Felix et al v. The City of New York et al

Filing 27

ORDER: Defendants' motion 24 to dismiss the federal claims is granted in full. The Court declines supplemental jurisdiction over the state-law claims. The Clerk of the Court is respectfully directed to close this case. Ordered by Judge Eric R. Komitee on 3/10/2025. (CAM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
GLORIA FELIX as Administrator of the
Estate of MIGDALIA ORTEGA, and GLORIA
FELIX, Individually and on behalf of
all Distributees,

MEMORANDUM & ORDER
23-CV-5411 (EK)(VMS)

Plaintiff,
-againstTHE CITY OF NEW YORK, THE NEW YORK
CITY POLICE DEPARTMENT, THE FIRE
DEPARTMENT OF NEW YORK, POLICE
OFFICERS “JOHN DOE I-X” (whose names
are fictitious, and identities are
not currently known) and FIRST
RESPONDERS “JOHN DOE I-X” (whose
names are fictitious, and identities
are not currently known),
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Plaintiff Gloria Felix brings this action as
administrator of the estate of her deceased sister, Migdalia
Ortega.

Felix alleges that Defendants — the City of New York,

the New York Police Department, the Fire Department of New York,
and various John Doe officers — failed to provide Ortega with
adequate medical care after her boyfriend shot her.

Ortega

eventually died at the hospital.
Felix’s amended complaint asserts federal
constitutional claims under 42 U.S.C. § 1983 for violations of

the Fourth, Eighth, and Fourteenth Amendments.

It also asserts

state-law claims for negligence and wrongful death.

Defendants

now move to dismiss the federal claims under Federal Rule of
Civil Procedure 12(b)(6).

For the reasons set out below,

Defendants’ motion is granted.
Background
The following facts are drawn from the amended
complaint, and they are presumed true for the purposes of this
motion.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007). 1
On the night of May 9, 2022, Migdalia Ortega’s

boyfriend shot her in an apartment in Queens.
¶¶ 18-19, ECF No. 18.

Am. Compl.

Defendants “were informed by 911 calls

and / or individuals at the scene” that Ortega had been shot,
was “critically injured,” and required “life-saving medical
care.”

Id. at ¶ 23.

Upon arrival, Defendants “seized control

and / or custody” of the apartment and began searching for
gunshot victims.

Id. at ¶¶ 20-22.

Defendants “unreasonabl[y] delayed in ascertaining
[Ortega’s] location [within the apartment],” and therefore did
not treat her promptly.

Id. at ¶ 24.

Ortega died at Elmhurst

Hospital Center from her wounds — wounds that allegedly would

1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.

2

have been “survivable if timely medical care [had been]
rendered.”

Id. at ¶ 25.
Legal Standard
To survive a motion under Rule 12(b)(6), a complaint

must contain “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).

However, the

requirement to accept a complaint’s allegations as true “is
inapplicable to legal conclusions.”

Id.

Thus, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, [will] not suffice.”

Id.

Discussion
A.

Federal Section 1983 Claims (Count III)
1.

Fourth Amendment
The Fourth Amendment protects the “right of the people

to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.”
amend. IV.

U.S. Const.

The complaint alleges that Defendants violated

Ortega’s Fourth Amendment rights when they entered the apartment
without a warrant and “seized control” of the premises.

Am.

Compl. ¶ 21.
The complaint does not allege an unreasonable search
or seizure.

To be reasonable under the Fourth Amendment, “a

search of a home must either be conducted pursuant to a warrant
3

or meet an exception to the warrant requirement.”
City of N.Y., 339 F.3d 129, 135 (2d Cir. 2003).

Anthony v.
One such

exception is the emergency aid exception, which permits an
officer to “enter a dwelling without a warrant to render
emergency aid and assistance to a person whom they reasonably
believe to be in distress and in need of that assistance.”
Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).

To

determine if the exception applies, “the core question is
whether the facts, as they appeared at the moment of entry,
would lead a reasonable, experienced officer to believe that
there was an urgent need to render aid or take action.”
States v. Simmons, 661 F.3d 151, 157 (2d Cir. 2011).

United

The

plaintiff has the burden to establish the exception’s
applicability, though this is not dispositive here. 2
The complaint, on its face, alleges facts supporting
application of the emergency aid exception.

See Hausch v.

