Hagopian v. City of Newport, et al

Filing 33

ORDER granting 28 Motion for Summary Judgment. Because Plaintiff's evidence of an unconstitutional practice or custom is insufficient as a matter of law, the Defendants' Motion for Summary Judgment is GRANTED. So Ordered by District Judge William E. Smith on 10/12/2021. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
SARKIS HAGOPIAN,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 18-283 WES
)
CITY OF NEWPORT; and
)
KENNETH M. CONTI,
)
)
Defendants.
)
____________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge
Defendants moved for partial summary judgment, ECF No. 28,
arguing that Plaintiff’s evidence for municipal liability under
Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658
(1978) is insufficient. For the reasons given below, Defendants’
Motion is GRANTED.
I.

BACKGROUND

Officer Kenneth Conti of the Newport Police Department arrested
Sarkis Hagopian in the early morning hours of May 30, 2015.
Defendants’ Statement of Undisputed Facts (D’s SUF) 1, ECF 29.
Plaintiff alleges that during the arrest, Officer Conti struck him
in the back of the head with a steel baton, even though he was on
his knees and complying with the officer’s commands. See Compl.
¶¶ 39-43, ECF No. 1.

Because the events of the arrest are disputed

and ripe for trial, both Defendants’ motion and this Order pertain
only to the conduct and liability of the city, acting through the
supervisory and disciplinary structures of its police department. 1
A. Policies
The Newport Police Department maintains policies which regulate
both the use of force by its officers and the investigation of

Plaintiff argues that even if his claim against the city
under 42 U.S.C. § 1983 is rejected, the city may still be liable
on remaining counts of his complaint. See Pl.’s Mem. In Supp. of
Opp to Summ. J. (Pl.’s Opp.) at 2 n.1, ECF No. 30-1. This question
is not formally before the Court, and therefore will be addressed
while determining the scope of the trial. Briefly, however, the
Court notes that Plaintiff’s alternative theories appear unlikely
to succeed. This Court has identified no authority in which the
Rhode Island Supreme Court has sanctioned a direct cause of action
under article 1, section 6 of Rhode Island Constitution analogous
to that established in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Instead, the
Rhode Island Supreme Court has consistently refused to hold that
constitutional provisions create a private cause of action without
legislative action. See Doe v. Brown Univ., 253 A.3d 389, 398401 (R.I. 2021) (anti-discrimination clause of article 1, section
2 of the Rhode Island Constitution does not give rise to private
cause of action); Bandoni v. State, 715 A.2d 580, 587-96 (R.I.
1998) (same for article 1, section 23). Similarly, while plaintiff
is correct that a city is vicariously liable for intentional torts
committed by employees acting within the scope of their employment,
acts of police brutality or excessive use of force are generally
not considered within the scope of an officer’s employment. Cruz
v. Town of N. Providence, 833 A.2d 1237, 1240 (R.I. 2003). For
this reason, the Rhode Island Supreme Court essentially applies
the Monell standard to intentional torts, requiring a showing that
an officer’s unlawful activity was in furtherance of a policy or
custom promulgated by his supervisor or the municipality. Id.
1

2

civilian complaints.

Pl.’s Statement of Additional Undisputed

Facts (Pl.’s SAUF) ¶¶ 1, 5, ECF No. 31.

The department’s use-of-

force policy requires officers to “use only that force that is
objectively

reasonable.”

Pl.’s

SAUF

¶ 2.

“Objectively

reasonable” is defined in turn by reference to what a reasonable
officer would deem necessary and appropriate in the same situation,
especially considering the nature of the crime, whether the subject
is an imminent safety threat, and any active resistance or flight
by the subject.

Pl.’s SAUF ¶ 3.

Newport Police Department’s Internal Complaint Review Policy
creates two procedural paths for investigating an allegation of
misconduct.

Pl.’s SAUF ¶ 8, citing Newport Police Department Gen.

Order 130.01 (Complaint Review Policy), ECF No. 31-2.
of

minor

infractions

may

be

investigated

by

the

Allegations
officer’s

supervisor; claims of more serious misconduct -- those which could
result in discharge, suspension, demotion, or criminal charges –
are to be investigated by the Office of Professional Standards
(OPS).

Id., citing Complaint Review Policy IV.B.5.

