Hart v. City of Binghamton et al

Filing 38

DECISION AND ORDER granting in part and denying in part Defendants' 29 Motion for Partial Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 5/2/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
NICHOLAS P. HART,
Plaintiff,
v.

3:10-CV-1064

THE CITY OF BINGHAMTON, and
ROBERT CHARPINSKY, Patrolman,
Individually and in his Official Capacity as
Police Officer for the City of Binghamton,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiff Nicolas P. Hart (“Plaintiff”) commenced this action asserting claims

pursuant to 42 U.S.C. § 1983 and New York state law. Defendants The City of
Binghamton (“the City”) and Patrolman Robert Charpinsky (“Charpinsky”) have moved for
partial summary judgment seeking to dismiss certain claims. Plaintiff has opposed the
motion and Defendants have filed reply papers. The Court will decide the motion based
upon the parties’ submissions, all of which have been considered.
II.

STANDARD OF REVIEW
On a motion for summary judgment the Court must construe the properly disputed

facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct.
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1769, 1776 (2007), and may grant summary judgment only where “there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). That is, “[s]ummary judgment is appropriate only if, after drawing all
permissible factual inferences in favor of the non-moving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.” O'Hara v.
National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)).
III.

BACKGROUND
Plaintiff’s claims in this action arise from his September 13, 2009 arrest. On this

date, at approximately 8:30 or 9:00 PM, an argument occurred in the driveway between 3
and 5 Gaylord Street in the City of Binghamton. The argument involved Patricia Hart,
Nicole Tiffany, and Nicole Tiffany’s mother. Patricia Hart is Plaintiff’s sister. Plaintiff
overheard the argument from 5 Gaylord Street and went outside to investigate. He heard
the two women threatening his sister so he became involved in the argument. Nicole
Tiffany called the Broome County 911 call center and reported a domestic dispute. She
also told the 911 operator that Plaintiff had a knife. Plaintiff alleges that when his sister
told him that Tiffany reported that he had a knife, he ran into 5 Gaylord Street, threw the
knife in his room, and then ran back outside and continued arguing.
Charpinsky, who was on duty at the time as a Patrolman with the City of
Binghamton Police Department, was dispatched to this call. Upon his arrival, Charpinsky
parked his police vehicle across the street from the driveway between 3 and 5 Gaylord
Street and exited the vehicle. He observed a number of individuals arguing in this

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driveway. One of the women in the driveway yelled that Plaintiff had a knife.1 Plaintiff
asserts that he began walking toward Officer Charpinsky stating that he no longer had the
knife on his person. Charpinsky instructed Plaintiff and Patricia Hart to retreat to the front
of 5 Gaylord Street. They complied. Charpinsky told Patricia Hart to leave the scene and
enter into her home at 5 Gaylord Street, which she did. Charpinsky then instructed
Plaintiff to put his hands above his head and against the porch at 5 Gaylord Street, which
he did. Plaintiff alleges that Officer Charpinsky then handcuffed him, began demanding
Plaintiff to tell him where the knife was, slammed Plaintiff into the porch a number of times
fracturing a bone in his shoulder, and then threw Plaintiff to the ground fracturing a bone in
his left knee.2
On July 28, 2010, Plaintiff served a Notice of Claim on the City. The Notice of Claim
described the events of September 13, 2009, and alleged that the City had been negligent
and/or grossly negligent by “failing to properly train and supervise its officers in the use of
reasonable force in citizen confrontations,” and that the City was also liable under the
theory of “respondeat superior” for the actions of Charpinsky. Charpinsky was not named
as a respondent in the caption of the Notice of Claim, but his alleged acts were described
in detail in the body of the Notice of Claim. See Notice of Claim, ¶¶ 6-7.
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There is a dispute as to whether the woman yelled that Plaintiff had a knife, or that he had
threatened the women with the knife.
2
Officer Charpinsky alleges that while Mr. Hart initially placed his hands above his head, after Officer
Charpinksy placed the handcuffs on one of Mr. Hart's wrists, Mr. Hart began to struggle and pulled the
second hand away before it could be placed in the handcuffs. Officer Charpinsky states he could hear Mr.
Hart's friends “cheering [Hart] on or rooting for him” while they struggled, and saw two males walking toward
him from behind. Officer Charpinsky believed that he was about to be attacked from behind so, in order to
protect himself, Officer Charpinsky took Mr. Hart to the ground in such a way that Mr. Hart was on the ground
between him and the would-be attackers. These events purportedly unfolded with such speed that Officer
Charpinsky, who was by himself, was not able inform the dispatcher that he was having difficulty with a
suspect or that he needed assistance.

