# McMillan v. Town of Colonie

> District Court, N.D. New York · September 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10314128

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 13, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
STARNASIA N. MCMILLAN,
Plaintiff,
v. No. 1:19-cv-620
(TJM/CFH)
TOWN OF COLONIE and COLONIE
POLICE DEPARTMENT,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Before the Court is the Defendants’ motion for summary judgment. See dkt. # 28.
The parties have briefed the issues, and the Court has determined to decide the matter
without oral argument.
I. Background
This case arises from an incident that occurred on May 27, 2018, when officers from
Defendant Town of Colonie Police Department took Plaintiff Starnasia McMillan into custody
at St. Patrick’s Cemetery in Watervliet, New York. Plaintiff alleges that these officers
violated her constitutional rights by using excessive force. She also contends that they
committed an assault and battery and negligence. Plaintiff has not sued the individual

officers, but has instead raised claims against the Town of Colonie and the Colonie Police
1
Department.
The record developed in this matter indicates that on May 27, 2018 Plaintiff Starnasia
McMillan was operating a white BMW four-door sedan on Route 2 in the Town of Colonie,
New York, at around 8:45 p.m. Defendants’ Statement of Material Facts (“Defendants’
Statement”), dkt. # 28-17, at ¶ 1.1 The vehicle had an inoperable headlight. Id. at ¶ 2.

Colonie Police Sgt. Thomas Breslin, who was in uniform and driving a marked vehicle,
turned on his car’s lights and initiated a traffic stop. Id. at ¶ 2. Plaintiff drove the BMW into
St. Patrick’s Cemetery and onto an access road within the cemetery. Id. at ¶ 4. Plaintiff’s
parents are buried there. Id. at ¶ 5.
Plaintiff was not wanted for a crime, but Sgt. Breslin had spoken directly to a City of
Troy police sergeant who informed him that Plaintiiff “‘was a 941, that she needed to go to
the hospital based on their incident’ and that she met their criteria for a person who
appeared to be a danger to herself.” Id. at ¶ 8. Plaintiff “denies each of the assertions
contained in paragraph 8 of” Defendants’ statement “and respectfully submits that

defendants’ representations” in that paragraph are “inconsistent with Sgt. Breslin’s
testimony.” Plaintiff’s Response to Defendants’ Statement of Material Facts (Plaintiff’s
Response”), dkt. # 32, at ¶ 8.2

1Both parties submitted the statement of material facts with citations to the record
required by Local Rules 7.1 and 56.1(a) and 56.1(b). The Court will cite to the
Defendants’ statement for matters which are uncontested and note the nature of the
disagreement when matters are in dispute.
2In support of this statement, Plaintiff points the court to pages 22-24 of Sgt.
Breslin’s deposition, which Defendants provided as an exhibit to their motion. See Exh. J
to Affidavit of Carolyn B. George, dkt. # 28-10. Plaintiff has not pointed the Court to any
specific evidence, nor has she explained why Sgt. Breslin’s testimony is inconsistent with
(continued...)
2
Friends or family of Plaintiff had contacted the Troy, New York, police department to
express concern over social media posts from the Plaintiff. Defendants’ Statement at 9.
Plaintiff had made social media posts that mentioned going to see her parents. Id. at J 10.
Friends contacted Plaintiff earlier in the day asking if she was okay. Id. at] 11. Plaintiff
had received counseling for mental health issues at Samaritan Hospital within the previous
six months. Id. at J 12.
Sgt. Breslin and the three other police officers who responded to the scene had
received training in dealing with emotionally disturbed persons. Id. at 9/13. They also had
training in use of force. Id. The Town of Colonie has a written policies for dealing with
emotionally disturbed persons and for the use of force. Id. at J 14.
Breslin approached the driver’s side of the vehicle and asked Plaintiff for her □□□□□□□□
license. Id. at] 15. Plaintiff did not have her driver's license but offered to provide the
number for that license to Breslin. Id. at] 16. Breslin asked Plaintiff to show him her keys
to the vehicle. Id. at9117. She did so. Id. Plaintiff shut off the car when Breslin asked her
to show him the keys. Id. at 7 18.
Plaintiff did not get out of the car by herself. Id. at 719. Breslin testified that Plaintiff
displayed “an elevated emotional state.” Id. at 20. Plaintiff claims that Breslin
approached her car and accused her of stealing the vehicle. Plaintiff's Response at { 20.
Defendants claim that Breslin “told Plaintiff words to the effect that ‘some people, you know,
they'll steal cars.”” Defendants’ Statement at 21. Plaintiff claims that Breslin “accused

