United States District Court, N.D. New York
August 3, 2004.
SCOTT W. LASHER, Plaintiff,
THE CITY OF SCHENECTADY, EDWARD RITZ, KENNETH HILL, DAN KANE, YONI MOSKOW, ROBERT W. GLASSER, Individually and as Agents, Servants, and/or Employees and Police Officers of the City of Schenectady and the City of Schenectady Police Department Defendants.
The opinion of the court was delivered by: THOMAS McAVOY, District Judge
MEMORANDUM DECISION and ORDER
Plaintiff Scott W. Lasher ("Plaintiff") commenced the instant
action pursuant to 42 U.S.C. § 1983 and 1988, asserting claims
of excessive force, false arrest, unlawful imprisonment,
malicious abuse of process, denial of prompt medical care,
assault and battery, and violations of his Fourth and Fourteenth
Amendment rights, arising out of his arrest on January 20, 2002.
Presently before the Court are motions for summary judgment
submitted pursuant to FED. R. CIV. P. 56 by Defendant Kenneth
Hill and Defendants City of Schenectady, Edward Ritz, Dan Kane,
Yoni Moskow, and Robert W. Glasser seeking dismissal of the
Complaint in its entirety.
On January 20, 2002, Plaintiff and Damien Schon ("Schon") were
at a bar in downtown Schenectady. Also present at the bar were
Defendants Kenneth Hill ("Hill") and Edward Ritz ("Ritz"). At all
times relevant hereto, Hill and Ritz were off-duty, non-uniformed
police officers for the Defendant City of Schenectady ("the
City"). While at the bar, Plaintiff and Ritz consumed alcohol.
Hill stated that he may have drank alcoholic beverages, but does
not recall what he consumed.
Plaintiff and Schon left the bar when it closed at 4:00 a.m.
They entered Plaintiff's Honda sport utility vehicle, drove out
of the parking lot and proceeded past the bar. At the same time,
Hill and Ritz also left the bar and entered Hill's vehicle. As
they began to exit the parking lot, Michael Parisi, the bar
owner, ran towards them. He told Hill and Ritz that a gunshot
emerged from a vehicle as it passed by the bar. Parisi pointed to
Plaintiff's passing vehicle as the source of the shot.*fn1 Hill and Ritz then
exited the lot and began to follow Plaintiff's vehicle.
Parisi also reported the incident by telephone to the
Schenectady Police Department, describing the vehicle as a red
Blazer (sports utility vehicle). An employee of the bar also
called in a report that a "drive-by" shooting had occurred and
identified the vehicle as a red Blazer or red Rodeo.
After being followed for several blocks, Plaintiff stopped his
vehicle at an intersection near Schenectady Police Department
Headquarters. Hill stopped four to five car lengths behind
Plaintiff and remained in his vehicle with Ritz. Plaintiff and
Schon then exited their vehicle. Plaintiff put his hand in his
jacket in a manner indicating that he had a weapon.*fn2
Plaintiff and Schon then returned to their vehicle and drove
away. Hill ran into the police station to report the incident.
Ritz moved into the driver's seat of Hill's vehicle and continued
to follow Plaintiff's vehicle. He eventually stopped to use a pay
phone to contact police dispatch. After five to ten minutes at
the police station, Hill learned that Plaintiff's vehicle had
been located. He and Officer Thomas Kelly left to go to the
At approximately 4:45 a.m., uniformed officers apprehended
Plaintiff and Schon as they were walking on a sidewalk. Officer
Thomas Harrigan ("Harrigan") instructed Plaintiff to get down on the ground. Harrigan then handcuffed Plaintiff and
helped him to stand up.*fn3 Next, Harrigan and Defendant
Schenectady Police Officer Dan Kane ("Kane") escorted Plaintiff
to a police car operated by Officer Phillip Feldhaus ("Feldhaus")
and Defendant Schenectady Police Officer Yoni Moskow ("Moskow").
Plaintiff asserts that on the way to the car, a non-uniformed man
approached him, asked "[r]emember me?", and then punched him in
the face, causing him to bleed profusely. Plaintiff was then
seated in the police car where his nose continued to bleed. No
ambulance was called to the scene.
Officers Hill and Ritz were the only persons employed by the
City of Schenectady Police Department who were not in uniform on
the night in question and who were present at some point in time
at the location where Plaintiff was arrested. Hill contends that
when he arrived at the scene with Officer Kelly, Sergeant Peters
asked him to identify Plaintiff and advised him that Plaintiff
was in the back of a police car. Hill states that he walked to
the police car operated by Feldhaus and Moskow and identified
Plaintiff. Feldhaus and Moskow state that they never saw Hill
approach the car.
