OPINION

ROBERT W. SWEET, U.S.D.J.

Defendants Metro-North Commuter Railroad ("Metro-North") and Metro-North Police Officer Chris Rockett ("Rockett") (collectively "defendants") have moved to dismiss the remaining claims in the complaint for summary judgment pursuant to Rule 56, Fed.R.Civ.P.

For the reasons stated below, the complaint is dismissed in part.

The Parties

At the time of the incident alleged in the complaint, Smith, a twenty-one year old Westchester Community College student, was a passenger on a Metro-North train about to depart for Westchester from Grand Central Terminal.

Defendant Metro-North Commuter Railroad Company is a public benefit corporation that is a wholly owned subsidiary of the Metropolitan Transportation authority (the "MTA"), a New York public authority. It provides commuter rail service out of Grand Central Terminal in New York City to outlying areas in New York and Connecticut. During the time period relevant to this complaint, Metro-North has operated a police department known as the Metro-North Police Department pursuant to the laws of the State of New York. That police department is now operated by the MTA.

On the date of the incident giving rise to the complaint, defendant Rockett, who was employed as Metro-North Police Officer Shield # 1123, arrested Smith at Grand Central Terminal. Rockett is sued here in both his individual and official capacities.

Backqround

The complaint alleges that Smith's constitutional rights were violated when, on June 24, 1996, defendant Rockett seriously injured him during the course of an unfounded arrest outside a Metro-North train at Grand Central Terminal.

By motion of December 15, 1999, the defendants moved for summary judgment. Plaintiff's response was received on June 7, 2000. The motion was deemed fully submitted after the defendants filed a reply brief on August 2, 2000.

Undisputed Facts

Except as otherwise noted, both parties agree that the following facts are true.

At approximately 10:30 pm on June 20, 1996, Smith and four friends, Adrian DiRusso ("DiRusso"), Jennifer Mannix ("Mannix"), Kelly Kutch ("Kutch") and Lori Hillman ("Hillman"), boarded a Westchester-bound Metro-North train at Grand Central Terminal after spending the evening in Manhattan. Earlier that afternoon, Smith and DiRusso had purchased a six-pack of beer. Smith had consumed one of them while sitting on a park bench downtown and placed the remaining beers inside his backpack.

Once on the train, Smith realized he did not have a return ticket. Upon hearing that passengers would be required to pay a surcharge of $2.00 if they purchased tickets on the train rather than at the ticket window, Smith exited the train, purchased a ticket at the booth inside the Terminal, and then reentered the train before it departed from Track 28.

At approximately the same time, Rockett was nearing the end of his eight-hour shift patrolling Grand Central Terminal. As Rockett walked with Officer Jorge Santamaria ("Santamaria") toward the police locker room to go off duty, Metro-North Conductor Alan Mumford ("Mumford") approached them and asked them to accompany him to a car on the Track 28 train, where he said he had seen two disorderly people. Conductor Mumford escorted the officers into the car where Smith and his companions were sitting, pointed them out, and insisted that they be removed from the train.

Rockett and Santamaria requested that Smith and DiRusso step off the train and show identification. Both men complied. Smith and DiRusso were placed under arrest, and Rockett and Santamaria escorted them to the Metro-North Police Station. At some point between the time Smith left the train and the time he was placed under arrest, he was involved in an altercation with Rockett that left Smith with lasting injuries to the left side of his face and to his left eye.

Smith was subsequently charged with disorderly conduct and resisting arrest, received a Desk Appearance Ticket, and was released on his own recognizance. Smith consented to an Adjournment in Contemplation of Dismissal in the New York Criminal Court on April 30, 1997.

Whatever indeed took place on the Grand Central platform, it is undisputed that Smith suffered serious injuries to his face and eye. Four days after the altercation, Smith was treated for an acute, complex fracture of the left infra-orbital bone/left inferior periorbital rim fracture with entrapment of the left eye on lateral movement and nerve loss over the left side of his face down to his upper lip. He underwent open reduction internal fixation surgery, which involved the permanent installation of plates and fixation screws into the left side of his face. Rockett did not claim any physical injury.

