Lopez v. Zouvelos et al
Filing
49
MEMORANDUM & ORDER: the Court grants Zouvelos' 39 motion to dismiss and dismisses the Amended Complaint as to him. The Court also sua sponte 42 dismisses the Amended Complaint as to Conwell. The Court grants the City of New Yo rk's 40 motion to dismiss the Amended Complaint against the City of New York but directs the Clerk of Court to substitute Jane Doe # 3, John Doe # 4 (Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6 (Badge # 11511) as Defendants. The Court orders the City of New York to ascertain the full names and service addresses of Jane Doe # 3 and John Does # 4, 5 and 6 and to provide this information to Plaintiff and the Court within 30 days from the date of this Memorandum and Ord er. Upon receipt of the foregoing information, the Clerk of Court is directed to amend the caption to substitute the names for Jane Doe # 3 and John Does # 4, 5 and 6 and to forward copies of the following documents to the United States Marshal Se rvice for service upon Jane Doe # 3 and John Does # 4, 5 and 6: (1) the Amended Complaint; (2) summonses for Jane Doe # 3 and John Does # 4, 5 and 6; and (3) this Memorandum and Order. Plaintiffs Fourth Amendment strip search claim will proceed against Jane Doe # 3 and John Does # 4, 5 and 6. SO ORDERED by Judge Margo K. Brodie, on 9/23/2015. C/mailed. (Docket Sheet Updated.) (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------RAMON LOPEZ,
Plaintiff,
MEMORANDUM & ORDER
13-CV-6474 (MKB)
v.
GEORGE ZOUVELOS, VINY CONWELL,
and CITY OF NEW YORK,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Ramon Lopez, currently incarcerated at Mid-State Correctional Facility,
commenced the above-captioned action on November 14, 20131 and, by his Second Amended
Complaint filed on April 19, 2014,2 asserts claims pursuant to 42 U.S.C. § 1983 against
Defendants George Zouvelos, Viny Conwell and the City of New York for alleged violations of
his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States
1
Plaintiff’s original Complaint named George Zouvelos, Viny Conwell, the New York
City Police Department (“NYPD”) and the New York City Department of Correction (“DOC”)
as Defendants and asserted claims pursuant to 42 U.S.C. § 1983 for alleged violations of
Plaintiff’s and his family’s Fourth, Fifth, Eighth and Fourteenth Amendment rights. (Compl.,
Docket Entry No. 1.) By Memorandum and Order dated November 4, 2014, the Court granted
Plaintiff’s request to proceed in forma pauperis and dismissed Plaintiff’s claims against the
NYPD and the DOC with prejudice and granted Plaintiff leave to file an amended complaint and
replead his claims against Zouvelos and Conwell. Lopez v. Zouvelos, No. 13-CV-6474, 2014
WL 843219 (E.D.N.Y. Mar. 4, 2014), available at Docket Entry No. 9. Plaintiff was also given
leave to add the City of New York as a defendant to the extent he intended to pursue a claim
based on municipal liability. Id.
2
On March 3, 2015, counsel appeared in this case on Plaintiff’s behalf. (Not. of
Appearance of Karamvir Dahiya, Docket Entry No. 45.) At all times prior to March 3, 2015,
Plaintiff proceeded pro se.
Constitution.3 (Am. Compl., Docket Entry No. 12.) Defendants the City of New York and
Zouvelos move to dismiss Plaintiff’s Amended Complaint for failure to state a claim.4 (City
Not. of Mot. to Dismiss, Docket Entry No. 40; City. Mem. in Support of Mot. to Dismiss (“City
Mem.”), Docket Entry No. 41; Conwell Not. of Mot. to Dismiss, Docket Entry No. 39; Conwell
Mem. in Support of Mot. to Dismiss (“Conwell Mem.”), Docket Entry No. 39.)
For the reasons set forth below, the Court grants Zouvelos’ motion to dismiss and
dismisses the Amended Complaint as to him. The Court also sua sponte dismisses the Amended
Complaint as to Conwell. The Court grants the City of New York’s motion to dismiss the
Amended Complaint against the City of New York but directs the Clerk of Court to substitute
Jane Doe # 3, John Doe # 4 (Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6
(Badge # 11511) as Defendants. The Court orders the City of New York to ascertain the full
names and service addresses of Jane Doe # 3 and John Does # 4, 5 and 6 and to provide this
information to Plaintiff and the Court within thirty (30) days from the date of this Memorandum
and Order. Upon receipt of the foregoing information, the Clerk of Court is directed to amend
the caption to substitute the names for Jane Doe # 3 and John Does # 4, 5 and 6 and to forward
copies of the following documents to the United States Marshal Service for service upon Jane
Doe # 3 and John Does # 4, 5 and 6: (1) the Amended Complaint; (2) summonses for Jane
Doe # 3 and John Does # 4, 5 and 6; and (3) this Memorandum and Order.
3
This action was transferred to this Court from the United States District Court for the
Northern District of New York by order dated November 19, 2013. (Docket Entry No. 4.)
4
Defendant Conwell was not served until June 25, 2015, and has yet to answer or
otherwise appear in this case. (Supp. Summons, Docket Entry No. 48.)
2
I.
Background
a.
Plaintiff’s apprehension and surrender to custody
On May 22, 2012, New York City Police Department (“NYPD”) Officer John Doe # 1 of
the 83rd Precinct, Warrant Squad, visited Plaintiff’s home to arrest Plaintiff pursuant to an
“erroneous warrant” that appeared to be outstanding in online records of active bench warrants
maintained by the New York State Unified Court System.5 (Am. Compl. 7.)6 The warrant had
been vacated by Judge William Garnett of the New York State Supreme Court, Criminal Term,
on May 21, 2012, but, Plaintiff claims, the warrant still appeared to be outstanding on the system
due to a clerical error by the Kings County Supreme Court Clerk. (Id.) After arriving at
Plaintiff’s home, John Doe # 1 determined that the warrant had been vacated. (Id.) Plaintiff
received confirmation from John Doe # 1 that the warrant had been vacated and John Doe # 1
explained to Plaintiff that the warrant erroneously appeared to be outstanding due to “a lapse in
the system.” (Id.) John Doe # 1 then left Plaintiff’s home without apprehending him. (Id.)
On May 24, 2012, Zouvelos, a bail bondsman and the owner of a bail bonds agency then
known as NYC Pay Bail, instructed his partner, Conwell, to “unlawfully arrest” Plaintiff on the
basis of the erroneous online records. (Id.) Conwell, who is a bounty hunter, prepared to
apprehend Plaintiff with the help of Conwell’s “four-man crew.” (Id.) Before going to
Plaintiff’s home to take Plaintiff into custody, Conwell and the agents under his supervision went
to the 83rd Precinct to “state why his team was in the area” and provide notification about “who
5
The facts alleged in the Amended Complaint are assumed to be true for the purposes of
this motion.
6
As the pages of the Amended Complaint are not consecutively numbered, all citations
to pages of the Amended Complaint refer to the Electronic Document Filing System (“ECF”)
pagination.
3
he was arresting.” (Id.) Upon reporting to the 83rd Precinct, Conwell spoke with
“command[ing] officer” John Doe # 2 who “authorized Conwell to illegally arrest Plaintiff” and
“act[ed] in concert” with Conwell “without inquiring into the basis of [Conwell’s] claim” that
Plaintiff’s arrest was warranted. (Id.)
Although on May 22, 2012, John Doe # 1 had created and logged a “known report”
indicating that the warrant pertaining to Plaintiff was erroneous, John Doe # 2 did not retrieve
the report and failed to verify Conwell’s claim that there was an outstanding bench warrant as to
Plaintiff. (Id. at 7–8.) John Doe # 2 did not check the “internal record source and external
databases” that were available to John Doe # 2. (Id.) Instead, John Doe # 2 sent Conwell and his
crew, unescorted, to Plaintiff’s home. (Id. at 8.)
After notifying the 83rd Precinct, Conwell and his agents went to Plaintiff’s home to
apprehend him. (Id.) “[W]ithout a warrant or court order,” Conwell and his agents “forced
themselves inside the home” and all those present, including senior citizens and children, were
horrified by the “harsh treatment and lethal weapons” of Conwell and his agents. (Id.) Plaintiff
also alleges that Conwell and his agents brought a photographer who took unauthorized
photographs of Plaintiff’s family and posted them on social media to “publicize and circumscribe
humiliation” to Plaintiff and his family. (Id.)
Plaintiff claims that, in failing to escort Conwell, John Doe # 2 failed to “acknowledge
the significance of the public’s ‘safety, peace, and order’” and the NYPD’s responsibility to
“protect and serve” in violation of NYPD custom or policy. (Id.) Plaintiff also alleges that John
Doe # 2 did not adhere to the NYPD’s custom or policy by disregarding the NYPD motto
“Courtesy, Professionalism, Respect” when he failed to intervene and come to Plaintiff’s aid and
instead “act[ed] in concert” with Conwell. (Id.) Plaintiff claims Lieutenant Arsenio Camilo of
4
the 83rd Precinct was also on duty the night of Plaintiff’s arrest and witnessed the events at the
83rd Precinct as they unfolded. (Id.)
Following Plaintiff’s apprehension by Conwell and his crew, Plaintiff was placed in
handcuffs and taken to the 83rd Precinct by Conwell and his agents. (Id. at 9) While Plaintiff
waited in Conwell’s Jeep outside of the 83rd Precinct in handcuffs, and under the supervision of
Conwell’s agents, Conwell completed paperwork inside the 83rd Precinct. (Id.) Plaintiff
remained with Conwell and his agents until about 4:30 AM on May 25, 2012, at which point
Conwell transported Plaintiff to Rikers Island. (Id.)
Upon his arrival at Rikers Island, Plaintiff overheard John Doe # 3, a correction officer
stationed at the “front desk” of the “intake area,” tell Conwell, “I’m going to charge you a fee for
each body brought in.” (Id.) Plaintiff alleges that this comment evidences a “conspiracy” to
“obstruct justice and hold Plaintiff against his will” and, Plaintiff claims, the intake officer
accepted Conwell’s “frivolous paperwork” without confirming that Plaintiff was, in fact, a
fugitive from justice. (Id.)
On May 29, 2012, Plaintiff was brought before New York State Supreme Court Judge
John P. Walsh for a bail hearing. (Id.) Judge Walsh set bail and Plaintiff was returned to Rikers
Island following the hearing. (Id.) At an unspecified time thereafter, Plaintiff was transferred
from Rikers Island to the Brooklyn Detention Center (“BK Detention Center”). (Id.)
b.
