See Williams, 781 F.2d at 323-24.
III. Elements of Municipal Liability
Conduct by a non-policy making municipal employee may serve as a predicate for § 1983 liability where the plaintiff demonstrates that the employee
violated his constitutional rights pursuant to a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690; Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991); Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986), cert. denied, 480 U.S. 920 (1987).
A plaintiff bringing a § 1983 claim must show that his constitutional rights were violated as a result of the municipal custom or policy, Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). He need not demonstrate that the custom or policy was adopted in a municipal rule or regulation. See Villante v. Department of Corrections of the City of New York, 786 F.2d 516, 519 (2d Cir. 1986); Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870-71 (1992); Covington v. City of New York, 916 F. Supp. 282, 288 (S.D.N.Y. 1996). A persistent practice that is well-settled, even though not officially recognized, may be sufficient to constitute a custom. Sorlucco, 971 F.2d at 870-71.
Alternatively, a policy or custom "may be inferred from acts or omissions of the municipality's supervisory officials serious enough to amount to gross negligence or deliberate indifference to the constitutional rights of the plaintiff." Villante v. Department of Corrections of New York, 786 F.2d 516, 519 (2d Cir. 1986); see Dwares, 985 F.2d at 100 ("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 deliberate indifference to the constitutional rights of those within its jurisdiction"); Ricciuti, 941 F.2d at 123; Sorlucco, 971 F.2d at 870-71; Fiacco, 783 F.2d at 326, 328 ("whether or not the claims had validity, the very assertion of a number of such claims put the City on notice that there was a possibility that its police offices had used excessive force"). Lastly, municipal liability may be based upon "municipal supervisors' knowing acquiescence in the unconstitutional behavior of their subordinates." Villante, 786 F.2d at 519; Krulik Board of Educ., 781 F.2d 15, 23 (2d Cir. 1986). A supervisor's knowledge of such conduct "may be inferred from a persistent violation of a statutory duty to inquire about the unconstitutional behavior of their subordinates and a failure to prevent the unconstitutional acts." Thomas v. New York City, 814 F. Supp. 1139, 1151 (E.D.N.Y. 199) (citing Villante, 786 F.2d at 519).
A. No Deprivation of a Constitutional Right
The plaintiff must first prove the deprivation of a constitutional right. Monell, 436 U.S. at 694. § 1983 recovery is not authorized against a municipality "when in fact . . . the officer inflicted no constitutional harm." Ella v. Jackson, 1996 U.S. Dist. LEXIS 17258, at *8, 1996 WL 673819, at *3 (S.D.N.Y. Nov. 20, 1996) (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986) (per curiam)); Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994).
In this § 1983 action, plaintiff seeks to recover damages for misconduct which consists of (1) slamming his hands on the computer keyboard; (2) stabbing with a pen in the back; (3) attacking him while entering NCDSS; (4) implanting voodoo in his mind. Mr. O'Neal claims that these acts show a Departmental-wide conspiracy of physical and mental abuse.
1. Failure to Prove the Deprivation of a Constitutional Right
There is no credible evidence of physical attacks by the NCDSS supervisors, or of any conspiracy by county employees to cause the plaintiff physical or mental harm. The plaintiff, who was the sole plaintiff's witness at the trial, testified that he has undergone psychiatric treatment and is taking medication to control his delusional thinking.
The County of Nassau called three witnesses; Thomas Leonard, Doris Casseus, and Helen Jackson, long-term NCDSS supervisory employees, who denied attacking or mentally abusing Mr. O'Neal. The court fully credits the testimony of these witnesses. The supervisors testified that the plaintiff has received favorable performance evaluations prior to September 1992, but that Mr. O'Neal's demeanor and work performance thereafter rapidly deteriorated until his eventual discharge in May 1994. They further testified that Mr. O'Neal was a disruptive employee, and that he was uncooperative, difficult to supervise, and feared by the other employees within the department.
It is clear from the evidence introduced by the County of Nassau that NCDSS supervisors did not physically or mentally harm the plaintiff. The plaintiff is someone who suffers from mental illness who, as a County employee, engaged in bizarre and inappropriate behavior, and suffers from hallucinations. The plaintiff has failed to establish the deprivation of a constitutional right.
2. No Evidence of a Conspiracy to Deprive the Plaintiff of His Constitutional Rights or Privileges
The plaintiff also alleges that data entry supervisors and other employees of the defendant Nassau County conspired to interfere with his civil rights pursuant to 42 U.S.C. § 1985.
In order to state a civil rights conspiracy under § 1985, the plaintiff must prove: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of a constitutional right. See United Brotherhood of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 829-30, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983); Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Gray v. Town of Darien, 927 F.2d 69, 72 (2d Cir. 1991).
To succeed on a conspiracy claim against municipal employees, the plaintiff must allege more than conclusory, vague, or general allegations. Spear v. Town of West Hempstead, 954 F.2d 63, 68 (2d Cir.), cert. denied, 506 U.S. 819, 113 S. Ct. 66, 121 L. Ed. 2d 33 (1992); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988). The Second Circuit has repeatedly held that the plaintiff should provide at least some details of circumstances and effect of the alleged conspiracy." Dwares, 985 F.2d at 99-100 (citing 2A Moore's Federal Practice P 8.17, at 8-109 to 8-110 (2d ed. 1992)); Salahuddin, 861 F.2d at 43; Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam). "Diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Ostrer, 567 F.2d at 553. The complaint here is devoid of any facts to support the conclusory claim.
Plaintiff testified that he first became aware of a conspiracy in early 1992 after Supervisor Joan Campbell informed him that he was "not welcome" in NCDSS. He also testified that NCDSS did not prevent his co-workers and colleagues from physically and mentally abusing him. The plaintiff offered no additional evidence in support of his conspiracy claim. The court does not credit this testimony. The plaintiff has failed to establish any of the elements of a § 1985 conspiracy.
Accordingly, I find that the plaintiff failed to establish that NCDSS officials conspired to deprive him of his civil rights.
For the foregoing reasons, the court finds that the plaintiff has failed to establish that the defendant municipality (1) violated of his civil rights pursuant to 42 U.S.C. § 1983 or (2) conspired to interfere with his civil rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1985.
The clerk is directed to enter a judgment in favor of the defendant dismissing the complaint.
Dated: Uniondale, New York
January 16, 1997
E. THOMAS BOYLE
United States Magistrate Judge