1. Memorandum of Law in Support of Motion
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1. Memorandum of Law in Support of Motion Document Transcript

  • 1. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 1 of 30 PageID #: 263 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X NANCY GENOVESE, 10 CV 3470 Plaintiff, - against - TOWN OF SOUTHAMPTON; COUNTY OF SUFFOLK (Bianco, J.) Southampton Town Police LIEUTENANT ROBERT IBERGER, Suffolk County Undersheriff JOSEPH T. (Tomlinson, MJ) CARACAPPA; Suffolk County Sheriff Lieutenant FREDERICK LUETE; and “JOHN and/or JANE DOES” 1 through 10 (whose identities are currently unknown to Plaintiff but who are believed to be employees of the Suffolk County Sheriff’s Office), all of whom are sued in their individual and official capacities, Defendants. ----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendants THE TOWN OF SOUTHAMPTON AND Southampton Town Police LIEUTENANT ROBERT IBERGER 50 Route 111 Smithtown, New York 11787 (631) 724-8833 Of Counsel David H. Arntsen
  • 2. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 2 of 30 PageID #: 264 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................... iii PRELIMINARY STATEMENT ...................................................................................... 1 FACTS AND PROCEDURAL BACKGROUND ........................................................... 2 ARGUMENT POINT I STANDARD OF REVIEW ......................................................................................... 9 POINT II LT. IBERGER IS ENTITLED TO QUALIFIED IMMUNITY AND DISMISSAL OF ALL CLAIMS AGAINST HIM ........................................................................................... 10 A. Qualified Immunity, Generally ............................................................................. 10 B. False Arrest Claims ................................................................................................ 11 i) The investigatory stop passes constitutional muster ....................................... 12 ii) Lt. Iberger is entitled to Qualified Immunity ................................................. 13 C. No excessive Use of Force Claim May Stand ....................................................... 15 D. Removal of the plaintiff’s rifle case from the car was not an unreasonable search and seizure under the Fourth Amendment ..................... 17 POINT III THE TOWN OF SOUTHAMPTON IS ENTITLED TO SUMMARY JUDGMENT .............................................................. 18 POINT IV PLAINTIFF’S 42 U.S.C. § 1986 COUNT MUST BE DISMISSED AS A MATTER OF LAW ............................................................. 21 i
  • 3. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 3 of 30 PageID #: 265 POINT V PLAINTIFF’S NEW YORK STATE SUPPLEMENTAL JURISDICTION CLAIMS SHOULD BE DISMISSED .......................................... 22 CONCLUSION .................................................................................................................. 23 ii
  • 4. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 4 of 30 PageID #: 266 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................................ 9 Azor v. City of New York, 2012 WL 1117256 (E.D.N.Y. 2012)................................................................................. 15 Board of County Commissioners of Bryan County, Oklahoma v. Jill Brown, 520 U.S. 597 (1997) .......................................................................................................... 18 Board of County Commissioners v. Brown, 520 U.S. 397 (1988) .......................................................................................................... 19 Brown v. City of Oneonta, 106 F.3d 1125 (2d Cir. 1997)............................................................................................ 21 Cash v. County of Erie, 2011 WL 3625093 (2d Cir. 2011)..................................................................................... 19 Castilla v. City of New York, 2011 WL 4345934 (S.D.N.Y. 2011) ................................................................................. 19 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................................................................... 10 Crenshaw v. City of Mt. Vernon, 372 Fed.Appx. 202 (2d Cir. 2010) .............................................................................. 11, 14 DeCarlo v. Fry, 141 F.3d 56 (2d Cir. 1998)................................................................................................ 19 Escalera v. Lunn, 361 F.3d 737 (2d Cir. 2004).............................................................................................. 11 Esmont v. City of New York, 371 F.Supp.2d 202 ............................................................................................................ 16 F.D.I.C. v. Great American Ins. Co., 607 F.3d 288 (2d Cir. 2010)........................................................................................... 9-10 Graham v. O’Connor, 490 U.S. 386 (1989) .......................................................................................................... 15 iii
  • 5. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 5 of 30 PageID #: 267 Guadagni v. New York City Transit Authority, 2009 WL 205050 (E.D.N.Y 2009).................................................................................... 22 Harlowe v. Floyd, 2011 WL 674024 (D.Conn. 2011) .................................................................................... 14 Hodge v. Village of Southampton, ___ F.Supp.2d ___, 2012 WL 174838 (E.D.N.Y. 2012) .................................................. 18 Horton v. California, 496 U.S. 128 (1990) .......................................................................................................... 18 Javid v. Scott, 913 F.Supp. 223 (S.D.N.Y. 1996) .................................................................................... 20 Maragh v. City of New York, 2012 WL 1745349 (E.D.N.Y. 2012)....................................................................... 9, 10, 11 Marilyn S. v. Independent Group Home Living Program, Inc., 903 N.Y.S.2d 403 (2d Dep’t. 2010) .................................................................................. 16 Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................................................................................................ 9 Maxwell v. City of New York, 380 F.3d 106 (2d Cir. 2004).............................................................................................. 15 McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007)................................................................................................ 9 McClellan v. Smith, 439 F.3d 137 (2d Cir. 2006).............................................................................................. 11 Mon v. City of New York, 78 N.Y.2d 309, 574 N.Y.S.2d 529 (1991) ........................................................................ 21 Monell v. Department of Social Services, 436 U.S. 658 (1978); ........................................................................................... 1, 2, 19, 20 Munafo v. Metropolitan Transportation Authority, 285 F.3d 201 (2d Cir. 2002).............................................................................................. 10 Ostroski v. Town of Southold, 443 F.Supp.2d 325 (E.D.N.Y. 2006). ..................................................................... 1, 15, 20 iv
