1. memorandum of law in support of motion
DESCRIPTION
TRANSCRIPT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
NANCY GENOVESE, 10 CV 3470
Plaintiff,
- against -
TOWN OF SOUTHAMPTON; COUNTY OF SUFFOLK (Bianco, J.)
Southampton Town Police LIEUTENANT ROBERT
IBERGER, Suffolk County Undersheriff JOSEPH T. (Tomlinson, MJ)
CARACAPPA; Suffolk County Sheriff Lieutenant
FREDERICK LUETE; and “JOHN and/or JANE DOES”
1 through 10 (whose identities are currently unknown to
Plaintiff but who are believed to be employees of the
Suffolk County Sheriff’s Office), all of whom are sued
in their individual and official capacities,
Defendants.
----------------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT PURSUANT TO RULE 56
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendants
THE TOWN OF SOUTHAMPTON AND
Southampton Town Police LIEUTENANT
ROBERT IBERGER
50 Route 111
Smithtown, New York 11787
(631) 724-8833
Of Counsel
David H. Arntsen
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 1 of 30 PageID #: 263
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... iii
PRELIMINARY STATEMENT ...................................................................................... 1
FACTS AND PROCEDURAL BACKGROUND ........................................................... 2
ARGUMENT
POINT I
STANDARD OF REVIEW ......................................................................................... 9
POINT II
LT. IBERGER IS ENTITLED TO QUALIFIED
IMMUNITY AND DISMISSAL OF ALL
CLAIMS AGAINST HIM ........................................................................................... 10
A. Qualified Immunity, Generally ............................................................................. 10
B. False Arrest Claims ................................................................................................ 11
i) The investigatory stop passes constitutional muster ....................................... 12
ii) Lt. Iberger is entitled to Qualified Immunity ................................................. 13
C. No excessive Use of Force Claim May Stand ....................................................... 15
D. Removal of the plaintiff’s rifle case from the car was not an
unreasonable search and seizure under the Fourth Amendment ..................... 17
POINT III
THE TOWN OF SOUTHAMPTON IS
ENTITLED TO SUMMARY JUDGMENT .............................................................. 18
POINT IV
PLAINTIFF’S 42 U.S.C. § 1986 COUNT MUST
BE DISMISSED AS A MATTER OF LAW ............................................................. 21
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 2 of 30 PageID #: 264
ii
POINT V
PLAINTIFF’S NEW YORK STATE SUPPLEMENTAL
JURISDICTION CLAIMS SHOULD BE DISMISSED .......................................... 22
CONCLUSION .................................................................................................................. 23
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 3 of 30 PageID #: 265
iii
TABLE OF AUTHORITIES
Cases
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................................................................................ 9
Azor v. City of New York,
2012 WL 1117256 (E.D.N.Y. 2012)................................................................................. 15
Board of County Commissioners of Bryan County, Oklahoma v. Jill Brown,
520 U.S. 597 (1997) .......................................................................................................... 18
Board of County Commissioners v. Brown,
520 U.S. 397 (1988) .......................................................................................................... 19
Brown v. City of Oneonta,
106 F.3d 1125 (2d Cir. 1997)............................................................................................ 21
Cash v. County of Erie,
2011 WL 3625093 (2d Cir. 2011)..................................................................................... 19
Castilla v. City of New York,
2011 WL 4345934 (S.D.N.Y. 2011) ................................................................................. 19
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .......................................................................................................... 10
Crenshaw v. City of Mt. Vernon,
372 Fed.Appx. 202 (2d Cir. 2010) .............................................................................. 11, 14
DeCarlo v. Fry,
141 F.3d 56 (2d Cir. 1998)................................................................................................ 19
Escalera v. Lunn,
361 F.3d 737 (2d Cir. 2004).............................................................................................. 11
Esmont v. City of New York,
371 F.Supp.2d 202 ............................................................................................................ 16
F.D.I.C. v. Great American Ins. Co.,
607 F.3d 288 (2d Cir. 2010)........................................................................................... 9-10
Graham v. O’Connor,
490 U.S. 386 (1989) .......................................................................................................... 15
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 4 of 30 PageID #: 266
iv
Guadagni v. New York City Transit Authority,
2009 WL 205050 (E.D.N.Y 2009).................................................................................... 22
Harlowe v. Floyd,
2011 WL 674024 (D.Conn. 2011) .................................................................................... 14
Hodge v. Village of Southampton,
___ F.Supp.2d ___, 2012 WL 174838 (E.D.N.Y. 2012) .................................................. 18
Horton v. California,
496 U.S. 128 (1990) .......................................................................................................... 18
Javid v. Scott,
913 F.Supp. 223 (S.D.N.Y. 1996) .................................................................................... 20
Maragh v. City of New York,
2012 WL 1745349 (E.D.N.Y. 2012)....................................................................... 9, 10, 11
Marilyn S. v. Independent Group Home Living Program, Inc.,
903 N.Y.S.2d 403 (2d Dep’t. 2010) .................................................................................. 16
Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986) ............................................................................................................ 9
Maxwell v. City of New York,
380 F.3d 106 (2d Cir. 2004).............................................................................................. 15
McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184 (2d Cir. 2007)................................................................................................ 9
McClellan v. Smith,
439 F.3d 137 (2d Cir. 2006).............................................................................................. 11
Mon v. City of New York,
78 N.Y.2d 309, 574 N.Y.S.2d 529 (1991) ........................................................................ 21
Monell v. Department of Social Services,
436 U.S. 658 (1978); ........................................................................................... 1, 2, 19, 20
Munafo v. Metropolitan Transportation Authority,
285 F.3d 201 (2d Cir. 2002).............................................................................................. 10
Ostroski v. Town of Southold,
443 F.Supp.2d 325 (E.D.N.Y. 2006). ..................................................................... 1, 15, 20
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 5 of 30 PageID #: 267
v
Palmeri v. Town of Babylon,
2008 WL 3155153 (E.D.N.Y. 2008)................................................................................. 22
Pembaur v. City of Cincinnati,
475 U.S. 469 (1986) .......................................................................................................... 19
Pikulin v. Gonzalez,
2007 WL 1063353 (E.D.N.Y. 2007)................................................................................. 22
Ricci v. DeStefano,
557 U.S. 557, 129 S.Ct. 2658 (2009) .................................................................................. 9
