excessive force: 1) repeatedly refusing to discipline the two officers in question, 2) retaining those officers on the police force knowing that they are dangerous. In support of both theories, Plaintiff relies on one prior complaint of brutality filed with Internal Affairs against each officer. In each case, the officer involved was interviewed by Internal Affairs but was never disciplined as a result of the complaint. Preik Dep. at pp 22-23; Pupinski Dep. p. 13. Neither officer has ever had a complaint filed against him with his supervisor.
The Internal Affairs complaint filed against Officer Pupinski, although it involves allegations of use of excessive force, is factually very different from the incident upon which Plaintiff's action is based. The earlier incident occurred while Officer Pupinski was guarding a prisoner already in custody. When four of the prisoner's relatives attempted to help him leave the hospital in which he was being treated for a prior injury, Officer Pupinski had to physically restrain the man. Pupinski Dep., p. 15.
Plaintiff has not offered any further details regarding either complaint, nor has he offered any information generally about the City's record of following up on complaints alleging use of excessive force on other officers who may have been disciplined for such behavior. Since we have no indication of what, if any, information or testimony was received in addition to the officer's own report or what action was taken on the previous complaints filed against Officers Preik and Pupinski, it is impossible to determine whether the officers were in fact guilty of using excessive force in those instances. Likewise, it is impossible to determine whether the City can be said to have tacitly condoned whatever did occur without information on how these complaints were processed and resolved.
Prior incidents of abusive behavior can establish a policy or custom if Plaintiff presents evidence showing that the City has acceded to that behavior. See, e.g. Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981) (40 separate instances of police misconduct brought to attention of supervisor during public hearing but no subsequent action taken by supervisors). However, proving that the prior incidents and the present alleged misconduct occurred, let alone that the city acceded to that misconduct, can be difficult. Grandstaff, 767 F.2d at 171 (citing Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984) (en banc)).
Isolated events will not establish a pattern of abusive behavior. Ramie v. City of Hedwig Village, 765 F.2d 490, 493-94 (5th Cir. 1985). See also, Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985), cert. denied, 474 U.S. 1100, 88 L. Ed. 2d 916, 106 S. Ct. 879 (1986); Languirand v. Hayden, 717 F.2d 220, 229 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2656, 81 L. Ed. 2d 363 (1984); Berry v. McLemore, 670 F.2d 30, 32 (5th Cir. 1982). Neither will mere recitation of the number of complaints filed suffice to prove a policy or custom. A plaintiff must show why those prior incidents deserved discipline and how the misconduct in those cases is similar to that involved in the present action. Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir. 1985) (requiring that facts indicating a policy or custom appear in the complaint). But see, Payne v. City of LaSalle, 610 F. Supp. 607, 609 (N.D. Ill. 1985) (following Strauss but criticizing its holding as placing plaintiffs in a proverbial catch 22 situation).
The Plaintiff in this action alleges that the officers in question used excessive force during his arrest and on two previous occasions, one of which did not involve an arrest. He does not allege any facts indicating that the prior incidents actually involved use of excessive force or that the City failed to thoroughly investigate those complaints. Both officers Pupinski and Preik state that they were required to respond to Internal Affairs about the incidents raised in the Complaints. Allowing an inference that, because neither officer received discipline as a result of his only prior complaint, the City has tacitly authorized the use of excessive force would be absurd. Certainly, we can not assume that each complaint filed by an individual who has been arrested against his will presents a valid allegation of police misconduct. Likewise, we can not conclude that two previous complaints alleging use of excessive force represent the type of widespread abuse contemplated in Monell. 436 U.S. at 690-91.
For the record, we note that the Court of Appeals for the Third Circuit has recognized liability under § 1983 for a policy of encouraging use of excessive force by police officers. In Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 71 L. Ed. 2d 876, 102 S. Ct. 1646 (1982), reh'g denied, 456 U.S. 950, 72 L. Ed. 2d 475, 102 S. Ct. 2022 (1982), the majority upheld a jury verdict against the police chief and the City but conceded that the evidence was not overwhelming. 662 F.2d at 189-90. The court relied primarily on the promulgation of a regulation which it believed encouraged officers to use excessive force and a policy which insured that no citizens' complaints would ever be placed in an officer's personal file. Id. As pointed out by the dissenting opinion, the majority recognized that use of excessive force could not be shown by insulated incidents. Id. at 199 (Garth, J). Thus, the majority mentions only in a footnote that the officer in question had two previous abusive behavior complaints which apparently had gone uninvestigated. Id., at 191 n.9. We believe Black supports rather than contradicts our holding in the present case.
Viewing the facts before us in the light most favorable to the Plaintiff, we see no genuine issues regarding the establishment of a permanent and well settled policy or custom under which the city can be held liable for violating § 1983. Thus, summary judgment will be entered in favor of City in the above-captioned action. An appropriate order will follow.
AND NOW, to-wit, this 3rd day of January, 1986, for the reasons stated in the accompanying opinion, it is hereby ORDERED, ADJUDGED and DECREED that Defendant, the City of Pittsburgh Motion for Summary Judgment be and hereby is GRANTED.
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