Krivoi v. City of New York et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the foregoing reasons, the court ADOPTS IN PART and REJECTS IN PART the R&R (Dkt. 39 ). The City's Motion to Dismiss (Dkt. 30 ) is GRANTED. The Clerk of Court is respectfully DIRECTED to enter judgment for the City. So Ordered by Judge Nicholas G. Garaufis on 10/22/2018. (fwd'd for jgm) (Lee, Tiffeny)

p/f
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MARKKRIVOI,

Plaintiff,
MEMORANDUM & ORDER

-against-

16-CV-5169(NGG)
(CLP)
CITY OF NEW YORK,et al..
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Mark Krivoi brings this action against Defendants the City ofNew York (the
"City"), the Kings County District Attorney's Office("KCDA"),and Safe Horizon, Inc.("Safe
Horizon"). Plaintiff brings claims against Defendants for violations of his due process rights
under the Fifth and Fourteenth Amendments and New York State Constitution, claims offalse

arrest and false imprisonment imder federal and state law, violations of42 U.S.C §§ 1983 and
1988, claims of malicious prosecution, negligence, negligent misrepresentation, and negligent
infliction of emotional distress. (Am. Compl.(Dkt. 21).)

The City moves to dismiss Plaintiffs federal law claims pursuant to Federal Rule of Civil

Procedure 12(b)(6), on the ground that Plaintiff has not adequately pleaded a claim for municipal
liability against the City. (City Mot. to dismiss("Mot.")(Dkt. 30); City Mem.in support of Mot.
to Dismiss("Mem.in Supp. Of Mot.")(Dkt. 31).) The undersigned referred the City's motion to
Magistrate Judge Cheryl L. Pollak for a Report and Recommendation("R&R")pursuant
to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (July 24, 2017,

Order.) On March 16,2018, Judge Pollak issued an R&R recommending that the court deny the
City's motion. (R&R(Dkt. 39)at 2.) The City timely objected to the R&R and Plaintiff timely

responded to the City's objections. (City Objs. to R&R("City Objs.")(Dkt. 40); PI. Opp'n to
1

City Objs.("PL Opp'n to City Objs.")(Dkt. 43).) For the following reasons,the R&R is
ADOPTED IN PART and REJECTED IN PART,and the City's motion to dismiss is
GRANTED.
I.

BACKGROUND

The R&R clearly sets forth the background ofthis case(R&R at 2-4), and the parties

have not objected to Judge Pollak's statement offacts and procedural history. The court thus
adopts the R&R in this respect and offers the following summary to guide the analysis below.
See Dong V. Miller. 16-CV-5836(NGG),2018 WL 1445573, at *2(E.D.N.Y. Mar. 23, 2018)

(adopting the R&R's statement offacts because the parties had not objected to it).
A.

Facts

Plaintiff alleges that the City and Safe Horizon entered into an agreement whereby Safe

Horizon would collect restitution payments on behalfofthe City's criminal courts and the New
York State Supreme Court. (Am. Compl. H 15.) Under the contract, Safe Horizon is required to
"report the status ofindividual cases to the criminal courts in each coimty." (Id. K 16.) Plaintiff
alleges that the City and Safe Horizon have a "custom and policy" whereby Safe Horizon does

not "actively inform the City of when restitution payments are made." (Id ^ 17.)
Plaintiff alleges that, on November 3, 2015, he was detained at the 94th Precinct ofthe

New York Police Department("NYPD")when a detective advised him that there was an

outstanding bench warrant for his arrest, based on his previous failure to pay $105 dollars in
restitution in an unrelated matter. (Id

19-20.) Plaintiff disputed that he had failed to pay this

restitution. (Id H 21.)^ Despite Plaintiffs objections, he was arrested and held in jail until his
arraignment for failure to pay the restitution. (Id ^ 22.) Plaintiff alleged that the detective

'
Plaintiff alleges that on April 11,2013, he paid the full restitution amount to Safe Horizon and thereafter provided
a copy of his receipt evidencing payment the court clerk in the underlying matter, (Am. Compl. IfTJ 26-27.)

informed him that, without the outstanding warrant, he would have received a desk appearance

ticket and been released that day. Qd f 23.)

