Brown, U.S. at , 1997 U.S. LEXIS 2793, 1997 WL at p.8 (emphasis supplied).
In Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), the Second Circuit created a three prong test to determine whether or not a municipality's failure to train or supervise constitutes "deliberate indifference." Id. at 297. First, the plaintiff must show that municipal policymakers know "to a moral certainty" that their employees will confront a given situation. Id. Secondly, the situation with which the employee is presented must be a difficult one that training or supervision may make less difficult or, alternatively, there is a history of employees mishandling the situation. Id. Thus, for example, training police officers in how to apprehend a fleeing felon would be a "difficult choice" since an officer would not know how to conduct himself in a constitutional manner without proper training. Id. On the other hand, a municipality does not need to train officers not to commit perjury in court
, since it is obvious to anyone that perjury is not the type of activity in which officers of the law should be engaged. Id. at 299-300. Finally, a municipality cannot be found to show "deliberate indifference" to the rights of citizens unless the failure of an employee to make the proper choice in the situation alluded to above will frequently result in the deprivation of constitutional rights. Id. at 298.
Of course, as both the text of § 1983 as well as Supreme Court precedent make clear, even if a party can successfully demonstrate that a municipality has a custom or policy of inadequate training or supervision, it still must show that this inadequate training or supervision "caused" plaintiffs injury. If the connection between the alleged injury and the failure to train or supervise is tenuous or non-existent, no liability will attach. 42 U.S.C. § 1983 (West 1996); City of Canton, 489 U.S. at 391; 109 S. Ct. at 1206 ("For liability to attach . . . the identified deficiency in a city's training program must be closely related to the ultimate injury. . . . Respondent must prove that the deficiency in training actually caused the [injury]. . . . To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983.") See also Brown, U.S. at , 1997 U.S. LEXIS 2793, 1997 WL at p.4 ("The plaintiff [in a § 1983 action] must . . . demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must . . . demonstrate a direct causal link between the municipal action and the deprivation of federal rights.") Thus, in Brown, the Court held that the mere failure of a municipal policymaker to adequately screen the record of a police officer when hiring him would not subject a municipality to liability under § 1983 unless the officer's subsequent deprivation of the constitutional rights of another person "was a plainly obvious consequence of the hiring decision." Id. at p.8.
III. Plaintiff's Failure to Raise a Genuine Issue of Material Fact
Plaintiff has failed to survive summary judgment on his claim of failure to train or supervise because (1) he has no evidence which demonstrates that the municipality exhibited a "deliberate indifference" to the constitutional rights of plaintiff and others like him, and (2) there is no causal link between plaintiff's injury and any alleged deficiency in the municipality's training or supervision program.
A. Failure to Present of "Deliberate Indifference"
In this case, plaintiff's injury resulted from the action of a single, nonpolicymaking officer, defendant Jorge Alvarez. Moreover, he has failed to introduce evidence of wrongdoing by other cooperators that could have been prevented by adequate training and supervision
Thus, under Brown, he can only recover if he can show that the possibility that a cooperator would deprive a person like plaintiff of his constitutional rights was so "highly predictable" that it reflected a conscious disregard on the part of the municipality to this deprivation. Brown, U.S. , 1997 U.S. LEXIS 2793, 1997 WL at p.8.
While there is certainly a genuine issue of material fact as to whether a failure to supervise cooperators could conceivably lead to a deprivation similar to that which plaintiff allegedly suffered, it is clear that such a deprivation is not "highly predictable." There can be little doubt that cooperators are under some stress, but it cannot be said that such stress is in any way closely linked to the arbitrary shooting of other individuals. This is particularly so where defendants already had a policy of not permitting officers known for violent behavior to become cooperators (Melendez Aff. P6).
Moreover, plaintiff is unable to meet all of the requirements necessary to establish municipal liability under Walker. Even assuming that plaintiff is able to meet the first requirement that a policymaker knows "to a moral certainty" that her employees will confront a given situation, Walker, 974 F.2d at 297, plaintiffs have failed to create a genuine issue of material fact with regard to the requirement that the employees be faced with a difficult choice made easier by adequate supervision and training.
