Opinion
No. 7350/10.
2012-05-7
Angela LEPORE and Frank Lepore, Plaintiffs, v. TOWN OF GREENBURGH, P.O. Roberts and P.O. “John Does 1 through 8”, Defendants.
Joseph A. Maria, P.C. By Frances Dapice Marinelli, Esq., White Plains, for Plaintiffs. Timothy W. Lewis, Esq., Town Attorney, Town of Greenburgh By: Richard L. Marasse, Esq., Deputy Town Attorney, Greenburgh, for Defendants/Respondent.
Joseph A. Maria, P.C. By Frances Dapice Marinelli, Esq., White Plains, for Plaintiffs. Timothy W. Lewis, Esq., Town Attorney, Town of Greenburgh By: Richard L. Marasse, Esq., Deputy Town Attorney, Greenburgh, for Defendants/Respondent.
JOAN B. LEFKOWITZ, J.
The plaintiffs commenced the instant action against defendants Town of Greenburgh (hereinafter “defendant Town”), Police Officer Roberts and police officer “John Does 1 through 8” by summons and complaint filed on March 12, 2010. The action seeks to recover compensatory damages against defendant Town and compensatory and punitive damages against Police Officer Roberts and the “John Doe” police officers arising out of the arrest of plaintiff Angela Lepore on December 14, 2008. Plaintiffs allege a claim pursuant to 42 USC § 1983 for the violation of plaintiff Angela Lepore's constitutional rights by the use of excessive force, as well as a claim for common law battery and a claim pursuant to 42 USC § 1985 for acting in concert to deprive plaintiff Angela Lepore of her constitutional rights. With respect to defendant Town, plaintiffs also allege claims pursuant to 42 USC § 1983 for municipal violations by (1) permitting “a pattern and practice of unjustified, unreasonable and illegal use of force ... by Police Officers ...,” (2) failing to properly investigate all incidents of excessive use of force by its police officers, and (3) failure to properly train and supervise its police officers with respect to the force permitted to be used in effecting arrests.
Plaintiffs now seek to compel the production of the personnel file of Police Officer J. Cerone, who effected the arrest of plaintiff Angela Lepore with defendant Police Officer Roberts. Defendant Town provided the court with the personnel records of defendant Police Officer Roberts for in camera review, but has refused to produce the personnel records of Police Officer Cerone for an in camera review. Plaintiffs contend that insofar as Police Officer Cerone was involved in the underlying arrest and they have alleged claims for negligent training and supervision, they have demonstrated sufficient facts to warrant an in camera review of Police Officer Cerone's personnel records.
Defendant Town opposes the motion. Defendant Town asserts that since Police Officer Cerone is a nonparty and plaintiffs can no longer name him as a defendant, since the Statute of Limitations has expired, plaintiffs have failed to demonstrate the relevance of the information contained in Police Officer Cerone's personnel records. Defendant Town further contends that plaintiffs' claims against it for excessive force, battery, and acting in concert to violate plaintiff Angela Lepore's constitutional rights pursuant to 42 USC §§ 1983 and 1985 are based upon the theory of respondeat superior, but there is no liability under that theory for acts of employees or agents who are not named defendants. As to plaintiffs' claims of municipal liability under 42 USC § 1983 based upon, inter alia, defendant Town's alleged custom and practice of permitting excessive use of force, defendant Town asserts that it may not be sued pursuant to 42 USC § 1983 for injuries inflicted solely by its employees or agents.
Defendant Town relies upon, inter alia, Back v. Hastings on Hudson Union Free School District (365 F3d 107 [2d Cir2004] ). In Back, the court held that municipalities can be held liable pursuant to 42 USC § 1983 for violations of a person's constitutional rights only if its policy or custom inflicted the injury (Back, 365 F3d at 128). The Back court further held that a municipality cannot be held liable pursuant to § 1983 solely because of the actions of one of its employees ( Id.; see Monell v. Dept. of Social Servs., 436 U.S. 658, 691 [1978] ). In Monell, which is relied upon by the Back court, the United States Supreme Court held that Congress did not intend municipalities to be held liable pursuant to § 1983 unless the action of the employee which deprived plaintiff of a constitutional right was pursuant to an official municipal policy. The United States Supreme Court in Monell specifically held that a municipality cannot be held liable under § 1983 on a theory of respondeat superior.
