Dawes v. Pellechia, 83 CV 2678.
| Decision Date | 07 June 1988 |
| Docket Number | No. 83 CV 2678.,83 CV 2678. |
| Citation | 688 F. Supp. 842 |
| Parties | Frances DAWES, Administratrix of the Estate of Larry Dawes, and in her own behalf, Plaintiff, v. John PELLECHIA, individually and as a police officer in and of the City of New York; Michael Dzielski, individually and as a police officer in and of the City of New York; James J. Mullan, individually and as a police officer in and of the City of New York; Neil Marchesano, individually and as a police officer in and of the City of New York; the New York City Police Department, a governmental agency; and the City of New York, a municipal entity, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Harold F. Goldwasser, New York City, for plaintiff.
Norma Kerlin, Asst. Corp. Counsel (Peter L. Zimroth, Corp. Counsel of the City of New York), for defendants City of New York and New York City Police Dept.
Defendants the City of New York and the New York City Police Department move pursuant to Fed.R.Civ.P. 56 for an order granting summary judgment in their favor. For the reasons discussed below, the motion is granted.
On March 15, 1983, plaintiff's decedent, Larry Dawes, died after a pursuit by New York City Police Officers. In her Amended Complaint, plaintiff alleges that Dawes, who was operating a moped on a sidewalk in the area of Fulton and Washington Streets, was pursued by the officers, in their police car, at reckless high speed. The officers allegedly deliberately rammed Dawes' moped off the sidewalk and into a parked car.1 Thereupon, the officers allegedly abused and beat Dawes. Amended Complaint ¶ 16.
Plaintiff brought this action in 1983 under 42 U.S.C. §§ 1981, 1983 and 1988 alleging violations of the eighth, thirteenth and fourteenth amendments to the Constitution.2 Paragraph 28 of the Amended Complaint is levelled against the New York City Police Department and the City of New York ("the City defendants"). The allegation states:
It is believed that the defendant New York City Police Department and defendant City of New York failed to properly screen and thereafter properly train and supervise the defendant police officers such that they entrusted, improperly and illegally these individuals with a weapon of deadly force in a reckless and improper manner and in a manner violative of rights guaranteed to the plaintiff's decedent under the laws and Constitutions of the State of New York and the United States.
The City defendants now move for summary judgment arguing that plaintiff has failed to allege, and cannot prove, that she was deprived of a federally guaranteed right as a result of an official custom or policy of the City. Discovery has been completed and the parties have submitted to the Court both a Proposed Pre-Trial Order and an Amended Proposed Pre-Trial Order.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In this regard, plaintiff's argument, that the City defendants' failure to submit factual support, affidavits and the like pursuant to Rule 56(e), precludes summary judgment is incorrect.3 As stated by the Catrett Court, although the moving party "always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of fact," there is "no express or implied requirement ... that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. at 2553 (emphasis supplied). Thus, the Court must decide whether plaintiff can demonstrate a genuine issue of material fact that precludes summary judgment in favor of the City defendants.
To prevail against a municipal defendant in an action under 42 U.S.C. § 1983, plaintiff must show that the municipality employed a custom or official policy that caused her to be deprived of a federally guaranteed right, Monell v. Department of Social Services, 436 U.S. 658, 692-94, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983), and "`a causal connection ... between the policy and the deprivation of his constitutional rights.'" Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir.1987) (quoting Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), cert. denied, ___ U.S. ___, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987)). Where, as here, the existence of a municipal policy is disputed, it can be inferred from "informal acts or omissions of supervisory municipal officials." Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). However, in a case like this, the inference arises only when plaintiff can demonstrate that "the municipality's failure to supervise or properly train its police force is so severe as to constitute `gross negligence' or `deliberate indifference' to her rights." Sarus, supra, 831 F.2d at 401.
Plaintiff claims that she has amassed enough evidence to present a triable issue of fact regarding an actionable municipal policy. Indeed, she claims that she has alleged and can prove three municipal policies that are causally connected to the deprivation of her rights: (1) the City's failure to properly screen, train and supervise its police officers on the use of high-speed chases and the amount of force that should be used in making an arrest; (2) the City's policy to delegate to individual police officers decisions regarding the initiation and continuation of the high-speed chase of Dawes; and (3) the City's failure to correct violations of its rules and guidelines by its police officers concerning the use of excessive and deadly force and high-speed auto pursuits.4
It is undisputed that the City Police Department has a policy regarding high-speed chases. The policy is embodied in a 1977 memorandum to all commands from the Chief of Operations of the New York City Police Department ("Chief Operations Officer's Memorandum") and reads, in pertinent part:
(Emphasis supplied).
Plaintiff claims that because the chase of Dawes was not called off by either the individual police officers or the field supervisor, Sergeant Richard Bestafka,5 and because the chase was outweighed by risk to life, a violation of the department's high-speed chase policy occurred. No evidence whatsoever has been produced by plaintiff that demonstrates a City policy of failing to correct violations of department rules, even accepting as true that such a violation occurred here. Absent "other evidence, mere proof of a single incident of errant behavior is an insufficient basis for finding that a municipal policy caused plaintiff's injury." Sarus, supra, 831 F.2d at 402-03 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436-37, 85 L.Ed.2d 791 (1985)); see Turpin, supra, 619 F.2d at 202; Singelton v. City of New York, 632 F.2d 185, 195 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981).
Essentially the same flaws discussed above exists in plaintiff's claim that the City defendants employed a policy of failing to properly screen, train and supervise the police officers. Specifically, plaintiff avers that through the testimony of the individual defendant officers, their sergeant, and two trainers from the Police Department, she will prove that the "`official policy' of the City of New York in preparing and training its police officers and supervisors in high-speed auto pursuit and vehicle chase procedures is woefully inadequate and that said inadequate training caused the deprivation of plaintiff's decedent's constitutional rights." Plaintiff's Statement Pursuant to Rule 9(g) sic in Opposition to Defendants' Motion for Summary Judgment, at 7. The evidence plaintiff submits pursuant to Rule 56(e), however, if anything, supports a contrary conclusion.
Plaintiff has submitted the Chief Operations Officer's Memorandum, excerpts from the deposition testimony of the four defendant officers and Sergeant Bestafka, and the answers to plaintiff's interrogatories 18 and 19. The testimony reveals that the officers received training in high-speed chases in furtherance of the City Operations Officer's Memorandum both at the Police Academy and later while on duty and that the use of "extreme caution" was emphasized. The interrogatory answers state that officers are given training on the use of deadly force and high-speed chases. No further evidence of an official policy or custom of inadequate training has been adduced.6 Plaintiff has not submitted any evidence from which this Court could conclude that the training was inadequate, much less find that there exists a genuine issue of material fact regarding such severe inadequacy that it amounts to gross negligence or deliberate indifference. Nor does plaintiff intend to call an expert at...
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