Fowler v. The City of New York et al
Filing
74
ORDER granting 63 Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, defendant's motion for summary judgment is GRANTED. The Clerk of Court is directed to enter judgment for defendants, and close the case. Ordered by Judge Kiyo A. Matsumoto on 3/26/2019. (Mazzurco, Vincent)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
JAMARR FOWLER,
MEMORANDUM AND ORDER
Plaintiff,
13-CV-2372(KAM)(ST)
-againstCITY OF NEW YORK, et al.,
Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
On April 18, 2013, plaintiff Jamarr Fowler initiated
this action pursuant to 42 U.S.C. § 1983 against defendants the
City of New York (the “City”), the New York City Department of
Correction (“DOC”), and seven New York City DOC officers and
captains named in their individual and official capacities.
(ECF No. 1, Compl.)
The complaint asserted violations of
plaintiff’s constitutional rights based on a series of alleged
physical assaults by the individual correction officers and
captains on April 21 and 22, 2010, while plaintiff was
incarcerated on Rikers Island.
(Id.)
By Memorandum and Order
dated December 23, 2015, this court dismissed plaintiff’s claims
against the individual defendants pursuant to Federal Rule of
Civil Procedure 4(m) for failure to serve process, and granted
the City’s and DOC’s motion for judgment on the pleadings for
failure to state a claim, except as to plaintiff’s Monell claim
against the City.
(ECF No. 36, Order dated Dec. 23, 2015.)
All
of plaintiff’s claims were dismissed with prejudice except for
plaintiff’s Monell claims against the City for careless and
reckless hiring, training, and retention of correction officers.
(Id.)
Plaintiff was granted leave to file an Amended Complaint
solely as to this claim.
On January 15, 2016, plaintiff timely filed an Amended
Complaint against the City pursuant to 42 U.S.C. § 1983,
alleging violations of his constitutional rights based on the
City’s failure to adequately train and supervise corrections
officers.
(ECF No. 37, Am. Compl. ¶ 26.)
On April 4, 2016, the
City filed a motion to dismiss plaintiff’s Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”) for failure to state a claim.
to Dismiss.)
(ECF No. 43, Def. Mot.
The court subsequently denied the City’s motion,
finding that plaintiff sufficiently stated a claim under Monell
by alleging a custom, policy, or practice.
(Order at 2.)
Specifically, plaintiff alleged the City failed to adequately
train, supervise, or discipline its employees which led to a
number of brutal attacks against him, including the attacks in
April 2010 which formed the basis of this suit.
(Id. at 10.)
The parties proceeded to discovery which appears to
have included taking depositions of plaintiff and the DOC
officers allegedly involved in the April 2010 assault on
2
plaintiff.
(See generally ECF No. 72, Pl. Opp. Exs. 2-6.)
Upon
the close of discovery, defendant moved for summary judgment
pursuant to Federal Rule of Civil Procedure 56.
(ECF No. 63,
Def. Summ. J. Mot.)
BACKGROUND
The parties each submitted a Statement of Undisputed
Facts pursuant to Local Civil Rule 56.1, and defendant responded
to plaintiff’s with certain admissions.
(See ECF No. 66, Def.
56.1 Stmt.; ECF No. 69, Pl. 56.1 Stmt.)
The parties’ Rule 56.1
Statements do not offer significant factual material for the
court to articulate the relevant background of this case,
although the court has discussed plaintiff’s allegations in its
previous decisions.
Plaintiff’s 56.1 Statement recited the
employment dates of three DOC officers that escorted him to his
cell at a particular facility on Rikers Island on April 22,
2010.
(Pl. 56.1 Stmt. at 1-2.)
Plaintiff’s 56.1 Statement
further stated that a battery was found in plaintiff’s rectum on
the same day by medical staff at Rikers Island Urgent Care.
(Id.)
Defendant only noted that the record did not clearly
establish when the battery was found, but admitted that a
battery was found in plaintiff’s rectum.
(Id.)
Defendant’s
Rule 56.1 Statement states merely that plaintiff “did not take
or request discovery” regarding his Monell claim, and that no
such evidence was ever produced in the action.
3
(Def. 56.1 Stmt.
at 1.)
These are the undisputed facts as presented by the
parties.
Thus, there remain a number of factual disputes in
this case.
However, for the purposes of context, the court
shall recite the facts drawn from the parties’ aforementioned
Rule 56.1 Statements, plaintiff’s deposition testimony, (ECF No.
72-2, Ex. 2, Fowler Dep.), the deposition testimony of
Corrections Officers Harris and Phillips and Captains
Blassingame and Smith, (Exs. 3-6), a number of letters and
emails sent on behalf of plaintiff by Legal Aid Society staff in
late 2007 and early 2008, and responses to these letters and
emails from certain City employees, (ECF No. 72-7, Pl. Opp. Ex.
7), plaintiff's Amended Complaint, and lawsuits brought by
plaintiff in New York State Court, the summonses and complaints
of which were attached to plaintiff’s and defendant’s papers,
(see, e.g., ECF Nos. 72-8, 72-9, Pl. Opp. Exs. 8-9; ECF No. 65,
Francola Decl., Ex. B).
For the purposes of this motion, the
court construes the facts in the light most favorable to
plaintiff, the non-moving party.
I.
Summer and Fall 2007 Incidents
Sometime in August 2007 plaintiff was detained at
Rikers Island at the George R. Vierno Center (“GRVC”), the
setting for many of the events plaintiff alleges.
3.)
(Pl. Opp. at
Plaintiff alleges that on August 14, 2007 he was assaulted
4
by Captain Marcel and his ankle or foot was broken when Captain
Marcel slammed plaintiff’s leg in a cell door.
at 5-6.) 1
(Id. at 8; Ex. 7
He was left in his cell overnight, still in handcuffs,
and eventually taken for medical treatment the following
morning.
(Ex. 7 at 5.)
Plaintiff alleges that on August 17,
2007, a sprinkler head in his cell expelled water for 40 minutes
to an hour; in the resulting wet condition he slipped and hit
his head on the toilet.
(Id. at 6.)
He was left in his cell
for about a day before receiving a new cast for his ankle.
(Id.)
Then, on August 23, 2007, Fowler alleges he was extracted
from his cell and forced to hop to a gurney by Captain Matthews
and other corrections officers.
(Id.)
He was then taken
elsewhere and allegedly restrained to the gurney when Captain
Matthews instructed someone to turn off the recording of
surveillance cameras.
(Id.)
Captain Matthews allegedly
instructed unidentified officers to “rough him up,” and the
officers kicked and punched Fowler who sustained bruises all
over his body.
(Id.)
Rather than being brought to a medical
clinic for treatment after this assault, Fowler alleges he was
brought back to his cell where he was carried, dragged, and then
dropped onto his chest several times.
(Id.)
Shortly after these assaults, in November 2007, upon
For plaintiff’s Exhibit 7, reference is made to pagination as
delineated by the court’s Electronic Filing System.
1
5
arriving to the GRVC, Fowler alleges he was again restrained to
a gurney in the clinic vestibule, beaten and punched in the face
by corrections officers, and struck with an unidentified metal
object.
(Id. at 2; Francola Decl., Ex. B at 4-5.)
treatment at Elmhurst Hospital for a swollen eye.
He required
(Id.)
