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holding that New York City Police Department is a non-suable agency of the City of New York
Summary of this case from Hybrid Capital Grp. v. Bert Padell & Co.Opinion
00 Civ. 4309 (SAS).
December 26, 2000.
Harry Kresky, Esq., New York, NY, for Plaintiff.
Paul Aronson, New York, NY, for Defendants.
OPINION AND ORDER
Plaintiff James E. Davis brings this action pursuant to 42 U.S.C. § 1983 alleging numerous civil rights violations. Plaintiff also asserts state law tort claims and seeks attorneys' fees pursuant to 42 U.S.C. § 1988. Defendants now move, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss all of plaintiff's claims. For the reasons that follow, defendants' motion is granted in part and denied in part.
I. BACKGROUND
Unless otherwise noted, all references are to paragraphs of plaintiff's Amended Complaint ("Am. Compl."), the filing of which was stipulated to by the parties on September 13, 2000.
Plaintiff joined the New York City Police Department in 1991 and was later assigned to the Police Academy as an instructor. ¶¶ 1, 6, 7. During his career as a police officer, plaintiff received various awards and letters of commendation from political and community leaders, and was never the subject of disciplinary action. ¶¶ 8, 10.
Plaintiff became active in community affairs following the Crown Heights riots in 1991. ¶ 11. His activism included trying to "build bridges of understanding" between the Black and Jewish communities in Crown Heights and speaking out publicly against violence and police brutality. ¶¶ 14, 16, 17.
At all relevant times, plaintiff has been a member of the Democratic Party. ¶ 18. In 1996, he attempted to run for Congress, but his petition was successfully challenged and his name did not appear on the ballot. ¶ 19. In 1997, plaintiff ran for the City Council and actively campaigned with the support and encouragement of his fellow and superior police officers. ¶¶ 20, 21. No disciplinary action was taken against him at that time. ¶ 22. In June 1998, plaintiff challenged incumbent Assembly member Clarence Norman, who also served as Chairperson of the Kings County Democratic Party Organization. ¶ 23. While his name appeared on the ballot, he did not win the nomination. ¶¶ 24, 25.
In July 1998, plaintiff's name appeared on a "slate" petition, without his approval or participation, as the Liberal Party candidate for Assembly. ¶ 26. The Liberal Party did not file the required certificate to nominate a candidate enrolled in another party, the petition did not contain enough signatures to successfully nominate plaintiff as the Liberal Party candidate, and plaintiff did not file the required certificate of acceptance for the nomination. ¶¶ 27-29. Further, on December 15, 1998, the Board of Elections notified plaintiff that his name was erroneously placed on the ballot. ¶ 31. Nonetheless, plaintiff "conducted a minimal campaign to show voters where they could find his name on the ballot." ¶ 32. During this time, plaintiff continued to work and perform all of his duties as a police officer. ¶ 33.
On November 4, 1998, defendants confiscated plaintiff's Police Department badge and firearm and later informed him that he had constructively resigned from the Police Department for failing to decline the Liberal Party nomination in violation of Section 1129 of the New York City Charter. ¶¶ 34, 35. On the same date, plaintiff explained the situation to the Commanding Officer of the Police Academy, and on November 5, 1998, plaintiff delivered a letter to Howard Safir attempting to resolve the matter. ¶ 37. Plaintiff made three subsequent attempts to contact Safir to clarify the situation, but received no response. ¶¶ 38, 40-42. Nor did plaintiff receive a response from repeated attempts to contact the Assistant Commissioner of Legal Affairs. ¶ 42.
Section 1129 of the New York City Charter provides in relevant part that:
Any . . . member of the police force . . . who shall during his or her term of office be nominated for any office elective by the people . . . and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office. . . .
New York City Charter § 1129.
On December 3, 1998, plaintiff filed a complaint with the Equal Employment Opportunity Office ("EEO") of the New York City Police Department. ¶ 44. On December 9, 1998, plaintiff filed a notice of claim with the Comptroller of the City of New York. ¶ 43. In May 1999, defendants commenced a disciplinary proceeding against plaintiff relying on the same grounds for which he was terminated. ¶ 51.
