# Fink v. Catalano

> District Court, N.D. New York · March 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10315637

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 3, 2023
- **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
____________________________________________________

NORMAN FINK,
Plaintiff,
v. 5:20-CV-344 (TJM/TWD)

MICHAEL CATALANO, and NATHAN
MORAN,
Defendants.
_______________________________________________________

THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
Plaintiff Norman Fink filed this pro se Complaint on March 27, 2020. See dkt. # 1.
He names as defendants Michael F. Catalano, then-Chief of Police for the Cortland,
New York, Police Department, and Nathan Moran, a Cortland Police Officer. Id. at ¶¶
14, 20. This case concerns an incident that allegedly occurred on September 29, 2019.
Id. at ¶ 28. Following the Court’s October 19, 2020 Decision and Order, dkt. # 14, three
claims remain: (1) that Officer Moran unlawfully arrested Plaintiff on September 29,
2019, (2) that in the process of that arrest Officer Moran used excessive force by, inter
alia, causing Officer Moran’s K-9 partner, Rush, to bite Plaintiff, and (3) that Chief
Catalano provided inadequate training or supervision relating to Officer Moran’s use of
his police K-9. Defendants move for summary judgment seeking to dismiss the
Complaint in its entirety. See dkt. # 61.
After granting Plaintiff an extension of time to respond to the motion for summary
judgment, Plaintiff filed a letter indicating that he wanted to withdraw the Complaint
without prejudice. Dkt. # 66. Defendants indicate that have no objection to this request
but contend that, in light of the summary judgment motion that Plaintiff has not opposed,
the claims in the Complaint should be dismissed with prejudice. See Dkt. # 67 (“Plaintiff
now seeks to withdraw his Complaint without ever offering opposition to Defendants’
presently pending dispositive motion. Defendants believe a dismissal with prejudice is

required by the facts put forward, and Plaintiff’s letter request is an admission he has no
evidence in contravention of the same.”).
Given the parties’ positions, the Court will treat Defendants’ motion for summary
judgment as unopposed and will resolve it on the merits.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows
that there is no genuine dispute as to any material fact and that the movant is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if
“the [record] evidence is such that a reasonable jury could return a verdict for the [non-
movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[A] fact is material

if it might affect the outcome of the suit under the governing law.” Royal Crown Day
Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir.
2014)(quotation marks omitted). In determining whether a genuine issue of material fact
exists, the Court must resolve all ambiguities and draw all reasonable inferences
against the movant. Anderson, 477 U.S. at 255. The party moving for summary
judgment bears the initial burden of showing, through the production of admissible
evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d
263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the
nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward
with specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d

at 273. To defeat a motion for summary judgment, the nonmoving party must identify
probative evidence in the record from which a reasonable fact finder could find in his or
her favor. Anderson, 477 U.S. at 256–57; see Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)(The nonmoving party must do more than
“simply show that there is some metaphysical doubt as to the material facts.”); Kerzer v.
Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)(“Conclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of fact.” ). 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).
“Implied in the above-stated burden-shifting standard is the fact that, where a
non-movant willfully fails to respond to a motion for summary judgment, a district court
has no duty to perform an independent review of the record to find proof of a factual
dispute–even if that non-movant is proceeding pro se.” Elleby v. Martingano, No. 9:20-
CV-0693 (LEK/ML), 2021 WL 7161864, at *7 (N.D.N.Y. Nov. 30, 2021), report and
recommendation adopted, 2022 WL 18604 (N.D.N.Y. Jan. 3, 2022)(citing Cusamano v.
Sobeck, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (citing cases)). “This is
because the Court extends special solicitude to the pro se litigant largely by ensuring
that he or she has received notice of the consequences of failing to properly respond to
the motion for summary judgment.” Id. (citing Cusamano, 604 F. Supp. 2d at 426 & n.2).
“As has often been recognized by both the Supreme Court and Second Circuit, even
pro se litigants must obey a district court's procedural rules.” Id. (citing Cusamano, 604