Among the

complaints which require an OPS investigation are those “alleging
abuse of authority, including excessive use of force, willful and
malicious illegal arrest, unreasonable deprivation of individual
rights, conduct or behavior derogatory of a person’s race, color,
creed, sex, age, religion, national origin, disability, or sexual
orientation.”

PL.’s SAUF ¶ 8, quoting Complaint Review Policy at
3

III.A.

For a complaint to be sustained, the investigation must

discover “sufficient facts to clearly prove the allegations.”
Complaint

Review

Policy

at

IV.H.2.d.

The

results

of

all

investigations, whether by an officer’s immediate supervisor or by
OPS, are submitted to the head of OPS, who in turn submits the
report to the Chief of Police for approval of the disposition and
possible discipline.

Pl.’s SAUF ¶¶ 13, 15.

B. Additional complaints against Officer Conti.
In the three years following Plaintiff’s arrest, three other
individuals made formal complaints of excessive force against
Officer Conti.
these

Pl.’s SAUF ¶¶ 38, 53, 72.

complaints,

as

well

as

how

Plaintiff contends that

they

were

investigated

are

indicative of the ways in which the department investigates and
disciplines its officers generally.

See Pl.’s Opp. to Mot. Summ.

J. at 6-8, 15 (Pl.’s Opp.) ECF No. 30-1.
In the first subsequent complaint, Quiara Brooks, alleged that
Officer Conti pulled her out of her parked car by the neck of her
sweatshirt and threw her to the ground.

Pl.’s SAUF ¶ 38, citing

Investigative Report #15-7-IA, ECF No. 31-11 (Brooks IA Report).
An OPS officer took up the investigation.

Brooks IA Report 4.

When he eventually met with Ms. Brooks, her mother, and her

4

attorney, she stated she wanted to drop the complaint. 2
OPS

officer

did

not

interview,

nor

attempt

to

Id.

The

interview

a

percipient civilian witness, but he did interview Officer Conti
and two other officers who were on the scene.

Id. 5-7.

The depth

and adequacy of the investigator’s questions for the officers
involved remains disputed.
¶¶ 42-43, ECF No. 32.

See Reply to Pl.’s Additional Facts

The investigation concluded there was not

sufficient evidence to clearly prove the allegations, and the
complaint was therefore “not sustained.”

Brooks IA Report 8-9.

In the second excessive force complaint, Christopher Pereira
alleged that Officer Conti and another officer pulled him off his
bike for riding the wrong way on a one-way street, assaulted him,
and deployed a taser on his genitals.
Pereira Report, ECF No. 31-12.

Pl.’s SAUF ¶ 53, citing

This complaint was not referred to

OPS for investigation, but rather to Officer Conti’s supervisor.
Pl.’s SAUF ¶ 55.

The supervising officer spoke with Officer Conti

and the other officer involvedand recorded their version of events:
that Pereira resisted arrest forcefully and kicked one of the

According to the investigative report, Brooks’ attorney
made an offer to the city solicitor that she would drop the
internal affairs complaint in exchange for dismissal of the
criminal charges. See Investigative Report #15-7-IA 5, ECF No.
31-11 (Brooks IA Report). While it’s unclear if this formed the
basis of an agreement with the city solicitor, the investigating
officer appears to have recognized the impropriety of this
arrangement and represented that his duty to investigate was
independent of the criminal case against Ms. Brooks. Id.
2

5

officers

twice

in

the

groin.

Pereira

Report

8.

When

the

investigating supervisor called Pereira to discuss the complaint,
Pereira expressed hesitation about speaking to him without his
attorney present.
arrest.

Id.

Id.

He also maintained that he did not resist

When the investigating officer “advised” Pereira

that officers on the scene told a different story, Pereira stated
that all further questions would need to be directed to his
attorney.
not

be

Id.

The investigating officer told Pereira he would

contacting

sustained.”

his

attorney

and

closed

the

case

as

“not

Id.

Finally, in the third subsequent complaint of excessive force
against Officer Conti, Danelis Sanchez-Rivera alleged that officer
Conti aggressively pushed her to the ground while another officer
took her baby out of her arms.
Investigative
Report).

Report

#17-4-IA,

Pl.’s SAUF ¶¶ 71-74, citing
ECF

No.

31-13

(Sanchez-Rivera

She claims he pushed her even after he was told by others

on the scene that she was pregnant.

Sanchez-Rivera Report 9.

An

officer from OPS began investigating the complaint by reviewing
video of her booking and video from a body worn camera on the
scene.