Ritz asserts that he stayed at the location of the payphone
until uniformed officers arrived and reported the arrest. He
states that he then drove Hill's vehicle to the scene and
remained in the vehicle while he identified Plaintiff. He
contends he did not exit the vehicle at any time while Plaintiff
Plaintiff, who stands 5'11", states that the man who punched
him was taller than he. According to a Schenectady Police
Department Personal Information Sheet, Ritz is 5'8" tall. Hill
states that he is 5'10" tall, however at a deposition held in a
previous action, he testified that he was 6' tall. At the time Plaintiff was punched, he was
not walking at his full height, but was "bent over" from the
handcuffs connecting his wrists from the rear.
At approximately 5:06 a.m., Feldhaus and Moskow left with
Plaintiff in custody. Paramedics with the Schenectady Fire
Department arrived at the police station to treat Plaintiff's
injuries at 6:37 a.m. At 4:10 p.m., after he had been released
from custody, Plaintiff received treatment for his injuries at
the hospital. His medical records indicate that he suffered a
"nasal fracture with deformity and obstruction." Plaintiff also
complained of a chipped lower front tooth and wrist pain.
Plaintiff was eventually charged by Defendant Robert W. Glasser
("Glasser"), a detective with the Schenectady City Police
Department, for violating New York Penal Law § 120.20, reckless
endangerment in the second degree, for attempting to assault Hill
and Ritz with a handgun. The matter was adjourned in
contemplation of dismissal pursuant to N.Y. CRIM. PROC. § 170.55
Plaintiff commenced the instant action contending that
Defendants violated his constitutional rights under the Fourth
and Fourteenth Amendments and that he was subject to excessive
force, false arrest, unlawful imprisonment, malicious abuse of
process, denial of prompt medical care, and assault and battery.
Defendants now move to dismiss the Complaint in its entirety
pursuant to FED. R. CIV. P. 56. III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that summary
judgment is proper when "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); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In applying this standard,
courts must "`resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party
opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246,
251 (2d Cir. 2001) (quoting Cifra v. General Electric Co.,
252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its
initial burden by demonstrating that no material fact exists for
trial, the nonmovant "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(citations omitted). Rather, the nonmovant "must come forth with
evidence sufficient to allow a reasonable jury to find in her
favor." Brown, 257 F.3d at 251 (citation omitted). Bald
assertions or conjecture unsupported by evidence are insufficient
to overcome a motion for summary judgment. Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack
Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). IV. DISCUSSION
a. False Arrest, Unlawful Search and Seizure, Malicious Abuse
of Process, and Unlawful Imprisonment
Plaintiff asserts claims for false arrest, unlawful search and
seizure, malicious abuse of process, and unlawful imprisonment.
The existence of probable cause is a complete defense to each of
these claims. See Weyant v. Okst, 101 F.3d 845, 852-53 (2d
Cir. 1996) (false arrest under New York State and federal law,
unlawful search and seizure, unlawful imprisonment); Cook v.
Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (malicious abuse of
process); Berman v. Silver, Forrester, & Schisano, 156 A.D.2d 624,
625 (2d Dep't 1989).
Whether probable cause exists is based upon the totality of the
circumstances. Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir.
1996) (citing Illinois v. Gates, 462 U.S. 213, 231-33 (1983)).
It exists when an officer has "knowledge or reasonably
trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is
committing a crime." Provost v. City of Newburgh, 262 F.3d 146,
157 (2d Cir. 2001). "It is well-established that a law
enforcement official has probable cause to arrest if he received
his information from some person, normally the putative victim or
eyewitness." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.
2000) (quoting Miroslavsky v. AES Eng'g Soc'y, 808 F. Supp. 351,
355 (S.D.N.Y. 1992), aff'd 993 F.2d 1534 (2d Cir. 1993)).
Probable cause can also exist "even where it is based on mistaken
information, so long as the arresting officer acted reasonably
and in good faith in relying on that information." Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Colon v.
