Full opinion text
ORDER JAMES C. FOX, District Judge. Plaintiff, Henry Spell, initiated this action pursuant to 42 U.S.C. § 1983 by complaint filed January 26, 1984. Plaintiff seeks compensatory and punitive damages for injuries allegedly caused by police misconduct. Spell predicates his action on a deprivation of his constitutional rights substantively secured by the Fourth, Eighth and Fourteenth Amendments. Jurisdiction is based upon 28 U.S.C. § 1331 and § 1343. Named as defendants are Charles McDaniel, the allegedly culpable individual officer of the City of Fayetteville Police Department, who directly inflicted the injuries upon plaintiff; William Dalton and Roger Holman, Command Sergeants within the City of Fayetteville Police Department and alleged supervisory officials in this action; William Johnson, officer in command of the Internal Affairs Division of the City of Fayetteville Police Department, charged with the duty of investigating allegations of police misconduct; Daniel K. Dixon, Chief of the Fayetteville Police Department; John P. Smith, City Manager of the City of Fayetteville with general supervisory power and responsibility over the previously named defendants; and, the City of Fayetteville, North Carolina. All defendants, except McDaniel, are sued solely in their official capacity. There are a number of outstanding motions before the court. Defendant McDaniel has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (b)(2) and (b)(6); Plaintiff has moved to amend his complaint to clarify his charge against the City of Fayetteville; defendants Dalton, Holman, Johnson, Dixon, Smith and the City of Fayetteville have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (b)(2) and (b)(6); defendants Holman and Johnson have filed a motion for summary judgment; plaintiff has filed a 12(f) motion to strike defendants’ affirmative defenses; defendant City of Fayetteville has filed a motion to strike plaintiff’s prayer for punitive damages; and plaintiff has filed a motion to compel defendants to comply with plaintiff’s request for production of documents, to which defendants have objected and moved for a protective order. The parties have extensively briefed the relevant issues and these matters are now ripe for disposition. Before the court proceeds to address these contentions, some further description of the allegations in the complaint is in order as a preface to the discussions which follow. In this description as well as in the subsequent discussions, excepting only the discussions of jurisdictional issues and plaintiff’s motion to strike, the court accepts the allegations of the complaint as true, as the law requires it to do. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nothing herein should be taken as indicating any view on the validity of the allegations of plaintiff’s complaint. Plaintiff alleges, with particularity, that on November 19, 1983, he was arrested by Officer McDaniel in Fayetteville for driving while impaired and possession of a controlled substance. McDaniel transported Spell to the Law Enforcement Center (LEC) for breathalyzer testing and arrest procedures. A breathalyzer examination was conducted before another Fayetteville police official, as required by North Carolina law. Upon completion of the examination, plaintiff was removed from the breathalyzer area in the basement of the LEC to the City Police Assembly Room whereupon McDaniel, without justification, assaulted Spell by repeatedly striking him with his hands and by kneeing him in the testicles with such force that plaintiff suffered permanent loss of his right testicle. Spell has been rendered irreversibly sterile as a result of McDaniel’s actions. Plaintiff further alleges that McDaniel’s actions were in furtherance of and under color of the official policy, practice, custom and procedure of the City of Fayetteville. In detail and with precision, plaintiff sets forth the following allegations against the remaining defendants: (1) . Defendants had knowledge, prior to this incident, of repeated allegations of police abuse and assaultive misconduct toward detainees and arrestees; (2) . defendants had prior knowledge of similar allegations of abuse against defendant McDaniel and refused to enforce established administrative procedures to insure the safety of detainees and arrestees; (3) . defendants established and enforced quota systems for arrests and citations thereby encouraging unlawful, and, at times, abusive arrests and detentions; (4) . defendants refused to discipline individual officers and employees found to have committed similar acts of abuse and misconduct; (5) . defendants refused to competently investigate allegations of abuse and assault alleged to have been committed by Fayetteville police officers; (6) . defendants reprimanded, threatened, intimidated, demoted and fired police officers who reported acts of abuse by other officers; (7) . defendants covered up acts of misconduct and abuse by police officers; (8) . defendants rewarded officers who displayed aggressive and abusive behavior towards detainees and arrestees; (9) . defendants failed to adequately train and educate officers in the use of reasonable and proper force. (10) . defendants failed to adequately supervise the actions of police officers under their control and supervision; (11) . defendants condoned and participated in the practice of reducing or dismissing criminal charges against individuals in return for their releasing from civil liability offending police officers; and (12) . defendants fostered and encouraged an atmosphere of lawlessness, abuse and misconduct, which, by November 19, 1983, represented the policy, practice, custom and procedure of the Fayetteville City Police Department. Plaintiff alleges that the direct and proximate result of defendants’ pattern of conduct, described above, was Officer McDaniel’s assault on November 19, 1983, resulting in plaintiff’s serious and permanent bodily injury and disfigurement. Defendants have answered, emphatically denying all substantive allegations. The court will now proceed to consider ad seriatim all the contentions and motions heretofore summarized. (1). PLAINTIFF’S MOTION TO AMEND Plaintiff has moved the court to amend his complaint to add the words “the defendant, City of Fayetteville, North Carolina” to paragraph XIY of the complaint. The effect of this amendment is to charge the City, along with its previously named representatives, with certain activities which are alleged to have resulted in the creation of an official city policy, custom and practice. Only defendant McDaniel consents to the amendment. The second sentence of Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been filed, as in this case, a party may amend his pleading only by obtaining leave of the court or by consent of the adverse party. The general policy of Rule 15 encourages the court to look favorably on requests to amend. It states that “leave shall be fully given when justice so requires.” Since the function of Rule 15(a) is to enable a party to assert matters that were overlooked