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holding that complaint that “contain[ed] only an unsupported conclusory allegation that the City failed to train the individual Defendants” could not withstand a motion to dismiss because plaintiff did not plead any facts that “plausibly allege[d] a specific deficiency in the training or supervision program”
Summary of this case from Carris v. First Student, Inc.Opinion
06 CV 09426
02-15-2011
THOMAS JOHNSON, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
MEMORANDUM DECISION AND ORDER
:
Plaintiff Thomas Johnson brought this suit against the City of New York (the "City") for "tortious, illegal and unconstitutional acts [by police officers of the New York Police Department ("NYPD")], which resulted in the assault and wrongful arrest, detention and prosecution of [Plaintiff,] which caused him to suffer severe emotional and psychological trauma, physical injuries, violation of civil rights and financial loss," Complaint ¶ 1. Plaintiff asserted a claim pursuant to 42 U.S.C. § 1983 for violation of his First, Fourth, Eight, Thirteenth, and Fourteenth Amendment rights, alleging that Defendant arrested and detained him without probable cause, used excessive force, and assaulted, seized, harassed, and intimidated him. Plaintiff also asserted claims for: (1) assault and battery; (2) false arrest and imprisonment; (3) intentional infliction of emotional distress; (4) negligent hiring and supervision; and (5) violation of Article 1, section 7 of the New York State Constitution.
Plaintiff refers to various NYPD personnel as "individual defendants." Complaint ¶ 4. There is no indication, however, that any of the named individual officers have been served with process or otherwise brought in as a defendants.
On March 31, 2009, Defendant "respectfully request[ed] leave to file a motion to dismiss claims in plaintiff's complaint in their entirety under Fed. R. Civ. P. 12(b)(6) or summary judgment under Rule 56." Letter from David M. Pollack, counsel for Defendant, to the Honorable George B. Daniels (March 31, 2009), Docket #13, at 3. On January 29, 2010, Defendant requested that this Court treat the March 31, 2009 Letter Motion as a motion to dismiss or, in the alternative, endorse the proposed briefing schedule. To date, this Court has not received a response or other correspondence from Plaintiff. Accordingly, Defendant's request is GRANTED, and this Court will consider the arguments alleged in Defendant's March 31, 2009 Letter Motion as an unopposed motion to dismiss for failure to state a claim.
Plaintiff's counsel received this letter via ECF.
Plaintiff's counsel received this letter via Fax.
BACKGROUND
On August 19, 2004, Plaintiff, an African-American, was shopping in various stores between 135th Street and 145th Street and Broadway in New York, New York. Complaint ¶ 11, 15. As Plaintiff and his friend, who is not African American, returned to his friend's car and prepared to return home, Plaintiff was approached by Detectives Lebron and Torres of the NYPD. Id. ¶ 11, 15. Plaintiff alleges that he was unarmed and had not engaged nor had been engaging in any criminal activity when confronted by police officers. Id. ¶ 12.
Plaintiff alleges that the Detectives refused to adequately identify themselves as members of the NYPD. Id. ¶ 13. Plaintiff further alleges that he was "questioned, and subsequently pulled from the car, searched, pushed, wrestled to the ground, struck, punched and kicked repeatedly, and sprayed with mace." Id. ¶¶ 11, 14. Plaintiff claims that he "was then illegally arrested, detained, threatened, imprisoned, and prosecuted." Id. ¶ 11.
Plaintiff alleges that in the patrol car the Detectives questioned him"without informing him of his rights pursuant to People v. Miranda [sic]." Id. ¶ 15. Plaintiff contends that the Detectives also made threatening comments, and badgered and taunted him. Id. Neither the Detectives nor any other member of the NYPD transported Plaintiff to any hospital or medical facility, despite Plaintiff's repeated requests. Id. ¶ 24
Plaintiff was charged with: unlawful possession of marijuana (New York State Penal Law ("P.L.") 221.05; resisting arrest (P.L. 205.30); grand larceny in the third degree (P.L. 155.30); three counts of assault in the second degree (P.L. 120.05); robbery in the third (P.L. 160.05); robbery in the second degree (P.L. 160.10); and criminal possession of a controlled substance in the second degree (P.L. 220.18). Id. ¶ 11. Plaintiff's friend was not prosecuted. Id. ¶ 15. Plaintiff was kept in jail for over five and one-half months. Id. ¶ 27. Plaintiff was found not guilty on all counts except for possession of marijuana and resisting arrest. Id. ¶ 1.