Ritz v. Breen,
2002 WL 519095 (D.Conn. 2002) ........................................................................ 12, 13, 14
Roundtree v. City of New York,
778 F.Supp. 614 (E.D.N.Y. 1991) .................................................................................... 16
Saucier v. Katz,
533 U.S. 194 (2001) .................................................................................................... 15, 16
Spinelli v. City of New York,
579 F.3d 160 (2d Cir. 2009).......................................................................................... 9, 10
Stephenson v. Doe,
332 F.3d 68 (2d Cir. 2003)................................................................................................ 15
Sutton v. Duguid,
2007 WL 1456222 (E.D.N.Y. 2007).......................................................................... passim
Tango v. Tulevech,
61 N.Y.2d 34, 471 N.Y.S.2d 73 (1983) ............................................................................ 21
Terry v. Ohio,
392 U.S. 1 (1968) .............................................................................................................. 15
U.S. v. Muhammed,
463 F.3d 115 (2d Cir. 2006)........................................................................................ 12, 14
United Brotherhood of Carpenters v. Scott,
463 U.S. 825 (1983) .......................................................................................................... 21
United States v. Navas,
597 F.3d 492 (2d Cir. 2010).............................................................................................. 18
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 6 of 30 PageID #: 268
vi
Weinstein v. Columbia University,
224 F.3d 33 (2d Cir. 2000)................................................................................................ 10
Wood v. The Town of East Hampton,
2010 WL 3924847 (E.D.N.Y. 2010)................................................................................. 20
Zieper v. Metzinger,
474 F.3d 60 (2d Cir. 2007)........................................................................................... 13-14
Other Authorities
42 U.S.C. § 1983 ..................................................................................................... 1, 14, 15, 18, 19
42 U.S.C. § 1985 ..................................................................................................................... 21, 22
42 U.S.C. § 1986 ........................................................................................................... 1, 14, 21, 22
FED.R.CIV.P. 12(b)(6) ................................................................................................................... 22
FED.R.CIV.P. 56 .......................................................................................................................... 1, 9
N.Y.S. GEN. MUN. LAW § 50-h ....................................................................................................... 3
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 7 of 30 PageID #: 269
1
PRELIMINARY STATEMENT
Defendants, The Town of Southampton (“the Town” and/or “Southampton”) and
Southampton Town Police Lieutenant Robert Iberger (“Lt. Iberger”), bring the instant motion for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking
judgment and dismissal of the complaint of the plaintiff, NANCY GENOVESE, insofar as the
complaint sets forth claims against these defendants. Succinctly, the plaintiff has alleged a litany
of federal (42 U.S.C. §§ 1983 and 1986) and state based claims against Lt. Iberger, including
violation of the plaintiff’s constitutional rights, false arrest, false imprisonment, malicious
prosecution, assault and battery, negligence and the negligent and/or intentional affliction of
emotional distress upon the plaintiff. Additionally, the plaintiff puts forth a claim of negligent
supervision against the Town, as well as claims against the Town based upon the theories of
respondeat superior under New York Law and 42 U.S.C. § 1983.1
Plaintiff’s claims are premised upon an investigatory stop of the plaintiff initiated by Lt.
Iberger, a 30 year veteran of the Southampton Town Police Department with particular training
in counterterrorism awareness. Iberger initiated the encounter following his observation of
plaintiff taking photographs of the military installation, in contravention of posted signs
prohibiting it, located on County Road 31 in Westhampton, New York, known as Gabreski
Airport.2 The plaintiff was slowly moving and stopping repeatedly, ultimately turning into the
access road to the facility. Based upon these observations and his experience and training, Lt.
Iberger, who was unarmed, not in uniform, on vacation and in his personal vehicle at all relevant
1 Fundamentally, a municipality cannot be held liable on a respondeat superior theory. Monell v. Department of
Social Services, 436 U.S. 658, 694 (1978); Ostroski v. Town of Southold, 443 F.Supp.2d 325, 345 (E.D.N.Y. 2006).
As such, these Counts may be dismissed at the outset.
2 Gabreski Airport is within the jurisdiction of the Southampton Town Police Department (Rule 56.1 Statement, ¶
31).
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 8 of 30 PageID #: 270
2
times, approached, identified himself as a police officer and showed his badge, spoke with and
briefly detained the plaintiff while he attempted to contact the base so their officials could
investigate.
As will be demonstrated upon the appropriate factual citations and case authorities below,
each and every one of the plaintiff’s claims against Lt. Iberger and the Town must fail as a
matter of law. The claims against the Town must fail because the plaintiff cannot demonstrate
any policy, custom or practice of the Town to engage in violation of the rights of individuals
such as the plaintiff necessary to support such claims. Additionally, the negligent hiring, training
and retention claims against the Town must fail because these are discretionary functions of the
Town and the municipal defendant may not be held answerable in damages for claims involving
such discretion. Additionally, there is not a single fact in the record to demonstrate any
negligence by the Town in its supervision, hiring or discipline of Lt. Iberger. Finally, the claims
against the Town based upon theories of respondeat superior are directly prohibited by Monell,
436 U.S. at 691.
With respect to Lt. Iberger, in the first instance he would be entitled to qualified
immunity, as his conduct was clearly objectively reasonable under the totality of circumstances
analysis. It is respectfully submitted that it is clear from the facts, construed in the light most
favorable to the plaintiff, that nothing Lt. Iberger did, from the initial investigatory stop of the
plaintiff through the time of his departure from the scene, suggest any wrongdoing of a
constitutional, or any other nature.
FACTS AND PROCEDURAL BACKGROUND
Most of the salient facts upon which this court should rely in determining the instant
motion come from the testimonial evidence adduced during discovery in this case. The
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 9 of 30 PageID #: 271
3
plaintiff’s claims are set forth in her Complaint (Arntsen Declaration, Exhibit “A”). The plaintiff
was examined under oath pursuant to New York State General Municipal Law § 50-h on March
16, 2010, and was deposed in the federal litigation on August 25, 2011 (Arntsen Declaration,
Exhibits “B” and “C”, respectively). Lt. Iberger was deposed on January 24, 2012 and his
transcript is annexed to the Arntsen Declaration as Exhibit “D”. Suffolk County Deputy Sheriff
Robert Carlock was deposed on February 1, 2012, and his transcript is appended to the Arntsen
Declaration as Exhibit “E”. Also provided for the court’s reference is the plaintiff’s
Supplemental Notice of Claim against the Town (Arntsen Declaration, Exhibit “F”). The facts
have been marshaled from these exhibits and set forth in the moving defendants’ Statement
Pursuant to Rule 56.1, which has been filed in conjunction with the instant motion. The
following facts can be culled from this evidence.