City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453,
455 N.E.2d 1248 (N.Y. 1983)). In the present case, Hill and Ritz had probable cause to
believe that Plaintiff committed a crime. As they were leaving
the parking lot at the bar, bar owner Michael Parisi ran towards
them and reported that a gunshot had been fired from a passing
vehicle. Parisi identified Plaintiff's vehicle as the source of
the gunshot. Plaintiff contends that Schon threw a billiard ball
from Plaintiff's vehicle, and that Parisi mistook the sound of
the ball striking an outside wall of the bar for the sound of a
gunshot. However, even if Parisi gave Hill and Ritz mistaken
information, there is no evidence that they had any reason to
believe that Parisi's report was mistaken or erroneous. Thus,
because Parisi's information would lead a person of reasonable
caution to believe that a gunshot emerged from Plaintiff's
vehicle, Hill and Ritz had probable cause to believe that
Plaintiff committed a crime.
In addition, the uniformed police officers, namely Kane and
Moskow, had probable cause to arrest Plaintiff. Two phone calls
were received by the Schenectady Police Department indicating
that gunshots had been fired at the bar. The police department
also received a description of a vehicle similar to Plaintiff's
as a source of the shots. In addition, when Hill ran into
Schenectady Police Headquarters, he reported that he saw "two
muzzle flashes" after Plaintiff emerged from his vehicle and
reached into his jacket in a manner indicating that he had a
weapon. Because the totality of information available to Kane and
Moskow would lead a person of reasonable caution to believe that
Plaintiff had committed a crime, Kane and Moskow had probable
cause to arrest Plaintiff.
Plaintiff contends that probable cause was lacking because both
Hill's statement and a similar statement made by Ritz were false.
However, Plaintiff has submitted no evidence suggesting that the
uniformed officers had reason to doubt the truthfulness of Hill's or Ritz's account of gunshots being fired at Hill's vehicle or
the other reports of a gunshot at the bar. Thus, Kane and Moskow
were permitted to rely on these reports.
Finally, Plaintiff concedes that Glasser had probable cause to
issue criminal process against Plaintiff. Glasser, relying on the
statements of Hill and Ritz, charged Plaintiff with violating New
York Penal Law § 120.20, reckless endangerment in the second
degree, for attempting to assault Hill and Ritz with a handgun.
Even if the statements of Hill and Ritz were false, Plaintiff
admits that there is no evidence that Glasser believed them to be
false at the time that he filed the charge. Thus, Glasser had
probable cause to file the charge against Plaintiff.
For the foregoing reasons, Plaintiff's claims for false arrest,
malicious abuse of process, and unlawful imprisonment are
b. Deliberate Indifference to Serious Medical Needs
Plaintiff also claims that Defendants denied him prompt medical
care. Claims raised by pre-trial detainees alleging inadequate or
untimely medical attention are to be analyzed under the Due
Process Clause of the Fourteenth Amendment. See Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). The
"standard for analyzing a pre-trial detainee's Fourteenth
Amendment claim is the same as the Eighth Amendment standard
[afforded to inmates]." Bourdon v. Roney, No. 9:99-CV-0769,
2003 WL 21058177, *10 (N.D.N.Y. March 6, 2003) (citing Revere,
463 U.S. at 244). To survive summary judgment, Plaintiff must
"allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs." Estelle v.
Gamble, 429 U.S. 98, 106 (1976); Hathaway v. Coughlin,
37 F.3d 63 (2d Cir. 1994), cert. denied, 513, U.S. 1154 (1995);
Davidson v. Harris, 960 F. Supp. 644, 646 (W.D.N.Y. 1997). The deliberate indifference standard embodies both an objective
and a subjective prong. Hathaway, 37 F.3d at 66. First, the
injury must be, in objective terms, "sufficiently serious." Id.
(citing Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, the
charged official must act with a sufficiently culpable state of
1. Serious Medical Need
A serious medical need exists when "the failure to treat a
prisoner's condition could result in further significant injury
or the "unnecessary and wanton infliction of pain." Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gutierrez
v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Conditions
that qualify as serious are those of "urgency" that may result in
"degeneration" or "extreme pain." Hathaway, 37 F.3d at 66.
Among the relevant factors in what is a fact-intensive inquiry
are "[t]he existence of an injury that a reasonable doctor or
patient would find important and worthy of comment or treatment;
the presence of a medical condition that significantly affects an
individual's daily activities; or the existence of chronic and
substantial pain." Chance, 143 F.3d at 702 (quoting McGuckin
v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).
Here, there is evidence that Plaintiff's nose was broken and
was bleeding profusely. In addition, Plaintiff complained that he
had a chipped tooth and bruised wrists. Some courts have held
that injuries similar to Plaintiff's are insufficient to
constitute a serious medical need. See, e.g., Kaup v.
