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December 21, 1994

THE CITY OF ROME, NEW YORK; JAMES BOYER, DONALD EARLY, and TERRY GOWETT, as Police Officers of the City of Rome Police Department; and Other Unknown Police Officers of the City of Rome, Defendants.

David N. Hurd, U.S. Magistrate Judge

The opinion of the court was delivered by: DAVID N. HURD

I. Introduction.

 The above entitled action was tried in Utica, New York, between September 6, and September 12, 1994. At the conclusion of the plaintiff's case, the complaint was dismissed as a matter of law as against the defendants James Boyer ("Boyer") and Terry Gowett ("Gowett"). The deliberate indifference to medical needs and illegal search claims against all defendants were also dismissed. The federal claims against the defendant Donald Early ("Early") for false arrest and use of excessive force, and the claim against the defendant City of Rome, for a pattern, policy, or practice, of failing to supervise and train its officers were submitted to the jury. The pendent state law claims for false arrest and assault against both remaining defendants were also submitted.

 A. Motions.

 The defendants have moved for an order pursuant to Rule 50(b) setting aside the verdicts and the judgment entered thereon, and directing that judgment be entered in favor of the defendants as a matter of law. Fed. R. Civ. P. 50(b). In the alternative, defendants also moved for an order pursuant to Rule 59(b), granting defendants a new trial on the grounds that the jury's verdict was against the weight of the evidence.

 In addition, defendants moved for a remittitur on the grounds that the compensatory damages awarded by the jury were excessive. Early did not move with regard to the amount of punitive damages. *fn1" However, he did move to dismiss the punitive damages verdict against hint on the grounds that he was not named in his individual capacity as a defendant in the caption of the action or in the complaint, but only in his official capacity as a police officer. Plaintiff opposed all of the above motions, and renewed his motion to amend the pleadings to conform to the proof pursuant to Rule 15(b). Oral argument was held on October 13, 1994. The court reserved decision.

 Thereafter, the defendants made an additional motion. This motion was pursuant to Rule 60(b)(2), (3), and (6), to set aside the verdict and the judgment entered therein, and granting defendants a new trial on the grounds of newly discovered evidence, a fraud committed upon the court, and in the interest of justice. Plaintiff also opposed this motion. The matter was submitted to the court on November 10, 1994, without oral argument. This decision will address all motions.

 B. Trial.

 Viewing the evidence in the light most favorable to the plaintiff as the court must in such motions, McGuigan v. CAE Link Corp., 851 F. Supp. 511, 513 (N.D.N.Y. 1994) (citing Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993)), the following are the trial facts.

 During the evening of Friday, April 29, 1991, plaintiff Joseph Mendoza (age 20 at the time), went to his friend Kevin Williamson's ("Williamson") home at 311 Ridge Street in Rome, New York. A short time later, there was a phone call to the home saying that Williamson was involved in a fight at Hooters, a bar on South George Street, located a few blocks from the Williamson home. The plaintiff left with a group of young men (including two of Williamson's brothers) and walked to Hooters. Upon arriving at Hooters, they observed Williamson in a fight in the middle of South George Street. Plaintiff assisted in breaking up the fight and started to walk away when Williamson got into another fight with another individual. After an unsuccessful attempt to break up the second fight, the plaintiff and the group walked back to 311 Ridge Street and he told Williamson's mother what had happened.

 Meanwhile, members of the Rome Police Department responded to a report of an attempted larceny and assault at Hooters. After interviewing eyewitnesses at Hooters and learning that Williamson may have been involved in the larceny and fight, Early, Boyer, Gowett, and Sgt. Thomas Tharrett ("Sgt. Tharrett") were dispatched to 311 Ridge Street. They also learned at Hooters that the other suspects were six white teenage youths. Williamson was apprehended and placed in Early's patrol car. At this point, the plaintiff was at 311 Ridge Street and observed Williamson in the back of the patrol car. Plaintiff walked out on the porch with Williamson's mother. He then went out to the sidewalk to inquire why Williamson was in the police vehicle. At that point, plaintiff was briefly questioned and placed under arrest, apparently for assault and larceny *fn2" by Early, a Rome Police Department patrolman, who turned him around and slammed him up against the driver's side of the patrol car, striking his right knee on the rear wheel well. Early then slammed him a second time, again striking his right knee. Early applied handcuffs to the plaintiff with his hands behind his back, and pushed him into the back seat of the police vehicle. This caused the plaintiff to strike his head on the top of the door opening. At this point plaintiff was seated in the back seat of the patrol car on the driver's side, next to Williamson. Rome Police Officer Boyer, who was seated on the front passenger side, read plaintiff his Miranda rights. Plaintiff complained that the handcuffs were too tight and Early laughed.