On July 30, 2009, the plaintiff, Nancy Genovese, was traveling to her home from a
shooting range in Ridge, New York and, in the course of doing so, was traveling down County
Road 31 in Westhampton. (Rule 56.1 Statement, ¶¶ 1-3, Exhibit “B”, pp. 16-18). While
approaching the Gabreski Airport, the plaintiff noticed a restored helicopter that she desired to
photograph, thinking it might be a worthy addition to a planned website that she was going to
build for the purpose of demonstrating support for our troops overseas (Rule 56.1 Statement, ¶ 2,
Exhibit “B”, pp. 16-18). At the time that the plaintiff was taking these pictures in July of 2009,
there were warning signs on the fence at Gabreski Airport indicating that it was a military
facility, as well as signs warning that photographing the facility was in violation of federal law
(Exhibit “D”, p. 59, l. 22 - p. 60, l. 16; Exhibit “E”, p. 46, l. 21 - p. 47, l. 16). Either unaware of
the signs, or in knowing violation of them, the plaintiff nonetheless began snapping photographs
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 10 of 30 PageID #: 272
4
from different positions along the roadway, allegedly trying to obtain a useful one of the
helicopter in question.
At or about this time, Lt. Iberger was driving south on County Road 31, whereupon he
drove past plaintiff’s convertible vehicle parked to the north of the military entrance for the
airport in which a female subject appeared to be photographing the facility’s fence line (Rule
56.1 Statement, ¶ 41; Exhibit “D”, p. 61, l. 15-25). This observation took place at approximately
6:40 p.m. (Rule 56.1 Statement, ¶ 42; Exhibit “D”, p. 61, l. 9-16). At the time of this
observation, the convertible in which the female occupant was taking pictures had its top down;
it was daylight and clear (Rule 56.1 Statement, ¶ 43; Exhibit “D”, p. 62, l. 11-23).
Lt. Iberger drove past the vehicle and pulled over down the road with the intent of
waiting for that vehicle to eventually pass him so he could record the license plate and forward
the information to the Suffolk County Criminal Intelligence (Rule 56.1 Statement, ¶ 44; Exhibit
“D”, p. 63, l. 25 - p. 64, l. 14). However, as he observed the vehicle while waiting for it to pass
him, he noticed that the vehicle was moving slowly forward in increments followed by a stop,
which process happened continuously (Rule 56.1 Statement ¶ 45; Exhibit “D”, p. 65, l. 9-18).
It is important to again note here that Lt. Iberger, an officer with over 30 years of
experience with the Southampton Town Police, had received specific training and has been
certified by the United States Department of Homeland Security as a counterterrorism awareness
instructor (Rule 56.1 Statement, ¶¶ 29-34; Exhibit “D”, p. 7, l. 16-17). Specifically, Lt. Iberger
has training in tactics, the investigation of suspicious vehicles and persons, a search of motor
vehicles and persons, how to check potential trouble spots, preliminary investigations, the
interview of suspects and the preparation of reports of investigations (Rule 56.1 Statement, ¶ 32;
Exhibit “D”, p. 16, l. 13 - p. 17, l. 15). In fact, Lt. Iberger was questioned at his deposition as to
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 11 of 30 PageID #: 273
5
how he evaluates suspicious persons from a counterterrorism standpoint. Lt. Iberger testified
that he looks for individuals that appear to be surveilling critical and/or important facilities or
facilities of interest, particularly individuals who appear to be gathering information regarding
the particular facilities, entrances, egresses, various locations within the facility, activities within
the facility, comings and goings within the facility and/or persons who may be eliciting
information regarding operations within the facility, probing security of the facility and/or
making some type of documentation regarding the facility (Rule 56.1 Statement, ¶ 36; Exhibit
“D”, p. 28, l. 13 - p. 29, l. 18).
After the series of stops and starts and what appeared to be plaintiff’s continuous taking
of photographs, the plaintiff’s vehicle finally turned off the shoulder of County Road 31 and into
the entrance roadway for the military facility (Rule 56.1 Statement, ¶ 46; Exhibit “D”, p. 65, l. 21
- p. 66, l. 24). When he noticed the vehicle turn onto the access road, Lt. Iberger turned his
vehicle, headed north and proceeded to follow onto that entrance road and pulled up alongside
the plaintiff’s vehicle. (Rule 56.1 Statement, ¶ 47; Exhibit “D”, p. 71, l. 15-22). When Lt.
Iberger encountered the plaintiff in the entrance access area, he observed her with the camera out
as if she was taking photographs (Rule 56.1 Statement, ¶ 48; Exhibit “D”, p. 127, l. 12-17). Lt.
Iberger identified himself to the female driver as a Southampton Town police officer, showed her
his badge and asked her what she was doing, whereupon she advised that she was taking a photo
of the helicopter (Rule 56.1 Statement, ¶ 49; Exhibit “D”, p. 72, l. 2-20).
Lt. Iberger and the plaintiff agree that the plaintiff thereafter voluntarily offered Lt.
Iberger a view of the photographs she had been taking in her camera (Rule 56.1 Statement, ¶ 14).
Lt. Iberger testified that when he reviewed these photographs, he observed photographs of the
signs indicating the name of the airport, of the fence, of the barbed wire areas and security
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 12 of 30 PageID #: 274
6
features on the fence, consisting of a cable that ran along the fence (Rule 56.1 Statement, ¶ 51;
Exhibit “D”, p. 73, l. 20 - p. 74, l. 21). At this point, Lt. Iberger attempted to get the attention of
the guard in the security booth, which attempt was unsuccessful. He also tried to telephone
Gabreski Airport from his cell phone, which attempt was also unsuccessful, which led him to call
his office at the Southampton Town Police (Rule 56.1 Statement, ¶¶ 52-53; Exhibit “D”, p. 77).
