Appendix — Matican v. City of New York (No. 08-396)

la

APPENDIX A— OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DECIDED APRIL 23, 2008

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2007

Argued: October 22, 2007 Decided: April 23, 2008

Docket No. 06-1983-cv

ROBERT MATICAN,

Plaintiff-Appellant,

- against -

CITY OF NEW YORK, JOHN SCHNEIDER,

JULIO C. ORDONEZ, avs CHRIS ZIMMERMAN,

Defendants-Appellees.

Before: FEINBERG, WINTER, and STRAUB,

Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff-appellant Robert Matican participated in

a sting to help officers of the New York Police

Department (“NYPD”) arrest a suspected drug dealer:

Matican set up a drug buy, and the police descended on

the dealer in force when he arrived about an hour later.

2a

Appendix A

After the dealer was released on bail, he assaulted

plaintiff Matican with a box cutter, injuring him severely.

Matican sued the City of New York (“City”) and

individual NYPD officers—Captain Julio C. Ordonez,

Lieutenant John Schneider, and Sergeant Chris

Zimmerman (collectively, “the officers”)—arguing that

the way they conducted the sting and their failure to

alert Matican to the dealer’s release gave away

Matican’s identity and left him in peril. He asserted

claims for damages under 42 U.S.C. § 1983 and New

York state law. By memorandum and order dated March

28, 2006, the United States District Court for the

Eastern District of New York (Block, J.) granted

defendants-appellees’ motion for summary judgment on

the § 1983 claims and declined to exercise supplemental

jurisdiction over the state-law claims. For the reasons

stated below, we affirm the judgment of the district

court.

I. BACKGROUND

For purposes of Maiiran’s appeal from a grant of

summary judgment, we take his allegations as true and

draw all reasonable inferences in his favor. Jenkins v.

City of New York, 478 F.3d 76, 85 n. 4 (2d Cir.2007).

On the evening of September 18, 2001, Matican

purchased crack cocaine from a drug dealer he knew as

“Mike,” who had supplied him with drugs on a number

of prior occasions. Undercover NYPD officers then

arrested Matican and took him to a precinct house in

Bayside, Queens. While Matican was in a holding cell,

3a

Appendix A

defendant Zimmerman approached him and offered to

make the arrest “go away” if Matican would agree to

help the officers arrest Mike. Matican was interested

in the offer but expressed concern for his safety if Mike

made bail. Matican testified that Zimmerman responded,

“Don’t worry, Robert, we will look after you. We will

protect you.” Matican agreed to cooperate based on

Zimmerman’s promise.

According to Matican, Zimmerman then instructed

Matican to arrange a drug buy with Mike the following

evening in front of the Bayside Jewish Center, a frequent

location for prior drug transactions between Matican

and Mike. The police would be waiting with two cars

and four officers in each car. When Mike executed his

customary illegal U-turn in front of the Jewish Center,

Matican would identify the car from the safety of a

darkened athletic field across the street, and the police

would pull over Mike as if for a routine traffic stop.

Defendant Schneider asked Matican what quantity of

drugs Mike would be carrying; when Matican replied

that Mike would have 20 or 30 bags of crack, Schneider

replied, “[I]f he has that many bags, he is not going to

even make bail.” After the plan was formulated, the

officers released Matican with a desk appearance ticket.

The following evening, Matican met the officers at

the prearranged location and paged Mike to arrange a

large drug buy. Mike arrived and Matican identified his

car, as planned. According to Matican, the officers then

cut Mike off with two police vehicles, pulled him from

the driver’s seat, and pinned him against his car. The

4a

Appendix A

officers searched Mike’s person and car, discovered

drugs, and arrested him. Matican remained hidden and

unseen in the darkened field.

Mike, whose real name was Steven Delvalle, was

found to be in possession of 16 bags of crack cocaine,

two bags of marijuana, and about $2,000 in cash. Delvalle

was charged with two counts of criminal possession of a

controlled substance, as well as various moving

violations. A criminal check performed at the precinct

revealed that Delvalle had six prior arrests, including

arrests for possession of a handgun and assault with a

box cutter. On September 28, 2001, Delvalle was released

on bail. Matican was not informed of Delvalle’s arrest

history, his release, or his real name, and he alleges that

had he known these facts, he would have moved to

California to live with his brother.

Matican never contacted Delvalle again after the

sting operation. He acknowledges that he discussed his

participation in the sting with his parents and a close

friend, and that at least one other person knew about

his role. On December 8, 2001, Delvalle approached

Matican on a street in Queens. Delvalle said, “You ratted

me. Why did you rat me?” He slashed Matican’s face

twice with a box cutter, then fled. Delvalle was arrested

several days later; he eventually pled guilty to one count

of attempted assault and one count of attempted

criminal possession of a controlled substance, and was

sentenced to eight years in prison.

Sa

Appendix A

Matican filed his suit in the Eastern District

in November 2002, stating causes of action under

42 U.S.C. § 1983 and New York common law. Defendants

moved for summary judgment on all claims. The district

court granted summary judgment on the § 1983 claims

and declined to exercise supplemental jurisdiction over

the state claims. Matican v. City of New York, 424

F:‘Supp.2d 497 (E.D.N.Y.2006). This appeal followed.

II. DISCUSSION

We review de novo the district court’s grant of

summary judgment, construing the evidence in the light

most favorable to Matican, the nonmoving party, and

drawing all inferences and resolving all ambiguities in

his favor. Doro v. Sheet Metal Workers’ Int'l Ass’n, 498

F.3d 152, 155 (2d Cir.2007). Summary judgment is

appropriate “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of

law.” Fed.R.Civ.P. 56(c).

Matican asserted the following causes of action:

(1) a claim under 42 U.S.C. § 1983 that the officers

violated his right to substantive due process under the

Fourteenth Amendment by failing to protect him from

Delvalle’s assault; (2) a § 1983 claim against the City for

failing to train its officers to protect confidential

informants from harm; and (3) claims sounding in state

law against all defendants asserting that the officers

behaved negligently, and that the City is vicariously

6a

Appendix A

liable for their actions under the doctrine of respondeat

superior.

The first two claims depend on a single threshold

question: did the officers’ actions violate Matican’s

constitutional rights? If they did not, then the City

cannot be liable to Matican under § 1983, regardless of

whether the officers acted pursuant to a municipal policy

or custom. City of Los Angeles v. Heller, 475 U.S. 796,

799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam).

Furthermore, if Matican has no valid claim under § 1983

against any defendant, it is within the district court’s

discretion to decline to exercise supplemental

jurisdiction over the pendent state-law claims.

See Kolari v. New York-Presbyterian Hosp., 455 F:3d

118, 122 (2d Cir.2006) (citing 28 U.S.C. § 1367(c)(3)).'

We therefore begin with the threshold question of

whether the officers’ conduct infringed Matican’s

constitutional rights.