The notice of claim alleged, inter alia, that the violation of constitutional rights and wrongful discharge committed by the NYPD, as well as the NYPD's failure to reinstate plaintiff, were deliberate, malicious and in retaliation against plaintiff as: (1) a minority police officer who has been active in community affairs, and, in particular, in efforts to bring about constructive dialogue between the black and Jewish communities in Crown Heights through marches and other efforts; (2) a police officer who breached the "blue wall of silence" by speaking out against acts of brutality against citizens by New York City police officers; and (3) as a citizen who sought nomination to the Assembly almost defeating Clarence Norman in the primary. ¶ 43.
B. Procedural Background
1. State Court Proceedings
On December 22, 1998, plaintiff brought an Article 78 proceeding in Supreme Court, New York County, challenging his termination as a New York City Police Officer and the Police Department's "failure to remedy it."See Verified Petition, Ex. A to 8/15/00 Declaration of Paul Aronson, attorney for defendants ("Aronson Decl."). Plaintiff alleged that his First Amendment rights were violated because the NYPD retaliated against him for his advocacy in areas of public concern to the minority community and for his campaigning for election to public office. See id. ¶¶ 19, 48, 68-70. Plaintiff also alleged that the Police Department's actions were racially motivated. See id. ¶¶ 48-49. Plaintiff sought a judgment directing defendants to restore him "to the status of active police officer . . . and to his former position of instructor at the Police Academy," directing defendants "to pay petitioner all sums he would otherwise have received . . . with interest," and granting "such and further relief as [the court] deems just and proper, including, but not limited to costs, disbursement and reasonable attorneys [sic] fees."See id. at Wherefore Clause (a)-(d).
On January 18, 2000, New York State Supreme Court Justice Barbara R. Kapnick held that equitable estoppel prevented enforcement of section 1129 of the New York City Charter as a basis for removing plaintiff from his position. See 1/18/00 Decision of Judge Kapnick ("Kapnick Decision"), Ex. B to Aronson Decl. Judge Kapnick further ordered that respondents Howard Safir and the New York City Police Department restore plaintiff to "the status of active police officer" and pay petitioner all sums he would have received with interest, with no mention of attorneys' fees. Id. at 10.
Pursuant to Judge Kapnick's order, defendants restored plaintiff to active duty, paid some of his wages, and assigned plaintiff to the night shift in the 69th Precinct in Brooklyn. See Am. Compl. ¶¶ 56, 57.
2. Federal Court Proceedings
On January 27, 2000, plaintiff purchased an index number in the Clerk's office of the New York State Supreme Court, New York County, and on May 25, 2000, plaintiff served a Summons with Notice on the New York City Police Department. See Summons with Notice, Ex. C to Aronson Decl. On June 12, 2000, defendants served a Demand for the Complaint and removed the action to this Court. See Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Complaint, at 3.
Plaintiff's Amended Complaint makes the following claims: (1) his termination and the Department's subsequent actions were in retaliation for his exercise of his First Amendment rights; (2) defendants have not complied with Judge Kapnick's Order; (3) defendants were motivated by racial discrimination; and (4) defendants are liable for the intentional infliction of emotional distress and prima facie tort under New York law. See Am. Compl. ¶¶ 59-69. Finally, plaintiff seeks an award of reasonable attorneys' fees under 42 U.S.C. § 1988. See id. ¶ 70.
To the extent plaintiff's federal complaint seeks enforcement of certain aspects of the state court judgment, plaintiff must pursue his remedies in that court.
Any award of attorneys' fees is premature at this time. See Puglisi v. Underhill Park Taxpayer Ass'n., 964 F. Supp. 811, 815 (S.D.N.Y. 1997) ("[u]nder § 1988, an award of attorney's fees is available to the prevailing party") (emphasis added).
II. DISCUSSION
A. Standard for Dismissal under Rule 12(b)(1)
Federal subject matter jurisdiction exists only when a "federal question" is presented under 28 U.S.C. § 1331, or there is diversity of citizenship under 28 U.S.C. § 1332. Even if there is a predicate for the exercise of federal jurisdiction, federal district courts lack subject matter jurisdiction if the exercise of that jurisdiction would result in the reversal or modification of a state court judgment. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Where jurisdiction is lacking, the district court must dismiss the lawsuit without regard to its merits. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996). The burden of proof in establishing federal jurisdiction falls on the party seeking to invoke that jurisdiction. See Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998).