Smith filed seven causes of action pursuant to 42 U.S.C. § 1983, 1985 and 1986: (I) cruel and unusual punishment by use of excessive force in violation of the Eighth and Fourteenth Amendments; (II) retaliation for exercising speech rights in violation of the First and Fourteenth Amendments; (III) conspiracy to retaliate against protected speech; (IV) deliberate indifference due to both Rockett's "violent" nature and due to (V) "inadequate and improper police training," both in violation of the Eighth and Fourteenth Amendments; (VI) malicious prosecution; and (VII) civil conspiracy. As noted above, Smith has voluntarily withdrawn Counts VI and VII.

Discussion I. Motion to Dismiss

Although defendants have not explicitly moved to dismiss the complaint for failure to state a claim, the Court has discretion to dismiss claims sua sponte pursuant to Rule 12(b)(6), particularly where it is clear that a plaintiff could not have prevailed on the facts as alleged in the complaint. See Fitzgerald v. Feinberg, No. 98 Civ. 8885, 82714 (RWS), 1999 WL 619584, * 5-6 (S.D.N.Y. Aug. 16, 1999). Sua sponte dismissal for failure to state a claim is appropriate where the plaintiff is given notice and an opportunity to be heard. See Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994)

Smith is on notice that the complaint could be dismissed for failure to state a claim. First, the defendants' second affirmative defense is that the complaint "fails to state a cause of action upon which relief can be granted," and their eleventh affirmative defense is that Smith failed "to adequately plea [sic] and/or prove that the defendants instituted a `policy or custom' of inadequate training and/or supervision so as to justify the claims of municipal liability." (Ans. ¶¶ 61, 70.) Furthermore, defendants' memorandum of law in support of the instant motion argues that the complaint must be dismissed for failure to state a claim. (See Def. Mem. at 14-18); see Hympherys v. Nager, 962 F. Supp. 347, 353 (E.D.N.Y. 1997)

A. Legal Standard for Motion to Dismiss

In considering whether to dismiss a complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., a court must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is "appropriate only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) ( quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))

B. Count I: Excessive Force

Not every instance of force proscribed by state law rises to the level of a constitutional violation so as to support a § 1983 action. Graham v. Connor, 490 U.S. 386, 396 (1989) (approving same observation made in Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)). However, while "[t]he fact that a person whom a police officer attempts to arrest resists, threatens or assaults the officer no doubt justifies the officer's use of some degree of force, . . . it does not give the officer license to use force without limit.Sullivan v. Gaignier, No. 99-7027, 2000 WL 1180284, *3 (2d Cir. Aug. 21, 2000)

A plaintiff must allege with specificity which constitutional right was allegedly infringed by the excessive use of force in order to sustain a § 1983 claim. Graham, 490 U.S. at 394. In Count I, Smith alleges that his Eighth and Fourteenth Amendment right "to be free from cruel and unusual punishment" was infringed by Rockett's conduct. (Compl. ¶ 47.) However, it is well-settled that the Eighth Amendment's protection against "cruel and unusual punishment" does not apply until after the State has been granted the right to punish, that is, after arraignment, conviction and sentence. See Graham, 490 U.S. at 39495 n. 10; Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979).

At the time of the altercation, Smith was an arrestee, not a prisoner protected by the Eighth Amendment. "Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable . . . seizures' of the person." Graham, 490 U.S. at 394 (citing Tennessee v. Garner, 471 U.S. 1, 7-8 (1985)); see Thomas v. Roach, 165 F.3d 137. 143 (2d Cir. 1999)

Under the Fourth Amendment, an officer's use of force must be considered for objective reasonableness under the totality of the circumstances in the specific facts of the case, "including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others and whether he is actively resisting arrest." Sullivan, 2000 WL 1180284, at *2. The officer's use of force "must be reasonably related to the nature of the resistance and the force used, threatened or reasonably perceived to be threatened, against the officer." Id. at *3.