Inasmuch as the failure to train is concerned, plaintiffs position is entirely incoherent. Plaintiff has not argued that defendant Alvarez was poorly trained as a police officer, but that he was poorly trained as a cooperator. Thus, plaintiff is suggesting that defendants should have told defendant Alvarez that he might encounter stress in connection with his role as a cooperator and that he should not attempt to release his stress by shooting fellow officers. This is quite clearly not a choice for which defendant Alvarez needed to be trained because it is not a "difficult" one as defined by the Second Circuit. See id. at 297. It is perfectly obvious to anyone that shooting people to relieve stress is not a proper course of action.
Of course, the same cannot be said of a failure to supervise claim. While training an officer not to shoot other officers may not be particularly useful, supervising him while he is in a situation generally acknowledged as stressful could prevent him from making choices which might deprive others of their constitutional rights.
However, in this case, as was mentioned above, there is a great deal of evidence that such supervision was undertaken. Defendants have shown that potential informants with "propensities for violence" were rejected by the Task Force responsible for the investigation of corruption in the 30th Precinct (Melendez Aff. P6). They have also shown that those responsible for handling the cooperating officers were instructed that, because the cooperators were under some level of stress, they should monitor them closely and report any signs of stress (Belfiore Dep. pp. 143-44).
Plaintiff has proffered nothing other than conclusory allegations to rebut these claims. He has offered no evidence of any kind which establishes a pervasive failure of the police department to supervise cooperators generally, relying instead on the simple allegation that the supervision was "inadequate." Plaintiff does not even provide the court with any indication of what he would expect proper supervision to be, nor does he state exactly what "choice" municipal policymakers made in their supervision of cooperators that induced the cooperators to take actions which deprived others of their constitutional rights. See City of Canton, 489 U.S. at 389, 109 S. Ct. at 1205 ("Municipal liability under § 1983 attaches where--and only where--a deliberate choice to follow a course of action is made from various alternatives by city policymakers."); Ferreira v. Westchester County, 917 F. Supp. 209, 216 (S.D.N.Y. 1996) ("Plaintiffs must do more than show the need for training on this issue; they must show how a particular policymaker's specific choice with respect to the training deficiency at issue reflects deliberate indifference to their constitutional rights. . . .") Thus, in light of defendant's submissions, more than unfounded allegations must be put forward to establish that the supervision was inadequate and that further supervision would have prevented cooperators from making difficult choices that would deprive persons like plaintiff of constitutional rights.
Secondly, even if it could be argued that there was a pervasive failure on the part of defendants to train or supervise cooperators adequately, plaintiff has failed to show how this failure "caused" his injury. Plaintiff himself admits that defendant Alvarez did not display any overt signs of stress (Morrissey Dep. pp. 206-12), and, despite plaintiffs unfounded allegations to the contrary, it appears as if defendant Alvarez was not known in the police force for violent behavior. Prior to his involvement in the corruption which pervaded the 30th Precinct, when he started to steal money and narcotics, defendant Alvarez had only been disciplined once, for failing to respond properly in connection with an abandoned car he had seen while on patrol (Alvarez Dep. pp. 13, 14-19). While the offenses regarding the stealing of narcotics hardly make defendant Alvarez a model citizen, they do not indicate that he possesses a penchant for violence.
Moreover, after defendant Alvarez' wife reported that he was under some stress, two investigators went to speak with him personally to determine whether or not he was fit to continue as a cooperator (Belfiore Dep. p. 144). They determined that he was, and, until the shooting, defendant Alvarez exhibited no other symptoms of abnormal behavior (Belfiore Dep. 145-46). Clearly more than this would need to be shown before it could be said that defendants alleged inadequate supervision of plaintiff was the "moving force" behind the alleged constitutional violation ultimately inflicted. See Brown, U.S. at , 1997 U.S. LEXIS 2793, 1997 WL at p. 5.
In short, even if the court were to assume that there was a pervasive failure by defendants to train and supervise their officers properly, no liability could attach to their conduct in this instance because even an extraordinary amount of supervision could not have prevented the shooting of plaintiff.
For the reasons provided above, the court grants defendant summary judgment on plaintiffs claim arising under 42 U.S.C. § 1983. Furthermore, the court declines the exercise of jurisdiction over the state law claims and dismisses those claims from this forum.
Dated: May 2, 1997
New York, N.Y.
Constance Baker Motley
United States District Judge