The Supreme Court applied this principle in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983), and held that federal district courts do not have subject matter jurisdiction to review challenges to the judicial determinations of state courts "even if those challenges allege that the state court's action was unconstitutional."
"In considering motions to dismiss for want of subject matter jurisdiction, the Court must accept as true all material factual allegations in the Complaint and refrain from drawing inferences in favor of the party contesting jurisdiction." Serrano v. 900 5th Ave. Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998) (citing Atlantic Mut. Ins. Co. v. Balfor Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)). The Court is not confined to the four corners of the Complaint, however, and may consider evidence outside the pleadings such as affidavits and other documents. See Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
B. Motion to Dismiss Standard
Dismissal of a complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). "[T]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quotation marks and citation omitted); see also Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) ("The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.") (quotation marks and citation omitted). Nevertheless, "[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." De Jesus v. Sears, Robuck Co., 87 F.3d 65, 70 (2d Cir. 1996) (quotation marks and citations omitted).
To properly rule on a 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See Harris, 186 F.3d at 247. Moreover, the court must limit itself to facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). However, the court may also consider documents, while not explicitly incorporated into the complaint, that "plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 44 (2d Cir. 1991)).
C. Rooker-Feldman Doctrine
In their motion to dismiss, defendants contend that this Court lacks subject matter jurisdiction pursuant to the judicially crafted Rooker-Feldman doctrine. This doctrine holds that a federal court is without subject matter jurisdiction if the federal claim is "inextricably intertwined" with a state court judgment. Feldman, 460 U.S. at 483 n. 16. A "federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Pennzoil Co. v. Texaco. Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring).
The Second Circuit has interpreted the term "inextricably intertwined" to be co-extensive with the law of preclusion. Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir. 1995). Accordingly, "where a federal plaintiff had an opportunity to litigate a claim in a state proceeding (as either the plaintiff or defendant in that proceeding), subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Id. (citations omitted).
Res judicata (claim preclusion) does not bar any of plaintiff's claims because the money damages plaintiff now seeks were not available in the Article 78 proceeding. See Bracey v. Safir, No. 98 Civ. 6565, 1999 WL 672564, at *3 (S.D.N.Y. Aug. 26, 1999); see also Beharry v. M.T.A. New York City Transit Auth., No. 96 Civ. 1203, 1999 WL 151671, at *5 (E.D.N.Y. Mar. 17, 1999), aff'd, 2000 WL 1786333 (2d Cir. 2000) ("[R]es judicata does not bar a claim under 42 U.S.C. § 1983 where a plaintiff has previously brought a related Article 78 proceeding alleging a violation of his constitutional rights, and subsequently, . . . seeks monetary damages for the violation of those rights."). Moreover, defendants do not assert that any of plaintiff's claims are barred by res judicata. The question, then, is whether plaintiff's section 1983 claim is barred by collateral estoppel (issue preclusion).
Federal courts are required under 28 U.S.C. § 1738 to "give full faith and credit to judgments entered by state courts of competent jurisdiction. The federal court presented with a state court judgment is required to give that judgment the same force and effect as it has in the state in which it is rendered." Mitchell v. National Broad. Co., 553 F.2d 265, 274 (2d Cir. 1977) (citations omitted). Accordingly, this Court must follow New York law on collateral estoppel. See Vasquez v. Van Lindt, 724 F.2d 321, 325 (2d Cir. 1983).
Under New York law, issue preclusion applies where "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995).
Courts in this Circuit have applied the Rooker-Feldman bar only where the factual underpinnings of a plaintiff's subsequent constitutional claim were adversely decided in a previous state proceeding. For example, in Moccio, plaintiff's section 1983 claim alleging violations of due process and equal protection was held to be barred because the "issues essential to both causes of action that Moccio brought under § 1983 were actually and necessarily decided adversely to Moccio in the Article 78 proceeding." Moccio, 95 F.3d at 200. With regard to his claim of lack of due process, Moccio conceded that the focus of the Article 78 proceeding was whether the "[employer's] decision was arbitrary, capricious or contrary to law." Id. at 201.
