Calicchio et al v. Sachem Central School District et al
Filing
24
ORDER re [22,23]: The motion of District Defendants is (1) granted as to the Thirteenth Amendment claim, with leave to replead; (2) granted on the claim of negligent infliction of emotional distress; (3) granted as to the District on the claim of in tentional infliction of emotional distress but denied on that claim as to the Individual District Defendants; (4) granted on the claim of malicious prosecution, with leave to replead; (5) denied as to the Monell due process claim against the D istrict. The motion of the County Defendants is granted, with leave to replead only the Monell claim against the County. As to those claims for which leave to replead has been granted, any amended complaint must be filed with twenty (20) days. Ordered by Judge Denis R. Hurley on 5/5/2016. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
MATTHEW CALICCHIO, SANDRA CALICCHIO,
and MICHAEL CALICCHIO,
Plaintiffs,
-against-
MEMORANDUM & ORDER
14-CV-5958 (DRH) (SIL)
SACHEM CENTRAL SCHOOL DISTRICT, LISA
JOHNSON, JOHN DOLAN, ANDREW LARSEN,
JACK RENDA, KAREN MOTT, THE SUFFOLK
COUNTY POLICE DEPARTMENT, THE
COUNTY OF SUFFOLK, and JOHN DOES
number 1-15,
Defendants.
---------------------------------------------------------------X
APPEARANCES:
SCOTT LOCKWOOD, ESQ.
Attorney for Plaintiffs
1476 Deer Park Ave.
Suite 3
North Babylon, New York 11703
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendants Sachem Central School District,
Lisa Johnson, John Dolan, Andrew Larsen, Jack Renda,
and Karen Mott
50 Route 111
Smithtown, New York 11787
By: Joshua S. Shteierman, Esq.
Jeltje deJong, Esq.
DENNIS M. BROWN, SUFFOLK COUNTY ATTORNEY
Attorneys for Defendants The Suffolk County Police
Department and The County of Suffolk
H. Lee Dennison Building
100 Veterans Memorial Highway
Hauppauge, New York 11788
By: Arlene S. Zwilling, Assist. County Attorney
HURLEY, Senior District Judge:
Plaintiffs Matthew Calicchio (“Matthew” or “Plaintiff”), Sandra Calicchio and
Michael Calicchio commenced this action against defendants Sachem Central
School District (the “District”), Lisa Johnson (“Johnson”), John Dolan (“Dolan”),
Andrew Larsen (“Larsen”), Jack Renda (“Renda”), Karen Mott (“Mott”) (Johnson,
Dolan, Larsen, Renda, and Mott are collectively referred to as “Individual District
Defendants”)(District and Individual District Defendants are collectively referred to
as “District Defendants”), the Suffolk County Police Department (“SCPD”) and the
County of Suffolk (the “County”)(SCPD and the County are collectively referred to
as the “County Defendants”) alleging, inter alia, claims pursuant to 42 U.S.C. §
1983 for violations of the Fourth, Thirteenth and Fourteenth Amendments, together
with various state law claims.
Presently before the Court is (1) the motion of the District Defendants to
dismiss the first, fifth, seventh, eighth and ninth causes of action and the District’s
motion to dismiss the Monell claims (contained in the first and fourth causes of
action); and (2) the motion of the County Defendants to dismiss the twelfth cause of
action. For the reasons set forth below, the District’s motion is granted in part and
denied in part and the County’s motion is granted.
2
BACKGROUND
The following allegations are taken from the Amended Complaint (“AC”).1
During the years 2010 through 2013, Matthew was a student in the District.
AC at ¶ 20. During this time period, the Individual District Defendants “required”
Matthew to perform work for the District consisting of “working on the computer
system, the computer network and security for computers” for the District. Id. at ¶¶
22-23. Matthew “was repeatedly removed from his classroom learning environment
and from his lunch period and was forced [to] perform” this “uncompensated work.”
Id. at ¶¶ 24-25. Matthew was told by Assistant Principal Larson “that if he did not
do the work they wanted him to do on the computers that he would have him
arrested by the FBI, and the FBI would raid his house.” Id. at ¶ 26. Principal Dolan
told Matthew that if he did not do the work “they would have him expelled from
school.” Id. at ¶ 27. When Matthew stopped working on the District computer, “the
Defendants had him expelled from school and had him arrested.” Id. at ¶ 28.2
Matthew was forced to perform this work without his parents’ permission and in
fact Matthew was ordered by the Individual Defendants not to tell his parents
1
By Order dated October 13, 2015, the Court granted, in part, a motion to
dismiss by the District. Specifically the Court dismissed plaintiffs’ Thirteenth
Amendment claim and the Monell claims against the District with leave to replead.