  • 6. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 6 of 30 PageID #: 268 Palmeri v. Town of Babylon, 2008 WL 3155153 (E.D.N.Y. 2008)................................................................................. 22 Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .......................................................................................................... 19 Pikulin v. Gonzalez, 2007 WL 1063353 (E.D.N.Y. 2007)................................................................................. 22 Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658 (2009) .................................................................................. 9 Ritz v. Breen, 2002 WL 519095 (D.Conn. 2002) ........................................................................ 12, 13, 14 Roundtree v. City of New York, 778 F.Supp. 614 (E.D.N.Y. 1991) .................................................................................... 16 Saucier v. Katz, 533 U.S. 194 (2001) .................................................................................................... 15, 16 Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009).......................................................................................... 9, 10 Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003)................................................................................................ 15 Sutton v. Duguid, 2007 WL 1456222 (E.D.N.Y. 2007).......................................................................... passim Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73 (1983) ............................................................................ 21 Terry v. Ohio, 392 U.S. 1 (1968) .............................................................................................................. 15 U.S. v. Muhammed, 463 F.3d 115 (2d Cir. 2006)........................................................................................ 12, 14 United Brotherhood of Carpenters v. Scott, 463 U.S. 825 (1983) .......................................................................................................... 21 United States v. Navas, 597 F.3d 492 (2d Cir. 2010).............................................................................................. 18 v
  • 7. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 7 of 30 PageID #: 269 Weinstein v. Columbia University, 224 F.3d 33 (2d Cir. 2000)................................................................................................ 10 Wood v. The Town of East Hampton, 2010 WL 3924847 (E.D.N.Y. 2010)................................................................................. 20 Zieper v. Metzinger, 474 F.3d 60 (2d Cir. 2007)........................................................................................... 13-14 Other Authorities 42 U.S.C. § 1983 ..................................................................................................... 1, 14, 15, 18, 19 42 U.S.C. § 1985 ..................................................................................................................... 21, 22 42 U.S.C. § 1986 ........................................................................................................... 1, 14, 21, 22 FED.R.CIV.P. 12(b)(6) ................................................................................................................... 22 FED.R.CIV.P. 56 .......................................................................................................................... 1, 9 N.Y.S. GEN. MUN. LAW § 50-h ....................................................................................................... 3 vi
  • 8. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 8 of 30 PageID #: 270 PRELIMINARY STATEMENT Defendants, The Town of Southampton (“the Town” and/or “Southampton”) and Southampton Town Police Lieutenant Robert Iberger (“Lt. Iberger”), bring the instant motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking judgment and dismissal of the complaint of the plaintiff, NANCY GENOVESE, insofar as the complaint sets forth claims against these defendants. Succinctly, the plaintiff has alleged a litany of federal (42 U.S.C. §§ 1983 and 1986) and state based claims against Lt. Iberger, including violation of the plaintiff’s constitutional rights, false arrest, false imprisonment, malicious prosecution, assault and battery, negligence and the negligent and/or intentional affliction of emotional distress upon the plaintiff. Additionally, the plaintiff puts forth a claim of negligent supervision against the Town, as well as claims against the Town based upon the theories of respondeat superior under New York Law and 42 U.S.C. § 1983.1 Plaintiff’s claims are premised upon an investigatory stop of the plaintiff initiated by Lt. Iberger, a 30 year veteran of the Southampton Town Police Department with particular training in counterterrorism awareness. Iberger initiated the encounter following his observation of plaintiff taking photographs of the military installation, in contravention of posted signs prohibiting it, located on County Road 31 in Westhampton, New York, known as Gabreski Airport.2 The plaintiff was slowly moving and stopping repeatedly, ultimately turning into the access road to the facility. Based upon these observations and his experience and training, Lt. Iberger, who was unarmed, not in uniform, on vacation and in his personal vehicle at all relevant 1 Fundamentally, a municipality cannot be held liable on a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); Ostroski v. Town of Southold, 443 F.Supp.2d 325, 345 (E.D.N.Y. 2006). As such, these Counts may be dismissed at the outset. 2 Gabreski Airport is within the jurisdiction of the Southampton Town Police Department (Rule 56.1 Statement, ¶ 31). 1