Ankle and knee injuries sustained while incarcerated
On an unspecified date, Plaintiff fractured his ankle and sprained his knee while he was
incarcerated at BK Detention Center. (Id. at 4, 10.) Plaintiff sustained these injuries during
recreation and they were caused by a deteriorated rubber mat with a non-visible hole. (Id. at 10.)
Plaintiff alleges that, although BK Detention Center was “renovated and reopened in early
5
2012,” it “appears the [mats] were overlooked by the assigned contractors.” (Id.) As a result of
DOC’s “failure to maintain a safe environment,” Plaintiff suffers from “severe pain” to his knee
and ankle and “constantly feels the aftermath” of these injuries and, at times, is “unable to sit or
stand for long periods” or jump as he used to prior to the injuries. (Id.) Plaintiff alleges that he
sought immediate medical attention for his knee and ankle injuries but was only “provided the
bare minimum, an [ACE] bandage and pain medication.” (Id. at 4, 10.) Plaintiff claims that he
received no “follow up” treatment from the medical staff. (Id. at 4.)
c.
Strip search while incarcerated
On October 12, 2012, while Plaintiff was incarcerated in “the 4 building (4 Main Lower)”
on Rikers Island, Plaintiff was improperly strip searched by “special unit correction officers”
John Doe # 4 (Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6 (Badge # 11511).
(Id. at 10.)
Plaintiff alleges that, in the course of an argument between Jane Doe # 3 and an inmate
who did not speak English, “Plaintiff offered to assist the captain” by translating.7 (Id.) In
response, “the captain threatened and racially stereotyped Plaintiff as being a gang member” and
Jane Doe # 3 stated, “You are going to see what’s going to happen to you F*** spic,” and
dispatched the “special unit,” a team of officers consisting of John Does # 4, 5 and 6. (Id. at 11.)
The “special unit” was “sent by Jane Doe # 3 in retaliation” for Plaintiff’s offer to translate
during the argument between Jane Doe # 3 and the inmate. (Id. at 10.)
When the “special unit” arrived, the officers took Plaintiff to his cell and ordered him to
remove all of his clothes while Plaintiff stood in front of a window through which other inmates
7
It is not clear from the allegations whether Jane Doe # 3 and the “captain” are the same
person or two different people. (Am. Compl. 10.)
6
were able to see Plaintiff. (Id. at 11.) Plaintiff alleges that, as a result of the strip search, he was
“humiliated and scared for his life” because one of the special unit officers stated, “I was sent
here to handle business.” (Id.) Plaintiff “quickly and intelligently diffused the situation” such
that the officers left Plaintiff’s cell without harming Plaintiff. (Id. at 11.) The officers’
“outrageous intentional actions” have nonetheless caused Plaintiff to be “traumatized and
nervous around officers.”8 (Id.)
II. Discussion
a.
Standard of review
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that the plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); Erickson v. Pardus,
551 U.S. 89, 94 (2007) (same); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even
8
Plaintiff alleges that, following the strip search, Plaintiff called his brother, David
Lopez, and directed him to file a complaint with 311 regarding the strip search. (Am. Compl.
11.) Plaintiff’s brother filed a complaint with 311 as requested, and attached to the Amended
Complaint is an October 12, 2012 email from the 311 Customer Service Center confirming
receipt of the complaint and forwarding it to DOC. (Ex. E annexed to Am. Compl. at ECF No.
28–29.) Plaintiff also alleges that three days after the strip search occurred, on October 15, 2012,
he was transferred to Ulster County Correction Facility and, as a result, Plaintiff “wasn’t able to
grieve” the “malicious actions” of John Does # 4, 5 and 6. (Am. Compl. 11.)
7
after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court
determines it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).9
b.
Section 1983 claims
Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 against Zouvelos, Conwell and the
City for alleged violations of Plaintiff’s rights under the Fourth, Fifth, Eighth and Fourteenth
Amendments. Although not named in the caption of his Amended Complaint, Plaintiff appears
to allege violations of his rights by Jane Doe # 3 and John Does # 4, 5 and 6.
In order to sustain a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege (1)
that the challenged conduct was “committed by a person acting under color of state law,” and (2)
that such conduct “deprived [the plaintiff] of rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 claims generally
must be brought against the individuals personally responsible for the alleged deprivation of
constitutional rights, not against the government entities or agencies where those individuals are
9
When deciding a motion to dismiss, a court’s review is limited to the four corners of
the complaint but a court may also review (1) documents attached to the complaint, (2) any
documents incorporated in the complaint by reference, (3) documents deemed integral to the
complaint, and (4) public records. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422
(2d Cir. 2011) (documents attached to the complaint, those incorporated by reference, and those
integral to the complaint); Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150,
156 (2d Cir. 2006) (documents integral to the complaint); Blue Tree Hotels Inv. (Canada), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (public records).
If the court takes judicial notice of public records, it does so “in order to determine what
statements they contained[,] but not for the truth of the matters asserted.” Roth v. Jennings, 489
F.3d 499, 509 (2d Cir. 2007) (alteration, citation and internal quotation marks omitted).
8
employed. See Thomas v. Ashcroft, 470 F.3d 491, 496–97 (2d Cir. 2006). A plaintiff seeking to
recover money damages “must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 678.
Furthermore, “the under-color-of-state-law element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mt. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted).
i.
Under color of state law — Zouvelos and Conwell
In order to state a claim pursuant to Section 1983 against a private individual like
Zouvelos or Conwell, the under-color-of-state-law element must be satisfied by alleging the
challenged conduct constituted “state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir.
2012) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2
(2001) (“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth
Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983
purposes.”)); Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citing RendellBaker v. Kohn, 457 U.S. 830, 838 (1982) (“In cases under § 1983, ‘under color’ of law has
consistently been treated as the same thing as the ‘state action’ required under the Fourteenth
Amendment.”)).
A private actor engages in state action when his or her conduct is “fairly attributable to
the state.” Filarsky v. Delia, 566 U.S. ---, ---, 132 S. Ct. 1657, 1661–62 (2012); see Abdullahi v.
Pfizer, Inc., 562 F.3d 163, 188 (2d Cir. 2009) (“Under § 1983, state action may be found when
there is such a close nexus between the State and the challenged action that seemingly private
behavior may be fairly treated as that of the State itself.” (internal quotation marks omitted)
(quoting Brentwood Acad., 531 U.S. at 295)). The conduct of a private actor may be attributed
9
to the state, satisfying the state action requirement, when:
(1) the State compelled the conduct [the “compulsion test”], (2)
there is a sufficiently close nexus between the State and the private
conduct [the “close nexus test” or “joint action test”], or (3) the
private conduct consisted of activity that has traditionally been the
exclusive prerogative of the State [the “public function test”].
McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (internal quotation marks
omitted), cert. denied, 135 S. Ct. 1703 (2015); Sybalski v. Indep. Grp. Home Living Program,
Inc., 546 F.3d 255, 257 (2d Cir. 2008). Each of the three avenues requires a fact-specific inquiry
into the challenged conduct, and in order to find state action, a court must determine that the
specific activity claimed to have caused the injury giving rise to a plaintiff’s claim can fairly be
deemed that of the state. See Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d
259, 265 (2d Cir. 2014) (examining public function test, noting that the function performed by
the private entity must have historically been “an exclusive prerogative” of the state (quoting
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 159 (1978))); Cooper v. U.S. Postal Serv., 577 F.3d
479, 491–92 (2d Cir. 2009) (examining joint action test, noting that state action cannot be
premised solely on subjection to state regulation, funding, licensing or even state creation);
Lynch v. Southampton Animal Shelter Found. Inc., 971 F. Supp. 2d 340, 349–50 (E.D.N.Y.
2013) (examining compulsion test).
Below, the Court considers the sufficiency of all conceivable allegations as to each test.10
10
According to Plaintiff, Zouvelos’ involvement in his apprehension was limited to
directing Conwell to take Plaintiff into custody. However, for purposes of assessing the
sufficiency of the allegations as to Zouvelos and Conwell, the Court assumes that, if Zouvelos
and Conwell were found to be state actors, Zouvelos could be liable for the unlawful conduct of
Conwell and the agents under his supervision as a “supervisory defendant” who “created a policy
or custom under which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom” or “was grossly negligent in supervising subordinates who committed the
wrongful acts.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (citing Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
10
1.
Close nexus or joint action test
Under the close nexus or joint action test, the requisite nexus between the State and the
challenged conduct exists “where a private actor has operated as a willful participant in joint
activity with the State or its agents, or acts together with state officials or with significant state
aid.” Abdullahi, 562 F.3d at 188 (internal citations and quotation marks omitted); Barrett v.
Harwood, 189 F.3d 297, 304 (2d Cir. 1999) (“A private person — not a government official —
acts under color of state law for purposes of § 1983 when ‘he has acted together with or has
obtained significant aid from state officials’ . . . .” (quoting Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982))). “It is not enough, however, for a plaintiff to plead state involvement in
some activity of the institution alleged to have inflicted injury upon a plaintiff; rather, the
plaintiff must allege that the state was involved with the activity that caused the injury giving rise
to the action.” Sybalski, 546 F.3d at 258 (emphasis, internal quotation marks and citations
omitted).
Plaintiff appears to rely almost exclusively on the close nexus or joint action test to allege
that Zouvelos and Conwell engaged in state action. Plaintiff asserts the requisite nexus exists on
the basis of state regulation, Fourth Circuit precedent regarding the state action requirement in
the particular context of bail bondsmen, and on the basis of allegations that sound in conspiracy.
The Court considers each of Plaintiff’s arguments.
A.
State regulation
As evidence of a nexus between Zouvelos and Conwell and the State of New York,
Plaintiff asserts that bondsmen are licensed by the State and that the State is the source of their
11
authority to supervise and apprehend fugitives.11 (Pl. Mem. in Opp’n to Mots. to Dismiss (“Pl.
Opp’n Mem.”) 4, Docket Entry No. 38.) In particular, Plaintiff emphasizes a statutory provision
under the New York General Business Law that requires bail enforcement agents like Conwell to
notify the local police precincts with jurisdiction over the area where a fugitive is believed to be
located before attempting to take the fugitive into custody.12 (Id. at 4–5.) Plaintiff appears to
make two arguments as to why the notification requirement transforms Zouvelos’ and Conwell’s
otherwise private action into state action. First, Plaintiff asserts that because State law imposed
this procedural requirement on Plaintiff’s apprehension, and because Conwell followed the
requisite procedure in apprehending Plaintiff, there is a nexus between the challenged conduct
and the State. (Id. at 4, 6.) Second, Plaintiff asserts that the notification requirement is
significant because John Doe # 2 “authorized” Conwell to proceed with taking Plaintiff into
11
With respect to the apprehension of fugitives, the applicable section of the New York
Code of Criminal Procedure provides, in relevant part:
At any time before the forfeiture of a bail bond, an obligor may
surrender the defendant . . . to the court in which his case is pending
or to the sheriff to whose custody he was committed at the time of
giving bail . . . . For the purpose of surrendering the defendant, an
obligor or the person who posted cash bail for the defendant may
take him into custody at any place within the state, or he may, by a
written authority indorsed on a certified copy of the bail bond,
empower any person over twenty years of age to do so.
