Moroughan v. The County of Suffolk et al
Filing
176
ORDER granting 154 Motion to Amend/Correct/Supplement For the reasons set forth herein, the Court grants plaintiffs motion to amend. Plaintiff shall file and serve the amended complaint within fourteen (14) days. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/10/2015. (Mesrobian, David)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-512 (JFB)(AKT)
_____________________
THOMAS M. MOROUGHAN,
Plaintiff,
VERSUS
THE COUNTY OF SUFFOLK, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
April 10, 2015
___________________
JOSEPH F. BIANCO, District Judge:
Thomas M. Moroughan (“plaintiff”)
brings this civil rights action pursuant to 42
U.S.C. § 1983 (“Section 1983”) and New
York law against: the County of Suffolk; the
Suffolk
County
Police
Department
(“SCPD”); SCPD Detectives Ronald
Tavares, Charles Leser, Eugene Geissinger,
Nicholas Favatta, and Alfred Ciccotto; SCPD
Detective/Sergeant William J. Lamb; SCPD
Sergeant Jack Smithers; SCPD Officers
William Meaney, Enid Nieves, Channon
Rocchio, and Jesus Faya; and Suffolk John
Does 1-10 (collectively, the “Suffolk
defendants”); the County of Nassau; Nassau
County Police Department (“NCPD”);
NCPD Sergeant Timothy Marinaci; NCPD
Inspector
Edmund
Horace;
NCPD
Commanding Officer Daniel Flanagan;
NCPD Detective/Sergeant John DeMartinis’
NCPD Officer Edward Bienz; and Nassau
John Does 1-10 (collectively, the “Nassau
defendants”); NCPD Chief of Patrol John
Hunter; and NCPD Officer Anthony D.
DiLeonardo (collectively, with the Suffolk
defendants, the Nassau defendants, and
Hunter, “defendants”). Plaintiff’s action
arises from an incident during which plaintiff
alleges DiLeonardo, while off-duty and
intoxicated, unlawfully shot and beat
plaintiff, subsequent to which defendants
allegedly conspired to violate plaintiff’s
constitutional rights by falsely arresting,
prosecuting, and imprisoning plaintiff while
shielding DiLeonardo and Bienz (who was
also present at the scene of the shooting) from
investigation or prosecution for their alleged
criminal acts.
Plaintiff presently moves to amend his
complaint, pursuant to Federal Rule of Civil
Procedure 15(a)(2), to: (a) assert a Monell
claim against the County of Nassau for an
unlawful policy and custom of falsifying
reports regarding the use of deadly force by
NCPD employees; (b) allege plaintiff’s
compliance with the notice of claim
requirements of New York General
Municipal Law § 50-e; (c) limit and specify
which defendants are subject to each
respective cause of action; and (d) allege a
cause of action against the Nassau and
Suffolk defendants for violating his right to
counsel under New York law.
stage of this litigation (with substantial
discovery
outstanding),
the
Nassau
defendants have not demonstrated prejudice
that would warrant denial of the motion.
Finally, although the Nassau defendants
argue that the amendment would be futile, the
Court disagrees; rather, the Court concludes
that the allegations in the proposed amended
complaint set forth a plausible Monell claim
arising from an alleged policy and custom of
the DFRT to cover up misconduct by NCPD
personnel by intentionally failing to
investigate incidents properly, and falsifying
reports to the NCPD commissioner by
omitting damaging evidence to support
conclusions in favor of NCPD personnel.
The Nassau defendants oppose the
aspects of the motion concerning the addition
of the Monell claim and right to counsel
claims, and the amendment of the existing
claims to limit and specify the defendants
against whom they are asserted. The bulk of
the Nassau defendants’ argument focuses,
however, on the addition of the Monell claim.
They argue that the motion to amend should
be denied because: (a) plaintiff has failed to
demonstrate good cause for the delay in
bringing his motion to amend; (b) plaintiff
has failed to demonstrate that the Nassau
defendants will not be unduly prejudiced by
the addition of the Monell claim; and (c)
plaintiff has failed to demonstrate the
proposed Monell claim is not futile, because
he failed to plead any causal connection
between the “policy and custom” alleged in
the
Monell
claim
and
plaintiff’s
constitutional injuries. The other defendants
did not file oppositions to the motion.
I.
A.
