Montanez v. City of Syracuse et al
Filing
116
ORDER that Defendants' motion for summary judgment (Dkt. No. 89 ) is GRANTED as to the battery, IIED, prima facie tort, and negligent hiring claims against the City and the supervisory liability claims against Fowler and that the battery, IIE D, prima facie tort, and negligent hiring claims against the City and the supervisory liability claims against Fowler are DISMISSED with prejudice. Defendants' motion for summary judgment (Dkt. No. 89 ) is otherwise DENIED in its entirety and Defendants' motion to strike (Dkt. No. 102 ) is DENIED. Signed by Judge Brenda K. Sannes on 1/23/2019. (rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MALEATRA MONTANEZ,
Plaintiff,
6:16-cv-00550 (BKS/TWD)
v.
CITY OF SYRACUSE; POLICE OFFICER CHESTER D.
THOMPSON; CHIEF OF POLICE FRANK L. FOWLER;
and POLICE CAPTAIN THOMAS GALVIN,
Defendants.
Appearances:
For Plaintiff:
Edward Sivin
Sivin & Miller, LLP
20 Vesey Street, Suite 1400
New York, NY 10007
For Defendants City of Syracuse, Frank L. Fowler, and Thomas Galvin:
Khalid Bashjawish
Assistant Corporation Counsel, City of Syracuse
233 E. Washington Street, Suite 300
Syracuse, NY 13202
John G. Powers
Paul J. Tuck
Hancock Estabrook LLP
1500 AXA Tower I
100 Madison Street
Syracuse, NY 13202
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Maleatra Montanez brings this action against Defendants City of Syracuse (the
“City”), Police Officer Chester D. Thompson, Chief of Police Frank L. Fowler, and Police
Captain Thomas Galvin. (Dkt. No. 1). These claims arise from Plaintiff’s allegation that, on
February 14, 2015, Thompson, a patrol officer with the Syracuse Police Department (“SPD”),
reported to her residence in response to a 911 call and, while he was there, directed her to engage
in sexual acts with him. (Dkt. No. 1). 1 Plaintiff brings: (1) a battery claim against Thompson and
the City; (2) an intentional infliction of emotional distress (“IIED”) claim against Thompson and
the City; (3) a prima facie tort claim against Thompson and the City; (4) a negligent hiring,
training, supervision, and retention claim against the City; (5) a Fourth Amendment excessive
force and unreasonable search and seizure claim against Thompson; (6) a Fourteenth
Amendment substantive due process claim against Thompson; (7) a supervisory liability claim
against Fowler; (8) a supervisory liability claim against Galvin; and (9) a Monell municipal
liability claim against the City. (Id.). The City, Fowler, and Galvin 2 move for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 89). Plaintiff does not oppose
dismissal of her battery, IIED, prima facie tort, and negligent hiring claims against the City but
otherwise opposes summary judgment and submits evidence in support of her contention that
there are material issues of fact requiring trial. (Dkt. No. 97, at 5). Defendants move to strike
certain aspects of that evidence, (Dkt. No. 102), and Plaintiff opposes the motion to strike. (Dkt.
No. 107). The Court held oral argument on January 8, 2019. For the reasons that follow,
The facts regarding this encounter are disputed. Defendants assert that the sex was consensual. (Dkt. No. 89-1, at
9; Dkt. No. 99-3, at 72–99). Plaintiff says that she complied with Officer Thompson’s direction to give him oral sex
because she was terrified; that he raped her after directing her to get a condom; and that she went to the hospital the
next day to report the rape. (Dkt. No. 99-2, ¶¶ 5–9). That dispute is immaterial to the resolution of the present
motion. Construing the facts in the light most favorable to the Plaintiff, the Court refers to the incident as a sexual
assault.
1
For convenience, the Court refers to the City, Fowler, and Galvin collectively as “Defendants.” This reference does
not include Defendant Thompson, who is represented by separate counsel and has no motion before the Court at this
time.
2
2
Defendants’ motion for summary judgment is granted in part and denied in part, and Defendants’
motion to strike is denied.
II.
FACTS 3
A.
Thompson’s Employment at SPD 4
Thompson began his employment as a patrol officer with the SPD on January 3, 1997. In
general, during his shifts, Thompson worked by himself—without a partner—and drove a
marked SPD vehicle. (Dkt. No. 99-3, at 9). On February 15, 2015, the day after he allegedly
sexually assaulted Plaintiff, Thompson was suspended pending investigation of Plaintiff’s
complaint. (Dkt. No. 89-31, at 4). The SPD terminated Thompson’s employment following the
investigation. (Dkt. No. 89-10, ¶ 91). Prior to the incident at issue in this case, Thompson was
the subject of five complaints, four of which the SPD investigated or responded to in some
manner.
B.
Prior Complaints
1.
1999 to 2001 – Bassett/Malenick Complaint
Cheryle Bassett has submitted a declaration detailing the following contact with
Thompson. (Dkt. No. 99-10). Bassett met Thompson at some point between 1999 and 2001,
when he pulled over her motor vehicle “because of a traffic infraction.” (Dkt. No. 99-10, ¶¶ 1, 3;
Dkt. No. 99-16, ¶ 2). Bassett told Thompson that she was struggling financially and “he offered
to lease to [her] a portion of a house that he managed” in Syracuse. (Dkt. No. 99-10, ¶ 3). Bassett
states that, after she moved in, she fell behind on rent. (Id. ¶ 4). Thompson “began to make
3
The facts are drawn from Defendants’ statement of material facts, (Dkt. No. 89-2), Plaintiff’s responses thereto
(Dkt. No. 98), and the attached affidavits, declarations, exhibits, and depositions. The facts are taken in the light
most favorable to Plaintiff.
As Defendants seek summary judgment dismissing the negligent training, supervision, and retention claims and
§ 1983 supervisory and municipal liability claims, the material facts principally relate to Defendants’ knowledge of
and response to Thompson’s alleged misconduct throughout his career as a police officer at the SPD.
4
3
sexual advances, which [Bassett] did not rebuke.” (Id.). Bassett and Thompson “had sexual
relations for several weeks and during that time period [Bassett] paid little or no rent.” (Id.).
Subsequently, Bassett was arrested for prostitution. (Id. ¶ 5). During an interview with SPD
officers, “in an attempt to avoid the criminal charges,” Bassett told them about her relationship
with Thompson. (Id.). According to Bassett, “[t]his appeared to anger the officers,” and the
charges were dismissed. (Id.).
Bassett states that, after “this incident,” Thompson was angry with her, and their
relationship ended. (Id. ¶ 6). Thompson demanded that she pay the back rent, which she was
unable to do, and “then demanded that [Bassett] have sex with him,” but Bassett “told him that
[she] did not want to.” (Id.). Bassett remained at the residence and attempted to pay Thompson
what she owed. (Id.). Thompson, however, “threatened” eviction if she “did not have sex with
him.” (Id.). Bassett states that, “[o]ver the next several months,” “Thompson showed up at the
[residence] at various hours of the day and night, mostly unannounced and often in uniform, and
raped me.” (Id. ¶ 7).
At some point during this time period, Bassett became friends with John Malenick, to
whom she confided “what Chester Thompson was doing to [her].” (Id. ¶ 8). Malenick advised
her to report Thompson to the police, but she “was afraid to do so.” (Id.). Malenick “then took it
upon himself to contact the [SPD] to notify them of what Chester Thompson was doing” to
Bassett. (Id.). Malenick has submitted a declaration regarding his report. (Dkt. No. 99-16, ¶ 6).
In late 2001 or early 2002 Malenick told an officer at SPD’s Internal Affairs 5 that he believed
Defendant Galvin, who was head of the SPD’s Internal Affairs Division—later known as the Office of Professional
Standards (“OPS”))—from 1989 until he retired in June 2015, (Dkt. No. 99-8, at 7–9), states in his declaration that
“[t]he purpose of OPS is to receive and fairly investigate any complaints made, whether external or internal, against
police officers serving within the Department whose conduct is a violation of law or otherwise a failure to comply
with Department policies, rules, or regulations.” (Dkt. No. 89-10, ¶ 6).
5
4
Thompson “had forced [Bassett] to have sex with him and that he threatened to evict her . . . if
she didn’t have sex with him.” (Id.). The officer asked whether Malenick had any direct proof of
the accusation. (Id.). When Malenick said that he did not, the officer responded that “without any
direct proof there was nothing that could be done.” (Id.). There is no evidence of an
investigation.
2.
2002 – Health Insurance Complaint
In 2002, the SPD received information concerning Thompson’s 2000 application for, and
procurement of, health insurance coverage for his ex-wife, whom he had divorced in 1995. (Dkt.
No. 99-18, at 9). On the application, Thompson filled in the date of marriage but left the marital
status box blank. (Dkt. No. 99-18, at 10). As Thompson’s ex-wife “appear[ed] not to be an
eligible dependent,” the SPD commenced an internal investigation. (Dkt. No. 99-18, at 7). As
part of the investigation, Captain John Agne from the Human Resources Division and Captain
Mark McArdle from the Patrol Services Division, searched SPD records, made inquiries to the
health insurance office, and interviewed Thompson. (Dkt. No. 99-18, at 7–12). Captain Agne
concluded that his investigation showed “a pattern of the [sic] less than truthful behavior of Ofc.
Thompson, as well as the fact that he may have participated in criminal behavior by filing these
documents and receiving insurance benefits that he is not entitled to.” (Id. at 8). Then-Chief of
Police Dennis DuVal found Thompson in violation of the SPD’s Rules and Regulations
governing unbecoming conduct, unsatisfactory performance, and performance of duties, and on
October 17, 2002, he issued a letter of reprimand reminding Thompson “that future acts in
violation of the Rules & Regulations would bring discredit upon yourself and this Department
5
and would be dealt with more severely.” (Dkt. No. 99-18, at 1). 6 Defendant Galvin personally
served the letter on Thompson. (Id.).
3.
2005–Complaint From Woman at Syracuse Corporation Counsel
According to an October 6, 2005 SPD interdepartmental memo, a woman employed by
the Syracuse Corporation Counsel made a complaint of “Unbecoming Conduct” against
Thompson (“the SCC complaint”). (Dkt. No. 99-20, at 1). The woman complained that
Thompson had “struck up a conversation” with her outside a bar and “offered to follow her home
to make sure she made it there safely.” (Id.). “[O]nce they arrived at her home . . . he walked her
on to the porch,” and then she “opened the door to let herself in and Officer Thompson walked
inside.” (Id.). The woman said “goodbye so Officer Thompson would leave and Officer
Thompson said he needed a hug first.” (Id.). “She gave him a hug so he would leave and he left.”
(Id.). “[O]n another night,” Thompson was working and saw the woman getting out of her car;
Thompson thought she flashed her lights “at him wanting to talk.” (Id.). The woman, however,
“related [to Thompson] that she was only locking her car remotely.” (Id.). Thompson provided a
different account of these events. He acknowledged knowing her but stated that “she asked him
to follow her home” and that he did not go inside, “request a hug,” or “receive or give a hug to
her.” (Id.). The SPD determined that “all that was needed at this time was to talk to Officer
Thompson and instruct him not to contact” her; SPD did not speak to her. (Id.). Thompson
agreed to comply with the instruction “not to have further contact” with her. (Id.).