Employees from Legal Aid Society’s Prisoner Rights’
Project (“Legal Aid”) sent letters and emails on Fowler’s behalf
regarding these alleged assaults to various City officials and
individuals, including several with “nyc.gov” email addresses
indicating employment by either the City’s Department of Health
and Mental Hygiene, the DOC, or the Board of Corrections.
(See,
e.g., Ex. 7 at 15, 22.)
Dale Wilker, an attorney with Legal Aid, sent an email
on August 27, 2007 to Dr. Maria Gbur and 17 other recipients,
four or five of whom had City government email addresses,
complaining of the August 13, 2007 assaults on Fowler and the
subsequent lack of adequate medical attention. 2
(Id. at 23.)
Burton Schall, a recipient of Wilker’s August 27, 2007 email
responded on September 19, 2007, stating that “Risk Management
ha[d] investigated [Fowler’s] allegations” and “found them to be
unsubstantiated,” though the email is unclear as to which
allegations Schall refers to.
(Id.)
In a response regarding
Dr. Gbur’s position is unclear from the face of this email, though her
email address in another email includes a “health.nyc.gov” domain, associated
with the City’s Department of Health and Mental Hygiene. (Ex. 7 at 22.)
2
6
plaintiff’s medical care sent later the same day, Schall shared
with Wilker the dates of Fowler’s eleven total visits to
“Urgicare” and the orthopedic clinic between August 15 and
September 13, 2007.
(Id.)
Wilker apparently followed up on his August 27, 2007
email on September 17, 2007, informing the original 18
recipients and adding four additional recipients of a letter
received by Fowler complaining of DOC staff’s failure to
transport him to certain medical appointments.
(Id. at 25.)
On September 19, 2007, Alison Berger, a legal
assistant with Legal Aid, wrote to Deputy Commissioner Richard
White of the DOC’s Investigations Unit.
(Id. at 5-6.)
This
letter complained on Fowler’s behalf of the alleged August 2007
assaults, and requested the DOC “take the steps necessary to
properly investigate Mr. Fowler’s allegations,” and inform
Berger of the results of the investigation.
(Id.)
Berger also wrote to Dr. Gbur in November 2007,
referring to the alleged August 2007 assaults to request an
investigation into Fowler’s unmet medical needs, particularly
his need for a wheelchair.
(Id. at 2-3.)
Berger also emailed
this letter to Dr. Gbur at an email address apparently
associated with the Department of Health and Mental Hygiene.
(Id. at 22.)
The email includes on the “CC” line a total of 17
additional recipients, 13 of whom have “nyc.gov” email addresses
7
at either the Board of Corrections, the DOC, or the Department
of Health and Mental Hygiene.
(Id.)
Berger also wrote to Juana
Perez of the Department of Health and Mental Hygiene, once in
September, and again in November 2007, requesting a release of
certain of Fowler’s medical records.
(Id. at 9, 11.)
Plaintiff testified that despite his complaints of
abuse, DOC officials that assaulted him continued on the job,
and he continued to suffer abuse.
In December 2007, Wilker sent
emails on Fowler’s behalf to individuals apparently on the Board
of Corrections and at the DOC regarding Fowler’s accessibility
complaints, (id. at 15), and again in August 2007 regarding
Fowler’s desire to contest certain infractions lodged against
him and to speak with his attorney, (id. at 17-18).
In January 2008, Wilker emailed a contact named “OCC
Staff” and an attorney named John Doyle III, regarding Fowler’s
complaint of being placed in a cell that was befouled with
excrement by its prior occupant.
(Id. at 19.)
Wilker also
emailed Dr. Gbur, Schall, and 20 others relaying Fowler’s
complaint that his wheelchair use had been discontinued.
at 21.)
(Id.
In this email, Wilker indicates that Legal Aid was
waiting for the recipients’ “substantive response to [their]
prior complaints on behalf of Mr. Fowler, which [was] requested
8
in October.” 3 (Id.)
Wilker added that some recipients had
acknowledged receiving an authorization by Fowler related to
this request.
(Id.)
Through counsel, plaintiff then filed three complaints
in New York State Supreme Court in Queens County between 2008
and 2009, alleging violations of his constitutional rights by
the City of New York, the DOC, and a number of DOC officers and
captains for events occurring in August and November 2007.
generally, ECF No. 65-2, Francola Decl., Ex. B.)
(See
Fowler’s
complaint, signed February 22, 2008, details allegations of
assaults and general mistreatment occurring in November 2007.
(Id. at 4-5.)
His complaint, signed September 30, 2008,
includes allegations pertaining to the alleged assaults taking
place in August 2007.
(Id. at 12-13.)
And finally, Fowler’s
complaint signed February 5, 2009, also refers to some of the
events Fowler alleges took place in November 2007 and generally
brings cruel and unusual treatment claims.
II.
(Id. at 20.)
April 2010 Incidents
Plaintiff was incarcerated on Rikers Island in April
2010. 4
(Am. Compl. ¶ 4.)
Corrections officers allegedly
transferred Fowler by bus on April 21, 2010 from the North
The papers submitted by plaintiff in this case include no requests or
complaints made by Fowler or Legal Aid employees bearing an October date.
4
Whether plaintiff was released and reincarcerated in the interim is
unclear from the record before the court.
3
9
Infirmary Command (“NIC”) to the GRVC.
(Id. ¶¶ 5-6.)
Upon
reaching the GRVC, plaintiff expressed a desire not to be housed
there because he feared for his life, based on prior
mistreatment and assaults by DOC employees.
44.)
(Fowler Dep. at 43-
Fowler alleges that corrections officers boarded the bus,
that a female captain then struck him in the head with a radio
and ordered another officer to spray plaintiff with mace while
he was handcuffed.
(Am. Compl. ¶¶ 8-9; Pl. Opp. at 3.)
Then,
Fowler was allegedly put in a chokehold by a corrections officer
and assaulted by the female captain, (Am. Compl. ¶¶ 10-11),
during which time a DOC employee pressed an emergency response
button, (id. ¶ 12).
Additional officers responded to the scene,
and an officer dragged Fowler off the bus.
(Id.)
Once outside
the bus, the responding officers allegedly began kicking and
punching plaintiff for five minutes.
(Id. ¶¶ 12-13.)
At the
conclusion of this assault, officers placed plaintiff in a cell
at GRVC, where he remained for 45 minutes before being taken by
ambulance to the hospital.
(Id. ¶¶ 14-15.)
The following day, April 22, 2010, Fowler was brought
back to the GRVC from the hospital.
walking cane at this time.
(Id. ¶ 16.)
(Id. ¶ 18.)
He was using a
It is undisputed that
Captain Kenneth Blassingame and Officers Eric Harris and Andre
Phillip escorted Fowler to his cell and directed him to enter
it.
(ECF No. 69, Def. Resp. to Pl. 56.1 Stmt. ¶ 6; ECF No. 7210
4, Phillip Dep. at 12.)
It is also undisputed that at some
point the officers and Fowler were standing outside his cell.
(ECF No. 72-3, Harris Dep. at 14.)
Officer Phillip stated
during his deposition that Rikers Island security protocol
requires officers to retain inmate canes when they return to
their cells.
(Phillip Dep. at 12.)
The officers ordered Fowler
to relinquish his cane, as did Captain Blassingame, but Fowler
refused these orders according to Officer Phillip.