Accordingly, defendant Town essentially contends that since it cannot be liable under the theories alleged by plaintiffs in the complaint for the acts of Police Officer Cerone, who is not a defendant, plaintiffs have failed to establish the relevance of Police Officer Cerone's personnel file to the issues in this action. Defendant Town contends that plaintiffs are seeking to conduct a fishing expedition and any information obtained from the personnel file would only be used to impeach Police Officer Cerone's general credibility as a fact witness. Finally, defendant Town contends that even if Police Officer Cerone's personnel file contained evidence of prior excessive force, this would not establish a municipal custom or policy permitting the use of excessive force by its police officers.
Civil Rights Law § 50–a, which declares police personnel records to be confidential, provides that upon “a clear showing of facts sufficient to warrant the judge to request records for review” (Civil Rights Law § 50–a [2] ), an in camera inspection is to be conducted. The initial burden is upon the party seeking the discovery to demonstrate a factual predicate warranting the intrusion into the personnel records of a police officer (Flores v.. City of New York, 207 A.D.2d 302 [1st Dept 1994] ). “This threshold requirement is designed to eliminate fishing expeditions into police officers' personnel files for collateral materials to be used for impeachment purposes” (Zarn v. City of New York, 198 A.D.2d 220, 220–221 [2d Dept 1993] ). The standard of a “clear showing of facts sufficient to warrant the judge to request records for review” must be viewed liberally, as “a party seeking discovery will, of course, not know precisely what pertinent information is within a personnel record; thus a strict reading would render the statute meaningless” (Cox v. New York City Hous. Auth., 105 A.D.2d 663, 664 [1st Dep't 1984] ). If, after an in camera review, the court determines that the personnel records contain information that is relevant and material to the action, the court shall make those parts of the record available to the party requesting disclosure (Civil Rights Law § 50–a[2], [3]; see, People v. Gissendanner, 48 N.Y.2d 543, 551 [1979];Lawrence v. City of New York, 118 A.D.2d 758, 759 [2d Dept 1986] ).
In the context of an action alleging claims for the negligent training and supervision of police officers, the courts have found that plaintiffs demonstrated a factual predicate warranting an in camera review of the records of the police officers involved in the underlying incident based upon the allegations of negligent training and supervision, since the officers' records may contain information that is relevant and material to those claims (Pickering v. State of New York, 30 AD3d 393, 394 [2d Dept 2006]; Cox, 105 A.D.2d at 664;see also Blanco v. County of Suffolk, 51 AD3d 700 [2d Dept 2008] ). Notably, the courts have directed an in camera review of the records of police officers who were not named as defendants, but were involved in the underlying incident, where, as here, the plaintiffs alleged a cause of action for negligent training and supervision ( see Pickering v. State of New York, 30 AD3d 393;Flores v. City of New York, 207 A.D.2d 302). Moreover, in Flores ( Id.), the Appellate Division, Second Department held that the Supreme Court did not abuse its discretion in directing defendant City, after an in camera review, to turn over three Civilian Complaint Review Board reports contained in the file of the nonparty police officer involved in the subject shooting since those reports bear on the issue of notice regarding the officer's need for training in the appropriate use of force (Flores, 207 A.D.2d at 304).
42 USC § 1983 provides that “[e]very person, who under color of statute, ordinance, custom, or usage, of any State ..., subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....” In Monell (436 U.S. 658), the United States Supreme Court held that municipal entities are “persons” to whom § 1983 applies. Although a claim based upon the theory of respondeat superior is unavailable under § 1983 (Monell, 436 U.S. at 691;Tsesarskaya v. City of New York, 843F.Supp 2d –––– [SDNY 2012], 2012 WL 473245, *10), a claim based upon a policy or custom that directly causes a constitutional violation is viable since it is not based upon the theory of respondeat superior (Javid v. Scott, 913 F.Supp 223, 231 [SDNY 1996] ).