2(...continued)
Defendants’ claim. Plaintiff's response technically complies with Rule 56.1(b), but it does
not aid the Court in determining this issue.

plaintiff of starting her car with a screwdriver.” Plaintiff's Response at 21.
Patrolman Philip Gerwitz arrived while Sgt. Breslin stood outside Plaintiff's car
speaking to her. Defendants’ Statement at 22. Patrolman Aaron Hanley also arrived in
response to a call for an emotionally distressed person at St. Patrick’s Cemetery. Id. at J
23. Hanley arrived after Breslin and Gerwitz. Id. at | 24. Defendants claim that “Plaintiff
was yelling and screaming inside her vehicle.” Id. at | 25. Plaintiff points out that the
statement does not “provide a time reference” for when such conduct occurred. Plaintiff's
Response at J 25.
Breslin reached into the car to grab Plaintiff's keys. Defendants’ Statement at □□ 26.
When he did so, the keys broke in his hand. Id. Breslin and Plaintiff both had part of an
ignition key. Id. Breslin claims he attempted to take the keys to prevent Plaintiff from
fleeing the scene. Id. at 27. Without citing to any evidence of record, Plaintiff disputes
this claim. Plaintiff's Response at J 26. Id. Breslin then reached into the vehicle and
unlocked the door. Defendants’ Statement at J 28. Defendants assert that Breslin and
Gerwitz then “removed” Plaintiff from the car and “placed her on the grass.” Id. at J 29.
They handcuffed her. Id. Plaintiff disputes that the officers “placed” her on the grass.
Plaintiff's Response at J 29. An unidentified party returned the car keys to Plaintiff's family.
Id. at J 30.
Friends and family members of the Plaintiff came to the scene. Id. at J 31.
Defendants claim that family members told Breslin and Gerwitz that Plaintiff had made
social media posts “to the effect that she wanted to kill or harm herself.” Id. at {| 32.
Plaintiff contends that Defendants’ “representations . . . are inconsistent with Sgt. Breslin’s
testimony” and the testimony of her relatives who came to the scene. Plaintiff's Response

at 732. She agrees, however, that her family members had “[come] to the cemetery
because she had been showing signs of [being] depressed and/or upset.” Defendants’
Statement at 7 33. Breslin prepared a use-of-force report for the incident. Id. at J 34.
Officer Gerwitz wrote out an emotionally disturbed person report. Id.
A Town of Colonie EMS ambulance took Plaintiff to Samaritan Hospital. Id. at 35.
Defendants assert that Officer Hanley rode with Plaintiff to the hospital. Id. at 7 36. Plaintiff
claims that records indicate that both Hanley and Gerwitz accompanied her. Plaintiff's
Response at {| 36. Defendants contend that Hanley explained to Plaintiff the reason for her
detention during the ambulance trip. Defendants’ Statement at J 37. Plaintiff denies that
this conversation occurred. Plaintiff's Response at 737. Defendants claim that Hanley
turned Plaintiff over to staff at Samaratin’s Mental Health Unit. Defendants’ Statement at 7
38. Plaintiff repeats her claim that Officer Gerwitz was also involved. Plaintiff's Response
at J 38.
Plaintiff asserts additional facts in opposition to Defendants’ Motion. See □□□□□□□□□□□
Response at Jf] 39-58. She relates that at around 8:30 p.m. on May 27, 2018, she was
sitting in her car at St. Patrick’s Cemetery. Id. at 7 39. After a conversation with a relative,
Plaintiff left the cemetery. Id. at 740. Plaintiff returned to the cemetery about ten minutes
later. Id. at 741. “Upon” this return, Plaintiff claims, “a marked Colonie Police vehicle
activated its lights.” Id. at ] 42. Defendants deny this statement “to the extent that Sgft.
Breslin was not asked at what point he activated his lights on” the police car. Defendants’
Response to Plaintiff's Statement of Additional Facts (“Defendants’ Response”), dkt. # 35,
at {| 42.
Plaintiff returned to “almost the same spot” in the cemetery where “she was . . . when