4.
2006 – Buske Complaint
In 2006, Candy Buske made a complaint to the SPD about Thompson. (Dkt. No. 99-8, at
14). Buske was “incarcerated at the time . . . on a Robbery charge” and “made it known that she
6
Chief DuVal also suspended Galvin for three days without pay. (Id. at 2).
6
had information about two Syracuse police officers that she would like to provide in order to
obtain leniency on her . . . pending criminal charge.” (Dkt. No. 89-10, ¶ 37). Then-Chief of
Police Gary Miguel 7 instructed Galvin, who was the head of the SPD’s Office of Professional
Standards (“OPS”), see supra note 5, to open an investigation. (Dkt. No. 89-10, ¶¶ 4, 34). Galvin
interviewed Buske at the jail on May 17, 2006 (Id. ¶ 38). Buske acknowledged that she had a
drug habit that she supported through prostitution. (Dkt. No. 99-21, at 1, 11). Buske stated that,
in February or March 2006, she was walking “in the area of No. State St . . . between three and
four in the morning,” when a marked SPD car “pulled up next to” her. (Id. at 11). Buske stated
that the police officer in the car, whom she identified as Thompson, “called [her] by name and
asked if [she] was working.” (Id.). Thompson told her to “get into the back seat of the car” so he
could “run [her] name.” (Id.). After Buske got into the car, they drove “around the north side of
the city” and talked. (Id.). Buske believed that there was a warrant for her arrest for violating
probation, but concluded that Thompson did not check her name because he did not speak on the
radio, use the computer, or ask for her identification. (Id.). Thompson asked her if she “would do
something for him,” which Buske knew meant “something sexual.” (Id.). Buske “was afraid
[Thompson] would arrest [her] if [she] refused” so she said she would. (Id.). Thompson asked
Buske to “give him a blow job” and she agreed. (Id.). Thompson got into the back seat of the car,
“unzipped his pants and [Buske] performed oral sex on him.” (Id. at 12). Afterwards, Thompson
gave her twenty dollars, dropped her off, and said he would like to see her again. (Id.). Buske
stated that she saw Thompson three weeks later, again in a marked SPD vehicle, and that he
asked her to meet him in “a little while”; she agreed but “never went.” (Id.). In addition, Buske
7
Fowler was appointed Chief of Police at some point in 2009. (Dkt. No. 99-7, at 9).
7
“indicated that her adult daughter, who was also a prostitute and a drug user, also knew, and had
some dealings with, Officer Thompson.” (Dkt. No. 89-10, ¶ 43).
Galvin “pulled” Thompson’s “activity Detail Reports from the beginning of 2006 on
occasions where he was working the North side of the City, to see if [he] could place
[Thompson] at the location described by Ms. Buske.” (Id. ¶ 44). “The reports did not
conclusively confirm the information provided by Ms. Buske.” (Id.). Galvin presented a photo
array to Buske; “[s]he picked out a photo of Chester Thompson as the police officer that had paid
her for oral sex.” (Id. ¶ 45). Galvin obtained a sworn statement from Buske and included it in the
investigation file. (Id. ¶ 46).
Galvin states that he also contacted Cari Buske, Candy Buske’s daughter, who told him
that she met Thompson “in late 2005 or early 2006, and that afterward, Thompson would contact
her via cell phone wanting to meet her in person.” (Id. ¶ 47). Cari Buske stated that she never
“had any relationship with him.” (Id.). Galvin “subpoenaed Cari Buske’s cell phone records to
try to determine whether Chester Thompson’s number appeared,” but it did not. (Id. ¶ 48).
Galvin also researched both Candy and Cary Buske’s criminal histories, which contained arrests
for prostitution. (Id. ¶ 49).
Galvin interviewed Thompson regarding the allegations by Candy and Cari Buske. (Id.
¶ 50). Thompson said that “he was, from time to time, involved in investigations on the North
side of the City that involved him stopping prostitutes to obtain information . . . on drug houses
and illegal weapons possession, because he assumed that . . . prostitutes may have inside
information on other criminal activity.” (Id. ¶ 51). Thompson “denied ever having Candy Buske
in his police vehicle” or “engaging in any sexual activity with . . . any . . . prostitute, while he
was on duty.” (Id. ¶ 52). Thompson, however, “admitted that approximately eight months
8
previously he had another prostitute [in] his vehicle, who he could not identify.” (Id. ¶ 53).
Thompson told Galvin that he “did not notify the dispatcher of the transport.” (Dkt. No. 99-21, at
6).
During the interview, Galvin showed Thompson a picture of Cari Buske, who was “also a
prostitute.” (Id. at 2, 5). Thompson told Galvin that “he had dealt with her on a call six to eight
months ago” and “at that time” obtained her cell phone number. (Id. at 5). Thompson
acknowledged that he called Cari Buske “on a personal note” “three or four times” and that he
should not have called her because “he was married.” (Id.). Thompson indicated that he “may
have” tried to meet with Cari Buske “but that did not occur.” (Id.). Galvin noted that Thompson
was “extremely agitated” during the interview, which led Galvin “to question [Thompson’s]
denial.” (Dkt. No. 89-10, ¶ 56).
Following the interview, Thompson submitted a memo to Galvin regarding Candy
Buske’s complaint and his knowledge of Cari Buske. (Dkt. No. 99-21, at 9–10). Thompson
stated that he stopped Candy Buske six months before, that he asked her why she was in the area,
and that Candy Buske responded that she was searching for her daughter Cari Buske, “whom she
believed to be in a troubled situation.” (Id. at 9). As the memo detailed, Thompson told Candy
Buske that he knew who her daughter was and that, if he saw Cari, he would tell her that her
mother was looking for her. (Id.). In his memo, Thompson acknowledged that he called Cari
Buske’s “cell phone approximately 6 times” but did so “at her request” to discuss “matters which
she had questions about of a police nature.” (Id.). Thompson acknowledged that, “approximately
6 to 8 months” previously, a female he believed to be a prostitute “flag[ged] [him] down and
ask[ed] if [he] could transport her”; however, Thompson did “not recall if [he] called out on this
occasion or not.” (Id.).
9
The same day, Galvin completed a case report for Chief Miguel about the complaint
against Thompson summarizing his investigation. (Id. at 1–7). Galvin noted that there were
inconsistencies between Thompson’s interview and the memo Thompson submitted after the
interview: “His [memo] was consistent with what was stated during the interview, with the
exception of telephoning Cari Buske. It was no longer done ‘inappropriately’, ‘on a personal
note’ but be called her cell phone approximately six times ‘at her request’ as she had questions of
a police nature.” (Id. at 6).
In the case report, Galvin concluded that the “basic allegation made by Candy Buske”
against Thompson had “not been substantiated” 8 but that “some concerns have been raised.” (Id.
at 6). Galvin explained that “Officer Thompson was extremely agitated during the interview, and
after having been apprised of Buske’s allegation asked several times if that was the only
complaint against him. He . . . appeared to have a questionable relationship with prostitutes,
repeatedly telephoning Cari Buske ‘on a personal note,’ and giving one a ride without contacting
the dispatcher.” (Id.). Next to “Recommendation,” Galvin wrote: Thompson “violated the
Departmental Rules and Regulations regarding persons in police vehicles. Disciplinary action
initiated.” (Id.).
“Consistent with the SPD disciplinary process,” Galvin prepared a Discipline Report
stating: “In the month of January or February 2006, Officer Chester Thompson did transport a
female in his assigned police unit without permission and without notifying the dispatcher,” in
the SPD’s Rules and Regulations. (Id. at 16). Galvin sent the Discipline Report, “Investigative
Galvin explained that there are three basic findings—unfounded, substantiated, and unsubstantiated—and
explained that: “unfounded” means “conduct that is disproved or demonstrated to have not occurred”;
“unsubstantiated” means “conduct that is not conclusively disproven but . . . there is insufficient evidence to
conclude one way or the other whether the alleged conduct occurred”; and substantiated means “there is sufficient
evidence to conclude that the misconduct as alleged has actually occurred.” (Dkt. No. 89-10, ¶¶ 16–18).
8
10
Case Report, the entire investigation file, and a summary of Officer Thompson’s prior
disciplinary history” to “the chain of command” and to Chief Miguel. (Dkt. No. 89-10, ¶ 58).
Though he recommended a finding of unsubstantiated as to Buske’s allegations, because
Galvin found her “description of events as being plausible” and Thompson had been “very
nervous” during his interview, Galvin advised Chief Miguel that because Thompson “worked the
midnight shift . . . [a]nd that’s when prostitutes are out working and they can be manipulated
sometimes” it was “something that should be monitored.” (Dkt. No. 99-8, at 14–16). Ultimately,
“[t]he chain of command . . . recommended,” and Chief Miguel ordered, that Officer Thompson
be disciplined with a formal letter of reprimand for transporting “a female in his assigned police
unit.” (Dkt. No. 89-10, ¶¶ 59–60; Dkt. No. 99-21, at 16). Chief Miguel adopted the finding that
the Buske allegation was not substantiated. (Dkt. No. 99-21, at 7).
On July 26, 2006, Galvin served the letter of reprimand, signed by Chief Miguel, on
Thompson. (Dkt. No. 89-10, ¶ 61). The letter also contained a reminder “that future acts in
violation of the Rules and Regulations would bring discredit upon yourself and this Department
and would be dealt with more severely.” (Dkt. No. 89-14, at 14).
Thompson’s duties did not change following Buske’s complaint: the SPD did not place
any restrictions on him, and he was not aware of any additional monitoring. (Dkt. No. 99-3, at
192). Thompson testified that Galvin never expressed any disapproval of his interactions with
Candy Buske or Carrie Buske. (Id. at 193).
5.
2014 – Melissa Popcun-Roach Complaint
On June 2, 2014, the SPD received a complaint by “Patricia Popcun over the alleged
activities of an unidentified [SPD] officer and her thirty-five-year-old daughter Melissa Popcun
Roach” at Melissa’s home on Cayuga Street in Syracuse. (Dkt. No. 99-6, at 1, 4). Galvin initiated
11
an investigation, and interviewed Popcun, who related that her daughter Melissa had told her
that:
a Syracuse Police officer followed her into her apartment
unannounced and uninvited . . . and that she told the officer that she
didn’t want any trouble because she already had problems with the
police. The officer told her that he would take care of any police
problems in exchange for oral sex, which [she] then gave him.
(Dkt. No. 99-5, at 1). Popcun also relayed to Galvin that Melissa said that “[s]he performed the
act and the officer left” and that the officer had “worn a wedding ring.” (Dkt. No. 99-6, at 1; Dkt.
No. 89-10, ¶ 68). Galvin testified that Popcun told him that she felt what the officer had done
“wasn’t right” and that he had taken “advantage of her daughter, who was a heavy drinker and
bipolar medication [sic] and that she was a drug abuser,” and that “the officer should have been
aware that [her daughter, Melissa,] was not capable of consent.” (Dkt. No. 99-8, at 47).
