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LASHER v. CITY OF SCHENECTADY

United States District Court, N.D. New York


August 3, 2004.

SCOTT W. LASHER, Plaintiff,
v.
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

I. INTRODUCTION

  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.

  II. FACTS

  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 scene.

  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 was handcuffed.

  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 (McKinney 2004).

  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 dismissed.

  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 mind. Id.

  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 elaborated,

  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 situation. 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 823.

  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 Cir. 1994).

  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 Plaintiff.

  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. 2002).
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 conduct.*fn5

  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. 1986).

  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 force.

  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.


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