  • 9. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 9 of 30 PageID #: 271 times, approached, identified himself as a police officer and showed his badge, spoke with and briefly detained the plaintiff while he attempted to contact the base so their officials could investigate. As will be demonstrated upon the appropriate factual citations and case authorities below, each and every one of the plaintiff’s claims against Lt. Iberger and the Town must fail as a matter of law. The claims against the Town must fail because the plaintiff cannot demonstrate any policy, custom or practice of the Town to engage in violation of the rights of individuals such as the plaintiff necessary to support such claims. Additionally, the negligent hiring, training and retention claims against the Town must fail because these are discretionary functions of the Town and the municipal defendant may not be held answerable in damages for claims involving such discretion. Additionally, there is not a single fact in the record to demonstrate any negligence by the Town in its supervision, hiring or discipline of Lt. Iberger. Finally, the claims against the Town based upon theories of respondeat superior are directly prohibited by Monell, 436 U.S. at 691. With respect to Lt. Iberger, in the first instance he would be entitled to qualified immunity, as his conduct was clearly objectively reasonable under the totality of circumstances analysis. It is respectfully submitted that it is clear from the facts, construed in the light most favorable to the plaintiff, that nothing Lt. Iberger did, from the initial investigatory stop of the plaintiff through the time of his departure from the scene, suggest any wrongdoing of a constitutional, or any other nature. FACTS AND PROCEDURAL BACKGROUND Most of the salient facts upon which this court should rely in determining the instant motion come from the testimonial evidence adduced during discovery in this case. The 2
  • 10. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 10 of 30 PageID #: 272 plaintiff’s claims are set forth in her Complaint (Arntsen Declaration, Exhibit “A”). The plaintiff was examined under oath pursuant to New York State General Municipal Law § 50-h on March 16, 2010, and was deposed in the federal litigation on August 25, 2011 (Arntsen Declaration, Exhibits “B” and “C”, respectively). Lt. Iberger was deposed on January 24, 2012 and his transcript is annexed to the Arntsen Declaration as Exhibit “D”. Suffolk County Deputy Sheriff Robert Carlock was deposed on February 1, 2012, and his transcript is appended to the Arntsen Declaration as Exhibit “E”. Also provided for the court’s reference is the plaintiff’s Supplemental Notice of Claim against the Town (Arntsen Declaration, Exhibit “F”). The facts have been marshaled from these exhibits and set forth in the moving defendants’ Statement Pursuant to Rule 56.1, which has been filed in conjunction with the instant motion. The following facts can be culled from this evidence. On July 30, 2009, the plaintiff, Nancy Genovese, was traveling to her home from a shooting range in Ridge, New York and, in the course of doing so, was traveling down County Road 31 in Westhampton. (Rule 56.1 Statement, ¶¶ 1-3, Exhibit “B”, pp. 16-18). While approaching the Gabreski Airport, the plaintiff noticed a restored helicopter that she desired to photograph, thinking it might be a worthy addition to a planned website that she was going to build for the purpose of demonstrating support for our troops overseas (Rule 56.1 Statement, ¶ 2, Exhibit “B”, pp. 16-18). At the time that the plaintiff was taking these pictures in July of 2009, there were warning signs on the fence at Gabreski Airport indicating that it was a military facility, as well as signs warning that photographing the facility was in violation of federal law (Exhibit “D”, p. 59, l. 22 - p. 60, l. 16; Exhibit “E”, p. 46, l. 21 - p. 47, l. 16). Either unaware of the signs, or in knowing violation of them, the plaintiff nonetheless began snapping photographs 3
  • 11. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 11 of 30 PageID #: 273 from different positions along the roadway, allegedly trying to obtain a useful one of the helicopter in question. At or about this time, Lt. Iberger was driving south on County Road 31, whereupon he drove past plaintiff’s convertible vehicle parked to the north of the military entrance for the airport in which a female subject appeared to be photographing the facility’s fence line (Rule 56.1 Statement, ¶ 41; Exhibit “D”, p. 61, l. 15-25). This observation took place at approximately 6:40 p.m. (Rule 56.1 Statement, ¶ 42; Exhibit “D”, p. 61, l. 9-16). At the time of this observation, the convertible in which the female occupant was taking pictures had its top down; it was daylight and clear (Rule 56.1 Statement, ¶ 43; Exhibit “D”, p. 62, l. 11-23). Lt. Iberger drove past the vehicle and pulled over down the road with the intent of waiting for that vehicle to eventually pass him so he could record the license plate and forward the information to the Suffolk County Criminal Intelligence (Rule 56.1 Statement, ¶ 44; Exhibit “D”, p. 63, l. 25 - p. 64, l. 14). However, as he observed the vehicle while waiting for it to pass him, he noticed that the vehicle was moving slowly forward in increments followed by a stop, which process happened continuously (Rule 56.1 Statement ¶ 45; Exhibit “D”, p. 65, l. 9-18). It is important to again note here that Lt. Iberger, an officer with over 30 years of experience with the Southampton Town Police, had received specific training and has been certified by the United States Department of Homeland Security as a counterterrorism awareness instructor (Rule 56.1 Statement, ¶¶ 29-34; Exhibit “D”, p. 7, l. 16-17). Specifically, Lt. Iberger has training in tactics, the investigation of suspicious vehicles and persons, a search of motor vehicles and persons, how to check potential trouble spots, preliminary investigations, the interview of suspects and the preparation of reports of investigations (Rule 56.1 Statement, ¶ 32; Exhibit “D”, p. 16, l. 13 - p. 17, l. 15). In fact, Lt. Iberger was questioned at his deposition as to 4
  • 12. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 12 of 30 PageID #: 274 how he evaluates suspicious persons from a counterterrorism standpoint. Lt. Iberger testified that he looks for individuals that appear to be surveilling critical and/or important facilities or facilities of interest, particularly individuals who appear to be gathering information regarding the particular facilities, entrances, egresses, various locations within the facility, activities within the facility, comings and goings within the facility and/or persons who may be eliciting information regarding operations within the facility, probing security of the facility and/or making some type of documentation regarding the facility (Rule 56.1 Statement, ¶ 36; Exhibit “D”, p. 28, l. 13 - p. 29, l. 18). After the series of stops and starts and what appeared to be plaintiff’s continuous taking of photographs, the plaintiff’s vehicle finally turned off the shoulder of County Road 31 and into the entrance roadway for the military facility (Rule 56.1 Statement, ¶ 46; Exhibit “D”, p. 65, l. 21 - p. 66, l. 24). When he noticed the vehicle turn onto the access road, Lt. Iberger turned his vehicle, headed north and proceeded to follow onto that entrance road and pulled up alongside the plaintiff’s vehicle. (Rule 56.1 Statement, ¶ 47; Exhibit “D”, p. 71, l. 15-22). When Lt. Iberger encountered the plaintiff in the entrance access area, he observed her with the camera out as if she was taking photographs (Rule 56.1 Statement, ¶ 48; Exhibit “D”, p. 127, l. 12-17). Lt. Iberger identified himself to the female driver as a Southampton Town police officer, showed her his badge and asked her what she was doing, whereupon she advised that she was taking a photo of the helicopter (Rule 56.1 Statement, ¶ 49; Exhibit “D”, p. 72, l. 2-20). Lt. Iberger and the plaintiff agree that the plaintiff thereafter voluntarily offered Lt. Iberger a view of the photographs she had been taking in her camera (Rule 56.1 Statement, ¶ 14). Lt. Iberger testified that when he reviewed these photographs, he observed photographs of the signs indicating the name of the airport, of the fence, of the barbed wire areas and security 5
