of Bucci to adequately investigate the incident, as per a practice of the City of failing adequately to investigate incidents involving the minority community. The Court will now address these sections seriatim.
1. Allegations against Defendant Police Officers
With respect to the allegation is paragraph II(A)(1), plaintiff clearly does not have standing to assert the constitutional rights of his daughter, who is not a named plaintiff. A plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); see Allen v. Wright, 468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). Nor do allegations II(A)(2)-(3) state a claim, since the defendants' "failure to disperse a gathering crowd" and "failure to maintain order" can in no way be construed as a violation of plaintiff's constitutional rights. Plaintiff's citations in his brief to New York State statutes and case law regarding unlawful assembly, rioting, and inciting to riot are unavailing, since it is well-established that § 1983 does not provide a remedy for official conduct that violates only state law. See generally Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
Furthermore, plaintiff's allegations that the defendant police officers, by their omissions, "enhanced the risk of harm being done to plaintiff," and "allowed a civilian...to make an aggressive action toward plaintiff" do not amount to constitutional violations, since "the constitution is a charter of negative liberties...it does not require...the state to provide services, even so elementary a service as maintaining law and order." Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982); see also McClary v. O'Hare, 786 F.2d 83, 88 (2d Cir. 1986) (constitutional violation generally not found where member of public harmed as result of government official's failure to act).
Paragraph II(A)(4) simply states that "defendants then trespassed on property and used excessive force to force an illegal seizure." This conclusory allegation fails to state a claim of a Fourth Amendment violation. While the federal courts are prohibited from applying a "heightened pleadings standard" to certain § 1983 cases, see Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), complaints based on civil rights statutes must nonetheless include specific allegations of facts showing a violation of rights "instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987). Allegations which are merely broad, simple and conclusory statements fail to state a claim under § 1983. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). While the allegations in paragraph II(A)(4) may state a Fourth Amendment violation in form, they fail to do so in substance, since they "consist of nothing more than naked assertions, and set forth no facts upon which a court could find a violation of the Civil Rights Acts..." Martin v. N.Y. State Dept. of Mental Hygiene, 588 F.2d 371 (2d Cir. 1978) (per curiam).
Paragraph II(A)(2) of the Complaint alleges that, "having gained forcible entry into the plaintiff's apartment and handcuffing plaintiff, defendant Zikuski did stand over and physically assault plaintiff...this use of force was excessive...". Here, the allegations are somewhat more factual, specifying that Zikuski assaulted plaintiff during the course of his arrest. Furthermore, the Complaint may be construed as alleging that Zikuski was acting under color of law. "More is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994). Actions will be taken under color of law, where, as here, a police officer performs the duties generally prescribed for him. Id. ; see also Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975). Plainly, where a police officer is alleged to have used excessive force during the course of an arrest, that action can be said to have been taken under color of law. Cf. Bonsignore v. City of New York, 683 F.2d 635, 639 (2d Cir. 1982) (off duty policeman who shot his wife then turned gun on himself not acting under color of law since actions were not "committed in the performance of any actual or pretended duty.").
In addition, while plaintiff generally alleges Fourth, Eighth, and Fourteenth Amendment violations in the first paragraph of the Complaint, the Court reads the allegations in paragraph II(A)(2) as asserting that Zikuski violated plaintiff's Fourth Amendment rights. "All claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard...". Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). "In determining whether the force used to effect a particular seizure is reasonable, a court must evaluate the particular circumstances of each case." Soares v. Connecticut, 8 F.3d 917, 921 (2d Cir. 1993). Defendants argue that plaintiff fails to state claim of excessive force in part because he has pleaded no resulting injury other than "emotional distress." The fact that a plaintiff's injuries are not severe, or are relatively minor, however, does not foreclose an excessive force claim. See Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987); Smith v. Yonkers Police Dept., 1995 U.S. Dist. LEXIS 11737, 1995 WL 489461 *3 (S.D.N.Y. 1995); see also Davis v. Patrick, 1992 U.S. Dist. LEXIS 10589, 1992 WL 183729 *3 (S.D.N.Y. 1992) ("notwithstanding the relative insignificance of the physical injuries sustained by Plaintiff, these allegations suffice to state a claim under the liberal pleading standards applicable to pro se plaintiffs under Section 1983."). "The inquiry into whether the force used was reasonable is a factual one, and the Court cannot say in the context of a motion to dismiss, as a matter of law that plaintiff could prove no set of facts to sustain [this] claim." Id. Construing the Complaint liberally in plaintiff's favor, then, the Court finds that plaintiff has stated a claim in paragraph II(A)(2) for a violation of his Fourth Amendment rights by Zikuski under color of state law
Plaintiff's last two allegations under paragraph II(A) state no claims of constitutional violations. With respect to paragraph II(A)(7), plaintiff alleges that he was not examined for injuries at the police station despite that fact that he was a diabetic. Since plaintiff was no more than a pre-trial detainee at the time, his claim of failure to provide medical treatment must be analyzed under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Ingraham v. Wright, 430 U.S. 651, 671 & n. 40, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977).