N.Y. Crim. Proc. Law § 530.80.
12
The provision requiring notice states, in relevant part:
Prior to taking or attempting to take into custody a person, a bail
enforcement agent shall notify a local law enforcement agency
having jurisdiction over the area in which the person is believed to
be located of such bail enforcement agent’s intentions. The
notification shall be provided on a form prescribed by the local law
enforcement agency . . . . A representative of a local law
enforcement agency may accompany a bail enforcement agent when
the bail enforcement agent enters what is believed to be an occupied
structure to search for or to apprehend a person.
N.Y. Gen. Bus. Law § 74-a.
12
custody which establishes assistance from, and joint action with, a state actor. (Id. at 4–5 (“The
‘Consent or Authorization’ by the 83rd Precinct commanding officer to allow the bondsmen to
unlawfully arrest Mr. Lopez, signifies ‘aid’ and results in liability against the state. . . . [T]here
is a procedure Zouvelos and Conwell go by before they arrest their bailees with the police
department, resulting in a special relationship between the two.”).)
Accepting these allegations as true, they are not sufficient to allege state action. Merely
establishing that a private entity is subject to extensive state regulation or is “affected with the
public interest” is not sufficient to allege that the entity’s conduct constitutes state action.
Cooper, 577 F.3d at 491–92 (“A finding of state action may not be premised solely on the
private entity’s creation, funding, licensing, or regulation by the government.” (quoting Cranley
v. Nat’l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003))). Similarly, the fact that the
challenged conduct is subject to a permissive regulatory scheme that requires adherence to
certain procedures or permission from state actors is not sufficient. Cranley, 318 F.3d at 112–13
(state action not shown on basis of state insurance law permitting companies to reorganize
provided that they follow certain procedures and obtain state insurance commissioner’s approval
of reorganization plan, approval from commissioner did not establish state’s participation in
plan, because “[a]ction taken by private entities with the mere approval or acquiescence of the
state is not state action”); Sybalski, 546 F.3d at 259 (upholding dismissal of § 1983 claims
challenging limitations imposed by group home staff on resident’s visits with family; although
state regulations established the procedures whereby staff imposed the challenged limitations,
there was no joint action with state because group home staff decided whether to impose such
limitations).
Although state law imposed certain procedural requirements on Zouvelos and Conwell
13
should they elect to take Plaintiff into custody, neither state law nor John Doe # 2 or any other
state actor required Zouvelos or Conwell to take Plaintiff into custody. This is not sufficient to
establish joint action or affirmative cooperation. See Weaver v. James Bonding Co., Inc., 442 F.
Supp. 2d 1219, 1227 (S.D. Ala. 2006) (“[P]laintiff suggests that bail bondsmen can and should
be held liable ‘merely on the grounds that they had to get a [bondsman’s process] before
arresting the decedent.’ But this is not an accurate summation of the law. There do not appear to
be any cases holding that simply getting a state’s permission to act transforms a private party into
a state actor for § 1983 liability.” (citation omitted)).
B.
Bail bondsmen
Plaintiff relies on Fourth Circuit precedent about bail bondsmen and urges the Court to
conclude that Zouvelos and Conwell engaged in state action based on the “interdependen[t]”
relationship between bail bondsmen like Zouvelos and Conwell and the City. (Pl. Opp’n Mem. 5
(citing Jackson v. Pantazes, 810 F.2d 426 (4th Cir. 1987)).) While several courts of appeal in
other circuits have considered whether bail bondsmen and bail enforcement agents13 are state
13
As the cases involve not only bail bondsmen but also “bail enforcement agents” and
bounty hunters, it is helpful to understand the differences between each of these actors. Where
bail is set and a defendant awaiting trial is unable to post the full amount, the defendant may
enlist the services of a third-party bail bondsman, or “surety,” who is typically either the operator
or agent of a commercial bail bond business. See 8 C.J.S. Bail § 150; Gerald D. Robin, Reining
in Bounty Hunters, 21-Fall Crim. Just. 4, 4 (2006); Jonathan Drimmer, When Man Hunts Man:
The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L.
Rev. 731, 742 (1996). The bail bondsman secures the release of the defendant, or “principal,” by
endorsing a bail bond on the defendant’s behalf whereby the bonding company guarantees the
defendant’s appearance in court and agrees to pay the full value of the bond should the defendant
principal fail to appear. See 8 C.J.S. Bail § 151 (“A recognizance or bail bond, being in essence
a contract agreement between the government and the surety and the defendant who is the
principal . . . .”).
If a principal fails to appear in court, the bondsman will be liable for the full value of the
bond unless he is able to deliver the principal to court before a specific date. See 8 C.J.S. Bail §
150; Robin, 21 Fall Crim. Just. at 4. At this juncture, in order to avoid forfeiture, the bondsman
14
actors such that their conduct in apprehending fugitives may give rise to liability under Section
1983, the Second Circuit has not addressed this precise issue. The majority of circuits that have
considered this issue have focused on whether the bondsmen enlisted the assistance of law
enforcement officers in arresting their principals and, in the absence of allegations that law
enforcement officers provided affirmative assistance or joined bondsmen in effecting the
apprehension as joint actors, these courts have not found state action. See McGregor v. Snyder,
427 F. App’x 629, 633 (10th Cir. 2011) (no state action); Dean v. Olibas, 129 F.3d 1001, 1003,
1005–06 (8th Cir. 1997) (same); Landry v. A-Able Bonding, Inc., 75 F.3d 200, 204–05 (5th Cir.
1996) (same); Ouzts v. Maryland Nat. Ins. Co., 505 F.2d 547, 552–53 (9th Cir. 1974) (same); see
also United States v. Poe, 556 F.3d 1113, 1123–24, 1124 n.14 (10th Cir. 2009) (finding bounty
hunter was not state actor for purposes of Fourth Amendment search and seizure, and noting that
result would be the same for state action element of § 1983 claim because same test applies in
both Fourth Amendment and § 1983 contexts). However, in Jackson, the Fourth Circuit held
otherwise and determined that, as a general matter, bail bondsmen are state actors for purposes of
Section 1983. Jackson, 810 F.2d at 429–30.
In his opposition, Plaintiff relies on Jackson and urges the Court to find that Zouvelos
and Conwell engaged in state action pursuant to this precedent. (Pl. Opp’n Mem. 5.) In Jackson,
the Fourth Circuit held that, given the “symbiotic relationship” between bondsmen and the
criminal court system, the conduct of bail bondsmen is categorically state action, regardless of
will either attempt to apprehend the fugitive principal himself or he will enlist bail enforcement
agents or bounty hunters to do so. See Robin, supra at 4; Drimmer, supra at 743; see also N.Y.
Gen. Bus. Law § 71(1-a) (defining “bail enforcement agent” as a person or company engaged “in
the business of enforcing the terms and conditions of a person’s release from custody on bail in a
criminal proceeding, including locating, apprehending and returning any such person released
from custody on bail who has failed to appear at any stage of a criminal proceeding to answer the
charge before the court in which he may be prosecuted.”).
15
the facts and circumstances of a particular case. Jackson, 810 F.2d at 430 (“[T]he symbiotic
relationship between bail bondsmen and the Maryland criminal court system suffices to render
[the bond surety defendant’s] conduct state action. Bondsmen depend, for their livelihood, upon
the judicial use of a bail bond system, and they are licensed by the state. In return, bondsmen
facilitate the pretrial release of accused persons, monitor their whereabouts and retrieve them for
trial.”); see also Gregg v. Ham, 678 F.3d 333, 339 n.3 (4th Cir. 2012) (holding that conduct of
bondsman constituted state action based on Jackson). Plaintiff, relying on this standard, asserts
that “the symbiotic relationship between Zouvelos, Conwell and the City suffices to render
bondsmen’s conduct state action.” (Pl. Opp’n Mem. 5.)
The Fifth, Eighth, Ninth and Tenth Circuits have rejected the “symbiotic relationship”
approach taken in Jackson. See Poe, 556 F.3d at 1124 (“[The] argument that law enforcement
and the bail bonds industry have a ‘symbiotic relationship’ is unpersuasive.” (internal citation
omitted)); Dean, 129 F.3d at 1006 n.4 (“We reject [the Fourth Circuit ‘symbiotic relationship’
approach] . . . . As a general matter, bondsmen are private citizens who interact with the state in
the course of pursuing their private interests. Their conduct is therefore not attributable to the
state.” (internal citations and quotation marks omitted)); Landry, 75 F.3d at 205 n.5 (“We are not
persuaded by the Fourth Circuit’s finding that the relationship between bail bondsmen and the
state criminal court system is such that the actions of the bondsmen may be fairly treated as that
of the state itself.”); Ouzts, 505 F.2d at 554–55 (rejecting assertion that “bondsman was acting as
an unofficial agent or partner” of the court and was, therefore, “clothed with some of the court’s
official authority” because a “bail bondsman is in the business in order to make money and is not
acting out of a high-minded sense of devotion to the administration of justice”).