DeTella, No. 98 C 4814, 1999 WL 286288, at *4 (N.D.Ill. 1999)
(holding that the plaintiff failed to sufficiently identify a
serious medical need because he alleged only a broken nose and
chipped teeth); Gibson v. Borough of West Chester, No. Civ. A.
02-9089, 2004 WL 203175, at *7 (E.D. Pa. Jan. 12, 2004) (finding
that the plaintiff was not in such physical distress as to
require emergency medical care after being punched in the face and sustaining a broken and bloody nose); Wesson v.
Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (holding that an
inmate's swollen and bleeding wrists from handcuffing did not
constitute serious medical need).
However, in this case, the evidence of the severity and
duration of Plaintiff's nose bleed does not preclude a conclusion
that his condition was sufficiently serious. Plaintiff's injury
was sustained sometime between 4:45 a.m., when he was apprehended
by the officers, and 5:06 a.m., when he was taken from the scene
to the police station. Plaintiff states that his nose was
bleeding profusely from the time he was punched until well after
he was in the police station. Ronald Maslanka, a lieutenant and
paramedic with the Schenectady Fire Department, examined
Plaintiff at the police station at 6:52 a.m. At that time, he
observed that Plaintiff had dried blood around the opening of his
nose. Thus, it could be reasonably concluded that Plaintiff's
nose was bleeding for approximately two hours. Courts have found
similar conditions of profuse bleeding to be actionable. See
Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir.
1985) (one-and-a-half-inch cut over detainee's eye that was
bleeding profusely for two and a half hours was a serious medical
need); Maxy v. Larson, No. 03-C-623-C, 2004 WL 253350, at *3
(W.D. Wis. Feb. 5, 2004) (lacerations on the plaintiff's head and
severe bleeding constituted a serious medical need). Thus,
Plaintiff has raised a triable issue of fact as to whether his
condition was sufficiently serious.
2. Deliberate Indifference
"Deliberate indifference is shown . . . by failure to provide
prompt attention to the medical needs of a pre-trial detainee."
Estelle, 429 U.S. at 105. Delays in treating painful medical
conditions that are not life-threatening can support Eighth
Amendment claims. Gutierrez, 111 F.3d at 1371. A few hours'
delay in receiving medical care for emergency needs such as broken bones and bleeding cuts may constitute
deliberate indifference. Brown v. Hughes, 894 F.2d 1533, 1538
(11th Cir. 1990).
As previously shown, it could reasonably be concluded that
Plaintiff's bloody nose was left untreated for approximately two
hours. Courts have found that delays of a few hours in treating
injuries involving profuse bleeding sufficiently demonstrate
deliberate indifference. See Aldridge, 753 F.2d at 972
(one-and-a-half-inch cut over detainee's eye that was bleeding
for two and a half hours was an actionable delay); Baker v.
Dist. of Columbia, No. 2:01CV472, 2002 WL 32539618, at *6 (E.D.
Va. 2002) (one-hour delay was reasonable in treating plaintiff's
leg injury because plaintiff was not bleeding or in shock and no
bones were broken). Thus, triers of fact could reasonably
conclude that Defendants acted with deliberate indifference.
For the foregoing reasons, Plaintiff has raised triable issues
of fact as to whether Defendants acted with deliberate
indifference to a serious medical need.
c. Excessive Force
Plaintiff also claims that he was subjected to the excessive
use of force. To establish a claim of excessive force, Plaintiff
must show that the force used by the officer was, in light of the
facts and circumstances confronting him, "objectively
unreasonable" under Fourth Amendment standards. Graham v.