  • 13. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 13 of 30 PageID #: 275 features on the fence, consisting of a cable that ran along the fence (Rule 56.1 Statement, ¶ 51; Exhibit “D”, p. 73, l. 20 - p. 74, l. 21). At this point, Lt. Iberger attempted to get the attention of the guard in the security booth, which attempt was unsuccessful. He also tried to telephone Gabreski Airport from his cell phone, which attempt was also unsuccessful, which led him to call his office at the Southampton Town Police (Rule 56.1 Statement, ¶¶ 52-53; Exhibit “D”, p. 77). When he reached his dispatcher, he requested that she contact Gabreski security and advise them that he had an individual outside whom he believed was taking surveillance photos of the base, and he told her to request that somebody from security come out (Rule 56.1 Statement ¶ 53; Exhibit “D”, p. 80, l. 5-12). A couple of minutes after the phone call, security guards from Gabreski came out (Rule 56.1 Statement, ¶ 54; Exhibit “D”, p. 80, l. 19-25). Thereafter, one of the two security guards who came to the scene approached Lt. Iberger and asked him if he was aware that there was a gun case in the front seat of the convertible (Rule 56.1 Statement, ¶ 55; Exhibit “C”, p. 83, l. 4-18). Lt. Iberger then accompanied the officer from Gabreski Airport to the vehicle and noticed that the gun case was leaning against the passenger door on the floor of the open-topped convertible (Rule 56.1 Statement, ¶ 57; Exhibit “D”, p. 85, l. 4-6). At this point, Lt. Iberger asked the plaintiff what was in the case and she told him it was a shotgun, subsequently changing this information to advise that it was a rifle. At this point, Lt. Iberger advised the plaintiff he was going to secure the gun case for officer safety (Rule 56.1 Statement, ¶ 60; Exhibit “D”, p. 85, l. 16-25). Despite the fact that Lt. Iberger twice told the plaintiff while he was securing the gun case to stand back (Rule 56.1 Statement, ¶ 60; Exhibit “D”, p. 101, l. 4-6), the plaintiff tried to stop Lt. Iberger from removing the case from the car. As he was pulling the rifle case off the floor and opening the door, his elbow and shoulder came into contact with the right side of the 6
  • 14. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 14 of 30 PageID #: 276 plaintiff’s body (Rule 56.1 Statement, ¶¶ 22-23; Exhibit “C”, p. 131). As a result of this contact, the plaintiff claims she lost her balance, though she did not fall down (Rule 56.1 Statement, ¶ 23; Exhibit “C”, p. 131).3 This was the only physical contact between Lt. Iberger and the plaintiff during the event in question (Exhibit “B”, p. 206, l. 13 - p. 207, l. 14). Lt. Iberger then took the gun case a short distance from the vehicle, opened it and observed what appeared to be the stock of an M4-type AR-15 assault rifle (Rule 56.1 Statement, ¶ 61; Exhibit “D”, p. 87, l. 18 - p. 88, l. 4). After making the determination as to the type of gun that was in the case, the lieutenant advised the plaintiff that it would be secured for officer safety and handed it to one of the Gabreski security officers, who in turn placed it in the back of a pick- up truck that did not belong to Lt. Iberger (Rule 56.1 Statement, ¶ 62; Exhibit “D”, p. 90, l. 8- 16). After the gun was secured in the military vehicle, Lt. Iberger observed that two Suffolk County Sheriff’s Deputies had arrived on the scene (Rule 56.1 Statement, ¶ 64; Exhibit “D”, p. 92, l. 19-23). The lieutenant did not contact the Sheriff’s office and does not know how it came about that the Suffolk County Sheriff’s office came to arrive at the scene (Rule 56.1 Statement, ¶ 66; Exhibit “D”, p. 94, l. 25 - p. 95, l. 17). Lt. Iberger advised the Sheriffs of his observations and what occurred to that point (Rule 56.1 Statement, ¶ 68; Exhibit “D”, p. 97, l. 19-23), gave the Sheriffs his business card and left the scene within moments after their arrival (Rule 56.1 Statement, ¶¶ 70-71; Exhibit “D”, p. 98, l. 10 p. 99, l. 14). In total, Lt. Iberger estimated that he had been at the scene for approximately 30-40 minutes, since he had arrived at approximately 6:40 p.m. and left at 7:16 p.m. (Rule 56.1 Statement, ¶ 67; Exhibit “D”, p. 96, l. 12-25). 3 While the plaintiff claims that she sustained bruises as part of her damages in this case, she believed that they all occurred while she was being processed inside the jail by the Suffolk County Sheriffs, and not at the scene during her interactions with Lt. Iberger (Rule 56.1 Statement, ¶ 24; Exhibit “C”, p. 13, l. 10-22). 7
  • 15. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 15 of 30 PageID #: 277 Lt. Iberger further testified that he had never met or seen the plaintiff before July 30, 2009. (Rule 56.1 Statement, ¶ 73; Exhibit “D”, p. 73).4 He never had the intention to, and did not arrest the plaintiff (Rule 56.1 Statement, ¶ 75; Exhibit “D”, p. 105, l. 6-9); in fact, it was Suffolk County Deputy Sheriff Carlock who arrested the plaintiff (Rule 56.1 Statement, ¶ 20; Exhibit “E”, p. 27, l. 2-7). Moreover, neither Lt. Iberger nor any other Southampton employee searched the plaintiff’s trunk, handcuffed her, nor participated in any of the follow-up investigation or events which occurred after her arrest and removal from the scene by the Suffolk County Deputy Sheriffs. In fact, the plaintiff herself testified that she was not assaulted or battered by the Southampton Town Police (Rule 56.1 Statement, ¶ 21; Exhibit “B”, p. 226-227). Despite the plaintiff’s contentions that there appeared to be a number of officers of various local, state and federal law enforcement at the scene, she has no evidence to back up this claim. In fact, the only member of the Southampton Town Police who ever dealt with the plaintiff was Lt. Iberger. 4 Though it is significant for the Court to be made aware of the fact that the plaintiff had been at the military facility inquiring about the contents of containers behind the secured fence on a prior occasion (Rule 56.1 Statement, ¶ 15; Exhibit “B”, pp. 43-44), Lt. Iberger was not aware of that fact prior to his encounter with her on July 30, 2009 (Rule 56.1 Statement, ¶ 74; Exhibit “D”, p. 101, l. 10-14). 8