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Plaintiff commenced this action September 2, 2010 asserting claims pursuant to 42
U.S.C. § 1983 and New York State law.3 Defendants have moved for partial summary
judgment seeking to dismiss some of the claims, discussed more fully below.
IV.

DISCUSSION
a.

State Law Claims Against Robert Charpinsky

Defendants assert that Plaintiff’s state law claims against Charpinsky must be
dismissed because Charpinsky was not named as a respondent in Plaintiff’s New York
General Municipal Law Section 50-e Notice of Claim. “The Court recognizes that it is well
settled that ‘General Municipal Law § 50–e makes unauthorized an action against
individuals who have not been named in a notice of claim.’” Hodge v. Vill. of Southampton,
09-CV-2606 JFB WDW, 2012 WL 174838, at *18 (E.D.N.Y. Jan. 20, 2012) (quoting DC v.
Valley Cent. Sch. Dist., 2011 WL 3480389, at *1 (S.D.N.Y. June 29, 2011)(internal
quotation marks and citations omitted)(collecting cases)). However,
“[t]he purpose of the statutory notice of claim requirement is to afford the
public corporation ‘an adequate opportunity to investigate the circumstances
surrounding [a claim] and to explore the merits of the claim while information
is still readily available.’ ” Mojica v. N.Y.C. Tr. Auth., 117 A.D.2d 722, 723,
498 N.Y.S.2d 448 (N.Y. App. Div.1986) (quoting Caselli v. City of New York,
105 A.D.2d 251, 252, 483 N.Y.S.2d 401 (N.Y. App. Div.1984)). The test of
the notice's sufficiency is whether it includes information sufficient to enable
the city to investigate the claim. O'Brien v. City of Syracuse, 54 N.Y.2d 353,
358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981). In determining whether a
claimant has complied with the statutory requirements for notice of claims,
“the court should focus on the purpose served by the notice of claim and

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In this regard, the Complaint asserts claims against the City sounding in: 1) a Fourth Amendment
claim of unreasonable search and seizure and use of excessive force; 2) a Due Process violation related to
an alleged use of excessive force and a state law claim of assault and battery; 3) a claim that the City failed
to train and supervise its officers in the proper use of force; and 4) a state law negligence claim based upon
the theory of respondeat superior. The Complaint asserts claims against Charpinsky sounding in: 1) a Fourth
Amendment claim of unreasonable search and seizure and use of excessive force; 2) a Due Process
violation related to an alleged use of excessive force; and 3) a state law claim of assault and battery.

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whether, based on the claimant's description, municipal authorities can
locate the place, fix the time and understand the nature of the accident.”
Niles v. City of Oneida, No. 6:06–CV–1492, 2009 WL 799971, at *3
(N.D.N.Y. Mar. 25, 2009).
Hodge, 2012 WL 174838, at *17.
Charpinsky is explicitly named in the body of the Notice of Claim and his alleged
unlawful acts are described in detail. This presented the City with sufficient information to
enable it to investigate the circumstances surrounding the claims asserted and to explore
the merits of these claims while information was still readily available. See id. at *17
Therefore, like in Hodge, “[t]he Court concludes that, although his name did not also
appear in the caption of the Notice, the clear identification of defendant [Charpinsky] in the
substance of the Notice is sufficient to satisfy [the General Municipal Law § 50–e]
requirement.” Id. Accordingly, summary judgment on this ground is denied.
b.

Respondeat Superior State Law Claims Against The City

Defendants argue that if the state law claims against Charpinsky are dismissed, the
respondeat superior state law claims against the City must also be dismissed for lack of a
necessary predicate. However, because the state law claims against Charpinsky are not
dismissed, the motion on this ground is denied.
c.