she left . . . approximately ten (10) minutes” earlier. Plaintiff’s Response at ¶ 43. She
turned her vehicle off. Id. A uniformed Colonie Police Officer approached the vehicle and
began asking her questions. Id. at ¶ 44. Plaintiff did not have her driver’s license with her,
but offered her New York license number. Id. at ¶ 45. Plaintiff claims that Breslin accused
her of using a screwdriver to start her car. Id. at ¶ 46. Pointing to Breslin’s testimony,

Defendants dispute this claim. Defendants’ Response at ¶ 46. Breslin asked to see
Plaintiff’s car keys. Plaintiff’s Response at ¶ 47. Plaintiff held up her keys, and Breslin
reached through the window in an attempt to seize them. Id. at ¶ 48. The parties dispute
who caused the key to break during this attempt. Id. at ¶ 49; Defendants’ Response at ¶
49.
Plaintiff claims that Sgt. Breslin and “another officer” then “attempted to forcibly
remove her from the vehicle. Plaintiff’s Response at ¶ 50. Defendants deny that the force
the officers used was excessive or unjustified by the circumstances. Defendants’ Response
at ¶ 50. They dispute whether Plaintiff had her seatbelt on when the officers attempted to

remove her from the car. Plaintiff’s Response at ¶ 51; Defendants’ Response at ¶ 51. They
also dispute the degree of force officers used to remove Plaintiff from the car and whether
they “slammed” her to the ground after they got her out of the vehicle. Plaintiff’s Response
at ¶ 52; Defendants’ Response at ¶ 52. Plaintiff denies that any officer ever asked her to
turn off her car. Plaintiff’s Response at ¶ 53. The Defendants dispute this claim.
Defendants’ Response at ¶ 53. Defendants dispute Plaintiffs’ claim that officers caused
bruising to her left arm and wrist and a cut to her thigh when they removed her from the car.
Plaintiffs’ Response at ¶¶ 54-55; Defendants’ Response at ¶ 54-55.
Plaintiff describes her transport to Samaritan Hospital as “forcible.” Plaintiff’s
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Response at ¶ 56. She remained there for “a few hours” and was then discharged. Id. at ¶
57. She claims that the arrest caused her to be “traumatized to go back to St. Patrick’s
cemetery to visit her parents’ graves.” Id. at ¶ 58.
Plaintiff filed a Complaint in this action on May 24, 2019. See dkt. # 1. The
Complaint does not name any of the officers involved in her detention, but instead raises

claims against the Town of Colonie and the Town of Colonie Police Department. The
Complaint raises four claims. Court One, raised against both Defendants, alleges that the
officers used excessive force in detaining Plaintiff in violation of her constitutional rights and
42 U.S.C. § 1983. Count Two alleges that Plaintiff’s injuries were caused by a municipal
policy or custom and seeks damages against the Town of Colonie and the Colonie Police
Department. Count Three is a state-law claim for negligence against “all defendants.”
Count Four, again raised against “all defendants,” alleges assault and battery. Plaintiff also
seeks punitive damages.
After service of the Complaint and an answer, the parties engaged in discovery. At