  • 16. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 16 of 30 PageID #: 278 ARGUMENT POINT I STANDARD OF REVIEW Summary judgment is appropriate only if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. See, FED.R.CIV.P. 56(c); Sutton v. Duguid, 2007 WL 1456222 *3 (E.D.N.Y. 2007); Maragh v. City of New York, 2012 WL 1745349 *3 (E.D.N.Y. 2012). In ruling on a summary judgment motion, the district court must first “determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted); see Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677 (2009) (holding that “[o]n a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” (Emphasis added) (internal quotations and citation omitted). “A fact is material if it ‘might affect the outcome of the suit under governing law.’” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci, 129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)). “The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact,” F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotations and citation omitted), after which the burden shifts to the nonmoving party to “come 9
  • 17. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 17 of 30 PageID #: 279 forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.; see also Spinelli¸ 579 F.3d at 166. The nonmoving party can only defeat summary judgment “by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of” a factual question that must be resolved at trial. Spinelli¸ 579 F.3d at 166 (internal quotations and citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Unsupported allegations do not create a material issue of fact, Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000); “the opposing party must do more than show there is some metaphysical doubt as to the material facts.” Sutton, at *3 (internal citations omitted). POINT II LT. IBERGER IS ENTITLED TO QUALIFIED IMMUNITY AND DISMISSAL OF ALL CLAIMS AGAINST HIM. A) Qualified Immunity, Generally The qualified immunity doctrine protects government officials from suits seeking to impose personal liability for money damages based on unsettled rights or on conduct that was not objectively unreasonable, and reduces the general costs of subjecting officials to the risks of trial--a distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. Maragh, at *3, (internal citations omitted). A government official sued in an individual capacity is entitled to qualified immunity if the challenged actions were objectively legally reasonable in light of the legal rules that were established at the time they were taken. Maragh, at *4, citing Munafo v. Metropolitan Transportation Authority, 285 F.3d 201, 210 (2d Cir. 2002). 10
  • 18. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 18 of 30 PageID #: 280 Qualified immunity is said to be justified in part by the risk that the fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (internal citation omitted). Qualified immunity is thus not merely a defense, but an entitlement not to stand trial or face the other burdens of litigation. Sutton, at *5 (internal citations omitted). B) False Arrest Claims Though Lt. Iberger did not arrest the plaintiff in this case, the standard for affording qualified immunity to police officers who make an investigatory stop is the same as that which applies to a false arrest claim. Sutton, at *6. The Court of Appeals for the Second Circuit has concluded that an arresting police officer ultimately found not to have probable cause for a challenged arrest is still entitled to qualified immunity from a suit for damages if he can establish that there was arguable probable cause to arrest. See, Crenshaw v. City of Mt. Vernon, 372 Fed.Appx. 202, 205 (2d Cir. 2010). Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met. Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (the analytically distinct test for qualified immunity is more favorable to . . . officers than the one for probable cause; arguable probable cause will suffice to confer qualified immunity for the arrest.) Maragh, at *4 citing Escalera, 361 F.3d at 743; Sutton, at *6. Of course, in this case, Lt. Iberger did not arrest the plaintiff. Rather, based upon his experience of 30 years on the police force and his status as a certified counterterrorism awareness instructor, he noticed an illegal activity, which activity was prohibited by marked signs in the immediate vicinity of where the activity was taking place, and he thus made an 11
  • 19. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 19 of 30 PageID #: 281 investigatory stop which lasted “30-40 minutes” (Exhibit “D”, p. 96, l. 12-25). Lt. Iberger’s actions, which are not in dispute, consisted of (a) an observation of the plaintiff’s activity, i.e., her illegal photographing of the military base, (b) his investigatory stop when she turned her vehicle into the access roadway to the military base, during which he identified himself as a police officer and showed his badge, (c) his viewing the photographs, with plaintiff’s consent, which depicted the signs indicating the name of the airport, the security fence, the barbed wire areas and security features on the fence, (d) his efforts to communicate with the base to have them investigate the matter further, (e) his removal of the rifle case from the vehicle and examination of the weapon therein, and (f) his discussion of the events which transpired prior to their arrival with the Deputy Sheriffs. None of these actions can be deemed “objectively unreasonable”.5 i) The investigatory stop passes constitutional muster Because the balance between the public interest and the individual’s right to personal security tilts in favor of a standard less than probable cause in cases involving brief investigatory stops, the Fourth Amendment is satisfied if the officer’s action is supported by a reasonable suspicion to believe that criminal activity may be afoot. Ritz v. Breen, 2002 WL 519095 *3 (D.Conn. 2002); see also, Sutton at *4. The court must assess the totality of the circumstances supporting the stop and determine whether the officer’s suspicion of wrongdoing has an objective and particularized basis. U.S. v. Muhammed, 463 F.3d 115, 121 (2d Cir. 2006); Sutton at *4. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 5 While the plaintiff may in fact have been lawfully coming from a shooting range, and further truthfully attempting to obtain a photograph of the helicopter, in light of the illegality of this activity, Lt. Iberger’s investigatory stop was not only reasonable, but justified. See, e.g., Sutton at *7, “suspicious circumstances may have innocent explanations; but the availability of an innocent explanation does not create an issue of fact as to the reasonableness of the suspicion”. 12
