Polito v. City of New York et al
ORDER granting 46 Motion to Dismiss for Failure to State a Claim. The motion to dismiss is granted. I grant the plaintiff leave to replead within thirty (30) days of the date of this order. Ordered by Judge Edward R. Korman on 7/7/2016. (Tannen, Joshua)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM & ORDER
– against –
THE CITY OF NEW YORK, THE
DEPARTMENT OF HEALTH AND MENTAL
HYGIENE OF THE CITY OF NEW YORK,
PATRICIA PATE, Individually and in her
Official Capacity as Director of Provider
Oversight, Bureau of Early Intervention of THE
DEPARTMENT OF HEALTH AND MENTAL
HYGIENE OF THE CITY OF NEW YORK,
NORA PUFFETT, Individually and in her
Official Capacity as Director of Administration
and Data Management of THE DEPARTMENT
OF HEALTH AND MENTAL HYGIENE OF
THE CITY OF NEW YORK, DOLORES
GIURDANELLA, Individually and in her Official
Capacity as Director of the Manhattan Regional
Office of the Bureau of Early Intervention
Program of THE DEPARTMENT OF HEALTH
AND MENTAL HYGIENE OF THE CITY OF
NEW YORK, JOHN AND JANE DOES 1
through 10, Individually and in his, her and its
respective capacities as Officials of the City of
New York and/or the State of New York, and
JOHN AND JANE DOES 1 through 10,
15-CV-2301 (ERK) (RML)
On April 21, 2015, plaintiff Julianne Polito (“Polito”) filed a complaint principally seeking
damages against the City of New York (“the City”), the Department of Health and Mental Hygiene
(“DOHMH”), two named employees of DOHMH’s Bureau of Early Intervention, Patricia Pate
and Nora Puffett, ten unnamed government officials, and ten unnamed private individuals
(together, “the Defendants”). The complaint asserted chiefly that the Defendants had violated
Polito’s right to procedural due process in pressuring Hand-in-Hand Development, Inc. (“HIH”),
a non-governmental agency involved in the provision of Early Intervention services to children
with developmental disabilities, to terminate its relationship with Polito based on a purportedly
false complaint from a parent. The complaint also alleged a number of state tort-law violations.
The Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint.
Polito alleges that, in 2006, she began working for HIH as an Early Intervention provider
as part of New York State’s Early Intervention Program, which provides support services to
eligible children with developmental disabilities. Compl. ¶ 39. In order to serve as an Early
Intervention provider, Polito had to obtain approval from the state. Id. ¶ 98. One can qualify as a
provider by possessing certain certifications, including a license to teach special education. Id. ¶
46. Polito alleges that she holds a license to teach special education, which enabled her to be
approved to work in the Early Intervention Program. Id. ¶¶ 32, 34. In 2011, Polito began working
for HIH on a largely full-time basis. Id. ¶¶ 39, 57. HIH is one of several agencies that act as
intermediaries between the state, which screens children for eligibility for the Early Intervention
Program, and the individual service providers, such as Polito, who work with the children. Id. ¶
42. It is a private, non-governmental entity. Pl.’s Opp’n 15. Polito acknowledges that she was
“an independent contractor” for HIH whose contract with HIH was terminable “at will.” Compl.
Termination from HIH.
Polito alleges that on or around January 20, 2014, representatives of HIH requested to meet
with her. Id. ¶ 48. At that meeting, she was told that HIH had been contacted by officials affiliated
with the City’s Bureau of Early Intervention, specifically Pate and/or Puffett, who claimed to have
received a complaint from a parent that her child had been assigned to work with Polito. Id. ¶¶
Polito alleges that the complaint, which apparently accused her of engaging in
“misconduct,” was unfounded, id. ¶ 100, and that she “had never rendered any Early Intervention
Services to any children of this parent,” id. ¶ 50. According to Polito, HIH told her that because
of the complaint and “some unidentified and alleged lawsuit that Dr. Polito had allegedly filed,”
id. ¶ 177, Pate and/or Puffett had threatened to stop referring cases to HIH if it did not terminate
its contract with her, id. ¶ 51. Pate and/or Puffett also allegedly indicated to HIH that the City had
begun the process of terminating her approval as an Early Intervention provider. Id. ¶ 52.