Here, contrary to defendants' claim that the state court "evidently rejected" plaintiff's constitutional claims, the state court did not address plaintiff's First Amendment claim. Cf. Marden v. Dinin, 22 F. Supp.2d 180, 186 (S.D.N.Y. 1998) (Rooker-Feldman doctrine barred federal court allegations of retaliatory termination for engaging in constitutionally protected political activities where state court previously found that plaintiff's dismissal was for misconduct and not the consequence of a political vendetta). While plaintiff raised his First Amendment claim in the state court proceeding, Judge Kapnick did not address that claim, instead deciding the case on equitable grounds. Cf. Parker v. Blauvelt Volunteer Fire Co., Inc., 690 N.Y.S.2d 478, 483 (1999) (where state court held that all of plaintiff's "remaining contentions [we]re without merit", plaintiff's constitutional violations were necessarily decided even though not primarily addressed).
Plaintiff claimed that "to have acted as they did toward petitioner because he campaigned or otherwise engaged in advocating his election to public office . . . would violate petitioner's right of free speech under the Constitutions of the United States and the State of New York." See Verified Petition, ¶ 68, Ex. A to Aronson Decl.
Judge Kapnick's decision merely holds that it would be inequitable to apply section 1129 of the New York City Charter to Davis now, given the Police Department's acquiescence, even encouragement, in his prior political activities. See Kapnick Decision, at 9. Additionally, the state court found that even if Davis "held himself" out as a candidate in 1998 by conducting a limited campaign, such actions do not technically violate section 1129. Id.
Given that plaintiff's First Amendment claim was never addressed or decided, even obliquely, in the Article 78 proceeding, the Rooker-Feldman doctrine cannot bar that claim. Moreover, a judgment by this Court would not effectively overrule the prior state court judgment. Without addressing the First Amendment issue, Judge Kapnick held that plaintiff could not be terminated by the Police Department pursuant to section 1129, where it had previously acquiesced in his conduct. See Kapnick Decision at 9. If this Court eventually finds that plaintiff's civil rights were violated, that finding would not effectively overrule the decision of the state court. Thus, the Rooker-Feldman doctrine does not divest this Court of jurisdiction over plaintiff's claims. Accordingly, defendants' motion to dismiss pursuant to Rule 12(b)(1) is denied.
Contrary to defendants' assertion, Judge Kapnick's statement that application of equitable estoppel "is limited to the facts of this case and will prevent a `manifest' injustice,' without unduly damaging public policy or otherwise preventing enforcement of the guidelines set forth in § 1129 of the City Charter as to petitioner . . . in the future" does not mean that she addressed plaintiff's constitutional claim.
D. Plaintiff's Claims
1. Retaliation
Plaintiff claims that his First Amendment rights were violated when defendants retaliated against him based on his speech. To establish a prima facie case of retaliation, an employee must show "that (1) [he] engaged in protected activity; (2) [his] employer was aware of that activity; (3) [he] suffered adverse employment consequences; and (4) a causal connection exists between the protected activity and the adverse employment action." Domenech v. City of New York, 919 F. Supp. 702, 706 (S.D.N.Y. 1996); see also Bernheim v. Litt, 79 F.3d 318, 324-25 (2d Cir. 1996).
Plaintiff was allegedly subject to the following retaliatory employment actions: (1) failure to return him to active duty after he alerted them to the mistake on the Liberal Party ballot; (2) failure to restore him to his position at the Police Academy; (3) commencing a disciplinary proceeding against him; and (4) failure to fully comply with the state court decision. See Am. Compl. ¶¶ 63-66.
With regard to the first element, for a public employee's speech to be protected by the First Amendment, it must touch on a matter of public concern. See Cahill v. O'Donnell, 75 F. Supp.2d 264, 271-72 (S.D.N Y 1999). Here, not only did plaintiff speak out against police brutality, he was active in community affairs where he promoted racial harmony.See, e.g., Rookard v. Health and Hosp. Corp., 710 F.2d 41, 46-47 (2d Cir. 1983) (allegations of corruption in agency); Walton v. Safir, No. 99 Civ. 4430, 2000 WL 1741676, at *6 (S.D.N.Y. Nov. 27, 2000) (public criticism of Street Crime Unit for engaging in racially discriminatory conduct); Cahill v. O'Donnell, 7 F. Supp.2d 341, 349 (S.D.N.Y. 1998) (public criticism of racially discriminatory policies of police department unit). More importantly, however, plaintiff's participation in a "minimal campaign to show voters where they could find his name on the ballot," despite knowing that he was not nominated, was clearly a matter of public concern and the alleged basis for his termination. Accordingly, plaintiff has pled the first element of a retaliation claim.