In a memorandum of law in opposition to defendants' motion for summary judgment and dismissal, plaintiff concedes that his excessive force claim should be analyzed under the Fourth Amendment. (Pl. Opp. Mem. at 7-8.) However, in deciding whether a plaintiff has stated a claim sufficiently to withstand a motion to dismiss, a court may consider only the complaint and its attachments, not the moving papers. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) ("In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits and documents incorporated by reference in the complaint.") (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991))

As pleaded, Count I fails to state a claim for a violation of the Eighth Amendment and will be dismissed pursuant to Rule 12 (b)(6), Fed.R.Civ.P.

C. Count II: Retaliation against Protected Speech

The complaint describes the factual predicate for the First Amendment claim as follows:

As plaintiff was walking out of the subject train, he observed another Metro-North police officer, defendant Police Officer Rockett, on the platform immediately outside the train. This defendant was described as a white male, approximately 6 feet tall, slender build in his twenties or early thirties . . . Plaintiff then said: "Why are we getting kidked off?" Plaintiff then observed defendant Rockett rotate his shoulders and swing his body and hit plaintiff on the left side of plaintiff's face with his fist and/or a foreign object, thereby imploding the plaintiff's left eye socket and cheek.

(Compl. ¶¶ 19-20.) Based upon these factual allegations, Count II of the complaint charges that defendants "acted under color of state law to deprive plaintiff of his right to free speech by using excessive force on plaintiff and/or by filing false reports that improperly subjected plaintiff to arrest and imprisonment. . . ." (Compl. ¶ 49.)

Count II essentially claims that Rockett retaliated against Smith for exercising his speech rights by questioning the authorities' justification for ejecting him from the train. As a rule, a § 1983 claim is appropriate where the government or its representative takes negative action against an individual due to his exercise of Constitutional rights. See Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000); Greenwich Citizens Comm., Inc. v. Counties of Warren Washington Indus. Dev. Agency, 77 F.3d 26, 33 (2d Cir. 1996) (plaintiffs may state "claims of alleged retaliation for the exercise of a constitutional or statutory right? under 42 U.S.C. § 1983);Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d Cir. 1992) (`it has long been established that certain adverse governmental action taken in retaliation against the exercise of free speech violates the First Amendment.").

Although developed in the context of public employee speech, this principle also applies to private individuals who public officials punish for their speech. See, e.g., Friedl, 210 F.3d at 85 (prisoner); Posr v. Court Officer Shield 4* 207, 180 F.3d 409, 415-16 (2d Cir. 1999) (individual stopped by court officer);Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (owner of topless dancing bars); Johnson v. Bax, 63 F.3d 154, 159 (2d Cir. 1995) (demonstrator).

In order to state a First Amendment claim for retaliation under § 1983, a private plaintiff must show that: (1) his speech was protected by the Constitution or federal law; and (2) "the defendant's conduct complained of was in response to that protected activity." Posr, 180 F.3d at 418; see Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991), cert. denied, 504 U.S. 911 (1992). To withstand a motion to dismiss, such claims must be "supported by specific and detailed factual allegations," not stated "in wholly conclusory terms." Friedl, 210 F.3d at 85-86 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) (internal quotations omitted)). However, a plaintiff's pleading is sufficient to support the second prong of a retaliation claim if it alleges facts which could reasonably support an inference of retaliatory intent. Posr, 180 F.3d at 418. In a motion to dismiss only the pleadings are considered, and the complaint is accepted as true.

1. Smith's Speech was Constitutionally Protected

Speech is protected "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest." Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). Pure, non-obscene speech is protected unless the words, by their very utterance, inflict injury or tend to evoke immediate violence or other breach of the peace. Miller v. California, 413 U.S. 15, 24 (1973); Gooding v. Wilson, 405 U.S. 518, 525 (1972). Those "fighting words" are not protected. City of Houston v. Hill, 482 U.S. 451 (1987);Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)

Smith's question to Rockett, "why are we getting kicked off the train," even if uttered in an aggressive tone, was clearly protected under the First Amendment. The Supreme Court has held that the "First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston v. Hill, 482 U.S. at 461. While it could be construed as a criticism of or challenge to the Metro-North police officers' action in ejecting him from the train, Smith's comment was appropriate and certainly did not transgress the wide protective boundary regarding speech directed at authorities.