The latter did not capture the arrest because it had been

turned off and not reactivated prior to Sanchez-Rivera’s arrival.
Id. at 4. When the officer attempted to speak with Sanchez-Rivera,
she eventually told him that she would not speak with him on the
advice of her attorney.

Id.

He made multiple phone calls to
6

percipient witnesses and left business cards at the addresses
listed on the complaint, but none of the witnesses responded.

Id.

Pointing to a lack of witness participation, the investigating
officer then closed the complaint as “not sustained.” Id.
C. Statistical evidence
In

addition

to

these

complaints

and

the

way

they

were

investigated, Plaintiff seeks to support his case against the city
by pointing to statistics about internal affairs investigations.
Pl.’s Opp at 11-12.

These aggregate numbers do not distinguish by

type or seriousness of the allegation.

Pl.’s SAUF ¶ 20.

They do,

however, indicate the number of complaints which were investigated
by OPS as opposed to supervising officers.

Id. at ¶ 19.

The

relevant data are summarized as follows:
Year

By OPS

By supervisors

Sustained

2011

Total
Investigations
12

12

0

9

2012

28

16

12

6

2013

36

22

14

10

2014

34

18

16

4

2015

18

7

11

6

7

II.

DISCUSSION

Plaintiff

alleges

Newport

is

liable

because

it

“failed

to

properly select, train, 3 instruct, supervise and/or discipline its
police officers.” See Compl. ¶ 75.

More specifically, Plaintiff

claims that “material systemic deficiencies in the investigation
and determination of complaints of officer misconduct by the
Defendant

Newport’s

Police

Department”

prevented

effective

discipline and led directly to Officer’s Conti’s actions in this
case.

See Pl.’s Opp. at 2.

A. Legal Standards
To succeed at summary judgment, Defendants must show that “there
is no genuine dispute as to any material fact” and that they are
“entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Court views “the facts in the light most favorable to the
nonmoving part[y].”

Pippin v. Blvd. Motel Corp., 835 F.3d 180,

181 (1st Cir. 2016) (quoting Walsh v. TelTech Sys., Inc., 821 F.3d
155, 157–58 (1st Cir. 2016)).

However, “a nonmovant cannot rely

merely upon conclusory allegations, improbable inferences, and
unsupported speculation.”

Garmon v. Nat’l R.R. Passenger Corp.,

844 F.3d 307, 313 (1st Cir. 2016) (quoting Pina v. Children’s

While Plaintiff pleaded a failure-to-train theory, Compl.
¶ 75, he has failed to develop that line of argument, both in the
evidence before the Court and in the summary judgment briefing.
He cannot, therefore, sustain a claim on that theory.
3

8

Place, 740 F.3d 785, 795 (1st Cir. 2014)).

A “complete failure of

proof concerning an essential element of the nonmoving party's
case” is fatal to that claim at the summary judgment stage.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Under 42 U.S.C. § 1983, a municipality is not vicariously liable
for constitutional violations committed by its employees on a on
a theory of respondeat superior, i.e., solely because it employs
a tortfeasor.

Monell v. N.Y. City Dept. of Social Servs., 436

U.S. 658, 690-92 (1978).

Rather, a municipality is liable for

harms caused when its employees’ “‘execution of a government's
policy or custom ... inflicts the injury’ and is the ‘moving force’
behind the constitutional violation.”

Young v. City of Providence

ex rel. Napolitano, 404 F.3d 4, 25 (1st Cir. 2005) (quoting Monell,
436 U.S. at 694).

A plaintiff must therefore “demonstrate both

the existence of a policy or custom and a causal link between that
policy and the constitutional harm.”

Santiago v. Fenton, 891 F.2d

373, 381 (1st Cir. 1989) (citation omitted).
Policies and customs “include[ ] the decisions of a government's
lawmakers, the acts of its policymaking officials, and practices
so persistent and widespread as to practically have the force of
law.”

Connick v. Thompson, 563 U.S. 51, 61 (2011).

Where a

municipal custom or practice is at issue, it must be so “well
settled and widespread that the policymaking officials of the
9

municipality can be said to have either actual or constructive
knowledge of it yet did nothing to end the practice.”

Bordanaro

v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989).
Where, as here, the plaintiff’s claims are predicated on a
custom or policy of municipal inaction -- a failure to train,
discipline, or investigate allegations of misconduct –- courts
must

ascertain

whether

that

failure

“amounts

to

deliberate

indifference to the rights of persons with whom the police come
into contact.”

