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holding that "no reasonable jury could conclude that [the defendant] was acting under the color of law" where it was undisputed that he "was off-duty and out of uniform, that he did not flash his badge and did not in any way announce ... that he was an auxiliary officer or was acting in that capacity, that he issued no commands, and that gun he used ... was not issued by the police department"
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Case No. 01-CV-4628 (FB)(VVP)
December 5, 2003
DAVID A. ZELMAN, ESQ., New York, NY, for Plaintiffs
JOHN P. FRANCOLLA, ESQ., New York, NY, for Defendants NEW YORK CITY and HOWARD SAFIR
MEMORANDUM AND ORDER
This action, brought pursuant to 42 U.S.C. § 1983 by plaintiffs David Miqui ("Miqui") and his father and guardian, Antonio Miqui (together, "plaintiffs"), arises from a beating Miqui suffered at the hands of defendant Ariel Delgabbo ("Delgabbo"), a New York City auxiliary police officer. Co-defendants City of New York ("City") and Police Commissioner Howard Safir ("Safir") (together, "defendants") move for summary judgment, requesting "that the Court dismiss all federal claims against the [defendants], with prejudice, and additionally dismiss the remaining pendent state law claims for lack of jurisdiction." [Defendants'] Memorandum of Law at 2. For the reasons set forth below, the motion is granted, except that the state law claims are dismissed without prejudice.
On August 30, 2002, the Court entered a default judgment against Delgabbo.
I.
The following relevant facts are uncontested. On April 28, 2000, as Miqui, then 16 years old, and three of his friends stood outside a restaurant owned by Delgabbo's parents, Delgabbo walked out of the restaurant, repeatedly yelled "who wants it," brandished a handgun, and fired four shots into the air. Exh. H at 30-31 (deposition of David Miqui ("Miqui Dep.")), annexed to Declaration in Support of Defendants City of New York and Howard Safir's Motion for Summary Judgment ("Defs' Decl."); Plaintiffs Rule 56.1 Statement of Undisputed Facts ("Pltfs' Statement") at ¶¶ 11-14; Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs' Statement") at ¶¶ 11-13. Miqui fled. Pltfs' Statement at ¶ 15; Defs' Statement at ¶ 15. Delgabbo caught Miqui, threw him to the ground, and struck him several times with his handgun, injuring him. Pltfs's Statement at ¶ 16; Defs' Statement at ¶ 16. Delgabbo never told Miqui his name and Miqui has no recollection of Delgabbo saying anything during the attack; after the attack, Delgabbo walked away. Miqui Dep. at 39; Pltfs' Statement at ¶ 19; Defs' Statement at ¶ 19. Miqui later rejoined his friends, one of whom contacted the police, resulting in Delgabbo's arrest. Miqui Dep. at 42-44; Pltfs' Statement at ¶¶ 20-21; Defs' Statement at ¶¶ 2-21.
Delgabbo was off-duty at the time. Pltfs' Statement at ¶ 8; Defs' Statement at ¶ 8. He was not wearing his auxiliary police officer uniform, did not display his badge, and made no references to being an auxiliary police officer. Miqui Dep. at 39; Pltfs' Statement at ¶¶ 9-10; Defs' Statement at ¶¶ 9-10. Although the police report recites that Delgabbo "had just exited the `NANCY GRILL' located at 49-07 43 Avenue and thought that [Miqui] was [s]pray painting the walls of his business[,]" Exh. B (police report), annexed to Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pltfs' Mem."), there is no evidence that the boys were spray-painting the restaurant. Miqui Dep. at 26. Auxiliary police are not issued firearms and are prohibited from possessing or carrying them while on duty even if they have a license to otherwise carry a gun. Pltfs' Statement at ¶ 2; Defs' Statement at ¶ 2; Exh. E at 86-87 (deposition of Richard Gioconda), annexed to Defs' Decl. The gun Delgabbo used to strike Miqui was never recovered; plaintiffs allege that "outside a short canvas [sic] of the neighborhood, there was no effort" to find it. Pltfs' Mem. at 9; Exh. D at 29 (deposition of Kenneth Barrett), annexed to Pltfs' Mem. The restaurant is located within the geographic boundaries of the 108th Precinct, the precinct with which Delgabbo, as an auxiliary officer, is affiliated. Pltfs' Mem. at 6.
Between 1997 and 2000, Delgabbo had been disciplined twice, both times for unauthorized use of auxiliary police cars. Exh. F (incident report dated July 8, 1997) and Exh. G (auxiliary supervisor's complaint report dated December 10, 1998), annexed to Pltfs' Mem. For his first violation, Delgabbo was "grounded for [his] next ten (10) consecutive tours" and forbidden from using department automobiles and bicycles during that time, and during the investigation of the second violation, he lied to his superior officers and was suspended for two weeks, the maximum penalty permitted. Id. Shortly after the Miqui incident, Delgabbo was suspended; approximately three months later, he resigned. Exh. B (notice of suspension dated May 8, 2000), annexed to Supplemental Declaration In Support of Defendants City of New York and Howard Safir's Motion for Summary Judgment; Exh. I (personnel data change dated July 27, 2000), annexed to Pltfs' Mem.