The Constitutional protection of such speech is fundamental; in fact, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id., 482 U.S. at 462-63. Even the "fighting words" exception established in Chaplinsky "might require a narrower application in cases involving words addressed to a police officer, because `a properly trained officer may reasonably be expected to exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to `fighting words.'" Hill, 482 U.S. at 462 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring)) See Cahill v. O'Donnell, 75 F. Supp.2d 264, 271 (S.D.N.Y. 1999). 2. Rockett's Conduct was in Response to Smith's Speech

Although the defendants dispute the version of events outlined in the complaint, see infra, the allegations in the complaint are accepted as true for the purpose of this motion to dismiss. The complaint alleges two forms "conduct" alleged to have been "in response to" Smith's statement under the test set out in Posr: the "excessive force"of Rockett's attack and the subsequent filing of "false reports that improperly subjected plaintiff to arrest and imprisonment." (Compl. ¶ 49.)

With regard to Rockett, the complaint alleges the following: Smith first saw Rockett after leaving the train, and had no interaction with him — other than to ask him why he had been ejected — before Rockett hit him in an exercise of "excessive force." (Compl. ¶¶ 19, 20.) On its face, this allegation presents a sufficient causal relationship between Rockett's conduct and Smith's speech to meet the second prong of the Posr test.

The complaint does not clearly establish that the "false reports" were filed in order to justify Smith's arrest "in response to" his speech. However, Count II withstands a motion to dismiss as long as the facts alleged "could reasonably support an inference" that he was arrested in retaliation for his speech.Posr, 180 F.3d at 418. Based upon the facts alleged, it would be reasonable to infer that but for Smith's comment, he would simply have been allowed to await the next train rather than being arrested. Count II thus sufficiently alleges a causal connection between Smith's speech and his arrest to meet the second prong of the Posr test.

As a matter of law, Count II states a valid claim for retaliation by excessive force and by false arrest in violation of the First and Fourteenth Amendments. D. Count III: Conspiracy to Violate First Amendment Rights

Count III builds on Count II by suggesting that defendants, both known and unknown, "conspired to and did violate plaintiff's rights under the First and Fourteenth Amendments. by abusing plaintiff and/or by filing false reports that improperly subjected plaintiff to arrest and imprisonment. . . ." (Compl. ¶ 51.) Section 1985 provides a cause of action where:

two or more persons in any State or Territory conspire . . . 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 laws; . . . if one or more persons . . . do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is . . . deprived of having and exercising any right or privilege of a citizen of the United States. . . .

Conclusory allegations of the defendants' alleged participation in a conspiracy are inadequate to make out a claim under § 1985. X-Men Security, Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 2000) (citing Thomas, 165 F.3d at 147; Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam)). In order to state a claim for conspiracy to violate an individual's constitutional rights, a plaintiff must show: (1) a conspiracy (2) for the purpose of depriving a person of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. Thomas, 165 F.3d at 146.

To make out the first element of a § 1985 claim, a plaintiff must only provide evidence of a "tacit understanding" rather than an explicit agreement. Id. Smith meets the second element if he can show that the conspiracy was motivated by a discriminatory animus based on race or some other invidious classification. See Posr, 180 F.3d at 419 (citing United Bhd. of Carpenters. Local 610 v. Scott, 463 U.S. 825, 829, 834-35 (1983)); Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (specifically rejecting argument that conspiracies alleged to have taken place "under color of state law" were exempt from the discriminatory motivation requirement). Smith, a white male, has not alleged that the alleged retaliation was motivated by his membership in a protected class. Thus, even if the complaint could be construed to suggest the existence of an illegal agreement between the defendants, the required element of a discriminatory motive has not been met.

42 U.S.C. § 1986 imposes liability on any individual who has knowledge of discrimination prohibited under § 1985. Thus, Smith's § 1986 claim is contingent on the validity of the § 1985 claim. See Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996). As Smith does not have a valid § 1985 claim, he does not have a valid § 1986 claim.

As a matter of law, Smith has not stated a § 1985 or § 1986 claim for conspiracy to deprive him of his constitutional rights. Count III is dismissed pursuant to Rule 12(b)(6), Fed.R.Civ.P.