Among the liberties protected by the Due Process

Clause of the Fourteenth Amendment is “a right to be

free from... unjustified intrusions on personal security.”

Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401,

51 L.Ed.2d 711 (1977). But in DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189,

109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme

1. We must also determine the existence of a constitutional

violation before we may consider the officers’ defense of

qualified immunity. Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir.

2004) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,

150 L.Ed.2d 272 (2001)).

Ta

Appendix A

Court observed that “nothing in the language of the

Due Process Clause itself requires the State to protect

the life, liberty, and property of its citizens against

invasion by private actors.” Jd. at 195, 109 S.Ct. 998. As

a result, the Court held that the Clause “generally

confer(s] no affirmative right to governmental aid, even

where such aid may be necessary to secure life, liberty,

or property interests of which the government itself may

not deprive the individual.” /d. at 196, 109 S.Ct. 998.

We have recognized two exceptions to this general

principle, rooted in the Supreme Court’s analysis in

DeShaney. First, the state or its agents may owe a

constitutional obligation to the victim of private violence

if the state had a “special relationship” with the victim.

See Ying Jing Gan v. City of New York, 996 F.2d 522,

533 (2d Cir.1993) (citing DeShaney, 489 U.S. at 198, 109

S.Ct. 998). Second, the state may owe such an obligation

if its agents “in some way had assisted in creating or

increasing the danger to the victim.” Dwares v. City of

New York, 985 F.2d 94, 98-99 (2d Cir.1993) (citing

DeShaney, 489 U.S. at 201, 203, 109 S.Ct. 998), overruled

on other grounds by Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).

Even if Matican’s claim falls within one of these two

exceptions, and the officers’ behavior violated a

constitutional obligation, Matican faces a further hurdle:

he must show that the officers’ behavior was “so

egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.” County of

8a

Appendix A

Sacramento v. Lewis, 523 U.S. 833, 848 n. 8, 118 S.Ct.

1708, 140 L.Ed.2d 1043 (1998). This requirement screens

out all but the most significant constitutional violations,

“lest the Constitution be demoted to. . . a font of tort

law.” Id.; see Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct.

1155, 47 L.Ed.2d 405 (1976).

We consider (1) whether Matican’s claims fall within

either of the two DeShaney exceptions and (2) whether

the officers’ behavior can be said to shock the

contemporary conscience.

A. Special relationship exception.

The special relationship exception grows from the

DeShaney Court’s observation that “in certain limited

circumstances the Constitution imposes upon the State

affirmative duties of care and protection with respect

to particular individuals.” DeShaney, 489 U.S. at 198,

109 S.Ct. 998.2 The Court gave, as examples, the

obligations of states to incarcerated prisoners and

involuntarily committed mental patients, and concluded

that “when the State takes a person into its custody

and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.”

2. We recognized this principle before DeShaney, in Doe v.

New York City Department of Social Services, 649 F.2d 134, 141

(2d Cir.1981).

9a

Appendix A

Id. at 199-200, 109 S.Ct. 998.* Under these limited

circumstances, the state may owe the incarcerated person

an affirmative duty to protect against harms to his liberties

inflicted by third parties. But the duty arises solely from

“the State’s affirmative act of restraining the individual’s

freedom to act on his own behalf [ ] through incarceration,

institutionalization, or other similar restraint of personal

liberty.” Jd. at 200, 109 S.Ct. 998.

Our own opinions have also focused on involuntary

custody as the linchpin of any special relationship

exception. See Lombardi v. Whitman, 485 F.3d 73, 79 n. 3

(2d Cir.2007) (“Special relationships arise ordinarily if a

government actor has assumed an obligation to protect

an individual by restricting the individual’s freedom in some

manner, as by imprisonment.”); Suffolk Parents of

Handicapped Adults v. Wingate, 101 F'3d 818, 824 (2d

Cir.1996) (holding that plaintiffs’ claim did not fall within

DeShaney exception because “the plaintiffs here . . . are

not involuntarily institutionalized”); see also Doe v. N.Y.C.

Dep't of Soc. Servs., 649 F.2d 134, 141 (2d Cir.1981) (holding

that state is liable under Due Process Clause for abuse

suffered by child in foster care, and emphasizing custodial

nature of foster care placement).

The relationship between defendants and Matican

does not resemble those that have been found to lie within

the bounds of the special relationship exception. Matican

3. The Court noted that the situation of a child placed in

foster care might be sufficiently analogous to those of prisoners

or mental patients to trigger the exception, but it did not decide

the question. Jd. at 201 n. 9, 109 S.Ct. 998.

10a

Appendix A

freely agreed to serve as a confidential informant in

exchange for more lenient treatment. He was not in

custody at the time of the sting or of Delvalle’s assault.

The state did not “render{ | him unable to care for himself,”

DeShaney, 489 U.S. at 200, 109 S.Ct. 998; after all, Matican

argues that, had defendants warned him of Delvalle’s

release, he would have moved to California to live with his

brother. That he was in custody when he agreed to become

a confidential informant is of no moment: he does not allege

that he was coerced, and his former incarceration did not

exacerbate his injury. See id. at 201, 109 S.Ct. 998 (“That

the State once took temporary custody of [petitioner] does

not alter the analysis, for when it returned him to his

father’s custody, it placed him in no worse position than

that in which he would have been had it not acted at all;

the State does not become the permanent guarantor of

an individual’s safety by having once offered him shelter.”).

We therefore join several of our sister circuits in

holding that a noncustodial relationship between a

confidential informant and police, absent more, is not a

special relationship. Accord Velez-Diaz v. Vega-lrizarry,

421 F3¢d 71, 80 (1st Cir.2005); Dykema v. Skoumal, 261

F.3d 701, 706 (7th Cir.2001); Butera v. District of Columbia,

235 F3d 637, 648 (D.C.Cir.2001); Summar v. Bennett, 157

Fi3d 1054, 1059 (6th Cir.1998).*

4. Matican encourages us to adopt the reasoning of G-69 v.

Degnan, 745 F.Supp. 254 (D.N.J.1990), which held that a specia!

relationship exists between the state and a confidential

informant whose safety deperds on confidentiality. Jd. at 265.

But G-69 fails to distinguish between the special relationship

(Cont'd)

lla

Appendix A

B. State-created danger exception.

Like the special relationship exception, the state-

created danger exception arises from the Court’s

analysis in DeShaney.® After explaining that no special

relationship existed between the state and petitioner,

the Court further noted that, “[wJhile the State may

have been aware of the dangers that [petitioner] faced

in the free world, it played no part in their creation, nor

did it do anything to render him any more vulnerable to

them.” DeShaney, 489 U.S. at 201, 109 S.Ct. 998. The

Court emphasized that government officers had done

nothing worse than failing to take action even though

suspicious circumstances may have counseled an active

role. Jd. at 203, 109 S.Ct. 998. These statements led us

to conclude that, by negative implication, the state does

infringe a victim’s due process rights when its officers

assist in creating or increasing the danger that the

victim faced at the hands of a third party. Dwares, 985

F.2d at 99.