Familiarity with that decision is presumed.
2
It is also asserted the District “had been alleged to have serious security
flaws in its computer system” several years prior to November 2013 and those flaws
became public knowledge. AC at ¶¶ 75-76. “[I]n order to hide the problems with
their security system, [the District] had [Matthew] arrested and charged with
various crimes, including computer trespass.” Id. at ¶ 77.
3
about this “forced’ work. Id. at ¶¶ 106-07, 112-13. In November 2013, Matthew who
was born on August 10, 1996 and “eligible for compulsory education,” was expelled
from the District without notice and an opportunity to be heard and was not
“afforded an opportunity for a hearing on the continued eligibility of himself for
attendance and instruction.” Id. at ¶¶ 34, 55-62.
At some unspecified time, the District caused a knowingly false criminal
complaint to be lodged resulting in Matthew being “arrested and charged with the
crimes of Computer Trespass and Unlawful Duplication of Computer Material.” Id.
at ¶¶ 65-66, 78. In addition, the District reported to various news sources that
Matthew “had ‘illegally accessed student records,’ had ‘hacked into’ the computer
system, and committed an act of ‘computer trespass.’ ” Id. at ¶ 67.
The County Defendants had Matthew “go through a ‘perp walk’ for the
media. After the initial perp walk, “a second ‘perp walk’ was again staged so that
the media could get a better view” of Matthew. These perp walks were staged
“solely for the benefit of the media and for no legitimate police purpose.” Id. at ¶¶
99-101.
As relevant to the instant motions, Matthew asserts § 1983 claims premised
on the Thirteenth Amendment against the District Defendants (the first cause of
action), the Due Process Clause of the Fourteenth Amendment against the District
(the fourth cause of action) and the Fourth Amendment against the County (the
twelfth cause of action), as well as state law claims against the District Defendants
4
for malicious prosecution (the fifth and seventh causes of action), intentional
infliction of emotional distress (the eighth cause of action) and negligent infliction of
emotional distress (the ninth cause of action).
DISCUSSION
I.
Motion to Dismiss Standard
In deciding a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a court should “draw all reasonable inferences in Plaintiff[‘s] favor, assume
all well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility
standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009).
First, the principle that a court must accept all allegations as true is
inapplicable to legal conclusions. Thus, “threadbare recitals of the elements of a
cause of action supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Although “legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. A plaintiff must provide
facts sufficient to allow each named defendant to have a fair understanding of what
the plaintiff is complaining about and to know whether there is a legal basis for
recovery. See Twombly, 550 U.S. at 555.
5
Second, only complaints that state a “plausible claim for relief” can survive a
motion to dismiss. Iqbal, 556 U.S. at 679. “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. The plausibility
standard is not akin to a ‘probability requirement,’ but asks for more than a sheer
possibility that defendant acted unlawfully. Where a complaint pleads facts that are
"merely consistent with" a defendant's liability, it ‘stops short of the line between
possibility and plausibility of 'entitlement to relief.' ” Id. at 678 (quoting Twombly,
550 U.S. at 556-57) (internal citations omitted); see In re Elevator Antitrust Litig.,
502 F.3d 47, 50 (2d Cir. 2007). Determining whether a complaint plausibly states a
claim for relief is “a context specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679; accord Harris,
572 F.3d at 72.
II.
The Thirteenth Amendment Claim Against the District Defendants
In its October 13, 2015 Memorandum (“October Memorandum), this Court
dismissed Matthew’s Thirteenth Amendment Claim, with leave to replead, because
of the absence of factual allegations to support a claim of involuntary servitude.
Specifically, the Court held that the bare allegation that Matthew was “forced” to
perform work on the District’s computer was insufficient because of the absence of
any allegation that Matthew was forced “by the use or threat of physical restraint
or physical injury, or by the use or threat of coercion through law or the legal
process.” In addition, given that Matthew had available choices and given the
6
absence of any particularized facts concerning the extent, nature, and conditions of
the work Matthew was allegedly forced to perform, the claim of involuntary
servitude lacked plausibility.
District Defendants argue that the Amended Complaint fails to correct these
deficiencies. Specifically, they assert that the allegations that Matthew was forced
to work under threat of expulsion from school and that he would be arrested by the
FBI if he did not perform the work are insufficient citing United States v. Shackney,
333 F.2d 475, 486-86 (2d Cir. 1964) and McGarry v. Pallito, 687 F.3d 505, 511 (2d
Cir. 2012). Dist. Defs’ Mem. at 5-6. Additionally, the Amended Complaint “does not
speak to the extent of the work Matthew was forced to perform, the hours he spent
working on the computers, the conditions he was allegedly faced with, nor does it
allege that plaintiff did not want to perform this work.” Id. at 6. In response,
plaintiff, citing United States v. Kozminski, 487 U.S. 931 (1988) and Immediato v.