Polito relies on several emails to support her claims, which were provided to her either by
HIH or by the Defendants in response to a September 8, 2015 order issued by Magistrate Judge
Levy. On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), I can consider those documents
which Polito incorporates by reference in her complaint or on which she relied in bringing this
action—these emails qualify under both of these categories. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002). Polito argues that the emails substantiate her contentions that
the Defendants knew that they were acting unlawfully in pressuring HIH to end its relationship
with her and that they attempted to sabotage her employment prospects with Early Intervention
agencies other than HIH as well. I provide the relevant excerpts of the emails below:
January 6, 2014: Pate emails Giurdanella, another official at the City’s Bureau of Early
Intervention, presumably after receiving the parent’s complaint, stating, “We are trying
to figure out exactly what we can/cannot do and whether or not the provider agency is
within its rights to subcontract with this person. She still has all of her certifications with
NYC DOE, so not sure what we can do, but hope to ask the State.” Compl. ¶ 65.
January 7, 2014: Giurdanella to Pate, stating, “I sent an email to the EIODs [employees
working in the City’s Early Intervention Program] as well to be on the lookout for any
progress notes, requests to increase services, ect. [sic] From [sic] this individual. I will
keep you posted if we should see her come up with another agency as well.” Id. ¶ 67.
January 15, 2014: Pate to Beth Statfield, CEO of HIH, asking if Pate and Puffett can have
a conversation with Statfield about “an individual . . . provider issue.” Id. ¶ 58.
January 22, 2014: Pate to Statfield, asking, “Any update on the issue with Julianne Polito,
as per our discussion last week?” Id. ¶ 59.
January 28, 2014: Leah Lax, Education Director of HIH, to HIH receptionist Rachel
Uretsky, stating, “Please tell Ms. Polito that Ms. Pate contacted us last week on
Wednesday to make sure that we met and followed their recommendation.” Id. ¶ 60.
Polito claims that her contract with HIH was terminated on January 28, 2014. Id. ¶ 55. On
February 26, 2014, however, Pate wrote to HIH, copying Polito, and stated that it had been
informed by Polito’s counsel about her alleged conversation with HIH. In this letter, Pate rejected
Polito’s suggestion that DOHMH had pressured HIH, averring that, “should Hand-in-Hand decide
to allow Dr. Polito to resume providing Early Intervention services on its behalf, DOHMH will
not take any adverse action against Hand-in-Hand as a result of such decision.”1 Pl.’s Opp’n 4.
On or about April 17, 2014, Polito resumed providing Early Intervention services through City Pro
Group, Inc., another intermediary agency like HIH in the Early Intervention Program. Compl. ¶
81. Nonetheless, because she “believed that the same disruption in her income from City Pro, Inc.
could occur at any time,” based on her suspicion that officials at the Bureau of Early Intervention
were “on the lookout for” her, Polito moved to Florida to seek teaching jobs. Id. As of the filing
of her complaint on April 21, 2015, neither New York State nor the City has taken any formal
adverse action against Polito’s teaching licenses or her certification to provide Early Intervention
services. Id. ¶ 83. She thus remains eligible to work as an Early Intervention provider in New
York. Id. ¶¶ 37, 41.
On April 16, 2014, one day before she began work as an Early Intervention provider with
City Pro Group, Inc., Polito served a notice of claim under New York State law on the City and
DOHMH. Id. ¶ 164. She then filed this lawsuit on April 21, 2015, seeking monetary damages as
well as declaratory and injunctive relief. On July 17, 2015, she moved pursuant to Fed. R. Civ. P.
I mention the February 26, 2014 letter only for background; because Polito neither incorporates it into her
complaint nor relies on it, I do not rely on it for purposes of disposing of the Rule 12(b)(6) motion. See
Chambers, 282 F.3d at 153.