The Amended Complaint does not specify why Davis was showing voters where his name was on the ballot. Whether it was to show them that he was not properly nominated or to see how many votes he could garner, the political process is a matter of public concern.
The Amended Complaint also satisfies the second element of a retaliation claim. Given that plaintiff publicly spoke of matters of public concern and publicly campaigned for election and that defendants' actions were prompted by Davis' appearance on the Liberal Party ballot, the Police Department was obviously aware of his activities. In fact, in 1997, he actively campaigned "with the support and encouragement of his fellow and superior officers." Am. Compl. ¶ 21.
Plaintiff has also adequately alleged an adverse employment action. Plaintiff alleges that he was terminated, not reinstated, lost earnings, incurred attorneys' fees, and suffered damage to his reputation and career. See id. ¶¶ 39, 51, 54, 55; Notice of Claim ¶ 4.
Finally, plaintiff has adequately alleged the requisite nexus between the exercise of his First Amendment rights and defendants' alleged retaliatory conduct. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) ("Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus."). Davis alleges that he was directed to surrender his badge and firearm on November 4, 1998. See Am. Compl. ¶ 34. This occurred within days of Davis' minimal campaign "to show voters where they could find his name on the ballot." Id. ¶ 32. He received no advance notice of defendants' action and alleges that defendants made at best a perfunctory investigation "designed to support what had already been decided." Id. ¶ 35. Plaintiff promptly brought the true facts to the attention of various city officials but was not restored to active duty. See id. ¶¶ 37-42. He claims that defendants' actions were "in retaliation against plaintiff for the exercise of his first amendment rights in the form of participation in the political process and his insistence on legally vindicating those rights." Id. ¶¶ 63-66. Thus, defendants have failed to demonstrate that plaintiff can prove no set of facts in support of his First Amendment retaliation claim which would entitle him to relief. Accordingly, defendants' motion to dismiss this claim is denied.
2. Racial Discrimination
To state a claim under section 1981, a plaintiff must show: (1) that he is a member of a racial minority; (2) defendant's intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute's enumerated activities — here the making and enforcing of contracts. See Lauture v. International Bus. Machs. Corp., 216 F.3d 258, 261 (2d Cir. 2000) (section 1981 provides a cause of action for racially discriminatory termination from at-will employment).
Section 1981 is violated where plaintiff shows racially motivated actions and purposeful discrimination. See General Bldg. Contractors Ass'n. v. Pennsylvania, 458 U.S. 375, 391 (1982). The Second Circuit has stated that
[a] plaintiff alleging racial or gender discrimination . . . must do more than recite conclusory assertions. In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994) (citations omitted). See also Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (complainant must "offer more than conclusory allegations that he was discriminated against because of his race."); Cleveland-Goins v. City of New York, No. 99 Civ. 1109, 1999 WL 673343, at *3 (S.D.N.Y. Aug. 30, 1999) (plaintiff must plead more than mere "naked assertions" to succeed on a claim brought under section 1981). Further, plaintiff must make fact specific allegations of a causal link between the defendant's actions and the plaintiff's race. See Waldron v. Rotzler, 862 F. Supp. 763, 769 (N.D.N.Y. 1994) ("plaintiff must allege some facts that demonstrate that his race was the reason for the defendants' actions").