Rye Neck School Dist., 73 F.3d 454 (2d Cir. 1996), maintains that given the
exploitative nature of the allegations, plaintiff’s age and that he was “taken out of
his required classes” and told not to discuss what he what he was doing with his
parent, his involuntary servitude claim is plausible. Pl.’s Mem. in Opp. to District
at 2-6.
The amended complaint fails to address the deficiencies noted by this Court
in its October Memorandum. Quite simply, the allegations that Matthew was
threatened with expulsion and that he would be arrested by the FBI, are
insufficient to plausibly allege that he was forced to work for the defendant “by the
7
use or threat of physical restraint or physical injury, or by the use or threat of
coercion through law or the legal process.” Kozminski, 487 U.S. at 952.
There are no allegations that Matthew was subject to the use or threat of
physical restraint or injury. That threats may have been made that Matthew would
be expelled and that he would be arrested by the FBI are insufficient, without
further facts, to constitute the use or threat of coercion through law or legal process.
Most of the cases which have upheld Thirteenth Amendment claims of
involuntary servitude based on the use or threat of coercion through law or legal
process involve a credible threat of imprisonment. For example, in McGarry v.
Pallito, 687 F.3d 505 (2d Cir. 2012), the Court held that a pre-trial detainee’s
allegation that his work in the prison laundry was compelled and maintained by the
use and threatened use of physical and legal coercion had plausibly alleged a claim
under the Thirteenth Amendment. Id. at 511.
[Plaintiff] supports his allegations with well-pleaded facts
that the defendants threatened to send him to “the hole”
if he refused to work and that he would thereby be
subjected to 23 hour-per-day administrative confinement
and shackles. These allegations plausibly allege “threats
of physical restraint or physical injury within the
meaning of Kozminski. . . . Likewise, [Plaintiff] also
plausibly alleges facts supporting his assertion that
defendants coerced him through legal process by
threatening him with DRs [i.e. disciplinary reports],
which are alleged to be taken into consideration when
making recommendations for a release date and,
therefore lengthen any period of incarceration.
Id. at 511-12. Similarly, in United States v. Reynolds, 235 U.S. 133, 146, 150 (1914),
the Court found involuntary servitude in a criminal surety system whereby a
8
misdemeanant contracted to work for a surety in exchange for the surety's payment
of the fine, subject to criminal penalties should the misdemeanant fail to fulfill the
labor contract. In Pollock v. Williams, 322 U.S. 4, 5, 25 (1944), the Court held that
subjecting debtors to prosecution and criminal punishment for failing to perform
services for which money had been received in advance violates the prohibition
against involuntary servitude. On the other hand, the Second Circuit in United
States v. Shackney, 333 F.2d 475, 486 (1964), held while “[a] credible threat of
deportation might well constitute such duress as to invalidate any agreement made
under its influence,” threats “to have the employee sent back to the country of his
origin, at least absent circumstances which would make such deportation
equivalent to imprisonment or worse” insufficient to support involuntary servitude.
Id. at 485; see also id. at 486 (involuntary servitude includes servitude created “by a
credible threat of imprisonment”).
As the Second Circuit further explained in Immediato
In application, courts have consistently found the
involuntary servitude standard is not so rigorous as to
prohibit all forms of labor that one person is compelled to
perform for the benefit of another. The Thirteenth
Amendment does not bar labor that an individual may, at
least in some sense, choose not to perform, even where the
consequences of that choice are “exceedingly bad.”
[Shackney, 333 F.2d] at 486; see also Watson v. Graves,
909 F.2d 1549, 1552 (5th Cir.1990). For example, a state
may require an attorney to work pro bono, United States
v. 30.64 Acres of Land, 795 F.2d 796, 800–01 (9th
Cir.1986) (attorney may, in the alternative, choose not to
practice law), or a doctor who has accepted scholarship
funds to perform pro bono services, United States v.
9
Redovan, 656 F.Supp. 121, 128–29 (E.D.Pa.1986), aff'd,
826 F.2d 1057 (3d Cir.1987) (doctor may choose to pay
damages for breach of contract). The government may
also require the performance of “civic duties” such as
military service, Selective Draft Law Cases, 245 U.S. 366,
390, 38 S.Ct. 159, 165, 62 L.Ed. 349 (1918), jury duty, see
Hurtado v. United States, 410 U.S. 578, 589 n. 11, 93
S.Ct. 1157, 1164 n. 11, 35 L.Ed.2d 508 (1973), and upkeep
of local public roads, Butler, 240 U.S. at 333, 36 S.Ct. at
259–60, without trenching upon the Thirteenth
Amendment.