19 for an order that the known defendants identify any unknown defendants so that she could name
them in an amended complaint. Pl.’s Opp’n 5. Polito’s motion revealed that she was primarily
interested in discovering the name of the parent who had purportedly complained about her. See
Pl.’s Mem. Supp. Mot. Join Necessary Parties 5–7. On July 29, following a hearing, Magistrate
Judge Levy ordered that the motion for joinder would be granted to the extent that the individual
whose complaint initiated Polito’s termination was a public official, but that, if the person was a
private actor, a decision on that motion would be deferred until after the newly pending motion to
dismiss was decided. Magistrate Judge Levy then directed counsel for the Defendants to file an
affidavit stating whether there were any “heretofore undisclosed state actors” involved in the
complaint to DOHMH. On August 26, in response to Polito’s objection to the Defendants’
subsequently submitted affidavit stating that the complaint had come from a private individual,
Magistrate Judge Levy ordered the Defendants to submit for in camera review the emails that
described the complaint about Polito. After reviewing the emails, he denied the motion for joinder,
but directed Defendants to produce them to Polito. Based on those emails, Polito filed an amended
complaint on October 23, 2015, naming Giurdanella as an additional defendant.
Before proceeding to the analysis, I pause to describe briefly background events that led
up to this case and to the purported parent’s complaint regarding Polito. Prior to the events
presented above, Polito had served in a variety of teaching and administrative roles in the City’s
school system from 1992 until 2011, when she retired from working for the school district. Compl.
¶ 26. During her employment as a teacher, she took part in an unsuccessful lawsuit against the
City that, among other claims, challenged the constitutionality of its treatment of suspended
teachers. Adams v. New York State Educ. Dep’t, 752 F. Supp. 2d 420, 431 (S.D.N.Y. 2010). The
series of decisions in that case, which mention various accusations against Polito including that
she had employed corporal punishment in the classroom, see id. at 438–40, are publicly available
and so could have provided the substance of the parental complaint at issue here. Moreover, Polito
separately challenged in state court a fine imposed on her by the City’s Department of Education
for allegedly tossing a book at a special education student and stating, “Here Mr. Smarty Pants,
let’s see if you can read.” Polito v. New York City Dep’t of Educ., No. 104919/2011 (N.Y. Sup.
Ct. Jan. 5, 2012). That fine, while reduced by the Appellate Division, was upheld. Polito v. New
York City Dep’t of Educ., 962 N.Y.S.2d 120, 122 (App. Div. 2013). The decision in that case is
also publicly available and was reported in the New York Post. Julia Marsh, Rubber-Room Teacher
Gets $7,500 Fine Slashed, N.Y. Post (Mar. 29, 2013), http://nypost.com/2013/03/29/rubber-roomteacher-gets-7500-fine-slashed/. According to Magistrate Judge Levy’s September 8, 2015 order
in the present case, this article was “attached to the complaint received from the private individual”
about Polito. Given this and the declaration submitted by Pate in opposition to Polito’s joinder
motion, which I mention above and which stated that “[t]he parent who initiated the chain of emails
was concerned that Ms. Polito had allegations of corporal punishment lodged against her while
she was a teacher,” Pate Decl. ¶ 3, it appears that the state-court litigation probably formed the
basis of the complaint, although Polito never specifically says as much.
Standard of Review.
When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[t]he court accepts
all well-pleaded allegations in the complaint as true, drawing all reasonable inferences in the
plaintiff’s favor.” Operating Local 649 Annuity Tr. Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010). To survive a motion to dismiss, the plaintiff’s complaint must allege
“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 has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
Polito brings her due process claims, see infra sections II.A.–C., under 42 U.S.C. § 1983.
To establish a claim under that statute, she must demonstrate a violation of a right protected by the
Constitution or laws of the United States that was committed by or caused to be committed by a
person acting under the color of state law. Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir.
1997). As a preliminary matter, the claims against DOHMH must be dismissed because, as a
municipal agency, it is not suable under section 1983. Nnebe v. Daus, 644 F.3d 147, 158 n.6 (2d
Cir. 2011). This dismissal is “of no practical consequence,” however, because a municipal agency
must “abide by any relief ordered against the City of which it is a non-severable part.” Id. I now
proceed to analyze Polito’s claims individually.
Procedural Due Process—Notice and Opportunity to be Heard.