When he reached his dispatcher, he requested that she contact Gabreski security and advise them
that he had an individual outside whom he believed was taking surveillance photos of the base,
and he told her to request that somebody from security come out (Rule 56.1 Statement ¶ 53;
Exhibit “D”, p. 80, l. 5-12). A couple of minutes after the phone call, security guards from
Gabreski came out (Rule 56.1 Statement, ¶ 54; Exhibit “D”, p. 80, l. 19-25).
Thereafter, one of the two security guards who came to the scene approached Lt. Iberger
and asked him if he was aware that there was a gun case in the front seat of the convertible (Rule
56.1 Statement, ¶ 55; Exhibit “C”, p. 83, l. 4-18). Lt. Iberger then accompanied the officer from
Gabreski Airport to the vehicle and noticed that the gun case was leaning against the passenger
door on the floor of the open-topped convertible (Rule 56.1 Statement, ¶ 57; Exhibit “D”, p. 85,
l. 4-6). At this point, Lt. Iberger asked the plaintiff what was in the case and she told him it was
a shotgun, subsequently changing this information to advise that it was a rifle. At this point, Lt.
Iberger advised the plaintiff he was going to secure the gun case for officer safety (Rule 56.1
Statement, ¶ 60; Exhibit “D”, p. 85, l. 16-25).
Despite the fact that Lt. Iberger twice told the plaintiff while he was securing the gun
case to stand back (Rule 56.1 Statement, ¶ 60; Exhibit “D”, p. 101, l. 4-6), the plaintiff tried to
stop Lt. Iberger from removing the case from the car. As he was pulling the rifle case off the
floor and opening the door, his elbow and shoulder came into contact with the right side of the
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 13 of 30 PageID #: 275
7
plaintiff’s body (Rule 56.1 Statement, ¶¶ 22-23; Exhibit “C”, p. 131). As a result of this contact,
the plaintiff claims she lost her balance, though she did not fall down (Rule 56.1 Statement, ¶ 23;
Exhibit “C”, p. 131).3 This was the only physical contact between Lt. Iberger and the plaintiff
during the event in question (Exhibit “B”, p. 206, l. 13 - p. 207, l. 14).
Lt. Iberger then took the gun case a short distance from the vehicle, opened it and
observed what appeared to be the stock of an M4-type AR-15 assault rifle (Rule 56.1 Statement,
¶ 61; Exhibit “D”, p. 87, l. 18 - p. 88, l. 4). After making the determination as to the type of gun
that was in the case, the lieutenant advised the plaintiff that it would be secured for officer safety
and handed it to one of the Gabreski security officers, who in turn placed it in the back of a pick-
up truck that did not belong to Lt. Iberger (Rule 56.1 Statement, ¶ 62; Exhibit “D”, p. 90, l. 8-
16).
After the gun was secured in the military vehicle, Lt. Iberger observed that two Suffolk
County Sheriff’s Deputies had arrived on the scene (Rule 56.1 Statement, ¶ 64; Exhibit “D”, p.
92, l. 19-23). The lieutenant did not contact the Sheriff’s office and does not know how it came
about that the Suffolk County Sheriff’s office came to arrive at the scene (Rule 56.1 Statement, ¶
66; Exhibit “D”, p. 94, l. 25 - p. 95, l. 17). Lt. Iberger advised the Sheriffs of his observations
and what occurred to that point (Rule 56.1 Statement, ¶ 68; Exhibit “D”, p. 97, l. 19-23), gave
the Sheriffs his business card and left the scene within moments after their arrival (Rule 56.1
Statement, ¶¶ 70-71; Exhibit “D”, p. 98, l. 10 p. 99, l. 14). In total, Lt. Iberger estimated that he
had been at the scene for approximately 30-40 minutes, since he had arrived at approximately
6:40 p.m. and left at 7:16 p.m. (Rule 56.1 Statement, ¶ 67; Exhibit “D”, p. 96, l. 12-25).
3 While the plaintiff claims that she sustained bruises as part of her damages in this case, she believed that they all
occurred while she was being processed inside the jail by the Suffolk County Sheriffs, and not at the scene during
her interactions with Lt. Iberger (Rule 56.1 Statement, ¶ 24; Exhibit “C”, p. 13, l. 10-22).
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 14 of 30 PageID #: 276
8
Lt. Iberger further testified that he had never met or seen the plaintiff before July 30,
2009. (Rule 56.1 Statement, ¶ 73; Exhibit “D”, p. 73).4 He never had the intention to, and did
not arrest the plaintiff (Rule 56.1 Statement, ¶ 75; Exhibit “D”, p. 105, l. 6-9); in fact, it was
Suffolk County Deputy Sheriff Carlock who arrested the plaintiff (Rule 56.1 Statement, ¶ 20;
Exhibit “E”, p. 27, l. 2-7). Moreover, neither Lt. Iberger nor any other Southampton employee
searched the plaintiff’s trunk, handcuffed her, nor participated in any of the follow-up
investigation or events which occurred after her arrest and removal from the scene by the Suffolk
County Deputy Sheriffs. In fact, the plaintiff herself testified that she was not assaulted or
battered by the Southampton Town Police (Rule 56.1 Statement, ¶ 21; Exhibit “B”, p. 226-227).
Despite the plaintiff’s contentions that there appeared to be a number of officers of
various local, state and federal law enforcement at the scene, she has no evidence to back up this
claim. In fact, the only member of the Southampton Town Police who ever dealt with the
plaintiff was Lt. Iberger.
4 Though it is significant for the Court to be made aware of the fact that the plaintiff had been at the military facility
inquiring about the contents of containers behind the secured fence on a prior occasion (Rule 56.1 Statement, ¶ 15;
Exhibit “B”, pp. 43-44), Lt. Iberger was not aware of that fact prior to his encounter with her on July 30, 2009 (Rule
56.1 Statement, ¶ 74; Exhibit “D”, p. 101, l. 10-14).
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 15 of 30 PageID #: 277
9
ARGUMENT
POINT I
STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine issue as to any material fact
and if the moving party is entitled to judgment as a matter of law. See, FED.R.CIV.P. 56(c);
Sutton v. Duguid, 2007 WL 1456222 *3 (E.D.N.Y. 2007); Maragh v. City of New York, 2012
WL 1745349 *3 (E.D.N.Y. 2012). In ruling on a summary judgment motion, the district court
must first “determine whether there is a genuine dispute as to a material fact, raising an issue for
trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal
quotations and citations omitted); see Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677
(2009) (holding that “[o]n a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
(Emphasis added) (internal quotations and citation omitted).