or unknown to him at the time he filed his original complaint, leave to amend should be freely granted in the absence of any undue delay, bad faith or dilatory motive. Foreman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Strauss v. Douglas Aircraft Co., 404 F.2d 1152 (2nd Cir.1968). Plaintiff simply seeks to correct an inadvertent omission in Paragraph XIV of the complaint. The motion to amend comes at a very early state of the proceedings. Defendants do not contend undue delay, bad faith or dilatory motive exists on the part of the plaintiff. Defendants do opine that the amendment would cause them substantial prejudice, however, they are unable to articulate any factual basis to support the eonclusory claim of prejudice. The City of Fayetteville is a named defendant and clearly on notice of the allegations contained in plaintiffs complaint. The City is listed in virtually every substantive paragraph in the twenty paragraph complaint. The court finds the City of Fayetteville will not be prejudiced by plaintiffs amendment to paragraph XIV. Therefore, plaintiffs motion to amend is ALLOWED and counsel for plaintiff has five (5) days from the date of service of this order in which to file plaintiffs amended complaint with the court. (2). DEFENDANT McDANIEL’S MOTION TO DISMISS DEFENDANT McDaniel has moved the court to dismiss this action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Defendant argues (1) lack of jurisdiction over the person; (2) lack of jurisdiction over the subject matter; (3) plaintiff’s complaint is eonclusory and lacks sufficient factual allegations to support a claim for relief; and (4) plaintiff has stated no claim cognizable under § 1983. Defendant’s 12(b)(1) motion alleging lack of in personam jurisdiction is DENIED, as it is apparent on the face of the pleadings that both the controversy and the defendant have sufficient contacts with this forum to give the court the right to exercise judicial power over defendant McDaniel. Defendant’s 12(b)(2) motion alleging lack of subject matter jurisdiction is also DENIED, as 28 U.S.C. § 1331 and § 1343 have long been recognized as the jurisdictional counterparts to 42 U.S.C. § 1983 actions brought under the Constitution. In addition, defendant’s motion to dismiss alleging that plaintiff’s complaint is eonclusory is wholly without merit and is DENIED. Plaintiff’s complaint is replete with factual allegations supporting well-articulated legal theories and certainly is sufficient under Rule 8(a) of the Federal Rules of Civil Procedure. By contrast, however, defendant’s 12(b)(6) motion to dismiss raises numerous complex and intricate questions of law with which this court has struggled before reaching its final decision. Officer McDaniel asserts that the factual allegations in the complaint state no claim of deprivation under the Fourth, Eighth and Fourteenth Amendments. Defendant further contends that the allegations at best amount to mere tortious conduct for assault and battery, which form an insufficient predicate for a § 1983 suit. Finally, McDaniel implicitly argues that in light of Parratt v. Taylor, 451 U.S. 527,101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Spell has shown no actionable constitutional violation under § 1983. The issues raised in this motion admit of no easy solution. The court is very aware of its special role in applying the law as established by Congress, the Supreme Court and the Courts of Appeals. Its duty and obligation is to attempt to clearly perceive what the law is at any particular moment on a specific issue, and once clearly perceived, to honestly, fairly and forthrightly apply that law irrespective of its own view of whether the law is correct or incorrect. Federal district courts simply do not have the right to disregard the pronouncements of the Courts of Appeals for the circuits in which they sit, nor the unambiguous pronouncements of the Supreme Court. It is generally not the duty of this court to make law, rather it is to follow the law. However, given the confusion that exists at all levels of the law governing § 1983 actions, neither trial judges nor lawyers are given any simple or per se rules to follow in deciding whether a set of facts states an actionable constitutional deprivation under 42 U.S.C. § 1983. As a means of deciding this case and other similar cases, this court must create, and hereby establishes, a comprehensive analytical framework for making the required differentiation between common-law torts and cognizable constitutional deprivations. After a careful review of the case law and consideration of the problem, the court will now apply what it perceives to be the law to the facts of this case. To prevail in a civil rights action under § 1983, a plaintiff must establish two elements: (1) that the defendant deprived him of a right secured by the Constitution or laws of the United States and (2) that such deprivation was committed by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). There is no issue in this litigation regarding the second element—any deprivation that occurred was committed by defendants acting under color of state law. The initial focus of the court’s inquiry is whether plaintiff has been deprived of any right secured by the Constitution and laws of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). The court begins its analysis with some observations about § 1983. Originally enacted as § 1 of the Civil Rights Act of 1871, § 1983 declares Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. The legislative history reveals that § 1983 was modeled on § 2 of the Civil Rights Act of 1866 and was enacted for the express purpose of enforcing the provisions of the Fourteenth Amendment. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Congress sought to protect constitutional rights and wipe out Ku Klux Klan violence in the southern states. The extensive and emotional debates in Congress waxed eloquent on the failure to protect individuals’ civil rights. Webster v. City of Houston, 689 F.2d 1220 (5th Cir.1982). Representative Perry cried “Sheriffs, having eyes to see, see not; judges having ears to hear, hear not...” Cong.Globe, 42d Cong.; 1st Sess. 447 (1871). And Representative Hoar focusing on the purpose of the legislation stated: The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties. The question is not whether the majority of the people in every State are not likely to desire to secure their own rights. It is, whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own, as to insure that under no temptation of party spirit, under no political excitement, under no jealousy of race or caste, will the majority either in numbers or strength in any State seek to deprive the remainder of the population of their civil rights.” Id. at 334-35, quoted in Monroe v. Pape, 365 U.S. at 182, 81 S.Ct. at 481. The legislation was more than simply remedial. It was a sweeping measure designed to combat widespread deprivation of constitutional rights and state-sanctioned violence. Section 1 of the Act, was aimed at redressing “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). In both Houses, statements of the supporters of § 1 provide clear evidence of the Congressional intent to enact § 1 as a broad remedy for the violations of federally protected civil rights. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Section 1 of the Act was meant to provide, and unquestionably as codified in 42 U.S.C. § 1983 does provide, the means for enforcing substantive constitutional rights in federal court. However, § 1983 imposes liability solely for violations of rights protected by the Constitution and federal law, not for violations arising simply out of state tort law principles. While § 1983 claims may frequently constitute “a species of tort liability,” Imbler v. Pachtman. 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976), the court has warned that § 1983 is not “a font of tort law to be superimposed upon whatever systems may already be administered by the states.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). Section 1983 does not automatically convert potential tort liability under state law into tort liability under federal law whenever the alleged tortfeaser is the state. Just as “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 285, assault and battery do not become violations of the Fourteenth Amendment merely because the defendant is a city police officer. See, e.g., Baker v. McCollan, (“false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official”); Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980) (“not every injury in which a state official has played some part is actionable under [§ 1983]”); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980) (not every violation of state tort and criminal assault laws is a violation of substantive due process). Thus, while some conduct may clearly violate state tort law, it may not rise to the dimensions of constitutional injury. The proper remedy in those instances is a suit in state court under traditional tort principles. Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.1982). The issue facing this court is whether plaintiff’s allegations of tortious conduct result from “the sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.” Turpin v. Mailet, 579 F.2d 152,169 (2nd Cir.1978) (concurring opinion), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978), quoting Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976). See also Williams v. Kelley, 624 F.2d 695 (5th Cir.1980); Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1982); Daniels v. Twin Oaks Nursing Home. In essence, the question simply stated is whether defendants’ conduct was sufficiently egregious so as to be “constitutionally” tortious. Williams v. Kelley, 624 F.2d at 697; Shillingford v. Holmes, 634 F.2d 263 (5th Cir.1981); Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177 (M.D.Tenn.1982). Section 1983 actions premised upon deprivations of a constitutional right fall into two distinct categories. First, there are actions predicated on violations of specific provisions of the Bill of Rights and other substantive guarantees, cognizable by virtue of the particular amendment’s incorporation into the Fourteenth Amendment. See, e.g., Estelle v. Gamble (Eighth Amendment — cruel and unusual punishment); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (Sixth Amendment—interference with attorney-client privilege); Duncan v. Nelson, 466 F.2d 939 (7th Cir.1972) (Fifth Amendment—coerced confession); Monroe v. Pape (Fourth Amendment—unreasonable search and seizure); Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961) (per curiam) (First Amendment—deprivation of speech and assembly). In addition, the due process clause creates certain substantive rights not explicit in the Bill of Rights. See Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973) (right of privacy); Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965) (right of privacy); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to interstate travel). Of critical import in this case are the penumbras surrounding the Fourth and Eighth Amendments which give rise to the right of physical integrity for pretrial detainees. See King v. Blankenship, 636 F.2d 70 (4th Cir.1980); Loe v. Armistead, 582 F.2d 1291 (4th Cir.1978), cert. denied sub nom. Moffitt v. Loe, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281 (1980); Bellows v. Dainack, 555 F.2d 1105 (2nd Cir.1977). All of these implicit and fundamental rights are centered in the nebulous Fourteenth Amendment concept of substantive due process. The second category of constitutional case is the pure procedural due process claim. See, e.g., Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Plaintiff in this type of action alleges a violation of due process but not based on any substantive constitutional provision. See Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D.Mich.1983). In the case at bar, Spell asserts defendants’ tortious conduct rises to constitutional significance and is therefore cognizable under § 1983 on four independent substantive grounds: (1) the right to be free from the infliction of cruel and unusual punishment as secured by the Eighth Amendment; (2) the right of physical integrity, to be free from unlawful detention and to be properly cared for and treated as secured by the substantive due process provisions of the Fourteenth Amendment; (3) the right to be secure against unreasonable seizures as secured by the Fourth Amendment; and (4) the privilege and immunity to be free from unlawful assault and injury by state officials as guaranteed by the Fourteenth Amendment. Turning first to plaintiff’s Eighth Amendment claim, the court finds that there is no basis for a pure Eighth Amendment claim. The Eighth Amendment does not apply directly because Spell was not serving a sentence of any kind at the time he was assaulted by McDaniel. Henderson v. Counts, 544 F.Supp. 149 (E.D.Va.1982). Spell’s status was clearly that of a pretrial detainee and arrestee. The Constitutional prohibition against cruel and unusual punishment applies only to persons convicted of criminal offenses. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979); Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). It limits the kind of punishment which may be imposed upon conviction, See, e.g., Estelle v. Gamble, prohibits punishment disproportionate to the severity of the offense, See, e.g., Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and places substantive limitations on what acts may be punished under the criminal law, See, e.g., Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Therefore, to the extent plaintiff’s complaint is premised on an Eighth Amendment claim, that claim is hereby DISMISSED. See Johnson v. Glick, 481 F.2d 1028 (2d Cir.1973); Barrier v. Szentmiklosi, 565 F.Supp. at 871. In this case, plaintiff also relies and properly relies on a substantive due process right to physical integrity. Due process requires that a pre-trial detainee not be punished. Bell v. Wolfish, 441 U.S. at 535, n. 16, 99 S.Ct. at 1872. Numerous § 1983 suits have been maintained based upon injury inflicted by police beatings and shootings under the “liberty” provision of the Fourteenth Amendment due process clause. See, e.g., Shillingford v. Holmes; Bellows v. Dainack; Popow v. City of Margate, 476 F.Supp. 1237 (D.N.J.1979); Cook v. City of Miami, 464 F.Supp. 737 (S.D.Fla.1979); Culp v. Devlin, 437 F.Supp. 20 (E.D.Pa.1977). The right to be free of state-occasioned violence and injury to one’s bodily integrity is protected under the Constitution by the substantive guarantees of due process. The Fourth Circuit has specifically recognized this theory of recovery in § 1983 police assault cases. In Mishoe v. Collins, 729 F.2d 1453 (4th Cir.1984), the court stated, ... the due process guarantees of the Fourteenth Amendment include protection from punishment for crime until after conviction by a court of law. Thus, if police act in excess of their lawful authority and beat or inflict corporal injury upon suspects by way of punishment for supposed offenses, their actions are in contravention of due process of law. Screws v. U.S., 325 U.S. 91 [65 S.Ct. 1031, 89 L.Ed. 1495] (1945); Williams v. U.S., 341 U.S. 97 [71 S.Ct. 576, 95 L.Ed. 774] (1951). These rights of individuals secured by the Constitution are protected by the remedy of 42 U.S.C. § 1983. Slip op. at 5-6. See also King v. Blankenship, 636 F.2d 70 (4th Cir.1980) (“[l]est there be any doubt as to the rule in this circuit, we specifically hold that the unjustified striking, beating, or infliction of bodily harm upon a prisoner gives rise to liability under 42 U.S.C. § 1983 on the part of one, who acting under color of state law, engages in such conduct without just cause.”); Jenkins v. Averett, 424 F.2d 1228 (4th Cir.1970). However, in order for liability to attach, the police officer’s actions must cross over an ill-defined, but nonetheless very real, threshold which separates state torts from deprivations of constitutionally protected rights. As this court previously stated defendants’ conduct must be sufficiently egregious so as to be considered “constitutionally” tortious. Not every push or shove violates the Constitution. In King v. Blankenship, the Court of Appeals emphasized that “not every instance of the use of excessive force gives rise to a cause of action under § 1983 merely because it gives rise to a cause of action under state tort law... The key phrases [are] ‘unjustified striking, etc.’ and ‘without just cause’ ...” 636 F.2d at 73. In determining whether a state officer has pierced the constitutional boundary thereby making his abusive conduct actionable under § 1983, King directs the district courts to apply the factors set forth in Johnson v. Glick, 481 F.2d at 1083, on a case-by-case basis. Id; See also Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980). Johnson articulately identifies the following factors which must be considered: 1. the need for application of force; 2. relationship between the need and the amount of force used; 3. extent of the injury inflicted; and 4. whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. 481 F.2d at 1033. If, on balance, the use of force was unreasonable, excessive and unjustified, liability under § 1983 attaches. By the same token, if after balancing the above factors, the use of force was reasonable and justified, although defendants may nonetheless still be liable under state tort law to plaintiff, no § 1983 liability attaches. Applying this standard to the case at bar and taking as true plaintiffs allegations and all reasonable inferences therefrom, this court is convinced plaintiff has stated a valid § 1983 claim for violation of his substantive due process rights. In this case, the assault by the officer was unprovoked and unjustified. Plaintiff was in custody at the LEC for relatively minor offenses. Spell had been arrested, brought to the LEC by McDaniel, given a Breathalyzer examination — all without indicent. Nothing in the record suggests plaintiff struck McDaniel or was trying to escape. The injury to plaintiff was severe and permanent. Should plaintiff prove his allegations, the physical abuse inflicted in this case would be so disproportionate, malicious and sadistic that it would, quite literally, shock the conscience of the court. Decency, security and liberty alike demand that such a tragic misuse of authority transcend the bounds of state tort law and clearly establish a deprivation of constitutional rights. To the extent defendant’s motion to dismiss contends plaintiff fails to state a claim for relief premised on substantive due process grounds, defendant’s motion is DENIED. Plaintiff further alleges that the Fourth Amendment right to be free from unlawful seizures is applicable to the facts of this case. The court agrees. The Fourth Amendment protection against unreasonable searches and seizures, made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), has been held by the Fourth Circuit to prohibit the use of excessive, arbitrary and unreasonable force by police in making an arrest and processing the arrestee. Jenkins v. Averett, 424 F.2d at 1231-32; Mishoe v. Collins, Slip. Op. at 5. See also Shillingford v. Holmes, 634 F.2d at 265; Begg v. Moffitt, 555 F.Supp. 1344, 1357 (N.D.Ill.1983). Applying, once again, the Johnson v. Glick factors to determine if McDaniel’s use of force in processing plaintiff was excessive, arbitrary and unreasonable, the court concludes plaintiff has stated a valid § 1983 claim predicated on a violation of his Fourth Amendment rights. To the extent defendant’s motion to dismiss contends plaintiff fails to state a claim for relief on this basis, defendant’s motion is DENIED. Finally, plaintiff argues that the privileges and immunities clause of the Fourteenth Amendment provides an additional constitutional basis upon which to hinge his § 1983 action. The privileges and immunities clause is strictly limited to rights of national as distinct from state citizenship. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L.Ed. 394 (1872). It provides extremely limited protection of individual liberties. The court has found no 1983 case specifically predicated upon a violation of the privileges and immunities clause and therefore holds that it is inapplicable to this action. See Dandridge v. City of Richmond, 566 F.Supp. 152 (E.D.Va.1983). To the extent plaintiff’s complaint is premised on a violation of the privileges and immunities clause, that claim is hereby DISMISSED. Having concluded that plaintiff’s complaint properly states a claim for deprivation of certain constitutional rights, the question becomes whether that deprivation is actionable under § 1983. The determination of this issue focuses on the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1980). Defendant argues that Parratt precludes this suit because North Carolina provides an adequate post deprivation remedy. The plaintiff in Parratt, a state inmate, alleged that he was deprived of property without due process of law when prison officials negligently lost in the prison mail system a hobby kit plaintiff had ordered. The