Ferlito et al v. The County of Suffolk et al
Filing
122
MEMORANDUM AND ORDER granting in part and denying in part 119 Motion for Summary Judgment. A final, pretrial and settlement conference is hereby scheduled for October 12, 2012 at 3:00 p.m. Each party shall fax my Chambers a brief confidential statement of the respective settlement positions by the close of business on October 5, 2012. Ordered by Judge Denis R. Hurley on 9/6/2012. (Malley, Sean)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSEPH FERLITO and ANGELO FERLITO,
Plaintiffs,
-against-
MEMORANDUM & ORDER
06 CV 5708 (DRH)(AKT)
THE COUNTY OF SUFFOLK,
P.O. CHRISTIAN HUBERT,
P.O. MICHAEL S. TURANSKY, and
STEVEN A. LEVY a/k/a STEVE LEVY,
Defendants.
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APPEARANCES:
Law Offices of Frederick Brewington
Attorneys for Plaintiffs
556 Peninsula Boulevard
Hempstead, New York 11550
By:
Valerie M. Cartright, Esq. (on brief)
Frederick K. Brewington, Esq.
Victor Serby, Esq.
Suffolk County Attorney
Attorney for Defendants
H. Lee Dennison Building
100 Veterans Memorial Highway
Hauppauge, New York 11788-0099
By:
Arlene S. Zwilling, Esq.
HURLEY, Senior District Judge:
Plaintiffs bring this action against the County of Suffolk (the “County”), its
County Executive at the time of the alleged conduct, Steve Levy, and two Suffolk County
police officers pursuant to 42 U.S.C. § 1983, alleging excessive force, false arrest, and
malicious prosecution, and pursuant to state law alleging battery, assault, false arrest,
negligent hiring and defamation. 1 Before the Court is defendants’ motion for partial
summary judgment as to plaintiffs’ federal Monell 2 claims against the County, and as to
all of plaintiffs’ remaining state law claims. For the reasons that follow, defendants’
motion is granted in part and denied in part.
BACKGROUND
On July 24, 2005, plaintiff Joseph Ferlito (“Joseph”) confronted one Ronald
Bowman in Lindenhurst, New York and began “lecturing” him for operating his
motorcycle in an “unsafe, obnoxious, and rude” manner. (Plaintiffs’ Statement of Facts
Pursuant to Local Civil Rule 56.1 (“Pls.’ 56.1”) ¶ 4.) Plaintiff Angelo Ferlito (“Angelo”)
approached his brother Joseph to inquire about the conflict. (Id. ¶ 5.) Meanwhile,
defendant police officers Michael S. Turansky (“Turansky”) and Christian A. Hubert
(“Hubert”), who were parked in their vehicles approximately four houses away, saw the
interaction, got out of their cars and ran towards the two plaintiffs. (Id. ¶ 6.) One of these
two officers, “jumped [Joseph] from behind, and put him into a choke hold and punched
him in the head.” (Id. ¶ 7.) The other officer “jumped” Joseph as well. As he did, the
first officer turned and “grabbed [Angelo] by the neck, punched him[, ] knocked him
down, slamming his face into the ground . . . sprayed him in the face with OC spray
(mace), [ ] violently twisted his arms behind his back then handcuffed him,” and kicked
him as he lay handcuffed on the ground. (Id. ¶¶ 8-10.) The second officer maced Joseph
1
Plaintiffs’ negligent hiring and defamation claims were dismissed by prior Order of this Court.
See Ferlito v. County of Suffolk, 2007 U.S. Dist. LEXIS 85523 (E.D.N.Y. Nov. 19, 2007).
2
See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
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and repeatedly punched and elbowed him in the head. (Id. ¶¶ 12-14.) Several onlookers
witnessed these events, including Angelo’s fourteen-year-old daughter. (Id. ¶¶ 11,15.)
Both plaintiffs were taken to the hospital. Although the emergency room
physician recommended that they be admitted, for reasons not apparent in the parties’
fact statements, they were instead taken to the nearest police precinct, where the officers
charged both individuals with misdemeanor resisting arrest. (Id. ¶¶ 19-22.)
The Suffolk County Police Department initiated an internal affairs investigation,
which concluded that Turansky failed to follow Department procedure requiring that
individuals charged with resisting arrest be photographed. (Id. ¶ 25.) The investigation
further recommended that Turansky receive “training/counseling in that area.” (Id. ¶ 26.)