(Cont'd)

and state-created danger exceptions, a distinction that may not

have been obvious in DeShaney’s immediate aftermath. See id.

(finding special relationship because plaintiff’s service to state

“increased by a corresponding proportion the risk to his life”).

As such, we do not find the decision to be particularly

persuasive, and choose instead to follow the more recent

analysis from our sister circuits.

5. The doctrine had been recognized in some circuits prior

to DeShaney. See Kennedy v. City of Ridgefield, 439 F-3d 1055,

1061 n. 1 (9th Cir.2006) (collecting cases).

12a

Appendix A

In applying the state-created danger principle, “we

have sought to tread a fine line between conduct that is

‘passive’ ” (and therefore outside the exception) “and

that which is ‘affirmative’ ” (and therefore covered by

the exception). Pena v. DePrisco, 432 F.3d 98, 109 (2d

Cir.2005). Thus, we have found state-created dangers

(or denied summary judgment where state-created

danger theories were alleged) where police officers told

skinheads that they would not prevent them from

beating up protesters in a park, Dwares, 985 F.2d at 99;

where police officers gave a handgun to a retired officer

who then shot a fleeing robber, Hemphill v. Schott, 141

F.3d 412, 419 (2d Cir.1998); where a prison guard told

inmates that it was “open season” on a prisoner, and

the inmates beat up the prisoner, Snider v. Dylag, 188

F.3d 51, 55 (2d Cir.1999); and where police officials

encouraged an off-duty colleague to drink excessively,

after which he killed three pedestrians in a car accident,

Pena, 482 F.3d at 110-11. By contrast, we held that no

state-created danger existed where a police officer failed

to intervene to prevent a colleague from shooting

someone during an altercation. Pitchell v. Callan, 13

F.3d 545, 549 (2d Cir.1994).°

As the district court recognized, Matican’s allegation

that the officers failed to learn about, or inform him of,

Delvalle’s violent criminal history or his release on bail

6. We declined to decide whether a state-created danger

existed where, after the terrorist attacks of September 11, 2001,

federal officials informed rescue workers that the air near the

World Trade Center site was safe to breathe, causing the

workers to forego protective gear. Lombardi, 485 F.3d at 81.

13a

Appendix A

fall on the passive side of the line. “Under DeShaney,

allegations that the defendant officers merely stood by

and did nothing are insufficient to state a constitutional

violation.” Pena, 432 F.3d at 110 (internal quotation

marks omitted); see also Lombardi, 485 F.3d at 79 (“It

is not enough to allege that a government actor failed

to protect an individual from a known danger of bodily

harm or failed to warn the individual of that danger.”).

This is so notwithstanding Matican’s assertion that the

officers promised to protect him. See DeShaney, 489 U.S.

at 200, 109 S.Ct. 998 (“The affirmative duty to protect

arises not from the State’s knowledge of the individual’s

predicament or from its expressions of intent to help

ey |

By contrast, Matican’s allegation that the officers

planned the sting in a manner that would lead Delvalle

to learn about Matican’s involvement is sufficiently

affirmative to qualify as a state-created danger.

See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063

(9th Cir.2006) (finding that, where police officer informed

assailant that victim had filed report against him, and

assailant then shot victim, officer “affirmatively created

an actual, particularized danger” to victim).’

7. The defendant law enforcement officers in Dwares,

Hemphill, Snider, and Pena all had personal relationships with

the third-party assailants, and they either actively facilitated

the assaults or personally communicated that assaults would

go unpunished. Here, by contrast, the officers’ conduct might

have indirectly alerted Delvalle to Matican’s identity, but the

officers had no personal relationship with Delvalle other than

(Cont'd)

14a

Appendix A

C. Shocking the conscience.

Until recently, Supreme Court and Second Circuit

precedent gave little objective guidance as to whether

a particular state action does or does not shock the

contemporary conscience. In Lewis, the Supreme Court

noted one set of parameters: negligently inflicted harm

“is categorically beneath the threshold of constitutional

due process,” 523 U.S. at 849, 118 S.Ct. 1708 (citing

Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662,

88 L.Ed.2d 662 (1986)), whereas the intentional infliction

of injury is the conduct “most likely to rise to the

conscience-shocking level,” id. As for conduct between

these poles, the Court held only that harm inflicted

(Cont'd)

the arrest itself. We have thus far found state-created dangers

only where there is such a relationship. See Pena, 432 F.3d at

109 (“Our distinction between these categories of cases

suggests that ‘special relationship’ liability arises from the

relationship between the state and a particular victim, whereas

‘state created danger’ liability arises from the relationship

between the state and the private assailant.”); see also Dwares,

985 F.2d at 99 (describing officers’ liability in terms of “aid[ing]

and abett[ing]”). However, other circuits have found state-

created dangers where state officials had no relationship with

the individual causing harm, e.g., Wood v. Ostrander, 879 F.2d

583, 590 (9th Cir.1989), or where the victim was not harmed by

an individual at all, e.g., Kneipp ex rel. Cusack v. Tedder, 95 F.3d

1199, 1209 (3d Cir.1996). Because the officers’ affirmative

conduct did not shock the conscience (as explained below), we

need not decide whether the state-created danger exception is

limited to cases where state officials had a direct relationship

with the third party who caused injury.

jig

15a

Appendix A

recklessly or with deliberate indifference does not shock

the conscience in the context of a time-sensitive

emergency, such as a high-speed chase. /d. at 853-54,

118 S.Ct. 1708. Here, though, the officers had ample

opportunity to plan the sting in advance. Matican argues

that the district court erred in holding that the officers

did not act with deliberate indifference. He proposes a

balancing test to help factfinders determine when the

conscience is shocked by reckless or deliberately

indifferent state action that creates or increases a

danger.

We need not consider Matican’s proposed test,

because this court’s decision last year in Lomburdi

provides sufficient guidance to resolve this issue. In that

case, we considered the claims of rescue and cleanup

workers at the World Trade Center site following the 9/

11 attacks. The workers in that case alleged that the

defendants, federal environmental and workplace-safety

officials, issued intentionally false press releases stating

that the air in Lower Manhattan was safe to breathe,

and that in reliance on those statements, the workers

did not use protective gear. Lombardi, 485 F.3d at 75.

We held that, regardless of whether the situation was a

time-sensitive emergency, plaintiffs’ allegations of

deliberate indifference did not shock the conscience.