Connor, 490 U.S. 386, 395 (1989); Finnegan v. Fountain,
915 F.2d 817, 821 (2d Cir. 1990). The United States Supreme Court
The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to
make split-second judgments in circumstances that
are tense, uncertain, and rapidly evolving about
the amount of force that is necessary in a particular
Graham, 490 U.S. at 396-97. The "reasonableness" of a
particular use of force must be judged from the perspective of a
reasonable officer on the scene. Id. at 396. Factors to
consider include: "the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight." Finnegan, 915 F.3d at
There is sufficient evidence in the record from which a
fair-minded trier of fact could reasonably conclude that the use
of force against Plaintiff was excessive. Plaintiff states that
at the moment he was handcuffed on the ground, he had no physical
injuries. He also states that he was lifted from the ground to
his feet without incident. This is corroborated by Harrigan, who
stated that he saw no blood or injury to Plaintiff when he stood
up after being handcuffed. Kane and Harrigan then began to lead
Plaintiff to a police car. There is no evidence that, at this
point, the circumstances could be categorized as "tense,"
"uncertain," or "rapidly evolving." See Graham, 490 U.S. at
396-97. Indeed, there is evidence in the record that Plaintiff
was handcuffed, posed no physical threat to those surrounding
him, and was not resisting arrest. However, it was under these
circumstances that Plaintiff states that a non-uniformed man
approached and punched him in the face. Such circumstances would
not require a split-second judgment to use force against
Plaintiff. Thus, there is sufficient evidence from which it could
be concluded that Plaintiff was subjected to the excessive use of
force. See, e.g., Newland v. Achute, 932 F. Supp. 529, 534
(S.D.N.Y. 1996) (holding that it could reasonably be concluded
that the defendants used excessive force against plaintiff who
was assaulted by prison guards while he was handcuffed). 1. Direct Participation
It is well-settled in this Circuit that "personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983." Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir. 2003) (quoting Moffitt v.
Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991). A police
officer is personally involved in the use of excessive force if
he either: (1) directly participates in an assault; or (2) was
present during the assault, yet failed to intercede on behalf of
the victim even though he had a reasonable opportunity to do so.
See Ricciuti v. New York City Transit Auth., 124 F.3d 123,
129 (2d Cir. 1997); Anderson v. Branen, 17 F.3d 552, 557 (2d
Reasonable jurors could conclude that Hill was a direct
participant in the excessive use of force against Plaintiff.
Plaintiff admits that he cannot say with certainty which
particular officer punched him. However, under the facts and
circumstances of this case, Plaintiff need not establish who,
among the group of officers, directly participated in the attack
because there is sufficient circumstantial evidence from which
the trier of fact could make reasonable conclusions concerning
who, if anyone, struck Plaintiff. See Skorupski v. County of
Suffolk, 652 F. Supp. 690, 694 (E.D.N.Y. 1987) (rejecting
defendants' argument that they were entitled to summary judgment
because plaintiff cannot specify which of the officers struck him
and finding that all of the officers were potentially liable
because they had an affirmative duty to intervene).
Plaintiff states that he was being escorted to a police car by
Harrigan and Kane when a non-uniformed man approached him, asked
"[r]emember me?", and then punched him in the face. The question
"[r]emember me?" indicates that the non-uniformed man saw
Plaintiff prior to his arrest. In addition, it could reasonably
be concluded that the non-uniformed man was a police officer because there is no evidence that anyone
else was at the scene or that Harrigan and Kane tried to prevent
anyone from reaching Plaintiff. A trier of fact could reasonably
conclude that Harrigan and Kane would not have reason to try to
keep fellow officers away from Plaintiff. Moreover, neither Hill
nor Ritz was wearing a uniform that evening; both had seen
Plaintiff in a previous encounter that evening; and both were at
the scene sometime after Plaintiff was handcuffed.
It is uncontested that while Ritz was at the scene, he did not
exit his vehicle at any time while Plaintiff was handcuffed. Hill
states that while he was at the scene, the only time he saw
Plaintiff was when he identified him sitting in back of the
police car operated by Feldhaus and Maskow. However, Feldhaus and
Moskow indicate that they never saw Hill approach the car.
Plaintiff also states that the man who punched him was taller
than he. According to personnel data, Ritz stands 5'8" tall. Hill
states that he is 5'10" tall, however he testified in a previous
action that he was 6' tall. Plaintiff stands 5'11". As a result
of being handcuffed, he was walking in a "bent over" manner at
the time he was punched. It would be reasonable to conclude that
under Plaintiff's circumstances, a man who stands 5'10" to 6'
tall would appear taller than him.
Based on the foregoing, a fair minded trier of fact could
reasonably conclude that Hill used excessive force against
2. Failure to Intercede
An officer who fails to intercede is liable for the preventable
harm caused by the actions of the other officers where that
officer observes or has reason to know: (1) that excessive force
is being used, see O'Neill v. Krzeminski, 839 F.2d 9, 11-12
(2d Cir. 1988); (2) that a citizen has been unjustifiably arrested, see Gagnon v.
