Opinion
15-CV-3787 (WFK)(PK)
2016-09-12
R.A., Mandeep Kumar, and Mandeep Kumar, as the Father and Natural Guardian of Ivan Kumar and Ryan Kumar, Infants, Plaintiffs, v. The CITY OF NEW YORK and Harold Avalos, Individually and in his Official Capacity, Defendants.
Steven Alan Hoffner, Steven Alan Hoffner Attorney at Law, New York, NY, for Plaintiffs. Elissa Paulette Fudim, Corporation Counsel of The City of New York, Conor McNamara, Musa-Obregon & Associates, New York, NY, S. Michael Musa-Obregon, Musa-Obregon & Associates, Maspeth, NY, for Defendants.
Steven Alan Hoffner, Steven Alan Hoffner Attorney at Law, New York, NY, for Plaintiffs.
Elissa Paulette Fudim, Corporation Counsel of The City of New York, Conor McNamara, Musa-Obregon & Associates, New York, NY, S. Michael Musa-Obregon, Musa-Obregon & Associates, Maspeth, NY, for Defendants.
DECISION & ORDER
WILLIAM F. KUNTZ, II, United States District Judge
R.A. and Mandeep Kumar, in his individual capacity and as the father and natural guardian of Ivan Kumar and Ryan Kumar, (collectively, "Plaintiffs") bring this action against The City of New York ("Defendant City") and Harold Avalos, individually and in his official capacity. Defendant City moves to dismiss Plaintiffs' Monell claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons below, the Court GRANTS Defendant City's motion to dismiss.
The background is taken from the Third Amended Complaint. See Third Am. Compl., ECF No. 19.
On September 28, 2012, Mandeep Kumar called 911 due to an argument with his common-law wife, R.A. Third Am. Compl. ¶ 9. Defendant Avalos, a police officer, responded to the call and began flirting with R.A. Id. ¶ 10. Defendant Avalos provided his cell phone number to R.A. and received what he believed was R.A.'s phone number, actually belonging to R.A.'s sister. Id. ¶ 12.
The following day, R.A.'s sister received a text message from Defendant Avalos, telling R.A. to call him right away, which R.A. did. Id. ¶¶ 13-14. The call resulted in R.A. obtaining an order of protection against her common-law husband. Id. ¶¶ 14-15. About one week later, Defendant Avalos visited R.A. at her mother's house "as her domestic violence officer." Id. ¶¶ 16-17. Defendant Avalos and R.A. then spoke daily for the next couple of weeks. Id. ¶ 19.
In early November 2012, about one month after the initial 911 call, Defendant Avalos called R. A. to inform her that she was going to be arrested because Plaintiff Kumar made a complaint against her. Id. ¶ 20. On the night of November 11, 2012, Defendant Avalos visited R.A. Id. ¶¶ 22. Defendant Avalos informed her that the two of them should not be seen together, as he was not permitted to help her pending her arrest. Id. As a result, the two went to the Boulevard Motel, where Defendant Avalos attempted to kiss R.A. Id. ¶¶ 22-23, 50. Over the next few weeks, Defendant Avalos and R.A. continued talking and texting. Id. ¶ 25.
On December 3, 2012, Defendant Avalos and R.A. went out to a bar for R.A.'s birthday. Id. ¶¶ 26-27. Defendant Avalos drank "many" beers and ordered about five shots of tequila for R.A. Id. ¶ 27. R.A. became very drunk and asked to be taken home. Id. The two got into a taxi where R.A. "blacked out." Id.
When R.A. awoke, she found herself and Defendant Avalos without clothes. Id. ¶ 28. Defendant Avalos told R.A. that they were in a motel room and had had sex. Id. Defendant Avalos showed R.A. naked pictures of herself and of the two having sex, and informed R.A. that he had filmed the sexual encounter. Id. ¶ 29. Defendant Avalos then threatened to expose R.A. should she speak with anybody about the encounter. Id. ¶ 30. The two continued to text and to talk for the next three months. Id. ¶ 32.
