Opinion
01 Civ. 6931 (RWS)
March 17, 2003
Renwick Williams, Plaintiff Pro Se, Cape Vincent, NY.
Honorable Michael A. Cardozo, Zachary A. Cunha, Esq., Assistant Corporation Counsel, New York, NY, for Defendants.
OPINION
Plaintiff pro se Lennox David a/k/a Renwick Williams ("David"), who is incarcerated, has moved pursuant to Rule 15(a) of the Federal Rules of Civil Procedure for leave to amend his complaint to add the City of New York (the "City") as a defendant in addition to the currently named defendants — Captain Santiago, #840 ("Santiago") and Captain Gong, #1376 ("Gong") — in this action alleging a single instance of excessive force in contravention of 42 U.S.C. § 1983.
For the following reasons, that motion is denied, with leave to renew within twenty (20) days of the issuance of this opinion.
Prior Proceedings
On July 27, 2001, David commenced this action against the George Motchan Detention Center ("GMDC"), Santiago and Gong (then erroneously listed as "Chong"), alleging that Santiago and Gong engaged in a single instance of excessive force against him on September 14, 2002.
Following the close of pretrial discovery, the defendants moved for judgment on the pleadings, seeking dismissal of the claim against GMDC on the grounds that it is not a suable entity under 396 of the New York City Charter, and of defendant Gong on the grounds that he had not been served in accordance with the requirements of Rule 4(m) of the Federal Rules of Civil Procedure.
On December 6, 2002, that motion was granted in part and denied in part, and GMDC was dismissed from the action. David v. GMDC, No. 01 Civ. 6931, 2002 U.S. Dist. LEXIS 23733, at *8 (S.D.N.Y. Dec. 11, 2002). David was given more time to serve Gong in light of his pro se and incarcerated status. At that time, the Court indicated that David could move to amend his complaint to name the City of New York "if [he] believes in good faith that he can allege" a proper basis for municipal liability. Id. at *12.
David served a copy of a proposed amended complaint on the defendants on December 19, 2002, and on January 7, 2002, moved to amend the complaint to add the City of New York as a defendant. The defendants replied on January 24, 2003, and David sent in a response dated January 27, 2003. The motion was considered fully submitted on February 5, 2003.
Discussion I. Standard of Review
Rule 15(a) of the Federal Rules of Civil Procedure provides that the district court should freely grant leave to amend the pleadings. Fed.R.Civ.P. 15(a). The amendment should be permitted absent evidence of circumstances such as undue delay or bad faith, undue prejudice to the opposing party or futility. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (affirming district court's denial of leave to amend due to futility of amendment).
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Municipal Liability
To state a claim under 42 U.S.C. § 1983, a complaint must aver that a person acting under color of state law committed acts that deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1984). In order to hold a municipality liable as a "person" within the meaning of 42 U.S.C. § 1983, the plaintiff must establish that the municipality was at fault for the constitutional injury he suffered. Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985); Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978), in that the violation of the plaintiff's constitutional rights resulted from a municipal custom, policy or practice. Monell, 436 U.S. at 694; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).
David may satisfy the "policy, custom or practice" requirement in one of four ways. Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996). He may allege the existence of (1) a formal policy officially endorsed by the municipality, Monell, 436 U.S. at 690; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question, Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992); (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials, Monell, 436 U.S. at 690-91; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to "deliberate indifference" to the rights of those who come into contact with the municipal employees. City of Canton v. Harris, 489 U.S. 378, 388 (1989). There must also be a causal link between the policy, custom or practice and the alleged injury in order to find liability against the city. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
The Vann Court described deliberate indifference as follows:
To prove such deliberate indifference, the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious. . . . An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents. . . . Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was "contrary to the practice of most . . . departments" and was "particularly dangerous" because it presented an unusually high risk that constitutional rights would be violated.
Vann, 72 F.3d at 1049-50 (citations omitted).
While David has moved to amend his complaint, the amended complaint does not make any allegations that would suffice under the standards discussed above. His amended complaint includes the City in the caption, details the same facts discussed in the earlier opinion granting in part the defendants' motion to dismiss, and adds a final statement that, "I would like the [C]ourt to make the City pay for the [i]njustice and danger that their officers put me through. I'm looking forward to the sum of [$]10,000,000." Proposed Amended Compl., at 1. These allegations are insufficient to support municipal liability and, as a result, the motion is denied.