Ball, 696 F.2d 17, 21 (2d Cir. 1982); or (3) that any
constitutional violation has been committed by a law enforcement
official, see O'Neill, 839 F.2d at 11. For liability to
attach, there must have been a realistic opportunity to intervene
to prevent harm from occurring. See id. at 11-12. Whether an
officer had sufficient time to intercede or was capable of
preventing the harm being used by another officer is an issue of
fact for the jury unless, considering all the evidence, a
reasonable jury could not possibly conclude otherwise. Id.
Plaintiff states that the uniformed officers, presumably
Defendants Kane and Moskow, did not try to protect him by
stepping between him and the non-uniformed man. Plaintiff further
claims that the uniformed officers held him while the
non-uniformed man punched him. Defendants contend that they did
not have a realistic opportunity to prevent the incident. Indeed,
the single punch may have occurred without warning, providing no
time for the uniformed officers to prevent it. See, e.g.,
id. at 11 (holding that a police officer had "no realistic
opportunity" to react when the plaintiff was struck by three
blows in rapid succession). However, there is a triable issue of
fact as to whether the uniformed officers held Plaintiff so that
he could be punched or whether they had an insufficient
opportunity to react to an unexpected punch.*fn4
d. Equal Protection
Plaintiff's complaint also asserts an equal protection
violation. The equal protection clause of the Fourteenth
Amendment directs state actors to treat similarly situated people alike. Delisser v. Goord, No. Civ. 9:02cv00073, 2003 WL 133271,
at *6 n. 8 (N.D.N.Y. Jan. 15, 2003) (citing City of Cleburne,
Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). "To
prove an equal protection violation, claimants must prove
purposeful discrimination directed at an identifiable or suspect
class." Id. (citing Giano v. Senkowski, 54 F.3d 1050, 1057
(2d Cir. 1995)). Here, Plaintiff offers no evidence that he was
treated differently than similarly situated persons. Thus, his
equal protection claim is dismissed.
e. Qualified Immunity
Defendants next claim that they are entitled to qualified
immunity. As the Second Circuit has explained:
We conduct a two part inquiry to determine if an
official is entitled to qualified immunity. The
threshold question is whether, "[t]aken in the light
most favorable to the party asserting the injury,
. . . the facts alleged show the officer's conduct
violated a constitutional right." Saucier [v.
Katz], 533 U.S. [194, 201], 121 S.Ct. 2151 [(2001)].
Addressing this initial question serves the important
role of providing a clear standard against which
officers can measure the legality of future
conduct. . . . Thus, although we have under certain
circumstances bypassed this first step and proceeded
directly to the qualified immunity inquiry, that is
the exception rather than the rule. . . .
If we determine that the officer's conduct did not
violate a constitutional right, we proceed no further
and hold that the officer is entitled to qualified
immunity. See Saucier, 533 U.S. at 201. However,
if we decide otherwise, we proceed to "ask whether
the right was clearly established" at the time it was
allegedly infringed. Id. "The relevant, dispositive
inquiry in determining whether a right is clearly
established is whether it would be clear to a
reasonable officer that his conduct was unlawful in
the situation he confronted." Id. at 202,
121 S.Ct. 2151. . . .
Said differently, if the officer's conduct violated a
right, we analyze the objective reasonableness of the
officer's belief in the lawfulness of his
actions. . . . If the officer reasonably believed
that his actions did not violate the plaintiff's
rights, he is entitled to qualified immunity even if
that belief was mistaken. . . . However, if his
belief was not objectively reasonable, qualified
immunity offers him no solace and the plaintiff's claims must be allowed to proceed. See Harlow [v.
Fitzgerald], 457 U.S. [800, 818-819 (1982)].
Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir.
1. Glasser's and Ritz's Entitlement to Qualified Immunity
Because Glasser and Ritz did not violate Plaintiff's Fourth
Amendment rights, they are entitled to qualified immunity.
Indeed, Glasser had probable cause to issue criminal process
against Plaintiff and Ritz had probable cause to believe that
Plaintiff committed a crime. Even assuming there was a
constitutional violation, reasonable officers could disagree
whether there was probable cause and Defendants Glasser and Ritz,
therefore, are entitled to qualified immunity as to all of
Plaintiff's claims. See Saucier, 533 U.S. at 201.
2. Hill's Entitlement to Qualified Immunity
It is clearly established that pre-trial detainees have the
right to be free from excessive force. As previously discussed,
it could be reasonably concluded that Plaintiff's Fourth
Amendment freedom from the use of excessive force was violated.
