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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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.

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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,

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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

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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.

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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

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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)).

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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

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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).

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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.

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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)

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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).

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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.

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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)

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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

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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

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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.

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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.

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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

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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

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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.

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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.

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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.

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0248%3A2. Public record. Not legal advice.