Turk v. McCarthy

• Decision Date: 10 June 1987
• Docket Number: No. CV 85-0672.,CV 85-0672.
• Citation: 661 F. Supp. 1526
• Parties: Richard G. TURK, Plaintiff, v. Police Officer Richard McCARTHY, etc., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

661 F. Supp. 1526

Richard G. TURK, Plaintiff, v. Police Officer Richard McCARTHY, etc., et al., Defendants.

No. CV 85-0672.

United States District Court, E.D. New York.

June 10, 1987.

Richard F. Gregory, East Islip, N.Y., for plaintiff.

Peter M. Zimroth Corp. Counsel by Nicole Gordon and David Lock, New York City, for defendant City of New York.

Richard Hartman by Bruce R. Berkitsky, Little Neck, N.Y., for defendant McCarthy.

MEMORANDUM AND ORDER

WEXLER, District Judge.

In March 1985, plaintiff Richard G. Turk ("Turk") filed this lawsuit against defendants Richard McCarthy ("McCarthy") and the City of New York ("NYC" or "the City") seeking damages pursuant to 42 U.S.C. § 1983 and New York State common law. McCarthy, in turn, cross-claimed against NYC for indemnification of any liability and expenses he might incur as a result of the litigation. NYC has now moved for an order granting it summary judgment with regard to both Turk and McCarthy's claims against it. For the reasons set forth below, NYC's motion is granted.

I. FACTS AND ALLEGATIONS

The parties do not appear to dispute the following facts:

On the evening of April 28, 1984, plaintiff was working at his job as a security guard at Adventureland, an amusement park located in East Farmingdale, New York. At around 8:00 that evening, Turk and at least two other security guards stopped McCarthy as he was entering the amusement park with a cup of beer and informed him that he was not allowed to bring the beer onto the park's grounds. McCarthy identified himself as a police officer and then left the park.

Approximately ten minutes later, Turk and another security guard noticed McCarthy drinking beer near a gazebo in the middle of the park. The guards again told McCarthy that he would have to leave the park and followed McCarthy and his wife and two friends as they went to the parking lot of the amusement park. While in the parking lot, Turk and McCarthy became involved in an altercation, which ended with McCarthy shooting Turk in the right side of the neck.

As a result of the incident, McCarthy was subsequently charged with Assault in the Third Degree under N.Y. Penal Law §§ 120.00(2) and 120.00(3), and, on January 14, 1986, was convicted of the charge under N.Y. Penal Law § 120.00(2).¹ McCarthy's appeal of his conviction is currently pending.

On the date of the shooting, McCarthy was a probationary police officer in the New York City Police Department ("NYCPD"). He was off-duty on the evening the incident occurred.

In his Amended Verified Complaint, Turk alleges that the shooting has caused him to suffer from ailments including numbness of the right side of the face, right shoulder and right arm, loss of movement of the neck and head, headaches and dizziness, and loss of hearing and memory. Additionally, plaintiff asserts that he has incurred and will continue to incur medical expenses and that he is unable to engage in gainful employment. Turk seeks damages based upon defendants' purported violations of various constitutional rights, McCarthy's alleged assault and battery against and false arrest of plaintiff, and negligence by NYC that purportedly led to the incident's occurrence. In his cross-claims against the City, McCarthy invokes N.Y.Gen.Mun.Law § 50-k and argues that NYC must indemnify him because he was acting within the scope of his duties as a NYC police officer at the time of the incident and because NYC acted negligently.

II. STANDARDS FOR SUMMARY JUDGMENT

This litigation is currently in front of the Court for the purpose of the Court's rendering a decision upon the City's motion for the entry of summary judgment dismissing Turk's claims and McCarthy's cross-claims against it. A court may grant summary judgment only if "there is no genuine issue as to any material fact and .... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, ___, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); American Broadcasting Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 278-79 (2d Cir.1967), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972). On a motion for summary judgment, "inferences to be drawn from the underlying facts .... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, the sheer possibility that a factual dispute may exist, without more, is insufficient to overcome a convincing presentation by the moving party. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). The United States Supreme Court has recently held that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment: the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, ___ U.S. ___, ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original).

As to the question of the genuineness of a purported dispute regarding the facts of a case, the existence simply of a scintilla of evidence in support of a party's position is insufficient to withstand a motion for summary judgment; rather, there must be evidence upon which the finder of fact could reasonably find for the party opposing the motion. Anderson, ___ U.S. at ___, 106 S.Ct. at 2512. A court, furthermore, will not allow a litigant opposing summary judgment to use mere conclusory allegations or denials as a vehicle for obtaining a trial. Quinn, 613 F.2d at 438. A party must do more than simply show that there may be some "metaphysical doubt" concerning the material facts. Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). As to the issue of the materiality of any dispute over given facts, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, ___ U.S. at ___, 106 S.Ct. at 2510. Summary judgment is undoubtedly warranted, for instance, where a party has failed to make a showing sufficient to establish the existence of an element that is essential to the party's case since, in such a situation, the complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, ___ U.S. at ___, 106 S.Ct. at 2553.

The application of these principles governing summary judgment motions to the instant case leads the Court to conclude that the City's motion must be granted in its entirety. Neither Turk nor McCarthy has raised any disputed issues of material fact sufficient to withstand NYC's convincing arguments that it is entitled to judgment as a matter of law under the circumstances this lawsuit presents. While Turk may very well be entitled to judgment against McCarthy, this case, as the Court will demonstrate throughout the remainder of this opinion, does not present a situation in which the City can rightfully be held legally responsible for damages that may have resulted from McCarthy's actions or be required to indemnify McCarthy for any liability or expenses he may incur in connection with the litigation.

III. TURK'S FEDERAL CLAIMS AGAINST NYC

A. Liability of Municipalities Under § 1983

Turk's federal claims against NYC are premised upon 42 U.S.C. § 1983, which provides:

Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress......

The liability of municipalities such as NYC under § 1983 is controlled primarily by the Supreme Court's landmark decision of Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, female employees of NYC's Department of Social Services and Board of Education filed suit under § 1983 alleging that the Department and the Board had as matters of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were medically required. Upon extensive analysis of the legislative history and language of § 1983, Monell overruled the Supreme Court's previous decision of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) insofar as that case had held local governments wholly immune from § 1983 suits, but upheld Monroe to the extent that Monroe had found that the doctrine of respondeat superior is not a proper ground for rendering municipalities liable under § 1983 for the constitutional torts of their employees. Justice Brennan stated for the Monell Court:

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by

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