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BARNETT v. DILLON

June 20, 1995

ARTHUR BARNETT; MARY BARNETT; ROBERT L. PERRY; DEBRA PALMER; LESTER BROWN, Plaintiffs,
v.
EDWARD JOHN DILLON; GREGG DELUCA; VILLAGE OF HERKIMER; VILLAGE OF HERKIMER POLICE DEPT.; COUNTY OF HERKIMER, NEW YORK; JOHN DOE; JANE DOE, Defendants.



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

 This matter is before the court pursuant to various motions filed by all parties, as outlined below. Oral arguments were heard on April 20, and May 25, 1995. The court granted defendant Dillon's motion to vacate the entry of default, and reserved decision on the remaining motions.

 FACTS

 These civil rights actions arose from the arrest and indictment of the plaintiffs herein, allegedly based upon information and testimony from the defendant Edward John Dillon. Dillon was a Village of Herkimer ("Village") police officer at the time of plaintiffs' arrests.

 Sometime in the late 1980's the then-district attorney of Herkimer County ("County") Patrick Kirk developed a "concept," which he used as the basis for application for federal grant monies. The federal grant was to be used to aid local municipalities in the County to increase drug enforcement. As the federal grant application required a name, Kirk termed his concept as the "Herkimer County Drug Task Force" ("Task Force").

 DISCUSSION

 I. Defendants' Summary Judgment Motions & Motion to Dismiss

 A. Summary Judgment Standard

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994)(citations omitted).

 B. County of Herkimer

 The plaintiffs' claims against the County are based upon a policy of the County, specifically the lack of training and supervision of Dillon while he was a "member" of the Task Force. A § 1983 claim against a local government entity may be based upon a pattern, policy or practice of failure to train its employees. Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993); Mendoza v. City of Rome, 872 F. Supp. 1110, 1117 (N.D.N.Y. 1994); see also Monell v. Department of Social Servs. of New York, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (municipality may be liable under § 1983 only where official policy Causes the Constitutional violation). Such a policy may be inferred from circumstantial evidence; however, recitation of a single incident is generally insufficient to raise an inference. Dwares, 985 F.2d at 100; Mendoza, 872 F. Supp. at 1117.

 Here the plaintiffs rely upon Dillon's connection with the Task Force, and in turn the Task Force's Connection with the County, in their claims. Plaintiffs allege that the Task Force was a County entity. However, the Task Force had no stationery and no bank account. Further, the plaintiffs have put forth no solid evidence that the Task Force existed as an entity. On the other hand, the County put forth the sworn testimony of the County Attorney and the then-District Attorney, that the County never officially established the Task Force as an entity. Finally, no persons were employed and paid by the Task Force or the County. Rather, federal grant money received by the County was used to reimburse localities for expenditures in ...


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