At arraignment. Plaintiff denied the allegation that he had failed to pay restitution within
the timeffame established by the court for the prior charge. (Id 125; see id. ^ 24.) Plaintiff was
then placed in jail "based on the incorrect representations" that the restitution had not been paid.
041128.)
On November 9,2015,following six days in jail at Rikers Island, the court ordered that
Plaintiff be released and scheduled a court date to determine the legitimacy ofthe outstanding

warrant.^ (Id K 29.) Plaintiff alleges that KCDA failed to investigate whether Plaintiff had,in
fact, paid his restitution, and this failure was a result of a custom and policy "whereby it did not
and does not take any affirmative action to verify whether an accused defendant who contested
that he had paid his restitution has in fact done so." (Id 1[1[ 30-31.) At the court's direction.
Plaintiffs counsel went to "the General Clerk's office in the ICings County Criminal Court" and
inquired as to whether there was any record ofPlaintiff having paid the restitution related to the
alleged warrant. (Id 1137.) The Clerk twice informed Plaintiffs counsel that there was no
record ofPlaintiff ever having paid the restitution and advised Plaintiffs counsel to contact Safe
Horizon. (Id) After contacting Safe Horizon several times and being told that they have no

record ofPlaintiff paying the restitution amount. Plaintiffs counsel obtained a subpoena

ordering Safe Horizon to produce Plaintiffs file. (Id 1I1[ 38-40.) Safe Horizon produced the file,
which indicated that Plaintiff had indeed paid the restitution in full. (Id H 41.) On March 3,
2016,the court dismissed the outstanding warrant upon reviewing the documents that Plaintiffs
counsel obtained from Safe Horizon. (Id 143.)

2 Plaintiff alleges that during his incarceration, he witnessed numerous assaults and threats that caused him mental
and emotional distress. (Am. Compl. 36, 51.)

B.

Procedural History

Plaintiff conunenced this suit on September 16,2016,(Compl.(Dkt. 1)), and amended
his complaint on April 21,2017(Am. Compl). In his amended complaint. Plaintiff alleges
claims offederal and state due process violations, false arrest and false imprisonment, malicious
prosecution, negligence, negligent misrepresentation, negligent infliction of emotional distress,
and asserts municipal liability against the City. (Id

52-110.) Plaintiff seeks compensatory

and punitive damages as well as attorneys' fees and costs. Qd at pp. 14-15.)
The City moved to dismiss all claims against it(Mot.; Mem.in Supp. Of Mot.), and in the
R&R,Judge Pollak advised that the City's motion should be denied and further recommended
that Plaintiff be granted leave to amend his complaint a second time to clarify his allegations
regarding a potential failure to train and supervise claim. (R&R at 28.)
The City timely objects to the R&R's recommended finding that Plaintiff has adequately
pled a claim for municipal liability. (City Objs.) Specifically, the City asserts that Plaintiffs
amended complaint lacks factual allegations necessary to support the existence ofa municipal
policy or custom, and that Plaintiffs amended complaint pleads only negligence, rather than

intentional conduct on the part of the City. (Id at 3). Additionally,the City objects to the
recommendation that Plaintiff be allowed to amend his complaint for a second time. (Id at 3-4.)
II.

STANDARDS OF REVIEW

A.

Review of a Magistrate Judge's R&R

In reviewing an R&R from a magistrate judge regarding a dispositive motion,the district
court"may adopt those portions ofthe Report to which no objections have been made and which
are not facially erroneous." Romero v. Bestcare Inc.. No. 15-CV-7397(JS), 2017 WL 1180518,
at *2(E.D.N.Y. Mar.29, 2017)(citation and quotation marks omittedh see hnoala v. U.S. Den't

of Justice. 670 F. App'x 32,32(2d Cir. 2016)(summary order)("[F]ailure to object timely to a
magistrate's report operates as a waiver of any further judicial review ofthe magistrate's

decision... (citation and quotation marks omitted)); Gesualdi v. Mack Excavation & Trailer

Serv.. Inc.. No. 09-CV-2502(KAM),2010 WL 985294, at *1 (E.D.N.Y. Mar. 15,2010)("Where
no objection to the[R&R]has been filed, the district court need only satisfy itselfthat there is no

clear error on the face ofthe record."(citation and internal quotation marks omitted)). "A
decision is 'clearly erroneous' when the [cjourt is,'upon review ofthe entire record, left with the
definite and firm conviction that a mistake has been committed.'" DiPilato v. 7-Eleven. Inc..

662 F. Supp. 2d 333, 339-40(S.D.N.Y. 2009)(alteration adopted)(quoting United States v.
Snow.462 F.3d 55, 72(2d Cir. 2006)).