F. Supp. 2d at 426-27 & n. 4).
“Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, ‘[t]he fact that there has been no [such] response ... does not ... [by itself]
mean that the motion is to be granted automatically.’” Id. (quoting Champion v. Artuz, 76
F.3d 483, 486 (2d Cir. 1996)). “Rather, . . . the Court must assure itself that, based on
the undisputed material facts, the law indeed warrants judgment for the movant.” Id.
(citing Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.
Supp. 2d 229, 232 (N.D.N.Y. 2001); N.D.N.Y. L.R. 56.1. “What the non-movant's failure
to respond to the motion does is lighten the movant's burden.” Id.
“For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming

facts set forth in a movant's statement of material facts to be admitted,1 where (1) those
facts are supported by evidence in the record, and (2) the non-movant has willfully failed
to properly respond to that statement–even when the non-movant was proceeding pro
se.” Id. (citing Cusamano, 604 F. Supp. 2d at 427 & n.6; Prestopnik v. Whelan, 253 F.
Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to
“perform an independent review of the record to find proof of a factual dispute.”)). “On

1 Among other things, Local Rule 56.1(b) (previously Local Rule 7.1(a)(3)) requires that the non-
movant file a response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific
citation to the record where the factual issue arises. N.D.N.Y.L.R. 56.1(b). It also provides that “[t]he Court
may deem admitted any properly supported facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.” Id. (underscoring in original).
summary judgment, ‘[a] party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence,’ but Federal
Rule of Civil Procedure 56(c)(2) ‘simply provides that the evidence must be capable of
presentation in admissible form at the time of trial; it does not require that the materials

be presented in an admissible form on summary judgment.’” United States v. Katholos,
No. 17-CV-531 (JLS/HKS), 2022 WL 3328223, at *1, n. 2 (W.D.N.Y. Aug. 10, 2022)
(quoting Hinterberger v. Catholic Health Sys., 299 F.R.D. 22, 38 (W.D.N.Y. 2014)
(internal quotation marks and citation omitted)).
ANALYSIS
Plaintiff was served with a “Notification of the Consequences of Failing to
Respond to a Summary Judgment Motion” in compliance with the notification
requirements for pro se litigants as set forth by Local Rule 56.2. See Dkt. #61-12.
Accordingly, the Court deems admitted the properly supported facts in Defendants’
Statement of Material Facts (“SMF”), dkt. #61-1.

False Arrest Claim
To succeed on his false arrest claim against Officer Moran, Plaintiff must show
Moran “intentionally confined him without his consent and without justification.” Weyant
v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). An arrest supported by probable cause will
provide the arresting officers with legal justification for an arrest, and thus is a complete
defense to a claim for false arrest. See Bonide Prods., Inc. v. Cahill, 223 F.3d 141, 145
(2d Cir. 2000); Weyant, 101 F.3d at 852; Zanghi v. Incorporated Village of Old
Brookville, 753 F.2d 42, 45 (2d Cir. 1985). An active warrant for arrest will provide
probable cause where the arresting officer knows of that warrant and the arrest was
predicated on the probable cause provided by the warrant. Omor v. City of New York,
2015 WL 857587, at *5 (S.D.N.Y. 2015)(citing Martinez v. City of New York, 340 F.
App'x 700, 701 (2d Cir. 2009); United States v. Miller, 265 F. App'x 5, 7 (2d Cir. 2008)).
Here, there is no dispute that Plaintiff was arrested by Officer Moran on an active

warrant for a felony violation of probation, that Moran was aware of that arrest warrant
at the time of arrest, and that Plaintiff pled guilty to that charge in satisfaction of all
charges from September 29, 2019 as part of a documented plea bargain. See SMF ¶¶
4, 23, 44, 47. As a matter of law, Plaintiff cannot succeed on his Fourth Amendment
claim false arrest claim against Officer Moran since the arrest was predicated on an
active warrant that Officer Moran was aware of. Martinez, 340 F. App'x at 701; Miller,
265 F. App'x at 7. Accordingly, Defendants are entitled to summary judgment on
Plaintiff’s false arrest claim against Officer Moran, which is dismissed with prejudice.
Excessive Force Claim
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,
490U.S. 386, 388 (1989)). Using “excessive force renders a seizure of the person
unreasonable and for that reason violates the Fourth Amendment.” Id. “As the Supreme
Court has explained, whether police officers’ use of force is ‘excessive’ must be judged
by ‘whether the officers’ actions are objectively reasonable in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.’”
Nuzzo v. Devine, 494 F. Supp. 3d 232, 237 (D. Conn. 2020) (quoting Graham, 490 U.S.
at 397), aff'd 2021 WL 4695515 (2d Cir. Oct. 8, 2021). 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). “Moreover, ‘[t]he
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Nuzzo,
494 F. Supp. 3d at 237 (quoting Graham, 490 U.S. at 396). “Thus, [t]he calculus of
reasonableness must embody allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation’”
Id. (quoting Graham, 490 U.S. at 396–97, and citing Cugini v. City of New York, 941
F.3d 604, 612 (2d Cir. 2019) (same)).
Although the Complaint alleges that Officer Moran used excessive force during