To “determine the identity of the officer in question,” Galvin reviewed the Officer
Activity Detail Reports for June 1, 2014 and found that Thompson and Officer Thomas Nicolini
had responded to the Cayuga Street area “on an animal complaint.” (Dkt. No. 89-10, ¶ 72). Since
“of the two, only Officer Thompson wore a wedding band,” Galvin identified Thompson “as the
potential subject.” (Id.).
Galvin then interviewed Nicolini, who confirmed that he and Thompson had responded
to a call in the Cayuga Street area, where a “pit bull . . . had been found running lose.” (Dkt. No.
99-6, at 2; Dkt. No. 89-10, ¶ 73). According to Galvin, Nicolini stated that, while they were
there, “they were approached by a woman named Melissa,” who “stated she had information
regarding the owner of the dog that was the subject of the complaint.” (Dkt. No. 89-10, ¶ 73). 9
Officer Nicolini’s written report to Galvin regarding the incident does not mention any conversation indicating that
Melissa had information about the dog. (Dkt. No. 99-6, at 5).
9
12
Nicolini reported that “[i]t appeared that Melissa was intoxicated as she was stumbling when she
walked and there was alcohol on her breath.” (Dkt. No. 99-6, at 5). Nicolini told Melissa “to
leave this area due to the aggressive dog.” (Id.). After Melissa went back inside her apartment,
Thompson went to the apartment for roughly 10-15 minutes, and returned “with no more
information.” (Id. at 2, 5).
Galvin next interviewed Thompson, who “admitted going into Melissa Popcun[-Roach’s]
apartment . . . to attempt to collect information from her about the animal control complaint that
was being investigated,” “denied that anything improper occurred but indicated that he was not
able to learn anything useful from her regarding the investigation.” (Dkt. No. 89-10, ¶ 75).
Galvin directed Thompson to prepare a written statement, which Galvin “included in the
investigation file.” (Id.; Dkt. No. 99-6, at 6). In his written statement, Thompson maintains that
he “spoke briefly” with Melissa in her apartment “for approximately 10 minutes regarding the
neighbors [sic] dog.” (Id.).
Galvin did not obtain a written statement or affidavit from Popcun or Melissa. In a
declaration filed in connection with this summary judgment motion, Popcun states that she spoke
with Galvin a second time after her daughter was upset about the fact that Popcun reported the
incident to the police. (Dkt. No. 89-21, ¶¶ 9–10). Popcun told Galvin that her “daughter did not
intend to cooperate with the investigation and that if they pursued it with her she would likely
say it didn’t happen.” (Id. ¶ 10). Galvin did not interview or attempt to interview Melissa
Popcun-Roach. (Dkt. No. 99-8, at 9). 10 After completing the investigation, Galvin prepared a
Melissa Popcun-Roach has submitted an affidavit stating that no one from the SPD “ever contacted [her] or, to
[her] knowledge, attempted to contact” her. (Dkt. No. 99-4, at 1). She further states that, had someone from the SPD
contacted her, she “would have spoken to them and told them about what happened with the police officer.” (Id.).
She “did not contact anyone at the SPD on [her] own because [she] was not in a good mental state during the time
period when this incident happened.” (Id.). She recounts the incident with Thompson as follows:
10
13
case report and recommended that the case be closed as “unsubstantiated.” (Dkt. No. 99-6, at 3).
As described below, Plaintiff has highlighted discrepancies in the evidence regarding aspects of
this report, including: (1) Galvin’s report that Melissa “refused to meet” and “was not available,”
(Id. at 2) and (2) Galvin’s report that Melissa had “retracted her accusations . . soon after they
were made,” and that Melissa “said it did not happen,” (Id. at 1–2).
Galvin has explained that he recommended a finding of “unsubstantiated” because he
“could not corroborate through first-hand testimony that the incident did occur” and “there were
serious credibility issues with Melissa Popcun[-Roach] based on her mother’s credible
representations that her daughter was struggling with substance abuse and had recanted her
original account of the events in question.” (Dkt. No. 89-10, ¶ 80; Dkt. No. 99-6, at 1–3). In his
report, Galvin stated that “Officer Thompson and I discussed at length the fact that any allegation
of impropriety could be prevented by using basic common sense and avoiding certain situations.
He was reminded of the penalties should such conduct be verified as true. He understood the
Departments [sic] concerns.” (Dkt. No. 99-6, at 2). Galvin testified that, during the course of the
investigation, he became “aware” of the Buske allegations, which he had investigated in 2006,
eight years before. (Dkt. No. 99-8, at 21). The Buske allegations are not referred to in the
Popcun-Roach case report.
Some time in 2014 a [SPD] officer entered my apartment unannounced and
without my permission . . . . I jokingly asked the officer if he could help me with
some open traffic tickets. In response, the officer walked over to the couch on
which I was seated, unzipped his pants, removed his erect penis, and told me to
give him oral sex. The officer had a very scary and demanding demeanor and I
was afraid and intimidated by him so I began to give him oral sex.
(Id. at 1).
14
Upon completion of the case report, Galvin sent the Popcun-Roach case file, including
the report, to Rebecca Thompson, 11 a deputy chief at the SPD for review and signature. (Dkt.
No. 99-9, at 8, 20–21). Deputy Chief Thompson testified that at the time she reviewed the case
file, she had no questions or follow up for Galvin. (Dkt. No. 99-9, at 21–22). When she was
asked during her deposition about the indication in the case report that Popcun-Roach “refused to
meet with any police officers,” Deputy Chief Thompson responded that Galvin had told her that
he had “reached out” to Melissa Popcun-Roach but that “she would not return any of his calls or
give him any information.” (Id. at 23). Chief Deputy Thompson “concurred with the
investigation of Captain Galvin, that it was unfounded” and signed the case report. (Id. at 31).
Chief of Police Fowler, as the “final decision” maker, conducted the “final review” of the
Popcun-Roach report. (Dkt. No. 99-7, at 28). Fowler testified that he understood that the SPD
had received a “complaint from a mother who alleged that her daughter . . . had been coerced to
perform oral sex on Officer Thompson.” (Id. at 22). The only document in the file Fowler
recalled receiving in connection with the Popcun-Roach investigation was the case report. (Id. at
33). According to his declaration, Fowler “carefully considered all the facts and noted, as
discussed by Captain Galvin, that there was no first hand testimony that the act had actually
occurred.” (Dkt. No. 89-3, ¶ 60). Fowler testified that “Captain Galvin made every effort to
contact the subject of the investigation” but “wasn’t able to speak with her.” (Dkt. No. 99-7, at
41). Although Fowler found Ms. Popcun’s allegations “concerning,” he determined that “the
evidence was not sufficient to substantiate that Officer Thompson had committed misconduct,”
and explained this “was a judgment call made based on consideration of all the evidence and the
11
There is no familial relation between Defendant Chester Thompson and Chief Deputy Rebecca Thompson.
15
investigation experience of myself and Captain Galvin.” 12 (Dkt. No. 89-3, ¶ 61). Fowler signed
the Popcun-Roach case report, adopting the recommendation that the case be closed as
“unsubstantiated.” (Dkt. No. 99-6, at 3). 13 During his deposition, when Fowler was asked
whether, “[a]t the time that [he] signed off on this report” he was “concerned about the
possibility that Chester Thompson had done what was alleged and that he might do it again in the
future,” he responded: “No.” (Dkt. No. 99-7, at 40).
Thompson testified that he was never disciplined in connection with Popcun-Roach’s
allegations, that his duties with the SPD did not change following the investigation, that he did
not perceive that he was being “monitored any more closely than before” the allegations, and that
he was not asked to undergo any training. (Dkt. No. 99-3, at 234–35).
C.
2015 Montanez Incident
Thompson met Plaintiff Maleatra Montanez approximately eight months after the
Popcun-Roach incident. Plaintiff alleges the following. On February 14, 2015, she “called 911 to
report that her sister had taken [Plaintiff’s] minor daughter from Syracuse to Alabama without
[Plaintiff’s] permission.” (Dkt. No. 98, ¶ 62). Thompson, who was already at Plaintiff’s building
on an unrelated call, responded to Plaintiff’s apartment. (Dkt. No. 99-3, at 18–19). Plaintiff and
her newborn son were in the apartment. (Dkt. No. 99-2, ¶ 4). Once inside her apartment,
Thompson, who was in uniform and equipped with his service weapon and a baton, (Dkt. No.
In his declaration, Fowler states that, in determining the “appropriate discipline for substantiated complaints,” he
reviews, among other things, “the officer’s prior performance history and prior disciplinary history.” (Dkt. No. 89-3,
¶ 24). The Popcun-Roach case report, however, recommended, and Fowler adopted, a finding of unsubstantiated.
(Dkt. No. 99-6, at 3). There is no evidence that Fowler reviewed Thompson’s prior history or that SPD policy
required such review in the event of an unsubstantiated finding.
12
Fowler stated that, at the time he learned of the “incident regarding Melissa Popcun[-Roach],” he was not aware
of any other allegations of sexual impropriety by Thompson, and that he did not learn about Buske’s allegations
until after the present lawsuit. (Dkt. No. 99-7, at 43–44). Galvin, on the other hand, testified that he apprised Fowler
of Galvin’s concerns that “this is a second time. Even though there was a gap of eight years, it was a similar
allegation. She was a vulnerable person, in my perspective, and it would have been easy to take advantage of that, as
it would have been with a prostitute.” (Dkt. No. 99-8, at 25–26).
13
16
99-3, at 53–54), told Plaintiff she “was pretty,” “commented on [her] rear end and made a sexual
comment about [her] lips.” (Dkt. No. 99-2, ¶ 5). “He also started to rub himself in his groin area
over his pants” and “then removed his penis from his pants and told [Plaintiff] to ‘suck it.’” (Id.).
Plaintiff “did not try to fight Officer Thompson, but . . . told him ‘Whoa, we don’t have to do
this.’” (Id.). “In response, he just repeated, ‘suck it.’” (Id.). Plaintiff “was terrified for [her]
safety and for the safety of [her] newborn son, so [she] began to give Officer Thompson oral
sex.” (Id.). Thompson then told Plaintiff “to get a condom” and raped her. (Id. ¶¶ 7–8). The next
day, February 15, 2015, Plaintiff went to a local hospital, where she reported that she “had been
raped by a Syracuse police officer with the last name ‘Thompson.’” (Id. ¶ 9). 14
Fowler learned of the incident the same day Plaintiff reported it, on February 15, 2015.
(Dkt. No. 89-13, ¶ 28). Following a briefing, Fowler met with Thompson’s supervisor and the
police officer who initially interviewed Plaintiff, referred the matter to the district attorney’s
office for investigation, and, after conferring with Galvin, suspended Thompson pending
investigation. (Dkt. No. 89-3, ¶¶ 29–33; Dkt. No. 89-10, ¶ 88). Galvin states that he
“recommended the immediate suspension of Officer Thompson . . . pending further investigation
of the allegations” “based, in part, on [his] prior experience with Officer Thompson, including
the nature of the allegations, though unproven, from the 2006 Buske and 2014 Popcun
complaints.” (Dkt. No. 89-10, ¶ 88).