Plaintiff undoubtedly meets the first element of a section 1981 claim, as he identifies himself as an African-American. See Am. Compl. ¶ 67. However, the rest of his Amended Complaint is devoid of any facts from which one could infer that he was discharged because of his race. Plaintiff references an EEO complaint which merely states that "respondents are `stalling' the reinstatement process, because of his `race' and `color.'" See Am. Compl. ¶ 44. The Amended Complaint goes on to allege that plaintiff states a claim under both section 1983 and section 1981 as "defendants' actions were motivated by animus towards him as an African-American police officer who stood up for his rights and spoke out for the rights of other African Americans." See id. ¶ 68. These conclusory allegations do not support the inference that plaintiff's dismissal was motivated by racial animus. Accordingly, plaintiff's claims of racial discrimination, whether brought under section 1983 or 1981, are dismissed.
While this EEO Complaint was referenced in the Amended Complaint, it was not annexed to the Complaint. A copy of the EEO Complaint was obtained from the NYPD's Office of Equal Employment Opportunity.
E. Custom or Policy
Claims against a municipality must allege that a deprivation of plaintiff's rights was caused by a custom or policy of the municipality.See Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978); see also Barrett v. Harwood, , 189 F.3d 297, 303 (2d Cir. 1999), cert. denied, 120 S.Ct. 2719 (2000) ("In order to state a § 1983 claim against a municipality, a litigant must allege that the municipality implemented and adopted a `policy statement, ordinance, regulation, or decision' or established or acquiesced in a custom that caused the unconstitutional activity.") (quoting Monell, 436 U.S. at 690-91). The plaintiff must allege "some facts that make possible the inference of a policy giving rise to municipal liability." Reinaldo Morales Dynamic Keys v. New York City Police Dep't, 97 Civ. 7151, 2000 WL 10436, at *2 (S.D.N.Y. Jan. 6, 2000); Perez v. County of Westchester, 83 F. Supp.2d 435, 438 (S.D.N.Y.), aff'd, 2000 WL 1761097 (2d Cir. 2000) (complaint dismissed where plaintiff did not include any facts showing existence of policy and did not generally indicate the nature of the policy). A single incident exemplifying a custom or policy will generally not give rise to municipal liability. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993); Morales, 2000 WL 10436, at *2 (two incidents of dissimilar police misconduct did not create an inference of a policy).
The Amended Complaint adequately alleges the existence of a custom or policy. The Amended Complaint pleads that the NYPD engages in discriminatory assignment of and retaliation against outspoken police personnel. See Am. Compl. ¶ 60. To illustrate the existence of the policy, plaintiff cites the case of a high-ranking police officer who spoke out about the handling of sexual harassment claims in a Staten Island precinct and was subsequently stripped of her duties. See id. ¶ 60. In addition, he claims that the actions of defendants toward him "resulted from a custom and policy of defendants" of retaliating against outspoken officers. See id. ¶ 59. Furthermore, with regard to custom or policy, I take judicial notice of the decision in Walton v. Safir, 2000 WL 1741676. In Walton, this Court held that plaintiff's dismissal was in retaliation for the exercise of her First Amendment rights, specifically, public criticism of the Street Crime Unit, an elite subdivision of the NYPD to which plaintiff was formerly assigned. 2000 WL 1741676, at *14. The Court found the City of New York liable for this "official action," stating that "the decision to terminate plaintiff Walton's employment as a New York City police officer was made at the highest level of the Department." Id. at *11. At the pleading stage, the incidents involving plaintiff, Marsh and Walton show a custom or policy sufficient to impose liability on the City of New York for plaintiff's retaliation claim. F. Howard Safir
A newspaper article attached to the Declaration of Harry Kresky, plaintiff's attorney, sworn to on September 6, 2000 ("Kresky Decl.") states that Sandra Marsh was the deputy commissioner in charge of handling sexual harassment complaints. After investigating certain claims, she found that they were improperly handled and that top officials engaged in retaliation against those who filed claims against them and tried to impede her investigation. Subsequent to a "reinvestigation" ordered by her superiors, her work assignments diminished and her aide was transferred. See Bob Herbert, In America; Freeze-Out at Police Plaza, N.Y. Times, July 13, 2000, attached as Ex. C to Kresky Decl. The other example plaintiff offers is the transfer of black police officers to the 70th precinct following the Abner Louima incident based on their race. See Katherine E. Finkelstein, Black Officers Win Lawsuit Over Move to Louima Precinct, N.Y. Times, June 16, 2000, attached as Ex. B to Kresky Decl. However, it was never alleged that this transfer was made in retaliation against outspoken police officers.