  • 20. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 20 of 30 PageID #: 282 might well elude an untrained person. Ritz, at *4 (internal citation omitted). In this case, the court must assess whether Lt. Iberger had a particularized and objective basis for suspecting legal wrongdoing. Ritz, at *4. ii) Lt. Iberger is entitled to Qualified Immunity Lt. Iberger’s testimony with regard to the totality of the circumstances clearly supports his decision to briefly detain plaintiff for investigatory purposes herein. He had observed the plaintiff taking photographs in an area where such photographs were prohibited by posted signs. Relying on his experience and specialized training in counterterrorism, Lt. Iberger positioned himself such as to observe the vehicle if it passed by for the sole purpose, initially, of getting the license plate and passing it on to the appropriate Suffolk County authorities (Exhibit “C”, p. 63, l. 25 - p. 64, l. 14). When he noticed the vehicle approaching the entranceway to the military facility after several continuous starts and stops, he decided to perform further investigation with the driver of the vehicle, whereupon he properly identified himself as a police officer and was voluntarily shown copies of the photographs that the plaintiff had been taking, which depicted various aspects of the secured facility. This court, in Sutton v. Duguid, at *7 held that the defendants had reasonable suspicion to stop the plaintiff given the totality of circumstances surrounding the investigatory stop therein. Moreover, this court held that, “even assuming arguendo that defendants lacked reasonable suspicion to stop plaintiff, the court finds that defendants are entitled to qualified immunity on plaintiff’s Fourth Amendment claim based on the initial stop because defendants, at a minimum, had arguable reasonable suspicion to stop plaintiff because it was objectively reasonable for the officers to believe reasonable suspicion existed to stop the plaintiff”, citing Zieper v. Metzinger, 474 F.3d 60, 71 (2d Cir. 2007) (“the qualified immunity standard gives ample room for mistake 13
  • 21. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 21 of 30 PageID #: 283 in judgments by protecting all but the plainly incompetent or those who knowingly violate the law” (internal citation omitted)). In Crenshaw, the second Circuit afforded qualified immunity to an officer who made an investigatory stop and detention while the existence of a suspected warrant was confirmed. 372 Fed.Appx. at 206-207. In Harlowe v. Floyd, 2011 WL 674024 *10 (D.Conn. 2011), the court held that no reasonable jury could find that a 30 minute traffic stop was unreasonable under the circumstances, including a suspicion of DWI. This court should likewise find, in light of the totality of the circumstances presented to Lt. Iberger, viewed from his perspective and with an allowance for him to draw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to him, that Lt. Iberger’s suspicion of wrongdoing had an objective and particularized basis. Muhammed, 463 F.3d at 121. Therefore, under the circumstances presented, Lt. Iberger’s actions in briefly detaining the plaintiff while he alerted the military base authorities, did not violate any clearly established right of the plaintiff, nor was it otherwise violative of the Constitution. He is, therefore, entitled to qualified immunity. (See, Sutton, supra; Ritz v. Breen, 2002 WL 519095 at *5.6 6 Review of the plaintiff’s complaint (Exhibit “A”) reflects that the plaintiff also makes § 1983 based constitutional claims alleging that Lt. Iberger deprived her of her “freedom to engage in protected speech, association and expressive conduct, freedom from arrest without probable cause; freedom from the lodging of false charges against her by law enforcement officers; freedom from malicious prosecution by law enforcement officers . . . freedom from the denial of equal protection, privileges and immunities under the laws; and freedom from the deliberate indifference to plaintiff’s serious medical condition” (Exhibit “E”, ¶145A, D, F, G, I, and J). However, as the court will glean from review of the complaint, there is no factual basis alleged therein, and certainly no testimonial or other evidence to support any claim that Lt. Iberger was involved in any action that resulted in a violation of plaintiff’s First Amendment rights, her right to be free from arrest without probable cause, the lodging of false charges, malicious prosecution, equal protection or deliberate indifference to the plaintiff’s serious medical condition. Lt. Iberger did not arrest, lodge charges nor institute any prosecution of the plaintiff. Therefore, not only would Lt. Iberger be entitled to qualified immunity on the basis of his limited involvement at the scene of the occurrence, but there is utterly no factual basis to sustain these claims against him in his individual capacity and therefore the plaintiff’s First Count and Fifth Count (pursuant to 42 U.S.C. § 1986) must be dismissed at the outset. 14
  • 22. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 22 of 30 PageID #: 284 C) No Excessive Use of Force Claim May Stand Paragraph 145 B of the Complaint contains a perfunctory § 1983 Fourth Amendment claim that Lt. Iberger used excessive force during the investigatory stop (Exhibit “A”). With regard to the issue of the physical contact between the plaintiff and Lt. Iberger, it is clear from the facts, even in a light most favorable to the plaintiff, that Lt. Iberger is entitled to qualified immunity and, even if he weren’t, the “force” used was not impermissible under the circumstances. It is well established that the use of force is only contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003), citing Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Sutton, at *11; Ostroski, 443 F.Supp.2d at 341. The Supreme Court has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion to effect it. Graham v. O’Connor, 490 U.S. 386, 396 (1989). Indeed, not every push or shove is unconstitutionally excessive. See, Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004); Ostroski, 443 F.Supp.2d at 341-342. Amongst the factors to be considered is whether the suspect poses an immediate threat to the safety of the officers or others. Graham, 490 U.S. at 396. Reasonableness in this context must be assessed from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396, citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968). In Azor v. City of New York, 2012 WL 1117256 *4 (E.D.N.Y. 2012), the Court found that a “rough grab” search of plaintiff’s pockets, and his being “pushed” by officers on to a rear door of the police vehicle were “minimal and reasonable” uses of force incidental to search the plaintiff to make sure he was not armed. In the case at bar, the only contact alleged by plaintiff 15