Thompson disputes her account. Thompson asserts that Montanez initiated the sexual encounter when she
“reached back” and “grabbed [him] in his penis area,” as he was about to leave her apartment. (Dkt. No. 99-3, at 72–
75). According to Thompson, Montanez then led him into the living room, unzipped his pants and began giving him
oral sex. (Id. at 72–85). Thompson testified that after about three minutes of oral sex Montanez stood up, told him to
wait, and got a condom from her bedroom. (Id. at 86–90). According to Thompson, Montanez then again began
giving Thompson oral sex and he did not enter her vaginally because he had already ejaculated. (Id. at 95–99).
14
17
Galvin commenced an investigation, which included interviews of Plaintiff and
Thompson, and provided their versions of the incident in a case report dated February 20, 2015.
(Dkt. No. 99-24). Galvin recounted the following aspect of his interview of Thompson:
This writer asked Officer Thompson why he thought it would be
allowable for an officer to engage with a complainant in sex,
whether consensual or not, while on duty. He replied he did not think
it would be a problem. I asked if he recalled my having counseled
him six months before in regards to an allegation having been made
at the time that he had allowed a vulnerable female (drugs, mental)
to perform oral sex on him while he was on duty and he said that he
did.
(Dkt. No. 99-24, at 4). Galvin recommended that disciplinary action be initiated. (Id.).
An SPD discipline report dated February 24, 2015 contains findings that Thompson
violated SPD’s Rules and Regulations governing unbecoming conduct. (Dkt. No. 89-5, at 31).
The report describes the violation as follows: “On 14 February 15 while on duty and during the
course of his official duties, Officer Thompson did engage in sexual intercourse and fellatio with
a female complainant while conducting an investigation at her residence.” (Id.). The report is
signed by Galvin and Fowler. (Id.). According to the report, on February 24, 2015, Galvin
notified Thompson that he was terminated. (Id.). A certificate of conviction dated January 11,
2016 indicates that Thompson was convicted of official misconduct in violation of New York
Penal Law § 195.00 15 and sentenced to three years of probation. (Dkt. No. 89-9).
D.
Rumors and Other Alleged Incidents
Plaintiff has submitted evidence of Thompson’s alleged sexual activity with respect to
four other women while on duty. (Dkt. No. 99-15; Dkt. No. 99-23; Dkt. No. 99-3, at 139–
New York Penal Law § 195.00, as relevant here, provides that: “A public servant is guilty of official misconduct
when, with intent to obtain a benefit or deprive another person of a benefit: 1. He commits an act relating to his
office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized.”
15
18
40;195–209, 236–43). It is undisputed, however, that these alleged incidents “were not officially
reported to the SPD.” (Dkt. No. 107, at 6).
Plaintiff has also offered the deposition testimony of John Baggett, who was an SPD
police officer at the same time as Thompson, (Dkt. No. 99-14, at 11, 30), who testified that
“rumors were running rampant throughout the SPD” concerning allegations that, while on duty,
Thompson had “sexually assaulted” women. (Id. at 44–45). Baggett could not “pinpoint” when,
during his approximately 21-year career, he first started hearing those rumors, (Id. at 22), but he
believed Miguel might have been Chief of Police when they first came out, (id. at 49). To
illustrate how “widespread” the rumors were throughout the SPD, Baggett explained that, even
though he did not work with or “run in the same circles” as Thompson, the rumors “got to [him]
somehow.” (Id. at 23). Both Galvin and Fowler testified, however, that they had no knowledge of
these rumors. (Dkt. No. 99-8, at 30; Dkt. No. 99-7, at 59).
E.
Brown Declaration
In opposition to Defendants’ motion for summary judgment, Plaintiff filed a declaration
by Robert Brown, whom she offers as an expert in the area of internal investigations into
allegations of police misconduct as well as “strateg[ies] and penalties” in connection with
criminal cases against members of a police force. (Dkt. No. 107, at 8). Brown has been “a
practicing attorney 16 with an emphasis on criminal defense” for the past 17 years. (Dkt. No. 9913, ¶ 4). Prior to becoming an attorney, Brown worked for the New York Police Department
(“NYPD”), from which he retired “with the rank of captain.” (Id. ¶ 1). As captain, Brown
As an attorney, Brown has “defended both private citizens and law enforcement officials against various criminal
charges,” has defended “law enforcement officials against civil and administrative charges,” and has “represented
plaintiffs and defendants in civil actions involving allegations of police misconduct.” (Dkt. No. 99-13, ¶ 4). In
addition, he has served as a guest lecturer on “police procedures and culture,” “police drug enforcement policy,” and
“police use of force” at three law schools. (Id.).
16
19
“supervised over two-hundred members of the NYPD.” (Id.). Brown was also “the Commanding
Officer and Chief Investigator of the NYPD’s Special Prosecutor’s Office.” (Id.). In this role, he
“investigated allegations of police misconduct and conducted administrative interrogations . . . of
police personnel accused of high-profile corruption and serious misconduct”; further, he
“conducted a department-wide review of all open cases against members of the NYPD and made
recommendations regarding strategy and penalties.” (Id.).
Brown states that his declaration is based on his review of “various documents and
deposition testimony generated in connection with” this matter, including the SPD General Rules
and Procedure Manual; relevant literature regarding issues of police integrity and proper
responses to allegation of police misconduct; and his “years of training and experience” as a
criminal defense lawyer and employment with the NYPD and New York City Housing Police
Department (“NYCHPD”). (Id. ¶ 6). In Brown’s opinion, Galvin failed to address “reported
instances of misconduct by Thompson” “in a manner that was consistent with” the SPD Manual.
(Id. ¶ 15). According to Brown, although the SPD manual “prohibits officers from knowingly
associating with persons known to have a reputation of criminal conduct except in the
performance of their assigned duties, and further prohibits officers from utilizing their on-duty
time in the pursuit of private business or association,” Galvin did not discipline or recommend
discipline against Thompson “for knowingly associating for personal reasons with Cari Buske, a
known prostitute.” (Id.). Brown further notes that, “[w]hen interviewing Thompson in
connection with the Buske, Popcun, and Montanez incidents, Galvin also failed to record the
interviews mechanically or by a stenographer,” “failed to interview Popcun’s daughter,” “failed
to obtain an affidavit from Popcun or her daughter,” and “failed to document what he alleges
were his unsuccessful attempts to obtain the cooperation of Popcun and her daughter, as required
20
by the Manual.” (Id.). In Brown’s opinion, Fowler and Galvin “should have made every attempt
to interview Popcun’s daughter,” and “Popcun’s alleged statement to Galvin that she did not
want her daughter to be interviewed—even if true—did not justify Galvin’s failure to interview
the daughter.” (Id. ¶ 18). Brown opines that, following the Popcun-Roach investigation, “the
SPD definitely should have implemented” increased monitoring and supervision of Thompson.
(Id. ¶ 19). Brown further opines that the SPD’s “investigations and responses to these prior
reported allegations also deviated materially from good and accepted standards of police
practice, including the SPD’s own internal rules and policies.” (Id. ¶ 7).
III.
MOTION TO STRIKE
Defendants seek an order striking from Plaintiff’s statement of material facts paragraphs
concerning: (1) “rumors that Chester Thompson sexually assaulted women while on duty”;
(2) “sexual misconduct about which the SPD was never notified”; and (3) “the declaration of
Robert Brown.” (Dkt. No. 102-1, at 2).
The evidence concerning “rumors” and Thompson’s alleged sexual misconduct against
four women, about which the SPD was never formally notified, is discussed above. (See supra
Section II.D). While the Court finds this evidence insufficient to raise a material issue of fact,
(see infra Section V.B.2.b.) the Court declines to strike paragraphs concerning this evidence
from Plaintiff’s statement of material facts.
The Court also declines to strike the paragraph in Plaintiff’s statement of material facts
that cites Brown’s declaration. Plaintiff cites Brown’s declaration only once in her statement of
material facts, (Dkt. No. 98, ¶ 3), and it is one cite among six. Paragraph 3 of Defendants’
statement of material facts, and Plaintiff’s responses, are as follows:
3.
The Office of Professional Standards (“OPS”) is responsible
for the SPD’s internal affairs function and investigates any internal
or external complaints made against any SPD officers whose
21
conduct is a violation of law or otherwise fails to comply with SPD
policies, rules, or regulations. See Fowler Decl. at ¶¶ 8, 9.
Plaintiff admits only that OPS is responsible for the SPD's internal
affairs function and is obligated to investigate internal or external
complaints made against any SPD officers whose conduct is a
violation of law or otherwise fails to comply with SPD policies,
rules, or regulations, but denies any suggestion that OPS always
complied with that obligation. Specifically, OPS and its predecessor
in name, the Internal Affairs Division, either failed to investigate
allegations of sexual predation by Chester Thompson or failed to
conduct any meaningful investigation of those allegations. See
Exhibit 4 (Affidavit of Melissa Popcun), Exhibit 5 (Affidavit of
Patricia Popcun), Exhibit 10 (Declaration of Cheryle Bassett),
Exhibit 11 (SPD General Rules and Procedure Manual (the
Manual), Vol. 1, Article 3, titled “Sex Crime Investigations,”
Sections 22.13(A)(1),(3), & (9) and Section 22.14(A)(3), Exhibit 13
Declaration of Robert Brown), and Exhibit 15 (Declaration of John
Malenick).
(Dkt. No. 98, ¶ 3). As the proposition for which Plaintiff cites Brown’s declaration is supported
by other admissible evidence—specifically, the Popcun and Popcun-Roach affidavits (Dkt. Nos.
99-4, 99-5)—and Plaintiff has not offered it for any other purpose, Defendant’s motion to strike
“the portion of Plaintiff’s opposition to Defendants’ Statement of Material Facts that relies on the
Brown Declaration, as well as the Brown Declaration itself,” (Dkt. No. 102-1, at 14), is denied as
moot. Any dispute regarding the admissibility of Brown’s testimony at trial should be addressed
by the parties in a motion in limine. Accordingly, Defendants’ motion to strike is denied.
IV.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
22
the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The
movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party meets this burden, the nonmoving party must “set out specific facts
showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at
323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary
judgment motion, the district court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
V.
DISCUSSION
A.
State Law Claims
1.
Battery, IIED, Prima Facie Tort, and Negligent Hiring Claims
Defendants seek, and Plaintiff does not oppose, dismissal of her battery, IIED, prima
facie tort, and negligent hiring claims against the City. (Dkt. No. 97, at 5). Accordingly, those
claims are dismissed against the City.
2.
Negligent Training, Supervision, and Retention
The City moves for summary judgment dismissing the negligent training, supervision,
and retention claims as barred by governmental immunity. (Dkt. No. 89-1, at 20–24). Plaintiff
argues that the City is not entitled to governmental immunity because its responses to “prior
allegations of malfeasance by Thompson were either ignored, involved no real exercise or
23
discretion, or involved an exercise of discretion that violated the SPD’s own internal rules and
policies.” (Dkt. No. 97, at 23).
“New York courts have held governmental employers liable for placing employees, like
police officers who are known to be violent, in positions in which they can harm others.”
Gonzalez v. City of New York, 133 A.D.3d 65, 68 (1st Dep’t 2015). “A necessary element of a
cause of action alleging negligent retention or negligent supervision is that the ‘employer knew
or should have known of the employee’s propensity for the conduct which caused the injury.’”