Thus, the inquiry becomes whether the officers' belief in the
lawfulness of their actions was reasonable. The facts alleged,
taken in the light most favorable to Plaintiff, demonstrate that
Hill used excessive force against Plaintiff. There is evidence
from which it could reasonably be concluded that Plaintiff was
struck without any purpose other than to inflict pain or cause
injury to him. If true, such actions would be unreasonable and no
fair minded trier of fact could conclude otherwise. See
Graham, 490 U.S. at 396. Thus, Defendant Hill is not entitled
to summary judgment on the issue of qualified immunity as to the
claim of excessive force. 3. Kane's and Moskow's Entitlement to Qualified Immunity
Also as previously shown, there are triable issues of fact as
to whether Defendants Kane and Moskow had a reasonable
opportunity to protect Plaintiff from the use of force. If Kane
and Moskow were holding Plaintiff in place while he was punched,
any belief in the lawfulness of their action would be
unreasonable. Thus, Defendants Kane and Moskow are not entitled
to summary judgment on the issue of qualified immunity as to the
claim of excessive force.
f. Municipal Liability Under § 1983
Plaintiff claims that the City established an unwritten custom
of ratifying and authorizing unconstitutional actions of its
employees. See Hogan v. Franco, 896 F. Supp. 1313, 1319
(N.D.N.Y. 1995) (the existence of the policy or custom does not
need to be evidenced by a writing); Poulsen v. City of North
Tonawanda, 811 F. Supp. 884, 896 (W.D.N.Y. 1993) ("[a] municipal
policy may be inferred from the informal acts or omissions of
supervisory municipal officials."). Specifically, Plaintiff
claims that the City failed to properly train and supervise its
officers. He asserts that the City of Schenectady Police
Department established the customs or practices of utilizing
excessive force in arrests and failing to investigate internal
affairs complaints against officers involved in unconstitutional
When subordinate municipal officials are alleged to have
committed a constitutional violation, municipal liability turns
on the plaintiff's ability to attribute the subordinates' conduct
to the actions or omissions of higher ranking officials with
policymaking authority. Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir.
2004). One method of implicating a policymaking official through
subordinates' conduct is to show that the policymaker was aware
of the subordinates' unconstitutional actions and consciously
chose to ignore them, effectively ratifying the actions. Id.
Thus, where a policymaking official exhibits deliberate
indifference to constitutional deprivations caused by
subordinates, such that the official's inaction constitutes a
"deliberate choice," that acquiescence may "be properly thought
of as a city `policy or custom' that is actionable under § 1983."
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)
(citations omitted); see also Jeffes v. Barnes,
208 F.3d 49, 63 (2d Cir. 2000); Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995).
To prove "deliberate indifference," a plaintiff must
demonstrate that (1) "a policymaker knows `to a moral certainty'
that [his or] her employees will confront a given situation"; (2)
"the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling the
situation";*fn6 and (3) "the wrong choice by the
[municipality] employee will frequently cause the deprivation of
a citizen's constitutional rights. Walker v. City of New York,
974 F.2d 293, 297-98 (2d Cir. 1992) (internal quotations and
citations omitted). Because the failure to properly train theory
and the failure to properly supervise theory emphasize different
facts and require different showings in order to establish the
official's deliberate indifference, they must be analyzed
independently. Amnesty America, 361 F.3d at 127. 1. Failure to Properly Train
A municipality can be liable for failing to train its employees
where it acts with deliberate indifference in disregarding the
risk that its employees will unconstitutionally apply its
policies without more training. City of Canton, 489 U.S. at
387-90. Plaintiff must identify a specific deficiency in the
city's training program and establish that the deficiency caused
a deprivation of his constitutional rights. Id. at 391. Such
evidence is necessary to show that "the officer's shortcomings
. . . resulted from . . . a faulty training program" rather than
from the negligent administration of a sound program or other
unrelated circumstances. Id. at 390-91.
In the present case, Plaintiff has proffered no evidence of the
City's training program or advanced any theory as to how a
training deficiency caused a deprivation of his rights. He only
concludes that the City failed to train its officers not to
engage in certain unconstitutional acts. Plaintiff offers as
evidence a list of prior felony convictions of City police
officers, sworn testimony regarding the behavior of City police
officers, and case law in which City police officers were found
liable for civil rights violations. However, the factfinder's
inferences of inadequate training and causation must be based on
more than the mere fact that misconduct occurred in the first
place. City of Canton, 489 U.S. at 390-92. "To adopt lesser
standards of fault and causation would open municipalities to
unprecedented liability under § 1983." Id. Plaintiff has
provided no evidence as to whether the City trained its officers
between the cited incidents, how the training was conducted, or
how better or different training could have prevented his injury.
