13‐160‐cv
Lieberman, et al. v. County of Monroe, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 7th day of March, two thousand fourteen.
PRESENT: RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges
RONNIE ABRAMS,*
District Judge.
______________________
JOSH LIEBERMAN, MEGAN BARRETT,
CHRSTINE HERRICK, DAVE GREENLAWN, and
ALEXANDER TERRANCE,
Plaintiffs‐Appellants,
‐v.‐ No. 13‐160‐cv
CITY OF ROCHESTER, DAVID T.
MOORE, In his Official and Individual
Capacities, TORTORO, In his Official and
*
The Honorable Judge Ronnie Abrams, of the United States District Court for the Southern District of New York,
sitting by designation.
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Individual Capacities, SHAW, WARD,
MACFALL, In his Official and Individual
Capacities, YODICE,
Defendants‐Appellants,
COUNTY OF MONROE, UNNAMED DEPUTY(S)
OF THE MONROE COUNTY SHERIFF’S
DEPARTMENT, PATRICK O’FLYNN, SHERIFF OF
THE MONROE COUNTY SHERIFF’S DEPARTMENT,
In his Individual and Official Capacities,
Defendants.
______________________
FOR APPELLANTS: Christina A. Agola, Christina Agola PLLC, Rochester,
NY.
FOR APPELLEES: Robert J. Bergin, Corporation Counsel; John M.
Campolieto of counsel, Rochester, NY.
Appeal from the United States District Court for the Western District of
New York (David G. Larimer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment is AFFIRMED.
Josh Lieberman, Megan Barrett, Christine Herrick, and Dave Greenlawn
appeal from a April 29, 2011 Decision and Order of the United States District
Court for the Western District of New York (David G. Larimer, Judge) granting a
motion for judgment on the pleadings in favor of defendants and dismissing all
of Plaintiffs‐Appellants’ claims, except for Alexander Terrance’s excessive force
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claim against Officer MacFall.1 The remaining Plaintiffs appeal the district
court’s judgment as to their claims alleging denial of equal protection, excessive
force, and municipal liability under 42 U.S.C. § 1983, as well as claims for assault
and battery, and intentional and negligent infliction of emotional harm under
New York State Law. We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues for review.
The complaint alleges that Plaintiffs were denied their right to equal
protection on the basis of their actual or perceived sexual orientation and on the
basis of their sex. Additionally they allege that each Plaintiff was discriminated
against as a “class of one.” On appeal, Plaintiffs press only their “class of one”
theory. “Class‐of‐one plaintiffs must show an extremely high degree of
similarity between themselves and the persons to whom they compare
themselves.” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.
2010) (internal citations and emendations omitted). We have held that “to
succeed on a class‐of‐one claim, a plaintiff must establish that (i) no rational
person could regard the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential treatment on the basis
1
On December 10, 2012, Terrance stipulated to the dismissal of his claims; accordingly, he is no longer part of this
suit and the appeal may proceed.
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of a legitimate government policy; and (ii) the similarity in circumstances and
difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.” Id. at 59‐60. Plaintiffs fail to identify
any comparator that meets this high standard. While the officers’ alleged words
and conduct were less than exemplary, and, if true, would provide evidence of
discriminatory intent, these words alone are insufficient to state an equal
protection claim on a “class of one” theory.
On his excessive force claim under § 1983, Lieberman alleges that one
officer “body slammed” him to the ground, handcuffed him, and put him in a
police car. Our analysis for excessive force claims is “one of objective
reasonableness,” which “requires balancing the nature and quality of the
intrusion on the plaintiff’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Tracy v. Freshwater, 623 F.3d 90,
96 (2d Cir. 2010); see also Graham v. Connor, 490 U.S. 386, 396 (1989). Three
considerations generally guide the Court’s assessment of this balance: “(1) the
nature and severity of the crime leading to the arrest, (2) whether the suspect
poses an immediate threat to the safety of the officer or others, and (3) whether
the suspect was actively resisting arrest or attempting to evade arrest by flight.”
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Tracy, 623 F.3d at 96. Given the volatility of the situation into which the officers
intervened, we conclude that the force allegedly used against Lieberman was
reasonable, and thus Lieberman’s excessive force claim was correctly dismissed
by the district court. See Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
The district court also properly dismissed Plaintiffs’ Monell claim. To
prevail on this claim, Plaintiffs must establish that they suffered a constitutional
violation and that the violation resulted from an identified municipal “policy,”
“custom,” or “practice.” Monell v. Depʹt of Soc. Servs., 436 U.S. 658, 691 (1978).
Monell also recognizes liability where “a municipality’s failure to train its
employees . . . amount[s] to deliberate indifference to the rights of persons with
whom the untrained employees come into contact.” Connick v. Thompson, 131 S.
Ct. 1350, 1359 (2011) (internal quotation marks and alterations omitted).
Plaintiffs fail to establish that the individual defendants’ actions were the
result of any policy or failure to train, or that any of the individual defendants
exercised policymaking authority such that this single episode could possibly be
attributed to the municipal authority.
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We have considered all of Plaintiffs’ remaining arguments and find them
to be without merit. For the reasons stated above, the judgment of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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