the September 29, 2020 arrest by kicking Plaintiff in the back, the undisputed material
facts indicate that the only physical force used by Officer Moran during the arrest was
releasing his K-9 partner, Rush, to apprehend Plaintiff. See SMF at ¶¶ 22-45.
Accordingly, any excessive force claim based on Officer Moran purportedly kicking
Plaintiff is dismissed with prejudice.
Turning to that portion of the excessive force claim based upon being bit by Rush,
the undisputed facts indicate that on September 29, 2019, Officer Knapp of the Cortland
Police Department received an anonymous complaint that Plaintiff was sitting in his
2004 Ford Ranger in the dark of an empty parking lot located on Owego Street in
Cortland, New York. See SMF ¶¶ 4, 22. Officer Moran, a certified K-9 officer, was
assigned to respond. SMF ¶¶ 4, 18-21. Officer Knapp advised Officer Moran that
Plaintiff had an active felony warrant for arrest. SMF ¶ 23. Plaintiff was known by
Cortland police to be aggressive and confrontational to law enforcement. SMF ¶ 52.

Upon arriving at the scene, Officer Moran approached Plaintiff’s vehicle and verbally
ordered Plaintiff to get out of the vehicle and informed him that he was under arrest.
SMF ¶ 24. Plaintiff failed to get out of his truck as ordered. SMF ¶ 25. Officer Moran
opened the vehicle’s door and Plaintiff pretended to be asleep. SMF ¶ 25. Officer Moran
immediately backed up and issued Plaintiff additional verbal commands to exit the
vehicle. SMF ¶ 25. Plaintiff then “popped up” with a lit cigarette and sat in his vehicle not
obeying Officer Moran’s commands to exit. SMF ¶ ¶ 26, 28. Officer Moran then gave
Plaintiff additional verbal commands to exit the vehicle. SMF ¶ 26. All of Officer Moran’s
commands were loud, with Officer Moran characterizing them as being yelled. SMF ¶
27.

Plaintiff then suddenly got out of the vehicle, “squared up” with Officer Moran, and,
“in an aggressive manner,” walked towards Officer Moran and Rush. SMF ¶ 28. As
Plaintiff walked toward Officer Moran and Rush, Moran continued to back up and put
distance between himself and Plaintiff while ordering Plaintiff to get on the ground. SMF
¶ 29. Plaintiff refused and continued to walk toward Officer Moran and Rush. SMF ¶ 30.
Officer Moran then warned Plaintiff that if he did not get on the ground, Rush would be
released and Plaintiff would be bit. SMF ¶ 31. Plaintiff did not comply with the warning
that Rush would be utilized, and instead turned his back to Officer Moran and took 2 to
3 steps toward the back of his truck. SMF ¶ 32. Officer Moran gave another clear
warning that Rush would be utilized to secure Plaintiff’s arrest if he did not comply with
Officer Moran’s order to get on the ground. SMF ¶ 33.
Plaintiff then turned back toward Officer Moran, clenched his fists, and failed
to comply with the command to get on the ground. SMF ¶ 34. “Plaintiff was warned

multiple times during this incident, loudly and clearly, that he was under arrest, and
if he did not comply with the order to get on the ground Rush would be utilized and
he would be bit.” SMF ¶ 35. Plaintiff then turned a second time toward the back of
his truck. SMF ¶ 36. Officer Moran then released Rush with the command for an
“apprehension” of Plaintiff. SMF ¶ 37.
Rush engaged Plaintiff above the hip and below the rib cage, which brought
Plaintiff to the ground. SMF ¶¶ 38-39. While grabbing his “break stick” to remove
Rush from Plaintiff, Officer Moran ordered Plaintiff to put his hands behind his back
and remain still or else he would be bit again, and Plaintiff complied. SMF ¶ 40.
Officer Moran immediately removed Rush from Plaintiff when Plaintiff was brought