73 F.3d at 459.
What is required is a “contextual approach.” Id. at 60. In other words, this
Court must determine whether, taking “as a whole the set of conditions existing” in
the imposition of requiring Matthew to work on the District computers, Matthew
has plausibly alleged that he was in a condition of involuntary servitude. Absent
further factual assertions, impermissible involuntary servitude has not been
plausibly alleged.
Here, there is an absence of specific factual allegations concerning how often
Matthew was “pulled out of” his academic schedule, the number of hours he spent
working on the District computers, the conditions he faced, and the nature of the
work he was forced to perform. Also absent are specifics such as when and how
often he was threatened with expulsion and/or arrest. Without such factual
assertions, the Thirteenth Amendment claim is not plausible.
The motion to dismiss the Thirteenth Amendment claim is granted, with
leave, once again, to amend the complaint.
10
II.
The Monell Claims against the District
In its October Memorandum, the Court dismissed the Monell3 claims against
the District as the Complaint “was devoid of any allegations regarding [the alleged
administrators’] titles or duties vis a vis the claims at issue to make plausible the
claim that the District is liable under Monell because these defendants are final
decisionmakers.” October Memorandum at 22.
In the Amended Complaint it is asserted that Dolan is the principal of
Sachem High School North and Larsen is the Assistant Principal. No further
factual modifications were made from the original Complaint vis a vis the Monell
claims.
Asserting that the “amended complaint suffers from the same defect [the]
Complaint did, namely that it is devoid of any allegations that Larsen and Dolan
are final decisionmakers with respect to the claims at issue” the District again
moves for dismissal of the Monell claims. Defs.’s Mem. at 7. Opposing the motion,
plaintiff asserts that the principal and assistant principal are policy makers for
present purposes citing various New York regulations which he claims “imbue[]
both the principal and the assistant principal with discretionary rule making
authority” and that he has set forth specific facts which show the personal
3
In Monell v. Dept. of Social Servs., 436 U.S. 658, 692-94 (1979), the Supreme
Court enunciated the now familiar rule that local governments cannot be held liable
for constitutional violations under a theory of respondeat superior; in order to
establish municipal liability the constitutional deprivation must arise from a
governmental policy or custom.
11
involvement of [] Dolan and Larson in making the policy determinations with
respect to [Matthew]. Pls.’s Mem. in Opp. to District at 7-9. In its reply the District
counters that “generalized statements of the job responsibilities of a principal or
assistant principal do not in any way establish that Dolan and Larsen were final
policymakers with respect to the particular conduct challenged” here. Defs.’s Reply
at 4.
As set forth in the October Memorandum, to show a policy, custom, or
practice for purposes of Monell, the plaintiff need not identify an express rule or
regulation. October Memorandum at 20 (citing Patterson v. Cnty. of Oneida, 375
F.3d 206, 226 (2d Cir. 2004)). Rather, the existence of a municipal policy or custom
may be plead in any of four ways. A plaintiff may allege (1) the existence of a
formal policy which is officially endorsed by the municipality; (2) actions taken or
decisions made by municipal officials with final decision making authority, which
caused the alleged violation of plaintiff’s civil rights; (3) a practice so persistent and
widespread that it constitutes a custom of which constructive knowledge can be
implied on the part of policymaking officials; or (4) a failure by policy makers to
properly train or supervise their subordinates, amounting to deliberate indifference
to the rights of those who come in contact with municipal employees. Giscombe v.
New York City Dept. of Educ., 2013 WL 829127, * 7 (S.D.N.Y. Feb. 28, 2013) (citing
Bektic-Marrero v. Goldberg, 850 F. Supp. 2d 418, 430 (S.D.N.Y. 2012);
Zambrano–Lamhaouhi v. New York City Bd. of Educ., 866 F. Supp. 2d 147, 175
12
(E.D.N.Y. 2011); Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263,
266 (N.D.N.Y. 2000)).
Here, there is no claim of the existence of a formal policy, persistent practice,
or failure to train or supervise. Rather, plaintiff seeks to hold the District liable for
actions taken by the principal and assistant principal asserting they had final
decision making authority.