(Id.)
Fowler testified that he was threatened and that Officer Harris
swiped Fowler’s cane and pushed him to the floor.
at 57; Am. Compl. ¶¶ 17-18.)
(Fowler Dep.
Both Officers Phillip and Harris
stated in their deposition that Fowler twisted his body and
pulled away from them, (Phillip Dep. at 13; Harris Dep. at 13),
and then apparently fell or stumbled into the cell, (Phillip
Dep. 14; ECF No. 72-6, Blassingame Dep. at 14).
After a brief
struggle, according to the officers, Fowler was sat down on his
bed while still handcuffed.
(Blassingame Dep. at 14-15.)
Captain Blassingame ordered Fowler to move to a “cuff port” in
his cell to have his cuffs removed.
(Id.)
Fowler apparently
refused and Blassingame entered the cell to speak with Fowler.
(Id. at 15.)
Either Blassingame or another officer removed
plaintiff’s handcuffs, all officers exited the cell, and shut
the cell door with plaintiff inside.
(Id.; Harris Dep. at 14.)
Fowler disputes the officers’ version of events, and
11
asserts that the officers tripped him and beat him for five to
ten minutes inside his cell.
(Fowler Dep. at 59.)
The second
time the officers entered his cell, ostensibly to retrieve his
handcuffs, he was on the floor crying and in pain.
(Id.)
Officers Harris and Phillip put their weight on Fowler’s back or
neck by sitting on him while one of them pulled down Fowler’s
pants and inserted a battery into his rectum.
(Id.)
Captain
Blassingame and another female captain, according to Fowler,
stood outside and watched while this happened.
(Id.)
Eventually, plaintiff was left alone in his cell, with the cuffs
removed and without a cane, and his cell door was closed.
(Id.)
The following morning, officers sent Fowler for medical
treatment and it is undisputed that a battery was retrieved from
plaintiff’s rectum by Rikers Island Urgent Care Services.
(Def.
Resp. to Pl. 56.1 Stmt. ¶ 4; Fowler Dep. at 61-62; Blassingame
Dep. at 20.)
LEGAL STANDARD
I.
Motion for Summary Judgment
Summary judgment shall be granted to a movant who
demonstrates “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”
Fed. R. Civ. P. 56(a).
“A fact is ‘material’ for
these purposes when it ‘might affect the outcome of the suit
under the governing law.’”
Rojas v. Roman Catholic Diocese of
12
Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
No genuine
issue of material fact exists “unless there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party.”
Anderson, 477 U.S. at 249.
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
omitted).
Id. at 249-50 (citations
Thus, summary judgment allows the court to dispose
of meritless claims before becoming entrenched in a frivolous
and costly trial.
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12
(2d Cir. 1986).
When bringing a motion for summary judgment, the
movant carries the burden of demonstrating the absence of any
disputed issues of material fact.
Rojas, 660 F.3d at 104.
In
deciding a summary judgment motion, the court must resolve all
ambiguities and draw all reasonable inferences against the
moving party.
Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d
Cir. 2001) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
A moving party may indicate
the absence of a factual dispute by, inter alia, “showing . . .
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(B).
Put another
way, “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there
13
is no ‘genuine issue for trial.’”
Matsushita Elec. Ind., 475
U.S. at 587.
Once the moving party has met its burden, “the
nonmoving party may not rest upon mere conclusory allegations or
denials.”
Castro v. Cty. of Nassau, 739 F. Supp. 2d 153, 165
(E.D.N.Y. 2010) (citing R.G. Grp., Inc. v. Horn & Hardart Co.,
751 F.2d 69, 77 (2d Cir. 1984)).
Rather, “the nonmoving party
must come forward with admissible evidence sufficient to raise a
genuine issue of fact for trial in order to avoid summary
judgment.”
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d
Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986)).
In deciding a motion for summary judgment, the
court is dutybound not to weigh evidence or assess the
credibility of witnesses.
United States v. Rem, 38 F.3d 634,
644 (2d Cir. 1994).
DISCUSSION
I.
Genuine Dispute of Material Facts
Plaintiff makes much of several facts that remain
unclear in this case arguing they are “area[s] of dispute that a
jury must decide.”
(See, e.g., Pl. Opp. at 7.)
For instance,
plaintiff notes that the ownership or origin of the battery
allegedly used to sodomize him remains a fact in dispute.
(Id.)
Although the plaintiff’s testimony and supporting medical
records regarding the alleged assault and sodomy of plaintiff
14
with a battery is extremely troubling, it is not necessarily a
material issue that will determine the outcome of his remaining
Monell claim against the City.
Anderson, 477 U.S. at 248.
Instead, plaintiff’s claim appears to rely on the
existence of unlawful practices of physical assault by
subordinate and supervisory corrections officers at GRVC.
These
practices, according to plaintiff, were so permanent and wellsettled as to constitute a “custom or usage,” and were so
manifest as to imply acquiescence of policymaking officials at
the DOC and the City, who were notified by plaintiff and his
representatives of the alleged assaults.
See City of St. Louis
v. Praprotnik, 485 U.S. 112, 127-30 (1988); Sorlucco v. N.Y.C.
Police Dep’t, 971 F.2d 864, 871 (2d Cir. 1992); Jones v. Town of
E. Haven, 691 F.3d 72, 84 (2d Cir. 2012).
In addition,
plaintiff appears to rely on the City’s purported failure to
train or supervise DOC officers, amounting to deliberate
indifference to the rights of individuals with whom the DOC
employees will foreseeably interact.
See City of Canton v.
Harris, 489 U.S. 378, 385 (1989); Jenkins v. City of New York,
478 F.3d 76, 94 (2d Cir. 2007).
Defendant argues that plaintiff’s efforts during
discovery have not been fruitful for his Monell claim.
Summ. J. Mot. at 2.)
(Def.
Plaintiff relies heavily on his own
testimony, letters sent on his behalf to a number of City
15
employees, and lawsuits filed against the City of New York and
certain employees to establish the City’s knowledge and
acquiescence in a custom or usage of violative assaults.
Aside
from being insufficient for the reasons discussed below, the
court finds that these allegations include inconsistencies which
cast serious doubt on their plausibility.
See Aziz Zarif
Shabazz v. Pico, 994 F. Supp. 460, 470 (S.D.N.Y. 1998)
(Sotomayor, J) (“[I]n the context of summary judgment, . . .
when the facts alleged are so contradictory that doubt is cast
upon their plausibility, [the court may] ‘pierce the veil of the
complaint’s factual allegations,’ dispose of ‘some improbable
allegations,’ and dismiss the claim.”); see also Jeffreys v.
City of New York, 426 F.3d 549, 551 (2d Cir. 2005) (affirming
summary judgment for defendant where plaintiff relied almost
exclusively on his own testimony “replete with inconsistencies
and improbabilities”).
First, as defendant notes, plaintiff’s deposition
testimony is fairly characterized as vague as to the details of
the alleged 2007 assaults.
(See Def. Summ. J. Mot. at 7; see
also Fowler Dep. at 12:23-15:13.)
Of course, the court does not
fault plaintiff for faded memories of events that allegedly
occurred eight to eleven years ago, and the minor differences in
exact dates and failure to recall names are not what necessarily
undermine his claim.