Supreme Gourt, in an opinion written by Justice Rehnquist, agreed that plaintiff had been deprived of his property within the meaning of the Fourteenth Amendment. Id. at 536-37, 101 S.Ct. at 1913-14. However, the court held that random negligent loss of the inmate’s property did not constitute a due process violation where the state provided an adequate post-deprivation remedy. Id. at 540-41, 101 S.Ct. at 1915-16. Thus, even though plaintiff had suffered a constitutional deprivation by an official acting under color of state law, the Nebraska post-deprivation tort remedy provided all the due process to which plaintiff was entitled. Therefore, plaintiff's claim under § 1983 was not actionable. Defendant McDaniel asserts the rationale of Parratt applies with equal force to the facts of this case and mandates the dismissal of the action because Spell has a North Carolina State tort remedy. Defendant’s argument, on its face, has merit and requires extensive analysis. Lower federal courts attempting to analyze Parratt and apply its reasoning to a myriad of § 1983 fact situations have based their analyses on one or more of four sets of distinctions: (1) negligent vs. intentional deprivations; (2) liberty vs. property interests; (3) procedural vs. substantive constitutional guarantees; and (4) random and unauthorized official acts vs. established procedure, policies and custom. See Holmes v. Ward, 566 F.Supp. 863, 864-65 (E.D.N.Y.1983). Parratt dealt with a negligent loss of property. A number of lower courts have attempted to distinguish Parratt and limit its scope to only those actions involving negligent deprivations. See, e.g., Madyun v. Thompson, 657 F.2d 868, 873 (7th Cir.1981); Howse v. DeBerry Correctional Institute, 537 F.Supp. at 1177; Tarkowski v. Hoogasian, 532 F.Supp. 791, 794-95 (N.D.Ill.1982); Parker v. Rockefeller, 521 F.Supp. 1013, 1016 (N.D.W.Va.1981). The case at bar involves allegations of intentional rather than negligent conduct and, thus, plaintiff would have this court similarly limit the scope of Parratt. However, the court declines to do so for three reasons. First, nothing in Parratt suggests that its holding is limited to negligent deprivations. Once it is assumed a random negligent act can be remedied by an adequate post-deprivation procedure, then the same type of procedure can just as easily remedy a random intentional act. Holmes v. Ward, 566 F.Supp. at 863. Irshad v. Spann, 543 F.Supp. 922 n. 1 (E.D.Va.1982). Second, to limit Parratt’s reasoning to negligent deprivations ignores the citation in Parratt to Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Ingraham dealt with corporal punishment in public schools and held that an intentional liberty deprivation such as paddling did not violate the Fourteenth Amendment because state tort remedies were sufficient to satisfy procedural due process. Id. at 679, 97 S.Ct. at 1416. Finally, even if the court found itself in agreement with the distinction, it is bound by the Fourth Circuit’s decision in Palmer v. Hudson, 697 F.2d 1220 (1983), cert. granted, — U.S. —, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983), which held Parratt applicable to intentional deprivations. See also Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir.1983); Engblom v. Carey, 677 F.2d 957 (2d Cir.1982); Gilday v. Boone, 657 F.2d 1 (1st Cir.1981); Thurman v. Rose, 575 F.Supp. 1488 (N.D.Ind.1983); Sheppard v. Moore, 514 F.Supp. 1372 (M.D.N.C.1981). Other courts have focused on the difference between property and liberty interests in determining whether state tort remedies provide constitutionally adequate procedure. A number of these courts have held that a case involving liberty interests is “of a wholly different nature than one involving property interests and have refused to apply Parratt to the former. Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981), rev’d on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); See, e.g., Richardson v. Fleming, 651 F.2d 366, 372 n. 10 (5th Cir.1981); Moorhead v. Government of Virgin Islands, 556 F.Supp. 174 (D.V.I.1983); Schiller v. Strangis, 540 F.Supp. 605, 615 (D.Mass.1982); Scott v. Donovan, 539 F.Supp. 255 (N.D.Ga.1982). To some degree this court finds itself in agreement with this distinction. Deprivations of liberty are more repugnant, less readily compensable (if at all), and generally carry more severe consequences for the victim than deprivations of property. In addition this view finds support in Justice Blackmun’s concurring opinion in Parratt where he stated he did “not read the Court’s opinion as applicable to a case concerning deprivation of life or liberty.” 451 U.S. at 545, 101 S.Ct. at 1917. The court agrees that property deprivations are qualitatively different from deprivations of liberty. Taylor can adequately and easily be compensated for the loss of his hobby kit; it is doubtful victims of police beatings and shootings can ever be adequately compensated for their loss. As Judge Wiseman has stated in Howse v. DeBerry, To hold that an individual cannot bring suit under Section 1983 when he has been intentionally deprived of a clearly protected liberty interest — the right to be safe in his person from physical harm— by one acting “under color of state law,” would be to ignore the very purpose of Section 1983 itself ... [it] would render Section 1983 meaningless in innumerable cases, for many of our most cherished liberties are analogous to rights for which the states provide remedies of some tort. 537 F.Supp. at 1181. However, the court is not entirely comfortable with basing this opinion on what is essentially an emotional argument. There is no logical reason to distinguish between “property and liberty” for purposes of determining whether the state has provided due process, see Barnier v. Szentmiklosi, 565 F.Supp. at 877, and further, the citation in Parratt to Ingraham gives implicit recognition to the extension of Parratt to deprivations of liberty. See Engblom v. Carey, 677 F.2d 957 at 964-66 (2d Cir.1982); Rutledge v. Arizona Board of Regents, 660 F.2d at 1352 (9th Cir.1981); Holmes v. Ward, 566 F.Supp. at 865; Eberle v. Baumfalk, 524 F.Supp. 515 (N.D.Ill.1981); Meshkov v. Abington Township, 517 F.Supp. 1280, 1285-86 (E.D.Pa.1981). The more proper and legally sound distinction is that premised upon the difference between procedural and substantive constitutional guarantees. It is important to recognize that Parratt concerned procedural due process rather than substantive due process. No cognizable claim under § 1983 was alleged because Nebraska, by providing an adequate post-deprivation remedy satisfied the requirements of procedural due process. Plaintiff’s claim in Parratt did not implicate any of the substantive constitutional guarantees made applicable to the states by the Fourteenth Amendment. Wolf-Lillie v. Sonquist, 699 F.2d at 871. Thus, once the Supreme Court in Parratt found state procedures adequate to satisfy the requirements of due process, the constitutional basis for the § 1983 allegation was eliminated. In Parratt the court itself distinguished between these claims involving specific substantive constitutional guarantees and those involving solely “the Due Process Clause of the Fourteenth Amendment simpliciter.” 