BACKGROUND
Factual Allegations
1. The February 26, 2011 Incident
The Court summarizes the following
relevant facts taken from the proposed
second amended complaint (“SAC”) for the
purposes of this opinion. These are not
findings of fact by the Court; instead, the
Court assumes these facts to be true for
purposes of deciding the pending motion.
For the following reasons, the Court
grants plaintiff’s motion to amend. As a
threshold matter, plaintiff has demonstrated
“good cause” in failing to assert a Monell
claim earlier – namely, plaintiff was not
aware of the allegations relating to other
Deadly Force Emergency Response Team
(“DFRT”) reports on officer-involved
shootings until a Newsday article was
published in November 2013. Moreover, it
was not unreasonable for plaintiff to
investigate those allegations for nine months
before seeking to amend the pleading to add
a Monell claim. For the same reasons, the
Court finds that there was no undue delay in
bringing the motion. In addition, given the
Plaintiff alleges that, while working as a
cab driver during the early morning hours of
February 26, 2011, he was driving near
Huntington Village, NY, when he was
tailgated and then cut off by two civilian
vehicles being driven erratically by NCPD
officers DiLeonardo and Bienz, accompanied
by their respective significant others.1 (SAC
¶¶ 36-46.) Plaintiff’s girlfriend was also
accompanying him as a passenger at the time.
(Id. ¶ 40.) Plaintiff later observed the two
vehicles parked on the side of the road, and
stopped to initiate a verbal confrontation with
1
Plaintiff alleges that the NCPD Internal Affairs
Bureau (“IAB”) investigation concluded that
DiLeonardo and Bienz were intoxicated, unfit for
duty, and guilty of driving while impaired by alcohol
at the time of the incident. (SAC ¶ 113.) According
to their alleged statements to IAB, Bienz and
DiLeonardo had each had approximately six to eight
alcoholic drinks earlier in the evening. (Id. ¶¶ 107-08.)
2
but the detectives denied his requests, telling
him that “suspects need lawyers, not
victims,” and that lawyers were only an
impediment. (Id. ¶¶ 76-79.) The interview
was interrupted so that plaintiff’s injuries
could be treated; after it recommenced,
plaintiff alleges he again requested to speak
to his lawyer, and was again rebuffed. (Id. ¶¶
80-82.) After the interview ended, plaintiff
allegedly asked SCPD Officer Meaney to
allow him to speak to his attorney, but
Meaney denied the request as forbidden by
his supervisors. (Id. ¶¶ 85.)
DiLeonardo and Bienz over their erratic
driving. (Id. ¶¶ 48-50.) Plaintiff alleges that,
during the verbal confrontation, DiLeonardo
and Bienz exited their vehicles, causing
plaintiff to decide to drive away in fear of his
physical safety. (Id. ¶¶ 50-52.) Plaintiff
alleges that, at some point during the verbal
confrontation, DiLeonardo unholstered a
revolver loaded with five rounds from an
ankle holster, possibly concealing it from
view by holding it at his side. (Id. ¶¶ 55-56.)
As plaintiff drove his car in reverse about
thirty to forty-five feet and initiated a U-turn,
DiLeonardo and Bienz allegedly continued to
advance on his vehicle, with DiLeonardo
positioning himself between the officers’ two
vehicles. (Id. ¶¶ 52-56.) DiLeonardo then
allegedly fired all five rounds from his
revolver at plaintiff, three of which struck the
car, and two of which hit plaintiff in his chest
and left arm. (Id. ¶ 57.) After plaintiff
stopped the car because of the shooting,
DiLeonardo then allegedly broke the cab’s
driver side window and struck plaintiff with
the butt of his revolver, breaking his nose,
and then opened the driver’s side door of
plaintiff’s cab and struck plaintiff several
times on his head. (Id. ¶¶ 60-61.) Plaintiff
then allegedly put the car in reverse and fled
the scene, driving directly to the hospital for
treatment from the attack while his girlfriend
called 911. (Id. ¶¶ 64-69.) Plaintiff alleges
that he thought he heard DiLeonardo yell that
he was a police officer while plaintiff drove
away after the shooting, but did not believe
that his attacker could be a police officer. (Id.
¶ 65.)