Plaintiff's allegation that the City has a custom or policy of engaging in unlawful employment practices based on race need not be considered as plaintiff's claims of race discrimination have failed as a matter of law. Whether such an unlawful policy exists is no longer relevant.
The Amended Complaint does not state that plaintiff is suing Safir in his personal capacity, but this is assumed as a claim against Safir in his official capacity would be deemed a claim against the City itself.See Walton, 2000 WL 1741676, at *9 (recognizing that suits brought against government officials in their official capacities are only another way of bringing an action against the entity of which the officer is an agent).
Plaintiff "cannot bring a § 1983 claim against individuals based solely on their supervisory capacity or the fact that they held high positions of authority." Thomas v. Coombe, No. 95 Civ. 10342, 1998 WL 391143, at *6 (S.D.N.Y. July 13, 1998). A plaintiff must demonstrate a supervisory official's personal involvement in the alleged constitutional violations to recover damages under section 1983. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). The "[f]ailure to set forth facts pertaining to such personal involvement results in a `fatally defective' complaint." Murphy v. Neuberger, No. 94 Civ. 7421, 1996 WL 442797, at *3 (S.D.N.Y. Aug. 6, 1996) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)). Personal involvement on the part of supervisor can be found in the following ways:
(1) the [supervisor] participated directly in the alleged constitutional violation, (2) the [supervisor], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [supervisor] created a policy or custom under which constitutional violations occurred, or allowed the continuance of such a policy or custom; (4) the [supervisor] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [supervisor] exhibited deliberate indifference to the rights of [plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d at 873 (quotation marks and citation omitted) (emphasis added); see also Wright, 21 F.3d at 501.
Defendants argue, and this Court agrees, that Safir was not personally involved based solely on his failure to respond to letters sent by Davis. Cf. Colon v. Coughlin, 58 F.3d at 873 (plaintiff's allegation that the superintendent of a correctional facility did not respond to his letter of his complaint did not raise a triable issue of fact where the contents of the letter were not specified); Higgins v. Artuz, No. 94 Civ. 4810, 1997 WL 466505, at *7 (S.D.N.Y. Aug. 14, 1997) (Sotomayor, J.) ("it is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations") (quotation marks and citations omitted) (collecting cases); Garrido v. Coughlin, 716 F. Supp. 98, 100 (S.D.N Y 1989) (complaint against NYSDOCS Commissioner dismissed where his only alleged connection to the case was that "he ignored [plaintiff's] letter of protest and request for an investigation of the allegations in [the] action").
While plaintiff is not an inmate appealing to the commissioner of a correctional institution, his situation is not dissimilar given the position Safir had in the NYPD. Like those in charge of running a prison, Safir was in charge of managing the entire NYPD. Safir's duties did not involve personally responding to grievances filed by police officers. Accordingly, his failure to do so here cannot be deemed personal involvement in plaintiff's alleged injury.
While plaintiff points to the Marsh and Louima incidents in support of his claim that the City has a custom or policy of discriminatory assignment and retaliatory actions against outspoken officers, the Amended Complaint merely alleges, upon information and belief, that "Safir was actively involved in both of the aforesaid situations." Am. Compl. ¶ 61. This conclusory allegation of Safir's involvement is insufficient to establish his personal involvement in the alleged unconstitutional custom or policy of retaliating against outspoken police officers that adversely affected plaintiff. See Broduer v. City of New York, No. 96 Civ. 9421, 1998 WL 557599, at *7 (S.D.N.Y. Sept. 2, 1998),aff'd, 182 F.3d 8998 (2d Cir. 1999) (section 1983 claim against the Mayor dismissed where complaint contained no specific factual allegations allowing an inference that the Mayor was personally involved in depriving plaintiff of his civil rights); Smith v. Keane, No. 96 Civ. 1269, 1998 WL 146225, at *6 (S.D.N.Y. Mar. 25, 1998) (dismissing claims against supervisor where conclusory allegations in complaint lacked any particularized facts allowing a finding of supervisor's personal involvement in constitutional violations). Accordingly, Howard Safir is dismissed as a defendant from this lawsuit.