False Arrest & Illegal Search Claims

Defendants argue that Plaintiff cannot state claims for false arrest or illegal search
because probable cause existed to arrest and search Plaintiff. Plaintiff responds:
[W]hile plaintiff does not concede there was probable cause for his arrest
and the search of his person that ensued in these events after Charpinsky
arrived at the scene, he respectfully submits his Complaint in this action
makes clear he is suing the defendants for Charpinsky’s use of excessive
force during the search and seizure of the defendant that Charpinsky
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conducted on September 13, 2010....
Thus, while the events surrounding the arrest, search and seizure on September
13, 2009, are clearly relevant facts, they are not material to the plaintiff’s actual
complaint since neither false arrest nor illegal search are the particular
constitutional violations raised. Indeed, a false arrest does not always involve the
use of excessive force and vice versa. Here, plaintiff pursues an excessive force
claim, and this Court should decline to grant defendants summary judgment on
claims that the plaintiff has not pursued.
Pl. MOL, pp 8-10.
Whether Plaintiff has pursued claims of illegal search and seizure during the
litigation is not the issue. The claims are clearly pleaded in the Complaint, see Compl. ¶¶
33-34,4 and Defendants have moved for summary judgment dismissing these claims.
The undisputed facts indicate that upon Charpinsky’s arrival at the scene to
investigate a domestic dispute 911 call, a woman involved in the dispute yelled to him that
Plaintiff had a knife. Plaintiff then began approaching Officer Charpinsky asserting that he
no longer had the knife on his person. These facts are sufficient to establish a legal
justification for Charpinsky to detain Plaintiff for an investigation and to search Plaintiff’s
person for Charpinsky’s safety during that investigation. See Terry v. Ohio, 392 U.S. 1,
20-30 (1968).
Further, these facts establish probable cause for Officer Charpinsky to believe that

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The Complaint alleges:

33. Defendants herein deprived plaintiff of his rights guaranteed by the Constitution of the
United States including but not limited to the Fourth and Fourteenth Amendments thereto, as
a result of the unreasonable seizure with the use of excessive force.
34. Defendants carried out the aforesaid conduct with deliberate indifference to the plaintiff's rights,
including but not limited to the right to be free from unreasonable search and seizure and from the
use of excessive force.
Compl. ¶¶ 33-34 (emphasis added).

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Plaintiff, as an apparent participant in the dispute that prompted the 911 call, threatened
another in violation of New York Penal Law § 240.26,5 and perhaps did so with the knife in
violation of New York Penal Law § 120.14.6 Thus, based on the rapidly unfolding events
and information possessed at the time, Charpinsky had probable cause to arrest and
search Plaintiff. See Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004) (“Whether probable
cause exists depends upon the reasonable conclusion to be drawn from the facts known
to the arresting officer at the time of the arrest.”); Amore v. Novarro, 624 F.3d 522, 536 (2d
Cir. 2010) (“Probable cause exists if at the time of the arrest ‘the facts and circumstances
within th[e officer's] knowledge and of which [he] had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the [suspect] had committed or
was committing an offense.’”)(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); Jaegly v.
Couch, 439 F.3d 149, 154 (2d Cir. 2006)(The relevant inquiry is whether “probable cause
existed to arrest a defendant” and “it is not relevant whether probable cause existed with
respect to each individual charge, or, indeed, any charge actually invoked by the arresting
officer at the time of arrest.”); Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)(“It is

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New York Penal Law § 240.26 provides:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm
another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or
attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously
annoy such other person and which serve no legitimate purpose.
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New York Penal Law § 120.14 provides: "A person is guilty of menacing in the second degree
when: 1. He or she intentionally places or attempts to place another person in reasonable fear of physical
injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument * * *."