In contrast to the Fourth Circuit approach, the Fifth, Eighth, Ninth and Tenth Circuits
16
consider each individual case to determine the extent to which bondsmen acted together with, or
received significant aid from, local police officers in apprehending fugitives based on the
particular facts and circumstances of a given case. Under the approach in these circuits, state
action in the context of bail bondsmen depends on the affirmative assistance and participation of
local police in a bondsman’s efforts to apprehend a fugitive, and state action is not found unless
significant, affirmative assistance or joint action is alleged. See McGregor, 427 F. App’x at 633
(affirming grant of summary judgment in favor of bounty hunter in § 1983 claim because bounty
hunter “was not functioning as a state actor” when, during pursuit of fugitive, he went to
plaintiff’s home unescorted by police and attempted to gain entry); Dean, 129 F.3d at 1003,
1005–06 (finding bail bondsman who filed affidavit regarding his intention to surrender principal
did not engage in state action where police officers’ subsequent arrest of principal was pursuant
to warrant based on bondsman’s affidavit because bondsman “filed [the affidavit] on his own and
of his own free will, without the aid or encouragement of the state”); Landry, 75 F.3d at 204–205
(finding bail bondsman’s seizure of plaintiff did not constitute state action because bondsman
“did not attempt to enlist the assistance of local law enforcement officials”); Ouzts, 505 F.2d at
552–53 (finding out-of-state bounty hunter who arrested principal in violation of California law
was not state actor because state action requires “state involvement which directly or indirectly
promote[s] the challenged conduct”); see also Poe, 556 F.3d at 1118, 1123–24 (holding bounty
hunters did not engage in state action when, after observing illegal narcotics in criminal
defendant’s home during apprehension, bounty hunters called police who responded to scene and
arrested defendant; bounty hunters were not state actors for purposes of the Fourth Amendment
because police had not “instigated, orchestrated or encouraged the search” and bounty hunters
intent was not to assist law enforcement but rather to protect their own financial interests);
17
Weaver, 442 F. Supp. 2d at 1229 (finding bail bondsman was not engaged in state action and
could not be liable under § 1983 “for bail bonding function performed unilaterally, without
assistance or cooperation from law enforcement agents, and in furtherance of its own private
financial and contractual interests”); Green v. Abony Bail Bond, 316 F. Supp. 2d 1254, 1261
(M.D. Fla. 2004) (finding bondsmen did not engage in state action when they assaulted plaintiffs
while attempting to arrest principal because state law enforcement officers were not present at
the scene and “[a]lthough [bondsmen’s] authority to arrest . . . derived from the State of
Florida . . . [there were no] allegations indicating [bondsmen] received instructions, directions,
aid, comfort, succor, or anything else from the State in pursuing their principal”); cf. Tirreno v.
Mott, 453 F. Supp. 2d 562, 568 (D. Conn. 2006) (finding bondsman and bail enforcement agent
acted together with, and received significant aid from, local police in searching plaintiffs’ home
in pursuit of principal where officers were present at the scene during search and facilitated
access by advising plaintiffs that bondsman and bail enforcement agent had “special rights” to
enter plaintiffs’ house and threatening to kill plaintiffs’ dog if plaintiffs continued to refuse
entry).
Although the Second Circuit has not considered the precise issue of the state action
requirement as it applies to the activities of bondsmen, the Second Circuit’s analysis in Barrett v.
Harwood, 189 F.3d 297 (2d Cir. 1999), is instructive. In Barrett, the Court assessed the
sufficiency of the plaintiffs’ due process claims pursuant to Section 1983 based on the
repossession of plaintiffs’ truck by a private repossession agent. Id. at 300. In preparing to
repossess the truck, the private agent contacted the local police and requested that an officer be
dispatched to the scene, and the responding officer stood next to the truck during the
repossession. Id. at 299, 303. Although it was undisputed that the officer “did not physically
18
assist [the repossession] process,” when the defaulting purchaser struck the repossession agent,
the officer came forward and warned him: “If you start any trouble here, you’ll be going in the
back seat of my car.” Id. at 299. The Court stated that, in order to determine whether the private
agent’s conduct in effecting the repossession constituted state action, it was necessary to identify
the “point at which an officer’s presence and activities at the scene of a repossession become
state action in aid of the repossession.” Id. at 302.
Considering relevant case law from several circuits, the Second Circuit “discern[ed] a
spectrum of police involvement” that ranged from de minimis involvement not amounting to
state action at one end in cases where an officer is merely present at the scene, to cases further
along the spectrum where an officer is present and intervenes to keep the peace but is still not
sufficiently involved to give rise to state action, and, finally, to cases at the opposite end of the
spectrum where an officer “begins to take a more active hand in the repossession, and . . .
becomes increasingly critical” such that the repossession takes on the character of state action.
Id. at 302. The Court held that “the crucial question is whether the police officer was (1) present
simply to stand by in case there was a breach of the peace, or (2) taking an active role that either
affirmatively assisted in the repossession over the debtor’s objection or intentionally intimidated
the debtor so as to prevent him from exercising his legal right to object to the repossession.” Id.
at 302–03. Because the officer in Barrett was present solely to keep the peace and did not
engage in any affirmative conduct to assist with the repossession, the Court found that his
involvement did not rise to the level of joint activity or significant assistance and was, therefore,
not state action. Id. at 303; see Dolan v. Cassella, 543 F. App’x 90, 91–92 (2d Cir. 2013)
(finding repossession did not involve state action on basis of Barrett).
The Court finds the approach taken by the Fifth, Eighth, Ninth and Tenth Circuits
19
persuasive, particularly in view of the fact that their approach is consistent with that of the
Second Circuit in Barrett. The Court therefore declines to apply the approach taken by the
Fourth Circuit in Jackson.14 Based on the Second Circuit’s analysis in Barrett and in light of the
bondsmen-specific precedent from the Fifth, Eighth, Ninth and Tenth Circuits applying the joint
action test, the Court concludes that the allegations here are insufficient to state a plausible basis
for state action as to Zouvelos or Conwell.
It is undisputed that no officer from the 83rd Precinct or any other state actor was present
when Conwell and the agents under his supervision “invaded Plaintiff’s home by ‘hostile
takeover’” and engaged in the conduct that is alleged to have caused the injuries Plaintiff
attributes to Zouvelos and Conwell. (Am. Compl. 8.) Where no law enforcement officer or state
actor was present at the scene of Plaintiff’s apprehension, and no affirmative assistance from
John Doe # 2 or another state actor is otherwise alleged — apart from the “authorization”
provided by John Doe # 2 at the outset which, as discussed above, does not give rise to state
action — there is no basis to conclude that Zouvelos and Conwell acted jointly with, or obtained
significant assistance from, a state actor in the course of taking Plaintiff into custody. Indeed,
the allegations here are essentially concerned with John Doe # 2’s inaction — on the basis of
John Doe # 2’s failure to review John Doe # 1’s report and to escort Conwell to Plaintiff’s home
— and, as such, the allegations are insufficient to state a claim against Zouvelos or Conwell.
14
The Second Circuit’s disinclination to rely on the “symbiotic relationship” test also
informs the Court’s decision. See Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 314 n.8
(2d Cir. 2007) (noting that the “symbiotic relationship test” was established by Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961), which was “one of the Warren Court cases
that took an expansive view of state action” and that, “[a]lthough neither Burton nor the
symbiotic relationship doctrine has been overruled, they have been severely narrowed in scope
and diminished as precedent.” (quoting 1 Martin A. Schwartz, Section 1983 Litigation: Claims
and Defenses § 5.13[A], at 5–90–5–91 (4th ed. 2003))), aff’d sub nom. Am. Isuzu Motors, Inc. v.
Ntsebeza, 553 U.S. 1028 (2008).
20
Plaintiff has thus failed to establish state action through the close nexus or joint action tests based
on the conduct of Zouvelos or Conwell and their status as bail bondsmen.
C.
Conspiracy
Although the Amended Complaint is unclear, Plaintiff appears to allege conspiracies
between Conwell and John Doe # 2 of the 83rd Precinct, and between Conwell and DOC
correction officer John Doe # 3.
A private party will be shown to have acted under the color of state law if the party
conspires with the government to deprive a plaintiff of his constitutional rights. Missere v.
Gross, 826 F. Supp. 2d 542, 567 (S.D.N.Y. 2011) (“The touchstone of joint action is often a
plan, prearrangement, conspiracy, custom, or policy shared by the private actor and the [state
actor].” (citations omitted)). To plead a conspiracy for purposes of satisfying the state action
requirement, a plaintiff must adequately allege the same elements that are required to state a
conspiracy claim under Section 1983. Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d Cir.
2002); Young v. Suffolk Cty., 705 F. Supp. 2d 183, 196 (E.D.N.Y. 2010) (“[I]f the plaintiff has
sufficiently pled the existence of joint activity by the County defendants and the private party
defendants or sufficiently alleged that there was a conspiracy between the private party
defendants and the County defendants under § 1983, she will have sufficiently alleged state
action by the private party defendants.”). The elements of conspiracy under Section 1983 are “1)
‘an agreement between the state [actor] and private party,’ 2) ‘to act in concert to inflict an
unconstitutional injury,’ and 3) ‘an overt act done in furtherance of the goal causing damages.’”
Sclafani v. Spitzer, 734 F. Supp. 2d 288, 297–98 (E.D.N.Y. 2010) (citing Ciambriello, 292 F.3d
at 324–25). “[A] Section 1983 conspiracy claim against a private individual requires more than
pleading simply, and in conclusory fashion that the defendant ‘conspired’ with state actors.”
21
Stewart v. Victoria’s Secret Stores, LLC, 851 F. Supp. 2d 442, 445 (E.D.N.Y. 2012) (citing
Ciambriello, 292 F.3d at 324). “[While] [a] plaintiff is not required to list the place and date of
defendants[’] meetings and the summary of their conversations when he pleads conspiracy, . . .
the pleadings must present facts tending to show agreement and concerted action.” Young, 705
F. Supp. 2d at 197 (alteration in original) (citations omitted).
Plaintiff alleges John Doe # 2 “authorized Conwell to illegally arrest Plaintiff, without
inquiring into the basis of the bondsm[en’s] claim before acting in concert.” (Am. Compl. 7.)
To the extent Plaintiff intends to allege a conspiracy between Conwell and John Doe # 2 as the
basis for state action, the allegations are insufficient. Plaintiff has not alleged an agreement
between Conwell and John Doe # 2 and, instead, Plaintiff vaguely claims Conwell and John
Doe # 2 acted “in concert” pursuant to an unspecified agreement without setting forth sufficient
non-conclusory, factual allegations to support this claim. (Id. at 7–8); see Ciambriello, 292 F.3d
at 324 (“A merely conclusory allegation that a private entity acted in concert with a state actor
does not suffice to state a § 1983 claim against the private entity.”); see also Betts v. Shearman,
751 F.3d 78, 84 n.1, 86 (2d Cir. 2014) (upholding dismissal of § 1983 claims on basis of, inter
alia, failure to sufficiently plead conspiracy and joint action with state actors where plaintiff
claimed police officers assisted and coached private individual in making a false statement,
allegations were conclusory and implausible); Jae Soog Lee v. Law Office of Kim & Bae, PC,
530 F. App’x 9, 10 (2d Cir. 2013) (upholding dismissal of § 1983 claim because complaint
lacked “allegations, made in a non-conclusory way, setting out the overt acts, and the agreement,
that allegedly comprised the conspiracy” and, as such, there were “simply not enough factual
allegations to set out an actionable claim that defendants acted under color of state law”);
Harrison v. New York, No. 14-CV-1296, 2015 WL 1413359, at *19–20 (E.D.N.Y. Mar. 20,
22
2015) (discussing heightened pleading standard applicable to § 1983 conspiracy claims,
heightened standard is necessary because such claims are “so easily made and can precipitate
such protracted proceedings with such disruption of governmental functions that detailed fact
pleading is required to withstand a motion to dismiss” (quoting Angola v. Civiletti, 666 F.2d 1, 4
(2d Cir. 1981) (internal quotation marks omitted))); Rankel v. Town of Somers, 999 F. Supp. 2d
527, 551 (S.D.N.Y. 2014) (dismissing § 1983 conspiracy claim because, although plaintiff
claimed private individuals and state actor conspired through emails, faxes, phone calls and
during in-person visits, plaintiff failed to provide “details about these calls or visits”).