the close of discovery, Defendants filed the instant motion. The parties then briefed the
issues, bringing the case to its present posture.
II. Legal Standard
The parties seek summary judgment. It is well settled that on a motion for summary
judgment, the Court must construe the evidence in the light most favorable to the
non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may
grant summary judgment only where "there is no genuine issue as to any material fact and
... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). An
issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict
7
for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A party seeking summary judgment bears the burden of informing the court of the
basis for the motion and of identifying those portions of the record that the moving party
believes demonstrate the absence of a genuine issue of material fact as to a dispositive
issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish

a prima facie basis for summary judgment, the burden of production shifts to the party
opposing summary judgment who must produce evidence establishing the existence of a
factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported
motion for summary judgment may not rest upon "mere allegations or denials" asserted in
his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or
on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998).
III. Analysis

Defendants seek summary judgment on several bases, which the Court will address
in turn.
A. Colonie Police Department
Defendants argue that the Court should grant summary judgment to the Colonie
Police Department. Since the Colonie Police Department is a political subdivision of
Defendant Town of Colonie, Defendants assert that any claims against the Police
Department are duplicative of those against the Town. Plaintiff does not oppose the motion
on this basis. The Court will therefore grant the motion on the basis stated by the

8
Defendants and dismiss Defendant Colonie Police Department from the action with
prejudice.
B. Excessive Force Claim
Defendants also claim that no evidence supports Plaintiff's claim that Defendants
violated her Fourth and Fourteenth Amendment rights by using excessive force to arrest
her. They further contend that, even if the evidence supported an excessive force claim,
Defendants would be entitled to qualified immunity. Plaintiff responds that the evidence
creates a question of fact about whether the force the Police Officers used was reasonable
under the circumstances.
Excessive force claims brought pursuant to the Fourth Amendment “are properly
analyzed under the Fourth Amendment's ‘objective reasonableness’ standard.” Shamir v.
City of New York, 804 F.3d 553, 556 (2d Cir. 2015) (quoting Graham v. Connor, 490 U.S.
386, 388 (1989)). Using “excessive force renders a seizure of the person unreasonable and
for that reason violates the Fourth Amendment.” Id. To decide whether the force was
reasonable, a court should pay “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the subject poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Soares v. Connecticut, 8 F.3d 917, 921 (2d
Cir. 1993) (quoting Graham, 490 U.S. at 396). This standard focuses on “‘a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Brown v. City of New
York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham, 490 U.S. at 397). “A court’s role in
considering excessive force claims is to determine whether a jury, instructed as to the
relevant factors, could reasonably find that the force used was excessive.” Id. at 103.

The Court will grant the motion as to this claim, but for a reason different than that
argued by the Defendants. The only defendants in this matter are the Town of Colonie and
the Colonie Police Department. Neither of the officers who arrested the Plaintiff and
allegedly used excessive force are defendants in this case. The Defendants here cannot
be liable simply because the Town of Colonie Police Officers violated her constitutional

rights, since federal law “expressly prohibits respondeat superior liability for muncipalities,”
and “a plaintiff must demonstrate that ‘through its deliberate conduct, the municipality was
the ‘moving force’ behind the injury alleged.’” Agosto v. N.Y. City Dep’t of Educ., 982 F.3d
86, 97-98 (2d Cir. 2020) (quoting Bd. of Cty. Commr’s of Bryan Cty., Okla. v. Brown, 520
U.S. 397, 404 (1997) (emphasis in original)). Since Plaintiff raises this type of claim in
Count Two and does not address any official policy or custom in this count, she cannot
prevail here. The Court will grant the motion in this respect as well.3
On the other hand, qualified immunity is not a defense available to a municipality.
“Qualified immunity is an affirmative defense that shields government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Stephenson v. Doe,
332 F.3d 68, 76 (2d Cir. 2003) (quoting McCardle v. Haddad, 131 F.3d 43, 50 (2d Cir.
1997)). Plaintiff did not sue an individual official. Courts are clear that “a municipality may
not assert qualified immunity based on its good faith belief that its actions or policies are
constitutional[.]” Vives v. City of New York, 524 F.3d 346, 350 (2d Cir. 2008). “[A]
municipality is liable for even its good faith constitutional violations presuming that the

