by Officer Oswald cannot bind the municipality.
As noted, the exercise of discretion, "without more", does not bind a municipality. The question is whether Chief Conjour did "more" than exercise his discretion. More specifically, assuming that Chief Conjour is a municipal policy-maker, does his subsequent review and alleged ratification of Officer Oswald's actions represent the kind of conscious, reasoned decision-making necessary to establish municipal policy?
We conclude that Conjour's post hoc approval of Oswald's conduct is not sufficient to render Whitehall Township liable for any constitutional violations which the officer may have committed. In Chinchello v. Fenton, et al., No. 85-0027, slip op. at 14 (3d Cir. Nov. 14, 1986), the Court of Appeals reiterated that according to its interpretation of Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), supervisory public officials do not have, "an affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by . . . subordinates".
Failure to properly train police officers is the basis of plaintiff's complaint against Whitehall Township. It follows that if a supervisory official, even one who may be considered a municipal policy-maker, cannot himself be liable for failure to train and/or discipline a subordinate, his failure to act cannot render the municipality liable for a constitutional violation. Consequently, we will grant summary judgment in favor of Whitehall Township as to liability as well as punitive damages.
In summary, we will grant defendants' motion for summary judgment with respect to the alleged violations of plaintiff's Second, Fourth, Sixth and Eighth Amendment rights, noting that the allegations which purport to support a claim for a violation of the Eighth Amendment may be tried as violations of due process rights under the Fourteenth Amendment. Defendants' motion for summary judgment with respect to the claims against Whitehall Township will also be granted. In all other respects, the motion for summary judgment will be denied.
AND NOW, this 14th day of January, 1987, upon consideration of defendants' motion for summary judgment and plaintiff's response thereto, IT IS ORDERED that the motion is GRANTED as to allegations that defendants violated plaintiff's rights secured by the Second, Fourth, Sixth and Eighth Amendments and as to plaintiff's claims against Whitehall Township.
IT IS FURTHER ORDERED that judgment is entered in favor of Whitehall Township only, and against the plaintiff.
IT IS FURTHER ORDERED that in all other respects the motion is DENIED.
E. MAC TROUTMAN, S.J.