Whether the principal or assistant principal generally has final policy
making authority is not the inquiry; “rather, the court must specifically determine
whether the government official is a final policymaker with respect to the particular
conduct challenged in the lawsuit.” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d
Cir. 2008); accord Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)
(“Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.) In other
words, “municipal liability under § 1983 attaches where - and only where - a
deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy with
respect to the subject matter in question.” Id. at 483–84 (citing Oklahoma City v.
Tuttle, 471 U.S. 808, 823 (1985)).
In the present case there are two claims asserted against the District
pursuant to Monell - the Thirteenth Amendment involuntary servitude claim and
the Due Process claim. Given the Court’s dismissal of the Thirteenth Amendment
13
claim, it is unnecessary, at this juncture, to address whether plaintiff has plausibly
alleged Monell liability on that claim. The Court will therefore confine its
discussion to the Due Process claim.
The Due Process claim is grounded on the allegations that Matthew was
expelled from the District in November 2013 (for being absent from school 20
consecutive days)4 without being afforded an opportunity for a hearing on his
continued eligibility for attendance and instruction under New York’s compulsory
education law. As detailed in the Court’s October Memorandum, Matthew states a
claim for denial of due process because N.Y. Educ. Law § 3202(1-a), the provision
under which Matthew was removed from the rolls of the District, provides for a
procedure that Matthew alleges was not followed. With respect to that procedure,
the statute provides:
The principal or superintendent shall schedule and notify,
in writing and at the last known address, both the
student and the person in parental relation to the student
of an informal conference. At the conference the principal
or superintendent shall determine both the reasons for
the pupil's absence and whether reasonable changes in
the pupil's educational program would encourage and
facilitate his or her re-entry or continuance of study. The
pupil and the person in parental relation shall be
informed orally and in writing of the pupil's right to
re-enroll at any time in the public school maintained in
the district where he or she resides, if otherwise qualified
under this section. If the pupil and the person in parental
relationship fail, after reasonable notice, to attend the
informal conference, the pupil may be dropped from
4
See Shteierman Aff. Ex. B (DE 11-3) (letter advising Plaintiff he was being removed
from rolls of the District for 20 consecutive absences).
14
enrollment provided that he or she and the person in
parental relation are notified in writing of the right to
re-enter at any time, if otherwise qualified under this
section.
N.Y. Educ. Law § 3202(1-a). As Education Law § 3202(1-a) specifically confers final
authority upon a principal with respect to removal of a student due to 20
consecutive absences, the principal’s actions are sufficient to state a claim for
Monell liability. Cf. Roe, 542 F.3d at 37 (“”Whether an official has final
policymaking authority is a legal question, determined on the basis of state law.”);
Lovell v. Comsewogue Sch. Dist., 214 F. Supp. 2d 319, 324 (E.D.N.Y. 2002) (holding
that because the plaintiff contended that defendant principal “was responsible for
the investigation into the students' false sexual harassment complaint and he failed
to take action in response to her complaints of sexual harassment” the plaintiff
“c[ould] proceed under the theory that [the principal's] conduct ... represents official
policy” of the school district).
The motion to dismiss the Due Process claim against the District is denied.
III.
The State Law Claims Against the District Defendants
District Defendants move to dismiss the state law claims for malicious
prosecution, intentional infliction of emotional distress, and negligent infliction of
emotional distress. The Court will address these claim seriatim.
A.
Malicious Prosecution
Plaintiff’s claims for malicious prosecution (the fifth and seventh causes of
action) are premised on allegations that the District, acting with “actual malice”
15
caused a false criminal complaint to be lodged against Matthew causing him to be
arrested and charged with the crimes of Computer Trespass and Unlawful
Duplication of Computer Material and reported to new sources that Matthew had
hacked into the computer system and illegally accessed student records. AC at ¶¶
65-69. The motive for having Matthew arrested and charged was to hide the
security flaws in the District’s computer system. Id. at ¶¶ 75-77.
New York law “places a heavy burden on malicious prosecution plaintiffs,
requiring that they establish four elements: (1) the commencement or continuation
of a criminal proceeding by the defendant against the plaintiff, (2) the termination
of the proceeding in favor of the accused, (3) the absence of probable cause for the
criminal proceeding and (4) actual malice.” Smith-Hunter v. Harvey, 95 N.Y.2d 191,
195 (2000) (internal quotation marks omitted); accord Rothstein v. Carriere, 373
F.3d 275, 282 (2d Cir. 2004); Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d
Cir. 2000).