3The Court is perplexed as to why Defendants have not addressed this issue during
the course of the litigation.
10
municipality has a policy that causes those violations.” Id. (citing Owen v. City of
Independence, 445 U.S. 650, 657 (1980)). Defendants here cannot take advantage of
qualified immunity.
C. Municipal Liability
Plaintiff does raise a claim on which the remaining Defendant could be liable under
42 U.S.C. § 1983. As a general matter, “[glovernments should be held responsible when,
and only when, their official policies cause their employees to violate another person’s
constitutional rights.” Agosto, 982 F.3d at 98 (quoting City of St. Louis v. Praprotnik, 485
U.S. 112, 122 (1988)). Municipal liability is limited by Monell v. Dep’t of Soc. Servs., 436
U.S. 658 (1978). In that case, the Supreme Court found that municipal liability existed
“where that organization’s failure to train, or the policies or customs that it has sanctioned,
led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207,
219 (2d Cir. 2006). To prevail, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that
caused the plaintiff's injury.” Bd. of County Commr’s v. Brown, 520 U.S. 397, 403 (1997).
“A government's official policy may be ‘made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.” Dangler v. New York City Off Track
Betting Corp., 193 F.3d 130, 142 (2d Cir. 1999) (quoting Monell, 436 U.S. at 694).
Defendants claim that the Town had a formal written use-of-force policy and formal
written mental health crises/emotionally disturbed persons policy at the time in question.
Moreover, the Town provided training in these policies to the officers who responded to the
scene. As such, Defendants argue, Plaintiff has no evidence that she suffered any injuries
because of the Town’s policies or practices, nor can she show she suffered from
Defendants’ alleged failure to train their officers.
11

Defendants’ moving papers include a copy of The Town of Colonie Police
Department’s Use of Force Policy, which the parties appear to agree was in place on the
date of the incident in question. See dkt. # 28-2. As a general matter, the policy provides
that:
Police Officers may use only the level of physical fore necessary in the performance
of their duties in accordance with Article 35 of the New York State Penal law. It is the
responsibility of each officer to be aware of Article 35 and to guide his/her actions
based upon that law, department policy and training. It is the policy of the Police
Department that officers will use no more force than reasonably called for, given the
facts and circumstances perceived by the officer at the time of the event, to
effectively bring an incident or person under control. The totality of the
circumstances perceived by an officer at the time force was used may include, but
shall not be limited to such factors as: resistance ot the officer, potential danger to
persons, the need to act in a timely manner, or what and how much force was used.
Id. The policy provides definitions of “reasonable cause to believe,” and “reasonably
necessary,” among other terms. Id. The policy also defines circumstances when officers
may use different types of force, including “less-lethal or non-deadly force.” Id. In relevant
part, the policy provides that “[o]fficers may use physical force when reasonable and
necessary to take into custody any person who appears mentally ill and is conducting
himself in a manner that is likely to result in serious harm to themselves or others.” Id. The
policy also requires that officers document each use of force, and that a supervisor review
such reports. Id. Officers must also document any injuries that occur from such use of
force. Id. The policy also permits a supervisor to order an officer to accompany a person
injured during an encounter to the hospital in an ambulance. Id.
The policy also requires that officers undergo use of force training each year. Id.
Officers must demonstrate proficiency with firearms twice a year. Id. They receive taser
training once a year. Id. The policy also provides that “Supervisory Officers shall attempt to