“A fact is material if it ‘might affect the outcome of the suit under governing law.’”
Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci,
129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574 (1986)).
“The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact,” F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)
(quotations and citation omitted), after which the burden shifts to the nonmoving party to “come
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 16 of 30 PageID #: 278
10
forward with specific evidence demonstrating the existence of a genuine dispute of material
fact.” Id.; see also Spinelli¸ 579 F.3d at 166.
The nonmoving party can only defeat summary judgment “by coming forward with
evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to
establish the existence of” a factual question that must be resolved at trial. Spinelli¸ 579 F.3d at
166 (internal quotations and citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Unsupported allegations do not create a material issue of fact, Weinstock v.
Columbia University, 224 F.3d 33, 41 (2d Cir. 2000); “the opposing party must do more than
show there is some metaphysical doubt as to the material facts.” Sutton, at *3 (internal citations
omitted).
POINT II
LT. IBERGER IS ENTITLED TO QUALIFIED
IMMUNITY AND DISMISSAL OF ALL
CLAIMS AGAINST HIM.
A) Qualified Immunity, Generally
The qualified immunity doctrine protects government officials from suits seeking to
impose personal liability for money damages based on unsettled rights or on conduct that was
not objectively unreasonable, and reduces the general costs of subjecting officials to the risks of
trial--a distraction of officials from their governmental duties, inhibition of discretionary action,
and deterrence of able people from public service. Maragh, at *3, (internal citations omitted). A
government official sued in an individual capacity is entitled to qualified immunity if the
challenged actions were objectively legally reasonable in light of the legal rules that were
established at the time they were taken. Maragh, at *4, citing Munafo v. Metropolitan
Transportation Authority, 285 F.3d 201, 210 (2d Cir. 2002).
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 17 of 30 PageID #: 279
11
Qualified immunity is said to be justified in part by the risk that the fear of personal
monetary liability and harassing litigation will unduly inhibit officials in the discharge of their
duties. McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (internal citation omitted).
Qualified immunity is thus not merely a defense, but an entitlement not to stand trial or face the
other burdens of litigation. Sutton, at *5 (internal citations omitted).
B) False Arrest Claims
Though Lt. Iberger did not arrest the plaintiff in this case, the standard for affording
qualified immunity to police officers who make an investigatory stop is the same as that which
applies to a false arrest claim. Sutton, at *6.
The Court of Appeals for the Second Circuit has concluded that an arresting police
officer ultimately found not to have probable cause for a challenged arrest is still entitled to
qualified immunity from a suit for damages if he can establish that there was arguable probable
cause to arrest. See, Crenshaw v. City of Mt. Vernon, 372 Fed.Appx. 202, 205 (2d Cir. 2010).
Arguable probable cause exists if either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of reasonable competence could disagree on
whether the probable cause test was met. Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)
(the analytically distinct test for qualified immunity is more favorable to . . . officers than the
one for probable cause; arguable probable cause will suffice to confer qualified immunity for the
arrest.) Maragh, at *4 citing Escalera, 361 F.3d at 743; Sutton, at *6.
Of course, in this case, Lt. Iberger did not arrest the plaintiff. Rather, based upon his
experience of 30 years on the police force and his status as a certified counterterrorism
awareness instructor, he noticed an illegal activity, which activity was prohibited by marked
signs in the immediate vicinity of where the activity was taking place, and he thus made an
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 18 of 30 PageID #: 280
12
investigatory stop which lasted “30-40 minutes” (Exhibit “D”, p. 96, l. 12-25). Lt. Iberger’s
actions, which are not in dispute, consisted of (a) an observation of the plaintiff’s activity, i.e.,
her illegal photographing of the military base, (b) his investigatory stop when she turned her
vehicle into the access roadway to the military base, during which he identified himself as a
police officer and showed his badge, (c) his viewing the photographs, with plaintiff’s consent,
which depicted the signs indicating the name of the airport, the security fence, the barbed wire
areas and security features on the fence, (d) his efforts to communicate with the base to have
them investigate the matter further, (e) his removal of the rifle case from the vehicle and
examination of the weapon therein, and (f) his discussion of the events which transpired prior to
their arrival with the Deputy Sheriffs. None of these actions can be deemed “objectively
unreasonable”.5
i) The investigatory stop passes constitutional muster
Because the balance between the public interest and the individual’s right to personal
security tilts in favor of a standard less than probable cause in cases involving brief investigatory
stops, the Fourth Amendment is satisfied if the officer’s action is supported by a reasonable
suspicion to believe that criminal activity may be afoot. Ritz v. Breen, 2002 WL 519095 *3
(D.Conn. 2002); see also, Sutton at *4. The court must assess the totality of the circumstances
supporting the stop and determine whether the officer’s suspicion of wrongdoing has an
objective and particularized basis. U.S. v. Muhammed, 463 F.3d 115, 121 (2d Cir. 2006); Sutton
at *4. This process allows officers to draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information available to them that
5 While the plaintiff may in fact have been lawfully coming from a shooting range, and further truthfully attempting
to obtain a photograph of the helicopter, in light of the illegality of this activity, Lt. Iberger’s investigatory stop was
not only reasonable, but justified. See, e.g., Sutton at *7, “suspicious circumstances may have innocent
explanations; but the availability of an innocent explanation does not create an issue of fact as to the reasonableness
of the suspicion”.
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 19 of 30 PageID #: 281
13
might well elude an untrained person. Ritz, at *4 (internal citation omitted). In this case, the
court must assess whether Lt. Iberger had a particularized and objective basis for suspecting
legal wrongdoing. Ritz, at *4.
ii) Lt. Iberger is entitled to Qualified Immunity
Lt. Iberger’s testimony with regard to the totality of the circumstances clearly supports
his decision to briefly detain plaintiff for investigatory purposes herein. He had observed the
plaintiff taking photographs in an area where such photographs were prohibited by posted signs.
Relying on his experience and specialized training in counterterrorism, Lt. Iberger positioned
himself such as to observe the vehicle if it passed by for the sole purpose, initially, of getting the
license plate and passing it on to the appropriate Suffolk County authorities (Exhibit “C”, p. 63,
l. 25 - p. 64, l. 14). When he noticed the vehicle approaching the entranceway to the military
facility after several continuous starts and stops, he decided to perform further investigation with
the driver of the vehicle, whereupon he properly identified himself as a police officer and was
voluntarily shown copies of the photographs that the plaintiff had been taking, which depicted
various aspects of the secured facility.
