judgment. Plaintiff alleges that these defendants (Municipal defendants) instituted de facto policies wherein police officers use excessive force, are improperly trained, supervised, equipped and disciplined, maliciously prosecute victims of excessive force to create the appearance of justification for the unlawful force used by police officers and cover up police misconduct with a sham proceeding before a board made up of fellow officers. Complaint at paras. 53-64. Plaintiff further alleges that the policies, acts and omissions of the Municipal defendants have deprived him of rights, privileges and immunities.
"While supervising public officials may not in any way authorize, encourage, or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct." Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Thus, in order to hold the Municipal defendants liable under § 1983, plaintiff is "required to establish either (1) the existence of an officially promulgated authority, or (2) that the practices of city officials causing the alleged deprivation were so permanent and well-settled as to have the force of law." Anela v. City Wildwood, 790 F.2d 1063, 1066 (3d Cir. 1986).
Coll and Caliguiri admit that they are policy makers for the City of Pittsburgh under Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). However, they argue that plaintiff has failed to establish that a policy does in fact exist. We agree. Plaintiff's complaint sets forth no factual allegations to support the claim that a de facto policy exists. Paragraphs 53 through 64 are mere conclusions wholly lacking in factual support. As such, plaintiff's allegations cannot survive the motion of the Municipal defendants for summary judgment.
We note that even if plaintiff had established the existence of a policy or custom, the complaint could not withstand the Municipal defendant's motion for summary judgment, for "only if there is a plausible nexus between the policy or established state procedure and the infringement of constitutional rights can a § 1983 action be maintained." Estate of Bailey v. County of York, 768 F.2d 503, 507 (3d Cir. 1985).
Plaintiff argues that Coll and Caliguiri should have ordered the Trial Board to reconvene and hear the charges against Horton again. Even if we find that Coll and Caliguiri should have ordered a reconvening of the Trial Board, however, their failure to do so was mere negligence. Mere negligence will not suffice to sustain a § 1983 claim. "The guarantee of due process has never been understood to mean that the State must guarantee due care on the part of its officials." Davidson v. Cannon, 474 U.S. 344, 348, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). Mere lack of due care by a state official may not deprive an individual of life, liberty or property under the 14th Amendment. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).
We hold that there is no genuine issue of material fact with regard to the allegations involving Coll, Caliguiri and the City of Pittsburgh. We shall enter summary judgment in their favor and accordingly deny the motion of plaintiff for summary judgment against them.
A written order will follow.
ORDER OF COURT
AND NOW, this 6th day of August, 1987, IT IS ORDERED that the motions of defendants, Joseph Wind, Lawrence Morgan, William Kaufman, Robert J. Coll, Jr., Richard S. Caliguiri and the City of Pittsburgh, for summary judgment be and hereby are granted;
IT IS FURTHER ORDERED that the motions of defendants, Edward E. Horton, William H. Freiss and Albert W. Parente, be and hereby are denied;
IT IS FURTHER ORDERED that the motion of plaintiff, David Werry, for summary judgment against defendants Robert J. Coll, Jr., Richard S. Caliguiri and the City of Pittsburgh be and hereby is denied.
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