Plaintiff also claims that, when he was admitted to Rikers Island, he heard correction
officer John Doe # 3 say to Conwell “I’m going to charge you a fee for each body brought in.”
(Am. Compl. 9.) Plaintiff appears to allege that this statement evidences a conspiracy among
Conwell and, ostensibly, John Doe # 3 to “‘obstruct justice’ and hold Plaintiff against his will,”
because “Conwell’s frivolous paperwork was accepted and the intake officer never thought to
confirm [that] Plaintiff was an actual fugitive from justice with the court.” (Id.) These
allegations are similarly insufficient to allege a plausible conspiracy. The allegations are
conclusory and unclear as to who exactly Plaintiff claims was part of the conspiracy. To the
extent Plaintiff intends to allege a conspiracy between Conwell or Zouvelos and John Doe # 3 to
enrich themselves through invalid bail revocations, there are no allegations offered as evidence
of such a conspiracy aside from Plaintiff’s own arrest which he does not dispute was made
pursuant to a bench warrant, albeit an allegedly invalid warrant.
Plaintiff therefore fails to plead a conspiracy between Zouvelos or Conwell and a state
actor and, accordingly, Plaintiff cannot rely on this theory to establish that Zouvelos and Conwell
were acting under color of state law.
23
2.
Compulsion test
Plaintiff does not appear to rely on the compulsion test and has not alleged any facts to
suggest Zouvelos or Conwell were compelled, either by a state actor or under state law, to
engage in the alleged conduct. However, to the extent Plaintiff did intend to rely on the
compulsion test on the basis of the New York laws pertaining to bail bondsmen and bail
enforcement agents discussed above, these laws are not sufficient to establish compulsion.
“Under the ‘state compulsion’ test, the existence of state action ‘requires that a state
exercis[e] coercive power or . . . provide such significant encouragement, either overt or covert,
that the [decision] must in law be deemed that of the State.’” Miller v. Bd. of Managers of
Whispering Pines at Colonial Woods Condo. II, 457 F. Supp. 2d 126, 130 (E.D.N.Y. 2006)
(quoting Archer v. Econ. Opportunity Comm’n of Nassau Cty. Inc., 30 F. Supp. 2d 600, 605
(E.D.N.Y. 1998)). The fact that state law merely permits the challenged conduct is not sufficient
to establish state compulsion. See McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir.
2014) (upholding dismissal of claim against private hospital and its employees based on
plaintiff’s involuntary commitment, and finding fact that state regulation provides legal
framework under which physicians “may” involuntarily commit patients was insufficient to
establish state compulsion because regulatory scheme permitted, but did not require, involuntary
commitment), cert. denied, 135 S. Ct. 1703 (2015); Cranley, 318 F.3d at 112 (“Nor is a private
entity a state actor where its conduct is not compelled by the state but is merely permitted by
state law.” (citing Flagg Bros., 436 U.S. at 164–66)).
3.
Public function test
The allegations are also insufficient to establish state action on the basis of the public
function test. See Grogan, 768 F.3d at 265 (examining public function test, noting that the
24
function performed by the private entity must have historically been “an exclusive prerogative”
of the state (quoting Flagg Bros., 436 U.S. at 159)). The “public function” standard is strict and
is not satisfied where a private party merely utilizes powers that are coextensive with those of the
State; rather the private party must be shown to have utilized powers “traditionally the exclusive
prerogative of the State.” Grogan, 768 F.3d at 265 (quoting Blum v. Yaretsky, 457 U.S. 991,
1005 (1982)); Turturro v. Cont’l Airlines, 334 F. Supp. 2d 383, 396 (S.D.N.Y. 2004). As the law
has long-recognized a surety’s right to apprehend a fugitive principal, the power to arrest in such
circumstances was not historically the “exclusive prerogative” of the State. See Taylor v.
Taintor, 83 U.S. 366, 371 (1872) (“Whenever they choose to do so, [sureties] may seize [a
fugitive principal] and deliver him up in their discharge; and if that cannot be done at once, they
may imprison him until it can be done. They may exercise their rights in person or by agent.”);
United States v. Hollender, No. 01-1350, 2001 U.S. App. LEXIS 20133, at *4 n.2 (2d Cir. Aug.
16, 2001) (noting that Taylor describes “the traditional role of a bondsman”); see also Green,
316 F. Supp. 2d at 1260 (“[H]istory indicates that bail bonding has never been an exclusive
privilege of the sovereign. Rather, since the inception of the American legal system, bail was
administered by private citizens and businessmen.”). Therefore, the conduct of bondsmen
cannot be shown to constitute state action on the basis of the public function test.
Because the allegations fail to sufficiently allege the threshold state action requirements
as to Zouvelos and Conwell under any of the applicable tests, Plaintiff has failed to state a claim
pursuant to Section 1983 as to Zouvelos and Conwell. Therefore, the Court grants Zouvelos’
motion to dismiss the Amended Complaint as to him and sua sponte dismisses the Amended
Complaint as to Conwell.
25
ii.
False arrest claim
Plaintiff alleges he was arrested in violation of the Fourth Amendment. The City asserts
that Plaintiff fails to state a claim because (1) his arrest was supported by probable cause,
regardless of whether the warrant was erroneously reflected on the computer system, and (2)
Plaintiff cannot invoke the collective knowledge doctrine to negate probable cause based on the
alleged report prepared by John Doe # 1. (City Mem. 7–9.)
In assessing Fourth Amendment claims of false arrest brought under Section 1983, courts
generally look to the law of the state in which the arrest is alleged to have occurred. Russo v.
City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). To prevail on a false arrest claim under
New York law, a plaintiff must prove: “(1) the defendant intended to confine the plaintiff, (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement
and (4) the confinement was not otherwise privileged.” Singer v. Fulton Cty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration and internal quotation marks omitted) (quoting Broughton v.
State, 37 N.Y.2d 451, 456 (1975)); see also Ackerson v. City of White Plains, 702 F.3d 15, 19
(2d Cir. 2012) (outlining the elements of false arrest claims). “The existence of probable cause
to arrest constitutes justification and ‘is a complete defense to an action for false arrest.’”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v. United States, 25 F.3d 98,
102 (2d Cir. 1994)); see also Ackerson, 702 F.3d at 19–20 (citing Weyant, 101 F.3d at 852, for
probable cause analysis). “A police officer has probable cause for an arrest when he has
‘knowledge or reasonably trustworthy information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime[.]’” Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013)
(quoting Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.
26
2013) (same).
Plaintiff asserts that his arrest was not supported by probable cause because he was
arrested pursuant to an “erroneous warrant” that did not exist and only appeared to be
outstanding on the New York State court website due to clerical error. However, accepting these
allegations as true, they are insufficient to negate probable cause as officers are entitled to rely
on computer databases tracking open warrants and such reliance is reasonable even where the
records erroneously reflect warrants that are not actually outstanding. See United States v.
Miller, 265 F. App’x 5, 7 (2d Cir. 2008) (“When an officer learns from a computer database . . .
that a person is the subject of an outstanding arrest warrant, probable cause exists to arrest that
person.”); United States v. Santa, 180 F.3d 20, 27 (2d Cir. 1999) (concluding that “arresting
officers’ reliance on the [statewide police information computer database] record to arrest Santa
was objectively reasonable” even though the warrant was invalid); United States v. Towne, 870
F.2d 880, 884–85 (2d Cir. 1989) (finding officer’s reliance on fugitive warrant erroneously kept
in “active” file was justified notwithstanding fact that defendant’s parole officer told officer she
suspected charges had been resolved); Miller v. City of New York, No. 11-CV-6663, 2012 WL
2524248, at *4 (S.D.N.Y. June 26, 2012) (finding warrant check system’s report of outstanding
warrants established probable cause and defeated claim for false arrest).
Plaintiff asserts that, because John Doe # 1 determined the warrant reflected on the
system was erroneous two days prior to Plaintiff’s arrest, John Doe # 1’s knowledge as to the
warrant’s lack of validity should be imputed to the 83rd Precinct, and John Doe # 2 in particular,
to negate probable cause. (Pl. Opp’n Mem. 7–8.) The City claims the “collective knowledge
doctrine” on which Plaintiff relies is inapplicable because Plaintiff has not alleged any facts
suggesting John Doe # 1 and John Doe # 2 were in communication with each other. (City Reply
27
Mem. in Support of Mot. to Dismiss (“City Reply Mem.”) 4–5, Docket Entry No. 44.)
“The collective knowledge doctrine provides that, for the purpose of determining whether
an arresting officer had probable cause to arrest, “where law enforcement authorities are
cooperating in an investigation, . . . the knowledge of one is presumed shared by all.” Savino v.
City of New York, 331 F.3d 63, 74 (2d Cir. 2003) (quoting Illinois v. Andreas, 463 U.S. 765, 772
n.5 (1983)). The doctrine is based on the rationale that, “in light of the complexity of modern
police work, the arresting officer cannot always be aware of every aspect of an investigation;
sometimes his authority to arrest a suspect is based on facts known only to his superiors or
associates.” Spears v. City of New York, No. 10-CV-03461, 2012 WL 4793541, at *6 (E.D.N.Y.
Oct. 9, 2012) (citations and internal quotation marks omitted); see Colon, 250 F.3d at 135;
Zaniewska v. City of New York, No. 11-CV-2446, 2013 WL 3990751, at *5 (E.D.N.Y. Aug. 5,
2013).
The collective knowledge doctrine applies to officers who are working on the same case
together, and does not support the broader proposition “that all information received by a police
department . . . must be imputed to every officer in the department.” Santa, 180 F.3d at 28. As
such, the doctrine may not be invoked to establish “that facts known to some members of the
police force which exonerate an arrestee are ipso facto imputed to the arresting officer.” United
States v. Valez, 796 F.2d 24, 28 (2d Cir. 1986). Rather, there must be some showing of
communication between the officers involved. See United States v. Cruz, 834 F.2d 47, 51 (2d
Cir. 1987) (“The determination of whether probable cause to arrest exists can be based on the
collective knowledge of all of the officers involved in the surveillance efforts because the various
law enforcement officers in this investigation were in communication with each other.”); Toliver
v. City of New York, No. 10-CV-3165, 2012 WL 7782720, at *6 (S.D.N.Y. Dec. 10, 2012) (“The
28
[collective knowledge] doctrine applies if the officers involved are in communication with each
other.”), report and recommendation adopted, No. 10-CV-3165, 2013 WL 1155293 (S.D.N.Y.