Count One of plaintiffs's three-count complaint alleges that defendants "fail[ed] to adequately discourage constitutional violations on the part of their police officers" by pursuing a "policy or custom . . . to inadequately supervise, train, retain, discipline, hire and terminate their auxiliary police officers, including [Delgabbo]." Complaint at ¶ 25. Count Two alleges that defendants "had [an unconstitutional] policy or routine practice of utilizing excessive force when attempting to place an individual within custody" and that Delgabbo acted pursuant to that policy. Id. at ¶ 31. Count Three alleges that Delgabbo "subjected [Miqui] to an unlawful search and seizure, false arrest, assault and battery and illegal imprisonment, in violation of the Constitution and the laws of the State of New York." Id. at 40. Plaintiffs seek punitive and compensatory damages in respect to each of these claims.
II.
Summary judgment is appropriate when there is no genuine issue of material fact to be tried and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the moving party to identify those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits that it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. In opposition, "the non-moving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). "Instead, `the non-movant must produce specific facts indicating' that a genuine factual issue exists." Id. (citation omitted). All ambiguities must be resolved, and all inferences drawn, in favor of the non-moving party. See D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
Plaintiffs argue that a genuine issue of material fact exists as to whether Delgabbo was acting under color of state law when he attacked Miqui. In support, they contend that Delgabbo believed that Miqui or his friends had been spray painting the restaurant, that Delgabbo had been taught that such behavior constitutes criminal mischief, a misdemeanor, and would subject the perpetrator to arrest, and that the incident occurred within Delgabbo's `beat' as an auxiliary police officer. Defendants respond that when Delgabbo attacked Miqui, he was acting as a private citizen, not under the color of state law, and that they cannot be held responsible for purely private conduct.
III.
A. Auxiliary Police Officers
Because resolution of this litigation turns, at least in part, on the nature and powers of New York City auxiliary police officers, the Court examines their role within the New York City law enforcement community.
Auxiliary police officers, all of whom are volunteers, are commissioned pursuant to the New York State Defense Emergency Act ("Act"), which provides that each city and county "shall . . . recruit, equip and train auxiliary police or special deputy sheriffs in sufficient number to maintain order and control traffic in the event of an attack and to perform such other police and emergency civil defense functions as may be required during and subsequent to attack." McKinney's Uncons. Laws § 9123(D)(22). They are given badges, handcuffs, uniforms and batons; while on patrol, they are required to wear their uniform but are prohibited from carrying firearms. They "assist the police in crime deterrence by their uniformed presence, serve as a trained group of citizens in case of a civil defense emergency or natural disaster and promote better relations between the community and the New York City Police Department." People v. Rosario, 78 N.Y.2d 583, 587 (1991). "Although auxiliary officers perform foot patrol, traffic and crowd control, cover special events and conduct other nonhazardous jobs that a regular police officer would perform in uniform, their primary function is to observe and report ongoing criminal activity. Indeed, the New York City Police Department, which recruits, trains and supervises auxiliary officers has described these officers as being the `eyes and ears' of the police department." Id.
"In keeping with their responsibilities as aides to the police department, auxiliary officers are required to undergo an extensive training program. They must complete a 52-hour course which includes instruction in police science, criminal law, self-defense, first aid, police procedure and crowd psychology." Id. However, they "are neither police officers nor peace officers. By present state law, they secure the powers of peace officers only during `a period of attack by enemy forces[.]' At all other times, auxiliary police officers have no arrest powers beyond that of private citizens. Their instructions and training only pertain to civilian arrests, not to police arrests." People v. Luciani, 466 N.Y.S.2d 638, 641 (Sup.Ct. 1983); see also New York City Auxiliary Guide ("Guide") § 1-1 at 3 (auxiliary officers "are not peace officers or police officers, and do not possess any powers above or beyond those of the private citizen").