Id. at 85. “Hurried or unhurried, the defendants

were subjected to the ‘pull of competing obligations.’ ”

Id. at 83 (quoting Lewis, 523 U.S. at 834, 118 S.Ct. 1708).

reasoned that those competing obligations counseled

against broad constitutional liability for the government

officials, whose decisionmaking might be inhibited by

l6a

Appendix A

the threat of lawsuits. Jd. at 84. We concluded that

“(w]hen great harm is likely to befall someone no matter

what a government official does, the allocation of risk

may be a burden on the conscience of the one who must

make such decisions, but does not shock the

contemporary conscience.” /d. at 85.

The same considerations lead us to conclude that

Matican’s allegations of affirmative conduct by the officers,

even if true, do not shock the contemporary conscience.

In designing the sting, the officers here had two serious

competing obligations: Matican’s safety and their own.

They could reasonably have concluded that the arrest of a

potentially violent drug dealer demanded the use of

overwhelming force, even if that show of force might

jeopardize the informant’s identity in the future. We are

loath to dictate to the police how best to protect themselves

and the public, especially when our ruling could be taken

to require officers to use riskier methods than their

professional judgment demands.

As we explained in Lombardi, the defendants in our

prior state-created danger cases were not subject to “the

pull of competing obligations.” See id. at 83 (discussing

Pena and Dwares ). Butera v. District of Columbia, 235

F.3d 637 (D.C.Cir.2001), which Matican cites, is

distinguishable for the same reason: the officers in that

case sent an informant into an undercover drug buy while

monitoring from the safety of their cars, id. at 642, and

thus would have incurred no risk had they fitted the

informant with wires or agreed in advance on danger

signals, id. at 644.

17a

Appendix A

Because the officers were obliged to protect their own

safety as well as Matican’s, their design of the sting in this

case does not shock the conscience.* Matican therefore

suffered no violation of his rights under the Due Process

Clause.

III. CONCLUSION

We find that no constitutional violation occurred. We

see no need to consider whether the officers enjoyed

the benefit of qualified immunity, or whether Matican

had a claim against the City for a practice or custom of

failing to protect confidential informants. Furthermore,

because Matican has no valid federal claims, the district

court did not exceed its allowable discretion in declining

to exercise jurisdiction over his state claims. 28 U.S.C.

§ 1367(c). We have considered all of Matican’s other

arguments for reversal of summary judgment and find

them to be without merit.

Judgment affirmed.

8. We need not resolve the vexing questions raised by

defendants about the proximate cause of Matican’s injurics.

18a

APPENDIX B — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF NEW YORK

DATED MARCH 28, 2006

UNITED STATES DISTRICT COURT

E.D. NEW YORK

No. 02-CV-5805 (FB) (KAM).

ROBERT MATICAN,

Plaintiff,

v.

CITY OF NEW YORK, JOHN SCHNEIDER, JULIO

C. ORDONEZ, and CHRIS ZIMMERMAN,

Defendants.

March 28, 2006.

MEMORANDUM AND ORDER

BLOCK, Senior District Judge.

Robert Matican (“Matican”) sues the City of New

York (“City”) and three members of the New York City

Police Department (“NYPD”): Captain Julio C. Ordonez

(“Ordonez”), Lieutenant John Schneider (“Schneider”)

and Sergeant Chris Zimmerman (“Zimmerman”)

(collectively, “the officers”). Asserting claims under

19a

Appendix B

42 U.S.C. § 1983 and New York common law, he seeks to

hold defendants liable for damages suffered when he

was assaulted by a private citizen.

Pursuant to Federal Rule of Civil Procedure 56, all

defendants move for summary judgment on all claims;

in addition, Matican cross-moves for summary judgment

on his state-law claim. For the following reasons, the

Court grants defendants’ motion as to the § 1983 claims

and declines to exercise jurisdiction over the state-law

claim.

BACKGROUND

“When considering a motion for summary judgment,

a court must construe the evidence in the light most

favorable to the nonmoving party, drawing all inferences

in that party’s favor.” Jeffreys v. City of New York, 426

F:3d 549, 553 (2d Cir.2005). The following facts are either

undisputed or, if disputed, taken in the light most

favorable to Matican:

On September 18, 2001, Matican was arrested

for possession of crack cocaine; he claims that

while he was awaiting processing in a holding

cell, Zimmerman approached him and said,

“Robert, we can help you with this. We can

make this arrest go away.” Matican Dep. at

92. When Matican asked what he had to do,

Zimmerman told him he wanted to set up

Matican’s dealer (whom Matican knew only as

“Mike”). Matican then asked, “If I help you

20a

Appendix B

and he [i.e., “Mike”] makes bail and he comes

after me, will you protect me?” and

Zimmerman responded, “Don’t worry,

Robert, we will look after you. We will protect

you.” /d. at 93. The defendants contest this

version of events and claim that Matican

volunteered to help Zimmerman and other

officers apprehend “Mike” in exchange for

favorable treatment from the district

attorney’s office.

Although the parties dispute who came up with the

plan to apprehend “Mike” and when it was formulated,

they do not question the plan’s existence. Matican

claims that one of the officers—perhaps Schneider—

suggested arresting both “Mike” and Matican after a

face-to-face sale. Matican admits he did not voice any

objection to that plan, but attests that “[aJnother cop

said, ‘Hey, why don’t we just let [Matican] point [“Mike”]

out and keep him out of it,’ ” 7d.; Matican “liked that

plan better.” Jd. The officers therefore decided that

Matican would be kept out of sight during the operation.

Matican told the officers that he usually bought

drugs from “Mike” near the Bayside Jewish Center at

204th Street and 32nd Avenue in Queens, and that

“Mike” normally made an illegal u-turn arriving at that

location. Based on this information, Matican and the

officers agreed that Matican would page “Mike,”

arrange a buy, and hide at a nearby athletic field with

Schneider. Matican would then identify “Mike” when he

arrived, whereupon Schneider would radio other officers,

2la

Appendix B

including Ordonez, who would stop “Mike” and use the

illegal u-turn as a pretext for searching his car.

While discussing the plan, Zimmerman asked

Matican, “[H]ow much drugs do you think [‘Mike’] will

have on him?” Matican Dep. at 109. When Matican said

that he believed “Mike” would have “[t]wenty, thirty

bags of crack,” Zimmerman replied, “If he has that much

drugs on him, he is not going to make bail.” Jd.

The officers opened a confidential-informant (“C1”)

file for Matican; the contents of the file are unknown, as

defendants have been unable to locate it.! Defendants

do not dispute, however, that Matican was given CI

status. He was given a desk-appearance ticket and

released early on the morning of September 19, 2001.

Later that day, Matican called Zimmerman three

times to see if the sting operation was still on.

Zimmerman confirmed that it was and, with Schneider

and Ordonez, put the prearranged plan in motion.

Matican paged “Mike” and arranged a buy; the

meeting was scheduled for the same day—September

19—at 8:00 p.m. and at the usual location. Matican and

Schnieder then hid at the nearby athletic field, which

was unlit. “Mike” did not arrive until almost an hour

after Matican paged him. Schneider claims that, during

1. Matican seeks an inference in his favor because of the

lost file. He does not specify, however, what information allegedly

in the file would support his claims.