See Amnesty America, 361 F.3d at 130. Neither has Plaintiff
provided evidence tending to rule out those causes of his injury
that would not support municipal liability, such as the negligent
administration of a valid program, or one or more officers' negligent or intentional disregard of
their training. See id; City of Canton, 489 U.S. at 390-91.
Therefore, no reasonable trier could conclude that the City
failed to properly train its officers as Plaintiff alleges.
2. Failure to Properly Supervise
In the context of a failure to supervise case, deliberate
indifference may be established by showing that policymaking
officials deliberately ignored an obvious need for supervision.
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). An
obvious need may be demonstrated through proof of repeated
complaints of civil rights violations; deliberate indifference
may be inferred if the complaints are followed by no meaningful
attempt on the part of the municipality to investigate or to
forestall further incidents. Id. When it is claimed that a
municipality negligently supervised its officers in their use of
force, the evidence that a number of claims of police brutality
has been made by other persons against the city, together with
evidence as to the City's treatment of these claims, is relevant.
Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319, 328 (2d Cir.
In the present case, Plaintiff has presented triable issues of
fact as to whether the City failed to properly supervise its
officers. Plaintiff cites the prior civil rights actions of John
C. Rodick v. City of Schenectady, et. al., No. 90-cv-0937
(N.D.N.Y.), and DiSorbo, et. al. v. City of Schenectady, et.
al., No. 99-cv-1131 (N.D.N.Y.), in which it was found that City
officers used excessive force against citizens. Specifically, in
DiSorbo, a jury found that Defendant Hill failed to intervene
during another officer's use of excessive force even though he
ultimately was found to be entitled to qualified immunity. See
DiSorbo v. Hoy, 343 F.3d 172, 180 (2d Cir. 2003). As previously
discussed, it could also be concluded that the Defendant officers
engaged in similar conduct during Plaintiff's arrest. Thus,
Plaintiff has presented sufficient evidence to support the conclusion that
there was a recent history of City officers using excessive
In addition, it could also be concluded that City officials
were aware of repeated incidents of officer misconduct and
deliberately failed to take any remedial steps. The claims of
excessive force against City police officers in Rodick and
DiSorbo were commenced in 1990 and 1999, respectively. This
supports a conclusion that the City had notice that its officers
were using excessive force well before the events in the present
case. However, in DiSorbo, the plaintiff presented evidence
from Rodick which showed that the City took no disciplinary
action against officers who used excessive force. See Hoy,
343 F.3d at 181. Moreover, Plaintiff provides circumstantial
evidence that ranking members of the City police department had
notice of incidents of officer misconduct and consciously chose
not to take any disciplinary action. Former Schenectady Police
Department internal affairs officer Eric Yager stated in an
affidavit that he informed Schenectady Police Department Chief
Gregory Kaczmarek that some patrol division officers were
entering into investigations without proper training, that the
officers were not following proper procedures and policies, and
that the officers were acting in an illegal manner towards
citizens. Yager stated that Kaczmarek did not believe the
information and refused to open an investigation. Furthermore,
former Schenectady Police Department internal affairs officer
Daniel Johnson stated that the chief requested that complaints
regarding certain officers be referred to assistant chiefs, but
not to Johnson, for investigation. Taking this evidence in the
light most favorable Plaintiff, a fair minded trier of fact could
reasonably conclude that the City had notice that its officers
engaged in illegal activities with citizens, including the
excessive use of force, but exhibited deliberate indifference by
declining to properly investigate or impose disciplinary
measures. V. CONCLUSION
For the foregoing reasons, Defendants Ritz, Kane, Moskow,
Glasser, and City of Schenectady's motion for summary judgment is
GRANTED IN PART and DENIED IN PART. Plaintiff's claims of false
arrest, unlawful search and seizure, malicious abuse of process,
unlawful imprisonment, equal protection, and failure to properly
train are DISMISSED as to those Defendants. Plaintiff's claim of
excessive force is dismissed only as to Defendants Ritz and
Glasser. Defendant Hill's motion for summary judgment is GRANTED
IN PART and DENIED IN PART. Plaintiff's claims of false arrest,
unlawful search and seizure, malicious abuse of process, unlawful
imprisonment, and equal protection are DISMISSED as to Defendant
Hill. In all other respects, Defendants' motions are DENIED.
IT IS SO ORDERED.