Several hours later, plaintiff was
interviewed by SCPD Detectives Tavares and
Leser. (Id. ¶¶ 86-87.) Plaintiff again
allegedly requested to speak to his attorney,
but the SCPD detectives told him he was not
in trouble and he did not need a lawyer, and
that if he did not speak to them immediately
without his lawyer, the assailant would go
free. (Id. ¶¶ 91-92.) Tavares and Leser then
wrote out a statement about the incident,
which plaintiff alleges contained false and
misleading facts concocted by the defendants
to support a false “confession” by plaintiff;
plaintiff alleges that he signed the statement
without reading it, relying on the detectives’
assertion that the perpetrator of the shooting
would be arrested based on the statement.
(Id. ¶¶ 93-98.) Plaintiff never spoke to his
attorney, and he alleges that he was never
read his Miranda rights. (Id. ¶ 95.) After
initialing and signing the statement, plaintiff
was arrested. (Id. ¶¶ 97-98)
3. The County of Nassau DFRT
Investigation
2. Questioning by Police at the Hospital
Plaintiff alleges that the NCPD
investigation of DiLeonardo and Bienz was
initially conducted by the NCPD DFRT, in
accordance with the NCPD’s regulations on
officer-involved shootings. (Id. ¶ 115.)
Plaintiff alleges that Horace, the initial DFRT
investigator on the scene, interviewed
Shortly after arriving at the hospital that
morning, plaintiff was questioned by
unknown NCPD detectives. (Id. ¶¶ 75-76.)
Plaintiff alleges that he told the detectives
that he did not want to speak with them at that
time and requested to speak to his attorney,
3
DiLeonardo, Bienz, and their respective
significant others (who had arrived at the
hospital shortly after plaintiff) early that
morning. (Id. ¶ 118.)2 Plaintiff alleges that
Horace and Hunter (who arrived shortly
thereafter to assist in the investigation) made
false and misleading statements to the NCPD
IAB and in the DFRT memorandum on the
incident—including that DiLeonardo and
Bienz were sober and otherwise fit for duty at
the time of the incident, and that they had
acted within departmental guidelines—all of
which the NCPD IAB allegedly later found to
be untrue. (Id. ¶¶ 118-23.) Hunter submitted
the DFRT report to the NCPD commissioner
later on the day of the incident. (See id., Ex.
H at 211-12 (DFRT Report dated Feb. 27,
2011).)
deadly force and that the officer was fit for
duty, despite evidence to the contrary, citing
several examples of incidents which were
later determined to have been unjustified in
subsequent legal proceedings. (Id. ¶¶ 195204.) Plaintiff alleges that this policy and
custom—of which the County of Nassau
allegedly was aware through numerous
complaints or lawsuits by victims, and to
which it was indifferent—led to the
conspiracy to cover up the February 26, 2011
incident, protect DiLeonardo and Bienz, and
falsely arrest and maliciously prosecute
plaintiff. (Id. at 205-14.)
B.
Procedural Background
Plaintiff commenced this action on
February 3, 2012. Plaintiff filed his first
amended complaint on October 22, 2012.
Defendant DiLeonardo answered the
amended complaint and cross-claimed on
December 17, 2012. The Suffolk defendants
answered the amended complaint and crossclaimed on December 21, 2012. The Nassau
defendants and Hunter answered the
amended complaint and cross-claimed on
January 7, 2014. Plaintiff moved to amend
again on November 18, 2014. The Nassau
defendants opposed on January 19, 2015.
Plaintiff replied on February 12, 2015. The
Court held oral argument on March 2, 2015.
The matter is fully submitted.
Plaintiff alleges that the DFRT
investigators
intentionally
failed
to
investigate and report accurate findings in
order to protect DiLeonardo and Bienz from
punishment, and to further a conspiracy to
falsely arrest and maliciously prosecute
plaintiff in order to cover up the incident and
shift the blame to him. (Id. ¶¶ 124-25.)
Plaintiff alleges that all of the DFRT
investigators later questioned by the NCPD
IAB about the incident and the investigation
“lied in sworn statements as to their
observations and actions.” (Id. ¶ 124.)
Plaintiff alleges that it was the policy and
custom of the DFRT to cover up misconduct
by NCPD personnel by intentionally failing
to investigate incidents properly, and
falsifying reports to the NCPD commissioner
by omitting damaging evidence to support
conclusions in favor of NCPD personnel. (Id.