12

respond to all incidents where force is used and shall review all such incidents and the
associated documentation.” Id. Supervisors must investigate any complaints of excessive
force that come to their attention, and must report their findings to the Chief’s Office. Id.
Defendants also provide a copy of the Town of Colonie Police Department’s general
order on Mental Health Crises/Emotionally disturbed persons. See dkt. # 28-16. The policy
establishes procedures for the Department to follow “[u]pon notification of a potential Mental
Health problem.” Id. The policy directs the officer who arrive to “assess the situation” and
determine whether to call in the Mobile Crisis Team (“MCT”). Id. If that Team arrives,
officers are to assist the MCT, transfer responsibility to the Team if appropriate, and
authorize ambulance transport pursuant to New York Mental Hygiene Law Section 9.41. Id.
The order quotes the Mental Hygiene law to describe the circumstances under which
officers may act because they have encountered a person “conducting himself in a manner
which is likely to result in serious harm to himself or others.” Id. An officer must ride with
the ambulance under those circumstances and “advise” doctors “of the circumstances and
that the patient is first being transported to an Emergency facility.” Id. Officers are also
required to document the incident “on the appropriate report.” Id.
Plaintiff argues that “by their own admission, neither Sgt. Breslin nor Officer Gerwitz
exercise their independent judgment on the scene—in violation of their policies.” The
officers admit, Plaintiff claims, that they “failed to follow their own training which at this stage
should be sufficient to defeat defendants’ application.” Moreover, “Plaintiff has not been
provided with disciplinary records for any of the officers in this matter and without those
records, it is respectfully submitted plaintiff cannot speak to a ‘pattern’ etc.”
Plaintiff does not explain how the policies recited above are inadequate or how they
13

caused any injuries that Plaintiff suffered. Indeed, her argument suggests that her injuries
were a result of the officers failing to follow the Police Department's policies. In that sense,
then, Plaintiff has failed to “identify a municipal ‘policy’ or ‘custom’ that caused [her] injury.”
Brown, 520 U.S. at 403. She cannot make out a municipal liability claim under those
circumstances.
Plaintiff could, of course, identify a municipal “custom,” rather than a policy, that
caused her injuries. “Under Monell, ‘[o]fficial municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials, and practices so persistent
and wdespread as to practically have the force of law.” Lucente v. Cty. of Suffolk, 980 F.3d
284, 297 (2d Cir. 2020) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “A Section
1983 action may be maintained based on a practice that was so persistent or widespread
as to constitute a custom or usage with the force of law.” Green v. City of New York, 465
F.3d 65, 80 (2d Cir. 2006) (quoting Patterson v. County of Oneida, 375 F.3d 206, 226 (2d
Cir. 2004) (internal quotations omitted)). “The alleged custom or practice need not be
embodied in a rule or regulation,” but “the alleged practice ‘must be so manifest as to imply
the constructive acquiescence of senior policy-making officials.” Id. (quoting Sorlucco v.
N.Y. City Police Dep’t, 971 F.2d 864, 870 (2d Cir. 1992)).
Plaintiff has admitted that she has no evidence of any sort of custom or practice
involving excessive force or mistreatment of emotionally disturbed persons to constitute a
custom or practice that would qualify for Section 1983 liability. Summary judgment is
therefore appropriate on this theory of Monell liability as well.
“Where a city’s official policy is constitutional, but the city causes its employees to
apply it unconstitutionally, such that the unconstitutional application might itself be
14

considered municipal policy, the city may be held liable for its employees’ unconstitutional
acts.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004). Failures in
training can cause such liability. Id. “Municipal liability may . . . be premised on a failure to
train employees when inadequate training ‘reflects deliberate indifference to...
constitutional rights.” Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 440
(2d Cir. 2009) (quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)). To demonstrate
such deliberate indifference, the plaintiff must demonstrate “(1) ‘that a policymaker knows to
a moral certainty that her employees will confront a given situation’; (2) ‘that the situation
either presents the employee with a difficult choice of the sort that training or supervision
will make less difficult or that there is a history of employees mishandling the situation’; (3)
‘that the wrong choice by the . . . employee will frequently cause the deprivation of a
citizen’s constitutional rights.” Id. (quoting Walking v. City of New York, 974 F.2d 298, 297-
98 (2d Cir. 1992)). “[D]eliberate indifference may be inferred if the complaints are followed
by no meaningful attempt on the part of the municipality to investigate or to forestall further
incidents.” Id. (quoting Vann v. City of New York, 72 F.3d 1040,1049 (2d Cir. 1995)). A
plaintiff must show not only deliberate indifference, “but also . . . identify a specific
deficiency in the city’s training program and establish that the deficiency is ‘closely related to
the ultimate injury,’ such that it ‘actually caused’ the constitutional deprivation.” Amnesty
Am., 361 F.3d at 129 (quoting City of Canton v. Harris, 489 U.S. 378, 390-91 (1989)).
In this respect, Plaintiff argues that Defendants know to a moral certainty that they
will encounter persons with mental health conditions and that training is necessary to
address such situations properly and in a way that avoids the use of excessive force. She
claims that “a deficiency in the defendants’ training program” permits police to lie to persons
15