  • 23. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 23 of 30 PageID #: 285 was clearly incidental to the removal of the rifle case from the vehicle and must likewise be considered “minimal and reasonable”. See also, Esmont v. City of New York, 371 F.Supp.2d 202, 213-215 (summary judgment granted where officer caused plaintiff to bump his head when she was placed in the patrol car, left in the hot car for a period of minutes and had handcuffs applied too tightly). “To conclude that a push that does not cause the slightest physical injury...is an actionable use of excessive force would be to hold that any physical contact by an arresting officer is actionable...” Roundtree v. City of New York, 778 F.Supp. 614, 622 (E.D.N.Y. 1991). Clearly, the incidental contact between plaintiff and Lt. Iberger herein did not offend in the constitutional sense. Moreover, even officers who are found to have used excessive force may be entitled through the qualified immunity doctrine to an extra layer of protection from the sometimes hazy border between excessive and acceptable force. Saucier, 533 U.S. at 206. The relevant inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202. In this case, under no construction of the facts could Lt. Iberger’s actions in attempting to secure the rifle case from the vehicle and separate himself from the plaintiff who was trying to prevent him from doing so be deemed to be unreasonable. Lt. Iberger testified that he twice told the plaintiff to stand back as he was securing the gun case for officer safety (Exhibit “D”, p. 101, l. 4-6). The plaintiff testified that Lt. Iberger only contacted her while he was pulling the rifle case up off the car floor and opening the door, at which time his elbow and shoulder came into contact with the right side of the plaintiff’s body (Exhibit “B”, p. 131).7 She testified that she did not fall down, though she lost her balance (Exhibit “B”, p. 131). The plaintiff further testified 7 Clearly, the plaintiff could not have, and did not, apprehend imminent physical (yet unintended and incidental) contact, thus defeating any common law assault and battery claims (Exhibit “A”, Count 10). See, Marilyn S. v. Independent Group Home Living Program, Inc., 903 N.Y.S.2d 403, 406 (2d Dep’t. 2010). 16
  • 24. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 24 of 30 PageID #: 286 that the bruising to her body that she alleges as part of her damages claim in this case occurred while she was being processed inside the jail by the Suffolk County Sheriffs, and did not involve any of the contact with Lt. Iberger (Exhibit “B”, p. 13, l. 10-22). D) Removal of the plaintiff’s rifle case from the car was not an unreasonable search and seizure under the Fourth Amendment In paragraph 145 C of her Complaint, plaintiff alleges that Lt. Iberger violated her right to be free from an unreasonable search and seizure of property under the Fourth Amendment (Exhibit “A”). Under the circumstances to be adduced from the record before the Court, the retrieval of the assault rifle from the plaintiff’s open-topped vehicle did not violate her Fourth Amendment rights. The plaintiff admitted that she was carrying the semiautomatic assault rifle kept in a case, which was in plain view from the outside of the car, which was a convertible with its top down (Exhibit “B”, pp. 56-57; p. 202, l. 19 - p. 203, l. 5). In fact, the rifle case clearly said “Bushmaster” on the outside (Exhibit “B”, p. 202, l. 19 - p. 203, l. 5). The rifle case was noticed first by one of the Gabreski Airport security officers, who inquired as to what the case was and whether Lt. Iberger was aware of it (Exhibit “D”, p. 83, l. 4-18). After this discussion with the Gabreski security officer, Lt. Iberger observed the gun case leaning against the passenger door on the floor of the open-topped convertible (Exhibit “D”, p. 85, l. 4-6). Lt. Iberger then inquired of the plaintiff as to the nature of the item in the case, whereupon he was told that there was a shotgun therein; however, she changed this to note that it was a rifle, but also advised that she didn’t know what kind of rifle it was at which point Lt. Iberger advised the plaintiff that he would secure the gun case for officer safety (Exhibit “D”, p. 85, l. 16-25). It is, therefore, not in serious dispute that the rifle case was in plain view, which allowed Lt. Iberger to “search” the vehicle, even though the “search” in question only involved the 17
  • 25. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 25 of 30 PageID #: 287 removal of the item which was in plain view and nothing further.8 See, e.g. Hodge v. Village of Southampton, ___ F.Supp.2d ___, 2012 WL 174838 at *12 (E.D.N.Y. 2012). This “search”, to the extent it can be considered one, would clearly be valid under the automobile exception to the warrant requirement, which allows a warrantless search of a readily mobile vehicle where there is probable cause to believe that the vehicle contains contraband. Hodge, at *12, citing United States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010). As the Supreme Court noted in Horton v. California, 496 U.S. 128, 133 (1990), “if an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy”. The Horton Court further held that “an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant”. 496 U.S. at 135. As has already been established herein, Lt. Iberger’s investigatory stop passes all constitutional guidelines and, therefore removal of the gun case from the vehicle is not violative of the Fourth Amendment. POINT III THE TOWN OF SOUTHAMPTON IS ENTITLED TO SUMMARY JUDGMENT. In the plaintiff’s complaint, three of the fourteen counts seek to impose liability against the Town of Southampton. The plaintiff’s Second Count, entitled “Alternate Liability”, and purportedly premised upon 42 U.S.C. § 1983, acknowledges that “respondeat superior” is not now a basis for the Town’s liability under existing law, that there exists a good faith argument for the modification of that rule based upon Justice Breyer’s dissenting opinion in the Board of County Commissioners of Bryan County, Oklahoma v. Jill Brown, 520 U.S. 597 (1997) (Exhibit 8 It is to be noted that a second search was undertaken of the plaintiff’s vehicle after the vehicle was impounded by the Suffolk County Sheriff’s Department. Neither Lt. Iberger nor any other member of the Southampton Town Police Department took part in nor was even aware of this second search. 18
  • 26. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 26 of 30 PageID #: 288 “D”, ¶ 149). In addition to the Second Count, the Third Count is brought against the Town (as well as the County) on a “Monell” claim for failure to train, supervise and discipline Lt. Iberger. Finally, plaintiff’s Fourteenth Count alleges that the Town of Southampton is liable for Iberger’s actions under the common law doctrine of respondeat superior (Exhibit “D”, ¶ 198). To sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff must show (1) the existence of an officially adopted policy or custom and (2) a causal connection between the custom or policy and the deprivation of a constitutional right. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). A plaintiff may demonstrate the existence of a policy or custom either by providing evidence of a formal policy adopted by the municipality, Monell, 436 U.S. at 690, or based upon a single unconstitutional act or decision when that act is taken by an authorized decision maker, thereby sufficient to be considered a policy and thus subject the municipality to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-484 (1986). Additionally, a policy may be established by showing that the acts of the municipal agent or a part of a widespread practice that, although not expressly authorized, constitutes a custom or usage of which a supervising policymaker must have been aware. Board of County Commissioners v. Brown, 520 U.S. 397, 403-404 (1988); Monell, 436 U.S. at 690-691. Finally, where a municipality’s failure to provide adequate training or supervision of its agents rises to the level of deliberate indifference, § 1983 liability may lie against the municipality. Brown, 520 U.S. at 407; Cash v. County of Erie, 2011 WL 3625093 at *7 (2d Cir. 2011). A single incident alleged in a complaint, especially if it involved only actors below the policymaking level, does not suffice to show a municipal policy. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); Castilla v. City of New York, 2011 WL 4345934 at *3 (S.D.N.Y. 2011).9 9 Moreover, punitive damages cannot be awarded against a municipality as a matter of public policy. 19
  • 27. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 27 of 30 PageID #: 289 It is respectfully submitted to the court that none of the avenues of potential Monell liability available to civil rights plaintiffs can be utilized successfully by the plaintiff in this action. There is absolutely no evidence of a formal policy officially adopted by the municipality reflecting ratification of allegedly improper investigatory stops. Lt. Iberger’s actions in questioning and temporarily detaining the plaintiff were, as demonstrated, clearly reasonable under the circumstances he encountered. Moreover, Lt. Iberger is not a decision maker and therefore his singular act on the date in question cannot subject the Town of Southampton to liability. See, e.g. Wood v. The Town of East Hampton, 2010 WL 3924847, *25 (E.D.N.Y. 2010). Even if Lt. Iberger were to be considered a policymaker, he must also be the policymaker responsible for establishing final government policy respecting the particular activity in question before the municipality can be held liable. In this case, as was the situation before the court in Wood, the plaintiff’s complaint does not allege that Lt. Iberger had final decision making policy, and the record would not bear out such a claim even if it did. Finally, the federal claims against the municipality that are exclusively, and impermissibly, based upon theories of respondeat superior under federal and state law must be dismissed as a matter of law. See, Monell, supra; Ostroski, 443 F.Supp.2d at 345. Likewise, plaintiff’s common law tort claim against the Town (Thirteenth Count) based upon a theory of respondeat superior is not permitted, as allowing such claims would undermine the Monell requirement that the plaintiffs prove direct causation between the acts of the Town and the alleged constitutional violation. Plaintiffs may not, therefore, invoke respondeat superior to circumvent the strict requirements of establishing municipal liability for allegedly unconstitutional acts by police officers. See, Javid v. Scott, 913 F.Supp. 223 (S.D.N.Y. 1996). 20
  • 28. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 28 of 30 PageID #: 290 Similarly, with respect to the plaintiff’s claims premised upon negligent hiring, training and retention, the Town is entitled to governmental immunity in the exercise of its discretion in investigating and evaluating the qualifications of its officers. Mon v. City of New York, 78 N.Y.2d 309, 574 N.Y.S.2d 529 (1991). The hiring, training, discipline and retention of Town of Southampton Police Department employees are discretionary functions and, thus the Town is not answerable on damages for any alleged injurious consequences of that action. Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 76 (1983). Moreover, the record before the court is utterly devoid of any evidence to support the negligent hiring, training, discipline and retention claims set forth in the complaint. POINT IV PLAINTIFF’S 42 U.S.C. § 1986 COUNT MUST BE DISMISSED AS A MATTER OF LAW. The Fifth Count of the plaintiff’s complaint alleges unspecified constitutional violations and liability pursuant to 42 U.S.C. § 1986 (Exhibit “A”, ¶¶ 163-166). In order to establish a violation of § 1986, a plaintiff must first establish a violation of § 1985 which the § 1986 defendant neglected to prevent. Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997). To make out a violation of 42 U.S.C. § 1985(3)10, the plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828- 29 (1983). With respect to the second element, a plaintiff must show that the conspiracy was 10 The plaintiff’s § 1986 claim is vague and inartfully worded, but seems to invoke subdivision 3 of § 1985 which directs its attention to the deprivation of rights or privileges of persons. 21
  • 29. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 29 of 30 PageID #: 291 motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus; thus, in order to maintain a claim for conspiracy under § 1985(3), plaintiffs must allege a deprivation of rights on account of their membership in a protected class. See, Pikulin v. Gonzalez, 2007 WL 1063353 at *2 (E.D.N.Y. 2007). In this action, plaintiff has not alleged nor set forth any facts which would support a § 1985(3) class-based conspiracy claim, and as such, there is no basis herein for the assertion of a claim under § 1986. See Pikulin, at *3. See also, Guadagni v. New York City Transit Authority, 2009 WL 205050 *4-*5 (E.D.N.Y 2009). POINT V PLAINTIFF’S NEW YORK STATE SUPPLEMENTAL JURISDICTION CLAIMS SHOULD BE DISMISSED. This court should, in its discretion, decline to exercise supplemental jurisdiction over the plaintiff’s state law claims following its grant of summary judgment on the federal claims raised by the plaintiff. See, e.g. Palmeri v. Town of Babylon, 2008 WL 3155153 *19 (E.D.N.Y. 2008). As noted by the court in Palmeri, “in the interest of comity, the Second Circuit instructs that, absent exceptional circumstances, where federal claims can be disposed of pursuant to Rule 12(b)(6) or on summary judgment grounds, courts should abstain from exercising pendant jurisdiction” (internal citations omitted). As such, Counts Six through Fourteen, all of which are premised upon New York State common law theories of liability and/or New York State Constitutional claims and properly before this court only upon its exercise of supplemental jurisdiction should be dismissed. 22
  • 30. Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 30 of 30 PageID #: 292 CONCLUSION It is thus respectfully requested that the court, for the reasons articulated herein and upon all papers offered in support of defendants’ motion for summary judgment, grant the defendants summary judgment, along with such other and further relief as to the court seems just and proper. Dated: Smithtown, New York May 25, 2012 _____________/S/____________________ DAVID H. ARNTSEN 23