“[M]unicipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of unlawful municipal policy of ratification or unconstitutional conduct within the meaning of Monell ” (Turpin v. Mailet, 619 F.2d 196, 201–202 [2d Cir1980], cert denied449 U.S. 1016 [1980];see (Patterson v. County of Oneida, 375 F3d 206, 226 [2d Cir2004] ). In Turpin, the court held that liability under 42 USC § 1983 may arise where the defendant municipality impliedly or tacitly authorized, approved or encouraged harassment of plaintiff, such that it promulgated an official policy within the meaning of Monell (436 U.S. 658) ( see Tsesarskaya v. City of New York, 843 F.Supp 2d –––– [SDNY 2012], 2012 WL 473245, *10). Moreover, the Turpin court held that while a municipal policy cannot be inferred from a single incident of illegality, a municipal policy could be inferred from acquiescence to a prior pattern of conduct (Turpin, 619 F.2d at 202). “A policy, custom, or practice may also be inferred where the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction' “ (Patterson v. County of Oneida, 375 F3d at 226,quoting Kern v. City of Rochester, 93 F3d 38, 44 [2d Cir1996], cert denied520 U.S. 1155 [1997];see Tsesarskaya v. City of New York, 2012 WL 473245, *10). In the context of an allegation of the use of excessive force by police officers, a plaintiff may establish a custom or policy by showing that the municipality exhibited “deliberate indifference” after being alerted to the possible use of excessive force (Vann v. City of New York, 72 F3d 1040, 1049 [2d Cir1995]; Fiacco v. City of Rensselaer, 783 F.2d 319 [2d Cir1986], cert denied480 U.S. 922 [1987] ).
In the present action, in addition to claims against defendant Town for excessive force, common law battery, and acting in concert to violate plaintiff's constitutional rights, plaintiffs allege claims against defendant Town for negligent training and supervision of its police officers and a practice of permitting excessive force. Although defendant Town correctly contends that a municipality cannot be liable under 42 USC § 1983 under the theory of respondeat superior, defendant Town failed to address plaintiffs' claims of negligent training and supervision and its alleged practice of permitting the use of excessive force. Plaintiffs' claim of negligent training and supervision, as well as plaintiffs' claim that defendant Town had a practice and policy of permitting the use of excessive force, are not based upon the theory of respondeat superior, but rather upon a municipality's own alleged inactions. Accordingly, discovery as to any prior use of excessive force by Police Officer Cerone, the nonparty police officer involved in the subject arrest, would be relevant to the claims of negligent training and supervision, as well as defendant Town's alleged practice and policy of permitting the use of excessive force by its police officers.
As noted earlier, the courts have found a factual predicate for an in camera review of the records of a nonparty police officer, who was involved in the underlying incident, based upon allegations in the complaint of negligent training and supervision since the records could contain information relevant to those claims. In view of plaintiff's claims of negligent training and supervision, plaintiffs have demonstrated a factual predicate that Police Officer Cerone's personnel records may contain information which is relevant and material to the claim of negligent training and supervision, as well as the claim that defendant Town has a policy and pattern of permitting the use of excessive force by its police officers. An in camera review of Police Officer Cerone's personnel records are, therefore, warranted.
Accordingly, it is
ORDERED that plaintiffs' motion to compel the production for in camera inspection of the personnel records of Police Officer J. Cerone is granted, and defendant Town is directed to produce Police Officer J. Cerone's personnel records to the court for an in camera review on or before May 18, 2012. The records so provided shall be clearly identified and consecutively paginated for ease of reference. After in camera review, the court will determine what portions, if any, are subject to disclosure and direct defendant Town accordingly; and it is further
ORDERED that all parties are directed to appear in the Compliance Part, Courtroom 800, for a conference on June 5, 2012, at 9:30 A.M.
The foregoing constitutes the decision and order of this court.