Hubert “recalls” at least two excessive force claims having been brought against him
prior to this incident. (Id. ¶ 29.) He was not disciplined in relation to these accusations
and has since received a promotion. (Id. ¶ 30.)
DISCUSSION
I.
STANDARD OF REVIEW - SUMMARY JUDGMENT
Summary judgment should be granted where the pleadings and admissible
evidence offered to the Court demonstrate “no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56; Major
League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). An issue
of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Roe v.
City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). Further, the relevant governing law
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determines which facts are material; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248. Accordingly, where the undisputed facts
demonstrate the union of all the required elements of a cause of action and no reasonable
juror could find otherwise, the plaintiff is entitled to summary judgment. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (“Rule 56(c) mandates the entry of summary
judgment . . . against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.”).
A party may defeat a motion for summary judgment only “by coming forward
with evidence that would be sufficient, if all reasonable inferences were drawn in [its]
favor, to establish the existence of [an] element at trial.” Roe, 542 F.3d at 36 (quoting
Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998)). The non-movant
must advance more “than a scintilla of evidence,” Anderson, 477 U.S. at 252, and
demonstrate more than “some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory
statements in affidavits or allegations in the pleadings are insufficient to defeat a motion
for summary judgment. Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
II.
MONELL CLAIMS
Defendants seek summary judgment on plaintiffs’ claims against the County
pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), arguing that plaintiffs
have failed to set forth evidence of a custom, policy, or practice of the County that would
entitle them to relief.
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A municipality may not be held liable under section 1983 on a respondeat
superior theory of liability for its employees’ alleged constitutional violations. See
Monell, 436 U.S. at 691; Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A
municipal entity may only be liable if the alleged conduct was undertaken pursuant to “a
policy statement, ordinance, regulation, or decision officially adopted and promulgated
by [its] officers” or a “governmental ‘custom’ even though such a custom has not
received formal approval through [ ] official decisionmaking channels.” Monell, 436 U.S.
at 690-91. Therefore,
a local government may not be sued under § 1983 for an
injury inflicted solely by its employees or agents. Instead,
it is when execution of a government’s policy or custom,
whether made by its lawmakers or those whose edicts or
acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible
under § 1983.
Id. at 694 (quoted by Coon v. Town of Springfield, Vt., 404 F.3d
683, 686 (2d Cir. 2005)).
The existence of a municipal policy or custom may be established in any of the
following four ways. A plaintiff may demonstrate that his or her constitutional injuries
arose from: “(1) the existence of a formal policy officially endorsed by the municipality;
(2) actions taken or decisions made by municipal officials with final decision making
authority, which caused the alleged violation of plaintiff’s civil rights; (3) a practice so
persistent and widespread that it constitutes a custom of which constructive knowledge
can be implied on the part of the policymaking officials; or (4) a failure by policymakers
to properly train or supervise their subordinates, amounting to ‘deliberate indifference’ to
the rights of those who come in contact with the municipal employees.” Williams v. City
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of Mt. Vernon, 428 F. Supp. 2d 146, 159 (S.D.N.Y. 2006) (citing Moray v. City of
Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996)); see also Bonds v. Suffolk County Sheriff’s
Dep’t, 2006 U.S. Dist. LEXIS 93607 (E.D.N.Y. Dec. 5, 2006) (same); Peterson v.
Tomaselli, 2004 U.S. Dist. LEXIS 19765, 2004 WL 2211651, at *9 (S.D.N.Y. Sept. 30,
2004) (same).
“A municipal policy may be pronounced or tacit and reflected in either action or
inaction.” Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011). “Where a
policymaking official exhibits deliberate indifference to constitutional deprivations
caused by subordinates, such that the official’s inaction constitutes a deliberate choice,
that acquiescence may be properly thought of as a city policy or custom that is actionable
under § 1983.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004);
see also Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 410 (1997)(“‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.”). A showing of deliberate
indifference in this context entails three parts:
(1) [that the] policymaker knows “to a moral certainty” that
its employees will confront a given situation; (2) [that]
either [the] situation presents employees with [a] difficult
choice that will be made less so by training or supervision,
or there is a record of employees mishandling situation; and
(3) [that the] wrong choice by employees will frequently
cause deprivation of constitutional rights.
County of Erie, 654 F.3d at 334 (citing Walker v. City of New York, 974 F.2d 293,
297-98 (2d Cir. 1992)).
Plaintiffs allege that defendants are liable under Monell for malicious prosecution,
false arrest, and excessive force. (Compl. ¶¶ 61-69.)
