emotional distress, for example, when medical malpractice during pregnancy resulted in a still born child, see Giardina v. Bennett, 111 N.J. 412, 420, 545 A.2d 139 (1988), and when a hospital negligently failed to release to parents corpse of their brain-dead son. Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 538 A.2d 346 (1988). Recovery was not available, however, to the wife of a dog bite victim who witnessed her husband being bitten. The court found the physical injuries of the husband were not sufficient to establish a claim under Portee. Trisuzzi, 285 N.J. Super. at 25.
Green argues the Defendant's failure to properly investigate the shooting of Session amounts to negligence. Opposition Brief at 40. As a result of such negligence, Green contends he suffered emotional distress as he was humiliated, embarrassed and suffered "devastating damage to his professional reputation." Opposition Brief at 40. Green has failed to allege the severe emotional distress required to recover under negligent infliction of emotional distress. See Gennari, 148 N.J. 582 at 612, 691 A.2d 350. Summary Judgment is granted to the Defendants on the Sixth Count of the Complaint.
F. Municipal Liability
In the Seventh Count of the Complaint, Green alleges the City of Paterson failed to train and supervise its agents and/or employees which caused the deprivation of his rights. Complaint, PP 38-44. Green argues "the city's policy of conducting pre-investigation arrests, specifically pre-trial identifications, was unconstitutionally applied by the [Defendants] and thus [the City of Paterson] is liable because it failed to adequately train them." Opposition Brief at 29. Green also argues that "the [Defendant's] consistent pattern of unconstitutional conduct in their encounters with suspects, arrestees, persons in custody in law enforcement situations amounts to unlawful municipal custom or usage in violation of his [or her] constitutional rights." Id. at 29.
As discussed, the actions of the Defendants were not unconstitutional because there was sufficient probable cause for the arrest of Green. Because the arrest was lawful, there was no underlying constitutional violation for which the City of Paterson, or any of the other Defendants, could be held liable. See Kneipp, 95 F.3d at 1212 & n.26; Fagan v. City of Vineland, 22 F.3d 1283, 1291 (3d Cir.), aff'd in part, 22 F.3d 1296 (1994)(en banc). See also Los Angeles v. Heller, 475 U.S. 796, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986). In any event, Green has failed to demonstrate a basis for municipal liability pursuant to the condoned custom or failure to train theories.
1. Condoned Custom and Usage of Unconstitutional Conduct
A local governmental entity cannot be held liable pursuant to supervisor liability for the conduct of its employees. Cf. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), cert. denied, U.S. , 117 S. Ct. 1086 137 L. Ed. 2d 219 (1997). A municipality or local governing body may be liable, however, if the offending actions were performed pursuant to governmental custom or policy, whether formally or informally adopted. See Monell v. Dep't of Social Serv. of City of New York, 436 U.S. 658, 690-92, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Carver v. Foerster, 102 F.3d 96, 102 (3d Cir. 1996); Kneipp, 95 F.3d at 1211; Beck, 89 F.3d at 971; Czurlanis v. Albanese, 721 F.2d 98, 108 (3d Cir. 1983); Litz v. City of Allentown, 896 F. Supp. 1401, 1411 (E.D.Pa. 1995) ("[a] municipality can be sued directly under Section 1983 if action pursuant to municipal policy, practice or custom causes a constitutional tort"); see Polk County v. Dodson, 454 U.S. 312, 326, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981)("official policy must be 'the moving force of the constitutional violation' in order to establish the liability of the government body under [Section] 1983").
An action is pursuant to governmental policy where a decision maker possessing final authority "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690. An act is conducted pursuant to a municipal custom where it implements "a given course of conduct, [which,] although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). See also Monell, 436 U.S. at 658. Custom may also be evidenced through knowledge and acquiescence, see Beck, 89 F.3d at 971 (citing Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir.), cert. denied, 492 U.S. 919, 106 L. Ed. 2d 591, 109 S. Ct. 3244 (1989)), or "may be inferred from omissions and informal acts." Freedman v. City of Allentown, 853 F.2d 1111, 1116 (3d Cir. 1988)(citations omitted).
Green argues the Defendants' actions in conducting the pre-trial identifications amounts to a consistent pattern of unconstitutional conduct condoned by the City of Paterson. Opposition Brief at 33. Green submits "the Defendants contend that the practices and policies applied were those applied to all of the cases they worked on." Id.12 Green submits Reid, who was in charge of the Criminal Investigation Division of the Paterson Police Department, not only had knowledge of the unlawful conduct, but participated in the decision to arrest Green. Id. Green submits Reid "made the decision to show a single photograph to [Session] [citation omitted] and either he, or [Jordan and Flores], under his supervision, made the decision [to show the photograph] to the witnesses." Id.