E. Count IV: Deliberate Indifference in Violation of the Eighth and Fourteenth Amendments

Count IV of the complaint alleges that the defendants violated Smith's Eighth and Fourteenth Amendment rights by acting:

with deliberate indifference to plaintiff's safety and welfare because they were aware of a substantial risk that plaintiff would be attacked by defendant Police Officer Rocket [sic] due to his violent and undisciplined predisposition and failed to take reasonable and necessary steps to prevent the complained of attack and resulting severe injuries to plaintiff.

(Compl. ¶ 53.) In support of this claim, the complaint alleges that defendant Metro-North's Internal Affairs Division ("IAD") "determined on its own to investigate" the incident and "possible violations of Departmental policy against Police Officer Rockett including: impermissible use of force, conduct unbecoming of a police officer and submission of false reports." (Compl. ¶ 45.)

The Supreme Court established in Farmer v. Brennan, 511 U.S. 825 (1994), that prisoners and pretrial detainees have a cause of action where a prison official subjectively "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." 511 U.S. at 847; see Estelle v. Gamble, 429 U.S. 97 (1976) (establishing "deliberate indifference" standard). Such a claim could be made by a prisoner under the Eighth Amendment, id., or by a pretrial detainee under the due process clause of the Fifth or Fourteenth Amendment. See Wolfish, 441 U.S. at 535 n. 16; Cuoco v. Moritsuogo, 222 F.3d 99, 106 (2d Cir. 2000) (applying Fourteenth Amendment "deliberate indifference" test to Bivens claims against federal officers) (citing Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). As stated above with regard to Count I, the Eighth Amendment does not apply to persons like Smith who had not yet been arraigned and convicted. See Graham, 490 U.S. at 393; Cuoco, 222 F.3d at 106.

There is no binding precedent holding that Farmer's "deliberate indifference" standard applies to arrestees like Smith. However, his pre-conviction status is analogous to that of a pretrial detainee: like a pretrial detainee, he encountered the police and had not yet been afforded the procedural protections of adjudication. Thus, Farmer's "deliberate indifference" test may be applied to Smith under the due process clause of the Fourteenth Amendment. See Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) ("decisional law involving prison inmates applies equally to cases involving arrestees or pretrial detainees"); Monroe v. Shaffer, 87 F.3d 1309, 1996 WL 329607, *4 (4th Cir. June 17, 1996) (table) ("As arrestees, Appellants' deliberate indifference claims are subject to the standards ofEstelle v. Gamble, 429 U.S. 97 (1976) [later defined inFarmer].").

In order to state a claim for an official's deliberate indifference a plaintiff must allege (1) that there was a substantial risk of serious harm to him, and (2) the official was "deliberately indifferent" to that risk. Farmer, 511 U.S. at 847. An official acts with "deliberate indifference" when that official "knows of and disregards an excessive risk" to a plaintiff's health or safety; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Farmer, 511 U.S. at 837) (internal quotations omitted));see Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) ("Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.").

1. Rockett

In the complaint, Smith claims that Rockett is liable both for using excessive force and for deliberate indifference to the risk of serious harm to Smith created by using excessive force. These two causes of action cannot coexist against the same defendant. The essence of Smith's claim against Rockett is that Rockett hit him without provocation in an abuse of authority. This scenario presents the classic case for an excessive force claim. A deliberate indifference claim, while cognizable in some cases involving official acts that lead to injury, see Holmes v. Goldin, 615 F.2d 83 (2d Cir. 1980) (holding that plaintiff inmate stated a claim for deliberate indifference based upon prison guard's opening another inmate's jail cell door, thereby allowing him to attack plaintiff), is more appropriately applied to officials' omissions rather than their own violent acts, Farmer, 511 U.S. at 835 ("application of the deliberate indifference standard is inappropriate. when officials stand accused of using excessive physical force.") (quoting Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)) (internal quotations omitted)

Under the facts as alleged in the complaint, Rockett certainly should have been aware that his impending blow to Smith posed a substantial risk of serious harm. But, as the person about to inflict that blow, Rockett cannot properly be said to have been "deliberately indifferent" to the risk as a matter of law. Count IV is dismissed as to Rockett.