to the ground. SMF ¶ 41. Emergency medical services were immediately called for
Plaintiff’s aid as required by Cortland Police Department General Order No. 467
once Plaintiff had been secured by other police officers who arrived while Rush was
securing Plaintiff. SMF ¶ 42. Plaintiff was then brought to Guthrie Hospital in
Cortland, New York for treatment. SMF ¶ 43.
Given the undisputed facts, Officer Moran’s use of Rush to secure Plaintiff’s
apprehension was objectively reasonable. Plaintiff, who was known by police to be
confrontational to law enforcement and who had an active warrant for his arrest, refused
numerous commands to get on the ground and submit to being arrested. Further, after
feigning sleep and refusing commands to exit his vehicle, Plaintiff’s suddenly got out of
his vehicle and confronted Officer Moran in an aggressive fashion, including walking
toward Officer Moran and Rush despite warnings to get on the ground and at one point
facing Moran with clenched fists. Plaintiff continued to disobey numerous commands to

get on the ground to be arrested, and despite warnings that Rush would be utilized to
secure his arrest if he did not comply, Plaintiff turned two times toward the back of his
truck where a weapon might have been secreted. The circumstances were tense and
rapidly evolving, and not only did Plaintiff actively refuse arrest and engage in
threatening behavior, he also disregarded clear warnings that if he did not comply with
Officer Moran’s orders Rush would be released to secure his arrest. After Rush was
deployed, Officer Moran immediately removed him from Plaintiff once Plaintiff was
brought to the ground. Under the circumstances, it was not objectively unreasonable for
Officer Moran to deploy Rush to secure Plaintiff. See, Nuzzo, 494 F. Supp. 3d at 237
(“[T]he facts as proven do not establish that the police used excessive force. In light of

what the police knew about Nuzzo, the fast-moving sequence of events, and what
Troopers Leary and Naples reasonably believed when they instructed their dogs to
secure Nuzzo, it was not objectively unreasonable for them to believe that the
deployment of the dogs was appropriate to ensure the apprehension of Nuzzo and
without increasing a risk of injury to police officers. Nor was the length of time that the
dogs were deployed on Nuzzo objectively unreasonable.”); see, e.g., McKinney v. City
of Middletown, 49 F.4th 730, 741 (2d Cir. 2022) (“It may be that an officer violates
clearly established law if he fails to give a warning before using a canine on a suspect
who is compliant or does not otherwise pose a threat, but deploying a police dog may
be objectively reasonable, even without a warning, when there is an immediate threat to
the safety of officers and the community.”)(internal footnote, quotation marks, and
citation omitted).
Furthermore, Officer Moran is entitled to qualified immunity on this claim because

a reasonable officer in the same circumstances could have determined that the
challenged conduct was lawful. See Muschette on Behalf of A.M. v. Gionfriddo, 910
F.3d 65, 70 (2d Cir. 2018) (“An officer is entitled [to] qualified immunity if ‘any
reasonable officer, out of the wide range of reasonable people who enforce the laws in
this country, could have determined that the challenged action was lawful.’”) (quoting
Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016)). At the time that Rush was
deployed, Plaintiff had actively resisted arrest, engaged in threatening behavior, and
ignored repeated warnings that if he did not comply with Officer Moran’s direction to get
on the ground or Rush would be deployed and would bite him. It would not have been
clear to a reasonable officer that deploying Rush under these circumstances violated

clearly established law. See Scott v. Lazure, No. 3:19-CV-713 (VAB), 2020 WL
2615502, at *8–9 (D. Conn. May 22, 2020)(“There are no Supreme Court or Second
Circuit cases precluding the single use of a Taser or deploying a canine to stop a fleeing
suspect who fails to heed a police officer’s commands and actively resists arrest. . . . In
the absence of cases holding similar conduct unconstitutional, the Court concludes that
a reasonable officer in Sergeant Lazure’s position would not understand his conduct to
violate any clearly established law.”)(citations omitted); see, e.g, McKinney, 49 F.4th at
741 (“McKinney posed … a threat when Officer D'Aresta deployed Hunter because, by
his own admission, McKinney grabbed Officer Sebold's baton and tried to wrestle the
baton out of Officer Sebold's hand, became extremely combative, and charged towards
the defendants before Hunter was released. In light of the threat McKinney posed, it
would not have been clear to a reasonable officer that deploying Hunter without first
providing a warning was unlawful in the situation [the officers] confronted.”)(internal

quotation marks and citations omitted).
Accordingly, Defendants are entitled to summary judgment on this claim.
Plaintiff’s excessive force claim against Officer Moran is dismissed with prejudice.
Failure to Train or Supervise
As to Chief Catalano, Plaintiff alleges that:

17. At all times relevant to this complaint; Defendant Catalano was responsible
as Chief of Police of the Cortland City Police Department for the supervision of
the adequacy and performance of the training and conduct of the
employee/officer officials under his control and command.