22a

Appendix B

this interval, he (Schneider) suggested discontinuing

the operation, but that Matican wished to proceed;

Matican denies this.

“Mike” finally arrived and made his usual illegal u-

turn, at which time Matican identified him; Schneider

than radioed the other officers. Ordonez and at least

four other police officers converged on “Mike’s” car in

at least three cars; some of the officers were in street

clothes and some of the cars were unmarked. According

to Edward Mamet (“Mamet”), a retired NYPD officer

and “police practices” expert, the “number of officers

and police vehicles used was not in accordance with what

would be generally used to conduct a traffic stop.”

Mamet Decl. 91 8.’

During the subsequent search, “Mike” was found

to be in possession of marijuana; he was arrested and

taken to the precinct for processing. At the precinct,

“Mike,” by this time identified as Steven Delvalle

(“Delvalle”), was also found to be in possession of crack

cocaine. An inventory of his possessions prepared by

Officer Kevin Shanahan (who is not a defendant in this

case) recites that, in addition to “2 ziplocks of

Marijuana,” Delvalle was “in possession of 16 ziplocks

of crack/cocaine and was attempting to sell them.”

Decl. of Michael A. Haskel, Ex. V.

2. The defendants argue that Mamet’s declaration should

be disregarded because he was not disclosed as an expert under

Federal Rule of Procedure 26(a)(2). It is not necessary to

address this issue as the defendants are entitled to summary

judgment whether or not the affidavit is considered.

23a

Appendix B

A criminal check at the precinct revealed that

Delvalle had several prior arrests, including one for

criminal possession of a firearm and another for assault

with a box cutter. The officers did not follow up on the

disposition of the arrests; had they done so, they would

have found that both had resulted in convictions on guilty

pleas.

In connection with the sting operation, Delvalle was

charged with third- and fourth-degree possession of a

controlled substance, making an illegal u-turn, and

driving without a license; despite Schneider’s

prediction, he was released on bail on September 28,

2001. The officers did not know that Delvalle had been

released and, as a result, did not contact Matican to

inform him. Had he known of Delvalle’s release and

violent history, Matican claims that he would have moved

to California to live with his brother.

Matican had no contact with the officers or Delvalle

from September 19 to December 8, 2001. On that date,

Delvalle attacked Matican and slashed him across the

face with a box cutter; Matican claims that during the

assault Delvalle said, “You ratted me. ... Why did you

rat me?” Matican Dep. at 173. Delvalle was arrested and

charged with first- and second-degree assault; he later

pleaded guilty to attempted first-degree assault and

was sentenced to eight years imprisonment and five

years’ supervised release. In connection with the sting

operation, Delvalle pleaded guilty to attempted

possession of a controlled substance in the third degree

and was sentenced to three to six years’ imprisonment,

24a

Appendix B

to be served concurrently with his sentence for the

assault on Matican.

All New York City police officers receive a copy of

the Patrol Guide, a comprehensive manual] that guides

officers in the performance of their duties. The officers

involved in apprehending Delvalle relied on Procedure

No. 212-68 of the Patrol Guide, which sets forth

procedures for dealing with Cls and, in particular, for

keeping their identities confidential; it does not,

however, provide specific guidance for protecting the

safety of CIs. Apart from Procedure No. 212-68, the City

provides additional written guidance for the use of CIs

in narcotics operations, but the officers do not recall

relying on such guidance; in any event, while the

additional written materials broadly caution officers to

consider a Cl’s safety, they do not specify what steps

should be taken to achieve that objective. The officers

do not recall receiving any other training on how to

protect the identity or safety of CIs participating in sting

operations.

Referring to a newspaper article, Matican claims

that at least nineteen witnesses were killed in New York

City between 1980 and 2003. As Matican was not asked

or required to testify as a witness, the relevance of this

statistic is unclear. The City does not compile statistics

on how many CIs are killed or injured in retaliation for

their services.

25a

Appendix B

DISCUSSION

Summary judgment is warranted when the record

shows “that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as matter of law.” Fed.R.Civ.P 56(c). Although, as noted,

the Court must view all evidence in the light most

favorable to the non-moving party, that party must still

come forward with specific facts showing that there is a

genuine issue for trial. See, e.g., Shannon v. New York

City Transit Auth., 332 F.3d 95 (2d Cir.2003).

Matican asserts three claims:

(A) a claim under § 1983 that by failing to

protect him from the assault by Delvalle, the

officers violated his substantive due-process

rights under the Fourteenth Amendment;

(B) a claim under § 1983 that by failing to

adequately train its police officers to prevent

such constitutional violations, the City is liable

under Monell v. Department of Social

Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978); and

(C) a claim under state law that the officers’

failure to protect him amounted to negligence,

and that the City is vicariously liable for that

negligence under the doctrine of respondeat

superior.

The Court will consider each in turn.

26a

Appendix B

A. § 1983 Claim Against the Officers

With regard to Matican’s § 1983 claim against the

officers, they argue (1) that Matican has failed to

establish a constitutional violation, and (2) that, even if

he had, they would be entitled to qualified immunity.

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150

L.Ed.2d 272 (2001), requires the Court to address these

issues in sequence; that is, the Court must “ask first

whether the facts, viewed in the light most favorable to

the plaintiff, establish a constitutional violation. .. .

If they do not, the plaintiff may not recover because he

has suffered no wrong cognizable under § 1983.” Sira v.

Morton, 380 F.3d 57, 68-69 (2d Cir.2004) (citing Saucier,

533 U.S. at 201, 121 S.Ct. 2151). “If the facts do establish

a constitutional violation, however, {the Court]

proceed([s] to a second inquiry, asking ‘whether it would

be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.’ ... Ifa

reasonable officer could have believed that the

challenged conduct was lawful at the time of the

violation, then qualified immunity bars the claim.” /d.

(quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151).*

3. The Second Circuit has held that Saucier’s sequential

approach is not required in certain limited circumstances, such

as “when the existence of a constitutional violation depends on

the resolution of uncertain state law,” Ehrlich v. Town of

Glastonbury, 348 F.3d 48, 58 (2d Cir.2003), or where “any

unsettled constitutional issues raised” will likely be settled

outside the context of § 1983 actions. Koch vu. Town of Brattleboro,

287 F:3d 162, 166 (2d Cir.2002) (noting that unsettled issues of

Fourth Amendment law will often be resolved by rulings on

motions to suppress in criminal cases). Those circumstances

are not present here.

if

27a

Appendix B

l. Constitutional Violation

Matican claims that the officers’ failure to prevent

Delvalle’s attack violated his right to substantive due

process. Whether the Due Process Clause triggers a

duty on the part of governmental actors to provide

protection against an attack by private actors in a given

factual setting is a question of law appropriate for

resolution on summary judgment. See Ying Jing Gan

v. City of New York, 996 F.2d 522, 534 (2d Cir.1993).

In DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d

249 (1989), the Supreme Court held that “nothing in the

language of the Due Process Clause itself requires the

State to protect the life, liberty, and property of its

citizens against invasion by private actors,” id. at 195,

109 S.Ct. 998; thus, “[a]s a general matter, a State’s

failure to protect an individual against private violence

simply does not constitute a violation of the Due Process

Clause.” Jd. at 197, 109 S.Ct. 998.

Relying on dicta in DeShaney, the Second Circuit

has recognized two exceptions to this general rule:

First, in Ying Jing Gan, the court observed that a

governmental actor may have a constitutional obligation

to protect an individual from private violence “because

of a special relationship with [the] individual.” 996 F\2d

at 533. Second, in Dwares v. City of New York, 985 F.2d

94 (2d Cir.1993), the court held that the Due Process

Clause is implicated if the governmental actor “assisted

in creating or increasing the danger to the victim [of

28a

Appendix B

private violence].” /d. at 99. The court recently

summarized the state of the law surrounding these two

exceptions in Pena v. DePrisco, 432 F.3d 98 (2d Cir.2005).

As Pena makes clear, the existence of a special

relationship or state-created danger is but the first step

in the analysis: “[T]Jo establish a violation of a right to

substantive due process, a plaintiff must demonstrate

not only government action but also that the government

action was ‘so egregious, so outrageous, that it may fairly

be said to shock the contemporary conscience.’ ” /d. at

112 (quoting County of Sacramento v. Lewis, 523 U.S.

833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).

This restriction exists to prevent the Due Process

Clause from becoming a “font of tort law.” Lewis, 523

U.S. at 848, 118 S.Ct. 1708. Thus, “negligently inflicted

harm is categorically beneath the threshold of

constitutional due process,” Lewis, 523 U.S. at 849, 118

S.Ct. 1708; however, “[ijn situations where actors have

an opportunity to reflect and make reasoned and

rational decisions, deliberately indifferent behavior may

suffice to ‘shock the conscience.’ ” Rivera v. Rhode

Island, 402 F.3d 27, 36 (Ist Cir.2005), quoted with

approval in Pena, 432 F.3d at 113.

a. Special Relationship

Matican argues that his CI status constitutes a

special relationship. Neither the Supreme Court nor the

Second Circuit has addressed the issue of whether

CI status is the type of special relationship that will

support a substantive due-process claim. Both courts,

29a

Appendix B

however, have recognized that a constitutionally

significant special relationship generally involves some

type of custody or other restraint on individuals’ ability

to fend for themselves. See DeShaney, 489 U.S. at 200,

109 S.Ct. 998 (“The affirmative duty to protect arises

not from the State’s knowledge of the individual’s

predicament or from its expressions of intent to help

him, but from the limitation which it has imposed on his

freedom to act on his own behalf.”); Ying Jing Gan, 996

F.2d at 533 (“Special relationships that have been

recognized to give rise to a governmental duty to protect

against third-person attacks have included custodial

relationships such as a prison and inmate or a mental

institution and involuntarily committed patient, and the

relationship between a social service agency and foster

child.”).

District courts in this circuit have deduced from

DeShaney and Ying Jing Gan that there can be no

special relationship when such involuntary restraints

are not present. See Clarke v. Sweeney, 312 F.Supp.2d.

277, 296 (D.Conn.2004) (no special relationship between

state and subpoenaed witness); Smith v. Town of East

Haven, 2005 WL 677284 (D.Conn. Mar.22, 2005) (no

special relationship where defendant did not limit

plaintiff’s freedom of movement or ability to act on her

own behalf). For the same reason, other circuit courts

have held that there is no special relationship where

the plaintiff “voluntarily agreed to serve as a confidential

informant.” Summar v. Bennett, 157 F.3d 1054, 1059 (6th

Cir.1998); see also Dykema v. Skoumal, 261 F3d 701,

704 (7th Cir.2001) (hoiding that informant did not fall

30a

Appendix B

within special-relationship exception or any other

exception to DeShaney). Although one district court has

held that a special relationship existed between a CI

and the police, who had stopped providing protection

despite an agreement to do so, see G-69 v. Degnan,

745 F.Supp. 254, 265 (D.N.J.1990), that decision has not

been followed. See Summar, 157 F:'3d at 1059 (referring

to G-69 as a “renegade decision”).

Here, there is nothing to suggest that Matican was

not free to decline becoming a CI; therefore, he does

not fit within the special relationship exception to

DeShaney.

b. State-Created Danger

Matican contends that the state-created danger

exception applies because the officers increased the

likelihood that he would be attacked by handling the

sting operation in such a way that Delvalle knew (or at

least surmised) that Matican was responsible for his

arrest, and by then failing to follow up on—and inform

Matican of—Delvalle’s violent nature and release from

jail. As the Second Circuit recognized in Pena, “the term

‘state-created danger’ can refer to a wide range of

disparate fact patterns,” 432 F.3d at 108; the issue is

whether the particular fact pattern presented here—

namely, the execution of the sting operation in a way

that compromised Matican’s identity—amounts to a

state-created danger.

3la

Appendix B

In Pena, the Second Circuit noted in dicta that

“{olur distinction between [the two exceptions to

DeShaney] suggests that ‘special relationship’ liability

arises from the relationship between the state and a

particular victim, whereas ‘state created danger’ liability

arises from the relationship between the state and the

private assailant,” 432 F.3d at 109; here, there is no

evidence of a relationship between the officers and

Delvalle. The Court, however, takes this aspect of Pena

simply as a passing recognition that many of the circuit’s

prior state-created danger cases involved a connection

between the governmental actor and the private

assailant. The Court does not read Pena as establishing

such a relationship as a sine qua non of state-created

danger liability; governmental actors may put an

individual in harm’s way even in the absence of a

connection to a private assailant, and the present case

is an example. See also Kneipp v. Tedder, 95 F.3d 1199,

1208-09 (3d Cir.1996) (holding that police officer created

danger by directing husband to drive home while leaving

visibly intoxicated wife to walk home unescorted in cold

weather). Thus, that there is no evidence of a

relationship between the defendants and Delvalle is of

no consequence.

Another aspect of Pena provides more significant

guidance. Pena reiterates that the state-created danger

exception applies only when the governmental actor’s

conduct can be fairly characterized as “affirmative,” as

opposed to “passive.” /d. at 109 (“In applying our ‘state

created danger’ principle, we have sought to tread a

fine line between conduct that is ‘passive’ as in

32a

Appendix B

DeShaney and that which is ‘affirmative’ as in Dwares.”).

