Stern v. City of New York et al
REDACTED MEMORANDUM & ORDER: For the foregoing reasons, Defendants' motion to dismiss Plaintiff's Monell claim against the City is DENIED. Each Defendant is hereby DIRECTED to file an Answer to the FAC within fourteen (14) days of entry of this Memorandum and Order. So Ordered by Judge Nicholas G. Garaufis on 2/27/2014. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
12-CV-5210 (NGG) (RER)
-againstTHE CITY OF NEW YORK, P.O. GEORGE
SHAMMAS, Shield No. 2781, P.O. DANIEL
CASTILLO, DEPUTY SHERIFF SERGIO
BOCANUMENTH, DEPUTY SHERIFF
DENISE SHENTON, Individually and in their
NICHOLAS G. GARAUFIS, United States District Judge.
Before the court is Defendants' partial motion to dismiss Plaintiff's First Amended
Complaint (the "FAC") pursuant to Federal Rule of Civil Procedure 12(c). (Not. of Mot. to
Dismiss (Dkt. 57).) Plaintiff Mitchell Stem brings this Section 1983 action against Defendant
the City of New York ("the City") and four individual police officers (the "Individual
Defendants"), alleging that the officers used excessive force in falsely arresting and imprisoning
him during an incident that occurred on December 16, 2009. (FAC (Dkts. 42-43 1).). Plaintiff
further contends that the City is responsible for his injuries due to its decision inadequately to
discipline one of the Individual Defendants, Police Officer George Shammas, for prior conduct.
(Id. iii! 56-62.) Defendants move to dismiss the claims against the City on the grounds that
Plaintiff has failed adequately to state a claim for municipal liability. (Not. of Mot. to Dismiss.)
For the reasons set forth below, the motion is DENIED.
The FAC was filed under seal, as it contains information regarding Defendant Police Officer George Shammas's
disciplinary history. A redacted version is filed at Dkt. 43.
For the purposes of contemplating Defendants' motion to dismiss, the court accepts as
true the following facts alleged in Plaintiff's FAC. Only certain of the facts alleged by Plaintiff
in the FAC are recounted below.
The December 16, 2009, Incident
Plaintiff's claims arise out of an incident that occurred on the morning of December 16,
2009, at Plaintiff's home in Staten Island, New York. (FAC iJ 16.) Plaintiff alleges that two
deputy sheriffs arrived at his home and began to tow his vehicle. ilib_) Plaintiff objected to the
towing, and asked the deputy sheriffs to call their supervisor so that Plaintiff could discuss his
objection. (Id. iii! 17-18.) Plaintiff also requested permission to use his vehicle to drive his
autistic son to school, and then surrender it to the deputy sheriffs. (Id.
iJ 17 .)
upon information and belief that the deputy sheriffs then called the New York City Police
Department ("NYPD"), rather than their supervisor. (Id. iJ 19.)
Shortly after the tow truck removed Plaintiff's vehicle from in front of his home,
Defendants Shammas and Police Officer Daniel Castillo arrived at the scene.
ilib. iJ 20.)
Plaintiff approached Shammas and Castillo and, referencing his twenty plus years of service with
the Emergency Medical Service, requested their assistance in negotiating a resolution that would
at least allow Plaintiff to drive his son to school that day. (Id.
expletives and hostility, stating, for example, "fuck EMS." (Id.
Shammas responded with
Plaintiff stated that
Shammas's conduct was inappropriate and wrote down his name and badge number. (Id.) When
the verbal confrontation appeared to be over, Plaintiff proceeded up the stairs toward his house,
while Shammas and Castillo began to return to their vehicle.
ilib. iii! 21-22.)
Shammas then stated loudly that he needed to arrest Plaintiff "in order to protect himself." (ML.
if 23.) Shammas jumped on Plaintiffs back, pinning him against the front wall of his house.
(ML.) Shammas punched, kicked, and choked Plaintiff, with the assistance of Castillo and the two
deputy sheriffs, who were still at the scene. (Id.) The officers handcuffed Plaintiff and
transported him to a police precinct for processing; he was then arraigned on misdemeanor
charges of obstruction of governmental administration and resisting arrest, and released on his
own recognizance. (Id.
if 27.) The criminal case against Plaintiff was later dismissed and sealed.