The District asserts that the amended complaint is deficient as to the first
and second elements. Specifically, with respect to the commencement of a criminal
proceeding, that the District is alleged to have provided incriminating information
to the police is insufficient; rather, Plaintiff was required to set forth facts that
would amount to “affirmatively inducing the police to act” such as “procuring” the
arrest or “showing active, officious and undue zeal.” Dist. Mem. at 9 (citing
DuChateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128, 688 N.Y.S.2d 12
(1st Dept. 1999) and Robles v. City of New York, 104 A.D.3d 829, 961 N.Y.S.2d 533
16
(2d Dept. 2013)). As to the second element, the District points to the lack of any
allegations that the criminal charges were terminated in Matthew’s favor. Id. In
response, plaintiff maintains that the District has conceded the sufficiency of the
malicious prosecution claim because of the District argument that the intentional
infliction of emotional distress claim falls with the ambit of other traditional tort
liability, specifically slander and malicious prosecution.
The factual recitations in the complaint plausibly assert that the District
intentionally gave false information to the police resulting in the criminal charges
and therefore was not a mere civilian complainant but rather affirmatively induced
the police to act. See Brown v. Nassau County, 306 A.D.2d 303, 760 N.Y.S.2d 655,
655-56 (2d Dept. 2003) (rejecting claim that defendant was a mere civilian as there
were issues of fact as to whether she intentionally provided false evidence to the
police); see also Stampf v. Long Island R.R. Auth., 2010 WL 2517700, *10 (E.D.N.Y.
June 14, 2010) (holding that although the mere reporting of a crime to the police
and giving testimony are insufficient to support liability, “an individual who
provides false information to the police or prosecutor may be held liable for
malicious prosecution”). Thus, the first element of a malicious prosecution claim has
been adequately pled.
The complaint is deficient, however, as it does not allege that the criminal
prosecution has been terminated in Matthew’s favor.5 Accordingly, the claim for
5
The Court rejects plaintiff’s argument that the District conceded the
sufficiency of the malicious prosecution claim. As is noted later in this opinion,
17
malicious prosecution is dismissed. To the extent that plaintiff is able to allege that
there was a final termination of the criminal proceeding that is not inconsistent
with innocence, see Rothstein, 373 F.3d at 286-87; Cantalino v. Danner, 96 N.Y.2d
391, 396 (2001); Smith-Hunter, 95 N.Y.2d at 198-99, he may amend his complaint.
B.
Intentional and Negligent Infliction of Emotional Distress
In New York, the tort of intentional infliction of emotional distress has four
elements: “(1) extreme and outrageous conduct, (2) intent to cause severe emotional
distress, (3) a causal connection between the conduct and the injury, and (3) severe
emotional distress.” Bender v. City of N.Y., 78 F.3d 787, 790 (2d Cir.1996). The
elements of an action for negligent infliction of emotional distress are a “breach of a
duty owed to [the] plaintiff which exposes him or her to an unreasonable risk of
bodily injury or death.” Castanza v. Town of Brookhaven, 700 F. Supp. 2d 277, 293
(E.D.N.Y. Mar. 22, 2010). Extreme and outrageous conduct is also an element of
negligent infliction of emotional distress. Franco v. Diaz, 51 F. Supp. 3d 235
(E.D.N.Y. 2014). To the extent that these causes of action are based on conduct
encompassed by traditional torts such as false imprisonment, malicious prosecution,
and slander, there are precluded by New York law, even if the alleged conduct falls
short of the traditional tort. Demosthene v. City of New York, 2015 WL 5093116, *
26 (E.D.N.Y. June 26, 2015) (Report and Recommendation, adopted by Order dated
Aug. 28, 2015). Additionally, “ ‘public policy bars claims for intentional infliction of
claims for infliction of emotional distress that fall within the ambit of traditional
torts are precluded even if the alleged conduct falls short of the traditional tort.
18
emotional distress against a governmental entity.’ ” Burbar v. Incorporated Village
of Garden City, 961 F. Supp. 2d 462, 474 (E.D.N.Y. 2013); accord Frederique v.
County of Nassau, – F. Supp. 3d –, 2016 WL 1057008, *17 (E.D.N.Y. Mar. 11, 2016);
Shahzad v. County of Nassau, 2013 WL 6061650, *8 (E.D.N.Y. Nov. 14, 2013).
Here, plaintiff asserts claims for intentional infliction of emotional distress
against the District and the Individual District Defendants based not only the
initiation of criminal proceeding and alleged slanderous statements but on the
allegations concerning his being “repeatedly” pulled from class and forced to work
on the District’s computer system without compensation. While these assertions are
insufficient, without more, to state a claim for involuntary servitude, they
nonetheless are sufficient as this stage to assert conduct intolerable in a civilized
society.