While Safir may have been personally involved in the Marsh case — a case involving a high-ranking Deputy Commissioner — this in no way demonstrates personal involvement in the instant case as plaintiff has not alleged that Safir created or maintained the unconstitutional custom or policy that adversely affected him.
G. New York State Claims
1. Intentional Infliction of Emotional Distress
To properly state a claim for intentional infliction of emotional distress, plaintiff must show: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress."Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). To satisfy the first element, the conduct must have been "so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Murphy v. American Home Prods. Corp., 461 N.Y.S.2d 232, 236 (1983) (quotation marks and citation omitted). Courts routinely dismiss claims for emotional distress in the employment on text in the absence of battery or sex discrimination. See Gerzog v. London Fog Corp., 907 F. Supp. 590, 604 (E.D.N.Y. 1995). Moreover, public policy bars intentional infliction of emotional distress against a government entity. See Lauer v. City of New York, 659 N.Y.S.2d 57, 58 (2d Dept. 1997)
Here, Davis fails to meet the first required element. He alleges "severe stress, anxiety and emotional trauma as a result of his summary termination." Am. Compl. ¶ 55. This is not a case where, for example, "severe mental pain or anguish [was] inflicted through a deliberate and malicious campaign of harassment or intimidation." Nader v. General Motors Corp., 307 N.Y.S.2d 647, 654 (1970). Further, courts routinely deny attempts to bootstrap wrongful termination claims into intentional infliction of emotional distress claims. See, e.g., Leibowitz v. Bank Leumi Trust Co. of New York, 548 N.Y.S.2d 513, 521-22 (2d Dept. 1989) ("[P]laintiff should not be allowed to evade . . . or to subvert the traditional at-will rule by casting his cause of action in terms of a tort of intentional infliction of emotional distress."). The Amended Complaint merely alleges that plaintiff has stated a claim for intentional infliction of emotional distress. See Am. Compl. ¶ 69. Mere conclusory allegations are insufficient as a matter of law to support a claim for intentional infliction of emotional distress. See Ruffolo v. Oppenheimer Co., Inc., No. 90 Civ. 4593, 1991 WL 17857, at *2 (S.D.N.Y. Feb. 5, 1991), aff'd, 949 F.2d 33 (2d Cir. 1991). Furthermore, the "mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Huff v. West Haven Bd. of Educ., 10 F. Supp.2d 117, 123 (D. Conn. 1998) (quotation marks and citation omitted). Accordingly, plaintiff's intentional infliction of emotional distress claim is hereby dismissed as a matter of law.
2. Prima Facie Tort
To properly plead prima facie tort, a plaintiff must show: (1) intentional infliction of harm; (2) special damages; (3) by an otherwise lawful act. See Twin Labs., Inc. v. Weider Health Fitness, 900 F.2d 566, 571 (2d Cir. 1990). The Second Circuit has held that the crux of the claim is "disinterested malevolence", meaning that defendant's conduct must not only be harmful, but that the sole intent was to harm. Id. Because plaintiff does not allege that defendants were solely motivated by "disinterested malevolence", he does not properly state a claim for prima facie tort. Moreover, to the extent that plaintiff bases his cause of action on wrongful termination, it must be dismissed as there is no cause of action for the wrongful termination of an at-will employee based on prima facie tort. See Dailey v. Tofel, Berelson, Saxl Partners, P.C., 710 N.Y.S.2d 95, 96 (2d Dept. 2000). Because plaintiff has failed to establish that intention to harm him was the sole motive for his discharge, his claim of prima facie tort must be dismissed.See Angrisani v. City of New York, 639 F. Supp. 1326, 1338 (E.D.N.Y. 1986) ("New York State Courts have confined prima facie tort to extreme cases and have zealously prevented it from becoming a catchall for assorted tortious conduct.").
III. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is denied with respect to plaintiff's First Amendment retaliation claim. Defendants' motion is granted with respect to plaintiff's claims of racial discrimination and his state law claims. The claim that the City of New York has an unlawful custom or policy of retaliation against outspoken officers is sufficient; however, the claim alleging a custom or policy of unlawful employment actions based on race is not. Furthermore, all claims against Howard Safir are hereby dismissed. A conference has been scheduled for January 5, 2001 at 3:30 p.m.