187-94.) Plaintiff alleges that, since 2006,
the DFRT has found that every NCPD officer
involved in a shooting was justified in using
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15
applies to motions to amend the pleadings
once the time for amending a pleading as of
right has expired. “The court should freely
give leave [to amend] when justice so
requires,” Fed. R. Civ. P. 15(a); a motion to
amend should be denied “only for reasons
2
Plaintiff alleges that hospital staff noted the odor of
alcohol and impaired faculties of DiLeonardo and
Bienz that morning, and that, according to multiple
witnesses, a doctor stated that DiLeonardo was visibly
intoxicated and she wanted to draw his blood (which
he refused). (Id. at 109-11.) Plaintiff alleges multiple
NCPD and SCPD officers, including the DFRT
investigators, were aware of these observations but
intentionally withheld that information in their reports.
(Id. at 111-12.)
4
such as undue delay, bad faith, futility of the
amendment or prejudice to the other party.”
Crippen v. Town of Hempstead, No. 07-CV3478 (JFB)(ARL), 2013 WL 2322874, at *1
(E.D.N.Y. May 22, 2013); see Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122,
126 (2d Cir. 2008) (per curiam) (“[M]otions
to amend should generally be denied in
instances of futility, undue delay, bad faith or
dilatory motive, repeated failure to cure
deficiencies by amendments previously
allowed, or undue prejudice to the nonmoving party.”).3
III.
claim and plaintiff’s constitutional injuries.
The Court addresses each contention in turn.
A.
Undue Delay and Prejudice
The Nassau defendants argue that
because of plaintiff’s undue delay in making
this motion to amend, it should be denied as
untimely. The Nassau defendants rely on
Magistrate Judge A. Kathleen Tomlinson’s
issuance of a Case Management and
Scheduling Order setting deadlines in this
case on April 9, 2012 (see ECF No. 14),
which stated that the deadline to file a request
for a pre-motion conference before moving to
amend the complaint was July 18, 2012.
Plaintiff requested such a conference before
his first motion to amend. (See ECF No. 20.)
After the first amended complaint was filed
on October 12, 2012, the Nassau defendants
note that none of Magistrate Judge
Tomlinson’s subsequent orders extended the
deadline to amend the complaint; pointing to
language in the Case Management and
Scheduling Order stating that “deadlines in
this order will be enforced, and will be
modified only upon a timely showing of good
DISCUSSION
The Nassau defendants first argue that the
motion to amend should be denied because
plaintiff has failed to demonstrate good cause
for and a lack of undue prejudice caused the
delay in bringing his motion to amend. The
Nassau defendants further argue that the
Court should deny the amendment to include
a municipal liability claim against Nassau
County under Section 1983 and Monell v.
Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978), because plaintiff failed to
demonstrate the proposed Monell claim is not
futile, based on plaintiff’s purported failure to
plead any causal connection between the
“policy and custom” alleged in the Monell
3
The Nassau defendants argue that the motion should
instead be reviewed “under the more stringent
standard” of Federal Rule of Civil Procedure 16(b),
because plaintiff filed the motion after the deadline set
by Magistrate Judge Tomlinson. (Nassau County
Defs. Mem. in Opp’n (“Opp’n”), ECF No. 165, at 3.)
The Nassau defendants, however, misunderstand the
relationship between Rules 15(a) and 16(b). As the
Second Circuit elucidated in one of the cases the
Nassau County defendants cite in their brief, Kassner
v. 2nd Avenue Delicatessen, Inc., Rule 15(a)’s lenient
standard governs the amendment of pleadings, but
Rule 16(b) allows district courts the ability (but does
not require them) to deny a motion to amend if a
deadline to amend a pleading has passed and the
moving party has not demonstrated “good cause” for
the delay. 496 F.3d 229, 242-43 (2d Cir. 2007) (citing
Parker v. Columbia Pictures Indus., 204 F.3d 326,
339-40 (2d Cir. 2000)); see also Calabro v. Stone, No.
CV 2003-4522 (CBA) (MDG), 2005 WL 327547, at
*1 (E.D.N.Y. Jan. 27, 2005) (noting that, while Rule
15(a)’s liberal amendment standard should be
balanced with Rule 16(b)’s “good cause” standard for
modifying deadlines, “the Second Circuit in Parker
did not mandate that the ‘good cause’ standard
automatically apply in every case, but rather, upheld a
trial court’s discretion to deny a late application for
failing to meet the ‘good cause’ requirement under
Rule 16(b)”), report and recommendation adopted,
No. 03 CV 4522 (CBA), 2005 WL 563117 (E.D.N.Y.