The cases relied upon by District Defendants are not to the contrary. In both
Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169, 182, 548 N.Y.S.2d 513 (2d
Dept. 1999) and Owen v. Leventritt, 174 A.D.2d 471, 471 (1st Dept. 1991) the
plaintiffs relied solely on statements to support their claim of intentional infliction
of emotional distress. In Leibowitz there were alleged religious and ethnic slurs and
in Owen an alleged death threat. Here, there was more than threatening
statements; as alleged in the complaint, threatening statements were made by
persons in positions of authority to plaintiff, a minor, and plaintiff was pulled out of
class and forced to work on the District’s computers for free; when Matthew stopped
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working on the computers the District Defendants had him expelled from school
and had him arrested. While the allegations as they currently stand may be
insufficient to state a claim for involuntary servitude, they do, in this Court’s
opinion, constitute intolerable conduct sufficient to state a claim for intentional
infliction of emotional harm against the Individual District Defendants. The claim
of intentional infliction of emotional harm as against the District is dismissed given
such a claim is barred by public policy. See cases cited supra.
The claim of negligent infliction of emotional harm against both the District
and the Individual District Defendants is dismissed given the absence of facts
which plausibly assert that plaintiff’s physical safety was endangered or that he
plausibly feared for his physical safety. See Alexiadis v. N.Y. College of Health
Professions, 891 F. Supp. 2d 418, 436 (E.D.N.Y. 2012).
The Court now turns to the County Defendants’ motion to dismiss.
IV.
The County Defendants’ Motion
The Amended Complaint contains a single cause of action against the County
Defendants: when he has arrested on November 23, 2013, Suffolk County police
officers has him twice go through a staged “perp walk” in violation of his Fourth
Amendment rights under the United States Constitution and his rights under the
New York State Constitution. AC ¶¶ 99-101.
A.
Summary of the Parties’ Arguments
County Defendants move to dismiss these claims arguing there is no
allegation that the alleged Fourth Amendment violations were caused by a custom
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or policy of the County. Further, the state constitutional claim should be dismissed
because no notice of claim was filed as required by N.Y. Gen. Mun. Law §50 et seq.
Finally, County defendants note that the SCPD is an agency of the County and thus
it is not a proper defendant. County Mem. at 1.
Plaintiff responds that the law is well settled that “staged perp walks, solely
for the media and with no legitimate law enforcement purpose are a violation of an
individual’s constitutional rights, and proceeds to list five references to 2015 local
(i.e. Suffolk County) news footage which he claims “indicate[] that a ‘perp walk’ is a
well entrenched custom within the Suffolk County Police Department.” Citing the
precept that leave to amend should be freely granted, Plaintiff ends his Monell
argument with a request leave to amend the Monell claim. Pl.’s Mem. in Opp. to
County at 1-3. Plaintiff concedes that any state tort claim is barred by the failure to
comply with New York’s notice of claim requirement. Id. at 3.
Noting that only staged walks that serve no legitimate law enforcement
purpose are unconstitutional perp walks, the County replies that nothing in the
footage indicates whether the officers depicted have a legitimate law enforcement
purpose and the events depicted were subsequent to plaintiff’s arrest.
B.
The Claims against the SCPD
The Court dismisses the claim against the Suffolk County Police Department
because as a municipal agency it has no separate identity from the County and
therefore it is not a proper defendant. See Martinez v. County of Suffolk, 999 F.
Supp. 2d 424, 429 (E.D.N.Y. 2014).
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C.
The Monell Claim Against the County
As discussed earlier in this Memorandum, to show a policy, custom, or
practice for purposes of Monell a plaintiff may allege (1) the existence of a formal
policy which is officially endorsed by the municipality; (2) actions taken or decisions
made by municipal officials with final decision making authority, which caused the
alleged violation of plaintiff’s civil rights; (3) a practice so persistent and widespread
that it constitutes a custom of which constructive knowledge can be implied on the
part of policymaking officials; or (4) a failure by policy makers to properly train or
supervise their subordinates, amounting to deliberate indifference to the rights of
those who come in contact with municipal employees. Giscombe v. New York City
Dept. of Educ., 2013 WL 829127, * 7 (S.D.N.Y. Feb. 28, 2013).
While the complaint is devoid of any allegations as to a policy, custom or
practice, based on plaintiff’s opposition memorandum it is apparent that he seeks to
impose liability based on a practice so persistent and widespread that it constitutes
a custom of which constructive knowledge can be implied on the part of
policymaking officials.
