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January 21, 1994

NEW YORK CITY et al., Defendants.

The opinion of the court was delivered by: LOUIS L. STANTON

 Pro se plaintiff Gregory Lucas sues the City of New York ("City"), the New York City Housing Authority ("NYCHA") Police, and former NYCHA Police Officer Ronald Chambers *fn1" ("Chambers") under 42 U.S.C. §§ 1981, 1983, and 1985, alleging violations of the First, Fourth, Eighth and Fourteenth Amendments during his arrest on August 5, 1990.

 Defendant City moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), contending that the New York City Housing Authority and its police are separate and independent from the City of New York, and that the complaint fails to allege facts sufficient to ground a claim "that the City has a municipal policy of failing to train or supervise" the officer or officers involved, as a basis for liability in this case. (City's Mem. Supp. Mot. Dismiss at 6.) Lucas, NYCHA, and Chambers oppose the City's motion.


 1. Section 1983

 Under § 1983 a municipality may not be held liable for the wrongful conduct of even its own agents or employees on the theory of respondeat superior. Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95, 98 S. Ct. 2018, 2036-38, 56 L. Ed. 2d 611 (1978). To hold a municipality responsible under § 1983, a plaintiff must establish: "(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986) ("Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts 'of the municipality' -- that is, acts which the municipality has officially sanctioned or ordered.").

 Plaintiff argues that Section 35.30 of the New York Penal Law, which authorizes the police to use force to make an arrest, provides the basis for Monell liability. The statute states, in pertinent part:

A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense, may use physical force when and to the extent he reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force . . .

 However, a grant of discretion to the police to use reasonable force to effect an arrest does not, without more, support a finding of municipal liability. See Pembaur, 475 U.S. at 481-82, 106 S. Ct. 1299 (plurality opinion) ("The fact that a particular official -- even a policymaking official -- has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion."); (WRCHE) Radio Christ Hispanic Evangelic, Inc. v. Guiterrez, No. 88-1425, 1990 U.S. Dist. LEXIS 10219, *12, 1990 WL 115594, at *4 (N.D. Ill. 1990) ("If according discretion to a city, employee is a policy, then Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) stands on its head and respondeat superior becomes the rule in § 1983 cases."); Dawes v. Pellechia, 688 F. Supp. 842, 846 (E.D.N.Y. 1988) ("Although the individual officers have discretion in the conduct of high-speed chases, that fact alone will not render the municipality liable. Because the power to establish a policy regarding high speed chases [is] entrusted to the Police Department, an individual officer's exercise of his discretion pursuant to that policy, even if exercised in an unconstitutional manner, is an act of the officer, not the municipality").

 Municipalities are liable under § 1983 where their failure to train their police amounts to deliberate indifference to the rights of persons with whom the police come in contact. City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989); Walker v. City of New York, 974 F.2d 293, 297-99 (2d Cir. 1992), cert. denied, 122 L. Ed. 2d 762, 113 S. Ct. 1387, 113 S. Ct. 1412 (1993).

 Lucas makes a direct claim against "New York City for its employment of officers with propensity for violence and negligence in training and supervision." (Complaint P 14.) Although the complaint does not detail the City's involvement in the alleged unlawful conduct, Lucas' opposition papers dated September 13, 1993, state that he

was surrounded by New York City Police while the defendant Ronald Chambers #2816 brutalized the plaintiff . . . being that N.Y.C.P.D. was at the scene where the police brutality took place at against the plaintiff and did nothing to prevent the assault against the plaintiff's person makes the . . . City of New York liable for the actions of their officers and for N.Y.C.P.D. to have such a great number of officers at the scene supports plaintiff's allegations.

 Although normally "a single incident of errant behavior is art insufficient basis for finding that a municipal policy caused plaintiff's injury," Sarus v. Rotundo, 831 F.2d 397, 402-03 (2d Cir. 1987) (citing Oklahoma v. Tuttle, 471 U.S. 808, 824, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985) (plurality opinion); id., 471 U.S. at 833, 105 S. Ct. at 2441 (Brennan, J., concurring)), from the presence of a considerable number of police, all of whom act in similar fashion, it may be reasonable for a trier of fact to infer that they were trained to act that way. The Court of Appeals for this Circuit has stated that "'a single, unusually brutal or egregious beating administered by a group of municipal employees 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 ...

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