Ecklond, 604 F. App’x 59, 60 (2d Cir. 2015) (summary order)
(affirming district court’s dismissal of Fourth Amendment claim

2 The Second Circuit held, in Ruggerio v. Krzeminski, that a civil
plaintiff asserting a Fourth Amendment violation bears the burden of showing
that no exception to the warrant requirement applies. 928 F.2d 558, 563 (2d
Cir. 1991). The circuits are split on this question and, as Judge Weinstein
noted relatively recently, the Second Circuit has not consistently assigned
the burden for every warrant exception. See Thompson v. Clark, 364 F. Supp.
3d 178, 191-92 (E.D.N.Y. 2019). In any event, the burden will not be
dispositive where, as here, the complaint alleges facts clearly supporting
the exception’s application. See Chamberlain v. City of White Plains, 986 F.
Supp. 2d 363, 382-83 (S.D.N.Y. 2013), vacated in part, Chamberlain Est. of
Chamberlain v. City of White Plains, 960 F.3d 100, 106-110 (2d Cir. 2020).

4

after finding that complaint and public record supported
invocation of “special needs” exception); Chamberlain, 986 F.
Supp. 2d at 382-83

(dismissing Fourth Amendment claim because

“facts as alleged by Plaintiff ma[de] clear that the officers’
entrance into the apartment” fell under the emergency aid
exception).

According to the complaint, Defendants entered the

apartment after 911 callers and individuals at the scene
informed them that Ortega “was critically injured within [the
apartment] and in desperate need of life-saving medical care.”
Am. Compl. ¶ 21-23.

So, even read in the light most favorable

to Felix, the complaint alleges facts that would lead a
“reasonable” and “experienced” officer to conclude that Ortega
required emergency assistance.

Felix thus has not plausibly

alleged that Defendants’ entry into the apartment violated the
Fourth Amendment.
The complaint also does not allege an unreasonable
search or seizure of Ortega herself.

Indeed, it alleges only

that Defendants “seiz[ed] control” of the apartment, not of
Ortega’s person.

Id. at ¶ 21.

Felix argues that if Defendants

seized control of the apartment, then it is reasonable to infer
that they also seized Ortega.

Pl.’s Opp’n Mem. 4, ECF No. 25

(“[Ortega] was effectively seized during the course of the
criminal investigation into the shooting . . . [via] the seizure
of the premises in which [she] was trapped”).
5

This does not

follow.

Generally, the government “seizes” a person under the

Fourth Amendment when “a reasonable person would [not] feel free
to decline the officers’ requests or otherwise terminate the
encounter.”

Florida v. Bostick, 501 U.S. 429, 436 (1991).

The

complaint never alleges facts suggesting that Ortega reasonably
felt — by virtue of Defendants’ conduct, rather than her own
injuries — that she could not leave the apartment.

See Bostick,

501 U.S. at 436 (seizure analysis does not consider whether
person’s freedom of movement was “restricted by a factor
independent of police conduct”); see also Michigan v.
Chesternut, 486 U.S. 567, 576 (1988) (Scalia, J., concurring)
(“A Fourth Amendment seizure occurs when an individual remains
in the control of law enforcement officials because he
reasonably believes, on the basis of their conduct toward him,
that he is not free to go.”).

Thus, the complaint does not

allege a cognizable seizure of Ortega’s person.
2.

Fourteenth Amendment (Due Process)
Felix also brings a claim under the Due Process Clause

of the Fourteenth Amendment.

Specifically, she alleges that by

“unreasonably delay[ing]” treatment of Ortega’s wounds,
Defendants violated her due process rights.

6

Am. Compl. ¶¶ 24,

34.

We construe this as a substantive, not procedural, due

process claim. 3
The complaint does not state a viable due process
claim under the Fourteenth Amendment.

“[T]he Due Process

Clauses generally confer no affirmative right to governmental
aid, even where such aid may be necessary to secure life,
liberty, or property interests of which the government itself
may not deprive the individual.”

DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).

And even

assuming, arguendo, that Defendants negligently treated Ortega’s
wounds, “liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process.”

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849

(1998).
Felix argues that state officials can be liable for
damages under the Due Process Clause when they are deliberately
indifferent to the medical needs of a pretrial detainee.

Pl.’s

Opp’n Mem. 6; see generally Maldonado v. Town of Greenburgh, 460

3 The complaint alleges a violation of Ortega’s “due process rights,”
without further specificity. Am. Compl. ¶ 34. “Due process has both a
procedural and substantive component.” Mason v. Vill. of Babylon, 124 F.
Supp. 2d 807, 814 (E.D.N.Y. 2000). Procedural due process concerns whether
the plaintiff was afforded “appropriate notice and an opportunity be heard,”
while substantive due process “circumscribes an outer limit on permissible
governmental action.” Id. But the complaint never alleges a particular
process that Ortega should have received. Moreover, in her briefing, Felix
argues that she has stated a claim for deliberate medical indifference, Pl.’s
Opp’n Mem. 5-6, which sounds in substantive due process, see Charles v.
Orange Cnty., 925 F.3d 73, 85-86 (2d Cir. 2019).