Bumpus v. N.Y.C. Transit Auth., 47 A.D.3d 653, 654 (2d Dep’t 2008) (quoting Kenneth R. v.
Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 (2d Dep’t 1997)).
Under New York law, municipalities, however, enjoy governmental immunity when
“official action involves the exercise of discretion or expert judgment in policy matters, and is
not exclusively ministerial.” Mon v. City of New York, 78 N.Y.2d 309, 313 (1991). Immunity
“insulates a municipality for its employees’ performance of their duties where the . . . conduct
involves the exercise of professional judgment such as electing one among many acceptable
methods of carrying out tasks, or making tactical decisions.” Johnson v. City of New York, 15
N.Y.3d 676, 681 (2010) (quoting McCormack v. City of New York, 80 N.Y. 2d 808, 811 (1992)
(internal quotations omitted)). When, however, “the retention of an employee may involve a
known risk of bodily harm to others, the field in which [a police official’s] discretion may be
exercised . . . is limited [and] is superseded by the duty to abate that risk if in related
circumstances danger to others is reasonably to be perceived.” McCrink v. City of New York, 296
N.Y. 99, 106 (1947). Further, “immunity . . . presupposes that judgment and discretion are
exercised in compliance with the municipality’s procedures, because ‘the very basis for the value
judgment supporting immunity and denying individual recovery becomes irrelevant where the
24
municipality violates its own internal rules and policies and exercises no judgment or
discretion.’” Johnson, 15 N.Y.3d at 681 (quoting Haddock v. City of New York, 75 N.Y.2d 478,
485 (1990)).
A municipality is not, therefore, entitled to summary judgment based on immunity if
there is a question of fact as to whether the employees’ conduct at issue violated applicable
procedures. See, e.g., id. (affirming summary judgment in favor of the city after finding no
question of fact “as to whether officers’ discharge of their firearms violated the [NYPD deadly
physical force] guideline”); Newsome v. Cty. of Suffolk, 109 A.D.3d 802, 802–03 (2d Dep’t
2013) (denying summary judgment to municipality because there was “[a] question of fact with
respect to whether the conduct of the dog’s handler was consistent with acceptable police
practice”); Galapo v. City of New York, 219 A.D.2d 581, 582–83 (2d Dep’t 1995) (finding
“triable issues of fact with respect to whether Officer Martin’s actions were consistent with or in
contravention of the procedures relating to use of firearms as set forth in the New York City
Police Department Patrol Guide”); see also Lubecki v. City of New York, 304 A.D.2d 224, 235
(1st Dep’t 2003) (ruling that city is not immune when “the evidence established that the police
violate clearly established protocols and procedures” concerning the discharge of weapons).
In this case, construing the record in the light most favorable to Plaintiff, the SPD was
aware of allegations that Thompson had forced a woman (Bassett) to have sex with him on threat
of eviction in 2001; coerced another woman (Buske) who was afraid of being arrested to give
him oral sex in 2006; and offered to expunge the criminal record of an intoxicated woman
(Popcun-Roach) in exchange for oral sex in 2014. Although there was no investigation of, and
thus no exercise of discretion regarding, the first allegation concerning Bassett, the City argues
that this complaint is “immaterial” and cannot be a “cause in fact or proximate cause” of
25
Plaintiff’s injuries because “over thirteen years separates the alleged . . . complaint and the
incident at issue.” (Dkt. No. 103, at 7–8). The City further argues because Galvin and Fowler
exercised discretion in investigating and responding to Thompson’s two other alleged acts of
misconduct (Buske and Popcun-Roach), governmental immunity applies. (Dkt. No. 89-1, at
23). 17
Even assuming that the first two complaints (Bassett and Buske) were temporally too
distant to be a proximate cause of Plaintiff’s injuries, or, in the case of the Buske complaint, the
investigation entailed an exercise of discretion to which immunity attaches, there are triable
issues of fact as to whether Galvin’s actions in the Popcun-Roach investigation were consistent
with the SPD’s procedures and within the realm of acceptable practice.
The procedures governing complaints of police officer misconduct require that the
supervisor or command officer “document a preliminary investigation to include:
(a) [i]nterviewing the complainant; (b) [o]btaining, as soon as practical, an affidavit . . .
containing details of his/her complaint; [and] (c) [l]ocating and interviewing available
witnesses.” (Dkt. No. 99-11, at 47). 18 Galvin himself acknowledged “the importance of
interviewing every percipient witness to an event” and agreed that he would consider contacting
As the commanding officer of OPS and chief of Police, Galvin and Fowler were required to exercise discretion
and judgment in the investigation of complaints, determinations regarding whether complaints were substantiated
and, if substantiated, determinations regarding the appropriate discipline. The City has submitted evidence outlining
the SPD procedures for investigating a complaint against an officer as well as the disciplinary, supervisory, and
training options available when needed. (See, e.g., Dkt. No. 89-12 (SPD “Disciplinary System” Policy); Dkt. No. 893, ¶ 26 (Fowler Declaration listing disciplinary options); Dkt. No. 89-10, ¶¶ 11–33 (Galvin Declaration detailing
“Process for Investigating and Adjudicating Police Misconduct”)).
17
Plaintiff cites the SPD procedures for “sex crime complaints” which require that the investigator “[c]onduct a
detailed interview and obtain the victim’s affidavit.” (Dkt. No. 99-11, at 13, section 22.14(A)(3)). Defendants argue
that this was not a sex crime complaint and rely on the procedures applicable to complaints made against the police.
(Id. at 43). For the purposes of this motion, the Court has considered the procedures applicable to complaints made
against the police.
18
26
Popcun-Roach to be the “most essential aspect of [his] investigation.” (Dkt. No. 89-10, ¶ 78;
Dkt. No. 99-8, at 42).
Galvin maintains his decision not to interview Popcun-Roach “was a very difficult
judgment call,” (Dkt. No. 89-10, ¶ 78), and the Defendants argue that the City of Syracuse is
immune from any errors in the judgments made by Galvin and Fowler in their discretionary
decisions. Plaintiff, on the other hand, argues she has raised a triable issue of fact as to whether
Galvin’s acts were a consistent and acceptable method of complying with SPD procedures,
noting that not only did Galvin not interview Popun-Roach or obtain any affidavit from PopcunRoach, but that he has provided entirely different explanations for this failure. (Dkt. No. 97, at 8–
9).
In his case report Galvin stated that Popcun-Roach “was not available” and “refused to
meet with any police officers investigating her claim.” (Dkt. No. 99-6, at 2). Chief Deputy
Thompson and Fowler, the officers who were responsible for deciding whether to adopt his
recommendation that the complaint be deemed unsubstantiated, testified that Galvin told them
that he had “reached out” to Popcun-Roach but that “she would not return any of his calls or give
him any information,” (see also Dkt. No. 99-7, at 41 (Fowler testifying that “Captain Galvin
made every effort to contact the subject of the investigation” but “wasn’t able to speak with
her”)). His case report does not refer to any attempts to contact Popcun-Roach, and Galvin
acknowledged during his deposition that he did not in fact attempt to contact Popcun-Roach.
(Dkt. No. 99-8, at 9).
Plaintiff notes that Galvin’s most recent explanation for not interviewing Popcun-Roach
is “completely different” from what he reported in his report and what he told his superiors. (Dkt.
No. 97, at 9). In his deposition and declaration submitted in support of his motion for summary
27
judgment, Galvin states that Popcun was “adamant that [he] not speak with her daughter,” who
“had bipolar problems” and “was an alcoholic,” because Popcun was raising her daughter’s child
and “was afraid that if she had sent to the police to talk to her daughter about the alleged
incident” it might cause a “rift” and “some problem with the parents raising the . . . child.” (Dkt.
No. 99-8, at 34). This explanation is not reflected in Galvin’s report, any statement from Popcun
or any other contemporaneous records concerning the investigation. To the extent that this was in
fact Galvin’s discretionary decision, it was undocumented and apparently unknown to the
supervisors tasked with reviewing Galvin’s report and making a judgment regarding Thompson’s
conduct.
In addition, Galvin stated in the case report, and to Fowler, that Popcun told him that “her
daughter [had] refuted the claim and said it did not happen.” (Dkt. No. 99-6, at 1). Since Galvin
did not interview Popcun-Roach or obtain an affidavit from either Popcun or Popcun-Roach,
there is no witness statement documenting this alleged refutation. And Popcun avers that she told
Galvin something different; she states that she said that Melissa “did not intend to cooperate with
the investigation and that if they pursued it with her she would likely say it didn’t happen.” (Dkt.
No. 89-21, ¶ 21). The difference between a representation that an alleged victim threatened to
recant an allegation to avoid speaking to law enforcement and a representation that an alleged
victim expressly stated that that the alleged incident “never happened,” may be material to a
decision-maker assessing both the investigation and whether the alleged misconduct was
substantiated. Indeed, Fowler stated in his declaration that he “carefully considered,” among
other things, the fact that “Melissa Popcun, had, according to her mother, recanted the story and
‘said that it did not happen,’” in determining that “the evidence was not sufficient to substantiate
that Officer Thompson had committed misconduct.” (Dkt. No. 89-3, ¶¶ 60–61).
28
There are, therefore, factual questions as to whether Galvin complied with the SPD’s
procedures requiring that he document an investigation including an interview of the
complainant, and an affidavit containing details of the complaint and interview available
witnesses. (Dkt. No. 99-11, at 47 (section 8.16(D)(2)). Since the outcome of that investigation
was determinative of whether Thompson would return to his solo patrol duties, unsupervised and
without additional training, which “may involve a known risk of bodily harm to others,” if, as he
was likely to, he encountered vulnerable individuals on patrol, McCrink, 296 N.Y. at 106, “the
field in which [the officers’] discretion” could be exercised, was “limited” and “superseded by
the duty to abate that risk if in related circumstances danger to others is reasonably to be
perceived.” Id. Thus, while Galvin had the authority to exercise discretion in his investigation,
under the circumstances of this case, there is a triable issue of fact as to whether he exercised that
discretion consistent with SPD’s procedures and whether it was one of “many acceptable
methods of carrying out” the investigation. Kenavan v. City of New York, 70 N.Y.2d 558, 569
(1987), superseded by statute on other grounds as recognized by Galapo v. City of New York, 95
N.Y.2d 568 (2000).
Citing Mon, the City argues that where a municipality’s officers have exercised
discretion, a procedural violation does not render governmental immunity inapplicable, and that
it is only inapplicable when there is a “total failure to exercise discretion.” (Dkt. No. 103, at 3).
In Mon, the Court of Appeals found that the discretionary hiring of the employee at issue did not
violate the applicable civil service rules because the rules were “permissive,” the “applicant’s
nondisclosures” of a prior disorderly conduct conviction was not “such as would mandate his
disqualification” under the rules, and “any violation” of the “provisions” “was because the
officials did exercise their discretion, but did so improperly.” 78 N.Y.2d at 316–17. In contrast,
29
here, the SPD’s provisions governing an investigation are not permissive, (see Dkt. No. 99-11, at
47 (“Command Officer . . . shall . . . document a preliminary investigation to include . . .)