Mar. 21, 2013); Wong v. Yoo, 649 F. Supp. 2d 34, 60 n.11 (E.D.N.Y. 2009) (“[S]ome amount of
communication between officers is necessary in order for a second officer’s reliance on the first
officer’s knowledge to be reasonable.”); Celestin v. City of New York, 581 F. Supp. 2d 420, 430
n.6 (E.D.N.Y. 2008) (“The collective knowledge doctrine also requires that the officers were in
communication with each other.”).
While Plaintiff alleges that both John Doe # 1 and John Doe # 2 were members of the
83rd Precinct, at the time of Plaintiff’s arrest, John Doe # 1 is alleged to have been a member of
the “warrant squad,” whereas John Doe # 2 is alleged to have been a commanding officer. (Am.
Compl. 7.) Though Plaintiff claims the report prepared by John Doe # 1 “was easily retrievable
by John Doe # 2, if reasonable measures were taken” there are no specific allegations as to the
nature of the report and the basis for Plaintiff’s claim that it was accessible to John Doe # 2. (Id.
at 7–8.) Even crediting Plaintiff’s allegations, the facts alleged are not sufficient to suggest
application of the collective knowledge doctrine is warranted. The collective knowledge
doctrine is premised on the propriety of imputing knowledge to each individual member of a
group that is acting in concert such that there is a basis to presume the knowledge of each
individual member is shared by the group. See Santa, 180 F.3d at 28 (recognizing that
“imputation of knowledge from one police officer to another officer” pursuant to collective
knowledge doctrine is warranted where “officers [are] working on the same case”). Here,
Plaintiff claims that, when Zouvelos checked the New York State Courts online warrant records
on the day of Plaintiff’s arrest, the records still erroneously reflected an outstanding warrant for
Plaintiff. (Am. Compl. 7.) At most, this establishes a basis to conclude that John Doe # 1 failed
29
to enter the “known report” on a database that would have triggered the correction of the online
records Zouvelos is alleged to have relied on. (Id. at 7–8.) There are no facts to support a
plausible inference that John Doe # 1 and John Doe # 2 were working and communicating with
one another such that the knowledge of one can be imputed to the other. Because there was a
warrant for Plaintiff’s arrest, there was probable cause defeating Plaintiff’s false arrest claim.
iii. Eighth and Fourteenth Amendment claims
Plaintiff alleges his rights under the Eighth and Fourteenth Amendments15 were violated
in two respects. First, Plaintiff alleges that “the DOC fail[ed] to maintain a safe environment”
and he asserts a claim challenging the conditions of his confinement based on the defective
rubber mat at the BK Detention Center. (Id. at 10.) Second, Plaintiff alleges that, after he
sustained ankle and knee injuries — which Plaintiff claims were caused by the defective rubber
mat — he did not receive adequate medical treatment at the BK Detention Center. (Id. at 4, 10.)
The City contends that Plaintiff fails to state a claim based on either the defective rubber
mat or the medical treatment Plaintiff received upon sustaining ankle and knee injuries because
15
Plaintiff does not specify whether, at the time when he sustained the alleged injuries at
BK Detention Center, he had been convicted of a crime or was instead a pretrial detainee.
Claims asserted by pretrial detainees arise under the Due Process Clause of the Fourteenth
Amendment, rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 537 n.16
(1979); Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (“[A] person detained prior to
conviction receives protection against mistreatment at the hands of prison officials under . . . the
Due Process Clause of the Fourteenth Amendment if held in state custody.”); Cuoco v.
Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (“Because as a pre-trial detainee she was not being
‘punished,’ the ‘cruel and unusual punishment’ proscription of the Eighth Amendment to the
Constitution does not apply. . . . [Plaintiff’s] claims arise under the Due Process Clause . . .
instead.”). However, the Second Circuit has held that “[c]laims for deliberate indifference to a
serious medical condition or other serious threat to the health or safety of a person in custody
should be analyzed under the same standard irrespective of whether they are brought under the
Eighth or Fourteenth Amendment.” Caiozzo, 581 F.3d at 72; see also Nielsen v. Rabin, 746 F.3d
58, 63 (2d Cir. 2014) (same); Liggins v. Griffo, 356 F. App’x 537, 539 (2d Cir. 2009) (same).
This distinction is, therefore, of no moment for purposes of analyzing the instant motions.
30
Plaintiff has, at most, alleged negligence which does not give rise to a constitutional violation.
(City Mem. 15.)
1.
Conditions-of-confinement claim
To state a claim based on inadequate conditions of confinement, a plaintiff must allege
that “(1) objectively, the deprivation the inmate suffered was ‘sufficiently serious that he was
denied the minimal civilized measure of life’s necessities, and (2) subjectively, . . . [prison
officials acted with] deliberate indifference to inmate health or safety.” Walker v. Schult, 717
F.3d 119, 125 (2d Cir. 2013) (internal quotation marks omitted) (quoting Gaston v. Coughlin,
249 F.3d 156, 164 (2d Cir. 2001)).
In order to satisfy the objective prong of a claim based on conditions of confinement, “the
inmate must show that the conditions, either alone or in combination, pose an unreasonable risk
of serious damage to his health.” Walker, 717 F.3d at 125 (citing Rhodes v. Chapman, 452 U.S.
337, 347 (1981)). “[T]here is no ‘static test’ to determine whether a deprivation is sufficiently
serious; ‘[t]he conditions themselves must be evaluated in light of contemporary standards of
decency.’” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (quoting Blissett v. Coughlin, 66
F.3d 531, 537 (2d Cir. 1995)). Moreover, “conditions of confinement may be aggregated to rise
to the level of a constitutional violation, but only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.”
Walker, 717 F.3d at 125 (citation and internal quotation marks omitted) (holding allegations
were sufficient as to objective element where plaintiff alleged that “for approximately twentyeight months, he was confined in a cell with five other men, with inadequate space and
ventilation, stifling heat in the summer and freezing cold in the winter, unsanitary conditions,
including urine and feces splattered on the floor, insufficient cleaning supplies, a mattress too
31
narrow for him to lie on flat, and noisy, crowded conditions that made sleep difficult and placed
him at constant risk of violence and serious harm from cellmates”).
To satisfy the subjective, deliberate indifference prong, a plaintiff must establish that a
prison employee “knew of and disregarded an excessive risk to [the plaintiff’s] health or safety
and that [the correctional employee] was both aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed, and also drew the inference.” Caiozzo v.
Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (internal quotation marks, alterations and citation
omitted); Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (same); see Nielsen v. Rabin, 746
F.3d 58, 63 (2d Cir. 2014) (“Deliberate indifference is a mental state equivalent to subjective
recklessness. This mental state requires that the charged official act or fail to act while actually
aware of a substantial risk that serious inmate harm will result.” (quoting Salahuddin v. Goord,
467 F.3d 263, 280 (2d Cir. 2006))); Lapierre v. Cty. of Nassau, 459 F. App’x 28, 30 (2d Cir.
2012) (“The official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” (alteration omitted)
(quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)); Salahuddin, 467 F.3d at 280
(“The reckless official need not desire to cause such harm or be aware that such harm will surely
or almost certainly result. Rather, proof of awareness of a substantial risk of the harm
suffices.”). “[A]wareness may be proven ‘from the very fact that the risk was obvious.’”
Spavone v. N.Y.S. Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (quoting Farmer, 511
U.S. at 842 (1994))).
Here, Plaintiff has alleged only that the rubber mat was “deteriorated” and “had a nonvisible hole” and that the mat caused Plaintiff’s knee and ankle injuries. (Am Compl. 10.) These
allegations are insufficient to establish a plausible basis to conclude that the rubber mat posed an
32
unreasonable risk of serious damage to Plaintiff’s health. See Jabbar, 683 F.3d at 58 (holding
allegations were insufficient to satisfy objective element in context of claim based on prison
officials’ failure to provide seatbelts for inmates in transport vans); Little v. Mun. Corp., 51 F.
Supp. 3d 473, 491 (S.D.N.Y. 2014) (holding plaintiffs failed to satisfy objective prong where
plaintiffs alleged they were confined in “sewage-flooded cells for, at most, eight and a half
hours”); Youmans v. Schriro, No. 12-CV-3690, 2013 WL 6284422, at *2 (S.D.N.Y. Dec. 3,
2013) (holding allegations insufficient as to objective prong where plaintiff claimed he suffered
chiropractic injuries due to metal bed frames); Ramirez v. City of New York, No. 13-CV-3268,
2014 WL 3747178, at *4 (S.D.N.Y. July 28, 2014) (recommending dismissal of claim brought
by inmate who alleged poor lighting and leak in bathroom created hazardous condition that
caused him to slip and injure himself because plaintiff failed to plead “facts tending to show
objectively that the lighting condition was a matter of urgency”), report and recommendation
adopted, No. 13-CV-3268 (S.D.N.Y. Aug. 20, 2014).
Having failed to allege an excessive risk to inmate safety due to the rubber mat for
purposes of the objective prong of his conditions-of-confinement claim, Plaintiff necessarily fails
to satisfy the subjective, deliberate indifference element as well. Jabbar, 683 F.3d at 58 (holding
deliberate indifference “cannot be plausibly alleged” where plaintiff failed to establish an
excessive risk to inmates’ safety for purposes of objective prong). However, even if Plaintiff had
established that the rubber mat created an unreasonable safety risk, the allegations would still fail
to establish deliberate indifference because Plaintiff does not allege BK Detention Center staff,
or any other state actor, was aware of the mat’s defective condition. Rather, Plaintiff alleges
only that it “appears the [mats] were overlooked by the . . . contractors” involved in renovating
BK Detention Center. (Am. Compl. 4.) This allegation is not sufficient to plausibly allege
33
deliberate indifference. Compare Walker, 717 F.3d at 129–30 (holding plaintiff sufficiently
alleged prison officials knew of and disregarded excessive risk to health and safety for purposes
of claim based on overcrowding and cleanliness of cells where plaintiff alleged he spoke with
officials about conditions and made complaints yet conditions did not change), and Cano v. City
of New York, 44 F. Supp. 3d 324, 333 (E.D.N.Y. 2014) (holding plaintiff satisfied deliberate
indifference element where plaintiff asserted claim based on inadequate conditions and alleged
prison officials were aware of conditions from, inter alia, internal reports, complaints filed by
detainees, media reports, and prior lawsuits and that, despite this awareness, officials failed to
remediate conditions and abate risk of harm), with McCree v. Messina, No. 14-CV-5201, 2015
WL 4299546, at *4 (S.D.N.Y. July 15, 2015) (dismissing plaintiff’s claim based on conditions of
confinement and holding plaintiff failed to allege deliberate indifference because complaint did
not allege prison officials were aware of, or had any involvement with, the conditions about
which plaintiff complained).