Shammas's Prior Conduct and Plaintiffs Allegations Against the City
Plaintiff filed this action on October 17, 2012. (Campi. (Dkt. 1).) The City filed an
Answer on January 15, 2013 (Dkt. 11), Defendants Deupty Sheriff Sergio Bocanumenth and
Deputy Sheriff Denise Stenton filed an Answer on March 15, 2013 (Dkt. 17), and Shammas and
Castillo filed an Answer on April 2, 2013 (Dkt. 21 ). During a court conference held on October
31, 2013, the court granted Plaintiff leave to amend his pleading following the close of limited
discovery. (Nov. 1, 2013, Min. Entry.) Plaintiff filed the FAC on April 3, 2014. (Dkts. 42-43.)
Defendants did not answer the FAC. Instead, on July 10, 2014, all Defendants filed their fully
briefed partial motion to dismiss the FAC. (Dkts. 57-61, 63-64.)
Rule 12(c) Motion to Dismiss
As an initial matter, the parties dispute the proper vehicle for Defendants' motion.
Defendants' notice of motion and memoranda oflaw cite Federal Rule of Civil Procedure 12(c),
but Plaintiff correctly notes that Rule 12(c) is not available, since Defendants have yet to answer
the FAC, which was filed with leave of the court and is the operative complaint in this action.
(Mem. of Law in Opp'n to Mot. to Dismiss ("Pl. Mem.") (Dkts. 60, 63) at 1 n. l.)
Nevertheless, Plaintiff has consented to treating Defendants' motion to dismiss as one
made pursuant to Federal Rule of Civil Procedure l 2(b )(6) for failure to state a claim. (Id.) The
same legal standard applies to a Rule 12(b)(6) motion as a Rule 12(c) motion. Ziemba v.
Wezner, 366 F.3d 161, 163 (2d Cir. 2004) ("In deciding a Rule 12(c) motion, we apply the same
standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained
in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party."
(quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999))). Accordingly, the court will
treat the motion to dismiss as one brought under Rule 12(b)(6). See, e.g., Foti v. NCO Fin. Sys.,
Inc., 424 F. Supp. 2d 643, 653 (S.D.N.Y. 2006) (treating Rule 12(c) motion to dismiss an
amended complaint as a Rule 12(b)(6) motion to dismiss, since no answer to the amended
complaint had been filed).
The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to
test the legal sufficiency of a plaintiffs claims for relief. Patane v. Clark, 508 F.3d 106, 112 (2d
Cir. 2007). In reviewing the complaint, the court accepts as true all allegations of fact, and
draws all reasonable inferences from these allegations in favor of the plaintiff. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A complaint survives a
motion to dismiss if it contains "sufficient factual matter, accepted as true, 'to state a claim to
reliefthat is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility "is not akin to a probability
requirement," but requires "more than a sheer possibility that a defendant has acted unlawfully."
Id. at 678 (internal quotation marks omitted). "A claim has facial plausibility 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. "[M]ere 'labels and conclusions' or 'formulaic
recitation[s] of the elements of a cause of action will not do'; rather, the complaint's '[f]actual
allegations must be enough to raise a right to relief above the speculative level."' Arista
Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 555).
A municipality cannot be held liable pursuant to 42 U.S.C. § 1983 under a theory of
respondeat superior. Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 692 (1978).
However, under Monell, a municipality may be held liable for the constitutional violations of its
employees when such violations result from the municipality's official policy. Id. at 693. Such
a policy may be (I) an express policy, (2) "a widespread practice that, although not authorized by
written law or express municipal policy, is 'so permanent and well settled as to constitute a
'custom or usage' with the force of law,"' City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988) (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 168 (1970)), or (3) a decision by a
person with "final policy making authority," see City of St. Louis, 485 U.S. at 112; Pembaur v.
City of Cincinnati, 475 U.S. 469 (1986). Here, Plaintiff focuses on the third category.