 After about ten minutes, Early, with Boyer in the vehicle, drove plaintiff and Williamson to Hooters. They stopped for about ten to fifteen minutes. A group of people came around the car and identified Williamson as one of the participants in the fight. They also identified a John Clark as a participant, who was in custody in another patrol car. According to the witnesses, plaintiff was not involved in the altercation at Hooters. Thereafter, plaintiff and Williamson were driven to the police station. During the ride, plaintiff complained that the handcuffs were too tight and his knee hurt. Early took plaintiff out of the police vehicle and pushed him into the police station, despite the fact that plaintiff said his right knee was aching and he couldn't keep up. He was taken into a room and one handcuff was removed and attached to a chair. Plaintiff remained at the police station for between one and two hours. Finally his mother came and he was released with no charges ever being placed against him.

 Plaintiff's mother took him directly from the police station to the Rome Hospital where he remained for over an hour. At the hospital emergency room, the swelling on his right knee was checked and he had x-rays, but he received no treatment with regard to bruises on his forehead. The above events occurred on Friday night into early Saturday morning. On Monday his regular physician, Dr. Peter A. Freedman in Utica, examined plaintiff but provided no treatment. The following week plaintiff went to Boston for further reconstructive surgery on his right knee, which had been scheduled for some period of time prior to these incidents.

 The physical injuries that plaintiff sustained included a bruise to his right knee which caused swelling, red marks on his wrists, headaches which required aspirin or other pain killer for a couple of days, and some bruises and marks on his forehead. His wrists and hands were numb for a couple of days. None of the injuries were of a permanent nature. He did not incur any medical expenses or loss of earnings because of these injuries. The previously scheduled reconstructive surgery noted above proceeded as planned, and the disability he presently has because of the condition of his right knee is not related to the fact that he was slammed against the patrol car by Early on the night in question.

 II. Discussion.

 A. Rule 50(b) - Judgment As a Matter of Law.

 The court may grant a motion for judgment as a matter of law on an issue where "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. R. Civ. P. 50. "The standard for granting a motion for judgment n.o.v. pursuant to 50(b) is whether 'the evidence viewed in the light most favorable to the nonmovants without considering credibility or weight, reasonably permits only a conclusion in the movants' favor.'" Jund v. Town of Hempstead, 941 F.2d 1271, 1290 (2d Cir. 1991) (citations omitted); Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993) (judgment n.o.v. standard applies to what the federal rules now refer to as judgment as a matter of law); McGuigan, 851 F. Supp. at 513; Jones v. Lederle Lab., 785 F. Supp. 1123, 1125 (E.D.N.Y. 1992), aff'd, 982 F.2d 63 (2d Cir. 1992). "Judgment n.o.v. is reserved for those rare occasions when there is 'such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result o[f] sheer surmise and conjecture, or the evidence must be so overwhelming that reasonable and fair minded persons could only have reached the opposite result.'" Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992) (citations omitted).

 Stated another way, judgment as a matter of law is proper only if there is "such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against him." Samuels, 992 F.2d at 14. A motion for judgment as a matter of law "should be denied unless, viewed in the light most favorable to the nonmoving party, 'the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.'" Id. (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)).

 1. Defendant Early.

 Early seeks judgment as a matter of law on the false arrest claims *fn3" based upon his probable cause to arrest the plaintiff, and the fellow officer rule. *fn4" Early does not seek judgment as a matter of law with regard to the verdict against him on the state law assault claim. Although Early's notice of motion lists the excessive force claim, he failed to address this issue in his supporting memorandum or oral argument. The jury clearly accepted the evidence at trial that Early used force in slamming plaintiff against the patrol car twice, and in pushing plaintiff into the car causing him to strike his head.

 A police officer is empowered to use only such force as is reasonably necessary to make an arrest. N.Y. Penal Law § 35.30(1)(McKinney 1987). An arresting officer who uses excessive force will be liable for assault and battery. See Jones v. State, 33 N.Y.2d 275, 280, 352 N.Y.S.2d 169, 307 N.E.2d 236 (1973). Thus, the issues of excessiveness of force and assault were strictly questions of fact which the jury resolved against Early based upon legally sufficient evidence, and any motion on these claims is denied. See Fed. R. Civ. P. 50.

 The first issue with regard to the false arrest claims is whether there was "such a complete absence of evidence supporting" the jury's finding that Early did not have probable cause to arrest the plaintiff, that the finding "could only have been the result of sheer surmise and conjecture," or there was "such an overwhelming amount of evidence in favor of [Early] that reasonable and fair minded" jurors could only have found that he had probable cause to arrest. See Samuels, 992 F.2d at 14. There was conflicting evidence as to the circumstances confronting Early at the time of the arrest. He must have had probable cause not only to believe a crime had been committed, but also that the individual in question, in this case the plaintiff, had committed that crime. See Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949); Carroll v. United States, 267 U.S. 132, 161-62, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Collom v. Incorporated Village of Freeport, New York, 691 F. Supp. 637, 640 (E.D.N.Y. 1988).