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a. Malicious Prosecution
Plaintiffs devote most of their argument regarding Monell claims to allegations of
malicious prosecution. Notably, no allegations of malicious prosecutions were brought
against any individuals in this action, nor does the Complaint articulate much in the way
of facts to support such a claim. The cause of action asserting plaintiffs’ Monell claims
alleges in relevant part that the County:
has been alerted to the use of false criminal charges brought
by its employee officers to cover up the use of excessive
and unreasonable force by its police officers, and that the
culture of bringing such false charges has been allowed to
exist without repercussions to the officers who engage in
such behavior.
(Compl. ¶ 67.)
A plain reading of this particular allegation implicates the conduct of the officers
in drafting the accusatory instrument, not the conduct of anyone in the District Attorney’s
office who later prosecutes the criminal case. Furthermore, the only relevant facts set
forth elsewhere in the pleading suggest that the defendant officers “falsely charg[ed]”
plaintiffs and created “false accusatory instruments.” (Compl. ¶¶ 51-52.) None of the
alleged facts specifically involve the prosecution of such charges, or the involvement of
any prosecutors in the drafting of accusatory instruments by the defendant officers.
Despite this deficiency, plaintiffs now argue in their opposition to defendants’
motion that Monell liability should nevertheless attach to the County for alleged
malicious prosecution because prosecutors allegedly offered to drop the criminal charges
against the plaintiffs in exchange for plaintiffs’ agreement to withdraw the present
lawsuit. (Pls.’ Opp. at 9-11.) Plaintiffs argue that by offering this deal, defendants
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infringed upon their due process rights. (Id. at 10.) The Court need not address the
merits of this claim for two reasons. First, to the extent that this claim sounds in a
violation of due process, plaintiffs have not brought such a claim in their pleading, and
they cannot assert such for the first time in an opposition memorandum to a summary
judgment motion. Second, even if the Court were to credit that this dismissal offer
violated plaintiffs’ constitutional rights, the claim is brought against the County; no
individual prosecutors were named in this suit. 3 Plaintiffs fail to point to any evidence in
the record demonstrating that such offers are a custom, policy, or practice of the County
as required under Monell. 4 For the same reason, plaintiffs’ arguments that the District
Attorney acted improperly in this particular criminal case by “processing [the] case as an
incident of domestic violence,” or by somehow mishandling and losing the physical case
file is also unavailing. (See Pls.’ Opp. at 12.)
In reaching the above conclusion, the Court is not moved by what plaintiffs term
as the “undisputed” expert testimony of Gary Certain, Esq. (See, e.g., Pls.’ Opp. at 1114.) Plaintiffs argue that their expert inter alia “render[ed] an opinion that the County []
is liable for malicious prosecution since its police officers were engaged in conduct that
was inappropriate.” (Pls.’ Opp. at 13.) Advancing the testimony of an expert to support
such propositions demonstrates a fundamental misapprehension of the role of expert
witnesses. These witnesses serve to offer “scientific, technical, or other specialized
knowledge [to] help the trier of fact to understand the evidence or to determine a fact in
3
For reasons not evident to the Court, plaintiffs refer on more than one occasion in their brief to
the“defendant District Attorney.” (Pls.’ Opp. at 8, 11.) Again, plaintiffs have not named the District
Attorney or any individual prosecutor in this case.
4
For example, plaintiffs argue that this particular offer constituted a broad policy “as it was clear that the
District Attorney’s Office had communications with the County Attorney’s office regarding the same.”
(Pls.’ Opp. at 13.) However, the testimony in support of this assertion is based entirely on the speculative
testimony of an individual without personal knowledge of this incident. (See Certain Dep. 96-98.)
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issue.” Fed. R. Evid. 702. Their purpose is not to offer opinions on matters of law.
Accordingly, where this expert testimony is offered to establish matters of law, and in
many instances in plaintiffs’ papers it is, such testimony will be disregarded.
