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April 6, 1998


William C. Conner, Senior United States District Judge.

The opinion of the court was delivered by: CONNER


Conner, Senior D.J.

 Plaintiff Margery Singleton ("plaintiff"), the grandmother of Jason Singleton ("Singleton") and the administratrix of his estate, brought this action for personal injury, wrongful death, and civil rights violations against defendants the City of Newburgh (the "City"), the City of Newburgh Police Department (the "Department"), Officers Barry Corcoran ("Corcoran"), Henry Seibel ("Seibel"), Donald Montroy ("Montroy") and Michael Vasquez ("Vasquez"). Defendants now move for summary judgment under Fed. R. Civ. P. 56. For the reasons discussed below, defendants' motion is granted in part and denied in part.


 On May 24, 1994 at approximately 3 p.m., Singleton was taken into custody by Newburgh police officers Seibel and Vasquez for allegedly beating his girlfriend, Aida Romero ("Romero"), with a broomstick. The officers transported Singleton and Romero to the station in separate patrol cars. Officer Seibel then brought Singleton into the booking room and directed him to empty his pockets. Singleton was not searched or charged. Officer Seibel then escorted Singleton to a holding cell, known as the "fish bowl," and locked the door. Prior to detaining Singleton, Seibel had removed all trash from the cell.

 At approximately 4 p.m., Officer Corcoran saw Singleton in the fish bowl, jumping up and down and holding his groin, as if he had to urinate. Seibel opened the door to the cell, and informed Singleton that he was being charged with second degree assault and would have to be strip-searched before he would be permitted to use the bathroom. According to Corcoran and Seibel, Singleton mumbled something unintelligible in response. The officers then asked Singleton to open his mouth. Singleton refused. The officers concluded that Singleton was secreting contraband in his mouth.

 The parties disagree over what happened next. According to defendants, upon being told to open his mouth, Singleton began to chew and swallow. After ordering him repeatedly to open his mouth, Officer Corcoran grabbed Singleton's arm with his left hand and placed the web of his right hand above Singleton's Adam's apple, to prevent him from swallowing.

 Defendants claim that at the same time, Officer Seibel wrapped his arms around Singleton's torso to perform the Heimlich maneuver. Seibel has testified that he performed the Heimlich maneuver in order to get Singleton to expel whatever he had been secreting in his mouth. Defendants maintain that at the time, Singleton was struggling with the officers, and Corcoran claims that Singleton was "thrashing about."

 Officer Montroy, who was sitting in the booking room, saw a struggle occurring in the fish bowl. He ran to the cell and observed that Singleton was covering his mouth with his hands. Like Corcoran and Seibel, he concluded that Singleton was secreting contraband. Montroy claims that he tried unsuccessfully to pull Singleton's hands from his face and ultimately discharged a stream of Oleoresin Capsicum, or "pepper spray," to induce Singleton to cough. The stream ricocheted off Singleton's hands, and hit Corcoran in the eyes, causing Corcoran to release his hand from Singleton's throat.

 Officer Vasquez, who was sitting in the communications room, heard Corcoran scream. Vasquez ran to the booking room, where he observed a struggle occurring and signaled Officer Gil to cover his post. He then entered the cell and tried to remove Singleton's hands from his face.

 Shortly thereafter, Singleton fell to the floor, "gasping," "gurgling," and "convulsing." At some point, Singleton became unconscious, but the officers maintain that he had remained conscious the entire time he was standing. Officers Seibel and Montroy then administered first aid. Officer Gil called Mobile Life Support Services, which rendered further medical assistance. Mobile Life determined that Singleton's airway was full of blood and vomit. Singleton was then taken to St. Luke's Hospital, where he was pronounced dead.

 Meanwhile, Officer Seibel searched the fish bowl and recovered a wet plastic bag, which appeared to have been chewed, containing a rock-like substance, later identified as crack cocaine. Officer Vasquez searched the back of the patrol car, where he found three small rocks, also identified as crack cocaine.

 The autopsy report revealed 13 micrograms per milliliter of cocaine in Singleton's blood, and the reporting pathologist stated that the immediate cause of death was "acute cocaine poisoning."

 The Orange County District Attorney's Office (the "DA's Office"), with the assistance of the Federal Bureau of Investigation ("FBI"), the Orange County Probation Department and the Department, conducted an investigation. Twenty-three people were interviewed and sworn statements were taken from each officer defendant. The DA's Office then issued a report, which concluded that Singleton "died as a result of . . . voluntary ingestion of a lethal amount of cocaine" and that Singleton's injuries were "consistent with the accounts . . . furnished by the police and . . . were not associated with the cause of death."

 After the DA's Office had concluded its investigation, Police Chief Bloom contacted various municipal and state agencies to determine if there existed a procedure for retrieving orally secreted contraband. According to Bloom, no office was aware of any such procedure and, prior to Singleton's death, the City had never considered implementing such a procedure, because no officer had ever encountered a suspect who refused to open his mouth after having orally secreted a foreign object.

 Plaintiff presents a different version of the events. According to plaintiff, on May 24, 1994, Officers Seibel, Corcoran, Montroy and Vasquez "seized . . . Singleton, physically assaulted [him], sprayed [him] with chemicals, choked [him] so as to obstruct his airway, and subjected [him] to unreasonable, excessive and life threatening force. . . :" Cplt. at P 16. Though plaintiff does not claim that Singleton complied with the officers' instructions, she does submit that Singleton "never . . . attempted to . . . [cause the officers] any physical harm . . . or escape . . . their grasp." Pl.'s 56.1 Stmt. at P 6. Plaintiff attributes Singleton's death to "excessive and unreasonable force used by the defendants." Cplt. at P 17. She proffers a report of the New York State Department of Corrections, Medical Review Board, which determined that the cause of Singleton's death was neck compression and classified the death as a "homicide." Pl.'s Ex. G at 2. Additionally, plaintiff offers the opinion of Randall Paul McCauley, Professor of Criminology at the Indiana University of Pennsylvania, that the degree of force used by Officer Corcoran was excessive. See Pl.'s Ex. E at 3-4.

 Plaintiff filed a notice of claim on August 8, 1994 against the City and the Department for wrongful death and the deprivation of Singleton's "constitutional rights." The notice asserted claims for "wrongful death, abuse of authority, unnecessary use of police force, [and] racial discrimination" by police officers against Singleton, on account of the City and Department's "negligence and professional misconduct." Pl.'s Ex. A at 1, 3. Plaintiff brought this action on January 16, 1996, alleging that Singleton had "sustained injury, pain and suffering, mental anguish, humiliation, death and [the] deprivation of civil and constitutional rights" as a result of the City and Department's negligence. See Pl.'s Ex. C.


 I. Summary Judgment Standard

 Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). A disputed fact is material if, based on that fact, a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Thus, on a motion for summary judgment, all evidence must be viewed, and all inferences drawn, in the light most favorable to the nonmoving party. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Id. at 37. The role of the court on a motion for summary judgment is not to try issues of ...

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