The district court must review de novo "those portions ofthe report... to which
objection is made." 28 U.S.C. § 636(b)(1); s^ Fed. R. Civ. P. 72(b)(3). To obtain this de novo

review, an objecting party "must point out the specific portions ofthe[R&R]"to which objection
is made. Sleepv's LLC v. Select Comfort Wholesale Corp.. 222 F. Supp. 3d 169, 174(E.D.N.Y.
2016); see also Fed. R. Civ. P. 72(b)(2)("[A] party may serve and file specific written objections

to the [R&R]."). Ifa party "makes only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the[R&R]only for clear error." Pall Corp. v. Entegris.

Inc.. 249 F.R.D. 48,51 (E.D.N.Y. 2008)(citation and quotation marks omitted): see also Mario
V. P & C Food Mkts.. Inc.. 313 F.3d 758,766(2d Cir. 2002)(holding that plaintiffs objection to
an R&R was "not specific enough" to "constitute an adequate objection under ... Fed. R. Civ. P.
72(b)").

B.

Motion to Dismiss

The purpose ofa motion to dismiss for failure to state a claim under Rule 12(b)(6) is to
test the legal sufficiency ofa plaintiffs claims for relief. Patane v. Clark. 508 F.3d 106,112-13
(2d Cir. 2007). A complaint will survive a motion to dismiss ifit contains "sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v.

Iqbal, 556 U.S. 662,678(2009)(quoting Bell Atl. Com, v. Twomblv.550 U.S. 544, 570(2007)).
"Threadbare recitals ofthe elements ofa cause of action, supported by mere conclusory
statements, do not suffice." Id at 678.

In reviewing a complaint on a motion to dismiss for failure to state a claim, the court
must accept as true all allegations offact in the complaint and draw all reasonable inferences in

favor ofthe plaintiff. ATSI Commc'ns. Inc. v. Shaar Fund. Ltd.. 493 F.3d 87,98(2d Cir. 2007).
"In determining the adequacy ofthe complaint,the court may consider any written instrument

attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as
documents upon which the complaint relies and which are integral to the complaint." Subaru
Distribs. Corp. v. Subaru of Am.. Inc.. 425 F.3d 119,122(2d Cir. 2005). "[W]hatever
documents may properly be considered in connection with the Rule 12(b)(6) motion,the bottom-

line principle is that once a claim has been stated adequately, it may be supported by showing
any set offacts consistent with the allegations in the complaint." Roth v. Jennings. 489 F.3d
499,510(2d Cir. 2007)(citation and internal quotation marks omitted),
m.

DISCUSSION

A.

Clear Error Review

No party has objected to Judge Pollak's findings that(a)the City and Safe Horizon are

participants in joint activity on behalf ofthe City and thus Plaintiff has adequately alleged state

action(R&R at 9);(b)KCDA is not a suable entity and therefore the court should construe the
allegations against KCDA as claims against the City(R&R at 12 n.6); and (c)Plaintiffs failure

to name an individual actor does not require dismissal ofthe municipal claims(R&R at 26-27).
Accordingly, the court reviews the R&R's analysis ofthose claims for clear error. Finding none,

the court adopts the R&R in these respects.
B.

De Novo Review of the City's Objections
1.

Municipal Liability

"[A] municipality cannot be held liable under § 1983 on a respondeat superior theory."

Monell V. Dep't of Soc. Servs.. 436 U.S. 658,691 (1978). "[T]o hold a city [or municipal actor]
liable under § 1983 for the unconstitutional actions ofits employees, a plaintiff is required to
plead and prove three elements:(1)an official policy or custom that(2)causes the plaintiffto be
subjected to (3)a denial of a constitutional right." Wrav v. Citv ofNew York.490 F.3d 189,195

(2d Cir. 2007)(alteration in original)(quotations and citation omitted). The "policy or custom"
requirement may be satisfied by alleging one ofthe following:
(1) a formal policy officially endorsed by the municipality; (2)
actions taken by government officials responsible for establishing
the municipal policies that caused the particular deprivation in

question;(3)a practice so consistent and widespread that, althou^
not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or(4)a failure by
policy makers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate

indifference to the rights of those who come into contact with the
municipal employees.

Skates v. Inc. Village ofFreeport. 265 F. Supp. 3d 222, 235(E.D.N.Y. 2017). A plaintiff
bringing a § 1983 claim for municipal liability also must establish a causal connection between

the municipality's official policy and the underlying constitutional violation.