 Viewing the evidence in a light most favorable to the plaintiff and granting him every reasonable inference that the jury might draw in his favor, sufficient evidence was presented to create an issue of fact for the jury as to probable cause. See Samuels, 992 F.2d at 16. Further, reasonable persons could have concluded from the evidence that probable cause did not exist. See id. at 14. The evidence demonstrates that the only description Early had of the alleged perpetrators was that they were white males in their teens. That description could, of course, account for any number of individuals in the City of Rome. Neither Early nor Sgt. Tharrett, his superior officer, was able to give any further description of the alleged perpetrators of the petit larceny and assault. None of the reports filed at the time of the arrest gave any further details or description. This evidence provides a legally sufficient basis for a reasonable jury to conclude that Early himself did not have probable cause to arrest the plaintiff. See Fed. R. Civ. P. 50.

 The second issue as to the false arrest claims is the fellow officer rule. Under that rule, arresting officers may rely upon information or direction from another officer because the directing officer is presumed to possess probable cause. People v. Rosario, 78 N.Y.2d 583, 588, 578 N.Y.S.2d 454, 585 N.E.2d 766 (1991), cert. denied, U.S. , 112 S. Ct. 1210 (1992); see also Whiteley, 401 U.S. 560 at 568; United States v. Ventresca, 380 U.S. 102, 111, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). "An officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause." Rosario, 78 N.Y.2d at 588. If the warrantless arrest is challenged, however, the presumption of probable cause disappears and the government has the burden "to establish that the officer or agency imparting the information in fact possessed the probable cause to act." Id. (citations omitted) (emphasis added). Furthermore, where the directing officer does not have probable cause, the arrest is unlawful regardless of the good faith of the arresting officer. People v. Jennings, 54 N.Y.2d 518, 523, 446 N.Y.S.2d 229, 430 N.E.2d 1282 (1981); see also Whiteley, 401 U.S. at 568; Rosario, 78 N.Y.2d at 589; cf. Raysor v. Port Auth., 768 F.2d 34, 38 (2d Cir. 1985) (finding that the lower court properly found probable cause lacking where officer made arrest without good faith belief that the order directing the arrest was lawful), cert. denied, 475 U.S. 1027, 89 L. Ed. 2d 337, 106 S. Ct. 1227 (1986).

 Although Early testified that he had his own probable cause for making the arrest, defendants argue that he was entitled to rely solely upon the directions of his superior officer, Sgt. Tharrett, to make the arrest. Conflicting evidence regarding the circumstances of the arrest was presented. Under the version of the facts given by the plaintiff and his witnesses, the arrest was made by Early without any directions being given by Sgt. Tharrett. In fact, according to the plaintiff, Sgt. Tharrett was not even present at the time of the arrest. Although this version of the events was contradicted by the defendants, the jury accepted the plaintiff's version of the circumstances surrounding the arrest.

 In addition, viewing the evidence in the light most favorable to the plaintiff, Sgt. Tharrett had no more probable cause to arrest the plaintiff than did Early. If Sgt. Tharrett ordered Early to make the arrest of plaintiff, it was based upon general descriptions of the perpetrators involving events of alleged petit larceny and assault given to him by witnesses. He had no more specific or additional information or description to link the plaintiff to any crime than did Early, and the jury quite properly rejected the claim that either officer had probable cause to arrest the plaintiff. Merely to state in a conclusory fashion after the fact, that the plaintiff matched the description given by bystanders is not sufficient. See People v. Brnja, 50 N.Y.2d 366, 373 n.4, 429 N.Y.S.2d 173, 406 N.E.2d 1066 (1980) (cannot rely upon fellow officer rule where no indication that information possessed by directing officer was transmitted to arresting officer).

 Although the issue is whether or not Early had probable cause to arrest the plaintiff at the time of the arrest, subsequent events clearly demonstrated that he had made a mistake, that the plaintiff had committed no crime, and that in fact, no eye witnesses at the scene ever described or identified plaintiff as having done so. Vague descriptions of white teenagers can not justify the arrest and manhandling of someone who just happened to be in the vicinity of the home of an admitted perpetrator of a crime. Therefore, Early's motion for judgment as a matter of law pursuant to Rule 50(b) must be denied.

 2. Defendant City of Rome.

 The defendant City of Rome has moved to dismiss that portion of the verdict awarded to plaintiff based upon federal claims that the City's pattern, policies, or practices of failing to properly supervise and train its police officers, resulted in the violation of plaintiff's constitutional rights.

 "Congress intended municipalities and other local government entities to be included among those persons to whom § 1983 applies." Collins v. City of Harker Heights, Tex., 503 U.S. 115, 112 S. Ct. 1061, 1066, 117 L. Ed. 2d 261 (1992). Yet, "a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." Canton v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989).

Therefore . . . a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

 Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 "Proper analysis requires us to separate two different issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for ...

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