Feb. 25, 2005). Therefore, the Nassau defendants’
argument that a more stringent standard necessarily
applies to the case at bar is incorrect. In any event,
plaintiff satisfies the “good cause” standard for the
reasons discussed herein.
5
cause,” they argue that this motion is,
therefore, untimely. (Opp’n at 4-5.)
delay from the publication of the article
before the motion to amend was filed.
(Opp’n at 13.) Plaintiff counters that, without
follow-up investigation by counsel on the
other officer-involved shootings and related
allegations disclosed in the article, he “could
not have asserted a substantiated and nonfrivolous Monell claim based upon the
actions of the DFRT members.” (Reply at 6.)
Because of this delay, the Nassau
defendants further argue that plaintiff “failed
to demonstrate that Opposing Defendants
will not suffer undue and extreme prejudice
if Plaintiff’s untimely, proposed amendments
are permitted to go forward.” (Id. at 15.) The
Nassau defendants argue that the motion
causes prejudice because of the delay in
bringing the Monell claim more than two
years after the deadline to amend had passed,
and almost two years after three of the four
DFRT members had been deposed by
plaintiff. (Id.) They argue that allowing the
Monell claim to go forward will “likely”
require
further
discovery,
including
additional depositions. (Id.) Finally, they
argue that plaintiff’s Monell claim is brought
in bad faith.4
The Court finds no undue delay in
bringing the motion, or prejudice to the
Nassau defendants caused by the timing of
the motion. Regardless of the deadlines set
by Magistrate Judge Tomlinson, “[m]ere
delay . . . absent a showing of bad faith or
undue prejudice, does not provide a basis for
a district court to deny the right to amend.”
State Teachers Ret. Bd. v. Fluor Corp., 654
F.2d 843, 856 (2d Cir. 1981); Commander
Oil Corp. v. Barlo Equip. Corp., 215 F.3d
321, 333 (2d Cir. 2000) (affirming grant of
motion to amend after seven-year delay,
where defendant did not show prejudice).
The
Nassau
defendants
have
not
demonstrated that plaintiff’s delay in
pleading the Monell claim was undue;
plaintiff explains that the facts alleged in his
original and first amended complaints did not
support a Monell claim, and that the Newsday
article brought new information to light. The
Nassau defendants have not provided any
basis to conclude that plaintiff possessed this
information regarding other officer-involved
shootings prior to the Newsday article.
Moreover, a nine-month period between the
publishing of the article and the motion to
amend is not unreasonable to allow for
further investigation by plaintiff before
making the motion.5
Plaintiff argues in response that he was
unable to bring his Monell claim prior to the
expiration of Magistrate Judge Tomlinson’s
deadline because he was unaware of an
alleged DFRT policy and custom before the
publication of an investigative report on the
DFRT by Newsday in November 2013, which
disclosed previously unknown DFRT reports
that allegedly covered up other officerinvolved shootings. (See, e.g. Pl.’s Reply
Mem. of Law (“Reply”), ECF No. 170, at 5.)
The Nassau defendants noted in their briefing
and at oral argument that counsel for plaintiff
was quoted in the November 17, 2013 article
on the DFRT; plaintiff responds that his
counsel’s involvement in the article was only
to discuss the facts relating to the shooting of
plaintiff, and that the article’s author drew the
connection to other officer-involved
shootings.
(Id. at 5-6.)
The Nassau
defendants assert that, even if plaintiff’s
contention is true, there was still a nine month
Furthermore, plaintiff also correctly
argues that the burden is on the party
opposing the motion to amend to demonstrate
4
5
The locus of the Nassau defendants’ “bad faith”
argument is the same as their argument that the Monell
claim is futile, which the Court addresses infra.
The Court further finds that this discovery of a
possible policy and custom involving other officerinvolved shootings (then previously unknown)
6
that it would be prejudiced by the
amendment, not on the movant. See, e.g.,
AEP Energy Servs. Gas Holding Co. v. Bank
of Am., N.A., 626 F.3d 699, 725 (2d Cir.