The Auxiliary Police Manual ("Manual") states that "[a]s an auxiliary police officer, you have the authority of a PRIVATE CITIZEN in making arrest." Manual at 65. The Manual sets forth legal principles governing the circumstances in which a private citizen may lawfully effect an arrest. After defining the terms "arrest" ("the taking of a person into custody in a manner prescribed by law to answer for an OFFENSE he has committed"), "offense" ("any conduct which violates the law"), and "felony" ("an offense punishable by imprisonment of more than one year"), among others, the Manual instructs that a private citizen may arrest "[f]or a FELONY which IN FACT has been committed (whether or not in your presence)" and "[f]or ANY OFFENSE IN FACT committed IN YOUR PRESENCE[.]" Manual at 63, 65. The Manual cautions that "[s]ince the potential for danger and injury is present in any arrest situation, and the objectives of the Auxiliary Police Program do not include arrests by auxiliary police officers, we discourage you from making arrests." Manual at 65. B. 42 U.S.C. § 1983
For a thorough treatment of the history and day-to-day duties of New York auxiliary police officers, see Luciani, 466 N.Y.S.2d at 640-41.
Section 1983 states that "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . ." 42 U.S.C. § 1983. "In order to maintain a section 1983 action, two essential elements must be present: (1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Pitchett v. Callan, 13 F.3d 545, 547 (2d Ctr. 1994). At issue here is whether Delgabbo acted under color of law.
It is "axiomatic" that "under `color' of law means under `pretense' of law." Id. (citing Screws v. United States, 325 U.S. 91, 111 (1945)). Because § 1983 requires action taken under color of law, "it is clear that `personal pursuits' of police officers do not give rise to section 1983 liability [.]" Id. at 548; see also Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998) ("Officers who engage in confrontations for personal reasons unrelated to law enforcement, and do not `purport or pretend' to be officers, do not act under the color of law."). However, "there is no bright line test for distinguishing `personal pursuits' from activities taken under color of law." Pitchell, 13 F.3d at 548. As the Pitchell court explained,
More is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred. For example, liability may be found where a police officer, albeit off-duty, nonetheless invokes the real or apparent power of the police department. Liability also may exist where off-duty police officers perform duties prescribed generally for police officers. In short, courts look to the nature of the officer's act, not simply his duty status.Id. (citations omitted).
Even viewing the facts most favorably to the plaintiffs, no reasonable jury could conclude that Delgabbo was acting under the color of law when he attacked Miqui. Plaintiffs concede that at the time of the incident, Delgabbo was off-duty and out of uniform, that he did not flash his badge and did not in any way announce to Miqui or the other boys before, during, or after the incident that he was an auxiliary officer or was acting in that capacity, that he issued no commands, and that the gun he used to inflict the beating was not issued by the police department. See Huffman, 147 F.3d at 1058 (affirming summary judgment; officer "was neither on duty nor wearing his uniform . . .[and] although the weapon [the officer] was carrying was loaded with ammunition issued by the sheriff department, the weapon itself was [the officer's] own. . . . Moreover . . .[the officer] never identified himself as a sheriff's deputy . . .[and]. . . never issued any commands [to the victim]"); Roe v. Humke, 128 F.3d 1213, 1216 (8th Cir. 1997) (affirming summary judgment; officer, who "was off-duty, was not wearing his uniform or badge or carrying a gun, and . . . dr[ove] his personal vehicle" to the spot where molestation occurred); cf. Dam's v. Lynbrook Police Department, 224 F. Supp.2d 463 (E.D.N.Y. 2002) (denying summary judgment; off-duty officer informed victim he was a police officer, flashed what appeared to be a badge, drew his firearm and "asked . . . questions that police officers typically ask . . .[of] suspects apprehended on the street").
That Delgabbo may have acted because he believed that Miqui was committing criminal mischief does not raise a genuine issue of material fact as to whether Delgabbo was acting under color of law, at least not in the absence of other indicia that Delgabbo was acting or purporting to so act. See Hunte v. Darby Borough, 897 F. Supp. 839 (E.D. Pa. 1995) (granting summary judgment; off-duty, out-of-uniform officer responding to "disturbance" not acting under color of law even though he had previously identified himself as police officer to victim and told victim that he should be contacted if neighborhood problems arose); Hudson v. Maxey, 856 F. Supp. 1223 (E.D.Mich. 1994) (granting summary judgment; off-duty officer responding to criminal activity (a break-in and assault) not acting under color of law when shooting assailant).
Indeed, inasmuch as New York City auxiliary officers have "no power to arrest beyond that of a private citizen," Rosario, 78 N.Y.2d at 587, as a matter of law Delgabbo could not have seized and held Miqui pursuant to any authority vested in him as an auxiliary officer; hence, he could not have acted under the color of law when he chased, tackled, and beat Miqui. See Gibson v. City of Chicago 910 F.2d 1510, 1518 (7th Cir. 1990) (action of police officer who lacked authority to act "does not constitute action under `pretense' of law"); Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 449 (1st Cir. 1997) ("it is not enough for an individual merely to purport to exercise official power in order to trigger § 1983 liability[;]" rather, "the individual must actually be engaged in the abuse of official power granted by the government"); Spencer v. Lee, 864 F.2d 1376, 1380 (7th Cir. 1989) (en banc) (citizens' arrests are not made under color of state law). Because Delgabbo did not act under color of law, the City and Saffir cannot be held responsible for his private acts. See Chan v. City of New York, 1 F.3d 96, 106 (2d Cir. 1993) (noting that "[a]n action under § 1983 cannot, of course, be maintained unless the challenged conduct was attributable at least in part to a person acting under color of state law" and that "[t]he purpose . . . is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains") (quotation omitted); Pitchell, 13 F.3d at 549 ("If neither [officer] inflicted a constitutional injury on [the plaintiff], `it is inconceivable that [the City] could be liable to [the plaintiff].") (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
IV.