Sometime in March of 2013, R.A. agreed to meet with Defendant Avalos at the Boulevard Motel on the condition that he delete the photos and video once there. Id. ¶¶ 33, 51. When Defendant Avalos refused to delete the photos, R.A. tried to walk away, but Defendant Avalos grabbed her by her hair and raped her. Id. ¶ 34. Defendant Avalos again threated R.A. into silence. Id. ¶¶ 35-36.
On June 29, 2015, R.A. and Mandeep Kumar filed a complaint against the City of New York and Harold Avalos, individually and in his official capacity. Compl., ECF No. 1. On January 12, 2016, Plaintiffs filed a Third Amended Complaint. See Third Am. Compl. On February 12, 2016, Defendant City moved to dismiss the Monell claim against it under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 21-23.
Plaintiffs substituted the Third Amended Complaint before Defendant City's motion to dismiss. See Mot. Dismiss at 1, ECF No. 21 (moving to dismiss "plaintiffs' second amended complaint"). The Monell claim in the Third Amended Complaint, however, is substantively identical to the Monell claim in the Second Amended Complaint.
DISCUSSION
I. Legal Standard
A. Motion to Dismiss
To survive a motion to dismiss, a complaint must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[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 , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible "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. The pleading standard of Rule 8 does not require "detailed factual allegations," but demands "more than labels and conclusions" and "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
A defendant may move to dismiss a complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted before filing a responsive pleading. Fed. R. Civ. P. 12(b)(6). "In ruling on a motion pursuant to Fed. R. Civ. P. 12(b)(6), the duty of a court ‘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.’ " DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 113 (2d Cir.2010) (quoting Cooper v. Parsky , 140 F.3d 433, 440 (2d Cir.1998) ). The court "accept[s] all factual allegations in the complaint as true and draw[s] all reasonable inferences in [the] plaintiffs favor." In re Thelen LLP , 736 F.3d 213, 218 (2d Cir.2013). Nonetheless, courts " ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ " Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).
B. Municipal Liability Under Monell
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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[.]
42 U.S.C. § 1983. In Monell v. Department of Social Services of the City of New York , the Supreme Court extended liability under § 1983 to include municipalities and other local government units. 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Supreme Court, however, limited municipality liability to constitutional torts caused by the municipality itself. Id. at 691, 98 S.Ct. 2018. In other words, "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. ; accord id. ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents."). Thus, in order to state a § 1983 claim against a municipality, a plaintiff must allege a constitutional deprivation caused by the municipality through an official policy or custom of the municipality. Id. at 690–91, 98 S.Ct. 2018.
The instant action presents two bases for Monell liability: failure to train and failure to supervise. See Mot. Dismiss at 6, ECF No. 21 ("Here, plaintiffs appear to proceed under the fourth type of liability [a failure to train or supervise]."); Opp. Mot. Dismiss at 4-5, ECF No. 22 ("In order to successfully plead a claim of Monell liability for failure to supervise under Section 1983 [.]"); see also Third Am. Compl. ¶ 89. "[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (emphasis added). The failure to supervise can also serve as a basis for § 1983 liability where "policymakers [are] knowingly and deliberately indifferent to the possibility that its police officers [are] wont to violate the constitutional rights of [individuals]." Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 127 (2d Cir.2004) (emphasis added) (internal quotation marks and citation omitted).
In order to establish a Monell claim under either failure to train or failure to supervise, a plaintiff must establish deliberate indifference by the municipality. " ‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Bryan Cty. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). "A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train." Id. (quoting Bryan Cty., 520 U.S. at 409, 117 S.Ct. 1382 ). "Single-incident" liability is rare. See id. at 63–64, 131 S.Ct. 1350 (discussing the single-incident liability hypothesized in City of Canton , 489 U.S. at 409, 109 S.Ct. 1197, as "a narrow range of circumstances" and "rare").