City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989); see DiRico v. City of Quincy, 404 F.3d 464, 469 (1st Cir.
2005)

(analyzing

alleged

failure

to

discipline,

train,

and

supervise under deliberate indifference standard); Beck v. City of
Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996) (applying deliberate
indifference

standard

to

police

department’s

failure

to

investigate and discipline).
For municipal inaction to amount to deliberate indifference, a
plaintiff must show: “(1) that the officials had knowledge of
facts, from which (2) the official[s] can draw the inference (3)
that a substantial risk of serious harm exists.” Parker v. Landry,
935 F.3d 9, 15 (1st Cir. 2019) (quoting Guadalupe-Báez, 819 F.3d
at 515).

The failure to discipline must be so pervasive as to

allow an “inference of supervisory encouragement, condonation or
even acquiescence.”

Santiago, 891 F.2d at 382 (citation and
10

quotation omitted). Causation must be such that the municipality’s
“deliberate indifference [leads] in a straight line to the putative
constitutional violation.” Parker, 935 F.3d at 15
Generally, to make out a claim of municipal liability on a
failure-to-investigate

or

failure-to-discipline

theory,

a

plaintiff will present a series of similar prior constitutional
violations

which

were

ignored

long

after

city

officials

supervisors were on notice of their need to act.

and

Gonsalves v.

Clements, No. CV 21-021 WES, 2021 WL 3471335, at *2 (D.R.I. Aug.
6, 2021) (“Generally, [deliberate indifference] requires a pattern
of prior similar constitutional violations”) (citing Connick, 563
U.S. at 62 and Saldivar v. Racine, 818 F.3d 14, 18–19 (1st Cir.
2016)).

See, e.g., Beck, 89 F.3d at 969-70 (five other civilian

complaints

alleging

excessive

use-of-force

assaulted plaintiff sufficient);

by

officer

who

Cooper v. City of Jersey City,

No. CV189200KMMAH, 2021 WL 1589348, at *6 (D.N.J. Apr. 22, 2021)
(evidence of defective investigatory procedures sufficient where
plaintiff showed that only one out of one hundred and sixty-six
excessive force complaints were sustained over previous five year
period,

including

involved);

seven

similar

accusations

against

officer

Cordial v. Atl. City, No. 1:11-CV-01457 RMB, 2014 WL

1095584, at *5–6 (D.N.J. Mar. 19, 2014)(nine prior complaints
alleging

excessive

force

plaintiff sufficient);

against

two

officers

that

assaulted

Garcia v. City of Newark, CA No. 08-1725
11

(SRC), 2011 WL 689616, at *4 (D.N.J. Feb. 16, 2011) (collective 55
complaints

against

sufficient).

“As

six

of

with

the

many

officers

issues,

the

involved
question

in

arrest

is

to

a

considerable extent one of degree: while a single accusation of
excessive force is not enough [to impose municipal liability], at
some point as the accusations and claims begin to pile up, a
critical mass may be reached requiring an affirmative response
from supervisors.” Douglas v. City of Springfield, No. CV 1430210-MAP, 2017 WL 123422, at *9 (D. Mass. Jan. 12, 2017) (quoting
Cox v. Murphy, No. 12-11817-FDS, 2016 WL 4009978, at *10 (D. Mass.
Feb. 12, 2016)).
B. Newport’s Liability
As noted, both establishing the existence of a municipal custom
and showing that the custom amounted to deliberate indifference to
the rights of the policed populace require facts establishing that
city

officials

were

on

notice

unconstitutional practice.
871 F.2d at 1156.

of

their

need

to

end

the

See Parker, 935 F.3d at 15; Bordanaro,

It is a problem then for Plaintiff that every

additional accusation of excessive force against Officer Conti
occurred after the arrest at issue in this case, and not before.
While

the

allegations

in

those

subsequent

complaints

are

concerning, even if the Court takes every word of them to be true,
they cannot have given the city notice of a failure to discipline
and investigate Officer Conti at the time of Plaintiff’s arrest.
12

Similarly, Plaintiff has not presented evidence describing any
incident in which any other Newport officer was even accused of
using excessive force prior to the events in this case, much less
an

instance

where

a

feckless

precluded proper discipline.

or

half-hearted

investigation

There may be difficult questions

raised in other cases as to just how many prior complaints and
questionable investigations suffice to give a municipality notice
that an officer systematically uses excessive force, but that
number is not zero. See Cox, 2016 WL 4009978, at *8. The “straight
line” of causation between the city’s alleged failure to act and
the specific constitutional violation alleged, like all causal
relationships, must run forward in time.
Plaintiff is left to rely on a subtler inference.