Stem v. Citv of

New York. No. 12-CV-5210(NGG),2015 WL 3827653, at *5(E.D.N.Y. June 19,2015).

Plaintiff alleges that the City entered into a contract with Safe Horizon in which Safe
Horizon collects restitution payments on behalfofthe City's criminal courts and the State

Supreme Courts located within the City. (Am. Compl. K 15.) The contract requires Safe Horizon
to report the status ofindividual cases, including whether restitution has been paid as ordered, to
these courts. (Id ^ 16.) Plaintiff alleges that Safe Horizon has a"custom and policy whereby it
did not and does not take any affirmative action to verify whether an accused defendant who

contested that [they] had paid [their] restitution has in fact done so." (Id K 33.) Plaintifffurther
alleges that Safe Horizon "maintained said policy with the knowledge and consent ofthe City."

(Idp4.)
In connection with this contractual agreement. Plaintiff alleges that KCDA had a custom

and policy whereby "it did not and does not take any affirmative action to verify whether an
accused defendant who contested that he had paid his restitution has in fact done so" and that
such a policy was "maintained with the knowledge and consent ofthe City." (Id

31-32.)

These policies, both individually and taken together, are alleged to have caused violations of
Plaintiffs constitutional and statutory rights, specifically, false arrest and false imprisonment,
malicious prosecution, and due process violations. (Id ^ 1.)
Judge Pollak found that Plaintiff had made sufficient allegations to suggest that Plaintiffs

alleged constitutional violations are "based on a custom or usage so widespread to be considered
a custom or usage in which Safe Horizon and the City ofNew York have acquiesced." (R&R at
20.) The City objects, arguing that the R&R "contains no discussion whatsoever ofthe total
absence of a factual basis for [P]laintiffs municipal liability claim." (City Objs. at 5.) The court
agrees with the City and therefore dismisses Plaintiff's claim of municipal liability against the
City.

8

a)

Custom or Usage

Plaintiff seeks to establish that Safe Horizon, the City, and KCDA have a custom or

usage under which its employees or agents do not inquire into protestations that its system does
not accurately reflect restitution payments made. (See R&R at 20.) In support ofthis claim.
Plaintiff alleges that:(1)"the City and Safe Horizon have a custom and policy in which Safe
Horizon does not actively inform the City of when restitution payments are made"(Am. Compl.

^ 17);(2)"KCDA had a custom and policy whereby it did not and does not take any affirmative
action to verify whether an accused defendant who contested that he had paid his restitution has

in fact done so"(id 131);(3)"KCDA maintained said policy with the knowledge and consent of
the City"(id U 32); and (4)"Upon information and belief. Safe Horizon had a custom and policy
whereby it did not and does not take any affirmative action to verify whether an accused
defendant who contested that he had paid his restitution has in fact done so"(id K 33).
Plaintiffs claims against the City are simply too conclusory to plausibly support his
claim for municipal liability. S^ Iqbal. 556 U.S. at 678. Although Plaintiff broadly asserts that

the City, Safe Horizon, and KCDA maintain a policy and practice of failing to adequately verify
and report restitution payments.Plaintifffails to allege any facts to support these naked and
speculative allegations. Indeed,Plaintiffs amended complaint is devoid of any examples ofa
"chronic and widespread failure" which could plausibly allege a custom or policy necessary to
establish municipal liability. Pelt v. Citv of New York. ll-CV-5633(KAM),2013 WL

4647500, at *16(E.D.N.Y. Aug. 28,20131: see also Trov v. Citv of New York. No. 13-CV-5082
(AJN),2014 WL 4804479, at *12(S.D.N.Y. Sept. 25,2014), affd 614 F. App'x 32(2d Cir.
2015); Cooper v. Citv of New York. No. 12-CV-8008(SAS),2013 WL 5493011, at *2,*7
(S.D.N.Y. Oct. 2, 2013)(dismissing Monell claim based in part on failure to properly screen

police officers where complaint consisted of"[tjhreadbare recitals ofthe elements ofa cause of
action, supported by mere conclusory statements"(quoting Iqbal. 556 U.S. at 663)); Johnson v.