Even if the Court were to conclude that Miqui had raised a genuine issue of material fact as to whether Delgabbo acted under color of law, summary judgment in the defendants' favor would still be appropriate.
A. Defendant Saffir
Although plaintiffs' complaint alleges Safir's personal liability, plaintiffs have presented no evidence regarding his personal involvement or adduced any facts supporting their claim that Safir is individually liable. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983"); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (personal involvement may be established by demonstrating that defendant directly participated in the deprivation, learned of the deprivation and failed to correct it, created or allowed a policy to exist that caused the unconstitutional deprivation to harm the plaintiff, or acted with deliberate indifference or gross negligence in managing subordinates who caused the deprivation). Indeed, plaintiffs appear to have abandoned the claim by failing to address it in opposing defendants' motion for summary judgment. See Poe v. Leonard, 282 F.3d 123, 128 n. 3 (2d Cir. 2002) ("`unsupported allegations do not create a material issue of fact' for summary judgment purposes") (citation omitted). As for plaintiffs' claim that Safir is liable in his official capacity, such claims are "to be treated as a suit against the entity" of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Accordingly, summary judgment in Safir's favor is appropriate.
B. Defendant City
Plaintiffs contend that defendants pursued a policy or custom of failing to meaningfully supervise, discipline and terminate auxiliary officers for serious infractions and condoned the use of excessive force. Specifically, they argue that by declining to fire or seriously punish auxiliary officers for misdeeds, such as Delgabbo's two unauthorized excursions in Auxiliary Police cars, by refusing to terminate Delgabbo after the Miqui incident, and by failing to insure that police officers conduct a thorough investigation when arresting auxiliary officers, defendants created an "environment of apathy towards malfeasance by auxiliary officers." Pltfs' Mem. at 9.
"In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by a municipal employee below the policymaking level, a plaintiff must establish that the violation of his constitutional rights resulted from a municipal custom or policy." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Ctr. 1995). "This does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation. A § 1983 plaintiff injured by a police officer may establish the pertinent custom or policy" by showing that the municipality was "alerted" to a constitutional violation by its police officers, yet "exhibited deliberate indifference." Id. (citation omitted).
Because Delgabbo's two unauthorized excursions and the defendants' failure to more severely reprimand him for them in no way implicate any constitutional deprivation, they provide no support for the existence of the requisite municipal policy or custom. Cf. DeCarlo v. Fry, 141 F.3d 56, 61-62 (2d Ctr. 1998) (inference of the existence of custom or policy may be drawn "from circumstantial proof, such as . . . evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that its agents were violating citizens' constitutional rights"); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("[w]e have held that municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct") (emphasis added). Further, although the Auxiliary Police Section of the New York Police Department did not terminate Delgabbo following the incident, it is undisputed that it immediately suspended him, a far cry from the deliberate indifference the plaintiffs allege. Cf. Vann, 72 F.3d at 1049 ("deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents" of "constitutional violations"). Finally, although plaintiffs claim that the police officers who arrested Delgabbo should have searched more diligently for the handgun, they acknowledge that those officers did conduct at least a brief canvass of the neighborhood, and there is no allegation that officers routinely failed to conduct adequate searches. In short, there simply is no genuine issue of material fact regarding the existence of a policy or custom upon which to ground municipal liability. "Absent a showing of a causal link between an official policy or custom and the plaintiffs' injury," a "finding of liability against the City" is "prohibit[ed]." BatistA, 702 F.2d at 397.
V.
28 U.S.C. § 1367(c)(3) provides that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction[.]" "In providing that a district court `may' decline to exercise such jurisdiction, this subsection is permissive rather than mandatory," thereby vesting the Court with a measure of discretion. Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Ctr. 2003). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Id. (citing Carnegie-Metton University v. Cohill, 484 U.S. 343, 349-50 (1988)). Having taken these factors into account, the Court, in the exercise of its discretion, declines to exercise supplemental jurisdiction over plaintiffs' state law claims.
CONCLUSION
Defendants' motion to dismiss plaintiffs' federal claims with prejudice is granted. Plaintiffs' state law claims are dismissed without prejudice.
SO ORDERED.