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MORRISSEY v. CITY OF NEW YORK

May 2, 1997

STEPHEN MORRISSEY and DONNA MORRISSEY, Plaintiffs, against THE CITY OF NEW YORK, NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, ROBERT M. MORGENTHAU in his official capacity as District Attorney of New York County, WILLIAM BURMEISTER, in his official capacity as Assistant District Attorney, THE NEW YORK CITY POLICE DEPARTMENT, WILLIAM J. BRATTON, in his official capacity as Commissioner of the NEW YORK CITY POLICE DEPARTMENT, WALTER J. MACK, in his official position as Chief of the Internal Affairs Bureau of the NEW YORK CITY POLICE DEPARTMENT, JORGE ALVAREZ, individually and in his official capacity as a police officer of the NEW YORK CITY POLICE DEPARTMENT, Defendants.


The opinion of the court was delivered by: MOTLEY

 Defendants have moved for summary judgment on plaintiff's only federal claim in this action, a violation of 42 U.S.C. § 1983. Because the court agrees with defendants that there is no genuine issue of material fact as to defendants' use of a "custom or policy" that caused the alleged deprivation of plaintiff's Fourth Amendment rights, this motion is granted.

 BACKGROUND

 Plaintiff Stephen Morrissey is a police officer who was in the New York Police Department's ("NYPD") 30th precinct during the investigation into its corrupt practices. During these investigations, defendant New York District Attorney's Office ("District Attorney") in conjunction with the Internal Affairs Bureau ("IAB") of defendant NYPD, would identify members of the police force who had been guilty of wrongdoing, arrest them and offer them what was known as a "cooperation agreement." Under the terms of the agreement, the officers would aid in the prosecution of other members of the NYPD by agreeing to become "cooperators," in return for which they would have their ultimate punishments reduced. As cooperators, the officers were required to wear tape recording devices and gather evidence of wrongdoing by other members of the precinct. In addition, the cooperators were expected to testify against officers against whom they had gathered information.

 Plaintiff alleges that defendant Alvarez deprived him of his Fourth and Fifth Amendment rights in violation of 42 U.S.C. § 1983 by shooting him. Plaintiff also claims that defendants City of New York, NYPD, the District Attorney, and the individuals in charge of these agencies, acting in their official capacities, have exhibited deliberate indifference to the rights of persons like plaintiff by engaging in a policy of inadequately training and supervising cooperators from the 30th precinct. Plaintiff claims that these individuals were put under a great deal of stress by cooperating with the LAB and informing on their fellow police officers and that defendants recognized the existence of such stress and yet failed to train and supervise the cooperators properly. Plaintiff also raises a litany of state law claims and seeks $ 1,000,000 in compensatory damages, $ 1,000,000 in punitive damages, and attorney's fees.

 On February 4, 1997, defendants District Attorney, Robert Morgenthau, and William Burmeister moved to dismiss the case as against them and also moved for summary judgment on plaintiff's § 1983 claim. The balance of the defendants later joined in the motion for summary judgment. These defendants had also previously filed a motion to amend the caption, several motions in limine, and a motion to dismiss the case against the NYPD because it is a not a suable entity. Because the court grants the motion for summary judgment and thereby dismisses the case, none of the many other motions fully pending before the court are addressed.

 DISCUSSION

 I. Summary Judgment Generally

 "Uncertainty as to the true state of any material fact defeats [a summary judgment] motion." Gibson v. American Broadcasting Coms., 892 F.2d 1128, 1132 (2d Cir. 1989). It is not the role of the trial court to weigh the evidence presented or to resolve any factual issue, but rather it is the court's job to determine whether, after the parties have conducted adequate discovery, any such issues remain to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Fed. R. Civ. P. 56(c). A factual issue is unresolved if a reasonable factfinder could determine it in favor of either party. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511; Gibson, 892 F.2d at 1132. Moreover, the court must view the inferences to be drawn from the facts in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987). The non-moving party may defeat the motion for summary judgment by producing sufficient facts to establish a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). "The non-moving party may not rest on the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided [in F.R.C.P. 56], must set forth sufficient facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e); accord Anderson, 477 U.S. at 256-57, 106 S. Ct. at 2514; Adickes v. H.K. Kress & Co., 398 U.S. 144, 159 n. 20, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970)(indicating that the last two sentences of Rule 56(e) were added to prevent a party from relying solely upon its pleading in resisting a motion for summary judgment).

 Defendants have moved for summary judgment on several grounds: (1) that defendant Alvarez was not acting under color of state law, (2) that the shooting of plaintiff by defendant Alvarez was accidental and therefore there could be no recovery under § 1983 pursuant to the Second Circuit's holding in Dodd v. City of Norwich, 827 F.2d 1, 7-8 (2d Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 701, 98 L. Ed. 2d 653 (1988), and (3) that plaintiffs have failed to raise a genuine issue of material fact as to defendants' employment of a policy or custom of inadequately training and supervising cooperating police officers. The court addresses only the final issue, because it is quite clear that summary judgment should be granted on this basis alone.

 II. Municipal Liability under 42 U.S.C. § 1983

 42 U.S.C. § 1983 (West 1996) reads in relevant part:

 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party ...

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