Instead, the inconsistencies in his
16
allegations in the lawsuits plaintiff commenced in 2008 and 2009
cast doubt as to whether plaintiff can sustain his claim.
For example, plaintiff’s opposition references the
August 23, 2007 assault by correction officers in which he was
allegedly strapped to a gurney and beaten on the orders of
Captain Matthews.
(Pl. Opp. at 8.)
This is supported by the
September 19, 2007 letter from Berger to Deputy Commissioner
White.
(Ex. 7 at 5-6.)
However, plaintiff’s complaint filed
in state court and seeking redress for the August 2007 incidents
omits the fact of this alleged August 23, 2007 assault, instead
stating only that plaintiff was “fastened to a gurney, and
searched by Correction Officers.”
13.)
(Francola Decl., Ex. B at
The 2007 complaint still alleges that plaintiff was
subsequently dragged, carried, and dropped while returning to
his cell, along with the earlier alleged August 13, 2007
assault.
(Id. at 12-13.)
Two of plaintiff’s other lawsuits include similar
inconsistencies.
His February 22, 2008 lawsuit alleging events
occurring in November 2007 includes allegations that he was
“restrained to a gurney and physically assaulted” by corrections
officers on November 9 or 10, 2007.
(Ex B. at 5.)
However,
plaintiff’s February 5, 2009 lawsuit, alleging events occurring
on or around November 8, 2007, does not refer to any subsequent
assault involving a gurney.
(Id. at 21.)
17
Though it may be that
plaintiff chose not to include these specific allegations in any
of these state court complaints for strategic reasons, the
changing nature of his story, and the vagueness with which he
testified during his deposition, at the very least calls into
question the veracity of his allegations.
These inconsistencies
are not fatal to plaintiff’s claims, but the court highlights
them for the sake of completeness.
In any event, the jury,
rather than the court, must assess the effect of inconsistencies
on a witness’s credibility, and the court shall now consider
whether defendant is entitled to summary judgment as a matter of
law.
II.
Municipal Liability
Plaintiff brings very serious allegations of brutal
assaults by DOC officers and supervising captains employed by
the City of New York and assigned to GRVC on Rikers Island.
However, the court dismissed all the individual defendants in
this case due to plaintiff’s failure to effect service of
process after numerous attempts, (ECF No. 36, Order dated Dec.
23, 2015), and only plaintiff’s Monell claim against the City of
New York has proceeded.
Monell extends liability under 42 U.S.C. § 1983 for a
municipal organization whose policies or customs lead to an
independent constitutional violation.
Segal v. City of New
York, 459 F.3d 207, 219 (2d Cir. 2006) (citing Monell v. Dep’t
18
of Soc. Servs., 436 U.S. 658, 694 (1978)).
However, a
municipality cannot be held vicariously liable under § 1983 for
the constitutional violations of its employees under a
respondeat superior theory.
Monell, 436 U.S. at 691; Zahra v.
Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995).
To prove the
existence of a policy or custom under Monell, a plaintiff must
demonstrate either: (1) an official policy, endorsed by the
municipality; (2) actions taken by officials or policymakers
that caused the underlying constitutional violation; (3) a
widespread and persistent practice so manifest as to imply the
acquiescence of policymakers; or (4) a failure to train,
supervise or discipline officers amounting to deliberate
indifference to the rights of those citizens interacting with
the officers.
Jones v. Westchester Cty., 182 F. Supp. 3d 134,
158 (S.D.N.Y. 2016).
Plaintiff’s Amended Complaint initially brought his
Monell claim under a theory of defendant’s “careless and
reckless hiring, negligent training and negligent retention” of
its employees by defendant City of New York.
(Am. Compl. at 4.)
In his opposition to the instant motion, plaintiff appears to
argue a failure to supervise or failure to adequately screen
theory.
(Pl. Opp. at 6-7.)
Defendant argues that plaintiff has
not adduced sufficient evidence during discovery to support any
of his theories of liability, and is instead left with his own
19
allegations of misconduct and past lawsuits.
Mot. at 6.)
(Def. Summ. J.
These allegations and lawsuits, defendant argues,
do not prove either the occurrence of any constitutional
violations, let alone a pattern of such conduct, sufficient to
put the City on notice.
(Id. at 9, 11.)
Finally, defendant
argues that plaintiff offers no causal link between any alleged
failure to discipline or train City employees and his injuries.
(Id. at 10, 11.)
Plaintiff’s opposition does not directly address
either argument by defendant and instead responds by citing to
Ehrens v. Lutheran Church, 385 F.3d 232 (2d Cir. 2004), a Second
Circuit case applying New York law for claims of negligent
hiring, training, and supervision by employers.
7.)
(Pl. Opp. at
He appears to argue that the City is responsible for either
the negligent hiring, training, or supervision of Officers
Harris and Phillip, and Captain Blassingame, which led to the
alleged April 2010 assault.
(Id.)
Plaintiff also argues that
the City “knew or should have known of” Officers Harris,
Phillips, and Captain Blassingame’s “propensity for the conduct
which caused [plaintiff’s] injury.”
(Id.)
To support his “knew
or should have known” theory, plaintiff points to five “nexuses”
or “clusters of events”—instances of alleged abuse endured by
plaintiff starting in late 2007, and documented through emails
and letters sent to various individuals by advocates at Legal
20
Aid.
(Id. at 8-11.)
The first nexus is summarized in the September 19,
2007 letter from plaintiff’s representative, Berger, to Deputy
Commissioner White and includes the August 2007 alleged assaults
on Fowler, a delay in his medical treatment for injuries
sustained during these assaults, and Fowler’s fall after being
soaked by the sprinkler in his cell.
(Id. at 8.)
Nexus two
includes the November 2007 alleged assault on Fowler and a
denial of certain medical treatment because he was wheelchairbound and GRVC was not wheelchair accessible.
(Id. at 9.)
Added to these allegations is an assertion in a letter to Dr.
Gbur that Fowler was not receiving the proper dose of his antiseizure medication.
(Id.)
The third nexus focuses on Wilker’s
August 27, 2007 letter concerning allegations that GRVC officers
falsified documents that kept Fowler from appearing in court and
brought false charges of fighting against him.
(Id.)
Nexus
four concerns Wilker’s January 2, 2008 email to attorney John
Doyle complaining of Fowler’s having been placed in a GRVC cell
that was soiled by a prior inmate.
(Id. at 10.)
This fourth
nexus also includes plaintiff’s complaints of having been denied
the use of a wheelchair “without any reason being given.”
(Id.)
The fifth and final nexus is described in Wilker’s September 17,
2007 email to 22 individuals complaining of a denial of medical
care to Fowler by GRVC officers as a punitive measure.
21
(Id.)
Plaintiff appears to focus on the third and fourth
theory of Monell liability.
That is, plaintiff argues that the
City knew or should have known of a widespread and persistent
practice so manifest as to imply acquiescence of policy makers,
and that officials knew or should have known that Fowler would
be subject to the constitutionally repugnant treatment he
allegedly received at the GRVC, but nevertheless failed to
train, supervise or discipline officers amounting to deliberate
indifference to plaintiff’s rights.
(See Pl. Opp. at 7.)
