783 F.2d 319 (2nd Cir. 1986), 113, Fiacco v. City of Rensselaer, N.Y.

Docket Nº:113, 208, Docket 85-7234, 85-7266.
Citation:783 F.2d 319
Party Name:Mary C. FIACCO, Plaintiff-Appellee-Cross-Appellant, v. CITY OF RENSSELAER, NEW YORK, Police Chief James Stark, Police Officer Edward Meyer, and Police Officer Kevin Harrington, Defendants-Appellants-Cross-Appellees.
Case Date:February 11, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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783 F.2d 319 (2nd Cir. 1986)

Mary C. FIACCO, Plaintiff-Appellee-Cross-Appellant,


CITY OF RENSSELAER, NEW YORK, Police Chief James Stark,

Police Officer Edward Meyer, and Police Officer

Kevin Harrington,


Nos. 113, 208, Docket 85-7234, 85-7266.

United States Court of Appeals, Second Circuit

February 11, 1986

Argued Aug. 26, 1985.

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Robert W. Redmond, Troy, N.Y., for plaintiff-appellee-cross-appellant.

Gregory S. Mills, Albany, N.Y. (Terence P. O'Connor, Carter, Conboy, Bardwell, Case & Blackmore, Albany, N.Y., on the brief), for defendants-appellants-cross-appellees.

Before FEINBERG, Chief Judge, KEARSE and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants City of Rensselaer, New York (the "City"), and its police chief James Stark (sometimes collectively the "City defendants"), and City police officers Edward Meyer and Kevin Harrington (collectively the "Officers") appeal from a final judgment of the United States District Court for the Northern District of New York, following a jury trial before Virgil Pittman, Judge, in this action brought under 42 U.S.C. Sec. 1983 (1982). Plaintiff Mary C. Fiacco was awarded $25,000 in compensatory damages for the deprivation of her constitutional rights, plus $850 in compensatory damages on state law claims for injuries caused by defendants' negligence. The jury had returned a verdict awarding Fiacco $75,000 as damages for deprivation of her constitutional rights; it had awarded $1,000 as damages resulting from defendants' negligence but had found Fiacco contributorily negligent to the extent of 15%. After trial, the district court entered an order granting defendants a new trial on the issue of damages unless Fiacco agreed

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to a remittitur in the amount of $50,000 on her Sec. 1983 claim. Fiacco agreed to the remittitur. On this appeal, defendants contend chiefly (1) that the court should have directed a verdict in their favor on Fiacco's Sec. 1983 claim because there was insufficient evidence of (a) any violation by the Officers of Fiacco's constitutional rights or (b) any policy of the City upon which municipal liability under Sec. 1983 could be premised; (2) that the court erred in admitting against the City defendants evidence of unadjudicated claims of brutality by City policemen; and (3) that the court should have granted defendants' posttrial motion for a new trial because the jury's liability verdicts were inconsistent and against the weight of the evidence and its verdicts on damages were inconsistent. Fiacco cross-appeals, contending that the order leading to the remittitur violated her Seventh Amendment right to a jury trial and was in any event unwarranted.

For the reasons given below, we reject defendants' challenges to the judgment against them, and we dismiss Fiacco's cross-appeal.


In the early morning hours of April 4, 1981, Fiacco was arrested by Meyer and Harrington on charges of disorderly conduct and taken to the police station. Shortly after her arrest, Fiacco suffered, inter alia, injuries to her arms and legs. Fiacco brought the present Sec. 1983 action against the City defendants and the Officers, alleging violation of her federal constitutional rights and asserting pendent state law claims.

The complaint alleged that the Officers had used excessive force in taking Fiacco to the police station, in violation of her rights under the Fifth and Fourteenth Amendments to the Constitution. As pendent state law claims, Fiacco alleged that the Officers had maliciously and wantonly assaulted her, negligently injured her, and negligently failed to provide her with prompt medical attention for her injuries.

The complaint alleged that the City defendants had violated Fiacco's constitutional rights principally by negligently failing, on a continuing basis, to instruct, supervise, control, and discipline the Officers with respect to the use of unreasonable and excessive force during the making of arrests. Fiacco made the same assertions as a pendent state law claim against the City defendants, and added the assertion that they had negligently failed to instruct and supervise officers in the provision of medical services for those injured during an arrest.

  1. The Evidence and Verdict Against the Officers

    The case was tried to the jury in two parts: the first focusing on the allegations against the Officers and the second focusing on the allegations against the City defendants. At the first phase of trial, two substantially differing versions of the events were presented.