(emphasis added)). And here, unlike Mon, there is a triable question of fact as to whether Galvin
exercised his discretion in compliance with SPD procedures. It will be up to the jury to decide
whether his alleged negligent investigation was “an error of judgment and immune from
liability,” or was, instead, “outside the realm of accepted practice and therefore actionable.” See
Kenavan, 70 N.Y.2d at 571 (Titone, J. dissent). Thus, the City’s motion for summary judgment
dismissing the negligent retention, supervision, and training claim on grounds of governmental
immunity is denied. 19
B.
Section 1983 Claims
1.
Plaintiff’s Constitutional Claim
Plaintiff alleges that Thompson violated her Fourth Amendment right “to be free from the
use of excessive force and unreasonable searches and seizures” and her Fourteenth Amendment
right to substantive due process. (Dkt. No. 1, ¶¶ 78–81). The parties have not addressed which
constitutional provision applies to Plaintiff’s allegations. Although Thompson was in Plaintiff’s
apartment in response to a 911 call, and thus on police business, there is no evidence that
Thompson sexually assaulted Plaintiff during the course of an arrest or seizure or that Plaintiff
was under suspicion of criminal activity. Thus, for the purposes of this motion, the Court
assumes that Plaintiff’s “claim is appropriately analyzed pursuant to the Fourteenth
Amendment’s guarantee of substantive due process.” Poe v. Leonard, 282 F.3d 123,137 (2d Cir.
2002) (citing, inter alia, Haberthur v. City of Raymore, 119 F.3d 720, 723–24 (8th Cir. 1997)
(concluding that the plaintiff, who was not under arrest or under suspicion of criminal activity,
19
The parties refer to training, supervision, and retention as one claim. As neither party has briefed the substantive
elements of these claims, the Court does not address them.
30
adequately alleged that police officer’s sexual assault violated her substantive due process right
to bodily integrity or privacy) and Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (holding
that claim brought by a plaintiff, who was not arrested or a criminal suspect but was raped by a
police officer, was properly viewed as asserting a violation of her substantive due process right
to bodily integrity under the Fourteenth Amendment, rather than as a violation of her Fourth
Amendment rights)).
“The substantive component of due process encompasses, among other things, an
individual’s right to bodily integrity free from unjustifiable governmental interference.”
Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (citing Washington v. Glucksberg, 521
U.S. 702, 720 (1997)). The Second Circuit has explained, however, that “the Due Process Clause
‘does not transform every tort committed by a state actor into a constitutional violation.’” Id.
(quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 202 (1989)).
“Government action resulting in bodily harm is not a substantive due process violation unless
‘the government action was so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.’” Id. (quoting Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)).
Courts have recognized a police officer’s use of his position to coerce sex as a violation
of a right to bodily integrity that violates substantive due process. See, e.g., Villanueva v. City of
Scottsbluff, 779 F.3d 507, 513 (8th Cir. 2015) (noting that an encounter in which a woman who
was followed home by “an on-duty, armed, and uniformed officer,” who entered her house
“demanded that she undress, and had sexual intercourse with her,” was “an egregious,
nonconsensual entry into the body which was an exercise of power without any legitimate
government objective,” even though she did not object); see also United States v. Giordano, 260
F. Supp. 2d 477, 484 (D. Conn. 2002) (explaining that the Fourteenth Amendment right to bodily
31
integrity “includes the right to be free from . . . coerced sexual activity.”); c.f. Poe, 282 F.3d at
139 (holding that police officer’s manipulation of the situation in making a police training video
“to ensure that [the plaintiff] would be videotaped unclothed from the waist up” “all while
purporting to act for the benefit of the police academy” qualified as “conscience-shocking” in
violation of the Fourteenth Amendment). Mindful of these principles, the Court turns to
Defendants’ motion for summary judgment on the federal claims.
2.
Supervisory Liability
Defendants Galvin and Fowler seek summary judgment dismissing Plaintiff’s claims that
their failure to supervise and discipline Thompson caused the violation of her constitutional
rights. Plaintiff opposes dismissal of her supervisory liability claims.
“A supervisor may not be held liable under section 1983 merely because his subordinate
committed a constitutional tort.” Poe, 282 F.3d at 140. As the Second Circuit has explained, the
personal involvement of supervisory personnel may be shown through evidence that they:
(1) directly participated in the violation; (2) failed to remedy that violation after learning of it
through a report or appeal; (3) created, or allowed to continue, a policy or custom under which
the violation occurred; (4) had been grossly negligent in managing subordinates who caused the
violation; or (5) exhibited deliberate indifference by failing to act on information indicating that
an unconstitutional act was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). “In
addition to satisfying one of these requirements, a plaintiff must also establish that the
supervisor’s actions were the proximate cause of the plaintiff’s constitutional deprivation.”
Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014).
Before proceeding to the merits, the Court must address the argument Defendants Fowler
and Galvin have advanced concerning the continued viability of the Colon factors. (Dkt. No. 891, at 24). Defendants assert that, in view of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the personal
32
involvement of a supervisory defendant may no longer “be proven by evidence that the
supervisory defendant’s conduct met any of the five so-called Colon factors, which, inter alia,
purported to equate ‘personal involvement’ with types of indirect involvement.” (Id.). Thus,
Defendants argue, where, as here, there is no evidence that they “participated in, were present
for, ordered, or acquiesced to the alleged sexual assault of the Plaintiff,” they cannot be held
liable. (Dkt. No. 89-1, at 24).
In Ashcroft v. Iqbal, the Supreme Court explained that “a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” 556 U.S. 662, 676 (2009). The Court noted that “[t]he factors necessary to
establish a Bivens violation will vary with the constitutional provision at issue.” Id. There, the
alleged constitutional violation was discrimination based on race, religion or national origin, in
violation of the First and Fifth Amendment. Id. at 668–69. For such claims, “the plaintiff must
plead and prove that the defendant acted with discriminatory purpose.” Id. at 677. The Court
rejected the plaintiff’s argument that a supervisor may be liable for “knowledge and
acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions
among detainees,” because “purpose, rather than knowledge is required” to impose liability. Id.
While “Iqbal has . . . engendered conflict within our Circuit about the continuing vitality
of the supervisory liability test set forth in Colon,” Reynolds v. Barrett, 685 F.3d 193, 205 n.14
(2d Cir. 2012), the Second Circuit has not resolved this conflict, see Hogan v. Fischer, 738 F.3d
509, 519 n.3 (2d Cir. 2013) (“We express no view on the extent to which the Supreme Court’s
decision in Ashcroft v. Iqbal, . . . ‘may have heightened the requirements for showing a
supervisors’ personal involvement with respect to certain constitutional violations.’” (quoting
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013))).
33
As Defendants note, some district courts have held that only the first and third Colon
factors survive Iqbal. (Dkt. No. 89-1, at 25 (citing Bouche v. City of Mount Vernon, No. 11-cv5246, 2012 WL 987592, at *8, 2012 U.S. Dist. LEXIS 40246, at *27 (S.D.N.Y. Mar. 23, 2012))).
However, “neither the Second Circuit nor the Supreme Court has endorsed this reading of Iqbal,”
and the Court declines to follow that caselaw. Doe v. New York, 97 F. Supp. 3d 5, 12 (E.D.N.Y.
2015) (quoting Cano v. City of New York, 44 F. Supp. 3d 324, 336 (E.D.N.Y. 2014)); see also
Marom v. City of New York, No. 15-cv-2017, 2016 WL 916424, at *15, 2016 U.S. Dist. LEXIS
28466, at *48 (S.D.N.Y. Mar. 7, 2016) (“The holding in Iqbal does not stand for the proposition
that a supervisor can never be found personally liable for a constitutional deprivation on a
showing that he was ‘grossly negligent’ or ‘deliberately indifferent.’”).
As Defendants also note, some courts have continued to apply the Colon factors. See,
e.g., Lebron v. Mrzyglod, No. 14-cv-10290, 2017 WL 365493, at *4, 2017 U.S. Dist. LEXIS
9751, at *11–12 (S.D.N.Y. Jan. 24, 2017) (noting that “[s]ome courts have simply concluded
that, in the absence of Second Circuit precedent suggesting otherwise, they will continue to apply
the Colon test.”) (citing Doe, 97 F. Supp. 3d at 12 and Johnson v. Fischer, No. 12-CV-210, 2015
WL 670429 at *7 n.6, 2014 U.S. Dist. LEXIS 182153, at *19 n.6 (N.D.N.Y. August 5, 2014),
report and recommendation adopted by, 2015 WL 670429, 2015 U.S. Dist. LEXIS 18601
(N.D.N.Y. Feb. 17, 2015)). Defendants urge the Court not to adopt this position because the
Supreme Court reversed the Second Circuit’s application of the Colon factors in Iqbal. (Dkt. No.
89-1, at 25–26).
Many district courts have considered “the constitutional provision at issue,” Iqbal, 556
U.S. at 676, in determining whether to apply the Colon factors. See, e.g., Delgado v. Bezio, No.
09-cv-6899, 2011 WL 1842294, at *9, 2011 U.S. Dist. LEXIS 51917, at *25 (S.D.N.Y. May 9,
34
2011); Qasem v. Toro, 737 F. Supp. 2d 147, 151–52 (S.D.N.Y. 2010). Some of these courts have
concluded that “where the claim does not require a showing of discriminatory intent, the Colon
analysis should still apply insofar as it is ‘consistent with the particular constitutional provision
alleged to have been violated.’” Id. They have thus applied the Colon factors when the
constitutional claim relies on “the unreasonable conduct or deliberate indifference standards of
the Fourth, Eight or Fourteenth Amendments.” Shepherd v. Powers, No. 11-cv-6860, 2012 WL
4477241, at *10, 2012 U.S. Dist. LEXIS 141179, at *34–35 (S.D.N.Y. Sept. 27, 2012)
(collecting cases). Other courts have applied the Colon factors as long as the constitutional
violation at issue does not require a showing of discriminatory intent. See, e.g., Carpenter v.
Apple, No. 15-cv-1269, 2017 WL 3887908, at *9, 2017 U.S. Dist. LEXIS 143296, at *29
(N.D.N.Y. Sept. 5, 2017) (collecting cases).
The Court agrees with the reasoning of the cases holding that the Colon analysis may still
apply where the claim does not require a showing of discriminatory intent, “insofar as it is
‘consistent with the particular constitutional provision alleged to have been violated.’” Delgado
v. Bezio, No. 09-cv-6899, 2011 WL 1842294, at *9, 2011 U.S. Dist. LEXIS 51917, at *25
(S.D.N.Y. May 9, 2011) (quoting Qasem, 737 F. Supp. 2d at 151–52; see also Marom v. City of
New York, No. 15-cv-2017, 2016 WL 916424, at *15, 2016 U.S. Dist. LEXIS 28466, at *48
(S.D.N.Y. Mar. 7, 2016) (noting that all five Colon factors should be viable for false arrest and
excessive force claims based on an objectively reasonable standard, but not for First Amendment
retaliation claims which have an intent requirement); Sash v. United States, 674 F. Supp. 2d 531,
544 (S.D.N.Y. 2009) (“Where the constitutional claim does not require a showing of
discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference
standards of the Fourth and Eighth Amendments, the personal involvement analysis set forth in
35
Colon v. Coughlin may still apply.”). In this case because Plaintiff’s claims do not require a
showing of discriminatory intent and are based on the unreasonable conduct standard of the
Fourteenth Amendment, the Court will apply the Colon factors.
a.