As
the court noted in its Order denying defendant’s motion to
dismiss, “plaintiff alleges the existence of a custom, practice,
or policy by the City of ignoring its employees’ abusive
behavior at GRVC allowed the abusive behavior to continue, and
caused his injury.”
(Order at 10.)
To support a failure to train theory, a plaintiff
must show that the “municipality’s failure to train its
employees in a relevant respect . . . amount[ed] to ‘deliberate
indifference to the rights of persons with whom the [untrained
employees] came into contact.’”
Connick v. Thompson, 563 U.S.
51, 61 (2011) (second alteration in original) (quoting Canton,
489 U.S. at 388).
Similarly, for a failure to supervise or
discipline theory, plaintiffs must demonstrate that the
municipality was “faced with a pattern of misconduct and d[id]
nothing, compelling the conclusion that the local government
22
ha[d] acquiesced in or tacitly authorized its subordinates’
unlawful actions.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d
Cir. 2007) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S.
701, 737 (1989)); see also Green v. City of New York, 465 F.3d
65, 80 (2d Cir. 2006).
“‘[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, 563 U.S.
at 61 (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 410 (1997)).
“A showing of indifference to
[constitutional rights violations] would depend in part on a
showing that, upon receipt of a credible report of such abuse,
superiors took no investigative or corrective action.”
691 F.3d at 84.
Jones,
Under either a failure to train or failure to
discipline theory, a plaintiff must also prove “the stringent
causation and culpability requirements set out in” Canton.
Reynolds, 506 F.3d at 192 (citing Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 127 (2d Cir. 2004)); see also Roe v.
City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (“[A]
plaintiff must demonstrate that, through its deliberate conduct,
the municipality was the ‘moving force’ behind the alleged
injury.”).
Upon a review of the record and the parties’ papers,
the court agrees with defendant.
23
The flaw in plaintiff’s case
is the failure to present sufficient evidence to support his
Monell claim.
He thus provides no evidentiary support from
which a jury could find a widespread custom or usage under
Monell, or find that defendant knew of but was deliberately
indifferent to the risk that the rights of citizens who
interacted with DOC officers would be violated in the case of
plaintiff’s alternate theories of failure to discipline or
train.
A.
Failure to Discipline or Supervise
Failure to supervise or discipline claims must
demonstrate the municipality’s deliberate indifference to the
rights of citizens who will interact with the municipality’s
officers.
Reynolds, 506 F.3d at 192.
A plaintiff may establish
a municipality’s deliberate indifference by demonstrating
“inaction such as the persistent failure to discipline
subordinates who violate civil rights.”
Batista v. Rodriguez,
702 F.2d 393, 397 (2d Cir. 1983); see also Jones, 691 F.3d at 82
(describing deliberate indifference by supervisors as giving
line officers “the sense that they could engage in
[constitutional violations] without risking appropriate
disciplinary consequences”).
However, isolated incidents are
not enough to subject a municipality to liability.
See, e.g.,
Escobar v. City of New York, 766 F. Supp. 2d 415, 421 (E.D.N.Y.
2011); see also Davis v. City of New York, 228 F. Supp. 2d 327,
24
346 (S.D.N.Y. 2002) (“[T]wo incidents of unconstitutional
conduct by low level employees in a city agency with over 35,000
employees can never provide a reasonable basis for finding a
widespread or well-settled custom.” (emphasis in original)).
The need for more or better supervision must be obvious.
Vann
v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (citing
Canton, 489 U.S. at 390).
Proof of a single incident is not
sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing,
unconstitutional municipal policy, attributable to a municipal
policymaker.
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24
(1985).
Repeated complaints of multiple civil rights
violations by a plaintiff may support a finding that the need
was obvious, but a plaintiff must also demonstrate that the
complaints were “followed by no meaningful attempt on the part
of the municipality to investigate or to forestall further
incidents.”
Vann, 72 F.3d at 1049; see also Fiacco v. City of
Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986) (finding evidence
permitted reasonable inference that City defendants’ response to
complaints of constitutional violations was “uninterested and
superficial”).
Irrespective of the validity of such complaints,
“the very assertion of a number of such claims [may] put the
City on notice that” its officers had committed constitutional
25
violations.
Fiacco, 783 F.2d at 328.
Here, plaintiff sets
forth five separate so-called “clusters” of violations.
But, “‘the mere fact that the misconduct occurred in
the first place’ does not support a municipal liability claim
absent evidence of the City’s reaction to those claims.”
Demosthene v. City of New York, No. 18-CV-1358, 2019 WL 181305,
at *10 (E.D.N.Y. Jan. 10, 2019) (quoting Amnesty Am., 361 F.3d
at 130).
Here, plaintiff’s allegations of physical assaults
would not provide a basis for the jury to infer that the City
acquiesced and failed to “forestall further incidents.”
Vann,
72 F.3d at 1049.
In Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.
1986), the Second Circuit upheld a jury verdict against the City
of Rensselaer in a § 1983 action when the plaintiff presented
significant evidence of actual notice to both the Chief of
Police and mayor of at least seven complaints of police
misconduct.
Fiacco, 783 F.2d at 329.
The plaintiff’s evidence
included the trial testimony of four complainants, and testimony
from the police chief himself as to his handling of complaints,
evidencing a meager response.
Id. at 330-31.
Moreover, the
evidence demonstrated that one of the officers involved in the
plaintiff’s alleged constitutional violation was the subject of
three prior complaints, but was still promoted.
Id. at 330.
Similarly, in Sorlucco v. N.Y.C. Police Dep’t, 971
26
F.2d 865 (2d Cir. 1992), a directed verdict for defendant City
of New York was reversed by the Second Circuit.
F.2d at 870.
Sorlucco, 971
The court found that plaintiff had presented
sufficient evidence at trial including certain statistical
evidence that supported her claim of a constitutional violation,
and the testimony of a former NYPD Lieutenant in the Internal
Affairs Bureau that cast doubt on the efficacy of the City’s
response to the alleged misconduct in that case.
Id.
Conversely, in Alwan v. City of New York, 311 F. Supp.
3d 570 (E.D.N.Y. 2018), the court granted summary judgment for
defendants when, despite a number of complaints against the
subject officers, the plaintiff could not offer evidence of a
lack of response by the City.
Alwan v. City of New York, 311 F.
Supp. 3d 570, 584 (E.D.N.Y. 2018).
The district court
considered the disciplinary record of two officers who allegedly
used excessive force on the plaintiff.
Id. at 582-84.
The
court noted the number of civilian complaints and internal
investigations raised against each officer, and considered only
those which were similar to the alleged violations at issue.
Id.
One officer was the subject of at least eleven civilian
complaints related to the use of force, abusive language, or
discourtesy.
Id.
None of the complaints resulted in
disciplinary action because the officer was either exonerated or
the complaint unsubstantiated.
Id.
27
This same officer was also
the subject of three internal investigations and three domestic
violence complaints, and a defendant in two civil rights suits.
Id. at 583.
Though the court noted this officer’s record was
likely sufficient to put the City on notice, it subsequently
found that summary judgment was nevertheless appropriate because
the plaintiff had failed to identify any complaints to which the
City failed to respond.
Id. at 584.
The plaintiff therefore
could not establish that the City’s response to an officer’s
misconduct was all but meaningless.
Id.