2010) (amendment should be allowed in the
absence of the nonmovant demonstrating
prejudice or bad faith) (citing Block v. First
Blood Assocs., 988 F.2d 344, 350 (2d Cir.
1993)). To determine whether a proposed
amendment would prejudice the nonmovant,
the Second Circuit has stated that courts
should “consider whether the assertion of the
new claim would: (i) require the opponent to
expend significant additional resources to
conduct discovery and prepare for trial; (ii)
significantly delay the resolution of the
dispute; or (iii) prevent the plaintiff from
bringing a timely action in another
jurisdiction.” Block, 988 F.2d at 350. Here,
the Nassau defendants offer no argument to
demonstrate undue prejudice other than the
possibility that discovery could be extended,
or that certain individuals on the DFRT might
have to be deposed again. (Opp’n at 14-17.)
This conclusory assertion, even if assumed
arguendo to be true, is insufficiently
prejudicial to deny the motion to amend
under the circumstances of this case, even
when combined with the potential delay in
resolving the case. See, e.g. State Farm Mut.
Auto. Ins. Co. v. CPT Med. Servs., P.C., 246
F.R.D. 143, 149 (E.D.N.Y. 2007) (finding
that “[t]he burden of conducting additional
discovery does not automatically constitute
undue prejudice,” especially when the case is
“nowhere near resolution”) (citing United
States v. Cont’l Ill. Nat. Bank and Trust Co.
of Chi., 889 F.2d 1248, 1255 (2d Cir. 1989)
(“The adverse party’s burden of undertaking
[additional] discovery, standing alone, does
not suffice to warrant denial of a motion to
amend a pleading.”)). This case is distant
from its resolution—the parties have not filed
motions for summary judgment, substantial
discovery remains to be done, and it is
unclear which individuals, if any, would need
to be re-deposed in light of the addition of the
Monell claim.
represents “good cause” for the motion being filed
after the deadline set by Magistrate Judge Tomlinson,
under Rule 16(b) and Kassner, 496 F.3d at 242-43.
6
To the extent the Nassau County defendants argue
that there was undue delay or prejudice with respect to
the other aspects of the proposed amended complaint,
i.e, limiting and specifying the defendants against
whom each claim is asserted and asserting the claim
for violation of the right to counsel, the Court
disagrees. The Nassau County defendants do not offer
any support for their opposition other than stating that
the delay in making these amendments causes them
some unspecified prejudice. (Opp’n at 14-15.) For the
same reasons the Court discussed with respect to the
Monell claim, the Court rejects this argument.
In short, the defendants have failed to
demonstrate undue delay or prejudice.6
B.
Futility
The Court next turns to the Nassau
defendants’ argument that plaintiff’s motion
to amend should be denied because the
Monell claim is “futile.” “An amendment to
a pleading is futile if the proposed claim
could not withstand a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente
v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258
(2d Cir. 2002) (citing Dougherty v. N.
Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 88 (2d Cir. 2002)); Crippen, 2013 WL
2322874, at *1 (the legal standard for
evaluating the futility of an amendment is the
same as in the context of a Rule 12(b)(6)
motion); see also Panther Partners Inc. v.
Ikanos Comm’cns, Inc., 347 F. App’x 617,
622 (2d Cir. 2009) (“Granting leave to amend
is futile if it appears that plaintiff cannot
address the deficiencies identified by the
court and allege facts sufficient to support the
claim. . . . [C]ourts may consider all possible
amendments when determining futility.”
(internal citations omitted)).
7
733–36 (1989) and Monell, 436 U.S. at 692–
94). To prove a Monell claim, a plaintiff
must show: “(1) an official policy or custom
that (2) causes the plaintiff to be subjected to
(3) a denial of a constitutional right.” Torraco
v. Port Auth. of N.Y. & N.J., 615 F.3d 129,
140 (2d Cir. 2010) (citations omitted). “The
policy or custom need not be memorialized in
a specific rule or regulation.” Kern v. City of
Rochester, 93 F.3d 38, 44 (2d Cir. 1996)
(citing Sorlucco v. N.Y. City Police Dep’t,
971 F.2d 864, 870 (2d Cir. 1992)). However,
a municipal entity may only be held liable
where the entity itself commits a wrong; “a
municipality cannot be held liable under §
1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691.