This court, in Sutton v. Duguid, at *7 held that the defendants had reasonable suspicion to
stop the plaintiff given the totality of circumstances surrounding the investigatory stop therein.
Moreover, this court held that, “even assuming arguendo that defendants lacked reasonable
suspicion to stop plaintiff, the court finds that defendants are entitled to qualified immunity on
plaintiff’s Fourth Amendment claim based on the initial stop because defendants, at a minimum,
had arguable reasonable suspicion to stop plaintiff because it was objectively reasonable for the
officers to believe reasonable suspicion existed to stop the plaintiff”, citing Zieper v. Metzinger,
474 F.3d 60, 71 (2d Cir. 2007) (“the qualified immunity standard gives ample room for mistake
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 20 of 30 PageID #: 282
14
in judgments by protecting all but the plainly incompetent or those who knowingly violate the
law” (internal citation omitted)).
In Crenshaw, the second Circuit afforded qualified immunity to an officer who made an
investigatory stop and detention while the existence of a suspected warrant was confirmed. 372
Fed.Appx. at 206-207. In Harlowe v. Floyd, 2011 WL 674024 *10 (D.Conn. 2011), the court
held that no reasonable jury could find that a 30 minute traffic stop was unreasonable under the
circumstances, including a suspicion of DWI.
This court should likewise find, in light of the totality of the circumstances presented to
Lt. Iberger, viewed from his perspective and with an allowance for him to draw on his own
experience and specialized training to make inferences from and deductions about the cumulative
information available to him, that Lt. Iberger’s suspicion of wrongdoing had an objective and
particularized basis. Muhammed, 463 F.3d at 121. Therefore, under the circumstances
presented, Lt. Iberger’s actions in briefly detaining the plaintiff while he alerted the military base
authorities, did not violate any clearly established right of the plaintiff, nor was it otherwise
violative of the Constitution. He is, therefore, entitled to qualified immunity. (See, Sutton,
supra; Ritz v. Breen, 2002 WL 519095 at *5.6
6 Review of the plaintiff’s complaint (Exhibit “A”) reflects that the plaintiff also makes § 1983 based constitutional
claims alleging that Lt. Iberger deprived her of her “freedom to engage in protected speech, association and
expressive conduct, freedom from arrest without probable cause; freedom from the lodging of false charges against
her by law enforcement officers; freedom from malicious prosecution by law enforcement officers . . . freedom from
the denial of equal protection, privileges and immunities under the laws; and freedom from the deliberate
indifference to plaintiff’s serious medical condition” (Exhibit “E”, ¶145A, D, F, G, I, and J). However, as the court
will glean from review of the complaint, there is no factual basis alleged therein, and certainly no testimonial or
other evidence to support any claim that Lt. Iberger was involved in any action that resulted in a violation of
plaintiff’s First Amendment rights, her right to be free from arrest without probable cause, the lodging of false
charges, malicious prosecution, equal protection or deliberate indifference to the plaintiff’s serious medical
condition. Lt. Iberger did not arrest, lodge charges nor institute any prosecution of the plaintiff. Therefore, not only
would Lt. Iberger be entitled to qualified immunity on the basis of his limited involvement at the scene of the
occurrence, but there is utterly no factual basis to sustain these claims against him in his individual capacity and
therefore the plaintiff’s First Count and Fifth Count (pursuant to 42 U.S.C. § 1986) must be dismissed at the outset.
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 21 of 30 PageID #: 283
15
C) No Excessive Use of Force Claim May Stand
Paragraph 145 B of the Complaint contains a perfunctory § 1983 Fourth Amendment
claim that Lt. Iberger used excessive force during the investigatory stop (Exhibit “A”). With
regard to the issue of the physical contact between the plaintiff and Lt. Iberger, it is clear from
the facts, even in a light most favorable to the plaintiff, that Lt. Iberger is entitled to qualified
immunity and, even if he weren’t, the “force” used was not impermissible under the
circumstances.
It is well established that the use of force is only contrary to the Fourth Amendment if it
is excessive under objective standards of reasonableness. Stephenson v. Doe, 332 F.3d 68, 77
(2d Cir. 2003), citing Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Sutton, at *11; Ostroski,
443 F.Supp.2d at 341. The Supreme Court has long recognized that the right to make an arrest
or investigatory stop necessarily carries with it the right to use some degree of physical coercion
to effect it. Graham v. O’Connor, 490 U.S. 386, 396 (1989). Indeed, not every push or shove is
unconstitutionally excessive. See, Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.
2004); Ostroski, 443 F.Supp.2d at 341-342. Amongst the factors to be considered is whether the
suspect poses an immediate threat to the safety of the officers or others. Graham, 490 U.S. at
396. Reasonableness in this context must be assessed from the perspective of a reasonable
officer at the scene, rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396,
citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968).
In Azor v. City of New York, 2012 WL 1117256 *4 (E.D.N.Y. 2012), the Court found
that a “rough grab” search of plaintiff’s pockets, and his being “pushed” by officers on to a rear
door of the police vehicle were “minimal and reasonable” uses of force incidental to search the
plaintiff to make sure he was not armed. In the case at bar, the only contact alleged by plaintiff
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 22 of 30 PageID #: 284
16
was clearly incidental to the removal of the rifle case from the vehicle and must likewise be
considered “minimal and reasonable”. See also, Esmont v. City of New York, 371 F.Supp.2d
202, 213-215 (summary judgment granted where officer caused plaintiff to bump his head when
she was placed in the patrol car, left in the hot car for a period of minutes and had handcuffs
applied too tightly). “To conclude that a push that does not cause the slightest physical injury...is
an actionable use of excessive force would be to hold that any physical contact by an arresting
officer is actionable...” Roundtree v. City of New York, 778 F.Supp. 614, 622 (E.D.N.Y. 1991).
Clearly, the incidental contact between plaintiff and Lt. Iberger herein did not offend in the
constitutional sense.
Moreover, even officers who are found to have used excessive force may be entitled
through the qualified immunity doctrine to an extra layer of protection from the sometimes hazy
border between excessive and acceptable force. Saucier, 533 U.S. at 206. The relevant inquiry
is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted. Saucier, 533 U.S. at 202.