In his opposition to the City’s motion for summary
judgment, Fowler has failed to present sufficient evidence for a
reasonable jury to find that the City was on notice of
persistent and widespread constitutional violations, or
complaints of the same, and that it was deliberately indifferent
to these violations.
First, although plaintiff has presented
evidence, based on his testimony and contemporaneous complaints,
that constitutional violations actually occurred in 2007 and
2010, he has not presented evidence that could permit a jury to
find that the City was on notice and acquiesced in the practice
of physical assaults against inmates.
Second, plaintiff has not
pointed to evidence concerning the City’s response or lack of
response to his complaints, and has not argued that the response
was insufficient or amounted to deliberate indifference.
Plaintiff relies on his letters and lawsuits as
28
evidence that the alleged violations actually occurred.
His
letters detail a number of incidents separate and apart from his
claims of abuse, and appear to focus both on the abuse and
alleged lack of medical attention he received, and other
grievances not related to an excessive use of force.
But,
plaintiff’s letters alone cannot support a finding that the City
was on notice.
Toliver v. City of New York, No. 10-CV-5803,
2012 U.S. Dist. LEXIS 171239, at *12 (S.D.N.Y. Dec. 3, 2012).
As the court held in Toliver v. City of New York, No. 10-CV5803, 2012 U.S. Dist. LEXIS 171239 (S.D.N.Y. Dec. 3, 2012), “the
mere existence” of plaintiff’s “numerous letters and complaints
. . . addressed to supervisors at the GRVC facility” and
containing unsubstantiated allegations of abuse are “an
insufficient basis upon which to impute to the City a policy of
deliberate indifference to prisoner abuse.”
Id.
First, the respective titles and positions of the
recipients of plaintiff’s letters of complaint are entirely
unclear from the substance and address information of the
letters and emails.
Second, though some of plaintiff’s letters
and emails reference the August 2007 alleged assaults, they
focus primarily on Fowler’s complaints related to his wheelchair
access and subsequent medical treatment, and are accordingly
addressed to a number of City Department of Health and Mental
Hygiene employees.
(See Ex. 7 at 15, 22-23.)
29
Other
correspondence refers to Fowler’s complaints of not being
permitted to go to a so-called writ court to challenge certain
infractions lodged against him.
(Id. at 17-18.)
Only one
letter including allegations of the August 2007 assaults is
clearly addressed to a DOC senior official in its investigations
unit, Deputy Commissioner White.
(Id. at 5-6.)
There is no
response noted from Deputy Commissioner White or anyone on his
behalf, and there is no follow-up to Deputy Commissioner White
included in the record indicating he failed to respond.
Notwithstanding the factual void left by this
correspondence, even if the letters or emails were actually sent
to the Commissioner or Chief of the DOC, or even the Mayor of
the City of New York, as in Fiacco, the court would find that
the limited number of complaints, of the sort plaintiff brought,
are not sufficient to establish an obvious need for municipal
corrective action.
Indeed, courts have previously entered
summary judgment against plaintiffs who pointed to many more
complaints than plaintiff does.
See, e.g., Vasquez v. City of
New York, No. 11-CV-3024, 2013 U.S. Dist. LEXIS 144313, at *3233 (E.D.N.Y. Sept. 30, 2013) (granting defendants summary
judgment despite plaintiff’s offer of eight complaints and two
lawsuits brought against subject officer); Alwan, 311 F. Supp.
3d at 585; see also Estate of Jaquez v. City of New York, No.
10-CV-2881, 2014 U.S. Dist. LEXIS 81577, at *14-15 (S.D.N.Y.
30
June 6, 2014) (granting defendant’s motion to dismiss when the
five allegations of lethal force plaintiff offered did not
“support a plausible inference that each of the five incidents
amounted, in fact, to deprivation of constitutional rights”);
Jones, 691 F.3d at 82 (reversing judgment against municipality
where past-incident evidence offered at trial was
unsubstantiated, unrelated, and failed to establish notice).
Here, the five “clusters” of abuse that Fowler
identifies in his opposition include allegations of three
assaults by GRVC corrections officers.
The remainder of
plaintiff’s clusters include his general complaints regarding
wheelchair accessibility and his medication, and allegations
that he was improperly charged with fighting, denied the ability
to challenge this infraction, left in a soaked and slippery
cell, and placed in a cell soiled with human waste from the
previous occupant.
(See Pl. Opp. at 8-10.)
Though these other
allegations are all potentially serious, they do not support
plaintiff’s claim that the City was on notice of abusive
behavior.
Given the weight of authority in this Circuit
plaintiff’s three unsubstantiated allegations, even if proven,
cannot establish that defendant knew of and acquiesced in the
alleged abusive treatment.
Moreover, plaintiff’s letters do not demonstrate the
City’s response such that the court could find it was inadequate
31
or practically meaningless.
First, there is very little
evidence concerning the City’s response to plaintiff’s
allegations of the 2007 assaults at all.
Plaintiff again can
only point to the letters sent on his behalf but he does not
indicate whether or what response he received.
Even still, one
reply to plaintiff’s letters indicates that at least one City
unit investigated plaintiff’s August 2007 allegations and found
them to be unsubstantiated.
(Ex. 7 at 23.)
Plaintiff provides
no evidence, and makes no argument, that the mentioned
investigation was somehow inadequate.
See Vasquez, 2013 U.S.
Dist. LEXIS 144313, at *32.
For the same reasons, citation to lawsuits, even
dozens of similar lawsuits, is not enough without evidence of
the City’s response or evidence that the response was
practically meaningless.
See Outlaw v. City of Hartford, No.
07-CV-1769, 2015 WL 1538230, at *10 (D. Conn. Apr. 6, 2015)
(finding sixty-five lawsuits offered minimal probative value
without evidence of “the outcome in each case, or whether and
how thoroughly the complaints were investigated by the City”);
Ameduri v. Vill. of Frankfurt, 10 F. Supp. 3d 320, 341 (N.D.N.Y.
2014) (“[C]itation to a few lawsuits involving claims of alleged
excessive force is not probative of the existence of an
underlying policy by a municipality.”); see also Jean-Laurent v.
Wilkerson, 461 F. App’x 18, 22-23 (2d Cir. 2012) (“[Plaintiff]
32
. . . offered no relevant or admissible evidence in support of
his assertion that the City of New York had established a policy
or custom of ‘use of excessive and brutal physical force against
inmates/detainees by correctional officers,’ and he did not
establish that the deprivation of his constitutional rights was
caused by any such policy. [Plaintiff]’s citation to various
lawsuits involving inmate claims for the excessive use of force
is not probative of the existence of an underlying policy that
could be relevant here.”).
There is no evidence in the record
concerning the outcome of plaintiff’s lawsuits or whether the
unconstitutional behavior alleged was ultimately proven.
Plaintiff has not proffered sufficient evidence for a
jury to find that the City should have known about a widespread
pattern of constitutional violations by its officers at GRVC.
There is no evidence in the record to detail the DOC’s general
procedures for addressing complaints of officer misconduct.
See
Sarus v. Rotundo, 831 F.2d 397, 401-02 (2d Cir. 1987) (reversing
plaintiff’s verdict where plaintiff presented no evidence as to
the municipality’s response to any prior incident of misconduct,
no evidence that superior methods were in use in other police
departments, and no expert testimony as to proper officer
procedures); cf. Vann, 72 F.3d at 1050 (finding material issue
of fact existed where plaintiff presented evidence of municipal
department’s general methods of dealing with misconduct and of
33
its responses specific to the involved officer).