A decision by a municipal policymaker on even "a single occasion" may expose the
municipality to Section 1983 liability. Pembaur 475 U.S. at 471; see also Amnesty Am. v. Town
of W. Hartford, 361 F .3d 113, 126 (2d Cir. 2004) ("[A] single instance of deliberate indifference
to subordinates' actions can provide a basis for municipal liability."). Where, as here, a plaintiff
alleges that a subordinate municipal employee committed a constitutional violation, "municipal
liability turns on the plaintiff['s] ability to attribute the subordinate['s] conduct to the actions or
omissions of higher ranking officials with policymaking authority." Amnesty Am., 361
F .3d at 126. One method of implicating the higher ranking official "is to show that the
policymaker was aware of a subordinate's unconstitutional actions, and consciously chose to
ignore them, effectively ratifying the actions." Id.; see also City of Canton v. Harris, 489 U.S.
378, 396 (1989) (O'Connor, J., concurring in part and dissenting in part) ("Where a Section 1983
plaintiff can establish that the facts available to city policymakers put them on actual or
constructive notice that the particular omission is substantially certain to result in the violation of
the constitutional rights of their citizens, the dictates of Monell are satisfied.").
Among the types of municipal policies and customs that can give rise to Monell liability
is the failure to monitor or supervise employees. See, e.g., Vann v. City of New York, 72 F.3d
1040 (2d Cir. 1995). In these cases, "[a] Section 1983 plaintiff injured by a police officer may
establish the pertinent custom or policy by showing that the municipality, alerted to the possible
[constitutional violation], exhibited deliberate indifference." Id. at 1049. "To prove such
deliberate indifference, the plaintiff must show that the need for more or better supervision to
protect against constitutional violations was obvious." Id. "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." Id. The Supreme Court has
cautioned, however, that deliberate indifference "is a stringent standard of fault." Connick v.
Thompson, 131 S. Ct. 1350, 1360 (2011) (quoting Bd. ofCnty. Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 410 (1997)). "The operative inquiry is whether the facts suggest that the
policymaker's inaction was the result of a 'conscious choice' rather than mere negligence."
Amnesty Am., 361 F.3d at 128.
A plaintiff bringing a Monell claim also must establish a causal connection between the
municipality's official policy and the constitutional violation. See Cash v. Cnty. of Erie,
654 F.3d 324, 340 (2d Cir. 2011) (describing causation element for Monell claims in terms of
"proximate causation"); Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (describing
causation element as requiring a showing that municipality was the "moving force" behind the
injury (quoting Bryan Cnty., 520 U.S. at 404)); see also City of Canton v. Harris, 489 U.S. 378,
385 (1989) (examining "whether there is a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation"). A plaintiff may prove the causation element
by showing "that while the policymaker himself engaged in 'facially lawful ... action,' he
indirectly caused the misconduct of a subordinate municipal employee." Jeffes v. Barnes,
208 F.3d 49, 61 (2d Cir. 2000) (quoting Bryan Cnty., 520 U.S. at 405-07). If adequately alleged,
causation is a question of fact for the jury. Id.
Defendants argue that Plaintiff has failed adequately to allege ( 1) the existence of a
municipal policy and (2) that the policy caused the underlying constitutional violations alleged
by Plaintiff. For the reasons discussed below, neither argument is meritorious at this stage in the
procee d mg.
The City also argues that to the extent Plaintiff asserts negligence-based claims, they are barred by his failure to
comply with conditions precedent to filing suit. (Mem. of Law in Supp. of Mot. to Dismiss ("Defs. Mem.")
(Dkt. 59) at 8.) Although the F AC refers at times to the City's "negligent hiring, negligent supervision, and
negligent retention" ofShammas (see, e.g., FAC iJ 60), Plaintiff now concedes that he does not allege any
The parties dispute how Plaintiffs Monell claim should be categorized. Plaintiff
concedes that he "does not allege the existence of a municipal-wide policy of practice, such as
'failure to train."' (Pl. Mem. at 18.) Rather, Plaintiff argues that he has adequately alleged a
Monell claim premised "on the acts taken by a municipal official who possesses final decisionmaking authority over the type-of-acts complained of .... " (kL. at 11-12.) In their opening
brief, Defendants ignore the "municipal policymaker" line of cases and focus on pattern or
practice cases (Defs. Mem. at 3-6), but in reply Defendants also argue that Plaintiffs allegations
do not fit within "'the narrow range of circumstances' where a policymaker[']s single municipal
hiring decision can reflect deliberate indifference .... " (Defs. Reply Mem. in Supp. of Mot. to
Dismiss ("Defs. Reply") (Dkt. 61, 64) at 2 (quoting Bryan Cnty., 520 U.S. 397).)