Although a pretrial detainee's due process rights to adequate medical treatment are least as great as the Eight Amendment protections available to prison inmates, the Supreme Court has left unresolved what standard applies. It remains unsettled, in other words, whether a pretrial detainee must meet the "deliberate indifference standard of Estelle or show 'gross negligence' or 'recklessness' or prove conduct not amounting to intentional acts, but that is more than simple negligence to state a claim of a constitutional deprivation under the Due Process Clause.
Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.) (citations omitted), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The Court need not address the proper standard to be applied, however, since plaintiff has not alleged that he even required or requested medical care in the first instance. Nor has plaintiff alleged that he was injured at the time, or that the lack of medical care exacerbated his injuries. Plaintiff merely asserts that he was diabetic, and that the defendants failed to examine him for injuries. These allegations are insufficient to meet even the liberal pleading requirements to which this plaintiff is held. Thus, plaintiff's claim for failure to provide medical care must be dismissed.
With respect to plaintiff's allegations of a conspiracy in paragraphs II(A)(5) and II(A)(8), the Second Circuit has repeatedly held that complaints containing only conclusory, vague, or general allegations of a conspiracy to deprive a person of constitutional rights will be dismissed. Black v. United States, 534 F.2d 524 (2d Cir. 1976); Koch v. Yunich, 533 F.2d 80 (2d Cir. 1976); Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975); cf. Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2d Cir. 1971). Diffuse and expansive allegations are insufficient unless amplified by specific instances of misconduct. See Build of Buffalo v. Sedita, 441 F.2d at 288; Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). Unlike in Build of Buffalo, supra, the plaintiff here has not alleged any specific instances of conduct on the part of any of the defendants. Nor does plaintiff allege which of his constitutional rights were violated by the unspecified defendants' unspecified omissions. Thus, the allegations of a conspiracy in paragraphs II(A)(5) and II(A)(8) fail to state a claim.
2. Allegations Against Defendant Lynch
In paragraph II(B), plaintiff seems to allege that his due process rights were violated by Lynch's "deliberate indifference" to plaintiff's rights. Plaintiff argues that this indifference is further evidenced by Lynch's part "in the conspiracy to effect the promotion of Zikuski to Assistant Police Chief." Plaintiff in no way alleges, nor can the Court discern, which of his constitutional rights conceivably was violated as a result of either Lynch's statements to the media or by Zikuski's promotion. Therefore, these allegations fail to state a claim upon which relief may be granted.
3. Allegations Against the City and Bucci
Finally, plaintiff's claims of failure to train against Bucci and the City must fail. Plaintiff alleges that these defendants are liable for "an incorrect time of arrest given to the officer who was responsible for time calculations for the county...[that] caused the plaintiff to be unduly incarcerated...", and for "the failure of the officers to handle themselves in an objective fashion due to their state of intoxication." (Am. Compl. P II(C)(1)-(2)). As set forth below, these allegations are insufficient to state a claim for municipal liability under § 1983.
A municipality and its supervisory officials may be held liable in a § 1983 action for the conduct of low-level employees only if the plaintiff shows that the alleged constitutional violation "resulted from a municipal custom or policy." Ricciuti v. New York City Transit Authority, 941 F.2d 119, 122 (2d Cir. 1991); see Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). "The inference that such a policy existed may arise from 'circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (quoting Ricciuti, 941 F.2d at 123). Plaintiff alleges only a failure to train on the part of the City and Bucci; he alleges no custom or policy with respect to the miscalculation of the date, or with respect to the officers' alleged intoxication.
The simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy cause the plaintiff's injury. A single incident alleged in a complaint, especially if it involved only actors below the policymaking level will not suffice to raise an inference of the existence of a custom or policy.