STANDARD OF REVIEW
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
The task of the court in ruling on a motion to dismiss is to "assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." In re Initial Pub. Offering Sec. Litig., 383 F. Supp. 2d 566, 574 (S.D.N.Y. 2005) (internal quotation marks and citation omitted). The court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs favor. See Chambers v. Time Warner. Inc., 282 F.3d 147, 152 (2d Cir. 2002). In deciding a motion to dismiss, the Court is not limited to the face of the complaint. The Court "may [also] consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, . . . and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit." ATSI Commc'ns v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
SECTION 1983 CLAIMS
A municipality cannot be held liable under § 1983 solely because it employs a tortfeasor or solely on a respondeat superior theory. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). A municipality is not considered a "person" subject to liability under § 1983 unless "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or is "pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91.
Courts in the Second Circuit apply a two prong test. First, a plaintiff must "prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer." Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (citation omitted), cert. denied, 480 U.S. 916 (1987). A plaintiff may satisfy this requirement by alleging that: "(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees." Brandon v. City of New York, 705 F. Supp. 2d 261, 276-277 (S.D.N.Y. 2010) (quoting Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) and updating cases) (citations listed as footnotes). Second, a plaintiff must "establish a causal connection -- an 'affirmative link' -- between the policy and the deprivation of his constitutional rights." Id.
See Monell, 436 U.S. at 690.
See Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404-06 (1997); 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).
See Bd. of County Comm'rs, 520 U.S. at 403-04; City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Monell, 436 U.S. at 690-91.
See Bd. of County Comm'rs, 520 U.S. at 407; City of Canton v. Harris, 489 U.S. 378, 388 (1989).
A. MUNICIPAL POLICY OR CUSTOM
The Complaint lacks sufficient factual allegations to demonstrate the existence of a policy or custom by the City or NYPD. The Complaint solely describes Plaintiff's alleged experience. Plaintiff never specifies the policy or custom to which he was subjected when his constitutional rights were allegedly violated. Plaintiff does not even allege sufficient facts about his or similar others' experiences that, if true, would raise an inference of the existence of a formally recognized or explicit rule or regulation adopted by the City or the NYPD. Merely alleging that the alleged wrongdoing by the Detectives and other NYPD personnel was "part of a policy or custom employed by Defendant," Complaint ¶¶ 42, 49, is insufficient.
None of the alleged wrongdoers - that is, three detectives, two sergeants, and a police officer, see Complaint ¶ 4 - are alleged to be policymakers for the NYPD or the City. Nor can such authority be assumed to be possessed by these individuals based upon their titles. The Complaint thus lacks any factual allegations that, if proven, would establish that the alleged wrongdoers acted with final policy-making authority with respect to decisions that caused Plaintiff's alleged constitutional deprivations. See Birmingham v. Ogden, 70 F. Supp. 2d 353, 374 (S.D.N.Y. 1999) ("Under Pembaur, the decisionmaker must be responsible for establishing final government policy respecting the particular activity before the municipality can be liable.") (citing Pembaur, 475 U.S. at 479).
The Complaint lacks factual allegations demonstrating a consistent and widespread practice by the NYPD. "[A] single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Here, Plaintiff alleges only a string of single incidents - namely, excessive force, false arrest, detention, denial of medical treatment, and false prosecution. Plaintiff never alleges that any of these single incidents occurred more than once. Plaintiff also never alleges that NYPD personnel have been responsible for similar incidents in the past.
Finally, the Complaint does not adequately allege a failure to train or supervise. A mere failure to train is insufficient to establish municipality liability. In the Second Circuit, a plaintiff must show that: (1) "a policymaker knows to a moral certainty that her employees will confront a given situation"; (2) "the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation"; and (3) "the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007).
The failure must "amount[] to deliberate indifference to the rights of persons with whom the police come into contact" for liability to attach. City of Canton v. Harris, 489 U.S. 378, 388 (1989). That is, there must be "a deliberate City policy of failing to train its police officers in how to interact with [particular] individuals." Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir. 2003).