Namely, that

these three subsequent complaints are probative as to how the
Newport

Police

generally,

and

Department
by

Plaintiff’s arrest.
investigatory
(1) reflexively
complainant’s;

deals

implication

by

how

it

excessive
dealt

force

claims

them

before

with

Specifically, Plaintiff claims the Newport

process

is

flawed

believing

an

by

pervasive

officer’s

customs

of:

over

the

account

(2) not taking prior accusations into account when

considering a new compliant;
procedures

with

allowing

and (3) failing to follow its own

supervising

investigations into serious misconduct.

13

officers

to

conduct

See Pl.’s Opp. at 11-17.

In support of his contention that these alleged failings were
so widespread as to practically have the force of law at the time
of his arrest, Plaintiff points to deficiencies in the three
investigations described, as well as testimony from two officers
who could not remember an excessive force complaint being sustained
in the years immediately prior to the events of this case.

Id.

at 11. He also relies on statistics and deposition testimony which
show an increasing number of complaints referred to supervisors
for investigation, as opposed to OPS.

Id. at 11-13.

Plaintiff is correct that the purported flaws he identifies are,
in theory, proper considerations in evaluating the constitutional
adequacy of an investigatory process.

See, e.g., Merman v. City

of Camden, 824 F. Supp. 2d 581, 591–92 (D.N.J. 2010).

And of

course, if Officer Conti believed that he would be protected by a
toothless and shallow investigatory process, he might conclude he
could

act

with

unconstitutional

impunity

or

tactics,

that

despite

the

city

written

tacitly
policies

condoned
to

the

contrary.
Plaintiff

is

incorrect,

however,

that

this

evidence

is

sufficient to establish a widespread, pervasive practice or custom
of properly investigating civilian complaints, even taking all
reasonable inferences in his favor.

See Barker v. City of Bos.,

795 F. Supp. 2d 117, 124 (D. Mass. 2011) (three prior complaints
14

of

excessive

force

which

did

not

necessarily

show

erroneous

outcomes plus two commissioned reports identifying deficiencies in
internal

affairs

liability).

process

insufficient

to

support

municipal

Even though some of the investigatory problems that

Plaintiff identified appear to have occurred in one or more of the
three investigations described, no reasonable jury could conclude
from

these

examples

alone

that

these

deficiencies

were

“so

persistent and widespread as to practically have the force of law.”
Connick, 563 U.S. at 60-61.

That conclusion requires precisely

the unsupported speculation that summary judgment forbids.
This

is

so

even

recognizing

investigations presented.
concerning.

the

evident

failings

in

the

The Periera complaint is especially

One would hope that when an incident begins with a

minor bicycle traffic violation and ends with an individual having
a

taser

deployed

questions.

on

his

genitals,

the

city

would

have

more

It was inappropriate by Newport’s own standards for

the incident to be investigated by a supervisor instead of OPS,
and inappropriate for that officer to refuse to speak with the
complainant’s

attorney

or

to

telegraph

so

clearly

complainant that his account would not be believed.

to

the

Similarly,

the investigating officer in the Brooks complaint clearly should
have attempted to contact the civilian percipient witness.

15

But

these

errors

and

inadequacies

standing

alone

do

not

establish a municipal custom, nor give obvious notice to a city
official

that

deficient.
diligent

the

investigative

process

was

constitutionally

Indeed, the Sanchez-Rivera complaint shows much more
attempts

to

interview

percipient

witnesses

and

Plaintiff’s own statistics show that more than a quarter of all
investigations between 2011 and 2015 sustained the underlying
allegations. 4
Because Plaintiff’s evidence of an unconstitutional practice or
custom is insufficient as a matter of law, the Defendants’ Motion
for Summary Judgment is GRANTED.
IT IS SO ORDERED.

William E. Smith
District Judge
Date: October 12, 2021
s

Out of 128 total complaints in that period, 35 were
sustained. The relevance of this number is limited by the fact
that the statistics do not distinguish by type or severity of
complaint, and therefore do reflect the number or dispositions of
excessive force complaints.
4

16