Defendant Galvin
Plaintiff argues that Galvin acted with gross negligence and deliberate indifference in
supervising and disciplining Thompson. 20 (Dkt. No. 97, at 26). The Second Circuit has explained
that “‘gross negligence’ denotes a higher degree of culpability than mere negligence” and “is ‘the
kind of conduct where the defendant has reason to know of facts creating a high degree of risk
of . . . harm to another and deliberately acts or fails to act in conscious disregard or indifference
to that risk.’” Raspardo, 770 F.3d at 116 (quoting Poe, 282 F.3d at 140 n.14, 146). “The standard
of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was
aware of a subordinate’s prior substantial misconduct but failed to take appropriate action to
prevent future similar misconduct before the plaintiff was eventually injured.” Id. Thus, Plaintiff
“must allege sufficient facts to raise a triable issue of fact as to whether [Galvin] knew or should
have known that there was a high degree of risk that [Thompson] would behave inappropriately
with a woman [while on duty], but either deliberately or recklessly disregarded that risk by
failing to take action that a reasonable supervisor would find necessary to prevent such a risk,
and that failure caused a constitutional injury to [Plaintiff].” Poe, 282 F.3d at 142.
20
To the extent Plaintiff argues that Galvin and Fowler are subject to supervisory liability based on their alleged
failure to act on information that a constitutional violation was occurring, (see Dkt. No. 97, at 26 (“Fowler and
Galvin can be found liable under § 1983 pursuant to the fourth and fifth Colon factors, i.e., if they were ‘grossly
negligent’ in supervising Thompson or if they ‘exhibited deliberate indifference’ rights of others by ‘failing to act on
information indicating that unconstitutional acts’ were being committed by Thompson.”)), the Court notes that there
is no evidence that either Galvin or Fowler knew that Thompson allegedly sexually assaulted Plaintiff until after she
formally complained the following day. See, e.g., Raspardo, 770 F.3d at 124 (finding “no evidentiary basis to
conclude that Gagliardi knew that Carlone was sexually harassing Russell or Raspardo and impermissibly allowed
this harassment to continue” where the “plaintiffs did not report the sexual harassment of them by Carlone until after
Gagliardi had already placed Carlone on administrative leave”).
36
Here, viewed in the light most favorable to Plaintiff, there is evidence that Galvin
received two complaints—the 2006 Buske complaint and 2014 Popcun-Roach complaint—that
Thompson, while on duty, had coerced women into sexual acts. Galvin acknowledged having
concern about Buske’s complaint because he found her “description of events as being plausible”
and Thompson was “very nervous” during his interview. Although Galvin recommended that
Buske’s complaint be deemed “unsubstantiated,” he advised Chief Miguel that Thompson’s
midnight shift hours “should be monitored” because prostitutes working those hours can be
manipulated. Although Galvin recommended that the next complaint, from Popcun-Roach, be
deemed “unsubstantiated,” there is evidence from which a reasonable factfinder could infer that
Galvin’s investigation of that complaint was inadequate. See H.H. v. City of New York, 11-cv4905, 2017 WL 3396434, at *8, 2017 U.S. Dist. LEXIS 124317, at *25 (E.D.N.Y. Aug. 7, 2017)
(“Unsubstantiated allegations may form the basis of a deliberate indifference claim where there
is evidence to suggest that the investigation into the allegations was inadequate.”). As previously
described, Galvin never attempted to interview Popcun-Roach, and yet represented in his case
report that Popcun-Roach “was not available” and “refused to meet with any police officers
investigating her claim.” (Dkt. No. 99-6, at 1–2). There is nothing in the record of the
investigation or in the record currently before the Court to support Galvin’s deposition testimony
that Popcun was “adamant” that he not speak with her daughter. And Galvin’s report that
Popcun-Roach “retracted” her claim, and “said it didn’t happen” are not supported by what
Popcun states she told Galvin. Plaintiff has adduced evidence that Popcun-Roach was willing to
speak to police and tell “them about what happened with the police officer.”
Drawing all inferences in favor of Plaintiff, the evidence, if credited, would allow a
reasonable factfinder to conclude that Galvin, in failing to adequately investigate the Popcun-
37
Roach complaint, was indifferent to the truth of the allegations that Thompson had engaged in
coercive sexual conduct, and “exhibited gross negligence or deliberate indifference to a high
risk” that Thompson would violate the rights of other women, and that Galvin’s deliberate
indifference caused Thompson to violate Plaintiff’s rights. Poe, 282 F.3d at 140; see also Fiacco
v. City of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986) (“[I]f the City’s efforts to evaluate the
claims were so superficial as to suggest that its official attitude was one of indifference to the
truth of the claim, such an attitude would bespeak an indifference to the rights asserted in those
claims.”). Thus, in view of these factual disputes, summary judgment as to Galvin’s supervisory
liability is inappropriate.
b.
Defendant Fowler
Plaintiff argues that Defendant Fowler’s testimony that he was not “concerned about the
possibility that in the future Thompson would do to others what he was accused of having done
to [Popcun-Roach]” and his failure to take “precautionary or remedial steps with respect to
Thompson” demonstrate his “deliberate indifference to the rights of others.” (Dkt. No. 97, at 26).
Thus, Plaintiff alleges that Fowler was grossly negligent in the exercise of his supervisory duties.
To establish gross negligence Plaintiff must adduce evidence that Fowler had “reason to
know of facts creating a high degree of risk of physical harm to another and deliberately act[ed]
or fail[ed] to act in conscious disregard or indifference to that risk.” Poe, 282 F.3d at 140 n.14.
The evidence suggesting that Fowler had reason to know that Thompson may have posed a risk
of using his position as a police officer to coerce women to engage in sexual acts consists of his
evaluation of the Popcun-Roach case report and Galvin’s testimony that he advised Fowler there
had been a “similar” complaint against Thompson involving a “vulnerable person” eight years
before. (Dkt. No. 99-8, at 25–26). There is no other evidence about what Fowler knew about
Buske’s complaint, which was several years before Fowler became chief, and Plaintiff does not
38
rely on Galvin’s limited testimony. Plaintiff in fact cites to Fowler’s testimony that he was
unaware of Buske’s complaint, as evidence of SPD’s inadequate response to the Popcun-Roach
investigation. (Dkt. No. 97, at 10) (citing Dkt. No. 99-7 at 43, 44, 57) (emphasis added)). In any
event, this limited evidence about a “similar” complaint that a prior chief deemed
unsubstantiated is, in and of itself, insufficient to raise a material issue of fact as to Fowler’s
gross negligence.
The Popcun-Roach case report recommended a finding of “unsubstantiated” and
indicated that the alleged victim “refused to meet with any police officers,” was “not available”
for interview and had “retracted” her allegations “soon after they were made” and “said it did not
happen.” (Dkt. No. 99-6, at 2–3). 21 Nothing in the report or information provided to Fowler
indicated otherwise. Thus, the Popcun-Roach investigation would not allow an inference that
Fowler knew or had reason to know that Thompson posed a high risk of using his position as a
police officer to coerce women to engage in sexual acts. See Raspardo, 770 F.3d at 124
(concluding that the “prior incidents of misconduct” by the subordinate, which involved, among
other things, “allegations concerning improper comments and behavior toward female officers
and personnel,” “an inappropriate joke about a female officer,” picking up female officers in his
patrol vehicle despite being ordered not to, and the inappropriate use of a mobile messaging
system,” all of which supervisor was aware of and in response to which “disciplined
[subordinate] through verbal counseling” “were not sufficient to put [supervisor] on notice that
[subordinate] was likely to sexually harass” female officers).
Further, according to the report, Galvin and Thompson “discussed at length the fact that any allegation of
impropriety could be prevented by using basic common sense and avoiding certain situations” and that Galvin had
reminded Thompson “of the penalties should such conduct be verified as true.” (Dkt. No. 99-6, at 2).
21
39
Further, to the extent Plaintiff contends the Popcun-Roach complaint should have
prompted Fowler to review Thompson’s disciplinary history, such a contention would not raise a
material issue of fact as to Fowler’s gross negligence. The Buske complaint was deemed
unsubstantiated, and “[s]upervisors cannot be expected to reinvent the wheel with every decision,
for that is administratively unfeasible; rather, they are entitled to rely upon the decisions of their
predecessors or subordinates so long as those decisions do not appear to be obviously invalid,
illegal or otherwise inadequate.” Poe, 282 F.3d at 144; see also Cecere v. City of New York, 967
F.2d 826, 829 (2d Cir. 1992) (“Absent some indication to a supervisor that an investigation was
inadequate or incompetent, supervisors are not obliged either to undertake de novo investigations
or to cross examine subordinates reasonably believed to be competent as to whether their
investigations were negligent.”).
Plaintiff cites Baggett’s testimony that there were “rampant” rumors regarding
Thompson’s sexual misconduct toward women while on duty as evidence that Fowler was on
notice that Thompson was prone to sexual misconduct with respect to women. Plaintiff argues
that the evidence regarding Thompson’s sexual misconduct with respect to four other women
“corroborates Officer Baggett’s testimony that rumors of prior sexual assault by Thompson were
rampant.” (Dkt. No. 107, at 7). While allegations that other officers were in a position to have
seen Thompson’s conduct is consistent with Baggett’s testimony concerning rumors, 22 Baggett’s
testimony is conclusory in nature. It contains no specifics concerning the content of the rumors,
where they came from, who spread them, or when they were circulating. Further, there is no
evidence that Fowler was aware of the rumors or that any complaints had been made to the SPD
One of the women, for example, who alleges that in 1997 Thompson followed her into a porta potty at a rock
concert; locked the door; and raped her inside; described how a uniformed officer with Thompson remained outside
the porta potty during the rape. (Dkt. No. 99-15, at 1–2).
22
40
concerning Thompson’s conduct with respect to these four women. Thus, the rumors and
evidence of unreported incidents are insufficient to create a material issue of fact as to whether
Fowler had notice that there was a high degree of risk that Thompson would coerce sex from
women while on duty. See, e.g., Romero v. City of New York, 839 F. Supp. 2d 588, 608
(E.D.N.Y. 2012) (“[T]he unspecified rumors circulating among students at Richmond Hill about
a possible relationship between Mr. Benavides and Ms. Doe is not sufficient to constitute actual
knowledge by school officials of sexual harassment, particularly where there is no evidence that
any NYCDOE officials even heard the rumors.”). Accordingly, Fowler is entitled to summary
judgment dismissing the supervisory liability claim.
c.
