The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Kenneth Lewis ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his Fourth and Fourteenth Amendment rights, as well as state tort claims of assault and battery. Presently before the Court is the motion by defendants Metropolitan Transportation Authority, incorrectly sued as Metropolitan Transit Authority ("MTA"), Long Island Railroad ("LIRR") and Robert Velez ("Velez") (collectively, "Defendants") for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. Plaintiff has not filed any opposition papers. For the reasons that follow, the Court grants Defendants' motion in its entirety.
The following summary of facts comes from Plaintiff's deposition testimony.*fn1
This case arises out of an altercation on the LIRR involving two off-duty police officers, Plaintiff and defendant Robert S. Leahy ("Leahy") on December 28, 2003. At that time, Plaintiff, an off-duty New York City Police Department ("NYPD") detective, was riding an eastbound LIRR train on the 1:18 a.m. Ronkonkoma Line. (Deposition of Kenneth Lewis ("Pl.'s Dep."), Ex. C to the Decl. of Robert P. Siegel, dated April 9, 2008 ("Siegel Decl."), at 46.) Prior to boarding the train, Plaintiff had spent the evening at a party at Club Remy in Manhattan, New York where he had consumed alcoholic beverages. (Id. at 41-46.) Plaintiff was wearing plain clothes and carried his firearm and detective shield. (Second Deposition of Kenneth Lewis ("Pl.'s Second Dep."), Ex. D to the Siegel Decl., at 14-21.)
Plaintiff was seated alone in a train car that was approximately half full. (Pl.'s Dep. at 49.) While engaged in a private conversation on his cellular telephone with his wife, Plaintiff repeated aloud his wife's statement that the passengers on the train sounded like "hillbillies" and "crackers." (Pl.'s Second Dep. at 85-93.) Plaintiff then got into a verbal exchange with three nearby male passengers. (Id. at 91-96.) Velez, an assistant conductor on the LIRR, walked into the train car, observed the altercation and yelled at Plaintiff to sit down. (Pl.'s Second Dep. at 95-96.) As Velez left, Plaintiff told Velez that "he needed to get his ass kicked." (Id. at 97.) At his deposition, Plaintiff explained that he made this statement "in the heat of the moment, while being antagonized by the[ three passengers]." (Id.) Plaintiff was aggravated that Velez was telling him to sit down and not directing his efforts at the other three passengers. (Id.)
Thereafter, Plaintiff proceeded down the aisle, intending to walk into the next car. (Id. at 104-05.) As Plaintiff headed toward the vestibule where Velez was standing, Leahy, also an off-duty NYPD police officer, grabbed Plaintiff's shoulders from behind and turned Plaintiff around. (Id. at 105-08.) Leahy told Plaintiff he had to get off the train at the Hillside Support Facility Station (the "Hillside Station"). (Id. at 109.) When the doors opened at the Hillside Station, a struggle ensued between Leahy and Plaintiff. (Id. at 109-10.) Leahy pushed Plaintiff backwards towards the door, knocking Plaintiff onto the platform. (Id. at 109-14.) As Plaintiff was being pushed out the door, Velez extended his arm forward to grab onto Plaintiff's arm, although Plaintiff was not sure whether this was done in order to prevent Plaintiff from falling backwards. (Id. at 110.) While on the platform, Leahy kicked Plaintiff's left leg out from under him, causing Plaintiff to fall and suffer permanent physical injury. (Id. at 113-14; Compl. ¶ 20.) While Plaintiff was on the ground, Leahy physically detained him by placing his knee and the weight of his body on Plaintiff's chest. (Pl.'s Second Dep. at 114-15.) Leahy then searched Plaintiff and retrieved his weapon. (Id. at 116-123.) Plaintiff was removed from the platform and taken by ambulance to the hospital. (Id. at 127.)
On December 27, 2004, Plaintiff filed the instant action. The Complaint asserts three causes of action. The first cause of action alleges that Defendants violated Plaintiff's constitutional rights when Plaintiff was unlawfully detained, searched and deprived of a liberty interest against his will. It also alleges that Defendants used unreasonable, excessive force. The second and third causes of action assert state tort law claims of assault and battery.
By Notice of Motion dated April 25, 2007, Defendants moved for "summary judgment pursuant to FRCP 12(b)(6)." On December 4, 2007, the Court referred Defendants' motion to Magistrate Judge E. Thomas Boyle for a report and recommendation. On January 24, 2008, Magistrate Judge Boyle issued a Report and Recommendation (the "Report") that Defendants' motion be denied. By Memorandum and Order dated March 18, 2008, the Court adopted the Report, but granted Defendants leave to file a new motion pursuant to Rule 56 and issued a briefing schedule for that purpose.
Defendants now move for summary judgment with regard to Plaintiff's § 1983 claims on the ground that there is no evidence of a municipal policy or custom which led to Plaintiff's alleged constitutional injury. Defendants also seek judgment with respect to Plaintiff's state law claims on the basis that there has been no testimony that an MTA or LIRR employee made any contact with Plaintiff that was considered to be harmful or offensive. Plaintiff has not filed any opposition papers to the motion. For the reasons stated below, Defendants' motion is granted.
I. Applicable Law and Legal Standards
A. Unopposed Motion for Summary Judgment
The Second Circuit, in the seminal case of Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241 (2d Cir. 2004), addressed the proper analysis that districts courts should employ when presented with an unopposed motion for summary judgment. The court held that "Fed. R. Civ. P. 56, governing summary judgment motions, does not embrace default judgment principles." Id. at 242. Thus, "[e]ven when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law." Id. In addition, "[a]lthough the failure to respond may allow the district court to accept the movant's factual assertions as true, see Local Civ. R. 56.2," id. at 246, the district court "must be satisfied that the citation to evidence in the record supports the assertion." Id. at 244.
B. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court, in considering a summary judgment motion, must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "The summary judgment rule would be rendered sterile... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). With these principles in mind, the Court turns to the arguments presented by Defendants.
II. There is No Evidence to Establish Municipal Liability Against the MTA and LIRR Under Section 1983
A municipality generally cannot be held liable under Section 1983 for the alleged unconstitutional actions of its employees who are below a "policymaking level." That is, municipalities cannot be held liable under the respondeat superior doctrine for their employees' torts. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, municipalities can generally only be liable for actions taken pursuant to "official municipal policy" that cause constitutional torts. Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir. 1979) (quoting Monell, 436 U.S. at 691). To hold a municipality liable in such an action, "a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
A municipal policy or custom may be established in any of four ways:
(1) the existence of a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by municipal officials with final decision-making authority, which caused the alleged violation of plaintiff's civil rights; (3) a practice so persistent and widespread that it constitutes a custom of which constructive knowledge can be implied on the part of the policymaking officials; or (4) a failure by policymakers to properly train or supervise their ...