Therefore, Plaintiff has not stated a claim based on the conditions of his confinement and
the defective rubber mat.
2.
Medical treatment claim
To state a claim based on inadequate medical treatment a plaintiff must sufficiently allege
(1) that he had an objectively “serious medical condition,” and (2) that this condition was met
with subjective “deliberate indifference” on the part of prison officials. Caiozzo, 581 F.3d at 72
(quoting Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)).
In order to satisfy the objective element, a plaintiff must establish a serious medical
condition by showing “that his medical need was ‘a condition of urgency, one that may produce
death, degeneration, or extreme pain.’” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)
34
(quoting Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)). “Factors relevant to the
seriousness of a medical condition include whether ‘a reasonable doctor or patient would find [it]
important and worthy of comment,’ whether the condition ‘significantly affects an individual’s
daily activities,’ and whether it causes ‘chronic and substantial pain.’” Salahuddin, 467 F.3d at
280 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
As discussed infra with regard to Plaintiff’s challenge to the conditions of his
confinement, the subjective prong of Plaintiff’s medical treatment claim, which requires a
showing of deliberate indifference on the part of prison officials, is satisfied where a plaintiff
establishes that a prison employee “knew of and disregarded an excessive risk to [the plaintiff’s]
health or safety and that [the correctional employee] was both aware of facts from which the
inference could be drawn that a substantial risk of serious harm existed, and also drew the
inference.” Caiozzo, 581 F.3d at 72 (internal quotation marks, alterations and citation omitted).
Here, Plaintiff claims he “sustained a fracture to his right . . . ankle and [a] sprained
knee” and that he suffered from “severe pain in his right ankle and knee.” (Am. Compl. 10.)
Plaintiff also alleges that he “constantly feels the aftermath” of these injuries and “at times he is
unable to sit or stand for long periods” or “jump off his right leg as he normally did prior to the
injury.” (Id.) Because, as discussed below, the Court concludes that Plaintiff fails to allege
deliberate indifference to his ankle and knee injuries, the Court need not resolve whether
Plaintiff has sufficiently alleged a serious medical condition based on these injuries.
For purposes of establishing deliberate indifference based on inadequate medical
treatment, “[i]t has long been the rule that a prisoner does not have the right to choose his
medical treatment as long as he receives adequate treatment.” Hill, 657 F.3d at 123 (citing
Estelle v. Gamble, 429 U.S. 97, 106–107 (1976)). “[M]ere disagreement over the proper
35
treatment does not create a constitutional claim.” Id. Therefore, “the ‘essential test is one of
medical necessity and not one simply of desirability.’” Id. (citations omitted) (quoting Dean v.
Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)). Moreover, medical treatment that is merely
negligent is not sufficient to satisfy the deliberate indifference prong. See Farid v. Ellen, 593
F.3d 233, 248–49 (2d Cir. 2010).
Plaintiff alleges he sought “immediate medical attention” and “was provided an [ACE]
bandage and pain medication only” which, Plaintiff claims, constituted “the bare minimum.”
(Am. Compl. 10.) Plaintiff also alleges that “no follow up [was] provided by the medical staff.”
(Id. at 4.) As an initial matter, the allegations are unclear as to who exactly provided Plaintiff
with the ACE bandage and pain medication.16 While Plaintiff’s reference to “the medical
staff’s” failure to provide follow up treatment implies Plaintiff received treatment from the BK
Detention Center medical staff in the first instance, Plaintiff does not expressly allege the source
of the medical treatment. As such, for purposes of alleging the subjective, deliberate
indifference prong, the allegations are unclear as to who may have been aware of Plaintiff’s
injuries and failed to provide adequate treatment.
In any event, Plaintiff has not alleged facts tending to show that treatment of his knee and
ankle injuries with an ACE bandage and pain medication constituted deliberate indifference. In
fact, Plaintiff’s characterization of the treatment he received as the “bare minimum” suggests the
treatment Plaintiff received was within a permissible range which — even assuming the
treatment Plaintiff received was at the bottom of the range — is not sufficient to plead deliberate
16
Plaintiff alleges in relevant part: “Plaintiff [sought] immediate medical attention,
nevertheless, [he was] provided the bare minimum, an [ACE] bandage and pain medication
only;” and “[a]s a result [of the alleged injuries] [Plaintiff] was provided an [ACE] bandage and
pain medication only. No follow up provided by the medical staff.” (Am. Compl. 4, 10.)
36
indifference.
Plaintiff has therefore failed to state a claim for deliberate indifference to a serious
medical condition based on the treatment of Plaintiff’s knee and ankle injuries at BK Detention
Center.
iv. Strip search claim
Plaintiff alleges his Fourth Amendment rights were violated because he was subjected to
an unreasonable strip search while he was incarcerated in a DOC facility on Rikers Island.
Plaintiff alleges that, in retaliation for his offer to assist a DOC captain who was attempting to
quell an argument between Jane Doe # 3 and an inmate who did not speak English by translating,
Plaintiff was subjected to a strip search by DOC “special unit” officers John Doe # 4
(Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6 (Badge # 11511). (Am. Compl.
10.) Plaintiff alleges he was ordered to strip naked in his cell in full view of inmates in an
adjacent building. (Id. at 11.) The City asserts Plaintiff fails to state a claim because courts have
upheld strip searches of prisoners regardless of their detainee status and notwithstanding that the
search was conducted in view of other inmates and staff. (City Mem. 10–12.) The City also
argues that the alleged strip search was reasonably related to the legitimate penological interest
in the “personal safety of correction officers and inmates alike.” (Id. at 11.) The City further
claims that, absent substantial evidence that the alleged strip search was an exaggerated
response, deference to the discretion of correction officials is required. (Id. at 12.)
In considering Fourth Amendment challenges to strip searches performed by jail and
prison personnel, courts are to “defer to the judgment of correctional officials unless the record
contains substantial evidence showing their policies are an unnecessary or unjustified response to
problems of jail security.” Florence v. Bd. of Chosen Freeholders of Burlington, 566
37
U.S. ---, ---, 132 S. Ct. 1510, 1513–14 (2012). Strip searches do not violate the Fourth
Amendment if they are performed pursuant to policies that are “reasonably related to legitimate
penological interests.” Id. at ---, 132 S. Ct. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). In each case, the “need for a particular search must be balanced against the resulting
invasion of personal rights.” Id. at ---, 132 S. Ct. at 1516 (quoting Bell v. Wolfish, 441 U.S. 520,
569–70 (1979)). Policies striking “a reasonable balance between inmate privacy and the needs
of . . . institutions” must be upheld. Id. at ---, 132 S. Ct. at 1513–14.
In Florence, the Supreme Court upheld the strip search of a detainee following his arrest
for a minor offense because the search was conducted pursuant to a policy whereby all incoming
detainees were strip searched during intake and prior to their introduction into the general inmate
population. Id. at ---, 132 S. Ct. at 1518. The strip search policy was reasonable given the
legitimate penological interests in detecting contraband, visually inspecting incoming inmates for
tattoos and other signs of gang affiliations, and identifying wounds or other medical conditions
requiring treatment. Id. at ---, 132 S. Ct. at 1518–20.
In other cases, searches conducted pursuant to established, non-discretionary prison
policies have similarly been upheld as reasonable. See Bell, 441 U.S. at 558–61 (upholding
policy requiring inmates to “expose their body cavities for visual inspection as a part of a strip
search conducted after every contact visit with a person from outside the institution” based on
legitimate security interest in detecting contraband); Covino v. Patrissi, 967 F.2d 73, 75, 77–80
(2d Cir. 1992) (upholding policy of random, visual, body-cavity inspections of all inmates given
legitimate interest in detecting drugs and because searches were conducted in inmates’ rooms
with door closed so as to limit invasion of privacy).
However, while Florence “confirmed the importance of deference to correctional
38
officials,” 566 U.S. at ---, 132 S. Ct. at 1515, the Court expressly did not address “instances of
officers engaging in intentional humiliation and other abusive practices,” id. at ---, 132 S. Ct. at
1523. Indeed, strip searches that are not conducted in order to advance a legitimate penological
interest, and are instead performed to punish an inmate, are not reasonable. See Turkmen v.
Hasty, 789 F.3d 218, 261 n.44 (2d Cir. 2015) (affirming denial of motion to dismiss detainees’
claims pursuant to Fourth Amendment because, inter alia, plaintiffs “plausibly alleged that they
were strip searched when there was no opportunity to acquire contraband, including in instances
where they were shackled and under escort, or were never permitted to leave their cells”); Iqbal
v. Hasty, 490 F.3d 143, 172 (2d Cir. 2007) (allegations that plaintiff was subjected to strip and
body-cavity searches every morning were sufficient to state a claim pursuant to Fourth
Amendment), rev’d on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
As is clear from the cases relied on by the City, reasonableness turns on weighing the
particular purpose for and manner in which the strip search at issue is conducted. See Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (finding that “a strip search of a male prisoner in
front of female officers, if conducted for a legitimate penological purpose, would fail to rise to
the level of a” constitutional violation); Elliot v. Lynn, 38 F.3d 188, 191–92 (5th Cir. 1994)
(concluding that visual body cavity search conducted in presence of other inmates and
correctional officers for purpose of detecting weapons was reasonable given legitimate security
concerns where prison was responding to an “emergency situation created by an increasing
number of prison murders, suicides, stabbings, and cuttings”); Franklin v. Lockhart, 883 F.2d
654, 656–57 (8th Cir. 1989) (holding that strip searches of inmates in punitive segregation that
were conducted in view of other inmates were justified by legitimate security concerns, noting
that punitive segregation housed “some of the most recalcitrant inmates”); Israel v. City of New
39
York, No. 11-CV-7726, 2012 WL 4762082, at *2–3 (S.D.N.Y. Oct. 5, 2012) (three strip searches
of a pre-trial detainee were permissible when conducted pursuant to established, express DOC
policies serving legitimate interest in preventing contraband smuggling); Brown v. Graham, No.