In reviewing a motion to dismiss pursuant
to Rule 12(b)(6) (and therefore a motion to
amend), the Court must accept the factual
allegations set forth in the complaint as true
and draw all reasonable inferences in favor of
the plaintiff. See, e.g., Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006);
Nechis v. Oxford Health Plans, Inc., 421 F.3d
96, 100 (2d Cir. 2005). “In order to survive a
motion to dismiss under Rule 12(b)(6), a
complaint must allege a plausible set of facts
sufficient ‘to raise a right to relief above the
speculative level.’” Operating Local 649
Annuity Trust Fund v. Smith Barney Fund
Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). This standard does not
require “heightened fact pleading of
specifics, but only enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
In this case, plaintiff alleges that the
DFRT policy or custom of falsifying reports
on officer-involved shootings, covering up
NCPD misconduct to protect officers from
sanction, and incriminating civilian victims
to shift blame from police personnel
proximately caused plaintiff’s arrest and
malicious prosecution. (See SAC ¶¶ 187214) The Nassau defendants argue, in
essence, that plaintiff’s Monell claim is futile
because he does not adequately allege a
“causal connection” (i.e. the second element
of the three laid out in Torraco) between the
alleged unconstitutional policy or custom on
the part of Nassau County and the injuries to
plaintiff here caused by his false arrest and
malicious prosecution. (Opp’n at 17-24.)
See Sarus v. Rotundo, 831 F.2d 397, 400 (2d
Cir. 1987) (“To recover against the
municipality, it must be demonstrated that the
official policy in question constitutes the
moving force of the constitutional
violation.”) (internal quotation marks
omitted). The Nassau defendants argue that
the DFRT’s alleged policy and custom is
insufficiently
related
to
plaintiff’s
constitutional injuries, i.e. the false arrest and
malicious prosecution.
The Nassau
defendants assert that, because plaintiff
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two principles for a
district court to follow in deciding a motion
to dismiss. 556 U.S. 662 (2009). First, district
courts must “identify[ ] pleadings that,
because they are no more than conclusions,
are not entitled to the assumption of truth.”
Id. at 679. “While legal conclusions can
provide the framework of a complaint, they
must be supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
Under Monell, a municipal entity may be
held liable under Section 1983 where a
plaintiff demonstrates that the constitutional
violation complained of was caused by a
municipal “policy or custom.” Monell, 436
U.S. at 694–95; Patterson v. Cnty. of Oneida,
N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (citing
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
8
“seeks to limit” his Section 1983 claims for
false arrest and malicious prosecution “as
against defendants DiLeonardo and Bienz
only,” an administrative report prepared by
the DFRT for the NCPD commission
regarding the conduct of the NCPD officers
after the shooting occurred could not be
related to the arrest and prosecution of
plaintiff in Suffolk County. (Opp’n at 2223.) The Nassau defendants stress that
plaintiff does not allege that anyone from
Suffolk County saw or relied on the DFRT
report, only that allegedly false statements by
DiLeonardo and Bienz supported the Suffolk
County defendants’ arrest and prosecution of
plaintiff; therefore, they argue, plaintiff has
failed to plead a causal connection between
the purported policy or custom of the DFRT
and plaintiff’s constitutional injuries. (Id.)
(Id.) Plaintiff alleges that if the DFRT had
accurately summarized the evidence in its
report filed with the NCPD commissioner on
the day of the incident—rather than operating
under its policy or custom of shielding
officers from sanction by falsifying
investigations—plaintiff would not have
been charged with two offenses and
subjected to a malicious prosecution lasting
over three months, or at least the charges
would have been dismissed immediately.
(Id. ¶ 212.) At this early stage in the litigation
where the Court accepts the factual
allegations set forth in the complaint as true
and draws all reasonable inferences in favor
of the plaintiff, these allegations clearly and
plausibly allege causation between (a) the
DFRT’s alleged policy or custom of
inadequately investigating officer-involved
shootings and submitting false reports to
shield the officers from punishment; (b) the
investigation of DiLeonardo and Bienz for
the incident involving plaintiff; and (c) the
subsequent prosecution of plaintiff for that
incident by Suffolk County.7
The Court finds the Nassau defendants’
argument entirely unpersuasive. Plaintiff
alleges in the proposed SAC that, among
other things, the DFRT investigators
conspired with DiLeonardo, Bienz, and the
Suffolk County defendants to shield
DiLeonardo and Bienz from civil and
criminal sanctions by fabricating the
investigation of the incident and withholding
evidence (particularly of the officers’
intoxication).