Plaintiff has also entirely failed to offer the
disciplinary records of any of the officers involved in either
the 2007 alleged assaults or the 2010 alleged assaults.
Thus,
he cannot show that the officers involved in the 2007 incident
were never disciplined, or if they were disciplined, that it was
so inadequate as to demonstrate deliberate indifference.
Alwan, 311 F. Supp. 3d at 585.
See
Additionally, he cannot show
that the records of the officers involved in the alleged
assaults should have put the City on notice that the officers
were likely to violate Fowler’s constitutional rights. 5
For the foregoing reasons, plaintiff has not
identified a genuine dispute of material fact, and his failure
to supervise or discipline claim fails as a matter of law.
B.
Failure to Train
Plaintiff’s opposition and Amended Complaint can be
alternatively construed to raise a claim based on the City of
New York’s failure to train its corrections officers.
Like a failure to discipline claim, a municipal
defendant’s failure to train its employees may support a finding
The Amended Complaint alleges that at least one officer involved in the
2010 assaults was also involved in the 2007 assaults, but the court can find
no record evidence to support this allegation. (Am. Compl. ¶ 32.) Neither
Officer Phillip nor Captain Blassingame was assigned to GRVC during the time
of the August 2007 assaults. (Blassingame Dep. at 7; Phillip Dep. at 7.)
And Officer Harris is not named in any of plaintiff’s allegations concerning
the 2007 assaults.
5
34
of deliberate indifference under Monell.
388-89.
Canton, 489 U.S. at
The Second Circuit has identified three requirements a
plaintiff must meet to prevail on a failure to train claim.
Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992).
First, the plaintiff must show that a policymaker knows “to a
moral certainty” that the municipality’s employees will confront
a given situation.
Id. (quoting Canton, 489 U.S. at 390 n.10).
Second, the plaintiff must show that the situation either
presents the employee with a difficult choice that would be made
easier through training or “that there [wa]s a history of
employees mishandling the situation.”
Id.
The plaintiff must
finally show that “the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional
rights.”
Id. at 298; see also Jenkins, 478 F.3d at 94.
The Supreme Court has cautioned that municipal
liability under Monell is “at its most tenuous” under a failure
to train theory.
Connick, 563 U.S. at 61.
The lack of training
must make it “highly predictable” that municipal officers would
violate the constitutional rights of citizens.
Id. at 71.
It
is generally insufficient to identify a particular officer’s
unsatisfactory training because “the officer’s shortcomings may
have resulted from factors other than a faulty training
program.”
Canton, 489 U.S. at 390-91.
Thus, “the existence of
a pattern of tortious conduct by inadequately trained employees
35
may tend to show that the lack of proper training,” rather than
a single instance of faulty training, caused the plaintiff’s
injury.
Bryan Cty., 520 U.S. at 407; see also Jenkins, 478 F.3d
at 95 (“A training program is not inadequate merely because a
few of its graduates deviate from what they were taught.”).
To
prevail, a failure to train claim must, therefore, “identify a
specific deficiency in the city’s training program and establish
that [the] deficiency is closely related to the ultimate injury,
such that it actually caused the constitutional deprivation.”
Wray v. City of New York, 490 F.3d 189, 196 (2d Cir. 2007)
(internal quotation marks omitted) (quoting Amnesty Am., 361
F.3d at 129); see also Green, 465 F.3d at 81 (“At the summary
judgment stage, plaintiffs must ‘identify a specific deficiency
in the city’s training program . . . .’”).
In addition to identifying the particular weakness in
a city’s training program, a plaintiff must offer some proof
that “[c]ity policymakers [were] on actual or constructive
notice that a particular omission in their training program
[would] cause[] city employees to violate citizens’
constitutional rights” but nevertheless chose to retain the
program.
Connick, 563 U.S. at 61.
Without actual notice the
need must be “so obvious, and the inadequacy [of current
practices] so likely to result in a deprivation of
constitutional rights” before a fact-finder may find deliberate
36
indifference.
Canton, 489 U.S. at 390.
A plaintiff must then
establish that, faced with this obvious need, the municipal
defendant breached its duty to act by failing to make meaningful
efforts to address the risk of harm to citizens.
Reynolds, 506
F.3d at 192.
An obvious need appears to be a high bar, given the
stringent standards of Monell.
District courts in this Circuit
have questioned whether a particular need was obvious in failure
to train or discipline cases, even where plaintiffs could point
to evidence of more than 200 use of force complaints analyzed in
an Inspector General’s report.
581 (collecting cases).
See Alwan, 311 F. Supp. 3d at
A New York City Police Department
(“NYPD”) Inspector General’s report issued in 2015 documented
more than 200 substantiated use of force complaints between 2010
and 2014.
Courts that have declined to impose Monell
Id.
liability in light of this report noted, among other reasons,
the small number of allegations when compared to the sheer size
of the NYPD.
Id.
Here, plaintiff has failed to develop and present
evidence pertaining to training programs for DOC officers by the
City of New York.
He cannot and does not point to a specific
deficiency in the City’s relevant training programs.
See Farrow
v. City of Syracuse, No. 12-CV-1401, 2014 WL 1311903, at *8
(N.D.N.Y. Mar. 31, 2014) (“Plaintiff has not adduced direct
37
evidence of the City’s training policies in discovery and,
therefore, his claim cannot survive summary judgment.”);
Jenkins, 478 F.3d at 95 (granting defendant’s summary judgment
motion where plaintiff failed to “identify procedural manuals or
training guides” or “highlight a particular aspect of police
training or supervision that was responsible” for the
constitutional violation); cf. Burch v. City of New York, No.
11-CV-2841, 2016 WL 11430773, at *18 (E.D.N.Y. Apr. 22, 2016)
(“[Plaintiff] has raised an issue of fact as to whether officers
were adequately trained . . . [t]hrough the testimony of her
expert witness . . . .”).
Moreover, as with his other claims, Fowler has failed
to demonstrate an underlying pattern of constitutional
violations that would put the City on actual or constructive
notice of the obvious risk of harm to its citizens without
meaningful efforts by the City.
As previously discussed, his
lawsuits, letters, and otherwise unsupported allegations are
insufficient to demonstrate a pattern that highlighted an
obvious need.
Even in the cases where plaintiffs have offered
the NYPD Inspector General’s report detailing hundreds of
excessive force complaints over a period of years, courts have
been reluctant to find a pattern sufficient to put the City on
notice.
See Alwan, 311 F. Supp. 3d at 583 (collecting cases);
see also Hanson v. City of New York, No. 15-CV-1447, 2018 WL
38
1513632, at *21 (E.D.N.Y. Mar. 27, 2018).
Finally, plaintiff has failed to present or point the
court to record evidence that would satisfy the required
causation element of his Monell claim under this theory.
Reynolds, 506 F.3d at 192.
See
As such, plaintiff has not
identified or presented evidence of any genuine disputes of
material facts regarding his failure to train claim, and the
court finds that defendant is entitled to summary judgment on
this claim as a matter of law.
C.