Plaintiffs allegations, iftaken as true, meet the requirements of Monell and its progeny.
Plaintiff alleges that
Plaintiff does not
negligence claims based on state law. (Pl. Mem. at 21; see also F AC ~ 61 (referring to reckless or knowing conduct
by the City).) Thus, the court need not address whether Plaintiff exhausted any state administrative remedies in
connection with his Monell claim. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496 (1982). As discussed below,
for purposes ofa Rule 12(b)(6) motion, Plaintiff adequately has alleged deliberate indifference on the part of the
City. Of course, to survive summary judgment or to win at trial, Plaintiff will need to submit evidence showing
more than mere negligence by the City.
allege that the City failed to screen Shammas when he originally was hired or that the City failed
to train Shammas. Rather, Plaintiff makes specific factual allegations regarding Shammas's
actual record and the City's actual response to that record. For the purposes of a Rule 12(b)(6)
motion to dismiss, this is sufficient. See, e.g., Nesbitt v. Cnty. of Nassau, No. 05-CV-5513 (JG),
2006 WL 3511377, at *2-5 (E.D.N.Y. Dec. 6, 2006); Lovell v. Comsewogue Sch. Dist.,
214 F. Supp. 2d 319, 324 (E.D.N.Y. 2002). Whether the facts ultimately demonstrate deliberate
indifference on the part of the City to the possibility that Shammas would engage in future
constitutional violations of the type alleged by Plaintiff is not at issue at this juncture. 3
Defendants may be correct that as a matter of fact, the City's reaction to Shammas's prior
record, which the City characterizes as not including Fourth Amendment violations, does not
constitute deliberate indifference. 4 (Defs. Reply at 5.) But Defendants ignore that Plaintiff has
alleged with some particularity that Shammas
For the same reasons,
Defendants' concern that "any plaintiff would have a viable Monell claim each time any officer
had any type of disciplinary history whatsoever" is exaggerated. (Id.) Here, Plaintiff alleges
specific disciplinary history that is related to the alleged constitutional violations; Plaintiff has
not alleged, for example, that Shammas's history of tardiness and unexcused absence from work
made it obvious to the City that he would engage in future Fourth Amendment violations.
Defendants' reliance on Connick v. Thompson, 131 S. Ct. 1350 (2011 ), is misplaced. As
an initial matter, the Supreme Court framed its entire analysis in Connick in the failure-to-train
In their motion to dismiss, Defendants do not address whether the NYPD Commissioner has final policymaking
authority with respect to the particular conduct challenged in the lawsuit. See City of Waterbury, 542 F.3d 31 at 37.
Nor do they challenge whether Plaintiff adequately has alleged a deprivation of his constitutional rights by the
Individual Defendants. See id. at 36.
For the purposes of this motion, the court need not address whether the prior incidents constituted Fourth
Amendment violations, or whether Plaintiff need make such a showing.
context. For example, the Court explained that "[a] municipality's culpability for a deprivation
of rights is at its most tenuous where a claim turns on a failure to train." Id. at 1359. It further
held that "[a] pattern of similar constitutional violations by untrained employees is 'ordinarily
necessary' to demonstrate deliberate indifference for purposes of failure to train." Id. at 1360
(quoting Bryan Cnty., 520 U.S. at 409). And even notwithstanding the Supreme Court's
concerns regarding failure-to-train municipal liability, the Court left open the possibility, first
hypothesized in City of Canton, that a single incident in the failure-to-train context can be so
extreme as to warrant municipal liability in the absence of a pattern of similar constitutional
violations. Id. at 1366.
