The opinion of the court was delivered by: SIRAGUSA
This is a matter in which the plaintiff has alleged six causes of action against the defendants: (1) an excessive force claim pursuant to 42 U.S.C. § 1983 against the individual defendants; (2) an excessive force claim pursuant to 42 U.S.C. § 1983 against the City of Rochester; (3) a false arrest claim pursuant to 42 U.S.C. § 1983 against the individual defendants; (4) a false arrest claim pursuant to 42 U.S.C. § 1983 against the City of Rochester; (5) a malicious prosecution claim pursuant to either New York State law or 42 U.S.C. § 1983 against the individual defendants; and (6) a malicious prosecution claim pursuant to either New York State law or 42 U.S.C. § 1983 against the City of Rochester. The claims against the City of Rochester are premised upon the allegation that the individual officers acted pursuant to the City's policy, custom, usage and/or practice. Before the Court is the defendants' motion for partial summary judgment, seeking the dismissal of the second, fourth, fifth and sixth causes of action. For the reasons that follow, the defendants' application is granted.
On November 26, 1992, the defendant police officers were dispatched to the plaintiff's home to investigate an alleged domestic argument. The parties offer conflicting versions of the events leading to the plaintiff's arrest, however the plaintiff alleges that the four individual defendants beat him without provocation. It is undisputed that the plaintiff was arrested and charged with harassment for allegedly shoving Officer Smith. It is also undisputed that the arresting officers used physical force against the plaintiff during the arrest. On February 9, 1993, the plaintiff received an adjournment in contemplation of dismissal (ACD), and on August 9, 1993, the harassment charge was dismissed.
The plaintiff commenced this action on November 17, 1995. During discovery, the plaintiff obtained various files relating to complaints against Rochester City Police officers for use of excessive force and profanity. The Plaintiff's supplemental interrogatory response stated in relevant part:
INTERROGATORY NO. 8: State the evidence, including all facts and opinions, upon which you rely in support of Plaintiff's claims in the Second, Fourth, and Sixth Causes of Action that the actions of the individual Defendants, as stated in the First, Third, and Fifth Causes of Action, were done pursuant to policy, custom, usage, and/or practice of the City of Rochester and/or that the City ratified the actions of the Defendants.
ANSWER: Plaintiff will rely on all prior complaints, claims and causes of action filed against the individual police officers by citizens who claimed that excessive force and profanity were used against them. Plaintiff will also rely on the fact that Defendant City of Rochester, when it conducted internal investigations, swept such allegations under the rug, by taking the position whenever the citizens produced independent witnesses, that the witnesses were not to be believed and that the officers were to be believed. Plaintiff will also rely on the fact that when one member of the review committee, on one occasion, dared to express an opinion different than those expressed by the City Police Department representatives, letters were written to the Chief of Police, and others complaining about the actions of that individual, and implying that he should not serve on the committee. Plaintiff will also rely on the fact that on the one occasion when an allegation of use of profanity was upheld against two police officers, they did not even receive a slap on the wrist. Because the City had knowledge of the propensities of the individuals to use unnecessary force and profanity, failed to take any corrective action against them, failed to protect citizens from such actions, always, with one known exception, supported the officers and justified their actions, it ratified their actions and allowed them to continue in their custom and practice of using excessive force and profanity, and made it the policy of the City to allow such actions.
The defendants' filed the subject motion on May 29, 1998. The defendants contend that they are entitled to summary judgment on the malicious prosecution claims, the fifth and sixth causes of action, on the grounds that inasmuch as the plaintiff received an adjournment in contemplation of dismissal, he cannot establish that the prosecution was terminated in his favor. The defendants also seek summary judgment as to the remaining claims against the City of Rochester, the second and fourth causes of action, on the grounds that the plaintiff cannot establish that the alleged constitutional violations were committed pursuant to a City policy, custom, usage and/or practice.