    1. Fiacco's Version of the Events

    According to Fiacco's testimony at trial, she had ended a night of heavy drinking by falling asleep on the front lawn of a home in Rensselaer. She was awakened by Meyer and Harrington, who had placed her in handcuffs and who proceeded, without any verbal or physical provocation on her part, to arrest her for disorderly conduct. Fiacco was placed in a police car and taken to the Rensselaer police station. As she attempted to exit the police car upon their arrival, Meyer poked her and she fell to the ground. Meyer then kicked her in the thighs and arm and, gripping the handcuffs, dragged her along the ground. Meyer subsequently lost his grip on the handcuffs, and Fiacco attempted to run away in order to avoid being hurt further, but she was shoved from behind and fell face down on the ground. Meyer then called Fiacco a "little bitch," added that she was "just like the rest of the Fiaccos," kicked her in the back and legs, and punched her, after which she was pulled, picked up, and taken into the police station. Harrington was

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    present during the above treatment of Fiacco by Meyer and did nothing to prevent or terminate it. After she was taken into the police station, Fiacco was booked on charges of disorderly conduct, resisting arrest, and attempting to escape, and was locked in a cell. Fiacco testified that once she was inside the police station, she made no attempt to flee and never assaulted any police officials.

    Fiacco testified that while at the police station she complained that the handcuffs were too tight and were hurting her hands, but that nothing was done to loosen them. She complained as well of pain in her legs, arms, and chin, but no medical attention was given her. She also noticed that her blouse was open and her breast exposed. She remained in that condition until she was taken to the Rensselaer County Jail.

    Phyllis Collins, a correctional officer at the county jail testified that after Fiacco's arrival at that jail she fixed Fiacco's blouse so that it covered her. She noticed that there were scratches and bruises on Fiacco's face and arms. Collins was present when Fiacco's handcuffs were removed, and she testified that there was difficulty in removing them because they were embedded in Fiacco's wrists, and that Fiacco's hands were blue. Fiacco testified that after her handcuffs were removed, her hands were numb and she could not move the middle finger of her left hand.

    Fiacco was eventually taken to a hospital emergency room where her elbows were cleaned, x-rays taken, and her left arm placed in a brace from the wrist down. Surgery was eventually performed to repair the tendon in Fiacco's finger. The doctor who performed the surgery testified that events such as those described above could have been the cause of Fiacco's injury.

    2. The Officers' Version of the Events

    Meyer and Harrington offered a different account of the events surrounding Fiacco's arrest. Meyer testified that upon receiving a radio dispatch that a woman was lying unconscious in front of a certain address, he proceeded to the site, found Fiacco there, and tried to revive her. Both officers testified that when Harrington arrived at the scene a few seconds later he radioed for an ambulance, but that either before or as it arrived, Fiacco regained consciousness, began to berate the Officers, kicked Meyer in the shoulder, and slapped Harrington in the face. Fiacco refused to get into the ambulance, and Harrington and Meyer arrested her for disorderly conduct. Fiacco was then handcuffed and taken to the police station.

    Meyer testified that upon their arrival at the police station, Fiacco began screaming and spitting at Harrington and refused to get out of the car, forcing the officers to carry her from the car into the station; she continued to scream and swear at them. Harrington testified that once inside the station, Fiacco's handcuffs were taken off and she was told to wait on a bench while Harrington filled out the arrest report. Within minutes, however, Fiacco ran toward the entrance of the station where she was caught by the Officers, who returned her to the bench. Fiacco again jumped up and ran, this time exiting the building, pursued by Harrington and desk officer Alfred Syvertsen. Fiacco stumbled to the ground in the station parking lot, and Harrington and Syvertsen brought her back into the building and handcuffed her to a pipe. The Officers then noticed that Fiacco had scraped her arms and that her blouse had loosened, exposing part of her breast. Harrington testified that the blouse was fixed and that Fiacco was offered medical assistance but declined it.

    Shortly thereafter, the police department matron arrived in response to Syvertsen's call. Fiacco verbally abused the matron and attempted to kick her while they waited for a judge to arrive for Fiacco's arraignment. Throughout this period, Fiacco never requested medical attention or complained about her treatment.

    3. The Liability Verdict Against the Officers

    At the close of the evidence as to the events leading to Fiacco's injuries, the Officers

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    moved for a directed verdict in their favor on the ground of insufficiency of the evidence. This motion was denied, and the jury was asked to answer special interrogatories with...

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