Custom or Practice
Defendant acknowledges that, in addition to the
already discussed deliberate indifference theories, plaintiff
argues something of a “hybrid theory” that a practice of abuse
at GRVC was so widespread and persistent as to amount to de
facto policy under Monell.
(See Def. Summ. J. Mot. at 6.)
But,
because plaintiff alleges only violations concerning himself,
and only a handful of violations at that, he cannot support a
finding of a widespread custom or usage necessary to impose
municipal liability under Monell.
A custom or usage of constitutional violations under
Monell “must be so manifest as to imply the constructive
acquiescence” of senior policymakers.
Sorlucco, 971 F.3d at
871; see also Curry v. City of Syracuse, 316 F.3d 324, 330 (2d
Cir. 2003) (“Under Monell, a municipality may not be held liable
39
under § 1983 simply for the isolated unconstitutional acts of
its employees.” (internal quotation mark omitted)).
But,
“isolated acts of excessive force by non-policymaking municipal
employees are generally not sufficient to demonstrate a
municipal custom, policy or usage that would justify municipal
liability.”
Jones, 691 F.3d at 81.
A court in this Circuit has
defined “widespread” to mean that the unconstitutional acts in
question are “common or prevalent throughout the [government
body],” and “well-settled” to mean that the unconstitutional
acts “have achieved permanent, or close to permanent, status.”
Davis, 228 F. Supp. 2d at 346 (finding two incidents of
unconstitutional conduct insufficient to support a widespread or
well-settled custom theory under Monell); see also Rubio v. Cty.
of Suffolk, 328 F. App’x 36, 38 (2d Cir. 2009) (“[W]e agree with
the District Court that ‘a few violations by a small group of
subordinate County employees with no policymaking authority
[cannot] amount to the pervasive and widespread custom or
practice necessary for municipal liability.’” (second alteration
in original)).
“There is no ‘magic number’ of instances of
unconstitutional conduct that will suffice to permit the
inference of a broader municipal policy of custom.’”
Calicchio
v. Sachem Cent. Sch. Dist., 185 F. Supp. 3d 303, 316 (E.D.N.Y.
2016) (internal quotation marks omitted) (quoting Norton v. Town
40
of Islip, No. 12-CV-4463, 2016 WL 264930, at *7 (E.D.N.Y. Jan.
21, 2016)).
However, courts in this Circuit have found as many
as four alleged constitutional violations insufficient to
indicate a widespread practice.
See, e.g., Giaccio v. City of
New York, 308 F. App’x 470, 472 (2d Cir. 2009) (“This evidence
falls far short of establishing a practice that is so persistent
or widespread as to justify the imposition of municipal
liability.” (internal quotation marks omitted)).
Moreover, courts have routinely granted summary
judgment against plaintiffs who bring only allegations of
constitutional violations unique to them.
See, e.g., Wingate v.
City of New York, No. 14-CV-4063, 2018 WL 3863439, at *10
(E.D.N.Y Aug. 14, 2018) (finding an ongoing practice of
interference with plaintiff’s mail not necessarily a widespread
practice); Bradshaw v. City of New York, No. 17-CV-1199, 2017 WL
6060781, at *9 (S.D.N.Y. Dec. 17, 2017) (noting that plaintiff
pointed to no evidence “aside from his own allegedly
unconstitutional treatment”); see also Norton, 2016 WL264930, at
*8 (granting defendant municipality judgment on pleadings and
noting complaint did not allege “that anyone other than
Plaintiff has been subjected to unconstitutional searches” which
does not “support an inference that there was a broader
[municipal] policy or custom”).
In Toliver, the court granted summary judgment to
41
defendants because the inmate-plaintiff’s allegations of
widespread abuse of other inmates were conclusory and supported
by no evidentiary material or specific supporting facts.
Toliver, 2012 U.S. Dist. LEXIS 171239, at *14.
The plaintiff
therefore only offered proof of constitutional violations as to
himself, and had thus failed to proffer evidence from which a
reasonable fact-finder could conclude that his injuries were the
product of a municipal policy or custom under Monell.
Id.
Because plaintiff’s alleged constitutional violations
concern only himself, coupled with the limited number of alleged
violations he brings, as a matter of law he cannot establish a
finding of widespread practice supporting a custom or usage
theory under Monell.
Thus, under a custom or usage theory,
plaintiff’s Monell claim also fails.
D.
Failure to Screen
Plaintiff cites to a Second Circuit case applying New
York law for the tort of negligent hiring to argue that the
City, as an employer, is liable for the tortious conduct of its
employees.
(Pl. Opp. at 7; see also Am. Compl. ¶ 33.)
argument is unavailing.
This
When considering a Monell claim, the
court does not also consider analogous tort law to determine
when a municipality has violated the constitutional rights of
its citizens, especially not when a body of Supreme Court and
42
Second Circuit case law provides the relevant authority. 6
In any
event, plaintiff appears to argue that the City should have
known about its GRVC officers’ propensity for constitutional
violations.
Liberally construing this argument as a failure to
screen, the court likewise finds that plaintiff has failed to
adduce sufficient evidence to survive summary judgment.
For a failure to screen claim, the plaintiff must
produce enough evidence from which a jury could find that, had
the municipality adequately screened an officer’s application
materials, the risk of a constitutional violation would have
been a “plainly obvious consequence.”
411.
Bryan Cty., 520 U.S. at
Additionally, to support such a claim, the plaintiff must
demonstrate that the municipality’s indifference was not to the
officer’s application materials in general, but, once screened,
to the obvious risk that the officer would violate the
constitutional rights of a citizen.
Id.
The Supreme Court has
cautioned that municipal liability claims based on such a theory
must be sufficiently scrutinized because there is a particular
danger of such claims “collapsing into respondeat superior
The Amended Complaint alleges that the assaults “were committed . . .
while [the officers and captains] were acting in the course and general scope
of their employment,” thus making defendant City of New York “liable for the
careless and reckless hiring, negligent training and negligent retention of
its employees.” (Am. Compl. ¶ 26; but see ¶ 33.) Plaintiff now seems to
argue in opposing defendant’s motion that the officers were not acting within
the scope of their employment in order to hold the City liable under Ehrens.
(Pl. Opp. at 7 (“Sodomozing an inmate is not an activity that is within the
scope of their employment. Therefore, it is appropriate to survey the
analysis of Ehrens.”).)
6
43
liability.”
Id. at 410.
The Court, therefore, instructed
district courts to “test the link between the policymaker’s
inadequate decision and the particular injury alleged.”
Id.
Plaintiff cannot prevail on a failure to screen
theory.
He has developed no admissible evidence of the hiring
history of any of the officers allegedly involved in his
constitutional deprivations.
He has likewise neither discovered
nor offered any evidence related to the hiring practices in
general of the City’s DOC.
There is no evidence from which a
reasonable jury could find for plaintiff on his failure to
screen theory; thus, there is no genuine dispute of material
fact requiring a trial.
To the extent plaintiff lodges his
Monell claim on a failure to screen theory, it too fails and the
court grants defendant’s motion for summary judgment.
CONCLUSION
For the foregoing reasons, defendant’s motion for
summary judgment is GRANTED.
The Clerk of Court is directed to
enter judgment for defendant, and close the case.
SO ORDERED.
DATED: Brooklyn, New York
March 26, 2019
__/s/_
________
Kiyo A. Matsumoto
United States District Judge
44
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