been lodged against him. Exs. I at 2 and R. Concerning John's training and supervision, the Port Authority points out that the parties have agreed that he attended the New York City Transit Authority Police Academy for 5 1/2 months and the Port Authority Police Academy for 16 weeks, and that the Port Authority has not received any complaints concerning his conduct.
In rebuttal, apart from a recitation of the incident at issue, plaintiff has come forward with no documents, admissions, testimony or evidence of any kind pertaining to the officers' training and supervision by NYCHA and the Port Authority. Alluding to deposition testimony that each officer had consumed approximately three glasses of beer that evening, plaintiff argues that "proper training and instruction would have instructed the defendants that their ability to function as police officers would be impaired after consuming alcoholic beverages." Plaintiff also contends that "defendants should have been trained on less injurious methods of restraining [an] alleged perpetrator who [has] not exhibited signs of threat" than by striking him "on the back of the head with the butt of a gun while he was face down on the ground."
Not a month goes by in which there is not a complaint of police violence and excessive force noted in the news. With such notice by the media, and by complaints lodged against police authority, it can only be a deliberate indifference to civilians['] rights why police officers are not trained in more efficient manners.
Plaintiff's Memorandum of Law, p. 12.
However, plaintiff has produced no evidence regarding the officers' training on the consumption of alcohol, the use of force, or any other aspect of their responsibilities. He has simply assumed on the basis of the events at issue both that the training of the two officers was inadequate and that this inadequate training was the "moving force," Polk County v. Dodson, 454 U.S. at 326, of the officers' allegedly unconstitutional behavior. Each assumption is question-begging. See City of Canton v. Harris, 489 U.S. at 391. Under plaintiff's argument, inadequate training would always be inferred merely from the fact that a constitutional deprivation by a police officer occurred. "Such an approach provides a means for circumventing Monell's limitations altogether." City of Oklahoma v. Tuttle, 471 U.S. at 823 (Rehnquist, C.J., plurality opinion). As Justice Brennan stated in the same case:
Without some evidence of municipal policy or custom independent of the police officer's misconduct, there is no way of knowing whether the city is at fault. To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell.
Id. at 831 (Brennan, J., concurring in part and concurring in the judgment). See also Edwards v. City of New York, 692 F. Supp. 1579, 1581-83 (S.D.N.Y. 1988); Camarano v. City of New York, 624 F. Supp. 1144, 1146 (S.D.N.Y. 1986).
In sum, in the face of defendants' evidence of training received by the two officers and the lack of any need to have disciplined them given the absence of prior complaints, plaintiff has come forward with nothing but conclusory argument. He has, accordingly, failed to meet his burden of coming forward with specific facts showing that there is any genuine issue for trial as to whether a "policy or custom" of the NYCHA or the Port Authority was responsible for the constitutional deprivations he has alleged. NYCHA and the Port Authority should therefore be granted summary judgment on plaintiff's first claim.
The only bases indicated in the amended complaint for including NYCHA in plaintiff's claim under § 1985(3) and the Port Authority in plaintiff's claims under §§ 1985(3) and 1986 are those offered in support of plaintiff's claims against them under § 1983: that the two officers were acting within the scope of their employment and that NYCHA and the Port Authority provided them inadequate training and supervision. See Amended Complaint PP 26, 27, 29-31, 33-34. However, as with § 1983, a municipality may not be held vicariously liable under a theory of respondeat superior for claims arising under § 1985(3), and plaintiff's inability to demonstrate that under § 1983 a genuine issue of material fact exists with regard to the existence of a NYCHA or Port Authority policy or custom linked to the alleged constitutional deprivations precludes any § 1985(3) conspiracy claim against them based on the same allegations. Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir.), cert. denied, 493 U.S. 817, 107 L. Ed. 2d 36, 110 S. Ct. 69 (1989); 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); Studifin v. New York City Police Dep't, No. 86 Civ. 5557 (WCC), 1991 U.S. Dist. Lexis 4579 at *13, 1991 WL 60379 at *3 (S.D.N.Y. Apr. 8, 1991); Felix v. City of New York, No. 89 Civ. 2410 (JSM), 1990 U.S. Dist. Lexis 13529 at *6-7, 1990 WL 160904 at *2 (S.D.N.Y. Oct. 9, 1990); Auriemma v. City of Chicago, 747 F. Supp. 465, 476 (N.D. Ill. 1990), aff'd sub nom. Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992); Martin v. City of New York, 627 F. Supp. 892, 898 (E.D.N.Y. 1985). Furthermore, absent a viable § 1985 claim against the Port Authority, plaintiff's "neglect to prevent" claim against it under § 1986 must also fail. Jews for Jesus, Inc. v. Jewish Community Relations Council, 968 F.2d 286, 292 (2d Cir. 1992); Mahoney v. Nat'l Org. for Women, 681 F. Supp. 129, 135 (D. Conn. 1987); Port Chester Yacht Club, Inc. v. Iasillo, 614 F. Supp. 318, 322-23 (S.D.N.Y. 1985). The pending motions should therefore be granted on plaintiff's second and third claims.
There being no diversity of citizenship between plaintiff, a New York resident, and defendants NYCHA and Port Authority, dismissal of plaintiff's claims under §§ 1983, 1985(3) and 1986 against these defendants would leave this court without jurisdiction over plaintiff's pendent state law tort claims against them. Sections 1983 and 1985 and U.S.C. § 1343(a) (granting federal courts jurisdiction over §§ 1983 and 1985 claims) each lack the necessary affirmative grant of pendent party jurisdiction. Pendent party jurisdiction is available only if the statute providing federal jurisdiction over the primary claim can be interpreted as specifically conferring jurisdiction over added claims involving added parties over whom no independent basis of jurisdiction exists. Finley v. United States, 490 U.S. 545, 551-56, 104 L. Ed. 2d 593, 109 S. Ct. 2003 (1990); Powell v. Gardner, 891 F.2d 1039, 1047 (2d Cir. 1989); Kaufman v. City of New York, No. 87 Civ. 4492 (RO), 1992 U.S. Dist. Lexis 14049 at *4 n.2, 1992 WL 247039 at *1 n.2 (S.D.N.Y. Sept. 16, 1992); Reid v. City of New York, 736 F. Supp. 21, 27 (E.D.N.Y. 1990); Otero v. Jennings, No. 86 Civ. 2400 (RWS), 1989 U.S. Dist. Lexis 6697 at *2-4, 1989 WL 67215 at *1-2 (S.D.N.Y. June 14, 1989).
The pending motions should therefore be granted on plaintiff's fourth claim.
For the foregoing reasons, I respectfully recommend that the motions for summary judgment of defendant NYCHA and defendant Port Authority be granted.
The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Kimba M. Wood, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Wood. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).
Dated: New York, New York
December 3, 1992
SHARON E. GRUBIN
United States Magistrate Judge