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well-established that a law enforcement official has probable cause to arrest if he received
his information from some person, normally the putative victim or eyewitness.”); Lee v.
Sandberg, 136 F.3d 94, 103 (2d Cir. 1997)(“If policemen arrest a person on the basis of a
private citizen’s complaint that if true would justify the arrest, and they reasonably believe
it is true, they cannot be held liable . . . merely because it later turns out that the complaint
was unfounded.”). Accordingly, summary judgment is warranted dismissing Plaintiff’s
false arrest and illegal search claims. See Chambers v. Maroney, 399 U.S. 42, 51, 90 S.
Ct. 1975, 26 L. Ed.2d 419 (1970) (“In enforcing the Fourth Amendment's prohibition
against unreasonable searches and seizures, the [Supreme] Court has insisted upon
probable cause as a minimum requirement for a reasonable search permitted by the
Constitution.”); Jaegly, 439 F.3d at 152 ("[T]he existence of probable cause is an absolute
defense to a false arrest claim."); see also Abdul-Rahman v. City of New York, 10 CIV.
2778, 2012 WL 1077762 (E.D.N.Y. Mar. 30, 2012) (The fact of a lawful arrest, standing
alone, authorizes a search. Because the Court finds the officers had probable cause to
arrest him, the search of plaintiff was also lawful.”)(citing United States v. Robinson, 414
U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed.2d 427 (1973)).
d.

Failure to Supervise/Train

Defendants also seek to dismiss Plaintiff’s claims of an unconstitutional policy of
failing to train or supervise its officers regarding the use of force during arrests. In order to
succeed on this claim under either theory, Plaintiff “must show that the [constitutional
violation] was the result of municipal custom, policy, or practice.” Fitzgerald v. Barnstable
Sch. Comm., --- U.S. ----, 129 S. Ct. 788, 797 (2009) (citing Monell v. Dep't of Social

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Servs. of City of N.Y., 436 U.S. 658, 694 (1978)).7 “A municipality's failure to train or
supervise its officers can rise to the level of an actionable policy or custom where it
amounts to ‘deliberate indifference’ to the constitutional rights of its citizens.” Hall v.
Marshall, 479 F. Supp.2d 304, 315-16 (E.D.N.Y.2007) (citations omitted).
1. Failure to Supervise
“As the phrase ‘deliberate indifference’ suggests, a plaintiff cannot prevail [on a
failure to supervise theory] merely upon proving a failure to investigate or rectify the
situation; []he must demonstrate that such failure ‘evidences deliberate indifference, rather
than mere negligence or bureaucratic inaction.’” Stevens v. City of Bridgeport, 607 F.
Supp.2d 342, 356 (D. Conn. 2009)(quoting Amnesty Am. v. Town of West Hartford, 361
F.3d 113, 128 (2d Cir. 2004)). On such a theory, “[p]laintiff[] must also prove causation;
that is, that the ‘state defendants' inadequate supervision actually caused or was the
moving force behind the alleged violations.’” Id. (quoting Reynolds v. Giuliani, 506 F.3d
183, 193 (2d Cir. 2007)).
Plaintiff has presented evidence that Binghamton Police Department’s Internal
Affairs Officer, Capt. John C. Chapman, is the “single senior officer delegated to
investigate” complaints of police officer excessive force. Chapman Dep., p. 5. Further,

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In Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.2d 611
(1978), the Supreme Court established that “[l]ocal governing bodies ... can be sued directly
under [42 U.S.C.] § 1983 for monetary, declaratory, or injunctive relief where, as here, the
action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body's officers.”
Id. at 690, 98 S. Ct. 2018.
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 124-25 (2d Cir. 2004).

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Plaintiff points out that despite “numerous notices of claim and complaints filed by citizens
that are reflected in the City’s records of civilian complaints” of excessive force by officers,
Pl. MOL. p. 4, Chapman could not recall finding a single instance in which he concluded a
Binghamton police officer used excessive force. Chapman Dep. 7. Chapman further
indicated that the City maintains no written policy on the factors to consider in determining
whether excessive force was used by an officer. Id. p. 13. Finally, Plaintiff points to
Chapman’s testimony which confirms that Chapman does not consult with a physician to
determine the amount of force necessary to inflict specific injuries sustained by arrestees.
Id. p. 15-16; 19-20.
However, while Plaintiff has cited to numerous cases concerning citizen complaints
of the use of excessive force by City police officers, Plaintiff has not provided evidence
tending to indicate that any these complaints were of substance.8 That is, while Plaintiff
has provided evidence of complaints, he has not provided evidence that any of the
complaints were determined by a neutral fact finder to be meritorious. Thus, Chapman’s
failure to find any of the officers engaged in excessive force alleged in the complaints
does not mean, a fortiori, that the City was deliberately indifferent to the well being of its
citizens.
Of course, “[d]eliberate indifference may also be inferred from a failure to
supervise, such as when meaningful attempts to investigate repeated claims of excessive
force are absent.” Ahern v. City of Syracuse, 411 F. Supp. 2d 132, 146 (N.D.N.Y. 2006)