Because of certain arguments made in his accompanying memorandum of law and in light of David's pro se status, David will be permitted to renew this motion and submit another proposed amended complaint in compliance with the following directions within twenty (20) days of the issuance of this opinion.
In his accompanying memorandum of law, David argues that liability should be based on the third prong above, in that "the municipality knew about many incidents that happened on Rikers Island and they still did not do any thing to change or prevent their employees [from] violating prisoner[s'] constitutional rights." David Mem. at 4. As evidence, David provides a letter dated April 10, 2002, from a Legal Aid Society Prisoners' Rights Project attorney stating that his office "is investigating the pattern of prisoner beatings at Rikers Island." In order to make such a claim, David must allege in his complaint that "the municipality . . . had notice of but repeatedly failed to make any meaningful investigation into . . . charges of misconduct by lower level employees. . . ." McAllister v. New York City Police Department, 49 F. Supp.2d 688, 692 (S.D.N.Y. 1999) (citing Covington v. City of New York, 916 F. Supp. 282, 288 (S.D.N.Y. 1996)). Therefore, in order to move successfully to amend his complaint, David must submit a complaint that includes specific allegations that the incident complained of on September 14, 2000 occurred as a result of the City's failure to respond to repeated charges of misconduct by prison guards similar to that alleged by David.
In the same memorandum, David also appears to reject the other potential argument of the four, given the facts alleged: the fourth prong, failure to train. David states that the City "Trained, Certified and employed [Santiago and Gong] to follow the City custom, policy, practice, which [is supposed] to be . . . not to apply any excessive force without reason." Mem. at 2. Thus David appears to concede that the officers did not follow the City's policy of avoiding excessive force.
He also argues that the City is "responsible for the actions of all of [its] employees because the City is boss." Mem. at 2. Such argument appears to be based on a theory of respondeat superior or vicarious liability and thus must be rejected. E.g., Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658, 690 (1978); City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
The City responds, relying on opinions written at the summary judgment stage, that any attempt to amend David's complaint to include such allegations would be futile. E.g., McAllister, 49 F. Supp.2d 688, 692 (S.D.N.Y. 1999) (granting summary judgment where numerous incidents of misconduct were alleged because "plaintiff . . . attempt[s] to show a policy or custom of unconstitutional behavior by pointing to highly publicized recent incidents of police misbehavior[.] Even if the Court were to accept the tenuous relation between [such] incidents and the fact of plaintiff's arrest and conviction, these incidents do not amount to a custom or policy. . . ."); Woo v. City of New York, 93 Civ. 7007, 1996 U.S. Dist. LEXIS 11689, at *14 (S.D.N.Y. August 14, 1996) (granting summary judgment because "conclusory allegations by a plaintiff of a municipality's pattern or policy of unconstitutional behavior are insufficient to establish a Monell claim, absent the production of evidence to back up such an allegation"); Goode v. Winkler, 97 Civ. 8999, 1999 U.S. Dist. LEXIS 18132, at *13 (S.D.N.Y. Nov. 23, 1999) (granting summary judgment because conclusory allegations should be dismissed without specific evidence demonstrating the existence of a municipal policy or custom). Because those cases were at the summary judgment phase, however, the courts were able to make determinations as to the sufficiency of the evidence to support allegations of repeated charges of misconduct. Indeed, the defendants argue that David has not "offered any admissible evidence, established in discovery or otherwise, that would support" a Monell claim under this prong. Defs.' Mem. at 8. Presumably, if David moves to amend again, and is successful, the discovery period would need to be reopened so that David could seek evidence in support of a potential Monell claim. Until the close of that discovery, it would be premature for this Court to deny a potential amendment as futile for the reasons provided by the defendants.
While the defendants focused on the futility argument in this brief, presumably they will also address the late timing of the proposed amendment should David move to amend once again.
As noted above, the instant proposed amendment does not withstand scrutiny. The above opinion is intended as guidance for David, a pro se plaintiff, if he should attempt to amend his complaint once again. In light of the late stage of the proceedings, any such motion to amend should be submitted within twenty (20) days of the issuance of this opinion.
Conclusion
For the foregoing reasons, David's motion for leave to amend his complaint is denied. If David chooses to move again to amend, he should do so within twenty (20) days of the issuance of this opinion.
It is so ordered.