18. At all times relevant to this complaint; Defendant Catalano was personally
aware of the acts of misconduct of the employee/officer under his control and
command, as set forth in this complaint by:

(a) A detailed incident report filed by Defendant Moran and other
employee/officer officials on [a] specified date of September 29, 2019, in which
incident occurred.

(b) A detailed complaint dated January 8, 2020, informing Internal Affairs Unit of
the Cortland City Police Department of the misconduct of employee/officer official
as set forth within this complaint submitted by Plaintiff.

(c) Defendant Catalan’s response as Chief of Police Official of the Cortland City
Police Department, to Plaintiff’s complaint filed with the Internal Affairs Unit
denying any misconduct or wrongful acts of any employee/officer official under
his control.

19. Defendant Catalano is sued in his individual capacity and intentionally failed
to take action after learning of such conduct and/or performance of his
employee/officer official under his control and command, and; exceeded the
scope and course of his duties of his employment as Chief of Police through his
knowledge and control by inadequately enforcing the proper procedures and
supervision of the corrective training to maintain psychological[ly] fit and properly
trained officials to handle the K-9 unit dogs without violating any civil rights of
citizens in the City of Cortland, within the State of New York.

Compl. at ¶¶ 15-19.

Plaintiff does not allege that Chief Catalano was present during the arrest and
does not contend he could have stopped the incident. Plaintiff also fails to allege that
Chief Catalano ordered or encouraged Officer Moran to deploy Rush as he did, and
does not allege any specific lapses in training by Catalano that led to Rush biting
Plaintiff. Likewise, Chief Catalano’s denial of Plaintiff’s Internal Affairs complaint is
insufficient to create supervisory liability, and that complaint did not put Catalano on
notice of a civil rights violation he needed to correct. As the Court previously held, Chief
Catalano could not be liable for the injuries caused by any violation of Plaintiff’s
constitutional rights simply because he failed to find Moran liable in an internal affairs
investigation. Dkt. # 14 at 6 (citing Amato v. City of Saratoga Springs, 972 F. Supp. 120,
128 (N.D.N.Y. 1997)(granting summary judgment on a Section 1983 supervisory liability
claim because defendant’s “‘misconduct’ in the post-incident investigation cannot have
caused, or even contributed to, the deprivation of plaintiff’s right to be free from the use
of excessive force, since that deprivation had already occurred. In other words,
[defendant’s] conduct occurring after the alleged beating” did not cause the plaintiff’s
injuries)).
However, as the Court stated in addressing Defendants’ motion to dismiss,
“[r]ead liberally, Plaintiff’s Complaint alleges that Defendant Catalano knew that the
training he provided to Moran about handling dogs was inadequate and would cause
violations of suspects’ rights. If proved, those failings could represent deliberate
indifference to Plaintiff’s rights and make Catalano liable.” Dkt. # 14, at 7. This claim
will be dismissed with prejudice.
First, as stated above, Officer Moran did not violate Plaintiff’s constitutional
rights. Thus, Chief Catalano’s purported deficiencies in failing to train or supervise

Officer Moran could not have caused Plaintiff a violation of his federally protected rights.
See Emanuel v. Griffin, No. 13-CV-1806 JMF, 2015 WL 1379007, at *15 (S.D.N.Y. Mar.
25, 2015)(“Plaintiffs' claims against Mattingly and Diacomanolis for failure to train and
supervise and claims against the City of New York under Monell, 436 U.S. 658, must be
dismissed. Such claims are valid only if there is an underlying constitutional
violation.”)(citing, inter alia, Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir.2006)
(“Because the district court properly found no underlying constitutional violation, its
decision not to address the municipal defendants' liability under Monell was entirely
correct.”); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (holding that the
liability of supervisory official under Section 1983 presupposes an underlying

constitutional violation); Murphy v. N.Y. Racing Ass'n, 76 F.Supp.2d 489, 500
(S.D.N.Y.1999) (holding that to state a valid Section 1983 claim under a theory of
supervisory liability, the plaintiff must first show that the supervisor's subordinates
actually violated the plaintiff's constitutional rights)); see also Reinhart v. City of
Schenectady Police Dep't, 599 F. Supp. 2d 323, 336 (N.D.N.Y. 2009)(“A failure to train
claim cannot exist where no individual defendant has committed a constitutional
violation.”)(citing, inter alia, City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct.
1571, 89 L.Ed.2d 806 (1986)).
Second, even assuming a constitutional violation occurred, the uncontested facts
demonstrate that on November 14, 2018, Chief Catalano instituted General Order No.
467. SMF ¶ 6. General Order No. 467 governs the use of police K9s and addresses,
inter alia, the required training for K9 officers, see SMF ¶¶ 14-17, the circumstances