8

On this point, Defendants argue that the cases cited by Plaintiff were brought by Plaintiff's counsel's
law firm but do not include any that resulted in a finding by a court or jury of the use of excessive force. Def.
Reply MOL, pp. 7-8. Defendants argue that, at most, some of the cases were settled for "nuisance value" by
the City. Def. Reply MOL, p. 7.

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(citing Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995)). However,
[t]he existence of repeated complaints . . . is not sufficient; rather, it is the
combination of such complaints with the municipality's response which “tip[s] the
scales toward the probative.” Mendoza v. City of Rome, 872 F. Supp. 1110, 1118
(N.D.N.Y.1994). For deliberate indifference to be shown, the response must
amount to a persistent failure to investigate the complaints or discipline those
whose conduct prompted the complaints. Fiacco v. City of Rensselaer, 783 F.2d
319, 328 (2d Cir.1986)(knowledge of prior allegations of excessive force can form
the basis of a finding of deliberate indifference, even where “none of the claims
ha[s] yet been adjudicated in favor of the claimant,” so long as “the [municipality's]
efforts to evaluate the claims were so superficial as to suggest that its official
attitude was one of the indifference to the truth of the claim”). Simple disagreement
with the nature or extent of punishment imposed on an official as a result of his
actions will not demonstrate a municipal policy of failure to supervise. See Sarus v.
Rotundo, 831 F.2d 397, 401-02 (2d Cir.1987).

Ahern, 411 F. Supp. 2d at 146. Here, Plaintiff does not assert a persistent failure by the
City to investigate the complaints, but rather a simple disagreement with the conclusions
reached by the investigating official.
Further, deliberate indifference is not established merely because Chapman did not
consult a physician to determine the amount of force necessary to inflict certain injuries
sustained by arrestees, or because the City did not have specific policy guidelines on what
constitutes constitutionally excessive force. Excessive force is defined relative to the force
reasonably believed necessary under the circumstances, and is not determined by the
nature of the resulting injuries sustained. See Graham v. Connor, 490 U.S. 386, 394-95,
109 S. Ct. 1865, 104 L. Ed.2d 443 (1989)9; Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.

9

The Fourth Amendment prohibits the use of excessive force by a police officer “in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen.” Graham v. Connor, 490 U.S. 386, 395, 109 S.
Ct. 1865, 104 L. Ed.2d 443 (1989). The test for excessive force is one of reasonableness. Id. “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.” Id. at 394.
The Fourth Amendment standard is purely objective: “the question is whether the officers' actions are

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2010)(“[T]he inquiry is necessarily case and fact specific and requires balancing the nature
and quality of the intrusion on the plaintiffs Fourth Amendment interests against the
countervailing governmental interests at stake.”)(citation omitted). The fact that the City’s
Internal Affairs Officer investigating citizen complaints of excessive force did not consult a
physician on the subject of the force necessary to inflict certain injuries, or did not have
written guidelines to cover the myriad of circumstances that police officers are sure to
encounter, does not amount to deliberate indifference to the constitutional well being of
the City’s citizens.
Plaintiff has also failed to raise a genuine question of material fact as to whether
the City’s alleged failure to supervise its officers was the moving force behind Plaintiff’s
injury.
It is well-settled that a plaintiff may establish this required causal link by
showing that a defendant was deliberately indifferent to the training,
supervision, or discipline of its employees. See Amnesty Am., 361 F.3d at
127 (citation omitted). In this regard, the plaintiff “must establish [the
defendant's] deliberate indifference by showing that ‘the need for more or
better supervision to protect against constitutional violations was obvious' “
and that the defendant “made ‘no meaningful attempt’ to forestall or prevent
the unconstitutional conduct.” Id. (quotation omitted).
Dukes v. Troy Hous. Auth., 1:08-CV-479, 2011 WL 1261317 (N.D.N.Y. Mar. 31, 2011).
Plaintiff’s contention that the “need for more or better supervision to protect against
constitutional violations was obvious” is nothing more than a conclusory assertion, based

‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397. This standard “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 396. Because the standard is objective reasonableness, “[n]ot
every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the
Fourth Amendment.” Id. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)).