2. Metro-North

Count IV also alleges that Metro-North was deliberately indifferent due to its supervisors' failure "to take reasonable and necessary steps to prevent" the attack despite their knowledge of Rockett's "violent and undisciplined predisposition." (Compl. ¶ 53.) Under the standards set forth inFarmer, this allegation adequately pleads a claim for Metro-North's deliberate indifference to the substantial risk of serious harm to passengers such as Smith.

F. Count V: Metro-North and Inadequate Training in Violation of the Eighth and Fourteenth Amendments

Count V alleges that defendants violated Smith's Eighth and Fourteenth Amendment rights:

because of the inadequacy and unreasonableness of police training of officers including defendant Police Officer Rockett. Defendant Metro-North's awareness of the substantial risk that plaintiff would be attacked and assaulted by defendant Police Officer Rocket [sic] due to his inadequate and improper police training which constituted deliberate indifference to plaintiff, that resulted in severe injury and consequential damages to plaintiff.

(Compl. ¶ 55.)

As stated above, Metro-North is a public benefit corporation that is a wholly owned subsidiary of the Metropolitan Transportation Authority, a New York City authority. As such, Metro-North constitutes a municipal entity that is considered a suable "person" under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978); Carlysle v. City of Yonkers, 104 F.3d 352, 1996 WL 685756, *1 (2d Cir. Nov. 29, 1996)

Metro-North cannot be held liable under § 1983 for Rockett's constitutional violations solely on a respondeat superior theory. Owen v. City of Independence, 445 U.S. 622, 633 (1980); Monell, 436 U.S. at 691. To state a § 1983 claim for municipal liability for the constitutional violations of a municipal employee against a private individual, a plaintiff must allege that: (1) the municipality had a policy or custom; (2) that caused a plaintiff to be subjected to (3) a denial of a constitutional right. See Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 137 (2d Cir. 1999); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). As discussed above, Smith has stated claims for violation of his rights, including those arising under the First Amendment. Thus, the existence of a municipal "policy or custom" and whether that policy or custom caused the violation of Smith's constitutional rights are the relevant inquiries underMonell.

A municipal entity's policy or custom need not be expressly promulgated in order to meet the requisite standard. While an isolated act of excessive force by a single, non-policymaking municipal employee, standing alone, is usually insufficient evidence of municipal policy, see City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985), a custom may be inferred from acts or omissions of a municipality's supervisory officialsTurpin v. Mailet, 619 F.2d 196, 201-02 (2d Cir.), cert. denied, 449 U.S. 1016 (1980); Owens v. Haas, 601 F.2d 1242, 1246-47 (2d Cir.), cert. denied, 444 U.S. 980 (1979). The threshold for showing a policy or custom of indifference to risks of harm to passengers in general is higher than the showing that is adequate to make out a claim, as in Count IV, for deliberate indifference to known facts regarding the violent tendencies of a particular municipal employee.

In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court established that a municipality is liable under § 1983 for the constitutional violations of its employee if the municipality's failure to train the employee "amounts to deliberate indifference to the rights of persons with whom the police come into contact," and is "closely related" to, or "the moving force" behind, the constitutional injury. Id., 489 U.S. at 388-89, 391; see Vann, 72 F.3d at 1049; Fiacco v. City of Rensselaer, 783 F.2d 319, 326-27 (2d Cir. 1986) (municipality "should not take a laissez-faire attitude toward the violation by its peace officers of the very rights they are supposed to prevent others from violating"), cert. denied, 480 U.S. 922 (1987)

Smith need not provide particularly detailed factual allegations to make out a claim for municipal liability under § 1983; a "short and plain statement of the claim" is sufficient. Leatherman v. Tarrant Cty. Narcotics Intelligence Coordination Unit, 507 U.S. 163, 167 (1993) (citing Rule 8(a) (2), Fed.R.Civ.p.) (internal quotations omitted); Conley, 355 U.S. at 47 (the Rules "do not require a claimant to set out in detail the facts upon which he bases his claim."). Circumstantial proof of failure to train is sufficient to allege the existence of a municipal custom under this rule. Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)

However, a plaintiff's conclusory assertion that a municipality has such a policy or custom, or that it failed to train its employees, does not state a claim in the absence of some specific factual allegations tending to support the inference. A single incident, particularly where it involved an actor below the policymaking level, generally does not raise a sufficient inference of the existence of a custom or policy. See, e.g.,Harris, 489 U.S. at 387; Fiacco, 783 F.2d at 328.