In this case, under no construction of the facts could Lt. Iberger’s actions in attempting to
secure the rifle case from the vehicle and separate himself from the plaintiff who was trying to
prevent him from doing so be deemed to be unreasonable. Lt. Iberger testified that he twice told
the plaintiff to stand back as he was securing the gun case for officer safety (Exhibit “D”, p. 101,
l. 4-6). The plaintiff testified that Lt. Iberger only contacted her while he was pulling the rifle
case up off the car floor and opening the door, at which time his elbow and shoulder came into
contact with the right side of the plaintiff’s body (Exhibit “B”, p. 131).7 She testified that she did
not fall down, though she lost her balance (Exhibit “B”, p. 131). The plaintiff further testified
7 Clearly, the plaintiff could not have, and did not, apprehend imminent physical (yet unintended and incidental)
contact, thus defeating any common law assault and battery claims (Exhibit “A”, Count 10). See, Marilyn S. v.
Independent Group Home Living Program, Inc., 903 N.Y.S.2d 403, 406 (2d Dep’t. 2010).
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 23 of 30 PageID #: 285
17
that the bruising to her body that she alleges as part of her damages claim in this case occurred
while she was being processed inside the jail by the Suffolk County Sheriffs, and did not involve
any of the contact with Lt. Iberger (Exhibit “B”, p. 13, l. 10-22).
D) Removal of the plaintiff’s rifle case from the car was not an
unreasonable search and seizure under the Fourth Amendment
In paragraph 145 C of her Complaint, plaintiff alleges that Lt. Iberger violated her right
to be free from an unreasonable search and seizure of property under the Fourth Amendment
(Exhibit “A”). Under the circumstances to be adduced from the record before the Court, the
retrieval of the assault rifle from the plaintiff’s open-topped vehicle did not violate her Fourth
Amendment rights.
The plaintiff admitted that she was carrying the semiautomatic assault rifle kept in a case,
which was in plain view from the outside of the car, which was a convertible with its top down
(Exhibit “B”, pp. 56-57; p. 202, l. 19 - p. 203, l. 5). In fact, the rifle case clearly said
“Bushmaster” on the outside (Exhibit “B”, p. 202, l. 19 - p. 203, l. 5). The rifle case was noticed
first by one of the Gabreski Airport security officers, who inquired as to what the case was and
whether Lt. Iberger was aware of it (Exhibit “D”, p. 83, l. 4-18). After this discussion with the
Gabreski security officer, Lt. Iberger observed the gun case leaning against the passenger door
on the floor of the open-topped convertible (Exhibit “D”, p. 85, l. 4-6). Lt. Iberger then inquired
of the plaintiff as to the nature of the item in the case, whereupon he was told that there was a
shotgun therein; however, she changed this to note that it was a rifle, but also advised that she
didn’t know what kind of rifle it was at which point Lt. Iberger advised the plaintiff that he
would secure the gun case for officer safety (Exhibit “D”, p. 85, l. 16-25).
It is, therefore, not in serious dispute that the rifle case was in plain view, which allowed
Lt. Iberger to “search” the vehicle, even though the “search” in question only involved the
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 24 of 30 PageID #: 286
18
removal of the item which was in plain view and nothing further.8 See, e.g. Hodge v. Village of
Southampton, ___ F.Supp.2d ___, 2012 WL 174838 at *12 (E.D.N.Y. 2012). This “search”, to
the extent it can be considered one, would clearly be valid under the automobile exception to the
warrant requirement, which allows a warrantless search of a readily mobile vehicle where there
is probable cause to believe that the vehicle contains contraband. Hodge, at *12, citing United
States v. Navas, 597 F.3d 492, 497 (2d Cir. 2010). As the Supreme Court noted in Horton v.
California, 496 U.S. 128, 133 (1990), “if an article is already in plain view, neither its
observation nor its seizure would involve any invasion of privacy”. The Horton Court further
held that “an object that comes into view during a search incident to arrest that is appropriately
limited in scope under existing law may be seized without a warrant”. 496 U.S. at 135. As has
already been established herein, Lt. Iberger’s investigatory stop passes all constitutional
guidelines and, therefore removal of the gun case from the vehicle is not violative of the Fourth
Amendment.
POINT III
THE TOWN OF SOUTHAMPTON IS
ENTITLED TO SUMMARY JUDGMENT.
In the plaintiff’s complaint, three of the fourteen counts seek to impose liability against
the Town of Southampton. The plaintiff’s Second Count, entitled “Alternate Liability”, and
purportedly premised upon 42 U.S.C. § 1983, acknowledges that “respondeat superior” is not
now a basis for the Town’s liability under existing law, that there exists a good faith argument
for the modification of that rule based upon Justice Breyer’s dissenting opinion in the Board of
County Commissioners of Bryan County, Oklahoma v. Jill Brown, 520 U.S. 597 (1997) (Exhibit
8 It is to be noted that a second search was undertaken of the plaintiff’s vehicle after the vehicle was impounded by
the Suffolk County Sheriff’s Department. Neither Lt. Iberger nor any other member of the Southampton Town
Police Department took part in nor was even aware of this second search.
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 25 of 30 PageID #: 287
19
“D”, ¶ 149). In addition to the Second Count, the Third Count is brought against the Town (as
well as the County) on a “Monell” claim for failure to train, supervise and discipline Lt. Iberger.
Finally, plaintiff’s Fourteenth Count alleges that the Town of Southampton is liable for Iberger’s
actions under the common law doctrine of respondeat superior (Exhibit “D”, ¶ 198).
To sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff
must show (1) the existence of an officially adopted policy or custom and (2) a causal connection
between the custom or policy and the deprivation of a constitutional right. Monell v. Department
of Social Services, 436 U.S. 658, 694 (1978). A plaintiff may demonstrate the existence of a
policy or custom either by providing evidence of a formal policy adopted by the municipality,
Monell, 436 U.S. at 690, or based upon a single unconstitutional act or decision when that act is
taken by an authorized decision maker, thereby sufficient to be considered a policy and thus
subject the municipality to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-484
(1986). Additionally, a policy may be established by showing that the acts of the municipal
agent or a part of a widespread practice that, although not expressly authorized, constitutes a
custom or usage of which a supervising policymaker must have been aware. Board of County
Commissioners v. Brown, 520 U.S. 397, 403-404 (1988); Monell, 436 U.S. at 690-691. Finally,
where a municipality’s failure to provide adequate training or supervision of its agents rises to
the level of deliberate indifference, § 1983 liability may lie against the municipality. Brown, 520
U.S. at 407; Cash v. County of Erie, 2011 WL 3625093 at *7 (2d Cir. 2011). A single incident
alleged in a complaint, especially if it involved only actors below the policymaking level, does
not suffice to show a municipal policy. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); Castilla
v. City of New York, 2011 WL 4345934 at *3 (S.D.N.Y. 2011).9
9 Moreover, punitive damages cannot be awarded against a municipality as a matter of public policy.
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 26 of 30 PageID #: 288
20
It is respectfully submitted to the court that none of the avenues of potential Monell
liability available to civil rights plaintiffs can be utilized successfully by the plaintiff in this
action. There is absolutely no evidence of a formal policy officially adopted by the municipality
reflecting ratification of allegedly improper investigatory stops. Lt. Iberger’s actions in
questioning and temporarily detaining the plaintiff were, as demonstrated, clearly reasonable
under the circumstances he encountered. Moreover, Lt. Iberger is not a decision maker and
therefore his singular act on the date in question cannot subject the Town of Southampton to
liability. See, e.g. Wood v. The Town of East Hampton, 2010 WL 3924847, *25 (E.D.N.Y.
2010). Even if Lt. Iberger were to be considered a policymaker, he must also be the policymaker
responsible for establishing final government policy respecting the particular activity in question
before the municipality can be held liable. In this case, as was the situation before the court in
Wood, the plaintiff’s complaint does not allege that Lt. Iberger had final decision making policy,
and the record would not bear out such a claim even if it did.
Finally, the federal claims against the municipality that are exclusively, and
impermissibly, based upon theories of respondeat superior under federal and state law must be
dismissed as a matter of law. See, Monell, supra; Ostroski, 443 F.Supp.2d at 345. Likewise,
plaintiff’s common law tort claim against the Town (Thirteenth Count) based upon a theory of
respondeat superior is not permitted, as allowing such claims would undermine the Monell
requirement that the plaintiffs prove direct causation between the acts of the Town and the
alleged constitutional violation. Plaintiffs may not, therefore, invoke respondeat superior to
circumvent the strict requirements of establishing municipal liability for allegedly
unconstitutional acts by police officers. See, Javid v. Scott, 913 F.Supp. 223 (S.D.N.Y. 1996).
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 27 of 30 PageID #: 289
21
Similarly, with respect to the plaintiff’s claims premised upon negligent hiring, training
and retention, the Town is entitled to governmental immunity in the exercise of its discretion in
investigating and evaluating the qualifications of its officers. Mon v. City of New York, 78
N.Y.2d 309, 574 N.Y.S.2d 529 (1991). The hiring, training, discipline and retention of Town of
Southampton Police Department employees are discretionary functions and, thus the Town is not
answerable on damages for any alleged injurious consequences of that action. Tango v.
Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 76 (1983). Moreover, the record before the court
is utterly devoid of any evidence to support the negligent hiring, training, discipline and retention
claims set forth in the complaint.
POINT IV
PLAINTIFF’S 42 U.S.C. § 1986 COUNT MUST
BE DISMISSED AS A MATTER OF LAW.
The Fifth Count of the plaintiff’s complaint alleges unspecified constitutional violations
and liability pursuant to 42 U.S.C. § 1986 (Exhibit “A”, ¶¶ 163-166).
In order to establish a violation of § 1986, a plaintiff must first establish a violation of §
1985 which the § 1986 defendant neglected to prevent. Brown v. City of Oneonta, 106 F.3d
1125, 1133 (2d Cir. 1997). To make out a violation of 42 U.S.C. § 1985(3)10
, the plaintiff must
allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the law; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right or privilege
of a citizen of the United States. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828-
29 (1983). With respect to the second element, a plaintiff must show that the conspiracy was
10
The plaintiff’s § 1986 claim is vague and inartfully worded, but seems to invoke subdivision 3 of § 1985 which
directs its attention to the deprivation of rights or privileges of persons.
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 28 of 30 PageID #: 290
22
motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus;
thus, in order to maintain a claim for conspiracy under § 1985(3), plaintiffs must allege a
deprivation of rights on account of their membership in a protected class. See, Pikulin v.
Gonzalez, 2007 WL 1063353 at *2 (E.D.N.Y. 2007).
In this action, plaintiff has not alleged nor set forth any facts which would support a §
1985(3) class-based conspiracy claim, and as such, there is no basis herein for the assertion of a
claim under § 1986. See Pikulin, at *3. See also, Guadagni v. New York City Transit Authority,
2009 WL 205050 *4-*5 (E.D.N.Y 2009).
POINT V
PLAINTIFF’S NEW YORK STATE SUPPLEMENTAL
JURISDICTION CLAIMS SHOULD BE DISMISSED.
This court should, in its discretion, decline to exercise supplemental jurisdiction over the
plaintiff’s state law claims following its grant of summary judgment on the federal claims raised
by the plaintiff. See, e.g. Palmeri v. Town of Babylon, 2008 WL 3155153 *19 (E.D.N.Y. 2008).
As noted by the court in Palmeri, “in the interest of comity, the Second Circuit instructs that,
absent exceptional circumstances, where federal claims can be disposed of pursuant to Rule
12(b)(6) or on summary judgment grounds, courts should abstain from exercising pendant
jurisdiction” (internal citations omitted). As such, Counts Six through Fourteen, all of which are
premised upon New York State common law theories of liability and/or New York State
Constitutional claims and properly before this court only upon its exercise of supplemental
jurisdiction should be dismissed.
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 29 of 30 PageID #: 291
23
CONCLUSION
It is thus respectfully requested that the court, for the reasons articulated herein and upon
all papers offered in support of defendants’ motion for summary judgment, grant the defendants
summary judgment, along with such other and further relief as to the court seems just and proper.
Dated: Smithtown, New York
May 25, 2012
_____________/S/____________________
DAVID H. ARNTSEN
Case 2:10-cv-03470-JFB-AKT Document 49-2 Filed 05/25/12 Page 30 of 30 PageID #: 292