City ofNew York. 06-CV-9426(GBD),2011 WL 666161, at *4(S.D.N.Y. Feb. 15, 2011)

("Plaintiff never alleges that any ofthese single incidents occurred more than once. Plaintiff also
never alleges that NYPD personnel have been responsible for similar incidents in the past.").
Furthermore,the parties disagree whether a single instance of misconduct can prove a

custom or policy for purposes of municipal liability. fCompare City Objs. at 7-9 with PI. Opp'n
to City Objs. at 8.) Plaintiff argues that, by claiming that KCDA failed to determine ifPlaintiff

had paid his restitution payment prior to issuing a warrant for his arrest, he has sufficiently
alleged actual conduct by a municipal policymaker "sufficient to establish municipal liability
against the City." (PI. Opp'n to City Objs. at 9(citation and intemal quotation marks omitted).)
With this claim. Plaintiff seems to argue that the City can be held liable under the second method

of Monell liabilitv: actions taken or decisions made by policymakers that caused a deprivation of
his rights.

While it is true that actions by an individual with decision making authority may
constitute official policy, that individual must"be responsible for establishing final government
policy" in order for the liability to attach. Pembaur v. Citv of Cincinnati. 475 U.S. 469,482-83

(1986). "[A] single incident alleged in a complaint, especially if it involved only actors below
the policy-making level, does not suffice to show a municipal policy." Ricciuti v. N.Y.C. Transit
Auth.. 941 F.2d 119,123(2d Cir. 1991)(citations omitted): see also Citv of Canton v. Harris.
489 U.S. 378,399(1989). "Proofofa single incident of unconstitutional activity is not sufficient

to impose liability under Monell. unless proof ofthe incident includes proofthat it was caused by

10

an existing, unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24(1985)(emphasis added).
Here,Plaintiff has failed to allege sufficient facts plausibly establishing that KCDA

promulgated the supposed policy Plaintiff seeks to challenge. Plaintiff alleges that"KCDA had
a custom and policy whereby it did not and does not take any affirmatiye action to yerify
whether an accused defendant who contested that he had paid his restitution has in fact done so"

(Am. Compl. K 31), and that"KCDA maintained said policy with the knowledge and consent of
the City"(Iff H 32). For the same reasons discussed aboye,these mere assertions that KCDA had
a custom and policy not to yerify restitution payments, without more, are simply not enough to
allege that KCDA is responsible for setting the alleged custom or policy, eyen at the pleading
stage. See, e.g.. Hurdle y. Bd. ofEduc.. 113 F. App'x 423,427(2d Cir. 2004)("Eyen if
[defendant] was the decisionmaker with regard to [plaintiffs] transfer, that does not establish

that she had the authority to set the policy authorizing inyoluntary employee transfers."); Rubino
y. Town of Babylon,09-CV-5187(DRH),2012 WL 928252, at *4(E.D.N.Y. Mar. 19,2012).
The cases on which Plaintiff relies in his opposition to the City's objections also make

clear that the underlying policy must be set and executed by the official policy maker in order to
hold the City entity liable under such a theory. (PI. Opp'n to City Objs at 8-9). See, e.g., Ying
Jing Gan y. City ofNew York,996 F.2d 522,536(2d Cir. 1993)("Plaintiffs haye failed,
howeyer,to allege any facts to support their contention that the challenged actions were in any
way related to a custom or poUcy promulgated by the New York County District Attomey's
Office."); Jones y. City ofNew York. 988 F. Supp. 2d 305, 316(E.D.N.Y. 2013)("The peculiar,

but necessary, consequence is that the City is a proper municipal party in interest in
a Monell claim based on policies or customs independently set and executed by the district

11

attorney."(emphasis added)); Johnson v. Kings Cty. Dist. Attorney's Office, 763 N.Y.S. 2d 635,
648(App. Diy. 2003)
("We find that a 42 U.S.C § 1983 claim may be maintained against the
City for the conduct ofthe District Attorney's Office,insofar as the District Attorney acted as a
New York City policymaker."(emphasis added)).

In sum.Plaintiff cannot establish that the City had a custom or policy of not accurately
reporting and yerifying restitution payments made. Accordingly, the City is entitled to dismissal
on Plaintiffs municipal liability claim.

b)

Failure to Allege Intentional Conduct

In order to establish municipal liability. Plaintiff must also adequately allege the
existence of an underlying constitutional yiolation.