The footage referenced in plaintiff’‘s memorandum gives no support to a claim
of a persistent practice as there is no indication in any of that footage whether there
was a legitimate law enforcement purpose. See Caldarola v. County of Westchester,
343 F.3d 570, 576-77 (2d Cir. 2003) (finding a legitimate purpose in coordinating a
group of arrests, videotaping the post-arrest walk, and disseminating the videotape
because “the County created and distributed the videotape to inform the public
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about its efforts to stop the abuse of disability benefits by its employees.[] The fact
that corrections officers—public employees—were arrested on suspicion of grand
larceny is highly newsworthy and of great interest to the public at large. Divulging
the arrests also enhances the transparency of the criminal justice system, and it
may deter others from attempting similar crimes. Furthermore, allowing the public
to view images of an arrestee informs and enables members of the public who may
come forward with additional information relevant to the law enforcement
investigation.”); Lauro v. Charles, 219 F.3d 202, 213 (2d Cir. 2000) (noting that
“[t]he interests of the press, and of the public who might want to view [actual,
unstaged] perp walks, are far from negligible”). Nor is there any indication in that
footage that the perp walks were staged. Lauro, 219 F.3d at 213 ( holding that “in
staging the perp walk, [the] Detective [] engaged in conduct that was unrelated to
the object of the arrest, that had no legitimate law enforcement justification, and
that invaded [plaintiff’s] privacy to no purpose. By exacerbating [plaintiff’s] seizure
in an unreasonable manner, [the Detective] violated the Fourth Amendment.”)
Finally, as the footage is of arrests that occurred subsequent to Matthew’s arrest,
they do not support the existence of a policy at the time Matthew was arrested.
Nor do the two instance of the alleged staging of Matthew’s perp walk
support the inference that the County had a policy of staging such walks. “There is
no ‘magic number’ of instances of unconstitutional conduct that will suffice to
permit the inference of a broader municipal policy or custom.” Norton v. Town of
Islip, 2016 WL 264930, *7 (E.D.N.Y. Jan. 21, 2016). However, courts in this Circuit
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have rejected the notion that two, three or even four incidents will support such an
inference. See Giaccio v. City of New York, 308 Fed. App'x 470, 471-72 (2d Cir. 2009)
(dismissing Monell claim where plaintiff “identifie[d], at most, only four examples
where the defendants might have disclosed [plaintiff's] positive drug test results,”
the injury complained of, as “fall[ing] far short of establishing a practice that is ‘so
persistent or widespread’ ”); Bowles v. N.Y.C. Transit Auth., 2006 WL 1418602, at
*16 n.31 (S.D.N.Y. May 23, 2006) (holding that “the combined evidence of only two
incidents would still be insufficient to show a 'custom or usage' under the Monell”).
see also Prince v. County of Nassau, 837 F. Supp. 2d 71, 104 (E.D.N.Y. 2011), aff'd,
563 Fed. App'x 13 (2d Cir. 2014) (dismissing Monell claim as plaintiff proffered
evidence only as to purported harassment with respect to his bars, and not any
other bars or restaurants).
The County’s motion to dismiss the Monell claim is granted. The Court will
allow Plaintiff to amend this claim but he is reminded that simply adding
references to local news footage will not support plausibility.
D.
The State Law Claim Against the County
County Defendants’ motion to dismiss plaintiff’s claim pursuant to Article I,
Section 6, of the New York State Constitution is premised on the failure to file a
notice of claim as required by New York General Municipal Law § 50-e. Plaintiff
does not dispute that he was required to file a notice of claim for his state law
claims and concedes that such claims are therefore “barred.” Pl.’s Mem. in Opp. to
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County at 3. The motion to dismiss the claim pursuant to Article I, Section 6, of the
New York State Constitution is granted. See Brooks v. County of Nassau, 54 F.
Supp. 3d 254, 257-58 (E.D.N.Y. 2014) (General Municipal Law § 50-e’s requirement
of a notice of claim applies to violations of state constitutional provisions and failure
to comply requires dismissal).
CONCLUSION
For the reasons set forth above, the motion of District Defendants is (1)
granted as to the Thirteenth Amendment claim, with leave to replead; (2) granted
on the claim of negligent infliction of emotional distress; (3) granted as to the
District on the claim of intentional infliction of emotional distress but denied on
that claim as to the Individual District Defendants; (4) granted on the claim of
malicious prosecution, with leave to replead; (5) denied as to the Monell due process
claim against the District. The motion of the County Defendants is granted, with
leave to replead only the Monell claim against the County. As to those claims for
which leave to replead has been granted, any amended complaint must be filed with
twenty (20) days.
SO ORDERED.
Dated: Central Islip, New York
May 5, 2016
/s/ Denis R. Hurley
Denis R. Hurley
District Court Judge
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