7

F. Supp. 3d 382, 395 (S.D.N.Y. 2020) (outlining the standard for
such claims).

But Ortega was not a pretrial detainee.

As noted

above, Ortega had not been “seized” within the meaning of the
Fourth Amendment, supra at Part III.A.1, let alone incarcerated
(or otherwise detained) ahead of trial.

Thus, Felix’s

substantive due process claim also lacks merit.
3.

Fourteenth Amendment (Equal Protection)
The complaint states, in passing, that Defendants’

conduct violated Ortega’s rights under the Equal Protection
Clause of the Fourteenth Amendment.

Am. Compl. ¶ 34.

Because

the complaint does not allege Ortega’s membership in a
particular class or group, the Court construes this as a “class
of one” claim.

See Vill. Of Willowbrook v. Olech, 528 U.S. 562,

564 (2000) (defining “class of one” claims).
A “class of one” equal protection claim requires a
plaintiff to show that “she has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.”

Here, the

Id.

complaint does not allege the existence of any “similarly
situated” comparator to Ortega.

Accordingly, the complaint does

not state a viable “class of one” claim under the Equal
Protection Clause.

8

4.

Eighth Amendment
The complaint goes on to allege (again in passing)

that Defendants’ conduct violated the Eighth Amendment’s ban on
cruel and unusual punishment.

Am. Compl. ¶ 34.

The Eighth

Amendment’s protections only apply to convicted prisoners.
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977); see also
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
not a convicted prisoner.

Ortega was

So, Felix cannot bring an Eighth

Amendment claim here. 4
5.

Monell Claim
Felix also alleges that the City is liable for the

above-discussed alleged constitutional violations of its
employees.

Am. Compl. ¶ 35.

To establish municipal liability

for the allegedly unconstitutional acts of city employees under
42 U.S.C. § 1983, a plaintiff must show that the “action alleged
to be unconstitutional implements or executes” official
municipal policy, or that it stems from a “governmental custom
even though such a custom has not received formal approval
through the [municipality’s] official decisionmaking channels.”
4 Felix’s invocation of the Eighth Amendment may relate to her
deliberate medical indifference claim under the Fourteenth Amendment. When
state officials are deliberately indifferent to the medical needs of
convicted prisoners, their actions violate the Eighth Amendment as
incorporated against the states by the Fourteenth Amendment. Estelle v.
Gamble, 429 U.S. 97, 101 (1976). But Felix claims — inaccurately — that
Ortega was a pretrial detainee, not a convicted prisoner. Pl.’s Opp’n Mem.
6. And claims of deliberate medical indifference against pretrial detainees
“are governed by the Due Process Clause of the Fourteenth Amendment,” not by
the Eighth Amendment. Darnell, 849 F.3d at 29.

9

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
690-91 (1978).
There can be no Monell liability ”[u]nless a plaintiff
shows that [she] has been the victim of a federal law tort
committed by persons for whose conduct the municipality can be
responsible.”
2013).

Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir.

Because Felix has failed to plausibly allege that

Defendants violated Ortega’s legal rights, her Monell claims
against the City must fail.
But even if Felix had adequately alleged an individual
employee’s violation, she still has not plausibly alleged that
the challenged conduct stemmed from official City policy or
unofficial City custom.

The complaint offers little more than

the conclusory assertion that the City inadequately trained and
monitored its employees.

Am. Compl. ¶ 35.

buttressing this conclusion.

It alleges no facts

These kinds of “threadbare”

conclusions are not enough to pass muster under Rule 12(b)(6).
Iqbal, 556 U.S. at 678; see also Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 324-25 (2d Cir. 2002).

Accordingly, Felix’s

claims against the City must be dismissed.
B.

State Law Claims (Counts I, II, and IV)
Because there are no federal claims remaining, the

Court will decline supplemental jurisdiction over the remaining
state law claims.

28 U.S.C. § 1367(c)(3).
10

Indeed, this is the

“usual” course when all federal claims have been dismissed at
the pleading stage.

See Pension Ben. Guar. Corp. ex rel. St.

Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt.
Inc., 712 F.3d 705, 727 (2d Cir. 2013).
dismissed without prejudice.

These claims are

See Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 & n.7 (1988).
Conclusion
For the foregoing reasons, Defendants’ motion to
dismiss the federal claims is granted in full.

The Court

declines supplemental jurisdiction over the state-law
claims.

The Clerk of the Court is respectfully directed to

close this case.

SO ORDERED.

/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated:

March 10, 2025
Brooklyn, New York

11