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upon nothing more than the surmise and speculation that if different protocols had been
employed following the earlier complaints, Plaintiff would not have sustained an injury
during his arrest. Such conclusory contentions, surmise, and speculation are insufficient
to withstand summary judgment.
2. Failure to Train
On a failure to train theory,
[a] plaintiff must meet [Walker v. City of New York, 974 F.2d 293 (2d Cir.1992)]’s
three-pronged test to demonstrate deliberate indifference, which ordinarily
establishes deliberate indifference by showing “that the officials consciously
disregarded a risk of future violations of clearly established constitutional rights by
badly trained employees.” Amnesty Am., 361 F.3d at 127 n. 8 (citing City of Canton,
489 U.S. at 389-90, 109 S. Ct. 1197). To prevail, a plaintiff must also prove
causation; that is, a plaintiff must “identify a specific deficiency in the city's training
program and establish that that deficiency is closely related to the ultimate injury,
such that it actually caused the constitutional deprivation.” Id. at 129 (citation and
internal quotation marks omitted). Demonstrating “negligent administration of a
sound program,” or that one or more officers negligently or intentionally disregarded
otherwise appropriate training, does not suffice. Id. at 129-30.
To survive summary judgment on a failure to train claim, a plaintiff must
introduce “evidence as to the city's training program and the way in which
that program contributed to the violation.” Amnesty Am., 361 F.3d at 127 n.
8. Ordinarily, a plaintiff should introduce evidence of “how the training was
conducted, how better or different training could have prevented the
challenged conduct, or how ‘a hypothetically well-trained officer would have
acted’” differently under the circumstances. Id. at 130.
Stevens, 607 F. Supp.2d at 357-58.
Plaintiff asserts “that physical force is frequently used in police encounters with
civilians in Binghamton and this conduct continued and resulted in lawsuits against the
City shows that more likely than not, the training of it officers by the City as to the
continuum of force is neither adequate nor efficient, and the City has made no effort to
provide additional training.” PL. MOL p. 12. Plaintiff also asserts that “in the case at bar
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Plaintiff adduces proof that the City of Binghamton has been sued in numerous cases
involving allegations of the use of excessive force that indicates the inadequacies and
deficiencies in the City’s training of its officers as to the continuum of force and the
reasonable application of force” to be used during valid arrests. Pl. MOL p. 13.
However, as addressed above, the mere fact that the City has been sued does not
mean that the prior suits were meritorious. There is a critical paucity of evidence from
which a fact finder could conclude that the City was placed on notice of any deficiency in
its training program by the prior suits, and Plaintiff’s conclusory contention that there must
have been some deficiency in the training program because Plaintiff suffered fractured
bones is insufficient. See Neighbour v. Covert, 68 F.3d 1508, 1512 (2d Cir.1995)(“The
mere allegation that the municipality failed to train its employees properly is insufficient to
establish a municipal custom or policy.”).
Accordingly, Plaintiff’s claim against the City of an unconstitutional policy of failing
to train or supervise its officers regarding the use of force during arrests is dismissed.
V.

CONCLUSION
For the reasons discussed above, Defendants’ motion for partial summary

judgment [dkt. # 29] is GRANTED IN PART and DENIED IN PART. The motion is granted
inasmuch as: (a) all false arrest and/or illegal search claims brought against both
Defendants; and (b) Plaintiff’s claim against the City of Binghamton asserting an
unconstitutional policy of failing to train or supervise its officers regarding the use of force
during arrests, are DISMISSED. The motion is denied in all other respects.

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IT IS SO ORDERED
Dated: May 2, 2012

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