But this is not a failure-to-train case, and Plaintiffs theory does not rest upon a pattern of
similar constitutional violations by other officers within the NYPD. (See Pl. Mem. at 18
(Plaintiff "does not allege the existence of a municipal-wide policy of practice, such as 'failure to
train.'").) Rather, as discussed above, Plaintiff alleges that a single decision by a municipal
policymaker constituted the municipal policy in this case. Connick does not squarely address
such a theory, and therefore does not control in this case. Cf. Jones v. Town of E. Haven, 691
F.3d 72, 81 (2d Cir. 2012) (post-Connick case analyzing Section 1983 claim based on decision or
omission by policymaking official and relying on pre-Connick cases, including Bryan County
and Amnesty America).
"Causation generally is a question for the finder of fact." DePace v. Flaherty, 183
F. Supp. 2d 633, 638 (S.D.N.Y. 2002) (denying motion to dismiss Section 1983 action alleging
retaliation for exercise of First Amendment rights); Jeffes, 208 F .3d at 61. The Second Circuit
has equated the "moving force" standard from Bryan County with that of proximate causation.
See Cnty. of Erie, 654 F.3d at 342; see also City of Okla. City v. Tuttle, 471 U.S. 808, 833 n.9
(Brennan, J., concurring) (recognizing that the "[o]rdinary principles of causation used
throughout the law of torts" apply to Monell claims). Here, Plaintiff alleges that·
Taking the allegations in the F AC as true, Plaintiff has
adequately alleged causation. Cf. Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 399
(S.D.N.Y. 2013) (on motion to dismiss, dismissing Section 1983 claim against housing authority
for lack of adequate allegation of causation, but sustaining Section 1983 claim against city for
police conduct). Notably, Plaintiff's allegations describing the December 2009, incident focus
on Shammas's affirmative conduct toward Plaintiff; Shammas was not a mere observer of the
incident, and Defendants have not argued that the incident would have occurred even if
Shammas had not been present.
Defendants argue that because the prior incidents involving Shammas did not involve
physical force or an arrest scenario, Plaintiff has failed to allege that the Commissioner's
decisions proximately caused (or were the "moving force" behind) the constitutional violation.
(Defs. Mem. at 6.) Cf. Ortega v. Roulhac, No. 13-CV-4717, 2015 WL 337394, at *17 (E.D. Pa.
Jan. 22, 2015) (dismissing claim where Plaintiff failed to allege a nexus between employee's
demotion for prior misconduct and the alleged constitutional violation). The cases cited by
Defendants for the proposition that dismissal is proper at the pleading stage rely on factual
determinations. See Ameduri v. Vill. of Frankfort, 10 F. Supp. 3d 320, 343-44 (N.D.N.Y. 2014)
(granting motion for summary judgment for "want of proximate causation" and deciding that the
alleged failures to supervise and discipline were not "causally related to the injuries set forth in
plaintiff's complaint"); Lamarche v. Agosto, No. 1O-CV-561 (FB) (LB), 2013 WL 394 702
(E.D.N.Y. Jan. 31, 2013) (ruling at summary judgment stage that plaintiff failed to establish the
existence of a municipal policy and noting that the City had properly investigated and disciplined
the defendant-officer for a prior incident); Longin ex rel. Longin v. Kelly, 875 F. Supp. 196, 201
& n.5 (S.D.N.Y. 1995) (granting summary judgment where the plaintiff's evidence did not
support an inference that the failure to discipline the officer in question "evidences a systemic
failure to discipline correction officers for the use of force" and questioning how the failure to
discipline "could possibly have caused the incident" in question).
For the foregoing reasons, Defendants' motion to dismiss Plaintiff's Monell claim against
the City is DENIED. 5 Each Defendant is hereby DIRECTED to file an Answer to the FAC
within fourteen (14) days of entry of this Memorandum and Order.
s/Nicholas G. Garaufis
ICHOLAS G. GARAUF
nited States District Judge
Dated: Brooklyn, New York
Based on the foregoing analysis, the court need not address Plaintiff's request for leave to further amend the
complaint. (See Pl. Mem. at 21-22; Defs. Reply at 7.)
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