In her first claim for relief, Polito alleges a violation of her right to procedural due
process—namely, notice and an opportunity to be heard. Compl. ¶ 90. To plead a violation of
procedural due process, “a plaintiff must ‘first identify a property right, second show that the
[government] has deprived him of that right, and third show that the deprivation was effected
without due process.’” J.S. v. T’Kach, 714 F.3d 99, 105 (2d Cir. 2013) (alterations in original)
(quoting Local 342, Long Island Pub. Serv. Emps. v. Town Bd. of Huntington, 31 F.3d 1191, 1194
(2d Cir. 1994)). As a threshold matter, the right to procedural due process is thus dependent on a
showing that the plaintiff was deprived of a constitutionally protected “property interest.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972). To constitute a protected property
interest, “a person clearly must have more than an abstract need or desire” and “more than a
unilateral expectation” as to the claimed interest. Id. at 577. Instead, she must “have a legitimate
claim of entitlement to it,” which is “created and . . . defined by existing rules or understandings
that stem from an independent source such as state law.” Id. Polito argues that she had such an
interest in “her licenses and certificate as an Early Intervention Provider and the right to use her
licenses and certificates which rights were granted to her by State law.” Compl. ¶ 88.
It appears that the license at issue does constitute a protected property interest. See Bell v.
Burson, 402 U.S. 535, 539 (1971) (“Suspension of issued licenses . . . involves state action that
adjudicates important interests of the licensees . . . [such that] the licenses are not to be taken away
without that procedural due process required by the Fourteenth Amendment.”). Under the
statutory scheme governing the provision of Early Intervention services in New York, individual
providers must be approved by the Department of Health based on certain qualifications, including,
for instance, possessing a license to teach special education. See N.Y. Pub. Health Law §
2541(15)(a)(i); N.Y. Comp. Codes R. & Regs. tit. 10, § 69-4.5. Providers are entitled to notice
and an opportunity to be heard before their approval is revoked, suspended, limited, or annulled.
See N.Y. Comp. Codes R. & Regs. tit. 10, § 69-4.24(b). Given the limits on the discretion to affect
a provider’s certification, it appears that Polito did have a legitimate claim of entitlement to her
approval to provide Early Intervention services. However, as to her related contention about the
right to use the license, she points to no basis in state law for why that license would also provide
her with a “legitimate claim of entitlement to employment.” Lombard v. Bd. of Educ., 645 F. Supp.
1574, 1577 (E.D.N.Y. 1986). As a result, the only protected property interest at stake here is
Polito’s license to provide Early Intervention services.
Nevertheless, Polito’s claim as to her license to participate in the Early Intervention
Program fails because she cannot establish that the Defendants deprived her of that license. This
is because: (i) Polito admits no formal action has been taken against her licenses, Compl. ¶ 83,
and, significantly, (ii) she acknowledges that she was able to continue to use her license through a
different agency within three months of the termination of her contract with HIH, id. ¶ 81. The
latter fact renders implausible any argument that Polito was denied the “right to use” her license.2
Id. ¶ 88.
Polito’s procedural due process claim also fails because she was entitled to sufficient postdeprivation process via a proceeding pursuant to N.Y. C.P.L.R. Article 78.
effectuated through the random and unauthorized acts of government officials, as opposed to via
established state procedures, does not violate procedural due process “so long as the [government]
provides a meaningful postdeprivation remedy.” Hellenic Am. Neighborhood Action Comm. v.
City of New York (HANAC), 101 F.3d 877, 880 (2d Cir. 1996); see also Hudson v. Palmer, 468
U.S. 517, 533 (1984). The Second Circuit has observed that:
The distinction between random and unauthorized conduct and established state
procedures . . . is not clear cut. In Zinermon v. Burch, the Court held that
government actors’ conduct cannot be considered random and unauthorized . . . if
the state delegated to those actors “the power and authority to effect the very
deprivation complained of . . . [and] the concomitant duty to initiate the procedural
safeguards set up by state law” . . . . This court has since relied on Zinermon to hold
that the acts of high-ranking officials who are “ultimate decision-maker[s]” [as to
a particular act] . . . should not be considered “random and unauthorized” . . . .
Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (Sotomayor,
J.) (quoting Zinermon v. Burch, 494 U.S. 113, 138 (1990), and Velez v. Levy, 401 F.3d 75, 92 n.14
(2d Cir. 2005)). While Polito concedes that the conduct here was not based on state procedures,
see Compl. ¶¶ 47, 76–77, 82, it is also clear from the applicable regulations that the individual
defendants had no authority to suspend or revoke Polito’s Early Intervention license or to initiate
The Supreme Court has held that temporary deprivations of property can implicate an individual’s due
process rights. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 84–85 (1972). As a result, a license suspension
can require certain process to avoid a constitutional violation. See, e.g., Barry v. Barchi, 443 U.S. 55, 67
(1979). Nevertheless, Polito does not allege that her license was suspended, and the facts alleged do not
support the existence of a de facto suspension as she was quickly able to find new Early Intervention work.
the procedural safeguards that would accompany such an action; rather, that authority lies with the
New York State Department of Health, see N.Y. Comp. Codes R. & Regs. tit. 10, § 69-4.24(b).
“The controlling inquiry” in determining if an action was random and unauthorized is “whether
the state is in a position to provide for predeprivation process.” Hudson, 468 U.S. at 534. Because
it was not in such a position here, the alleged conduct was random and unauthorized.
In cases involving random and unauthorized conduct, the Second Circuit has consistently
found that the availability of a postdeprivation Article 78 proceeding provides a plaintiff with a
meaningful opportunity to challenge agency action sufficient to ensure due process. See HANAC,
101 F.3d at 881 (“We have held on numerous occasions that an Article 78 proceeding is a perfectly
adequate postdeprivation remedy.”); Gudema v. Nassau Cty., 163 F.3d 717, 724–25 (2d Cir. 1998);
Giglio v. Dunn, 732 F.2d 1133, 1134 (2d Cir. 1984); see also Griffin v. City of New York, 880 F.
Supp. 2d 384, 404 (E.D.N.Y. 2012). Moreover, the fact that the limitations period to initiate such
a proceeding may have run is not relevant in evaluating Polito’s federal case. See HANAC, 101
F.3d at 881; Giglio, 732 F.2d at 1135 n.1.
Polito argues that an Article 78 proceeding was not available to her because “there was no
final agency determination.” Pl.’s Opp’n 23. Nonetheless, the distinction she appears to be
making between de jure and de facto agency action—the latter being unlikely to result in a formal
“final agency determination”—is not a relevant one. See, e.g., HANAC, 101 F.3d at 881 (holding
that Article 78 proceeding was sufficient postdeprivation process to reject procedural due process
challenge to a de facto agency action). The Article 78 proceeding provided Polito with sufficient
due process. As a result, her first procedural due process claim must be dismissed.
B. Procedural Due Process—Stigma-Plus.
Although Polito frames her second claim for relief as a violation of her right to substantive
due process, it is more accurately construed as a “stigma-plus” claim, which is considered “a
species within the phylum of procedural due process claims.” Segal v. City of New York, 459 F.3d
207, 213 (2d Cir. 2006). Specifically, Polito alleges that the Defendants violated her “liberty
interest in her good name and reputation . . . by communicating . . . false allegations of misconduct
and by falsely accusing [her] of being incompetent, engaging in misconduct, and unemployable in
her occupation.” Compl. ¶ 100. The stigma-plus doctrine provides, “in limited circumstances[,]
. . . a remedy for government defamation under federal constitutional law.” Sadallah v. City of
Utica, 383 F.3d 34, 38 (2d Cir. 2004). Such a claim “[r]equires a plaintiff to allege (1) the utterance
of a statement about her that is injurious to her reputation, ‘that is capable of being proved false,
and that he or she claims is false,’ and (2) ‘some tangible and material state-imposed burden . . .
in addition to the stigmatizing statement.’” Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (alteration
in original) (quoting Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001)). The
allegedly stigmatizing statement must be “sufficiently public to create or threaten a stigma.” Id.
Injury to reputation alone, however, is insufficient to make out a claim. See Paul v. Davis, 424
U.S. 693, 711–12 (1976). The second element, the “plus,” can be satisfied by establishing the
deprivation of a property interest created by state law. Greenwood v. New York, Office of Mental
Health, 163 F.3d 119, 124 (2d Cir. 1998). Finally, “a stigma-plus claim [only] enforces a limited
but important right: the right to be heard . . . [at a] name-clearing hearing.” Segal, 459 F.3d at 213.
Polito fails to state a stigma-plus claim for several reasons. Passing over the fact that she
admits that she was able to secure a new contract as a provider of Early Intervention services
through a different agency within three months of the termination of her contract with HIH, Compl.