under which a K9 officer is permitted to deploy a K9 to effectuate an arrest, see SMF
¶10 (Order No. 467 allows for the use of a K9 by a Handler to “[Effect] the Arrest or
preventing the escape of a person when reasonable grounds to believe the person has
committed a felony against another person; possess a significant threat to another
person; or places another person in imminent danger of personal injury, significant
personal injury, or death.”), and the circumstances under which a K9 officer is permitted
to allow a K9 to bite a suspect. See SMF ¶ 11 (“Order No. 467 allows Handler to permit
the K9 to bite an individual where that individual poses an imminent danger to the officer
or another person from serious physical injury or death.”). The undisputed facts indicate
that Officer Moran adhered to General Order No. 467 both before and during his arrest

of Plaintiff on September 29, 2019. SMF ¶ 6. In this regard, the undisputed facts
indicate that Officer Moran received all appropriate training as required by New York
State to serve as a certified K9 handler, and followed the regulations of General Order
No. 467 in connection with Plaintiff’s arrest on September 29, 2019. See SMF ¶¶ 6-21,
40-43, 45. Inasmuch as the circumstances surrounding Plaintiff’s arrest encompassed
conduct contemplated by Order No. 467, Plaintiff fails to present evidence upon which a
reasonable fact finder could conclude that Chief Catalano was deliberately indifferent to
Plaintiff’s rights. He also fails to present evidence upon which a reasonable fact finder
could conclude that Defendant Catalano knew that the training he provided to Moran
about handling dogs was inadequate and would cause violations of suspects’ rights.
Third, Plaintiff’s allegations are of a one-time occurrence which generally fails to
provide a basis upon which to conclude that the supervising official was deliberately

indifferent to a plaintiff’s rights. See D'Alessandro v. City of New York, 713 F. App'x 1,
10-11 (2d Cir. 2017) (summary order) (“To establish a ‘failure to train’ claim, a plaintiff
must generally demonstrate that there has been a ‘pattern of similar constitutional
violations by untrained employees.’”)(quoting Connick v. Thompson, 563 U.S. 51, 66
(2011)); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (“To prove [ ]
deliberate indifference, the plaintiff must show that the need for more or better
supervision to protect against constitutional violations was obvious,” such as through
“proof of repeated complaints of civil rights violations[ ]...followed by no meaningful
attempt on the part of the municipality to investigate or to forestall further incidents.”);
Askew v. Lindsey, 2016 WL 4992641, at *5 (S.D.N.Y. Sept. 16, 2016) (collecting cases

holding that a single failure to discipline “cannot give rise to an inference of deliberate
indifference without further evidence of a municipal policy or practice”). “While the
Supreme Court has left open the possibility that a single incident could give rise to
liability for failure to train or supervise, the Court has cautioned that only a ‘narrow
range’ of circumstances would support such single-incident liability, where the
‘unconstitutional consequences of failing to train [were] patently obvious.’” Schnitter v.
City of Rochester, 931 F. Supp. 2d 469, 475 (W.D.N.Y. 2013), aff'd, 556 F. App'x 5 (2d
Cir. 2014) (quoting Connick, 563 U.S. at 64). In light of Chief Catalano’s institution of
General Order No. 467, no reasonable fact finder could conclude that Chief Catalano
was deliberately indifferent to circumstances indicating that unconstitutional
consequences of failing to train were patently obvious. Indeed, General Order No. 467
requires training of K9 officers clearly in an effort to avoid unconstitutional
consequences of officers using K9 partners during arrests.
Accordingly, summary judgment is granted to Defendants on Plaintiffs claim
against Chief Catalano, which is dismissed with prejudice.
CONCLUSION
For the reasons discussed above, Defendants’ motion for summary judgment,
dkt. # 61, is GRANTED, and all remaining claims in this matter are DISMISSED with
prejudice. The Clerk of the Court may close the file in this matter.

IT IS SO ORDERED. On
Dated: March 3, 2023 Cog ee
Thomas J. MgAvoy
Senior, U.S. District Judge

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315637. Public record. Not legal advice.