Qualified Immunity
Defendants Galvin and Fowler argue that they are entitled to qualified immunity because
there are no facts that would have placed them on notice that their conduct violated the Plaintiff’s
“clearly established” rights and because their decision-making is “only arguably incorrect in
hindsight.” (Dkt. No. 89-1, at 27; Dkt. No. 103, at 9–10). 23 “Qualified immunity shields public
officials from liability for civil damages if their actions were objectively reasonable, as evaluated
in the context of legal rules that were ‘clearly established’ at the time.” Poe, 282 F.3d at 132
(quoting Vega v. Miller, 273 F.3d 460, 466 (2d Cir. 2001)). “In deciding ‘questions of qualified
immunity at summary judgment, courts engage in a two-pronged inquiry.’” Raspardo, 770 F.3d
at 113 (quoting Tolan v. Cotton, 572 U.S. 650, 655 (2014)). “The first prong ‘asks whether the
facts, taken in the light most favorable to the party asserting the injury . . . show the officer’s
conduct violated a federal right[,] . . . [and] [t]he second prong of the qualified-immunity
Defendants also argue that they were only on notice that Thompson had committed acts of consensual sex while
on duty, but that ignores the reasonable inferences in Plaintiff’s favor, i.e., that Officer Thompson coerced sex while
on duty.
23
41
analysis asks whether the right in question was clearly established at the time of the violation.’”
Id. (quoting Tolan, 572 U.S. at 655–56); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)
(per curiam) (“Qualified immunity attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017))). An officer “cannot be said to have
violated a clearly established right unless the right’s contours were sufficiently definite that any
reasonable official in the defendant’s shoes would have understood that he was violating it.”
Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). “Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).
Here, as Plaintiff has failed to raise a material issue of fact as to Fowler’s supervisory
liability, the first prong is met, and the Court need proceed no further in the qualified immunity
analysis as to Fowler. 24 But the Court has found that the facts, taken in the light most favorable
to Plaintiff, raise a material issue of fact as to whether Galvin was grossly negligent in the
investigation of and response to allegations of sexual coercion by Thompson. Thus, the Court
must turn to the second prong of the qualified immunity analysis; this requires consideration of
whether the law Thompson allegedly violated was clearly established as well as whether the
supervisory liability theory under which Plaintiff seeks to hold Galvin liable was clearly
established. Grice v. McVeigh, 873 F.3d 162, 169 (2d Cir. 2017) (“Defendants are entitled to
qualified immunity on a supervisory liability claim unless the actions of the supervisor and the
subordinate both violate clearly established law.”); see also Poe, 282 F.3d at 135 (explaining that
Even if there were a material issue of fact as to Fowler’s gross negligence, Fowler would be entitled to qualified
immunity because, interpreting the facts in the light most favorable to Plaintiff, it was not clearly established that
Fowler’s conduct violated Plaintiff’s constitutional rights for the reasons discussed in Section V.B.2.b. See Poe, 282
F.3d at 141-147.
24
42
the court “must determine whether both laws, the law violated by [the subordinate] and the
specific supervisory liability theory under which [the plaintiff] wishes to hold [the supervisor]
liable, were clearly established by . . . the time of the incident.”).
Thompson’s alleged conduct of sexually assaulting Plaintiff after she allowed him into
her apartment in response to her 911 call, if proved, “would constitute a violation of Plaintiff’s
substantive due process right to bodily integrity, a right which was clearly established” in 2015.
Atwood v. Town of Ellington, 468 F. Supp. 2d 340, 352 (D. Conn. 2007). The supervisory
liability theory under which Plaintiff seeks to hold Galvin liable was also clearly established at
the time of the incident: “Case law clearly establishes that a supervisor may be liable for failing
to screen or otherwise inquire about his subordinates or into their actions.” Poe, 282 F.3d at 141
(citing Fiacco, 783 F.2d at 331 (finding sufficient evidence to support a jury’s conclusion that a
police chief was deliberately indifferent “to whether or not excessive force was used[]” based on
the failure “to conduct a nonsuperficial investigation into civilian claims of excessive force”)).
Thus, in order to defeat a police supervisor’s claim of qualified immunity, Plaintiff
must allege sufficient facts to raise a triable issue of fact as to
whether [the supervisor] knew or should have known that there was
a high degree of risk that [the subordinate] would behave
inappropriately with a woman during his assignment, but either
deliberately or recklessly disregarded that risk by failing to take
action that a reasonable supervisor would find necessary to prevent
such a risk, and that failure caused a constitutional injury. The issue
[with respect to] qualified immunity then, is whether a plaintiff “has
. . . proffer[ed] sufficient evidence to meet this standard.”
Raspardo, 770 F.3d at 123–24 (quoting Poe, 282 F.3d at 142).
Here, there are material issues of fact regarding whether Galvin conducted a
nonsuperficial investigation into Popcun-Roach’s allegation that Thompson, while on duty,
coerced her, while she was intoxicated and suffering from mental health issues, to perform oral
43
sex by promising to help with her police problems. Specifically, the material issues of fact
include: (i) whether Galvin misrepresented in his case report and to his superiors that PopcunRoach refused to meet with police officers, was not available and had retracted her allegation;
(ii) whether Galvin failed to account for his “lingering concerns” about Buske’s prior allegation
of similar coercive sexual misconduct when investigating the Popcun-Roach complaint; and
(iii) whether Galvin failed to caution Thompson about such conduct. (Dkt. No. 99-3, at 231–34).
On this record, considering all inferences in the light most favorable to the Plaintiff, the Court
finds that there are material issues of fact as to whether Galvin knew or should have known that
there was a high degree of risk that Thompson would coerce sex from a woman while on duty,
and whether, in failing to adequately investigate the Popcun-Roach complaint or caution
Thompson in any manner, Gavin disregarded that risk, and that his failure caused Plaintiff’s
alleged constitutional injury. Accordingly, given these disputed facts, a finding of qualified
immunity is inappropriate at this stage.
3.
Municipal Liability
“For the purpose of Section 1983, a municipality is not vicariously liable for the acts of
its employees,” Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)), but a municipality is liable when “execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury,” Monell, 436 U.S. at 694. “To
hold a municipality liable in such an action, ‘a plaintiff is required to plead and prove three
elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.’” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995)
(quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
44
A municipal policy or custom may be established where the facts show: (1) a formal
policy, officially promulgated by the municipality, Monell, 436 U.S. at 690; (2) action taken by
the official responsible for establishing policy with respect to a particular issue, Pembaur v.
Cincinnati, 475 U.S. 469, 483–84 (1986); (3) unlawful practices by subordinate officials so
permanent and widespread as to practically have the force of law, City of St. Louis v. Praprotnik,
485 U.S. 112, 127–30 (1985); or (4) a failure to train or supervise that amounts to “deliberate
indifference” to the rights of those with whom the municipality’s employees interact, City of
Canton v. Harris, 489 U.S. 378, 388 (1989). “[A] municipal policy may be inferred from the
informal acts or omissions of supervisory municipal officials.” Zahra, 48 F.3d at 685. Further,
“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.” Batista, 702 F.2d at 397; see also Turpin v. Mailet, 619 F.2d 196, 200
(2d Cir. 1980) (holding that “where senior personnel have knowledge of a pattern of
constitutionally offensive acts by their subordinates but fail to take remedial steps, the
municipality may be held liable for a subsequent violation if the superior’s inaction amounts to
deliberate indifference or to tacit authorization of the offensive acts”).
In this case, Plaintiff’s theory of municipal liability is that the City’s failure to adequately
investigate the complaints against Thompson and supervise him properly amounted to deliberate
indifference to the rights of those with whom he interacted as an SPD patrol officer. (Dkt. No.
97, at 27–28). “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
45
under § 1983.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004)
(Sotomayor, J.) (internal quotation marks omitted).
Deliberate indifference, however, “is a stringent standard of fault,” Connick v. Thompson,
563 U.S. 51, 70 (2011) (quoting Board of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)),
“and necessarily depends on a careful assessment of the facts at issue in a particular case,” Cash
v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011). The Second Circuit has instructed that “[t]he
operative inquiry is whether those facts demonstrate that the policymaker’s inaction was the
result of ‘conscious choice’ and not ‘mere negligence.’” Id. (quoting Amnesty Am., 361 F.3d at
128). Deliberate indifference, therefore, “may be inferred where ‘the need for more or better
supervision to protect against constitutional violations was obvious,’ but the policymaker 25
‘fail[ed] to make meaningful efforts to address the risk of harm to plaintiff.’” Id. (citation
omitted) (quoting first Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995), then
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)).
Here, Plaintiff cites five complaints made against Thompson during the course of his
career with the SPD to support her claim that Defendant City was deliberately indifferent toward
Thompson’s misconduct. While the health insurance complaint does not reflect sexual
misconduct, the SPD concluded that Thompson had engaged in “a pattern of the less [sic] than
truthful behavior.” (Dkt. No. 99-18, at 8). The SCC complaint, while troubling to the extent it
includes an allegation that Thompson walked inside a woman’s home uninvited and then
demanded a “hug” before he would leave, (Dkt. No. 99-20), is insufficient to show that
Defendant City was on notice that Thompson, while on duty, was coercing women to perform
The City makes no argument with respect to who should be considered a policymaker for purposes of the Monell
analysis; its argument centers exclusively on deliberate indifference. (Dkt. No. 89-1, at 28–33; Dkt. No. 103, at 10–
11).
25
46
sexual acts. The complaints concerning Bassett, Buske, and Popcun-Roach, in contrast, all allege
that Thompson engaged in sexual misconduct toward women, and the latter two allege that
Thompson engaged in sexual misconduct while on duty. Though Galvin credited Thompson’s
explanations, and found the Buske and Popcun-Roach complaints to be “unsubstantiated”, this
meant only that they were “not conclusively disproven but . . . there is insufficient evidence to
conclude one way or the other whether the alleged conduct occurred.” (Dkt. No. 89-10, ¶¶ 16–
18). In addition, to the issue of material fact already identified regarding the adequacy of the
Popcun-Roach investigation, there are material issues of fact as to whether the SPD received and
failed to investigate a complaint about Bassett.
If credited, Plaintiff has provided evidence from which a reasonable factfinder could
conclude that, had the City adequately investigated the complaints against Thompson and
supervised and disciplined him appropriately, Plaintiff’s rights would not have been violated.
The allegations by Buske and Popcun—that, in performing his patrol duties, Thompson coerced
women he encountered to perform sexual acts—“sufficiently resemble” his actions toward
Plaintiff so as to render Plaintiff’s injury “foreseeable.” H.H., 2017 WL 3396434, at *10, 2017
U.S. Dist. LEXIS 124317, at *32. Indeed, even after being investigated twice in connection with
the Buske and Popcun-Roach complaint, Thompson indicated to Galvin that he “did not think it
would be a problem” “for an officer to engage with a complainant in sex, whether consensual or
not, while on duty.” (Dkt. No. 99-24, at 4). A reasonable jury could find from this evidence that a
more thorough investigation and increased supervision and discipline would have prevented
Thompson from engaging in such conduct, and consequently, from violating Plaintiff’s rights.
VI.
CONCLUSION
For these reasons, it is hereby
47
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 89) is
GRANTED as to the battery, IIED, prima facie tort, and negligent hiring claims against the City
and the supervisory liability claims against Fowler; and it is further
ORDERED that the battery, IIED, prima facie tort, and negligent hiring claims against
the City and the supervisory liability claims against Fowler are DISMISSED with prejudice;
and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 89) is otherwise
DENIED in its entirety; and it is further
ORDERED that Defendants’ motion to strike (Dkt. No. 102) is DENIED.
IT IS SO ORDERED.
Dated: January 23, 2019
Syracuse, New York
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