As discussed, the conduct of the Defendants during the investigation and arrest was not unconstitutional. In any event, the arguments of Green focus on one incident of behavior by the Defendants. A single incident of unconstitutional behavior by a police officer, without any direct involvement by a municipal policy maker, is not sufficient to impose municipal liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986); City of Oklahoma v. Tuttle, 471 U.S. 808, 822, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985). Green has not demonstrated Reid to be a "policy-maker" for the purposes of establishing municipal liability. Pembaur, 475 U.S. at 481-82 ("Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official -- even a policymaking official -- has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.") Summary judgment is granted to the City of Paterson on the allegation of condoned conduct or usage.
2. Failure to Train
The Supreme Court has held Section 1983 liability may "attach to a municipality if it had a policy or custom of failing to train its employees and that failure caused the underlying constitutional violation." Kneipp, 95 F.3d at 1211 (citing City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)); Beck, 89 F.3d at 971; Mark v. Borough of Hatboro, 51 F.3d 1137, 1148 (3rd Cir.), cert. denied, 516 U.S. 858, 116 S. Ct. 165, 133 L. Ed. 2d 107 (1995); DiLoreto v. Borough of Oaklyn, 744 F. Supp. 610, 623 (D.N.J. 1990). However, "the inadequacy of police training may serve as the basis for Section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police came into contact." City of Canton, 489 U.S. at 388. The Court further explained:
Only where a municipality's failure to train its employees in a relevant respect evidences a "deliberate indifference" to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under [Section] 1983.... Only where a failure to train reflects a "deliberate" or "conscious" choice by a municipality -- a "policy" as defined by our prior cases -- can a city be liable for such a failure under [Section] 1983.
Id. at 388. In addition, a plaintiff must demonstrate the "deficiency in training actually caused the police officers' indifference to the [individual]." Id. at 391.
Green argues the City of Paterson failed to properly train and supervise the Defendants with respect to numerous aspects of a police investigation. Opposition Brief at 30. Green specifically argues the Defendants were not properly trained on identification procedures, as evidenced through the Ryerson Avenue identification and the photo identifications.
Id. at 31-3.
As stated, the conduct of the Defendants during the investigation and arrest of Green was not unconstitutional. See Fagan, 22 F.3d at 1291 (to meet deliberate indifference standard for the failure to train, a plaintiff must show that the city's policy actually caused a constitutional injury.). Green has not submitted any evidence to demonstrate the "failure to train reflects a 'deliberate' or 'conscious' choice by [the City of Paterson]" for which it can be liable under Section 1983. Harris, 489 U.S. at 388. Green has also failed to establish that the deficient training caused the alleged constitutional deprivation.
Summary judgment on the Seventh Count of the Complaint is granted to the City of Paterson.
The Defendants argue McMillan had no personal involvement in the arrest of Green or the decision to arrest Green. Moving Brief at 36. "Section 1983 looks to personal action in the deprivation of constitutional rights, rather than damage alleged by a chain of various responsibility." Sullivan v. State of New Jersey Div. Of Gaming Enforcement, 602 F. Supp. 1216, 1220 (3d Cir. 1988), aff'd, 853 F.2d 921 (3d Cir. 1988). See also Irby v. Sullivan, 737 F.2d 1418, 1425 (5th Cir. 1984) (individual may be held personally liable under ? 1983 if he or she was personally involved in the unconstitutional conduct or there was a causal connection between the individual's acts and the constitutional violation). There must be a causal connection between a police officer's conduct and the alleged constitutional deprivation. Irby, 737 F.2d at 1425.
McMillan had no personal involvement in the arrest of Green or the decision to arrest Green. McMillan was not consulted by Jordan or Flores as to whether there was probable cause to arrest Green. See Jordan Dep. at 191. McMillan had no involvement in the post-arrest investigation. McMillan's sole act was to obtain a written statement from Carlswell. The information Carlswell provided to McMillan did not differ from the information Carlswell had previously provided orally to Popewiny, Jordan and Flores. Accordingly, summary judgment is granted in favor of McMillan.
Based on the foregoing, the Motion for Summary Judgment is granted.
Dated: 26 June 1997