07-CV-1353, 2010 WL 6428251, at *13–14 (N.D.N.Y. Mar. 30, 2012) (determining search was
reasonable where plaintiff did not allege it was conducted to intimidate, harass, or punish, and
defendant produced evidence that search was conducted for protection of plaintiff, who was on
suicide watch).
Here, the City gives short shrift to the issue of the precise penological interest served by a
strip search conducted under the circumstances alleged. The City claims that Plaintiff “inserted
himself into the middle of a verbal dispute between a correction official and an inmate. Thus, a
strip search was a reasonable response to the situation in light of the security concerns that
Plaintiff’s involvement raised.” (City Mem. 12.) Accepting Plaintiff’s allegations as true,
Plaintiff “inserted” himself into the verbal dispute in an attempt to assist DOC staff. (Am.
Compl. 10.) The alleged strip search was not applied as a matter of course but rather, Plaintiff
claims, to intimidate, harass and punish Plaintiff. (Id.) Nor has the City asserted the penological
interest served by strip searching an inmate who has “inserted himself into the middle of a verbal
dispute between a correction official and an inmate.” (City Mem. 12.) The action alleged by
Plaintiff does not fall within the category of reasonable conduct identified by the Supreme Court
in Florence.17 See Florence, 566 U.S. at ---, 132 S. Ct. at 1523 (Court’s opinion expressly
17
Although the City appears only on its own behalf, in a footnote the City notes in
passing that John Does # 4, 5 and 6 “would be entitled to qualified immunity . . . because
Florence allows correction officers wide latitude to further legitimate penological interests.”
(City Mem. 12 n.4.) As the City is not appearing on behalf of John Does # 4, 5 and 6 and this
issue has not been briefed, the Court makes no determination as to the entitlement of John
Does # 4, 5 and 6 to qualified immunity.
40
declined to consider strip search where corrections officers engage in “intentional humiliation
and other abusive practices.”). Thus, Plaintiff has stated a plausible claim that his Fourth
Amendment rights were violated by Jane Doe # 3 and John Does # 4, 5 and 6 as a result of the
alleged strip search.18 However, as discussed below, Plaintiff has not alleged municipal liability
and there is no plausible basis to conclude the City could be liable pursuant to § 1983 in
connection with the alleged strip search. The Court directs the City in accordance with Valentin
v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), to ascertain the full names of the DOC
personnel alleged to be Jane Doe # 3 and John Does # 4, 5 and 6 based on the badge numbers
alleged in the Amended Complaint — John Doe # 4 (Badge # 665), John Doe # 5
(Badge # 1683), and John Doe # 6 (Badge # 11511) — and the alleged date, location and
circumstances of the strip search. Colson v. N.Y. Police Dep’t, No. 13-CV-5394, 2015 WL
18
The Court rejects the City’s claim that Plaintiff is barred from seeking compensatory
relief pursuant to § 1997e(e) of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(e), which the City claims bars recovery for claims based on mental or emotional injury
suffered while in custody absent a prior showing of physical injury. (City Mem. 13.) Even
absent a showing of physical injury, § 1997e(e) does not preclude recovery of nominal or
punitive damages and injunctive or declaratory relief. See Toliver v. City of New York, 530 F.
App’x 90, 93 n.2 (2d Cir. 2013) (holding that, even if prisoner could not establish physical
injury, § 1997e(e) would not bar recovery of nominal and punitive damages); Thompson v.
Carter, 284 F.3d 411, 416 (2d Cir. 2002) (“Section 1997e(e) . . . . does not restrict a plaintiff’s
ability to recover compensatory damages for actual injury, nominal or punitive damages, or
injunctive and declaratory relief.”); Robinson v. Cattaraugus Cty., 147 F.3d 153, 161 (2d Cir.
1998) (holding trial court’s instruction to jury that compensatory damages were a prerequisite to
punitive damages was erroneous, “[w]e have long recognized in § 1983 cases that punitive
damages may be awarded even in the absence of a compensatory award”); id. at 162 (“If a jury
finds that a constitutional violation has been proven but that the plaintiff has not shown injury
sufficient to warrant an award of compensatory damages, the plaintiff is entitled to an award of
at least nominal damages as a matter of law.”); Frieson v. City of New York, No. 11-CV-4611,
2012 WL 1948782, at *2 (S.D.N.Y. May 30, 2012) (“[T]he PLRA allows for the recovery of
some damages beyond nominal damages, for example, punitive damages.”). Moreover, a
plaintiff is not required to plead physical injury in a complaint covered by the PLRA. Malik v.
City of New York, No. 11-CV-6062, 2012 WL 3345317, at *16 (S.D.N.Y. Aug. 15, 2012) (“[A]
plaintiff need not plead physical injury in a complaint covered by the PLRA.”).
41
64688, at *10 (E.D.N.Y. Jan. 5, 2015). The City is directed to provide the foregoing information
to Plaintiff and the Court.
v.
Municipal liability
Plaintiff asserts claims against the City of New York pursuant to 42 U.S.C § 1983 based
on Plaintiff’s alleged unlawful arrest, the injuries Plaintiff sustained and the medical care he
received at BK Detention Center, and Plaintiff’s strip search by corrections officers at a DOC
facility on Rikers Island. Having determined that the Amended Complaint fails to state claims
pursuant to Section 1983 based on Plaintiff’s arrest, alleged injuries, or the medical treatment he
received at BK Detention Center, the Court considers the sufficiency of the municipal liability
allegations.
In order to sustain a claim for relief pursuant to Section 1983 against a municipal
defendant, a plaintiff must show the existence of an official policy or custom that caused injury
and a direct causal connection between that policy or custom and the deprivation of a
constitutional right. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694–95 (1978)
(“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s policy or custom . . .
inflicts the injury that the government as an entity is responsible under § 1983.”); see Torraco v.
Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (“[T]o hold a city liable under §
1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove
three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3)
a denial of a constitutional right.” (alteration in original) (quoting Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007))). A policy or custom may be established by any of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by
42
municipal officials with decision-making authority; (3) a practice so persistent or widespread that
it constitutes a custom through which constructive notice is imposed upon policymakers; or (4) a
failure by policymakers to properly train or supervise their subordinates, such that the
policymakers exercised “deliberate indifference” to the rights of the plaintiff. See Parker v. City
of Long Beach, 563 F. App’x 39, 41 (2d Cir. 2014) (failure to train); Matusick v. Erie Cty. Water
Auth., 757 F.3d 31, 72 (2d Cir. 2014) (persistent and widespread practice); Schnitter v. City of
Rochester, 556 F. App’x 5, 9 (2d Cir. 2014) (failure to train or supervise); Hines v. Albany Police
Dep’t, 520 F. App’x 5, 7 (2d Cir. 2013) (actions of policymakers); Missel v. Cty. of Monroe, 351
F. App’x 543, 545 (2d Cir. 2009) (formal policy and act of a person with policymaking authority
for the municipality).
Here, all of the allegations in the Amended Complaint that pertain to a policy or custom,
of any kind, relate to John Doe # 2. Plaintiff alleges that “John Doe # 2 failed to fulfill the duties
required of him [] as an NYPD officer” “to protect and serve the public [as] mandated by the
City of New York,” and claims John Doe # 2’s “refusal to [protect] the public’s ‘safety, peace,
and order’ [in accordance with] the New York City Police Department’s responsibilities to
protect and serve, violated customs and / or policy.” (Am. Compl. 8.) Similarly, Plaintiff alleges
“John Doe # 2 [failed to adhere to] NYPD custom and / or policy [and] disregarded [the
NYPD’s] motto of ‘Courtesy, Professionalism, Respect.’” (Id.) Although, as discussed above,
Plaintiff has stated a claim based on the alleged strip search, the Amended Complaint does not
allege that the strip search was conducted pursuant to an official policy or custom.
Plaintiff appears to misinterpret the nature of the official policy or custom that must be
alleged in order to state a claim against a municipal defendant such as the City of New York
pursuant to Section 1983. A Plaintiff must allege that his Section 1983 is predicated on an injury
43
that was caused by adherence to an official policy or custom, as opposed to an injury caused by
the violation of an official policy or custom.19 See Newton v. City of New York, 779 F.3d 140,
152 (2d Cir. 2015) (plaintiff must sufficiently allege municipal policy or custom was carried out
and, consequently, “caused the plaintiff’s injury” (quoting Bd. of Cty. Comm’rs of Bryan Cty.
Okla. v. Brown, 520 U.S. 397, 403 (1997))); Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir.
2013) (“Liability under section 1983 is imposed on the municipality when it has promulgated a
custom or policy that violates federal law and, pursuant to that policy, a municipal actor has
tortiously injured the plaintiff.” (emphasis added)); see also Ghaster v. City of Rocky River, 913
F. Supp. 2d 443, 470–71 (N.D. Ohio 2012) (“A Monell claim alleges that a prohibited policy was
carried out, not that a policy was violated.”). As Plaintiff has failed to allege an injury resulting
from an official policy or custom, Plaintiff has not sufficiently alleged a Monell claim.
III. Conclusion
For the foregoing reasons, the Court grants Zouvelos’ motion to dismiss and dismisses
the Amended Complaint as to him. The Court also sua sponte dismisses the Amended
Complaint as to Conwell. The Court grants the City of New York’s motion to dismiss the
Amended Complaint against the City of New York but directs the Clerk of Court to substitute
Jane Doe # 3, John Doe # 4 (Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6
(Badge # 11511) as Defendants. The Court orders the City of New York to ascertain the full
names and service addresses of Jane Doe # 3 and John Does # 4, 5 and 6 and to provide this
19
Plaintiff continues to misconstrue the requirement in his opposition to the City and
Zouvelos’ motions to dismiss. Plaintiff asserts that “his averment in regards to ‘Custom or
Policy’, is the City failed to protect him after they [sic] were alerted two days prior he did not
have an active warrant.” (Pl. Opp’n Mem. 7.) Plaintiff also asserts that, among the “question[s]
before this Court” is the question, “[d]id failure to protect [Plaintiff] constitute a violation of the
City’s custom and policy.” (Id. at 8.)
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information to Plaintiff and the Court within thirty (30) days from the date of this Memorandum
and Order. Upon receipt of the foregoing information, the Clerk of Court is directed to amend
the caption to substitute the names for Jane Doe # 3 and John Does # 4, 5 and 6 and to forward
copies of the following documents to the United States Marshal Service for service upon Jane
Doe # 3 and John Does # 4, 5 and 6: (1) the Amended Complaint; (2) summonses for Jane
Doe # 3 and John Does # 4, 5 and 6; and (3) this Memorandum and Order. Plaintiff’s Fourth
Amendment strip search claim will proceed against Jane Doe # 3 and John Does # 4, 5 and 6.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 23, 2015
Brooklyn, New York
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