In order to withstand a motion to dismiss on a claim that Metro-North was deliberately indifferent to the risk posed by Rockett's behavior, Smith must allege that (1) Metro-North knew when it hired Rockett that he posed a risk of repeated and unjustified violence to passengers; or (2) even though the initial risk of constitutional violations was not obvious, Metro-North subsequently learned of a serious incident, yet took no action to provide the necessary training to prevent a recurrence.See Harris, 489 U.S. at 390 n. 10; see id., 489 U.S. at 396, (O'Connor, J., concurring in part); Vann, 72 F.3d at 1049 ("To prove a policy or custom of deliberate indifference, the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious.");Ricciuti, 941 F.2d at 123 (deliberate indifference may be shown by "evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges" that its employees were violating citizens' constitutional rights)

As pleaded, the allegations in Count V regarding MetroNorth's liability for failure to train are conclusory at best. Count V does not allege that Metro-North had a policy or custom of inadequate training, and the complaint provides no factual support for the allegation that Metro-North was "aware of the substantial risk that plaintiff would be attacked and assaulted by defendant Police Officer Rocket [sic] due to his inadequate and improper police training." (Compl. ¶ 55) Nor does the complaint provide any factual foundation for the allegation that the training Rockett received was "inadequate" or "improper" (id.), or that the training "resulted in" Smith's injuries. As pleaded, Count V is insufficient to state a § 1983 claim for inadequate training against Metro-North.

Because Rockett is not responsible for Metro-North's training program, Count V is dismissed with prejudice as against him.

II. Summary Judgment A. Legal Standard

A motion for summary judgment may be granted only when there is no issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Rule 56 (c), Fed.R.Civ.P.; Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If, when "[v]iewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate."Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). If, on the other hand, a reasonable finder of fact could return a verdict for the nonmoving party, there is a genuine factual dispute and summary judgment should not be granted. See Zeevi v. Union Bank of Switzerland 1992 WL 8347, *4 (S.D.N Y Jan. 29, 1992). "[T]he trial court's task at the summary judgment stage of litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219 (2d Cir. 1994)

B. Disputed Material Facts

The specific chain of events leading to Smith's injury is the subject of significant dispute. In essence, Smith alleges that Rockett assaulted him in response to the question, "why am I getting kicked off the train," without any other provocation, while the defendants claim that Smith's injuries were solely the result of Smith's own aggressive behavior. As stated above, summary judgment is appropriate only if, viewing all the evidence in the light most favorable to Smith, a reasonable jury could not find in his favor at trial.

The factual discrepancies between Smith's and the defendants' versions of events must not be resolved in a motion for summary judgment. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Rather, it is sufficient to note that significant questions of material fact exist which create a genuine issue for trial. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986). Based upon the evidence presented, summary judgment is inappropriate because questions of material fact exist as to the claim remaining in the complaint.

Several critical factual questions have been raised regarding the question whether, as a matter of law, Rockett retaliated against Smith for exercising his First Amendment right to speak. These questions include, inter alia, (1) whether there was any provocation for Rockett's behavior other than Smith's question (or, in other words, whether Smith's conduct prior to encountering Rockett had provided a legitimate basis for an arrest, and, if so, whether Rockett was planning to arrest him for that conduct); (2) whether Smith attempted to flee from Rockett; (3) whether Smith was otherwise disorderly, carrying open beer on the train, or resisting Rockett's legitimate attempt to arrest him; and (4) whether Smith was knocked down or whether he inadvertently "fell" onto the platform while Rockett attempted to apprehend him or in fact was assaulted. Smith has a right to have a jury determine the answers to these material factual questions.

Conclusion

For the foregoing reasons, Counts I, III and V are dismissed against all defendants and Count IV is dismissed only as against Rockett, for failure to state a claim. Defendants' motion for summary judgment on Count II is denied. Smith is granted twenty (20) days in which to replead the complaint in light of this Opinion.

It is so ordered.