451 U.S. at 536, 101 S.Ct. at 1913. A finding that state action violated an independent substantive right secured by the Constitution is qualitatively different from a finding that such action simply deprived a citizen of his right to procedural due process. Owen v. Lash, 682 F.2d 648, 651 (7th Cir.1982). In cases such as the one at bar, where the right asserted does not depend on the procedural protections accorded the plaintiff, but rather stems from a separate substantive constitutional guarantee, the availability of a post-deprivation hearing is of no consequence, since the constitutional violation exists independent of any procedures available to redress the deprivation. Begg v. Moffitt, 555 F.Supp. at 1362. The Constitutional violation is complete at the time of the deprivation and no procedure can alter that fact. Unlike procedural due process which permits the deprivation of life, liberty or property when such deprivation comports with due process of law, substantive due process imposes absolute limits on state action regardless of the process provided. As Justice Blackmun observed in his concurring opinion in Parratt, “there are certain governmental actions that even if undertaken with a full panoply of procedural protection are, in and of themselves, antithetical to fundamental notions of due process” 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring). See generally, Wells & Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 GA.L.REV. 201 (1984). This court agrees with the vast majority of courts which have considered the issue, and holds Parratt is not applicable to instances, such as the case at bar, where substantive guarantees of the Constitution are alleged to have been violated as opposed to alleged violations of procedural due process. See, e.g., Wolf-Lillie v. Sonquist, 699 F.2d at 872; Brewer v. Blackwell, 692 F.2d 387, 395 (5th Cir.1982); Evans v. City of Chicago, 689 F.2d 1286, 1298 (7th Cir.1982); Duncan v. Poythress, 657 F.2d 691, 704-05 (5th Cir.1981), cert. dismissed, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982); Begg v. Moffitt, 555 F.Supp. at 1362; Irshad v. Spann, 543 F.Supp. at 926; Sager v. City of Woodland Park, 543 F.Supp. 282 (D.Colo.1982); Martin v. Covington, 541 F.Supp. 803, 804 (E.D.Ky.1982); Scott v. Donovan, 539 F.Supp. at 258. Finally, some courts have properly focused on the difference between random and unauthorized official acts and established state procedure, practice or custom. This distinction was critical to the Parratt decision, wherein the court stated: The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner’s property as a result of a random and unaothorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the state cannot predict precisely when the loss will occur. 451 U.S. at 541, 101 S.Ct. at 1916. The court reemphasized this distinction in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Logan had charged his employer with unlawful discrimination under Illinois state law. Inadvertently, the Illinois Fair Employment Practices Commission failed to convene a timely fact-finding conference on plaintiff’s charge as required by Illinois law. The Illinois Supreme Court held this action deprived the Commission of jurisdiction over plaintiff’s charge and dismissed the action. The Supreme Court reversed, holding that Logan’s state law cause of action against his employer was “property” within the meaning of the due process clause and that he had been deprived of it. 455 U.S. at 428-33, 102 S.Ct. at 1153-56. The court further held the deprivation was without due process of law since Logan never got a hearing on the merits of his claim. It noted that Parratt involved a loss of property as a result of a random and unauthorized act rather than an established state procedure and stated: Here, in contrast, it is the state system itself that destroys a complainant’s property interest, whenever the Commission fails to convene a timely conference— whether the Commission’s action is taken through negligence, maliciousness or otherwise ... Unlike the complainant in Parratt, Logan is challenging not the Commission’s error, but the “established state procedure that destroys his entitlement ...” Id. at 436, 102 S.Ct. at 1158. Assuming arguendo, that this court did not find a decisive distinction between substantive and procedural due process claims, the court would not bar claims where an established state procedure, practice or custom is itself the source of the deprivation. See Begg v. Moffitt, 555 F.Supp. at 1360-61. In a case closer to the facts of this action than Logan, Pantoja v. City of Gonzales, 538 F.Supp. 335 (N.D.Cal.1982), the police placed a drunk man in a holding cell, where he was found dead eight hours later. Plaintiffs, heirs of the man, sued attacking the city's practices and procedures for handling persons taken into custody under the state public intoxication law. Plaintiffs alleged the decedent was deprived of liberty without due process of law. The district court held Parratt was inapplicable because plaintiffs’ claim was based not on a random or unauthorized act, but on established state procedure for the handling of persons taken into custody under the state law. See also Holmes v. Ward, 566 F.Supp. at 866 (attack on police procedure for insuring the separation of an inmate from a proven and deadly assailant). Plaintiff, in the instant action, does not attack a random and unauthorized act, but a “ ‘de facto ’ policy of brutality which allegedly represents the official policy, custom, practice and procedure of the defendant City.” See plaintiff’s Response to Motions and Memorandum of Law, p. 3. Plaintiff’s complaint, adequately supported by factual allegations, is, quite literally, a broadside attack on the basic investigative, training and supervision policies of the City of Fayetteville Police Department. Therefore, this court holds that Parratt does not bar a suit under 42 U.S.C. § 1983, despite the availability of state post-deprivation remedies, where the deprivation is unconstitutional irrespective of the procedural protections accompanying it offered by the state or where the deprivation is occasioned by state procedure, practice, policy or custom and not by a random or unauthorized act. Applying this standard to the case at bar, the court concludes plaintiff states a cognizable claim under § 1983 premised upon a deprivation of plaintiff’s constitutional rights secured by the Fourth and Fourteenth Amendments. Therefore, defendant McDaniel’s motion to dismiss plaintiff's § 1983 cause of action is DENIED. (3). DEFENDANTS DALTON, HOLMAN, JOHNSON, DIXON, SMITH AND CITY OF FAYETTEVILLE’S MOTION TO DISMISS Based on the rationale previously articulated, that portion of defendants’ motion predicated on the same grounds as defendant McDaniel’s motion to dismiss is DENIED. However, defendants raise two additional arguments: (1) that neither the City nor the supervisory defendants are liable because they are sued solely on a respondeat superior basis; and (2) that the defendants are entitled to good faith immunity. A. Municipal Liability Municipal liability presents slightly different considerations from the liability of supervisory officials, although in this action the concepts tend to merge since the supervisory defendants are sued solely in their official capacity. However, for purposes of this opinion, the court finds it useful to separate, at least initially, the discussion of these two concepts. The essence of defendants’ argument is that under 42 U.S.C. § 1983, a municipality cannot be held liable on a theory of respondeat superior for the unconstitutional acts of its employees. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Defendants are correct, at least insofar as the argument is taken. In Monell, the court made it abundantly clear that liability may not be imposed under a respondeat superior theory, that is, merely because the city employs a tortfeasor. Id. at 691-92, 98 S.Ct. at 2036-37. See also Polk Co. v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). Instead, a municipality is liable only 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.” Monell, 436 U.S. at 694, 88 S.Ct. at 2037. Precise standards do not exist with respect to what acts constitute a policy or custom, but several broad guidelines have emerged from the plethora of lower court decisions interpreting Monell. See, e.g. Languirand v. Hayden, 717 F.2d 220 (5th Cir.1983); Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982); Turpin v. Mailet, 619 F.2d 196 (2d Cir.1980), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Spriggs v. City of Chicago, 523 F.Supp. 138 (N.D.Ill.1981). First, at “some level of authority, there must be an official whose acts reflect governmental policy, for the government necessarily acts through its agents ... when an official has final authority in a matter involving the selection of goals or of means of achieving goals, his choices represent governmental policy.” Bowen v. Watkins, 669 F.2d at 989. Clearly, officially promulgated ordinances, regulations and departmental directives give rise to municipal liability under § 1983 if such policies and decisions lead to the deprivation of constitutional rights. Second, less than formal municipal conduct can also give rise to § 1983 municipal liability. Turpin v. Mailet, 619 F.2d at 200. Municipalities are equally liable for de facto policies or practices which engender constitutional deprivation. Informal actions, if they reflect a general policy, custom, practice or pattern of official conduct which even tacitly encourages conduct depriving individuals of their constitutional rights satisfies § 1983 standards. Wolf-Lille v. Sonquist, 699 F.2d at 870; Webster v. City of Houston, 689 F.2d at 1226. As the Second Circuit noted in Turpin, “[t]o require that senior officials must have formally adopted or promulgated a policy before their conduct may be treated as ‘official’ would for present purposes render Monell a nullity, exalting form over substance.” 619 F.2d at 200; See also Spriggs v. City of Chicago, 523 F.Supp. at 141. Third, an official policy can be inferred from a municipality’s omissions as well as from its acts. Wellington v. Daniels, 717 F.2d 932, 935-36 (4th Cir.1983); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Turpin v. Mailet, 619 F.2d at 202. However, in this circuit, such omissions are actionable only if they constitute “tacit authorization” of or “deliberate indifference” to constitutional injuries. Wellington v. Daniels, 717 F.2d at 935; Avery v. County of Burke, 660 F.2d at 114. Mere negligent inaction is insufficient. Municipal liability does not stem from a city’s simple failure to exercise due care. The alleged breach of duty must be of greater magnitude. The Fourth Circuit standard logically developed from the rule in the Second Circuit set forth in Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.1979), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979), which held that a mere failure by the [municipality] to supervise its employees would not be sufficient to hold it liable under § 1983. However, the [municipality] would be held liable if the failure to supervise or the lack of a proper training program was so severe as to reach the level of ‘gross negligence’ or ‘deliberate indifference’ to the deprivation of the plaintiff’s constitutional rights. More specifically, where senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation if the supervisor’s inaction amounts to deliberate indifference or to tacit authorization of the offensive acts.” Turpin v. Mailet, 619 F.2d at 201; accord Spriggs v. City of Chicago, 523 F.Supp. at 142; Popow v. City of Margate, 476 F.Supp. at 1237; Leite v. City of Providence, 463 F.Supp. 585, 590-1 (D.R.I.1978). Thus, tacit encouragement or repeated toleration of known constitutional deprivations upon the part of subordinate personnel can rise to the level of “policy or custom,” thereby subjecting the municipality to liability under § 1983. Plaintiffs complaint alleges that is the custom and practice of the City, acting through certain of its agents, to deprive detainees, arrestees and others of their civil rights in the manner in which plaintiffs rights are alleged to have been violated. The complaint contends the custom or practice is evidenced by: (1) repeated incidents of assault and abuse; (2) repeated suits of the nature of this suit; (3) repeated failure to educate and train police officers; (4) repeated and deliberate failure to discipline known offenders among the police force; (5) repeated and deliberate failure to investigate wrongdoing and violations of civil rights on the part of police officers even when the wrongdoing is blatant; (6) repeated instances on the part of all defendants, either actively or passively, to cover up and absolve such wrongdoing on the part of police officers; and (7) repeated failure to adequately supervise police officers. Plaintiff also alleges the City encouraged misconduct by rewarding and commending abusive and assaultive behavior, by use of an arrest quota system, and by dismissing criminal charges against individual arrestees in return for their releasing the offending officers from civil liability. Plaintiff alleges the City’s custom or practice has created an atmosphere of lawlessness and a pervasive pattern of misconduct. Finally and critically, plaintiff unambiguously asserts that this municipal custom and policy was a direct and proximate cause of the alleged harm. On the basis of these allegations, this court finds that the City of Fayetteville is not being sued on the basis of respondeat superior. See Trotter v. City of Chicago, 573 F.Supp. 1269 (N.D.Ill.1983); Cook v. City of Miami, 464 F.Supp. 737 (1979); Leite v. City of Providence, 463 F.Supp. at 588. Plaintiff is not alleging an official formal policy has been enacted, rather plaintiff clearly alleges a pattern or practice of conduct — action as well as inaction — on the part of