Segal y. City ofNew York.459 F.3d

207,219(2d Cir. 2006)(citations omitted)("Monell does not proyide a separate cause of action
for the failure by the goyemment to train its employees; it extends liability to a municipal
organization where that organization's failure to train, or the policies or customs that it has

sanctioned, led to an independent constitutional yiolation.").
Judge Pollak found that Plaintiff"has adequately alleged constitutional yiolations" that
suffice to withstand a motion to dismiss at this stage. (R&R at 20.) The City argues that Judge
Pollak's R&R failed to address the argument in its motion to dismiss that Plaintiff did not allege

the necessary requirement ofintent for his underlying constitutional claims. (City Objs. at 13.)
The cases upon which the R&R relies, howeyer,find that municipal liability for the underlying
constitutional yiolations still requires a finding that a municipal policy was responsible for the
depriyation ofthe constitutional rights. See, e.g.. Owen y. City ofIndependence. 445 U.S. 622,
633(1980). Because this court has already found that Plaintiff has failed to allege a custom or

12

policy necessary to attach municipal liability, the court need not consider whether the underlying
violations adequately plead intentionality.
2.

Leave to Amend the Complaint

In opposing the City's motion to dismiss. Plaintiff states that he alternatively "has a cause
of action against the City for failure to train or supervise its employees," but acknowledges that

he has not yet pleaded such a claim. (PI. Opp'n to Mot.(Dkt. 33)at 13.) The City opposed
Plaintiff's attempt to raise a new cause of action in their opposition. (City Reply in Supp. of
Mot.(Dkt. 35)at 8.)

In the R&R,Judge Pollak acknowledged that "a party may amend its pleading only with
the opposing party's written consent or the court's leave." (R&R at 27)(quoting Fed. R. Civ. P.
15(a)(2)).) The R&R found, however, that "the facts necessary to support a cause of action for

failure to train and failure to supervise" are alleged in the amended complaint and therefore
recommended that Plaintiff be granted leave to amend his complaint for a second time to "clarify
and amplify the claim offailure to train and failure to supervise against the City ofNew York in
connection with its policy of delegating supervision ofrestitution payments to Safe Horizon."

(Id. at 27-28.) The City objects to this part of Judge Pollak's R&R "because the facts necessary
to support such a cause of action are n^ alleged in the Amended Complaint." (City Objs. at 9.).
This court agrees with the City and therefore does not grant Plaintiff leave to amend the
complaint.

Failure to train or supervise city employees may constitute an official policy or custom
supporting Monell liability if the failure amounts to "deliberate indifference" to the rights of
those with whom the city employees interact. Harris. 489 U.S. at 388. In establishing deliberate
indifference, the "operative inquiry is whether the facts suggest that the policymaker's inaction

13

was the result of a conscious choice rather than mere negligence." Amnesty Am.v. Town of
West Hartford. 361 F.Bd 113,128 (2d. Cir. 2004)(intemal quotation marks omitted). Thus, a

plaintiff must show that "a policymaking official had notice of a potentially serious problem of
unconstitutional conduct, such that the need for corrective action or supervision was obvious and

the policymaker's failure to investigate or rectify the situation evidences deliberate indifference,
rather than mere negligence or bureaucratic inaction." Id (citation and intemal quotation marks

omitted). Plaintiff states multiple times in his amended complaint that the actions were a result
of Defendants' negligence, not deliberate indifference. (See, e.g.. Am. Compl.^ 44 ("It was the

error and negligence ofthe Defendants that caused Plaintiff to be incarcerated for that same time
period."); id. H 45 ("Safe Horizon incorrectly and negligently advised the Court and Mr. Krivoi
that he did not pay the One Hundred Five dollars($105.00)in restitution, resulting in his illegal
incarceration"); id ^ 97("Safe Horizon's foregoing negligence and breach ofduty was the
proximate cause of Mr. Krivoi's injuries.").) Because the amended complaint itself

acknowledges the actions were allegedly a result of negligence. Plaintiff fails to allege facts to
make out a Monell claim for failure to train or supervise. S^ Martin v. Citv ofNew York. 11-

CV-02862(ENV),2012 WL 4569757, at *3(E.D.N.Y. Sept. 29,2012). The court therefore

respectfully declines to follow Judge Pollak's recommendation to grant Plaintiffleave to amend
the complaint.

14

IV.

CONCLUSION

For the foregoing reasons, the court ADOPTS IN PART and REJECTS IN PART the

R&R(Dkt. 39). The City's Motion to Dismiss(Dkt. 30)is GRANTED. The Clerk of Court is
respectfully DIRECTED to enter judgment for the City.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
October
2018

NICHOLAS G. GARAms
United States District Judge

15