Thus, the court held in Pena that encouraging excessive

drinking of alcohol on and off duty was sufficiently

“affirmative” to trigger the exception, but was careful

to point out that simply failing to intercede or punish

misconduct would not have been. See 432 F.3d at

110-11.

The circuit’s other state-created danger cases bear

out the active-passive dichotomy. In Dwares, for

example, the court held that the exception applied

because the plaintiff alleged that police officers had told

a group of skinheads planning to assault a groups of

protesters burning the American flag “that unless they

got completely out of control the police would neither

interfere with their assaults nor arrest them.” 985 F.2d

at 97. Similarly, the court applied the exception in

Hemphill v. Schott, 141 F.3d 412 (2d Cir.1998), in which

the plaintiff, a robbery suspect who had been shot by

his victim, alleged that police officers had “aided and

abetted” the shooting by allowing the victim, a retired

police officer, to accompany them in their pursuit of the

plaintiff and by providing the victim with a handgun.

See id. at 418-20. By contrast, in Pitchell v. Callan,

13 F.3d 545 (2d Cir.1994), the court held that the

exception did not apply when an off-duty police officer

did not stop another off-duty officer from shooting a

houseguest. See id. at 549; accord Clarke, 312 F.'Supp.2d

at 290 (declining to apply the exception to failure to

provide police protection to witnesses of murder because

“there is nothing in the record indicating that [the police

chief] or any of his subordinates encouraged the

33a

Appendix B

[murderers] in any way or affirmatively permitted them

to victimize [the witnesses]”).

If Matican claimed only that the officers had failed

to follow up on, and apprise him of, Delvalle’s violent

nature and release from jail, his claim would fall squarely

on the “passive” side of the line. See Pena, 432 F.3d at

110 (“Under DeShaney, ‘allegations that the defendant

officers merely stood by and did nothing’ are insufficient

to state a constitutional violation.” (quoting Dwares, 985

F.2d at 99)). Matican’s claims are not so limited,

however; he also claims that the officers executed the

sting operation in such a way that Delvalle learned that

Matican had set him up. Such conduct falls on the

“affirmative” side of the line because, taking the facts

in the light most favorable to Matican, it “assisted in

creating or increasing the danger to the victim.” Dwares,

985 F.2d at 99; cf Kallstrom v. City of Columbus,

136 F-3d 1055, 1067 (6th Cir.1998) (applying state-created

danger exception to city’s release of undercover officers’

personal information to counsel for drug conspirators).

c. “Shock the Conscience”

Although the officers’ handling of the sting

operation can be considered a state-created danger, it

does not rise to the level of a substantive due-process

violation because, even taking the facts in the light most

favorable to Matican, their conduct does not “shock the

conscience.” There is no indication that the officers

intentionally exposed Matican to Delvalle’s assault.

Moreover, although the officers had time to plan the

34a

Appendix B

operation, it cannot be concluded that they were

deliberately indifferent to Matican’s safety in making

those plans: They rejected as too risky a direct meeting

between Matican and Delvalle. In addition, they arrived

at a plan whereby Matican would be (and was) kept out

of sight and, to further distance the sting from the drug

buy, used Delvalle’s illegal u-turn as a pretext for

stopping him and searching his car. While Matican

argues that the officers could have done more to insure

his safety (most notably, using fewer cars during the

sting and following up on Delvalle’s bail status), their

failure to do so evinces, at best, negligence, which, as

noted, is “categorically beneath the threshold of

constitutional due process.” Lewis, 523 U.S. at 849, 118

S.Ct. 1708,

2. Qualified Immunity

As the officers did not violate Matican’s substantive

dwe-process rights, his § 1983 claim fails the first step

of the inquiry under Saucier. Even assuming Matican

could make out a constitutional violation, his claim would

fail the second step because the officers would be

entitled to qualified immunity.

Governmental actors are entitled to qualified

immunity “insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

73 L.Ed.2d 396 (1982). “The relevant, dispositive inquiry

in determining whether a right is clearly established is

35a

Appendix B

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, 121 S.Ct. 2151.

For a constitutional right to be clearly established,

there must be binding precedent recognizing it: “Only

Supreme Court and Second Circuit precedent existing

at the time of the alleged violation is relevant in deciding

whether a right is clearly established.” Moore v. Vega,

371 F.3d 110, 114 (2d Cir.2004). Furthermore, the “right

the official is alleged to have violated must have been

‘clearly established’ in a more particularized, and hence

more relevant, sense: The contours of the right must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,

97 L.Ed.2d 523 (1987). “This is not to say that an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful,

but it is to say that in the light of pre-existing law the

unlawfulness must be apparent.” /d.; see also McDonald

v. Haskins, 966 F.2d 292, 293 (7th Cir.1992) (“It would

create perverse incentives indeed if a qualified immunity

defense could succeed against those types of claims that

have not previously arisen because the behavior alleged

is so egregious that no like case is on the books.”).

The existence of the special relationship and state-

created danger exceptions to DeShaney has been clearly

established in the Second Circuit since Ying Jing Gan

and Dwares were decided in 1993; however, that level of

abstraction does not define the exceptions with

36a

Appendix B

adequate specificity to defeat qualified immunity.

Cf Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151 (“[T]here

is no doubt that Graham v. Connor, [490 U.S. 386, 109

S.Ct. 1865 (1989)], clearly establishes the general

proposition that use of force is contrary to the Fourth

Amendment if it is excessive under objective standards

of reasonableness. Yet that is not enough.”). The

questions is rather whether, at the time of the sting

operation in 2001, binding precedent would have

reasonably apprised the officers that their conduct fell

within one of the exceptions.

As noted, neither the Supreme Court nor the

Second Circuit has held that CI status creates a “special

relationship” sufficient to trigger a constitutional duty

to protect the CI from private violence. Similarly,

although the Court is of the opinion that the officers’

alleged actions in this case constituted a “state-created

danger,” there is no binding precedent to put them on

notice that using Matican in a sting operation triggered

a constitutional duty to protect him from private violence

after the operation was concluded. Finally, the Second

Circuit cases holding that the requisite conscience-

shocking standard had been satisfied have uniformly

involved far more egregious behavior, see Pena, 432 F.3d

at 115 (allowing and encouraging police officers to drink

to excess on and off duty); Hemphill, 141 F.3d at 418-20

(facilitating robbery victim’s ability to shoot robber);

Dwares, 985 F.2d at 94 (agreeing not to interfere with

skinheads’ assault on protesters); nothing in those cases

would suggest to a reasonable police officer that the

officers’ handling of the sting operation approached this

37a

Appendix B

level of fault. Moreover, the officers’ conduct is not the

type that is obviously unlawful even in the absence of

case law.

For these reasons, the officers’ constitutional

obligations to Matican were not, in the circumstances

and at the appropriate level of specificity, “clearly

established”; therefore, even if Matican had established

a constitutional violation, the officers would be entitled

to qualified immunity.