(SAC ¶ 209-11.)
This
conspiracy, plaintiff alleges, resulted in the
obfuscation of the officers’ true role in
precipitating the shooting, leading to the
arrest and malicious prosecution of plaintiff.
Therefore, plaintiff’s proposed SAC
alleges a policy or custom on the part of
Nassau County which proximately caused his
constitutional rights to be violated.
Accordingly, it would not be futile to amend
the complaint to include the Monell claim,
and no other grounds exist to deny leave to
amend.8
7
The Nassau defendants also argue that this alleged
policy and custom could not have caused plaintiff’s
constitutional injuries because the regulation under
which the DFRT operates (“ADM 1221”) does not
require the DFRT to: (a) investigate officer-involved
shootings that occur outside Nassau County; (b) report
findings to anyone other than the NCPD
commissioner; (c) conduct an ongoing investigation of
the shooting after the submission of the preliminary
report, or make any amendments to that report’s
conveyance of the “basic information regarding the
shooting incident.” (Opp’n at 23.) This argument is
unavailing for the same reasons as discussed supra;
regardless of the limitations under which defendants
assert the DFRT operated, plaintiff’s allegations (if
proven) could support a reasonable inference that, if
the DFRT investigators had accurately reported the
facts to the NCPD commissioner in the preliminary
report, the NCPD commissioner would have shared
that information with the Suffolk County authorities
and either prevented or curtailed plaintiff’s alleged
malicious prosecution. Thus, plaintiff has plausibly
alleged causation.
8
The Nassau defendants also make a cursory argument
that somehow the Monell claim regarding the
preparation of the DFRT report “does not relate back
9
IV.
CONCLUSION
Marion Epstein & Kearon LLP, 666 Old
Country Road, Suite 700, Garden City, NY
11530. Hunter is represented by Francis
Schroeder and Laura Endrizzi of Congdon,
Flaherty, O'Callaghan, Reid, Donlon, Travis,
333 Earle Ovington Boulevard, 5th Floor,
Uniondale, NY 11553.
For the foregoing reasons, the Court
grants plaintiff’s motion to amend. Plaintiff
shall file and serve the amended complaint
within fourteen (14) days.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
April 10, 2015
Central Islip, NY
***
Plaintiff is represented by Anthony
Grandinette and Mirel Fisch of The Law
Office of Anthony M. Grandinette, 114 Old
Country Road, Suite 420, Mineola, NY
11501. The Nassau defendants are
represented by Christopher Clarke, Peter
Johnson, and Joanne Filiberti of Leahey &
Johnson, 120 Wall Street, Suite 2220, New
York, NY 10005, and Liora Ben-Sorek and
Michael Ferguson of the Nassau County
Attorney’s Office, One West Street, Mineola,
NY 11501. The Suffolk defendants are
represented by Brian C. Mitchell of the
Suffolk County Department of Law - County
Attorney, 100 Veterans Memorial Highway,
P.O. Box 6100, Hauppauge, NY 11788.
DiLeonardo is represented by Amy Marion,
Bruce Barket, and Kevin Kearon of Barket
to the original complaint,” and therefore is barred on
statute of limitations grounds. (Opp’n at 24.) The
Court, however, does not find this argument to be
persuasive because: (a) the Nassau defendants do not
argue that the Monell claim did not arise out of the
conduct alleged in the original or first amended
complaints, and indeed could not so argue because
even in the original complaint plaintiff alleged facts
sufficient to provide notice to defendants of the
conduct out of which the Monell claim arises,
including that some defendants “submitted false
reports regarding the foregoing events to avoid
criminal, civil, and administrative responsibility for
the mistreatment, false arrest, and injuries to
Moroughan” (Compl., ECF No. 1, ¶ 103); and (b) the
Nassau defendants only cite one case, Weinstein v.
Garden City Union Free Sch. Dist., No. 11-CV-2509
(AKT), 2013 WL 5507153 (E.D.N.Y. Sept. 30, 2013),
in support of their argument, which upon review
appears to be inapposite. Thus, the Court also rejects
this argument and concludes the Monell claim clearly
relates back to the original complaint.
10
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