suspected of having mental health issues and “then allows the police to seize an individual
without making an independent evaluation as required by” Town “policy and the M[ental]
H[ealth] L[aw]. It also then creates a situation–as it did here–that the officers’ actions are
then directly related to excessive force.”
The Court will grant the motion in this respect as well. As explained above,
Defendants have provided the Court with information that officers receive training on use of

force and dealing with emotionally disturbed persons. Defendants have also provided
evidence that the officers involved in the incident here received that training. See Exh. D to
Affidavit of Carolyn B. George, dk. # 28-4. Plaintiff has not attempted to address the
training that the officers received in any substantial or specific way, and has produced no
evidence to establish that such training was inadequate in a constitutional sense. She has
not produced evidence that any injuries she suffered resulted from specific inadequacies
she has identified in the Defendants’ training programs. Instead, she offers only a vague
suggestion that some vague deficiency in training about using force with disturbed people
will inevitably lead to excessive force. Such vague and conclusory arguments do not point
to any evidence that could support Plaintiff’s claim.

The Court will therefore grant the motion with respect to Plaintiff’s Monell claims as
well.
D. State Law Claims
The Court has dismissed all the federal claims in this case. The Court therefore has
discretion to dismiss the supplemental state-law claims pled in the Complaint. Federman v.
Empire Fire & Marine Ins. Co., 597 F.2d 798, 809 (2d Cir. 1979). In many cases, “‘if [all]
federal claims are dismissed before trial . . . , the state claims should be dismissed as well.’”
16
Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (quoting Castellano v. Bd. of
Trustees, 937 F.2d 752, 758 (2d Cir. 1991)). If, however, “‘the dismissal of the federal claim
occurs late in the action, after there has been substantial expenditure in time, effort, and
money in preparing the dependent claims, knocking them down with a belated rejection of
supplemental jurisdiction may not be fair. Nor is it by any means necessary.’” Id. (quoting
Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994) (internal citation omitted)).

While the Court recognizes that extensive discovery and motion practice has
occurred in this matter, the Court concludes that the best use of judicial resources would be
to dismiss the State claims without prejudice. The Court notes that the remaining state-law
claims rely on respondeat superior liability due to Plaintiff’s failure to name any of the
individual officers involved in the alleged use of excessive force. As explained, that type of
liability is not available under federal law,4 and the Court finds that a state court would be
better equipped to address such questions. The Court will therefore dismiss the state-law
claims without prejudice to repleading in an appropriate forum.
IV. CONCLUSION
For the reasons stated above, the Defendants’ motion for summary judgment, dkt. #

28, is hereby GRANTED. Plaintiff’s federal claims are dismissed WITH PREJUDICE.
Plaintiff’s state-law claims are dismissed WITHOUT PREJUDICE. The Clerk of Court if
directed to CLOSE the case.

4The Court has no insight into Plaintiff’s pleading choices. Still, Plaintiff chose not
to name any of the officers involved in her Complaint, and one consequence of that choice
is that no federal claims remain. The Court exercises its discretion in part because the
Court declines to hear state claims very similar to federal claims that Plaintiff chose not to
plead in a way that would make anyone liable.
17
Thomas J. MgAvoy
Senior, U.S. District Judge

IT IS SO ORDERED.
Dated: September 13, 2021

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314128. Public record. Not legal advice.