that shortly after Monell was decided, the Second Circuit said in Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir. 1979) that "a single brutal incident" may be sufficient to support an inference of repeated course of conduct by offending officers and deliberate indifference by their supervisors. However, Owens involved a "brutal and premeditated" beating of an inmate in the presence of seven prison guards. The court of appeals concluded that "the nature of the beating and the number and rank of officers involved" warranted limited discovery into questions of supervision and training. Id. at 1246. In the case at bar, the initial arrest of Alfred Ricciuti by Transit Officer Lopez was presumably made on the complaint of Corrections Officer Watson; Lopez did not witness the incident and his conduct at the scene of arrest bears no resemblance to the beating in Owens.

What thereafter allegedly occurred at the Transit Police Station house constitutes more aggravated conduct. However, more recent authority casts doubt upon the legal sufficiency of a single incident to furnish the basis for an inference of a policy or practice sufficient for municipal liability. In Oklahoma City v. Tuttle, supra, 471 U.S. at 821, 105 S.Ct. at 2435 the Court disapproved the trial court's instruction that the jury could infer from a "single, unusually excessive use of force . . . that it was attributable to inadequate ...

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