In response to the defendants' motion, the plaintiff concedes that his malicious prosecution claims must be dismissed. However, he maintains that the aforementioned police "internal affairs" files raise a triable issue of fact as to whether or not the City has a policy or custom of condoning constitutional violations of the kind complained of herein. As proof of this, the plaintiff has submitted selected portions of two internal affairs files pertaining to two separate complaints of excessive force against Officer MacFall.
The first complaint involves MacFall's alleged use of excessive force against a suspect named James McClain on the night of January 11, 1995. Mr. McClain was at the time driving a car which had been reported as having been involved in an alleged menacing with a pistol earlier in the evening. Shortly before Mr. McClain was stopped, police had also received a report of shots being fired in the area where he was driving. Officers attempted to pull over McClain's car, however McClain continued to drive to his home. When McClain stopped his car, officers ordered him to slowly exit the car and lie down on the ground, keeping his hands in plain sight. Mr. McClain admitted that he did not immediately comply with the officers' orders to lie down, because there was a puddle of snow and water on the driveway. In a written statement, McClain's fiancee stated that "James was taking his time to get down, because of a puddle on the ground." When McClain did not lie down, officers tackled him to the ground and placed him in handcuffs. McClain claimed that while he was on the ground, officers struck him in the back of the head several times with a flashlight and grabbed his hair and smashed his head against the pavement. McClain's fiancee also stated that officers had struck him in the head with a flashlight, however she said nothing about any officer smashing McClain's head against the pavement. The internal affairs report stated that after the arrest, McClain was examined by a doctor at the Rochester General Hospital Emergency Room, who found that McClain had a superficial bruise over his right eye, but no other injuries. During the months that followed the arrest, the officer investigating McClain's complaint took statements from several neighbors and other persons who witnessed the arrest. One of the civilian witnesses to the arrest stated, "in my opinion, not a lot of force was used on this guy and he definitely was not complying with the officers' commands." Another civilian witness to the arrest stated that she saw one officer kneeling on McClain's back while he was on the ground, but that "I didn't see any other officer touch, hit, kick or push [McClain]. I didn't see any officer push [McClain's] head down or hit the guy in the head." Officer MacFall was exonerated of using excessive force.
The second complaint involves the alleged use of excessive force by MacFall, and several other officers not parties to this action, during the arrest of Arthur Miller on May 29, 1995. At that time, the officers were attempting to arrest Mr. Miller pursuant to a warrant. Mr. Miller was apparently hiding behind mattresses in his attic to avoid being arrested. The officers located Miller in the attic, at which time he "started climbing and crawling from behind the mattresses." Miller claimed that the officers punched and kicked him, and refused to loosen his handcuffs. Apart from the officers and Mr. Miller, there were no other witnesses in the attic during the arrest. A civilian witness present in the house stated that when the officers brought Miller down from the attic, one of the officers used his forearm to strike Miller in the chest, and that she later heard "a noise like a bone breaking." Mr. Miller never mentioned being struck in the chest. Civilian witnesses outside of the house stated that Miller, while handcuffed and being led to a police car, was yelling, struggling with the police, and trying to get away. Following the investigation of Miller's complaint, two members of the Professional Standards Section of the Rochester Police Department recommended that the complaint be listed as "unprovable," due to the fact that there were conflicting reports and no independent witnesses to the events which occurred in the attic. The Civilian Review Board apparently also determined that the complaint should be found "unprovable." However, after the results of the investigation were reviewed by the Rochester Police Department Command, Officer MacFall was exonerated of having used excessive force.
It is undisputed that both of these complaints were investigated by the Professional Standards Section of the Rochester Police Department, and that the results of that investigation were reviewed by both the Civilian Review Board
and the Command Officers of the Rochester Police Department.
The plaintiff has submitted nothing which would indicate that there have been any prior complaints of excessive force against Officers Flynn, Graves or Gould, except the plaintiff's counsel's statement that "there are also complaints against Officer Gould, Officer Smith, and Officer Graves and Flynn, all along the same lines as against MacFall, all ending the same way,"
In her counterstatement of facts, the plaintiff's counsel states, in relevant part, that "the use of excessive force is so prevalent, that it is clear that the City ratifies and condones such activities. ...