The Complaint contains only an unsupported conclusory allegation that the City failed to train the individual Defendants: "during the period of defendants' employment, defendant NYC, and the NYPD tacitly or explicitly encouraged the harassing and intimidating tactics perpetuated by the individual defendants due to their recklessness and gross negligence in the screening, hiring, training, supervising, and disciplining of defendants." Complaint ¶ 30. This allegation is insufficient. Plaintiff has not "pled any facts that plausibly allege a specific deficiency in the training or supervision program that accounts for deprivation of their constitutional rights." Marte v. New York City Police Dep't, 2010 U.S. Dist. LEXIS 109932, at *7-8 (S.D.N.Y. Oct. 12, 2010) (collecting cases). Plaintiff has not "pled facts suggesting that the constitutional deprivations they suffered were the consequence of training or supervisory deficiencies." Id. at 9. Plaintiff does not "identify procedural manuals or training guides, nor do they highlight relevant particular aspects of police training or supervision." Id.
B. CAUSAL CONNECTION
Even assuming, arguendo, that Plaintiff has pled sufficient facts to establish the existence of a policy or custom, the Complaint is devoid of factual allegations plausibly suggesting an affirmative link between a policy or custom and the alleged constitutional deprivations. Plaintiff simply relies upon conclusory assertions that a policy or custom existed and was employed by NYPD personnel. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) ("The mere invocation of the 'pattern' or 'plan' [will] not suffice without this causal link."). Plaintiff never identifies, not even on information and belief, the policy or custom at issue. Plaintiff has pled no facts to demonstrate that some unidentified policy or custom bears a causal link to the alleged constitutional violations - let alone that the policy or custom was the "moving force" behind the violations. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 n.8 (1985) ("The fact that municipal 'policy' might lead to 'police misconduct' is hardly sufficient to satisfy Monell's requirement that the particular policy be the 'moving force' behind a constitutional violation. There must at least be an affirmative link between [for example] the training inadequacies alleged, and the particular constitutional violation at issue,"); Batista, 702 F.2d at 397 (2d Cir. 1983) ("Absent a showing of a causal link between an official policy or custom and the plaintiff's injury, Monell prohibits a finding of liability against the City.").
Accordingly, Plaintiff's factual allegations against the City are not sufficient to warrant municipal liability. The § 1983 claim is therefore dismissed. To the extent that Plaintiff has alleged a § 1985 claim, that claim is also dismissed. See Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979) (holding that like § 1983 claims, municipal liability under Section 1985(3) must be predicated on "official custom or policy" of municipality), cert. denied, 444 U.S. 980 (1979).
Furthermore, Plaintiff is barred from recovery for some of the alleged conduct underlying Plaintiff's section 1983 claim. Plaintiff's conviction precludes allegations of false arrest and/or imprisonment, whether alleged as a state law claim or a basis for relief under § 1983 claim. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) ("The existence of probable cause to arrest constitutes justification and 'is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983.") (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); other citations omitted); see also Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) ("[A] plaintiff is not entitled to damages under § 1983 for false arrest so long as the arrest itself was supported by probable cause, regardless of whether probable cause supported any individual charge identified by the arresting officer at the time of arrest."); Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986) ("a conviction of the plaintiff following the arrest is viewed as establishing the existence of probable cause"), cert. denied, 481 U.S. 1016 (1987); Broughton v. State, 37 N.Y.2d 451, 458 (1975). Plaintiff's allegations of "negligent action" by the City of New York are also not a cognizable basis for relief under § 1983. See Daniels v. Williams, 474 U.S. 327, 328-31 (1986); Davidson v. Cannon, 474 U.S. 344, 347-48 (1986); Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996); see also Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) ("Clearly, a violation of state law is not cognizable under § 1983.") (citing Davis v. Scherer, 468 U.S. 183, 193 (1984)).
The Complaint does not identify § 1985 as a basis for relief. However, paragraph 36 does refer to "defendants conspir[ing] among themselves to deprive plaintiff of his constitutional rights."
REMAINING CLAIMS
Subject matter jurisdiction in the instant action is predicated upon federal question jurisdiction. Having failed to state a federal cause of action, this Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state and common law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial . . . the state claims should be dismissed as well."); see also 28 U.S.C. § 1367(a), (c) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction."). Plaintiff's common law and state law claims are therefore dismissed.
CONCLUSION
Defendant's motion to dismiss is GRANTED. Plaintiff's Complaint is hereby dismissed. Dated: New York, New York
Plaintiff's failure to respond to the motion, communicate with this Court, or otherwise pursue this litigation is an independent ground to dismiss this case for failure to prosecute.
February 15, 2011
SO ORDERED:
/s/_________
GEORGE B. DANIELS
United States District Judge