¶ 81, and thus she likely cannot prove the deprivation by the state of a tangible interest, she fails
to identify the specific defamatory statements she claims injured her reputation. One cannot make
a “reasonable inference that the defendant is liable for the misconduct alleged”—here, that the
defendants’ statement was injurious to Polito and was capable of being proven false—where she
does not allege any facts on which to base such an inference. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). If, as seems likely, the statement here was merely relaying that a parent was uncomfortable
with Polito working with her child because Polito had previously faced accusations of using
corporal punishment, see, e.g., Compl. ¶ 177, it would not be capable of being proven false. See
Polito v. New York City Dep’t of Educ., 962 N.Y.S.2d 120, 122 (App. Div. 2013); see also Liberty
Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (judicial notice
can be taken of other litigation to establish the fact of its existence). Finally, even if Polito had
stated a cognizable stigma-plus claim, it would fail as a matter of law because she was entitled to
adequate process to give her the chance to clear her name through an Article 78 proceeding. See
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 121 (2d Cir. 2011); Griffin, 880 F. Supp. 2d at
404–05; see also HANAC, 101 F.3d at 880–81 (sufficient process to reject due process claims
based on property interest necessarily sufficient for stigma-plus claims based on liberty interest).
Before moving on from Polito’s constitutional claims, I note that I need not consider
whether the rights at issue in this case were clearly established for purposes of evaluating the
individual defendants’ entitlement to qualified immunity because Polito’s rights were not violated
in the first place. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (affirming that the protocol
mandated by Saucier v. Katz, 533 U.S. 194 (2001), whereby a court was required to evaluate first
whether a right had been violated before considering whether the right was clearly established,
while no longer mandatory, “is often beneficial”).
C. Failure to Train, Supervise, Audit, and Discipline.
In her third claim for relief, Polito asserts that the City and DOHMH should be liable for
the constitutional violations of their employees based on several different theories of municipal
liability. To hold a municipality liable under 42 U.S.C. § 1983, a plaintiff must prove that the
deprivation of her federal rights was caused by a governmental custom or policy; this requirement
ensures that a local government will not be held liable unless its own acts, rather than the
unsanctioned decisions of its employees, are “the moving force of the constitutional violation.”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). As an initial matter, this claim fails
because, as described above, Polito has not stated a claim for an underlying constitutional
violation. “Monell does not provide a separate cause of action . . . ; it extends liability to a
municipal organization where . . . the policies or customs that it has sanctioned[ ] led to an
independent constitutional violation.” Segal, 459 F.3d at 219.
Even assuming that Polito has stated a claim for a constitutional violation, she nonetheless
fails to state a Monell claim. Her claim for relief against the City and DOHMH can be construed
to allege two recognized avenues to establishing a governmental custom or policy, see Compl. ¶¶
103–156: (i) liability extends to a municipality “where a single act is taken by a municipal
employee who, as a matter of state law, has final policymaking authority in the area in which the
action was taken,” Davis v. City of New York, 228 F. Supp. 2d 327, 337 (S.D.N.Y. 2002) (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986)), and (ii) liability extends where there
has been a failure to supervise or train that exhibits “deliberate indifference” to the underlying
constitutional violations of non-policymaking employees of the municipality, see Amnesty Am. v.
Town of West Hartford, 361 F.3d 113, 127–28 (2d Cir. 2004) (Sotomayor, J.).
Polito’s first asserted basis for municipal liability fails because, again, she acknowledges
in her complaint that the individual defendants did not have policymaking authority to determine
whom Early Intervention agencies can hire to provide services or when they should terminate
providers. See Compl. ¶¶ 82 (“Municipal Defendants do not have legal authority to terminate an
Early Intervention Provider.”), 47, 151. As a result, Pate, Puffett, and Giurdanella clearly did not
have final policymaking authority in this area. See City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988) (“[T]he challenged action must have been taken pursuant to a policy adopted by the
. . . officials responsible under state law for making policy in that area of the city’s business.”);
Jeffes v. Barnes, 208 F.3d 49, 57–58 (2d Cir. 2000) (“Where a plaintiff relies not on a formally
declared or ratified policy, but rather on the theory that the conduct of a given official represents
official policy, it is incumbent on the plaintiff to establish that element as a matter of law.”).