those in senior departmental and city policy making roles. With regard to the accusations of repeated inaction, plaintiff’s allegations are sufficient in that they assert the City’s failure to respond to past instances of police misconduct evidences not merely negligence on the part of the City, but, at the very least, reckless and, perhaps, callous disregard of the rights of citizens to be free from the type of injury suffered by plaintiff. Therefore, the court concludes plaintiff has stated a cognizable claim against the City of Fayetteville under § 1983. Defendants’ motions to dismiss as to plaintiff’s claim against the City is DENIED. B. Supervisory Liability As stated previously, the concepts of municipal liability and supervisory liability merge to a great degree in this action because the supervisory defendants are sued solely in their official capacity. Nonetheless, individual culpability is important because the City’s liability is predicated upon the specific actions and omissions of its agents — the supervisory defendants. Defendants Dalton, Holman, Johnson, Dixon and Smith move to dismiss because they did not personally participate in the incident, i.e. no liability on the basis of the doctrine of respondeat superior. Defendants are correct that the doctrine cannot be used in § 1983 actions to hold superior officers liable who have no affirmative link with the misconduct. Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir.1977). However, application of that principle of law to the facts sub judice does not compel the dismissal sought by defendants because plaintiff does not assert liability premised on that doctrine. Rather, plaintiff alleges defendants are directly liable through reckless and deliberate breach of their basic duties to properly train, supervise, investigate and discipline their subordinates. McClelland v. Facteau, 610 F.2d 693, 695 (10th Cir.1979). As in McClelland, defendants argue that plaintiffs attempt to hold them liable is a disguised respondeat superior claim. The Tenth Circuit did not agree with that argument and neither does this court. Judge Logan articulately stated the controlling principles: A crucial difference exists between liability as a master (respondeat superior) and direct liability. Respondeat superi- or is a doctrine of vicarious liability based upon public policy — the notion that the person who benefits by the acts of the servant must pay for wrongs committed by the servant; the one held liable as master need not be at fault in any way ... Under direct liability, plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under § 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right. Id. Personal participation is not a neeessary prerequisite to imposing liability upon the supervisory defendants. Avery v. County of Burke, 660 F.2d at 114. The issue is whether defendants have done something or failed to do something which they ought to have done, thereby proximately causing a violation of plaintiffs constitutional rights. Bowen v. Watkins, 669 F.2d at 988-89; Redmond v. Baxley, 475 F.Supp. 1111, 1116 (E.D.Mich.1979). The requisite casual connection can be established not only by direct personal participation, but also by failure to perform an act which is legally required or by “setting in motion a. series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978). See Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Thus, although supervisory officials cannot be held liable on the basis of their employer-employee relationship, liability attaches when their own action or inaction amounts to gross negligence or deliberate indifference and is the proximate cause of the constitutional violation. Bowen v. Watkins, 669 F.2d at 988; Owens v. Haas, 601 F.2d at 1246; Redmond v. Baxley, 475 F.Supp. at 1116; Leite v. City of Providence, 463 F.Supp. at 590. Plaintiffs complaint alleges defendants Holman, Dalton, Johnson, Dixon and Smith failed to control the behavior of subordinate employees, including McDaniel, thereby ratifying or tacitly authorizing the conduct and creating a de facto departmental policy. First, as to allegations of failure to train and supervise, the law in this circuit is that such failure gives rise to § 1983 liability solely in those situations where there is a history of abuse. Only then may sufficient knowledge be imputed to the supervisory personnel. Wellington v. Daniels, 717 F.2d at 936; See also Bowen v. Watkins, 669 F.2d at 988-89; McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982). However, the citizens of a municipality do not have to endure a widespread and prolonged pattern of past police misconduct before they can sue the city under § 1983. Liability occurs and recovery may be had for injuries resulting from an utter lack of training or grossly inadequate training of a police force, provided such is the “result of a deliberate and conscious indifference by the city.” Popow v. City of Margate, 476 F.Supp. at 1246; Leite v. City of Providence, 463 F.Supp. at 590-91. Such a rule is consistent with the previously stated requirements of proof regarding municipal liability. For purposes of guiding the lawyers in the future trial of this litigation, this court specifically rejects any notion that a single act as isolated incident is sufficient to establish supervisory inaction and therefore liability. Wellington v. Daniels, 717 F.2d at 936; Berry v. McLemore, 670 F.2d 30 (5th Cir.1982); Popow v. City of Margate, 476 F.Supp. at 1246. But See Owens v. Haas, 601 F.2d at 1247. Upon review of plaintiff's complaint, the court holds plaintiff has sufficiently alleged claims of a failure to supervise and train on the part of defendants Dalton, Holman, Dixon and Smith, so as to defeat defendants’ 12(b)(6) motion. Second, regarding investigation of misconduct and discipline of officers, the rule is that where a city’s procedure of reprimand is so inadequate or deliberately indifferent as to ratify unconstitutional conduct, the city may be liable under § 1983. Turpin v. Mailet, 619 F.2d at 201; Brandon v. Allen, 516 F.Supp. 1355, 1360 (W.D.Tenn.1981); Popow v. City of Margate, 476 F.Supp. at 1246; Smith v. Ambrogio, 456 F.Supp. 1130, 1136 (D.Conn.1978). A police chief or his lieutenant’s persistent or deliberate failure to discipline subordinates in the face of knowledge of their propensity for improper use of force constitutes a de facto policy or official custom actionable under § 1983. Sims v. Adams, 537 F.2d 829 (5th Cir.1976); Moon v. Winfield, 383 F.Supp. 31 (N.D.Ill.1974). Upon review of plaintiff’s complaint, the court holds plaintiff has sufficiently alleged claims of a failure to investigate and discipline on the part of defendants Dalton, Holman, Johnson, Dixon and Smith, so as to defeat defendants’ 12(b)(6) motion. Therefore, based on the aforesaid, the court concludes plaintiff has stated a cognizable claim against the supervisory defendants under § 1983. Defendants’ motion to dismiss as to plaintiff’s claims against defendants Holman, Dalton, Johnson, Dixon and Smith is DENIED. C. Good Faith Immunity Defendan