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December 16, 1996

JAMES A. DILL, a/k/a Edward Dill, and DANIEL P. DILL, Plaintiffs,

The opinion of the court was delivered by: HECKMAN



 This case has been referred to the undersigned by Hon. William M. Skretny pursuant to 28 U.S.C. § 636(b) for pretrial matters and to hear and report on dispositive motions. All defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the Village of Gowanda defendants have moved for an award of attorney's fees. Plaintiffs have not responded to defendants' motions. For the following reasons, defendants' summary judgment motions should be granted. The Gowanda defendants' attorney's fee application is denied without prejudice.


 The original complaint in this case was filed on May 26, 1995 by the pro se plaintiffs, James A. Dill and Daniel P. Dill. Upon the court's grant of leave (see Item 21), an amended complaint was filed on February 14, 1996 (Item 11). Plaintiffs allege that on May 19, 1995 they were stopped in their vehicle by New York State Department of Environmental Conservation ("DEC") Officer Jeffrey Rupp and Village of Gowanda Police Officer Sam Castellano and detained for over an hour, in violation of their rights under the first, fourth, fifth, ninth and fourteenth amendments to the United States Constitution, and in retaliation for filing a separate federal civil rights action in the Western District of New York on May 10, 1995 (No. 95-CV-368S(H)). Plaintiffs also allege that the Village of Gowanda, the Village of Gowanda Police Department, and Village of Gowanda Mayor and Police Commissioner Donald Lazar (the "Gowanda defendants") are liable for the alleged constitutional violations because they failed to adequately train and supervise their police officers and employees. Plaintiffs further allege that the Village of Gowanda is liable for the alleged constitutional violations because it failed to adequately train and supervise Lazar and Castellano. Plaintiffs seek damages pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988, and under various theories of false imprisonment, invasion of privacy and infliction of emotional distress.

 The following facts are not in dispute. *fn1" On May 19, 1995, DEC Officer Rupp *fn2" observed plaintiff James Dill operating a pickup truck in the Village of Gowanda. Rupp had previously filed charges against James Dill in the Village of Cattaraugus Village Court for various violations of state environmental laws. During his investigation of those matters, Rupp performed a routine computer check of James Dill's motor vehicle record, which indicated that Mr. Dill's New York State operator's license had been suspended. Officer Rupp was also present in Cattaraugus Village Court for Mr. Dill's appearance on May 16, 1995. During that appearance, the presiding Village Justice indicated to Mr. Dill that his license had been suspended for failure to answer a traffic charge pending in that court, and that the suspension was still in effect (Item 33, Statement of Facts, PP 1-6; Item 36, Rupp Aff., PP 5-8;).

 Upon observing Mr. Dill operating the vehicle, Officer Rupp attempted to stop the vehicle by following behind it with flashing lights and siren. Plaintiff did not stop. Officer Castellano, who was on patrol in his police vehicle in the vicinity of the pursuit, heard the sirens and observed the vehicles as they passed. As Castellano approached in his vehicle, Rupp motioned to him for assistance. Castellano pulled in front of Rupp's vehicle and stopped plaintiff's vehicle on the side of the road (Item 36, PP 9-12; Item 39, Castellano Aff., P 3).

 Rupp and Castellano spoke briefly with one another before approaching plaintiff's vehicle. Rupp informed Castellano that he believed James Dill was operating the vehicle with a suspended license. Castellano was also aware of the suspension due to Mr. Dill's failure to answer the traffic charge pending in the Village of Cattaraugus. The officers then approached the plaintiffs' vehicle and observed James Dill in the operator's seat and Daniel Dill in the passenger's seat. Castellano asked James Dill for his license and registration. James Dill produced a license and handed it to Castellano. The officers returned to their respective vehicles, and each officer made a radio call to run a computer check on the license. Both computer checks confirmed that James Dill's license was still suspended (Item 33, PP 7-9; Item 36, PP 13-14; Item 39, PP 4-7).

 Officer Castellano issued James Dill a ticket for aggravated unlicensed operation of a motor vehicle in the third degree in violation of N.Y. Vehicle & Traffic Law § 511.1(a). *fn3" Officer Castellano then asked Daniel Dill for his license to confirm the presence of a licensed driver so that the vehicle could be released and driven from the scene. Daniel Dill produced his license, and Castellano ran a computer check confirming its validity. Castellano returned the license to Daniel Dill and allowed him to drive the vehicle from the scene with James Dill as the passenger. No charges were placed against Daniel Dill, and neither of the plaintiffs were taken into custody (Item 33, PP 10-13; Item 39, PP 8-9).

 On October 17, 1995, James Dill appeared with counsel in Town of Persia Town Court. He entered a plea of guilty to a reduced charge of unlicensed operation of a motor vehicle in violation of N.Y. Vehicle & Traffic Law § 509.1. He was fined $ 100 plus a surcharge of $ 75, which was paid on December 12, 1995 (Item 39, Ex. C).

 Defendant Rupp moves for summary judgment on the following grounds:

 1. Plaintiffs cannot sue for damages under § 1983 for unlawful arrest because the resulting conviction has not been invalidated;

 2. Plaintiffs cannot sue for civil rights conspiracy under § 1985 or failure to prevent conspiracy under § 1986;

 3. Rupp had probable cause to stop plaintiffs' vehicle;

 4. Rupp is entitled to qualified immunity; and

 5. The court should decline to exercise supplemental jurisdiction over plaintiffs' non-federal causes of action (Item 35).

 Defendant Castellano moves for summary judgment on essentially these same grounds, and the Gowanda defendants assert the additional grounds that plaintiffs have failed to adequately plead or prove municipal or supervisory liability under § 1983, that plaintiffs failed to serve a notice of claim, and that punitive damages are unavailable against a municipality. The Gowanda defendants also seek attorney's fees and costs under § 1988 (Item 38).

 These grounds for summary judgment, as well as the Gowanda defendants' request for attorneys' fees, are discussed in turn below.


 I. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. AnnTaylor, Inc., supra, 933 F.2d at 167. Stated slightly differently, "when no rational ...

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