B. § 1983 Claim Against the City

Although “Congress did not intend municipalities

to be held liable [under § 1983] unless action pursuant

to official municipal policy of some nature caused a

constitutional tort,” Monell v. Department of Soc. Servs.,

436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),

“when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy,

inflicts the injury[,] the government as an entity is

responsible under Section 1983.” Jd. at 694, 98 S.Ct.

2018. Matican argues that the City is liable under

Monell because it failed to adequately train its police

officers to protect CIs; however, Matican’s failure to

establish that the officers violated his constitutional

rights is fatal to his Monell claim in two ways.

First, where a Monell claim is based solely on the

actions of a municipality’s officers, municipal liability

cannot exist if the individual defendants have not

38a

Appendix B

violated the plaintiff’s constitutional rights. See City of

Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571,

89 L.Ed.2d 806 (1986) (“[NJeither Monell . . . nor any

other of our cases authorizes the award of damages

against a municipal corporation based on the actions of

one of its officers when in fact the jury has concluded

that the officer inflicted no constitutional harm.”). The

Court notes that the Second Circuit has cautioned that

Heller does not apply where “the injuries complained of

are not solely attributable to the actions of named

individual defendants.” Barrett v. Orange County

Human Rights Comm’n, 194 F.3d 341, 350 (2d Cir.1999).

In Barrett, for example, the court held that a county’s

human rights commission could be held liable for

retaliatory discharge even if individual commissioners

were found not liable because the commission itself had

made the termination decision. See 2d. at 350. It is clear,

however, that Heller’s principal holding applies to failure-

to-train claims because a municipality’s failure to train

its officers is only actionable if the failure results in

constitutional violations by individual officers. See Curley

v. Village of Suffern, 268 F.3d 65, 71 (2d Cir.2001)

(“Following Heller, we have recognized that a

municipality cannot be liable for inadequate training or

supervision when the officers involved in making an

arrest did not violate the plaintiff’s constitutional

rights.”). Since the officers did not violate Matican’s

constitutional rights, Heller bars his failure-to-train

claim against the City.

Second, to give rise to liability under Monell, a

municipality’s failure to train its officers must amount

39a

Appendix B

to “deliberate indifference to the constitutional rights

of [its] citizens.” Walker v. City of New York, 974 F.2d

293, 297 (2d Cir.1998). In Walker, the Second Circuit set

out three criteria for meeting this standard:

First, the plaintiff must show that a

policymaker knows to a moral certainty that

her employees will confront a given situation

.... Second, the plaintiff must show 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. . . . Finally, the plaintiff must

show that the wrong choice by the city

employee will frequently cause the deprivation

of a citizen’s constitutional rights.

Id. at 297-98 (citations and internal quotation marks

omitted).

Even assuming that Matican can satisfy the first two

prongs of Walker, his failure to show that the officers

violated his constitutional rights means he cannot satisfy

the third; that is, he cannot demonstrate that lack of

training caused the deprivation of his constitutional

rights because no such deprivation occurred in the first

place. Thus, Matican cannot establish that the City’s

alleged failure to train its officers constituted deliberate

indifference to his constitutional rights.

40a

Appendix B

C. State-Law Claim

The Court has jurisdiction over Matican’s state-law

negligence claim by virtue of 28 U.S.C. § 1367(a), which

provides that “the district. courts shall have

supplemental jurisdiction over all other claims that are

so related to claims in the action within such original

jurisdiction that they form part of the same case or

controversy under Article III of the United States

Constitution.” Under 28 U.S.C. § 1367(c), however, a

district court “may decline to exercise supplemental

jurisdiction” if, among other circumstances, “the district

court has dismissed all claims over which it has original

jurisdiction.” As the Court noted in Drake v. Laboratory

Corporation of America Holdings, 323 FSupp.2d 449

(E.D.N.Y.2004), the Second Circuit has set forth several

factors to be considered when deciding whether to

exercise supplemental jurisdiction: “(1) whether state

law claims ‘implicate [ ] the doctrine of preemption,’.. .

(2) ‘judicial economy, convenience, fairness, and comity,’

.. . (3) the existence of ‘novel or unresolved questions

of state law,’ . . . (4) whether state law claims ‘concern

the state’s interest in the administration of its

government.’ ” Jd. at 452 (quoting Valencia ex rel.

Franco v. Lee, 316 F:3d 299, 306 (2d Cir.2003)).

Where, as here, all federal claims have been

eliminated before trial, concerns of judicial economy,

convenience, fairness and comity usually “point toward

declining to exercise jurisdiction over the remaining

state-law claims.” Valencia, 316 F.3d at 305. Moreover,

although Matican’s negligence claim dves not appear

4la

Appendix B

to raise any unsettled issues of state law, the issue of

municipal tort liability is the type of “fundamental and

complex question [ ] involving the balancing of important

policies of state government” that should normally be

left to state courts to adjudicate. /d. at 308. As there is

no issue of federal preemption or other concern

counterbalancing these factors, the Court declines to

exercise supplemental jurisdiction over Matican’s state-

law claim.

CONCLUSION

With regard to Matican’s § 1983 claims, the

defendants’ motion for summary judgment is granted

and those claims are dismissed with prejudice. Matican’s

state-law claim is dismissed without prejudice.‘

SO ORDERED.

4. Dismissal of Matican’s state-law claim creates no statute

of limitations issue. Under 28 U.S.C. § 1367(d), “[t]he period of

limitations for any claim [for which supplemental jurisdiction

is invoked]. . . shall be tolled while the claim is pending and for

a period of 30 days after it is dismissed unless State law provides

for a longer tolling period.” See also Jinks v. Richland County,

538 U.S. 456, 461-65, 123 S.Ct. 1667, 155 L.Ed.2d 631 (upholding

§ 1367(d) as constitutional both facially and as applied to

politica] subdivisions of states).

42a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DENYING PETITION FOR PANEL REHEARING

DATED AND FILED JUNE 26, 2008

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Court House

40 Foley Square, New York, N.Y. 10007

Catherine O’Hagan Wolfe

CLERK OF COURT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500 Pearl

Street, in the City of New York, on the 26th day of June

two thousand and eight,

ORDER

No. 06-1983-cv

Robert Matican,

Plaintiff-Appellant,

Vv

City of New York, John Schneider, Julio C. Ordonez

and Chris Zimmerman,

Defendants-Appellees.

43a

Appendix C

Appellant Robert Matican having filed a petition for

panel rehearing, or, in the alternative, for rehearing en

banc, and the panel that determined the appeal having

considered the request for panel rehearing, and the

active members of the Court having considered the

request for rehearing en banc,

IT IS HEREBY ORDERED that the petition is

denied.

For the Court:

Catherine O’ Hagan Wolfe, Clerk

By: s/ Frank Perez

Frank Perez, Deputy Clerk