Furthermore, plaintiffs’ argument that the “opinions rendered by [the] Expert-Attorney,
Gary Certain, Esq. are undisputed and [that] defendants have offered no Expert Report in
opposition and/or rebuttal,” (Pls.’ Opp. at 14), has no bearing on the outcome of the
present motion. It is the existence of disputed issues of material fact, not opinion, that
affects the disposition of claims at the summary judgment stage.
b. Excessive Force and False Arrest
In support of their arguments for Monell liability as to excessive force and false
arrest, plaintiffs suggest that the County knew of the likelihood that their officers would
engage in such conduct because there is a “multitude of Fourth Amendment cases that
challenge police practices both locally and nationally historically.” (Pls.’ Opp. at 8.) As
further evidence of this purported knowledge as it pertains to excessive force in
particular, plaintiffs cite to the fact that the County Police Department has a policy of
requiring that individuals charged with resisting arrest be photographed – a policy,
plaintiffs note, that the defendant officers failed to follow. Id. This argument, however,
tends to undercut plaintiffs’ case for Monell liability, as it demonstrates that the County
actually enacted measures to discourage excessive force by its officers.
This proffered evidence that the County’s purported knowledge of excessive force
and false arrest within the ranks of the Police Department does not lend to the conclusion
that the County acted with deliberate indifference. Most notably, despite plaintiffs’
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insistence that a “multitude” of cases involving police misconduct screams out for action
by the County, plaintiffs fail to identify in their brief even one of these cases, save for the
present action. Plaintiffs also fail to offer evidence that the County’s existing efforts, to
the extent they exist, are inadequate, or to identify what measures should be taken—even
in the broadest sense—to address the purportedly pervasive issues plaguing the County
Police Department. Without even attempting to identify these elements of fact, plaintiffs
cannot prevail under the “stringent” standard for deliberate indifference under Monell.
Finally, plaintiffs also argue under this claim that the County failed to “timely”
investigate the plaintiffs’ administrative allegations of police misconduct after they were
reported to the Department. As these post-incident measures would not have had any
effect on the conduct of the officers alleged in the complaint, the alleged inaction at issue
cannot therefore be the cause of plaintiffs’ alleged deprivation.
As plaintiffs have failed to proffer sufficient evidence to permit a trier of fact to
find Monell liability against the County, defendants’ motion for summary judgment as to
plaintiffs’ federal claims against the County is granted.
III.
STATE LAW CLAIMS
Defendants’ sole argument for dismissing plaintiffs’ state law claims is that they
are barred by the applicable statutes of limitations. (Defendants’ Memorandum of Law in
Support (“Defs’ Br.”) at 15 (citing N.Y. Gen. Mun. L. §§ 50-i, 50-m)). Certain state law
negligence claims, including those asserted here, against a “city, county, town, village,
fire district or school district or of any officer, agent or employee thereof” must be filed
within one year and ninety days of accrual. See N.Y. Gen. Mun. L. § 50-i. The
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allegations in the present Complaint arise from events that occurred on or after July 24,
2005. One year and ninety days following this date is October 22, 2006, which, as
plaintiffs correctly point out, was a Sunday. This case was commenced on October 23,
2006, the next business day, and is therefore timely under Fed. R. Civ. P. 6(a)(1)(C).
Defendants’ motion for summary judgment as to plaintiffs’ state law claims is therefore
denied.
IV.
MOTION IN LIMINE
Finally, defendants urge that in the event that the Monell claims are dismissed, the
testimony of plaintiffs’ expert Gary Certain, Esq. should be precluded because,
defendants argue, such testimony was offered solely in support of plaintiffs’ claims for
municipal liability. (Defs.’ Br. at 14.) The Court need not address this issue at this time.
To the extent that this testimony is offered to establish matters of law (see discussion
supra), and to the extent that it is offered to establish municipal liability, such portions of
the testimony will be precluded. However, some portions of the testimony may arguably
speak to issues of fact regarding the claims proceeding to trial in this case. The Court
will entertain arguments from the parties as to the admissibility of any such portions of
the testimony at trial. Defendants’ motion in limine is therefore denied without prejudice.
CONCLUSION
For the reasons set forth above, defendants’ motion for summary judgment is
granted as to plaintiffs’ claims for municipal liability against the County under the federal
causes of action, but denied as to plaintiffs’ remaining state law claims. Defendants’
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motion in limine to preclude the testimony of Gary Certain, Esq. is denied without
prejudice.
A final, pretrial and settlement conference is hereby scheduled with the
undersigned for October 12, 2012 at 3:00 p.m. The parties shall each fax 5 my Chambers
a brief confidential statement of their respective settlement positions by the close of
business on October 5, 2012.
SO ORDERED.
Dated: Central Islip, New York
September 6, 2012
/s
Denis R. Hurley
United States District Judge
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These confidential submissions shall not be filed on ECF. The fax number may be obtained by
telephoning Chambers.
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