II. Analysis
Plaintiffs bear the burden of establishing "deliberate indifference" on the part of Defendant City. Plaintiffs claim the Third Amended Complaint sufficiently pleads deliberate indifference to survive Defendant City's motion to dismiss, pointing to (A) nine complaints against Defendant Avalos recorded on the N.Y.P.D.'s personnel file and (B) seven newspaper articles on the "boys will be boys" culture within the N.Y.P.D. See Third Am. Compl. ¶¶ 92, 95. Neither the complaints nor the newspaper articles, taken individually or together, show deliberate indifference by Defendant City.
A. Personnel File
Plaintiffs cite nine complaints against Defendant Avalos on the N.Y.P.D.'s personnel file to support their claim of Defendant City's deliberate indifference towards Defendant Avalos's misconduct. Id. ¶¶ 92-93. The Court finds these complaints insufficient to establish deliberate indifference by Defendant City.
At most, the nine complaints demonstrate that Defendant City kept Defendant Avalos as a domestic-violence officer despite knowing his propensity for starting sexual relationships with women in domestic-violence cases. This is not enough. To establish deliberate indifference, Plaintiffs must show that Defendant City was on notice that it was highly predictable that Defendant Avalos would face "a difficult choice of the sort that training or supervision will make less difficult." Walker v. New York , 974 F.2d 293, 297 (2d Cir.1992) ; see also Connick , 563 U.S. at 71, 131 S.Ct. 1350 (describing "gray areas" in which the failure to train will "so obviously" result in wrong decisions). The complaints against Defendant Avalos show a conscious decision by Defendant Avalos to commit sexual assault, which does not present a "difficult choice" for which further training would prevent. See Noonan v. City of New York , 14CV4084, 2015 WL 3948836, at *4 (S.D.N.Y. June 26, 2015) (Swain, J.) ("The decision to commit a sexual assault—a blatantly criminal act—cannot reasonably be seen as posing the type of ‘difficult choice’ contemplated by the Second Circuit in Walker ."); Doe v. City of New York , 09 CIV. 9895, 2013 WL 796014, at *3 (S.D.N.Y. Mar. 4, 2013) (Scheindlin, J.), aff'd, 558 Fed.Appx. 75 (2d Cir. 2014) (finding an officer's decision to rape an intoxicated Jane Doe in responding to a 911 call did not constitute a "difficult choice of the sort that training or supervision will make less difficult" (citing Walker , 974 F.2d at 298 )).
B. Newspaper Articles
Plaintiffs also list seven newspaper articles to support their claim that Defendant City was deliberately indifferent to the "boys will be boys" culture that "directly led to other instances of sexual misconduct by police officers." Third Am. Compl. ¶¶ 92-97.
"Newspaper articles are hearsay ... and therefore are not admissible evidence of New York City Police Department policy or custom (although they might be admissible to show notice to the City of allegations of misconduct)." McAllister v. New York City Police Dep't, 49 F.Supp.2d 688, 705 n. 12 (S.D.N.Y.1999) (Wood, J.). The articles also fail to evidence notice to Defendant City of sexual misconduct by N.Y.P.D. officers. First, many of the newspaper articles reference incidents that occurred after the events in this case. See Mot. Dismiss at 8-12 (extracting the cases upon which the newspaper articles were based). Second, all of the newspaper articles reference cases not yet adjudicated. As such, the newspaper articles establish only that other individuals have experienced similar violations of their constitutional rights as Plaintiffs allege here, not that the violations underlying those actions actually occurred. Simms v. City of New York , 480 Fed.Appx. 627, 630 (2d Cir.2012). As a result, these seven newspaper articles fail to establish deliberate indifference by Defendant City.
* * *
Plaintiffs have not sufficiently alleged a deliberate indifference on the part of Defendant City, even considering Defendant Avalos's personnel file and the newspaper articles in combination.
CONCLUSION
For the reasons discussed above, the Court GRANTS Defendant City's motion to dismiss and hereby dismisses Plaintiffs' Monell claim.