Her second claimed basis for Monell liability also fails because Polito has not alleged that
municipal policymaking officials were deliberately indifferent. See Jones v. Town of East Haven,
691 F.3d 72, 81 (2d Cir. 2012). To establish deliberate indifference, a plaintiff must show that
(i) [A] policymaker knows ‘to a moral certainty’ that city employees will confront
a particular situation; (ii) the situation either presents the employee with ‘a difficult
choice of the sort that training or supervision will make less difficult’ or ‘there is a
history of employees mishandling the situation;’ and (iii) ‘the wrong choice by the
city employee will frequently cause the deprivation of a citizen’s constitutional
Wray v. City of New York, 490 F.3d 189, 195–96 (2d Cir. 2007) (quoting Walker v. City of New
York, 974 F.2d 293, 297–98 (2d Cir. 1992)). A plaintiff must thus allege either that policymakers
were aware of a situation in which constitutional violations have occurred or will occur, or that
they should have been aware of such a situation. Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397,
407 (1997); Amnesty Am., 361 F.3d at 126–28 (deliberate indifference established by showing that
the need for more supervision is obvious to a policymaking official); see also Reynolds v. Giuliani,
506 F.3d 183, 192 (2d Cir. 2007) (Monell is satisfied “where a local government is faced with a
pattern of misconduct and does nothing, compelling the conclusion that [it] has acquiesced in or
tacitly authorized its subordinates’ unlawful actions”).
Polito fails to allege awareness on the part of a policymaking official or any pattern of
conduct that should have produced such awareness. Moreover, Polito alleges no facts in support
of her failure-to-train claim as to any “specific deficiency in the city’s training program.” Amnesty
Am., 361 F.3d at 129; see also City of Canton v. Harris, 489 U.S. 378, 390 (1989). The “stringent
standard” to show deliberate indifference, Bd. of Cty. Comm’rs, 520 U.S. at 410, is in place to
make sure that a municipality is not held liable for actions that are not truly its own and Polito has
failed to allege facts that would meet this standard.
D. Conspiracy to Violate Civil Rights.
Polito’s fourth cause of action, that the Defendants conspired to violate her civil rights
under 42 U.S.C. §§ 1985(2)–(3) and 1983, also fails to state a cognizable claim. Section 1985(2)
prohibits conspiracies to obstruct justice in state or federal judicial proceedings, see Kush v.
Rutledge, 460 U.S. 719, 724–25 (1983), but Polito fails to support such a claim with any factual
allegations in the complaint and that provision is thus clearly inapplicable. Moreover, section
1985(3) requires an allegation that the “conspiracy . . . be motivated by ‘some racial or perhaps
otherwise class-based, invidious discriminatory animus behind the conspirators’ action.’” Mian v.
Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (quoting United Bhd.
of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 829 (1983)). No such classbased animus is alleged in the complaint, so this provision is also inapplicable.
To survive a motion to dismiss a section 1983 conspiracy claim, a plaintiff must allege (1)
an agreement between a state actor and a private party or between separate state actors; (2) to act
in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal
causing damages. Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002); Pangburn
v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “[C]omplaints containing only conclusory, vague,
or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed.” Dwares v. City of New York, 985 F.2d 94, 100
(2d Cir. 1993). Polito’s claim fails because, as outlined above, the alleged conduct in this case
was not unconstitutional. See Weslowski v. Zugibe, 96 F. Supp. 3d 308, 322 (S.D.N.Y. 2015).
E. State-Law Claims.
A district court has supplemental jurisdiction over state-law claims “that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a).
Nevertheless, supplemental jurisdiction over a claim may be declined when, among other
circumstances, “the district court has dismissed all claims over which it has original jurisdiction.”
Id. § 1367(c)(3). Taking into consideration the values of judicial economy, convenience, fairness,
and comity, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349–50 (1988), I decline to
exercise supplemental jurisdiction over Polito’s state-law claims. Those claims are dismissed
The motion to dismiss the complaint is granted. I grant the plaintiff leave to replead within
thirty (30) days of the date of this order.
Brooklyn, New York
July 7, 2016
Edward R. Korman
Edward R. Korman
United States District Judge
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